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- [00:00]
A
Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And do we have a lineup for you. Auto pen. The dispensing power take care clause versus the vesting clause. We're going to talk about TikTok, the Department of Education. We have two different views of this court and what this moment means. That we're going to have to break down and debate the legality around Catholic confession. Comments pouring in from our Supreme Court clerk listener base. And finally, a little tldr these days. It's just too long and I didn't read it. All this and more coming up on Advisory Opinions. I want to talk to my fellow attorneys for a moment. Do you really want to spend time on the technical side of briefing blue booking tables, appendix assembly, bait stamping, or would you rather focus on your argument type? Law can take your draft and exhibits and transform them into a court ready, rule compliant E brief and appendix Overnight. They've helped prepare over 10,000 filings in courts across the country, even SCOTUS. Learn more@typelaw.com and use referral code advisory to save 10% on your first order. That's TypeLaw.com Mike and Alyssa are always.
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Trying to outdo each other. When Alyssa got a small water bottle, Mike showed up with a 4 liter jug. When Mike started gardening, Alyssa started beekeeping.
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C
Oh, come on.
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B
They called a truce for their holiday and used Expedia trip planner to collaborate on all the details of the trip. Once there, Mike still did more laps around the pool. Whatever you were made to outdo your holidays. We were made to help organize the competition. Expedia Made to travel.
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A
All right, David, we don't have a great sense of where to start today, but we do have so much to cover. We're just gonna like, we've got a tree with a bunch of ripe fruit and we're just gonna start picking some delicious figs. I don't know why figs came to mind, but those sound delicious right now. I have a friend with a fig tree and I feel like figs are the thing you can't really get from the grocery store because they go bad really quickly. But if you have a friend with a fig tree, become closer friends with them. Like that's the best way to do figs.
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C
So I have never had a fig. I don't know if I would know a fig if it hit me in the face.
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A
We can do that next time you visit I had never had a fig until I moved to D.C. so it must be a little bit of a cooler climate thing. But figs, they're amazing. This episode is brought to you by Figs, the fruit that you maybe haven't tried yet. Just kidding. Let's start with auto pen because we got a lot of questions from listeners about the constitutionality of using the presidential auto pen. And let's just set the stage here. So auto pens have been around for a very long time in the sense of a sort of a pen copying what you're doing. I mean, Thomas Jefferson had one of these, you know, that like while he writes, it makes copies for him. Sort of an auto pen of sorts. But fast forward to modern usage. I mean, every congressional office has an auto pen. All those letters that you send your congressman and you get the really nice letter signed back, bad news, that's a pen. Now, what does the auto pen actually look like? This is not electronic in any sense of the term, except for the fact that it requires electricity. It is a mechanical device that holds a real felt pen and then moves it in the way that you have taught it to move it based on the signature of the principle. And yeah, they're just, they're ubiquitous, David, and they've been ubiquitous for a long time because again, this is not a high tech gadget. Versions of this have existed for hundreds of years. So what does that mean for the use of the auto pen in the presidency? Obviously it originates as like signing these letters to, you know, adorable girl scouts. Think of that President Reagan SNL skit where the girl scouts come in and he's super nice and they leave and then like they're planning Iran Contra. It's like one of the best SNL skits on politics. But what about President Biden's use of the auto pen for pardons? Or let's imagine signing a piece of legislation. Do you have a real constitutional challenge that that legislation is void or that the pardon never happened? David, what are your thoughts?
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C
Well, the danger with the auto pin has always been that a staffer can walk in, draft a letter that says whatever they want it to say, put it into the auto pin machine, and it's going to look like the principal has signed it.
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A
Can I confess something? I use the auto pen to sign one of my recommendation letters in a congressional office.
- [04:59]
C
Oh, I'm assuming with permission.
- [05:01]
A
I mean, I don't actually remember. I assume because that's actually something that I would feel really guilty about if I hadn't gotten permission. But I But like, permission is different than like, they read the letter, I'll tell you that.
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C
Gotcha. Yeah.
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A
So which maybe gets to the point, right? I had permission, but they didn't actually know what I was saying about myself.
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C
Right.
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A
Sarah, as de facto chief of staff to Senator so and so.
- [05:23]
C
So the bottom line is the auto pin can be dangerous. But at the same time, if you say, hey, this is a letter that I want you staffers to write and that I've written, written, or you're going to write for me, I'm going to approve the language and I need you to sign it and send it to all the constituents, you know, auto pin. Fine, fine. Now, what about auto pen as a means of providing the legally enforceable permission structure for a pardon? Okay, that's a different thing. Now, if you say, I have individually approved 1,783 pardons and I want you to sign my name on 1,783 separate pardon letters, I can get there. But I'm reluctant to get there, Sarah. I'm reluctant to get there. But the situation with Biden appears to have been that he would approve categories. He was trying to approve categories of people to pardon, and then staffers were then applying the categories outlined to Biden to individuals and then using the auto pin. And I have very big problems with that. I have very. Now, full disclosure. I have very big problems with the pardon power. And so I'm not super excited about using technology to magnify the ability to execute pardons beyond the scope of individualized pardon determinations. And so I have very big problems with this. But the problem with my problems, Sarah, is that the pardon power is so big and unbounded in the Constitution. While I have a political problem with what happened, while I have, in theory, a legal problem with what happened, I really have a hard time seeing any court doing anything to upset and overturn these pardons because of the expansiveness of the power. And then Biden just would walk in and say, yeah, this is what I wanted. They did what I wanted. They caught, you know. So even though I have huge problems with it, given the zone of permission that courts have established around the pardon power, I just don't know how much my concern matters.
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A
I'm hearing two different issues here also, and it sounds like you're real issue is not with the auto pen. The auto pen makes you nervous. You don't love the auto pen.
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C
Don't love the auto pen.
- [07:56]
A
But if, you know, he had seen every name, agreed on every name, they had briefed him on every person's crime. And then they were like, all right, we're not going to make you sign all of these. Use the auto pen. You would. Again, you wouldn't love it, but legally, you'd be fine with that.
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C
Yeah.
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A
What you have a problem with is separate from the auto pen, which is buckets of pardons.
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C
Buckets of pardons. I have a big problem with that. But the auto pen is a leading edge indicator that you're dealing with buckets of pardons.
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A
It is, because it's so easy to do buckets of pardons if you rely on the auto pen. I find it fascinating, by the way, and this was an interview with President Biden in the New York Times that he admitted to the buckets of pardons.
- [08:35]
C
Yeah.
- [08:36]
A
Because that does open up. I think you're exactly right. I don't think there's any successful legal challenge to be made here, but it does open up a legal challenge, which is that the Constitution says he shall have power to grant reprieves and pardons for offenses against the United States. As you say, David, that language is very broad, but I do think the most accurate reading of that is to grant pardons to individuals for offenses. I don't think you can pardon types of crimes or types of convictions in even. And so in that sense, the buckets of pardons don't look like they fall into the pardon power. In fact, if anything, can I transition here a little bit to TikTok? Because if anything, it looks like it's been 182 days since the TikTok law has been ignored in the Trump administration. This goes to a fundamental power that the president of the United States does not have and that the King of England did have at one point, which is the dispensing power. The dispensing power is the power to say, I'm not doing that law. This came up bigly for conservative legal scholars during the Obama administration because of DAPA and daca, though I think it really was more DAPA focused. DAPA was the parents of dreamers, as shorthand. So you were brought here illegally as a child through no fault of your own. So we gave legal status to the parents who brought you here. Always a questionable policy choice in terms of incentivizing unlawful immigration into the United States. But legally, the Obama administration argued that this was just prosecutorial discretion. And a whole bunch of legal scholars that were conservatives wrote a whole bunch of stuff about how the president doesn't have the dispensing power because he is not the King of England. And this ain't 1625. The buckets of pardons daemon looks a lot like dispensing power because while you're not not enforcing the statute, the person right was tried and convicted under that statute. Nevertheless, you're sort of dispensing with it after the fact because you're not granting individual pardons. And even so, David, to your initial point, that if he saw all, let's say, let's make it 4,000 names. So all of these 4,000 people were convicted under statute X under a previous president. And this president doesn't like statute X, doesn't think it should be law, so he doesn't go through those names. Or maybe he does, sure, he sees everyone's name because he knows that all 4,000 of these names were convicted under statute X that he doesn't like. How is that? And then he pardons all of them individually, let's say, right? There's no bucket problem, there's no auto pin problem. But how is that different than the dispensing power? And, and the answer, by the way, though, from these conservative legal scholars back in the Obama administration, which again, I like to rely on that because now they're sort of riding against their own interest because several of them are quite in favor of the president. But at the time they were sort of giving the strongest case against the dispensing power. David, their argument was that that was the inherent evolution of the dispensing power from the King of England to the United States presidency, that you can't not prosecute it, but you can grant as many pardons as you want. Think here of, for instance, the Alien and Sedition Acts under the Adams administration and those convictions and the pardons under the Jefferson administration, for instance. So I don't know, maybe the buckets of pardons are okay, maybe that is the remnant of the dispensing power. I still see why you would be deeply uncomfortable with that, just because the breadth of the power is even broader in some sense. But it makes the TikTok thing more. More egregious somehow. Even though I think it's as egregious. It's like already a 10 for me. So, like, I don't know if the dial goes up to 11, but yeah, so there's a little bit on the dispensing power.
- [12:38]
C
Yeah, well, you know, it really goes to how does a president exercise. How concretely does a president exercise inherent authority, inherent constitutional authority? And can a president direct. I want an individual pardon for Every single person convicted under 18 USC section 241. And then when put on the stand in the resulting lawsuit, someone might say, do you remember John Smith, President Biden? No, you'll have to refresh my recollection. John Smith was convicted by under 18 USC section 241. And he says, stop you right there. Then I pardoned him. And the court's just not going to do anything about that, given the breadth of the pardon power, given the breadth of that constitutional authority. But you know what it's mildly reminiscent of to me is do you remember the Trump arguments about declassification that he could declassify in his mind, you know, like or like the Michael Scott I declare declassification, that you could audibly do it, that you could do it in your mind. And because that was an inherent statutory authority of the president, then how could you prosecute him for having classified information? This guy is the declassification authority. And if you are looking for a document establishing declassification, well, you've come to the wrong place. He doesn't have to do that. He doesn't have to. Well, what has to be done for a pardon? Can he pardoned in his own mind? Can he I declare a pardon or does it have to be in a particular piece of paper signed by him personally? And I think one way to, one way to think that through is would such a law be constitutional? Would it be, would it be constitutional if the Congress said your pardon power has to be executed according to this procedure and that procedure culminates in an individually hand signed letter following an individualized determination, would that be constitutional, Sarah, in your mind?
- [14:48]
A
I think absolutely, yes, because the inherent power is the pardon power and the Constitution doesn't create a framework around that. I think as long as the framework was not meant to make it more difficult to issue pardons, but rather to make it clear who was pardoned or the officialness of the pardon or something? Yes, the same way that Congress can put meat on the bones of the 14th Amendment or any other, you know, constitutional powers or limits or rights given to the people. So yes, but there's limits to that right. They can't say you have to jump on one foot and do 20 pushups like it cannot be intended to make it more difficult. But I think they can routinize it to make it routine. Is that how you pronounce that word?
- [15:37]
C
I have never. It's one of those words I've only read, never heard, so I don't know. Routinize it.
- [15:43]
A
Yes, so, David, I want to read you this paragraph from a John Yoo Law Review article. Again, back during the Obama era, the federal Constitution, unlike some state constitutions of the founding period, contains no express provision precluding the President from dispensing with or suspending the laws. Moreover, there is apparently no evidence explicitly linking the Take Care Clause to that elimination of those powers. And just as a reminder, he shall take care that the laws be faithfully executed is a line that we sure seem to be debating a lot right now. So that's the Take Care Clause. Nonetheless, scholars have argued that the Take Care Clause has exactly this purpose. They claim that it is closely related to the English Bill of Rights of 1689, which is which formed an essential part of the great constitutional settlement that wrote the victory of the Glorious Revolution into law and included in its first two sections prohibitions on the suspending and dispensing of powers. We, the authors of this Law Review article, joined that view. I also think we, the speakers in this podcast, joined that view that the Take Care Clause means something. And at minimum, I think it means you can't dispense with the laws. Though again, I think that relationship between the Take Care Clause and the pardon power is really interesting.
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C
So here's my question. Sarah. It seems to me that a lot of the conservative legal scholars I know believe in sort of a weak Take Care Clause almost to the point of impotence. It's hard for me to think of a time when the Take Care Clause was upheld in conservative legal world as an absolute fundamental obligation. The President instead is often denigrated as sort of a general guideline.
- [17:33]
A
And we see that in things like any sort of unitary executive conversation. And even today with the impoundment conversations, this idea of like Congress, you know, the Lilliputians trying to tie down Gulliver type thing like that's the Take Care Clause. Okay?
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C
Right. It's like take care. Ish. And then the unitary executive is absolutely not only is the unitary executive, not only is the executive authority strongly in the President, then we're going to add on a whole bunch of things that are absolutely positively inherent in the executive authority, down to the ability to hire and fire at the edges of unitary executive, hire and fire any and all employees of the executive branch at will, regardless of civil services statutes, or that the executive authority is so strong that the President has the ability to dismantle congressionally created agencies, for example, example, because that interferes with the executive authority. But what if I'm reading the Constitution, I also see The Take Care Clause. And I'm jumping up and down and saying, where in the text does it privilege one over the other so strongly is the question that I have.
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A
For me, I will tell you that I think I treat them both as strong forms, if you will. And therefore there are conflicts between the two, which is why I think you've heard me on this podcast talk about sort of. The President within Article 2 is at the zenith of his power to borrow some language from youngtown. So when it comes to hiring and firing, I don't know how much power I think Congress has. Even if they pass a statute to demand that the President, for instance, have a Department of Education, I am in the extreme minority on this, by the way. But if Congress says, here's a million dollars for grants and we want them to go to schools that are really excelling in taking care of disabled students under the ada, he has the requirement under the Take Care Clause to do that because Congress said so. But they can't make him do it through a Department of Education or a Secretary of Education. Again, I'm in the extreme minority, but I sort of read them both in their strongest form and where there are conflicts. I look to see whether I think it's a sort of core within Article 2 or using the powers of Article 2 to do something else. Does that make sense, David?
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C
That makes a ton of sense if you're. How do you read them in harmony, where there is strong executive function and there is a strong obligation to follow congressional enactments? Yeah, I think that makes a lot of sense. But that has not been the balance.
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A
From anyone except it's just me, David. It's just the cheese stands alone.
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C
That's right. Exactly. Exactly.
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A
Well, speaking of this fight, by the way, let's branch to two things here. One, I want to read you a little bit of the Department of Justice's letter about why they're not enforcing the TikTok ban. And then I want to talk about the Supreme Court's ruling on Trump firing approximately 1400 people from the Department of Education. So let's follow this logic to two different places. First of all, starting with TikTok, these letters went out to the sort of chief legal officers of the most affected companies think Apple, you know, because they've got the Apple store with TikTok on it, sort of a core regulated entity under the TikTok ban, as I'm calling it. Although, again, remember, it was not a TikTok ban. It's actually called the Foreign Adversary Controlled Applications act, and it actually just said that TikTok can't be downloaded or distributed while they are being run by or controlled by the Chinese state government. Okay, here's the letter. Article 2 of the United States Constitution vests in the President the responsibility over national security and the conduct of foreign policy. The President previously determined that an abrupt shutdown of the TikTok platform would interfere with the execution of the President's constitutional duties to take care of of the national security and foreign affairs of the United States. The Attorney General has concluded that the Protecting Americans from Foreign Adversary Controlled Applications act is properly read not to infringe upon such core presidential, national security and foreign affairs powers. It then goes on to say they won't be enforcing it and they in fact give a irrevocably relinquishing any claims the United States might have against Apple, et cetera, for the conduct proscribed in the act during the covered period and extended cover period, blah, blah, blah, blah, blah. David, I want to talk about that, that first paragraph though, because to me here we have a real problem on the take care clause reading. Because if you read that the President can dispense with any law passed by Congress that could implicate America's national security or foreign policy, not directly, mind you, even, but just like, yeah, this law could have some bearing on that. So I'm not going to enforce it. And it therefore intrudes on my core presidential powers. I'm not sure I totally understand what laws from Congress a president doesn't have to ignore under that theory. It's an incredibly like the most dangerous theory I have ever read from a US President. And still nobody cares, David, it's.
- [23:01]
C
Nobody cares. It's mind blowing what's happening here. I mean, you have a law enacted by Congress and then again, this is why impeachment, impeachment's a total dead letter. And in the absence of somebody who has actual standing to enforce this law in court, which I'm not quite sure who would have standing here because who is suffering the harm? I mean, if the harm is to the national security sort of more broadly of the United States of America as determined by Congress, like who has the concrete particularized injury, Right? So nobody has standard to enforce this. There's absolutely no way that Congress is going to take any action against Trump. And so therefore the law is an absolute dead letter. I could imagine a situation if it's take care to protect the national security, a president would say, well, your appropriations bill didn't have enough for national defense.
- [23:55]
A
Right? I mean, everything affects national security. I can't think of a law that in some way doesn't touch upon foreign policy because if it hurts our economy, then it hurts our national security. You know, if it's about immigration, it affects foreign policy, like everything at one point or another that Congress could pass money or specifics. The Affordable Care act affects national security. Absolutely. You know, is America's fighting force ready? Do they have health care before they join the military? So, like, oh, the president can just ignore any law because he has. It would interfere with the execution of the president's constitutional duties to take care of the national security and foreign affairs. So anyway, I don't like it, David.
- [24:37]
C
I do not like it. Not at all.
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A
I don't like the not enforcing TikTok. I think I've made that really clear. This is worse to me. I would actually rather them not enforce TikTok and not say why than give this reason.
- [24:51]
C
Oh, yeah, yeah, absolutely. Well, you know, the way in which the present MAGA movement works is that essentially they give themselves cover for really extremely unlawful acts by citing legal theories. That might sound interesting to somebody who has zero background in constitutional law or zero background in constitutional history, but they give you something to say, well, look, I mean, there's the Take care clause or, you know, hey, I mean, to talk about the Stephen Miller argument. He constantly articulates. Well, we all know that the president is the only public official elected by the whole of the people, so therefore he is the full Democratic representative of the American people. Well, that's a talking point that I 100% guarantee you is not applied to the Biden administration by MAGA and will not be applied to the next Democratic administration. But it gives you something to say. And I think that one thing that Trump 2.0 is much better at than Trump 1.0 is from the top down, giving you the legal framework, the legal theory, however nonsensical it might be, to sort of then say, well, see, I mean, it's just potato, potato. You say the take care clause doesn't include this. We believe that it does. Who's to know who's right? And it really, I think it is. Not only is it clouding the waters legally, at least in the public argument, it's actually cultivating civic ignorance, if it's one way might be to put it, they're making people more ignorant of the Constitution.
- [26:32]
A
What's that? We're all stupider for having heard that answer.
- [26:36]
C
Yes. Yeah, it's. What was that? Billy Madison. Yeah, Billy Madison, yes.
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A
Although I do get it confused with Animal House. Yeah, because they're both sort of that same scene. But Billy Madison has the great I War 2 no points. And may God have mercy on your soul.
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C
Yes, exactly.
- [26:53]
A
All right, David. When we come back, I'm going to give an example of where I do agree with President Trump.
- [27:02]
B
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- [29:02]
A
All right, David, I want to talk about McMahon versus New York. This was a decision that we got from the Supreme Court on July 14, Bastille Day, and yes, it was from that short order interim docket. But I want to read you the facts. Okay? So the Department of Education announced a reduction in force involving 1,378 people. This is now from the government's brief that RIF effectuates the administration's policy of streamlining the department and eliminating discretionary functions that in the administration's view are better left to the states. The government has been crystal clear in acknowledging that only Congress can eliminate the Department of Education. Just footnote, right. Like this is where I literally take a stronger view than they do. That makes me very nervous. But nevertheless, and the government has acknowledged the need to retain sufficient staff to continue fulfilling statutorily mandated functions and has kept the personnel that in its judgment are necessary for those tasks. So that's actually a perfect explanation of my Take Care clause versus vesting clause. Right, David, because like they're saying, we're going to keep doing everything Congress told us to do. But you don't get to tell us like that we have to have Bob doing it. That's within the vesting clause. However, David, it might be relevant to your analysis that there are 2,183 employees left. So they fired just under 1400 and there's just under 2,200 left. And so the question is, and assume like forget my take on the Department of Education or just congressional authority to demand Department of Education, assume that they're right and that everyone else except me is right, that only Congress can eliminate the Department of Education. Is getting rid of 1400 people closer to that vesting clause that we've been talking about, David, or is it closer to eliminating the department, thereby violating the Take Care clause? That was the question in this interim relief docket position. Right. What will be the status quo while the lawsuit is pending and it works its way through the courts for the Supreme Court. Maybe I should just give the spoiler here. It was 6, 3 along ideological lines. And the 6 said, yes, you can riff those 1400 people. And the 3 said you functionally eliminated the Department of Education and that violates congressional statute thoughts and feelings. David, what's your feels between the vesting and the Take care clause and all of and whether this would violate like again, assume that only Congress can get rid of the Department of Education. Is getting rid of 1400 people and leaving 2,200 people getting rid functionally of the department.
- [31:45]
C
So the answer to that has to be right. I mean, based on what I know. My answer is I don't know.
- [31:51]
A
Well, that's the problem with doing something in an interim relief basis.
- [31:54]
C
Bingo. So this is a factual to me, this case is about a factual determination in many ways more than it is a legal determination. Because I agree with, I agree. I don't go as far as you go to where Congress can't say. You cannot, can't say you must establish a Department of Education. But I think that if Congress wanted to establish a Department of Education and then said X or Y number of employees must be hired to effectuate this, okay, that would be a different case.
- [32:28]
A
You don't think they can say that, right? Because then computers are invented and we don't need all these extra people. If Congress said, hang with me on.
- [32:37]
C
The hypo, just hang with me on the hypo. So it would be one case if Congress said, you have to have a Department of Education that has these functions, and these functions must be accomplished by a workforce not too deep below the number of 3,000. That's not a real world scenario. But just imagine that for a second and a president comes along and says, no, I think I can do all this with 2,000 and not 3,000. That would be one kind of case. Here's the case. Imagine the case is Congress, you, there is a Department of Education and has these sets of functions attached to it. You, President, must execute the law to ensure that these sets of functions are accomplished. And it is up to you how to staff hire, et cetera. And in that standpoint, it seems pretty clear to me that a president has the discretion to do a reduction in force so long as the underlying functions are not impaired. And so the question for me would be not, is X number of employees the magic number required by law? In this, it is, these are the functions required by law, and can this set of employees accomplish those functions? And to me, that seems like a straight up fact finding kind of exercise, one that is uniquely one that is not really equipped for quick resolution on an emergency docket.
- [34:05]
A
But you got to pick what the status quo is.
- [34:07]
C
Exactly. But on the status quo issue, unless you come forward with compelling evidence that the actual functions of the Department of Education in the short term will cease, it seems to me the traditional remedy. For example, if your argument is, well, there's some right that these employees have to work here, the traditional remedy, if you've been fired unlawfully is back pay and reinstatement, which is, you know, and so the question that I have, is this conducive to an injunction in the absence of evidence of irreparable harm to whom? Because again, if the plaintiffs are the employees, then traditionally you're not necessarily getting injunctive relief Unless you're being fired for a violation of your constitutional rights. Okay, so this is tangled, Sarah, which is why my one big thing is write about it. The majority was silent here, so please, please, please, please write this out. Please.
- [35:07]
A
Okay, well, I'm gonna make it tanglier.
- [35:09]
C
Okay.
- [35:10]
A
The plaintiffs in this case are not the people who got fired. The plaintiffs are actually the, like, local school districts and states that argue that they will not be getting the services that they were getting before. So, David, that gives us, like, maybe the majority decided that they weren't sure about the standing issue. Maybe the majority decided it was this take care question and they think it leans toward the President. Or maybe they just think that if the equities are sort of split, let's say, let's say the irreparable injury is on both sides, that the tie goes to the administration, because that's the sort of elected will of the people. And they have. There's always sort of the most irreparable injury if an elected official can't effectuate their policies for what would end up being a year or two years. I do feel like all of those probably factor in to some extent. But to your point, David, we don't know who fell into which bucket of those because the majority didn't write. And if I can just read the first paragraph. Sotomayor wrote the dissent, with Kagan and Jackson joining. This case arises out of the President's unilateral efforts to eliminate a cabinet level agency established by Congress nearly half a century ago, the Department of Education. As Congress mandated, the Department plays a vital role in this nation's education system, safeguarding equal access to learning and channeling billions of dollars to schools and students across the country each year. Only Congress has the power to abolish the Department. The executive's task, by contrast, is to take care that the laws be faithfully executed. Yet by executive fiat, the President ordered the Secretary of Education to take all necessary steps to facilitate the closure of the department. Consistent with that executive order, Secretary Linda McMahon gutted the department's workforce, firing over 50% of its staff overnight. In her own words, that mass termination served as the first step on the road to total shutdown. David, we just, I mean, this is the problem with the short order docket, interim relief docket. We have factual disputes here among the justices, and then we have the implications of those facts, of course, but, like, was it 50% of the workforce? Don't know, I guess.
- [37:23]
C
Well, and it also, a lot of this is speculative because the issue is if If I'm a state and I'm suing because I'm afraid that a reduction of X percent is going to diminish the ability to, to receive the services of the Department of Education.
- [37:38]
A
They don't know.
- [37:39]
C
They don't know. But if, for, if, for example, Congress said, you know, there's a program under which Massachusetts Public Schools or Boston, I mean, Boston Public Schools are supposed to receive 125 million from the DOE and they don't receive it, and they don't receive it on time, and there's, it appears that they may never receive it. Well, then you've got real concrete, particularized harm. Here's money appropriated by Congress that you have gutted the DOE to such an extent that I can't receive it. And so, but then the question is, do you issue an injunction on an anticipatory basis that you're pretty darn sure that the RIF announced means that you won't get these funds or you won't receive the benefits? That strikes me as kind of speculative. But again, we are filling into the void here. We do not have the majority's position, and so we're kind of having to steel, man what we think it would be. I don't like that. I think that's a problem. So please write, please write when you have. Because I have been answering questions from people for more than a week about this case, and I don't know what to say about the majority's reasoning other than to just fill it in with informed speculation like we're doing now.
- [38:51]
A
I will also say, I mean, this is just one of those cases where, like, it wasn't a true emergency. That's why I, in this case in particular, it was not the emergency docket. This RIF went out in February, and it was enjoined since then, and the dissenters had time to write 19 pages. So it's not like we weren't going to wait if you had something to say. You know, there's been speculation that perhaps the six in the majority weren't all agreeing on the reasons. You know, two were in standing, two were on take care clause, two were on weighing the irreparable harm sides, and that that would have made for a messy majority. Yeah, it would have, but I think it's better than us guessing. So not, not great. David, since we're talking about the Supreme Court, I want to take a minute to compare and contrast these two pieces. This piece by Andy Smarek, a senior fellow at the Manhattan Institute, versus another piece by Bob Bauer, former White House counsel under President Barack Obama, now a professor at New York University. Okay, so here's Andy's piece. How the Supreme Court is returning power to the people. The conservative majority has demonstrated a vital commitment to Republicanism. In one sense, he writes, the Court is rolling back the two strands of left jurisprudence that dominated for generations, liberalism and progressivism. With the former, the Court manufactured new rights found neither in the Constitution nor in our history or traditions. Footnoting from Sarah. Think Warren Court here that had the effect of enabling Justices to read their own policy preferences into the law, tying the hands of elected officials with the latter. Progressivism. Now, the Court allowed the federal government, particularly its sprawling bureaucracy, to centralize power away from the people. Think fdr, Wickard, all of that stuff that also makes conservatives pretty angry, but that they hadn't really done much about, to be honest, because every so often they were in power and they liked it just fine. Remember, Chevron was a Reagan era case. To remedy those errors, today's Court hasn't been especially, quote, conservative, if we understand conservative jurisprudence to mean a combination of institutionalism and originalism and textualism. Indeed, many of its decisions have been seismic rather than staid. And originalism isn't doing much heavy lifting right now. Chief Justice Roberts, once again most frequent in the majority. This term doesn't describe himself or present as originalist. Some major decisions haven't been primarily originalist or textualist. And there are live questions among the Justices about how history, tradition and precedent intersect with originalism. Instead, the defining characteristic of this Court, thankfully, is its commitment to American republicanism. Not capital are republican as in the political party, but republican as in distributed self government and reliance on an active plot pluralistic society. This puts the people in charge via elected representatives and state legislatures in Congress and through a constellation of close to home voluntary associations. This is the only way our diverse continent spanning nation of free citizens can flourish. Interesting and well put. Take I thought, David. And then here's this from Bob Bauer, speaking to progressives called progressives and the Supreme Court, the case for disengagement is misguided. Many progressives view the Court's conservative composition as the illegitimate product of Donald Trump's manipulation of the appointments process to mold a conservative majority. For these critics, this coup of sorts continues with this majority swayed by a well funded right wing movement disregarding precedent and principled reasoning to fulfill a hyper conservative agenda on important and divisive constitutional issues. And yet in tension with this critique is the constitutional moment in which the country finds itself as Trump presses an extraordinary MAGA agenda, including sweeping claims of executive authority, to advance his particular brand of hard right politics, the Court is inescapably the forum for resolution of constitutional conflicts. And so progressives have nowhere else to turn. And it is in the background of much progressive thought over the decades that the Court should play this role, that it is there before the nine justices and not in the messy world of everyday politics, that these questions should be decided. This is the conflict, a no win in which progressives experience the Court's current engagement with these issues. And then he goes on to say how, you know, some would like to disengage from the court. And David, he goes on to say, like, this court is not. This court may be conservative, but it's not a MAGA court. And so disengagement is a big mistake. And he ends with this. As for the argument that progressives should expect less from the courts and more from strategies of political action directed towards winning elections and shaping public opinion, well, yes, and not just as an answer to disappointments with this court, but at all times. I just sort of love these two pieces because they start from totally different premises, but they end up in the same place that the best answer to our problems today is a Republican form of government. And to stop looking to the Court to fix all your problems and to go vote in primaries. In short, I mean, I'm adding that part in.
- [43:52]
C
You know, we've been talking a bit about sort of like the state of progressivism in this new Trump era. And we talked about how the 2,000 teens, in the context of trans rights and everything, the 20 teens, sort of speaking more broadly, were bad for progressivism ultimately, because they reached a point where in the 2000 and tens, it was. It felt as if they could literally bully their way to cultural victory that they could hector, they could shame, they could scream, they could yell and end public debate and accomplish concrete things in the real world. And that was a very short term sugar high that I think MAGA is going to learn. But over the long term, it built up an immense amount of resentment and has ultimately not just closed people's ears to a lot of progressive arguments, but it has turned them very, very emphatically against the political party they saw as the vehicle for a lot of that intolerance and bullying. So, you know, one of the persistent problems that Democrats deal with now is, yeah, Trump has a low approval rating, but would you ask people what they think of the Democrats? It ain't great either at all. And so the 2,000 teens were bad for progressivism in the sense of the top down bullying deceived them into thinking that accomplished really lasting cultural change in that way. In some ways the Warren Court was bad for progressivism because it taught them that there are always two avenues to change. Avenue one is the democratic process, and avenue two is an activist court. And so you could push in either direction. And even if you didn't have Congress, you could win very substantial victories in a very activist court. And so what does that mean? That means that it limits your focus on public persuasion for systemic change. Now, there are times, as we've talked about, the Supreme Court has this counter majoritarian role. It does have to do things that the majority of the people don't want, but not as a program of social reform, but rather as a program of constitutional fidelity. Those are different things. And so I do wonder, honestly, Sarah, if some of the ability to accomplish through the judiciary that which they were not able to accomplish through the democratic process also kind of blunted that ability or even the desire to kind of reach consensus positions in the public, which has again led to a degradation of sort of public opinion around a lot of bleeding edge or leading edge progressive ideas. Just spitballing here on that.
- [46:28]
A
We come back. I want to point out where Andy seems to be wrong. All right, David. I want to push on Andy's thing because it feels good. I'm like, yeah, Republicanism, you know, this is what the court's role should be. Yes, pushing back on the errors of the liberalism and progressivism as he defined them, because they distorted the constitutional order and are at least in part responsible for the Congress or lack of Congress that we have now in an executive branch on steroids. And I want to say that like every decision can be seen through that lens, but it's not true. So for instance, when we're talking about all these religious liberty cases, those haven't been deferring to state legislatures, not at all. When we're talking about the Second Amendment, they have been on a project of constitutionalizing the Second Amendment. Whereas what Andy's describing is deconstitutionalizing, as in returning things to the political process so that those really tough public policy debates can move back and forth, can be resolved differently in different states. So constitutionalizing more something like the Second Amendment is the exact opposite of what he's describing. Now, I understand that people are going to say, yes, but those things need to be constitutionalized and the other things didn't. But I especially think on guns, David, it's pretty hard to argue that one is more obvious in need of constitutionalization than the other. I think there's a much better textual argument that one is constitutionalized and abortion was never constitutionalized and was never intended to be. But that's a, an originalism process argument. It's not what Andy's talking about, which is a project of republicanism and restoring the balance between the elected people and that counter majoritarianism in our system that should be as small as possible. We want as little as possible to be taken away from majorities, only those things that must be to protect minorities against mob rule. Again, I love that idea, but there's plenty of counterexamples where that's not at all what the Supreme Court's doing.
- [48:39]
C
I'm looking, I would, I look forward if Andy's listening to hearing his response to that. I think, you know, I would put it as not so much establishing small r republicanism, although that is present in some of the cases, but as doubling down on enumerated rights in many ways, abandoning unenumerated rights or not abandoning, limiting or at least saying no more on unenumerated rights. And then as far as the small R Republicanism, yeah, absolutely. I would say things like the loper bright decision and overturning Chevron. That is a small R Republican decision. But you know what is absolutely, absolutely not the qua. The immunity decision, the Trump immunity decision is not a small R Republican ruling at all. Because if you want to define what small r republicanism, at its core, it's going to be anti monarchical. It is going to be anything that smacks of royalty. So the pardon power is not a small R Republican element of the American Constitution. It's a monarchical holdover that is preserved in the American Constitution. Royal immunity. Royal immunity is not a Republican small R Republican element of our constitutional structure. And so I think that immunity decision was counter Republican.
- [49:58]
A
You and I disagree on the immunity decision. So people can go back and listen to our many episodes fighting over that. But I do think that as much as I like, first of all, I do love Andy's definition of liberalism and progressivism because we use those terms interchangeably. They are different and I think his definitions are correct and well put. Second, I do think that the conservative legal movement was largely created to push back on liberalism and then later progressivism. So check, check, check, check. I don't think that this court though, is necessarily like riding the choo choo train of just turning back liberalism and progressivism. I think it is trying to define the roles, if you will Something, you know, any bureaucracy has to do. The like, chain of command whose lanes stay in your lane. I'm sure everyone has heard that before in their jobs. And so to your point, David, you can't see everything in a Republican lens, Big R or little R. But it might be the case that you can see everything in a stay in your lane lens if you accept their definition of what the lanes are. And again, their definitions are that the liberal, the liberalism redefined the court's lane. And they're like, nope, that's not our lane. And progressivism redefined the executive's lane. Nope, that's not the executive's lane. But the pardon power, obviously in the executive's lane, immunity, you disagree, but within the executive's lane. And so you cannot like that. But they're just maybe like really hardcore constitutionalists is a better way than saying Republican. Because like you said, David, I mean, my God, our founders were not pure Republicans in any sense. Alexander Hamilton, I'm sure, could barely say the word out loud without vomiting a little in his mouth. So if you're a true originalist, you're not a just out and out Republican. There's a reason that the, you know, Adams administration was the Federalists and the Jeffersons were the Democratic Republicans. So, you know, anyway, we'll put those two pieces in the show notes. You guys can read them. They're very short, very readable. David, I want to spend a few minutes on this case out of Washington state. This is unusual for us because this is not an appellate case, it's not a Supreme Court case, but can you set up for us the law that Washington passed and the debate raging in the nerdiest corners of religious liberty. Twitter over why this law might be bad?
- [52:36]
C
Yeah, so this is a law passed in Washington state about mandatory reporting. And so when you're thinking about mandatory reporting, what we mean is, if you have reason to know that a child is being abused, sexually abused, physically abused, who is compelled by law to report this? In other words, anybody may report, like, if you see a crime, you in general in the world, you may call 911 and report it. But I'm not a mandatory reporter. If I'm walking down the street and I see shoplifting and I'm not required to call and report that. But if a child is in danger, states have mandatory reporter laws, and these state laws tend to be different from state to state. And Washington state is a special little creature. And you cannot understand this case. We can't not have an intelligent conversation about this case. In the abstract, as you learn, if you listen to advisory opinions, you have to have it in the concrete facts. You can't have it in the abstract. What should the law be? It has to be, what is the law and how are we looking at the law constitutionally? So Washington, and I'm going to read from the district court's opinion. Washington law provides a framework for reporting child abuse and neglect cases to the appropriate public authorities and directs that after receiving report, protective services shall be made available. So the code requires certain professionals to report, and this includes any practitioner, county coroner, medical examiner, law enforcement officer, professional school personnel, registered licensed nurse, social service counselor, psychologist, pharmacist, employee of the, you know, state employee of the department of youth services. And it goes through a pretty long, but actually when you drill it down, not very voluminous list. Okay, so there's a certain subset of professionals that are required to report. Any other person who has reasonable cause to believe that a child has suffered abuse or neglect may report, but is not required to do so. Additionally, any person who is acting in his or her official supervisory capacity with a nonprofit has reasonable cause to believe that a child has suffered abuse or neglect over whom she regularly exercises supervisory authority must report. So these are all it is a you must report in very specific categories. So along comes Washington, and Washington comes and revises the law to include that clergy must report. And there is no exception for clergy reporting from the sacrament from the confession booth. In other words, Catholic priests under this law would be required if they are told in confession that a someone is abusing a child, that under this law they would be required to report. The church objected to that because in the Catholic Church, and we're going to have Catholic listeners who are going to absolutely fact check this in the comments, but I'm, I'm, I'm being pretty basic and I'm going from the court's opinion that the Catholic Church views confession as both an act of mercy and an act of church discipline, where a priest acts in Persona Christi in the person of Christ. A priest here in confession must impose salutary and suitable penances in accordance with equality and number of sins, taking into account the condition of the penitent, and the penitent is obligated to fulfill this penance. In other words, this is an arrangement that in Catholicism is not intended to be voluntary. It is sacramental. And so you're breaking the sacramental seal here. So very, very, very core interest of the Catholic Church is the sacrament of confession. So the case goes before the District Court and the district court rules in favor of Catholic clergy and issues a very limited injunction. The injunction is enjoining against the enforcement of this clergy reporting law in the sacramental confession booth only. Not it doesn't enjoin the law broadly, doesn't enjoin it in any other context. And the Church put forward information that said, look, our actual reporting requirements that we self impose are greater than the reporting requirements imposed by law, but the sacramental confession booth is sacrosanct. And so here's how the court analyzed this. And I think when you hear just this paragraph, it's going to make it very clear why it reached the decision that it reached. So it says SB 5375 modifies existing law solely to make members of the clergy mandatory reporters with respect to child abuse or neglect. However, other groups of adults who may learn about child abuse are not required to report. Parents and caregivers, for example, are not mandatory reporters. Moreover, the Washington legislature passed substitute House Bill 1171 relating to exempting attorney higher education employees from mandated reporting of child abuse and neglect as it relates to information gained in the court of providing legal representation to a client around the same time as it passed SB5375. Sarah, you do not have to be a religious liberty extremist to see the problem here.
- [58:02]
A
Yeah. So lawyers still have attorney client privilege, but priests don't have confession. Hmm.
- [58:10]
C
And parents and caregivers. What? Okay, so this is. This law was enjoined. The injunction was very limited. It was an injunction not against the application of the law in general, but at the application to priests in the sacrament of confession.
- [58:26]
A
So Protestants are going to need to get their own injunction if they want to make the case for it. As of right now, Protestants have to act under this law fully.
- [58:33]
C
Correct. Correct.
- [58:34]
A
By the way, can I just say, sorry, this is a little crude, but like the big swinging balls on someone willing to sue and say, yeah, we don't want to do that. We don't want to report child sexual abuse.
- [58:46]
C
Well, you know, their argument is that this is something that is essentially, it's religiously compelled, so people would be compelled to.
- [58:55]
A
Yeah, yes, yes. It's a good legal argument. I'm just saying, at the end of the day, you're having to go up and say, there are times when we don't want to tell anyone about child sexual abuse that we know is going on because of the way we found out. That's a hard thing to say out loud.
- [59:14]
C
It's a hard thing to say out loud. It absolutely is. But under the facts of this case, it's hard to see how this could survive constitutional scrutiny. But I got a different case for you, Sarah. It's not an actual case, but a different theoretical case, but rooted in an actual law. So Washington, contrast that with Tennessee law. Tennessee law says if you're an adult, you're a mandatory reporter.
- [59:41]
A
Yeah, no exceptions.
- [59:42]
C
No exceptions, no problem.
- [59:45]
A
Well, I say no problem. That's actually much closer to the close calls we've seen from this court in a post Employment Division vs Smith. Neutrally applicable laws and all of that where like, they want to get rid of Smith post Fulton, but they don't know what to replace it with. But that is the quintessential neutrally and universally applicable law where you don't get to say, yeah, but like, I smoked crack because of my religion, so you can't fire me. That's really just Smith. But it was peyote. And I. Again, I think the court is really struggling with what to replace it with because of exactly this scenario that like, yes, if you're showing hostility towards religion, or at least singling out religion as more disfavored than other groups a la Washington, that's just like, easy. Actually, it's not a very interesting case because it's not universally applicable, but the Tennessee one, you would have to say, in fact, that religions get special protection against the law. And again, in this context in particular, that's just like a hard thing to say out loud. Like, we want every adult to have mandatory reporting if they know about child sexual abuse. Unless you're really religious, in which case don't worry about it. And especially given the history of this.
- [61:03]
C
Issue, I mean, the Tennessee law is so any person, including but not limited to any physician, and then details all possible medical providers, health or mental health professional, practitioner who relies solely on spiritual means for healing, school teacher, judge, social worker, law enforcement officer, authority figure, and then outlines all of them. Neighbor, relative, friend, or any other person. So this is like, yep, you. Absolutely neutral law. General applicability. So then the question becomes if you, you know, I don't love, I don't like Smith, as I've talked about, what, what would be. How would you resolve this case? That is a far more interesting and compelling case than Washington State, which is why we always have to bring up your tattoo. Sarah.
- [61:54]
A
Other cases presenting different allegations and different records may lead to different conclusions.
- [62:00]
C
Exactly. So you can't just walk in and say, priests should report child abuse. Therefore, I am against the outcome of this case. No okay, wait a minute. If. Are you against the outcome of the case? If the actual law in question singles out religion for lesser and more disfavored treatment, then all kinds of secular helping professions, including and secular individuals, including parents and caregivers. No, no, no, no.
- [62:30]
A
That's a good one. And now I kind of want someone to sue in Tennessee just so we can figure out what Post Smith land looks like. Come on, Catholics, do your job. Someone sue. Because the problem is still the same. Either confession is a sacrament or it's not. It's not different in Tennessee than it is in Washington.
- [62:47]
C
Yeah, yeah.
- [62:48]
A
So as far as Catholics are concerned, the Tennessee law should be as much of a burden as the Washington law on their religious practice. They have a better legal case in Washington, but they should bring the lawsuit in Tennessee. Let's gin up some litigation. David, I have two more items for you. One, we caused quite a listener kerfuffle from the last episode in our conversation about whether Supreme Court clerks read the hard copies of the briefs or read the electronic copies. Many Supreme Court clerks had their own feelings on what is standard practice. And of course, since I'm old, several of them were from, let's just say, past terms. And I was like, yeah, but the world has changed, especially post Covid. So I got a Supreme Court clerk, David, and I asked, what is the standard in your chambers and what do you think the standard is across the elect as you will for the term that just ended? And the answer was cert petitions are read electronically. Briefs are more often read in hard copy. And I like this, David, because it matches with pretty much what we said. We shouldn't have the printing requirements for cert petitions. You should still have them for briefs. Now, the big question is the appendices, which can of course span hundreds, if not, you know, a thousand pages. And you have to print all of those on this paper and with all the colors and the 60 pound weight and all of that. I mean, this is to the extent you think that the clerks are reading all the appendices to begin with, but I did not get a great read on whether they are enjoying the hard copies of the appendices. But nevertheless, I think we could just start with making the distinction between cert petitions and merits briefs. Can we do that next? David, I had this decision flagged for me out of the 10th Circuit, written by the Chief Judge of the 10th Circuit. It is 147 pages long. And I'll just read you the very top of this. Defendant appellant Lev Aslan Dermen appeals his conviction for conspiracy to commit mail fraud, conspiracy to commit money laundering offenses and money laundering. He raises seven issues on appeal. We don't need to go through all those because David, I'm going to Skip to page 147 where we have a concurrence.
- [65:22]
C
Did you say 147?
- [65:24]
A
I did. Here's page 147. I concur in the reasoning and conclusions in the opinion of Chief Judge Holmes disposing of this appeal. I write separately rather than simply joining that opinion because I am troubled by its length and the detail that it provides. Without further burdening the bar with a concurring opinion, I will say simply that I concur in the majority result. I would like to see some of these from time to time at the Supreme Court. I am troubled by the length and the detail provided. What's that? TLDR too long. Didn't read. I mean this was a TLDR concurrence. And yeah, you know, there's that old saying I would have written less but I didn't have the time or I would have kept it shorter but I didn't have the time. There's something to that. There's some times where you need to write a lot to explain the full intricacies of what you mean. I don't know that that's the case in every piece of litigation and well, I just really enjoyed it and I think I'll be referencing it. The TLDR concurrence, 147 pages on this case was too much and I will admit I didn't read the whole thing. So yeah. Next on advisory opinions, we will have an interesting. I promise it will be a very interesting discussion on the Vacancies Reform act and the. Well, there's a current challenge going on and I'm waiting for the lawsuit to get filed. So we'll talk about that. And we have to revisit two cases that we have previously talked about. David. They are back. Well, one of them's back in a circuit court. One of them was just got to the circuit court and in both cases we were just wrong. So let's, let's talk about that. Next on advisory opinions.