Advisory Opinions – "Signing Away Constitutionality"

The Dispatch | July 22, 2025
Hosts: Sarah Isgur and David French

Overview of the Episode

In this lively episode, Sarah and David dive into hot legal conundrums involving the use of the presidential auto pen, the scope of the presidential pardon power, the constitutional struggle between the Take Care and Vesting Clauses, the Biden and Trump administrations’ approaches to enforcing (or ignoring) laws, and headline cases from the Supreme Court and district courts. The hosts also tackle a religious liberty kerfuffle over clergy compelled to report abuse, reflect on the current philosophical direction of the Supreme Court, field listener feedback, and end with a tongue-in-cheek appreciation of judicial brevity.

Key Discussion Points & Insights

1. Origins and Constitutional Concerns over the Presidential "Auto Pen"

Timestamps: [02:33] – [08:23]

• Auto Pen Explained:
  • Auto pens are mechanical devices (not digital) that can replicate a signature. Jefferson used a version; now ubiquitous in Congress for constituent mail.
• Danger of Deception:
  • Staffers could sign with little oversight ("The danger with the auto pen has always been that a staffer can walk in, draft a letter… and it's going to look like the principal has signed it." – David, [04:37])
  • Sarah confesses to using an auto pen for a recommendation letter, noting the blessing was for signing, not for content ([04:52]).
• Presidential Use:
  • Discussion centers on whether using the auto pen for pardons—especially “bucket” or mass pardons—is constitutional.
  • David’s Concern: The core issue isn’t the auto pen’s mechanics but "buckets of pardons," where staff apply broad categories rather than the President performing individualized considerations ([07:54]).
  • “The problem with my problems, Sarah, is that the pardon power is so big and unbounded in the Constitution… I have a hard time seeing any court... upsetting these pardons” – David ([07:28]).
• Separation of Issues:
  • Sarah notes the real concern is with process—mass actions enabled by technology—more than the device itself ([08:11]).

2. From Pardons to "Dispensing Power" and the Take Care Clause

Timestamps: [08:23] – [14:48]

• Dispensing Power:
  • Sarah draws an analogy to the King's dispensing power—ignoring or overruling statutes versus granting post-conviction pardons.
• Take Care Clause Link:
  • The podcast engages with debates from the Obama years (DAPA/DACA) over the President's obligation to enforce laws, not simply override them.
• Does the Pardon Power Enable Statute Nullification?
  • They parse if mass pardons are a remnant of the dispensing power or a legitimate—and constitutional—use of executive discretion.
• Legal Theoretical Limits?
  • Would it be constitutional for Congress to prescribe the mechanics of executing a pardon (e.g., individualized, hand-signed letters)? Sarah and David agree yes, as long as the intent is administrative clarity—not undue burden ([14:48]).

3. Presidential Authority, Enforcement, and the TikTok Ban

Timestamps: [17:17] – [26:52]

• DOJ Letter on TikTok Ban:
  • Sarah reads from the DOJ’s rationale for not enforcing the TikTok ban – essentially claiming broad national security/foreign affairs powers ([21:17]).
  • “If you read that the President can dispense with any law passed by Congress that could implicate America’s national security or foreign policy... I’m not sure I totally understand what laws from Congress a president doesn’t have to ignore under that theory. It’s the most dangerous theory I have ever read...” – Sarah ([22:54]).
• Host Reactions:
  • David notes the dangerous precedent, lack of congressional recourse, and the practical impossibility of enforcement when standing is unclear ([23:01]).
• Political Manipulation of Legal Theory:
  • David critiques the deployment of legal buzzwords to justify unlawful acts, suggesting it cultivates public ignorance ([25:09]).
  • Memorable exchange: “We’re all stupider for having heard that answer.” – Sarah ([26:32]), referencing “Billy Madison.”

4. Vesting vs. Take Care: Department of Education Layoffs and Supreme Court’s "Interim" Docket

Timestamps: [29:01] – [38:51]

• Case Background:
  • Supreme Court allowed Trump administration to reduce Dept. of Education staff by ~1,400 (out of 2,200 remaining), raising the issue: Does eliminating so many staffers equate to functionally abolishing the agency, in violation of congressional will?
• Legal Tension:
  • David sees it as a factual question: Are agency functions preserved despite staff cuts? Do plaintiffs (states, districts) have standing or show concrete harm? ([31:44]–[34:04]).
• Shortcomings of Shadow Docket:
  • The hosts lament the lack of majority opinion and resulting guesswork for practitioners ([38:51]).
• Dissent Highlight:
  • Justice Sotomayor’s dissent claims administration is gutting a statutory agency without congressional approval ([35:10]).
• Meta-Reflection:
  • Sarah notes confusion about the real “emergency” and criticizes the lack of written transparency from the majority ([38:51]).

5. Is the Supreme Court "Restoring Republicanism"? Contrasting Interpretations

Timestamps: [38:51] – [48:38]

• Andy Smarek’s View:
  • He argues SCOTUS is restoring "small-r republicanism" (i.e., self-government and moving power from bureaucracy to states/people).
  • “The defining characteristic of this Court, thankfully, is its commitment to American republicanism… This puts the people in charge via elected representatives...” ([41:25], paraphrased).
• Bob Bauer’s Progressive Counterpoint:
  • Progressives see the Court’s conservative majority as a threat, but must nonetheless rely on it to check MAGA executive power ([41:54]).
  • Bauer, like Smarek, concludes the solution is returning to political action and elections—not the judiciary ([43:33]).
• Hosts’ Critique and Reflection:
  • David critiques progressive overreliance on courts for cultural change, likening the 2010s to a failed model of “top down bullying” ([43:52]).
  • Sarah notes not all major Court actions (e.g., on the Second Amendment or religious liberty) are examples of "devolution" to the people; many instead nationalize controversial topics ([46:27]).
  • “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...” – Sarah ([49:58]).

6. Religious Liberty: Washington State’s Confession Law

Timestamps: [52:35] – [62:29]

• The Law:
  • Washington made clergy mandatory reporters of child abuse, without a clergy-penitent exception (i.e., confession is not protected).
  • Parents, caregivers, and lawyers, however, are not always included or still retain privileged communications ([58:01]).
• Court's Injunction:
  • Injunction granted—but only for confession booth proper, not other clergy functions ([58:25]).
  • “Lawyers still have attorney client privilege, but priests don’t have confession. Hmm.” – Sarah ([58:01]).
• Legal Nuance:
  • More compelling religious free exercise questions would surface under a truly universally applicable law (e.g., Tennessee’s law making all adults mandatory reporters, no exceptions) ([59:40]).
  • Sarah notes: “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...” ([59:44]).
  • The Washington case is easy for courts since it singles out clergy, but the broader question of religious exemptions from neutral laws is still unresolved.
  • David: “You cannot just walk in and say, priests should report child abuse. Therefore, I am against the outcome of this case. No… If the actual law in question singles out religion for lesser…treatment…no.” ([61:53])

7. Listener Feedback: Supreme Court Clerks, TL;DR Judicial Opinions

Timestamps: [62:47] – [65:21]

• Clerk Reading Habits:
  • Sarah polled a current clerk: cert petitions now commonly read electronically; merits briefs still frequently on paper ([63:21]).
• Judicial Brevity Praised:
  • A 147-page Tenth Circuit opinion receives a 2-line concurrence: "I am troubled by its length and the detail that it provides..." – Sarah, [65:23].
  • “TL;DR concurrence. 147 pages on this case was too much and I will admit I didn't read the whole thing.” – Sarah ([65:21]).

Notable Quotes & Memorable Moments

• On the auto pen’s constitutional danger:
  “The auto pen is a leading edge indicator that you’re dealing with buckets of pardons.” – David French ([08:16])

• On executive overreach theory:
  “If you read that the President can dispense with any law... I’m not sure I totally understand what laws from Congress a president doesn’t have to ignore under that theory. It’s the most dangerous theory I have ever read...” – Sarah Isgur ([22:54])

• On legal rationalizations in politics:
  "Not only is it clouding the waters legally... it's actually cultivating civic ignorance..." – David French ([25:09])

• On the Washington confession law:
  “Lawyers still have attorney client privilege, but priests don’t have confession. Hmm…” – Sarah ([58:01])

• When the Court doesn’t explain itself:
  “We have factual disputes here among the justices... but, like, was it 50% of the workforce? Don’t know, I guess." – Sarah ([37:22])

• On the real source of change:
  “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.” – Sarah ([43:38])

• On judicial writing:
  “TL;DR concurrence. 147 pages on this case was too much and I will admit I didn’t read the whole thing.” – Sarah ([65:21])

Timestamps for Major Segments

• [02:33] – Auto Pen debate: history, practicalities, and constitutional questions
• [08:23] – Buckets of pardons, dispensing power, Take Care Clause discussion
• [17:17] – TikTok ban and non-enforcement as an example of executive overreach
• [29:01] – Supreme Court interim ruling: Dept of Ed layoffs and Take Care vs. Vesting Clause
• [38:51] – How the Court’s philosophy is interpreted (Republicanism, originalism, liberalism, progressivism)
• [52:35] – Washington State’s clergy-mandated reporting and religious liberty (confession controversy)
• [62:47] – Listener feedback: how SCOTUS clerks read briefs, judicial opinion TL;DR
• [65:21] – Outro and tease for next episode: Vacancies Reform Act, returning cases

Summary Table

| Topic | Timestamps | Key Issue | Notable Quote | |------------------------|-------------|--------------------------------------------------------|----------------------------------------------------| | Auto Pen & Pardons | 02:33–08:23 | Technology, mass pardons, constitutional risks | “Buckets of pardons. I have a big problem with that.” – David | | Take Care vs. Vesting | 08:23–14:48 | Does prez have “dispensing power”? | “I have a hard time seeing any court...” – David | | TikTok Ban | 17:17–26:52 | Skirting laws under nat’l security guise | “It’s the most dangerous theory I have ever read...” – Sarah | | Dept of Ed Layoffs | 29:01–38:51 | When does staff reduction become abolition? | “We have factual disputes... Don’t know, I guess.” – Sarah | | SCOTUS Philosophy | 38:51–48:38 | Court as republican protector or not? | “It might be the case that you can see everything in a stay-in-your-lane lens...” – Sarah | | Clergy Confession Law | 52:35–62:29 | WA law singles out religion for worse treatment | “Lawyers still have attorney client privilege, but priests don’t have confession.” – Sarah | | Listener Feedback | 62:47–65:21 | Team e-copies vs. paper brief reading | | | Judicial Brevity | 65:21 | TL;DR judicial concurrences | “147 pages on this case was too much...” – Sarah |

Conclusion

Sarah and David bring accessible rigor and wit to cutting-edge issues in constitutional law and policy. This episode offers a robust debate on the boundaries of presidential power, the complexities of the administrative state, religious liberty litigation, and the evolving role of the Supreme Court. Whether you want the details or just the TL;DR, you’ll come away better grounded in why these legal debates matter.