Slaughter at SCOTUS: Reaganite Ends by Roosevelt Means

Summary

Advisory Opinions Podcast: "Slaughter at SCOTUS: Reaganite Ends by Roosevelt Means"

Hosts: Sarah Isgur & David French
Guest: Adam White (AEI, George Mason Center for the Study of the Administrative State)
Date: December 8, 2025

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Episode Overview

This episode offers a deep-dive analysis of the Supreme Court oral arguments in the highly anticipated "Slaughter" case, focusing on the future of the administrative state, the legacy of Humphrey’s Executor, and the doctrines surrounding executive power and agency independence. The hosts, joined by expert Adam White and live reporting from Amy Howe, also discuss recent Supreme Court developments, including a cert grant on birthright citizenship and a decision in a Texas redistricting case.

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Main Discussion: The "Slaughter" Oral Argument

Setting the Stage

• This is part three in a miniseries on the administrative state.
• Previous episodes covered high-level theories (with Adam White) and precedents (Myers, Humphrey’s Executor, Seila Law).
• Today’s episode is a real-time reaction and breakdown of the SCOTUS arguments in the Slaughter case, with a focus on surprising moments, justice alignments, and constitutional theory.

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Key Takeaways from Oral Argument

Overall Tone and Approach

• Staid and Sleepy Argument:

  • The argument was unexpectedly subdued, especially given the case's high stakes for the future of the administrative state.
  • “This felt, dare I say, a little sleepy.” — Sarah Isgur (03:58)
  • Even Supreme Court superfan David French’s "attention wandered" at times, citing the repetitive focus on slippery slopes rather than fireworks or big philosophical debate. (04:21)

• Format and Conduct:

  • The session ran over two hours, which Amy Howe described as excessive for the content at hand.
  • “It felt like an argument they could have done in about an hour instead of two and a half hours.” — Amy Howe (06:33)

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Major Themes and Justice Perspectives

Slippery Slope Arguments Dominate

• Justices explored the consequences of both expanding and restricting presidential removal power.
• Memorable Moment:
  • “A lot of this was Slippery Slope v Slippery Slope.” — David French (04:21)
  • Justice Gorsuch emphasized "jamming these branches back into their boxes," echoing arguments for a more robust separation of powers. (04:45)

Justice-by-Justice Breakdown on Humphrey’s Executor

• Three Buckets Identified (around 10:00):

  1. Defenders of Humphrey’s Executor: Justices Kagan, Sotomayor, Jackson
  2. YOLO (Overturners): Gorsuch, Thomas, possibly Alito (“Humphrey's Executor is basically irredeemable in the eyes of Gorsuch, Thomas, probably Alito.” — Adam White, 12:03)
  3. The “Narrow Path” Group: Kavanaugh, Barrett, Chief Justice Roberts (possibly Alito) — likely to uphold Trump’s firing without sweeping away all precedent.

• Possible fracture instead of a clear 6–3 split, especially depending on Roberts’ and Barrett’s positions.

Questions on the Current FTC

• Adam White was “surprised by the dog that didn’t bark,” noting little discussion about whether the current FTC fits within the historical scope of Humphrey’s Executor, leaving open the question of whether a narrow decision is possible without overruling precedent (03:01).

Remedy: Reinstatement

• Briefly discussed as a second, less important question (19:36).
• Unclear how the court will handle reinstatement/remedy, potentially an early sign of which way the decision will go.

History and Originalism

• The justices struggled with how to weigh 19th and 20th-century precedent against founding-era understandings.

• Barrett raised "liquidation": once a governmental principle has been “liquidated” (established), can it later be “unliquidated” by future generations? (27:54)

• French emphasized that while the modern administrative state is not strictly 100 years old, post-Nixon developments dramatically increased the power of executive agencies (29:27).

"Bundle of Sticks," Nondelegation, and Major Questions

• Significant debate about whether removing one legislative or executive “stick” (like for-cause removal or legislative veto) leaves behind something Congress never intended.
• Sarah’s NYT argument (endorsed by Gorsuch in argument): Strengthening the unitary executive means there must be stricter checks on what powers agencies can wield (major questions doctrine as a “unitary legislative doctrine”) (35:57, 38:51).
• “If you’re going to do unitary executive, you have to do non-delegation…” — Sarah Isgur (38:23)

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Quotable Moments

• “I was surprised by the dog that didn’t bark, to be honest.” — Adam White (03:01)
• “There were times when my attention wandered. … A lot of this was Slippery Slope v Slippery Slope.” — David French (04:21)
• “Barrett … referred to Humphreys as a precedent that’s been eroded over time.” — Adam White (12:03)
• “The past is too much a foreign country on these things.” — Adam White, on originalist analogies (35:57)
• “What was intended here … was, we’re giving you something, but we’re keeping some of our own oversight.” — David French (40:36)
• “If we grant this power, how extravagant is this going to be versus if we don’t…?” — David French, on the Justices’ hypotheticals (04:32)
• “Reaganite ends by Roosevelt means.” — Adam White (33:26)
  (Sarah Isgur: “That should be the title of this podcast.” 33:26)

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Deep Dive: Administrative State – Constitutional Stakes

The Realignment of Left and Right

• Political Identity and the Administrative State:

  • Adam White and Sarah Isgur probe why modern progressives defend agency independence, despite FDR’s own preference for presidential control.
  • Progressives see agencies as expert, impartial actors (a fantasy, says French); conservatives push for tighter presidential (and public) accountability, but are wary of unchecked administrative power.

• Expertise vs. Political Accountability:

  • "The status quo is not technocratic apolitical expertise. No... What we've got to focus on is constitutional structure." — David French (47:52)

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Live Color from the Court

Amy Howe’s Courthouse Insights (06:11+)

• Oral argument was long and sometimes frantic, with several justices angling to ask questions at the same time.
• Even in high-stakes cases, there’s an emphasis on formality and proximity: “what always strikes me is how close that arguing lawyer is to the justices…” (19:08)

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Notable Segments & Timestamps

• Big Picture on Arguments (03:01–05:56)
• Who’s in What Camp? (10:00–14:24)
• Originalism v. Modern Practice (27:34–35:57)
• Bundle of Sticks / Legislative Veto (35:57–42:32)
• Political and Legal Realignment (43:04–47:52)
• Birthright Citizenship Cert Grant Intro (53:10)
• Texas Redistricting Decision Discussion (60:36)
• Memorable Quotes & Color (Throughout; see above for specifics)

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Sidebar: Other Major SCOTUS Developments

1. Birthright Citizenship Cert Grant (53:10–59:47)

• Enormous political and legal stakes: “I think you’re right that this is the most politically and morally salient case the court has heard since Dobbs.” — Adam White (54:11)
• Discussion on whether the Court could rule narrowly ("naw dog" it) and punt the constitutional issue in favor of a statutory reading.
• David French raises the comparative importance of Wong Kim Ark (1898): “How does that land in text, history and tradition land would be a very interesting question if we're going to be ... fleshing out history and tradition as an element of the Court's jurisprudence.” (57:44)

2. Texas Redistricting (60:36–72:08)

• Court keeps the 2025 maps in place for 2026 midterms (6–3):
  • The decision is more substantive than a simple procedural (Purcell) punt.
  • “Texas is likely to succeed on the merits of its claim that the district court committed at least two serious errors.” — Court order read by Sarah Isgur (62:09)
  • Dissent (per Kagan): “We are a higher court than the district court, but we are not a better one when it comes to making such a fact based decision.” (68:30)
• Broader implications: Ongoing tension between Supreme Court and lower courts on fact vs. law, judicial oversight, and gerrymandering standards.

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Thematic Wrap-up

• The episode illustrates the enduring tension in administrative law: how to balance expertise and accountability, independence and presidential control, and the practical consequences of jettisoning or preserving precedent.
• The justices’ struggles—along with the hosts’ predictions—suggest a possible fractured ruling that threads the needle between formal originalism and modern governmental realities (“zombie precedent”?).

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Next Episode Teasers

• The team will tackle other recently argued cases, including Oliver v. City of Brandon (challenging repeat criminal offenses) and NRSC v. FEC (party contribution limits).

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Summary Table of Important Segments

| Topic | Timestamp(s) | Main Points | |-----------------------------------|--------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------| | Administrative State/Slaughter | 01:18–53:10 | Argument tone, predictions on Humphrey’s Executor, originalism vs. modern precedent, separation of powers and major questions doctrine. | | Amy Howe Courtroom Insights | 05:56–19:36 | Practicalities of SCOTUS hearings, live color, justices' question habits. | | Birthright Citizenship Cert Grant | 53:10–59:47 | Major political/stakes, possibility for a narrow ruling, comparison to Wong Kim Ark. | | Texas Redistricting Decision | 60:36–72:08 | Court’s substantive reasoning, dissent on factual findings, implications for federal redistricting oversight, Supreme Court–district court relationship, concurrence. |

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Final Thoughts

Adam White’s summary of it all (33:26):
“This is all executive power. … Reaganite ends by Roosevelt means.”

David French on idealism v. reality in agency law (47:38):
“These fantasy land idealized versions of what federal agencies are—strip them from your mind, please.”

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For the next episode: Expect more "advisory opinion–weedy" content including criminal constitutional challenges and campaign finance law battles.

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This summary skips ads, promos, and non-content interludes, focusing on the core legal and political analysis provided by the hosts and their expert guest.

Transcript

[Ross Anderson]

Hi there. I'm Ross Anderson, editor of the Morning Dispatch, and I'm back interrupting your favorite podcast again with some more news. We were blown away by the positive feedback from everyone who tried the Morning Dispatch for free last month. So I pulled even more strings to work out a special deal for the rest of December. You can get a month of Dispatch membership for just one dollar. Yes, a dollar. That means you get the full TMD delivered straight to your inbox every morning and unlock access to everything else we have at the Dispatch. That means for just $1 you get unlimited access to our newsletters, podcasts and stories, plus the ability to listen to audio versions of our articles. You can also join our comments section where you'll find me most mornings and ask me questions about TMD. For our behind the scenes section, head over to www.thedispatch.com join and become a dispatch member for just yes, $1. Happy holidays and happy reading from all of us at the Dispatch.

[Amy Howe]

You ready?

[Ross Anderson]

I was born ready.

[Sarah Isgur]

Hello.

For those of you who were joining our SCOTUS blog live chat for the Slaughter argument, welcome to the live episode of Advisory Opinions. I'm Sarah Isger, that's David French, and we've got special guest Adam White. Now this is really part three of a three part series heading up to Slaughter. We did sort of that 30,000 foot level conversation with Adam about the theories behind the administrative state. And then David and I did our deep dive into the precedent heading into Slaughter. Myers Humphrey's executor, Selah Law. See, look, I'm going to pronounce it correctly one time on this podcast, but today we have just listened to the argument in Slaughter and we'll break that down for you as well as I mean, we have some other big news from the Supreme Court. So if we have time, we'll talk about the Birthright Citizenship cert grant and how that's all going to come about. And we finally got word on the Texas redistricting case, so let's dive right in. Adam, you are muted. Make sure to undo that before we get going. Adam, aside from the guy who interviewed me when I was a 1L, what other titles do you have?

[Adam White]

I'm a senior fellow at AEI and I run the center for the Study of the Administrative State at George Mason. It's even more glamorous than it sounds.

[Sarah Isgur]

All right, so the administrative state, that's really what this is all about. Let's just take your big picture. How did the argument go? Was there anything unexpected for you? What were the surprises.

[Adam White]

I was surprised by the dog that didn't bark, to be honest. I came to this case thinking that by and large the court was likely to uphold President Trump's firing of this FTC commissioner. They could do it either by saying that the old Humphreys executor precedent from 1935 no longer holds at all and that you can't have independent agencies or maybe a little bit more limited. The court could just say well Humphrey's executor is still good law, but it doesn't cover the current ftc. And for that second point I expected the justices to ask a few questions about the current FTC and how it really fits Humphries or not. There was really not any of that though I was really surprised that they did not delve into the current status of the Federal Trade Commission. It's still possible that they could uphold President Trump's firings, which I do think they'll do, but uphold it without overturning Humper's executor. But they created much less of a roadmap for that in this oral argument than I expected.

[Sarah Isgur]

David I felt that the oral argument was pretty staid all things considered. And what we might have expected, you know, compare that to the birthright citizenship oral argument from last year term in May where it was about, you know, these universal injunctions compared even to the terrorist oral argument in November. This felt, dare I say, a little sleepy.

[David French]

It really did feel sleepy to me. I mean look, I am, I take a backseat to nobody in my Supreme Court nerdery and I felt a little. There were times when my attention wandered. I mean a couple of elements of the oral argument really stood out to me. One is how much time was spent on the competing slippery slopes. So much time was spent on sort of competing slippery slopes like how if we grant this power, how extravagant is this going to be versus if we don't grant the power to fire? Could you make a DOJ a multi member commission? You know, what could you not do with the multi member commission? And so a lot of this was Slippery Slope v Slippery Slope. The other thing that was interesting to me was Justice Gorsuch during, during General Sauer's argument made a point that really harkened back the tariff argument where he was like wait, we got to jam these branches back into their boxes and that's the only way this is going to work. Which was reminiscent of your times op ed recently Sarah, like hey, there's a vision here, there's a plan here and it's really jamming the branches back into their boxes. That means all of the branches. So those were the two parts that stood out to me were the competing slippery slopes. And then sort of this really interesting and pretty decisive Gorsuch aside about sort of his overall constitutional philosophy, which I thought to me was the most interesting part of the argument.

[Sarah Isgur]

All right, we're going to get to intelligible principle tests in a moment for those who aren't all up on their non delegation doctrine theory. But first, we have Amy Howe from the courthouse steps. A very cold Amy Howe.

[Amy Howe]

Yeah, it was not cold for the tariff case. It's cold today.

[Sarah Isgur]

Okay, Amy, give us everything you were thinking inside the room. We were just saying this. This did not feel like the exciting case where we're talking about redoing the administrative state and overturning Humphrey's executor. It felt a little sleepy for those of us listening at home.

[Amy Howe]

It felt a little bit. No, not. It felt not a little bit like a lot like an argument that they could have done in about an hour instead of two and a half hours. Yeah, it just felt like. Felt like we were. And I am not someone who normally criticizes the Justices for going on, but, you know, it just felt like we were saying the same things over and over again, you know, so. But it was. This is the, this is. Speaking of slippery slopes. This is the slippery slope. None of the justices, I think, like the idea of the long arguments, but nobody wants to give up their time asking questions on a day like today. And maybe at home you didn't come through, but there were definitely times when you. It felt like you had four or five Justices trying to ask questions at once, even with the extended length of the oral argument. You know, sometimes there were these long sort of colloquies, but, you know, sometimes you had lots of people jumping in and trying to ask questions. And then it's sort of a seniority, you go first, you go first kind of a scenario.

[Sarah Isgur]

Amy, I don't want you to have to stay out there the whole time we're doing this podcast. So I'm going to throw some extra questions to you here. Did any of the justices surprise you? I mean, surely the justice to surprise anyone the least has to be Justice Gorsuch. He basically wrote a book on this. Literally.

[Amy Howe]

Yeah, there were not a lot of surprises today. You know, I think my only surprise perhaps was, and, you know, it's hard to know how much it was a genuine concern, how much of it was a hypothetical concern. And I don't think we're actually going to get there. When Justice Kavanaugh was talking during John Sauer's time about what he saw as concerns with the remedy question, whether if the court were to uphold the FTC removal law, which doesn't seem likely, then what happens? Can you be reinstated, or can you only get back pay? And Justice Kavanaugh seemed to have some concerns about the government's rule, but, you know, I don't think that's ultimately necessarily going to matter.

[Sarah Isgur]

Did any of the justices seem like they're suffering from the forever cold that the rest of us out here in the world have? Like, why is it weird?

[David French]

Are you still suffering, Sarah?

[Sarah Isgur]

Yeah, I am still suffering. Why does it feel like we're never seeing a justice miss oral argument? Like, don't they get sick like the rest of us?

[Amy Howe]

It's a good question. I mean, they at least have people bringing them hot coffee or tea on the bench, unlike the rest of us. So that, that certainly helps. But, yeah, I have finally gotten over the forever cold, but I did have it for well over a month. So I'm feeling your pain.

[Sarah Isgur]

All right, stay with us just a little bit longer because I do want to talk about question one versus question two. Question one, right, is you overturn Humphrey's executor, or there's like three paths on question one. Overturn Humphrey's executor. Don't overturn Humphrey's executor, but let President Trump fire, for instance, this FTC commissioner, because the FTC of Humphrey's executor, you know, back in the 1930s is not the FTC of today, or path number three. This is fine. Congress has to be able to have some removal power, et cetera. And. And that's just what it is. Can I go around the horn just on that question one of how many votes you counted in the different buckets, starting with you, David?

[David French]

Yeah, that's a really good question. So I would say bucket one, loving them some Humphreys. We know the three. That's Kagan, Sotomayor, and Jackson going to circle the wagons around Humphreys. Bucket two, yolo. I mean, we know who's in there. Gorsuch. I think, you know, very clear that he's got an idea, he's got a big idea about.

Where the executive and the boundaries between the executive and the legislative. I would have put Alito squarely in that bucket, but I saw Alito asking some questions that seem to be along the lines of how far do we have to go here? How far do we need to go? So I'm going to put Gorsuch and Thomas in this sort of bucket two and then bucket three is.

Trump's going to win, but how broad is it going to be? And that's where I'm going to put Kavanaugh, Barrett, Roberts and maybe Alito in the okay, he can fire this particular commissioner. However.

To go to Adam's point.

I think the best possible outcome for sort of the Kagan, the Kagan wing would be to sort of have these others say we don't have to go all the way here and sort of grant this sort of sweeping termination power. What we can say is this is just a very different FTC from the Humphreys executor ftc and if you're going to give an independent commission this much power, you're going to have to give the President hiring and firing authority over the commissioners. So I would put that as sort of a third alternative here. And that's where I, as I'm counting, that's where I kind of put a plurality of the court.

[Sarah Isgur]

So Adam, you were surprised that there wasn't more conversation about what exactly this FTC is versus the last FTC, but do you agree that this shakes out 6, 3 one way or the other?

[Adam White]

No, I don't agree. I think that this could wind up being a badly fractured court. I obviously Kagan, Sotomayor and Jackson don't have any real patience for for this firing. They think that the statute, the statute is fine and Humphreys executor is fine. I think that Humphrey's executor is basically irredeemable in the eyes of Gorsuch, Thomas, probably Alito like, like David said, I was kind of wondering where he'd be on this. I, I don't think Alito has a whole lot of confidence in the sorts of line drawing that Humper's executor requires. Okay, so that's three on one side, three on the other. Kavanaugh for a very long time has been a skeptic of Humphrey's executor. Go back and read. He had a great opinion in a case involving the Nuclear Regulatory Commission where I think he had the pun, you know, Congress inappropriately spit the split the atom of executive power or something like that. I think, I think Kavanaugh is most likely lined up to see Humphreys executive go. He once said that at an AEI event before my time, the, the worst the Supreme Court decision he most wanted to see overturned. This is when he's on the D.C. circuit was Morrison, the Olson. Anyway, what that leaves us with is Roberts and Barrett. I still think Roberts is likely to come out of this case applying Humphrey's executor to uphold the firing, saying under Humphreys executor the current FTC has too much executive power to be independent. And that leaves Barrett. And I want to ask Amy at some point about Barrett. As the further argument went, the more curious I was about how Barrett seemed to see Humphrey's executor. And at one point in the latter half of oral argument she said that she referred to Humphreys as a precedent that's been eroded over time. I'm curious how Amy read Justice Barrett's sort of body language and tone and questions because I could see this being this going down as do my math on this. Three, four, two Right. Four Justices wanting to overturn Humphreys executor but two of them saying no, let's just keep it and go ahead especially with the Fed looming in the background. Or I could see Barrett splitting off and joining the four for a five justice majority. I think in the end Barrett and Roberts are going to stick together in the middle. But I'm curious for Amy's read.

[Amy Howe]

Yeah, Barrett, like the Chief is one of these Justices who does tend to have pretty hard questions on each for each side. I mean one of the things that struck me during John Sauer's time at the lectern was that she was actually trying to throw him some softballs and he was not taking them. You know, she, if you remember, she said we don't really need to decide where this power comes from. And he kept insisting that the Court did and that it was the vesting tower and they were just sort of talking past each other. The other thing that I will note, you know, I am definitely think that the Court is going to rule for the Trump administration, but I'm not really sure exactly how that vote count is going to break down. You know, the Chief Justice a couple of times did refer to Humphreys executor as a dried husk. So it was kind of hard based on that, you know. And again flag ferret, he tends to have the questions on both sides, but if he believes that's true, true, it's hard for me to see him applying that, you know, to strike down the removal statute even if he doesn't strike down Humphrey's executor itself.

[Adam White]

You know Amy, I, and just, I'll, I'll stop getting in the way of Sarah on this but not to make Everything like Dobs. Right. There's more, there were more Supreme Court decisions in the last hundred years than Dobbs. But with Roberts, I keep thinking in terms of that. His famous line, right, you know, if, if an issue is not necessary to decide the case and it's necessary we not decide the case. I kept thinking could Roberts uphold the firing without getting rid of Humphreys executor? And that's why I still, even though he had the line about the husk, I still think he would be the last to join the majority to overturn Humphreys. But maybe not.

[Amy Howe]

Yeah, I mean I think he would want to do something, you know, for Chick he was definitely concerned about, you know the Fed is, is, is I think off the table but about the Tax Court and the Court of Claims and the, was it the court of the Armed Forces? And then there's the D.C. courts, the Article 1 courts and you know, is there a way to write this opinion in a way that strikes down the federal, the FTC removal provision but leaves those for, you know, a later time? I think he would be inclined to do that. I think, I think you're right that he may try to write to decide this as narrowly as possible but you know, may not have the votes to go along with him.

[Sarah Isgur]

Amy, I want to move to the question, the second question presented before I do are those credentials you're wearing?

[Amy Howe]

They are. I have both a Supreme Court press pass and a congressional press pass. So exciting.

[Sarah Isgur]

Good to know that there's a separate Supreme Court press pass, very official, you know, as, as people enter the courtroom now, I feel like there's a few different ways that someone can go see an argument themselves. One, you can of course be a member of the Supreme Court press like Amy. That's going to be your hardest pass to get, really. Two, you can be a member of the Supreme Court bar, although you have to then wait in line outside. You get to wait in a different line, but it's nevertheless waiting in line. Three, you can join the lottery to get to see an argument that if you win the lottery guarantees you a position so you don't have to camp outside. Though they are still allowing some waiting outside, right. Amy, you can still line up to potentially get in to see some of the argument.

[Amy Howe]

That's right. I don't know exactly how it breaks down my, I, I've been told, and it would make sense that it's a 50, 50, 50 split of the 50 seats that they set aside for members of the public that for each argument they allow 25 people to get seats via the lottery, and then another 25 from waiting in line, and maybe a few more after that. But that is not something that I have independently confirmed.

[Sarah Isgur]

And then, of course, there are some seats. The clerks can come in and watch the argument. The justices themselves, their spouses have reserved seats, but they can give away those seats to someone else, a VIP in their world, an aunt and uncle, et cetera, type person.

And, Amy, I was wondering if you could give us just a little color from inside the room before we get your take on. On QP2. Question presented. Number two.

The lectern. This came up in the Bloomberg documentary about Ramon Martinez. That lectern is much lower where the oral advocate stands than the justices are. Does it feel like a big height difference? Yeah, know, like that they're sort of talking down to the Solicitor General. Or does it, does it feel like they're in close communication? What is, what does that feel like?

[Amy Howe]

It feels like you're in close communication because I personally have actually never noticed the height difference. You know, what always strikes me is how close that arguing lawyer is to the justices, because in terms of the number of feet, it's not very far. And then if you haven't been to the Supreme Court before, the bench is sort of not quite semicircular, but it's curved. And so, you know, you're kind of surrounded by the justices, for better or for worse.

[Sarah Isgur]

All right, question presented. Number two. This is on whether the district court was proper when it reinstated Rebecca Slaughter as an FTC commissioner after President Trump had fired her because Humphrey's executor, for instance, Mr. Humphrey was dead. Remember, he was only suing for back pay. So do the courts have power to reinstate someone who's been fired? Amy, I felt like I heard basically nothing. Yes, it came up once or twice, but in terms of being able to count to five or even two, I have no idea where we are on that, which makes me wonder, are we not getting to question number two, and if not, why?

[Amy Howe]

Whenever there's a remedy question and the remedy question doesn't come up, that's usually a bad sign for. For one side. And in this case, you know, as I mentioned earlier, Justice Kavanaugh did bring it up because, you know, what he said was that if the remedy is only that you can get back paid, that you can't get your job back, there's not a lot of incentive. Even if you have these for cause removals, you can just fire somebody whether or not you have cause to do that and get them back paid, but you still get rid of them. But nobody else really raised anything about that. Interestingly, the liberal justices didn't really spend any time on it. I think they saw.

Where the chips were lying. They did spend a little bit of time as this came up every once in a while. What happens if the court were to decide that the FTC has too much executive power so that this isn't like Humphrey's executor and is the remedy for that to invalidate the removal provision or as Justice Sotomayor suggested at least once, you know, get rid of whatever executive power sort of puts you over the top so that you've got too much executive power. But that too didn't really seem to get much traction.

[Sarah Isgur]

All right, Amy Howe, David, Adam, any more questions for Amy before we let her go warm up? She actually, you've put on a really brave face. I know how cold it is out there because during the argument I tried to cover some patio furniture and I gave up and came back inside.

[Amy Howe]

Well, thank you. All right, talk to you soon.

[Sarah Isgur]

Bye, Amy.

[Amy Howe]

Thank you. Bye.

[Sarah Isgur]

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[Ross Anderson]

Hi there, I'm Ross Anderson, editor of the Morning Dispatch, and I'm back interrupting your favorite podcast again with with some more news. We were blown away by the positive feedback from everyone who tried the Morning Dispatch for free last month, so I pulled even more strings to work out a special deal for the rest of December. You can get a month of Dispatch membership for just one dollar. Yes, a dollar. That means you get the full TMD delivered straight to your inbox every morning and unlock access to everything else we have at the Dispatch. That means for just $1, you get unlimited access to our newsletters, podcasts and stories, plus the ability to listen to audio versions of our articles. You can also join our comment section where you'll find me most mornings and ask me questions about TMD. For our behind the scenes section, head over to www.thedispatch.com join and become a dispatch member for just yes, $1. Happy holidays and happy reading from all of us at the Dispatch.

[Sarah Isgur]

Okay, so Adam and David, I want to dive in a little deeper into then question one, unless you guys have any remedies. Thoughts, But I think Amy's right. The fact that we didn't get to it tells you that everyone thought that the fight here was really on, number one. And really between those first two options of Is Humphrey's executor just gone and there's complete, complete removal authority? Or does it live on as kind of a zombie precedent in the sense that no, we're not overturning Humphreys, but also no agency today looks anything like the agency in Humphrey. So Humphreys is hypothetical. It could apply to some future agency, but it doesn't apply to any of these agencies. Adam.

Huh.

[Adam White]

Well, you know, again, with the Fed looming in the background, with Article 1 courts and other entities out there in the background.

[Sarah Isgur]

And just to be clear, Article 1 courts here, we're talking about magistrate judges and my specialty, bankruptcy judges. What is an Article one court, you ask? Meaning a congressional court? Who knows?

[Ross Anderson]

That's.

[Adam White]

And I think the Tax Court is Article one also right. So I think I had a little quip in the live chat right before we started that, you know, it seemed to me less plausible that the court would overturn Humphrey's executor and then just drop a footnote saying, you know, this, we're not trying to cast doubt on the Fed or these other things. That's for future cases. I thought that would be a little bit sort of glib, might raise more questions than on answers. I don't know, after oral arguments, that seems a lot more plausible, right. That they could overturn Humphrey's executor and then say in a footnote, you know, as we said in our order in Wilcox, the Federal Reserve seems to have a different historical pedigree. And they add a couple more sentences about Article 1 courts. I, I, I, he's saying that out loud. I still think it's more it, it seems to me simpler to just say, look, we don't need to overturn Humphrey's executor. It's like the Lemon test. We don't want to talk about it that much. We're going to decide other cases with a little bit more realism and, and newer standards. We're not saying we overturned Lemon and, but then just over time it kind of passes from the scene as the court creates an entire kind of intellectual architecture around it. Maybe that's what they do here. Maybe Humphreys executor becomes kind of a zombie precedent after oral argument. That seems a lot more likely to me at the very least and maybe it just goes away altogether.

[Sarah Isgur]

David, Originalism, history played a big role in the argument today. Everyone kind of battling over that founding era history or you know, there, there were agencies of the founding era, but were they actually independent? Were they anything like these agencies at the same time? These agencies have been around for 100 years, a long time.

[Adam White]

Yeah.

[Sarah Isgur]

And so if you are suddenly getting rid of them as they are currently constituted, are you fundamentally changing the way that US government has worked for 100 years? And I thought Justice Barrett's questions at the end about liquidation were sort of fascinating to me because, you know, she's making this pretty nerd argument about basically what something has been liquidated. Can it be unliquidated? As in take her history for a second. Once the founding generation says there's none of these quasi legislative, quasi judicial agencies, you can't reliquidate it in the turn of the century by the progressives. But my pushback to that is yeah, but they did. Like even if you take her history and even if she's going to argue that it can't be done like it did get done. And so now the question seems to me to be again, if you, if you buy into the anti Humphreys history, we had a hundred years or so of one type of separation of powers. We've had a hundred years of another type of separation of powers. And, and what's the court's duty here when it comes to stare decisis and reliance interests? I mean David, you and I kind of have said that the government doesn't really have a reliance interest the same way that private individuals do. But at some point we all have a reliance interest because this is the way our government has worked for our entire lives and our grandparents entire lives. I mean my grandfather was born in 1898 so not actually my grandfather's entire life but very close.

[David French]

Well, I, I'm. Okay. A couple of things. One, on the reliance, yeah, we've, we've kind of poo pooed the government's reliance interests but we have not poo pooed the fact that huge amounts of the private sector rely on a certain kind of governmental structure for predictability. Long term contracts, for example, all kinds of relationships that you enter into in the world of economics are dependent on a particular kind of legal environment. And so if you do disrupt the legal environment, you are disrupting the commercial environment as well. Just to take one example. However, however, I do think we're really exaggerating the length and strength of the Humphreys executor precedent. So you know there's been a lot of talk of a hundred years. Well but the modern administrative agency with the modern administrative power is not a 100 year old thing because all you have to do is look at Humphrey's executor and read the agency, the power of the agency that they were ratifying there, compare it to the power of agencies now. And so I don't know that it's 100, 100. It feels more like maybe 150 and 50 where you have a sort of a lower degree of administrative power for years and decades after Humphrey's executor and then maybe around the Nixon era when you start to have a lot of the big government, Nixon Alphabet agencies, et cetera. That's when you begin to see this modern era of the administrative state. And we are actually, maybe one of the arguments is that we're actually, rather than making all these slippery slope arguments, we've already slipped down the slope and that this is, we are in the slippery slope right now. And this is why there's the necessity for the correction, corrective action. Because in our lifetimes, including your lifetime, including Adam's lifetime, y' all are a very short lifetime. Yeah, y' all are, you know, so young.

You can't predict the weather yet by your bones aching. So that's how young you are. But in your lifetimes, my lifetimes, we have seen the dramatic expansion of the legislative power of the executive and the dramatic diminishment of the legislative action of the legislature. So in some ways, I would say maybe one of the better arguments against Humphreys executor is we're not in Humphrey's executor land anymore. We've slipped down the slope. And that's why we need the sort of Gorsuch imagined, Gorsuch articulated rejiggering, reordering of the constitutional order to reflect back to an actual separation of powers.

[Sarah Isgur]

All right, Adam, you have some grand poobah title about the administrative state.

[Ross Anderson]

Yes.

[Sarah Isgur]

What do you think is the fairest history? And how would you steel, man?

You know, either side that you think is weaker in this case?

[Adam White]

Well, the history is really hard to apply here because when you go back to when they started creating agencies like this, the late 1800s of the interstate Commerce Commission, and I can't remember if we talked about this last time on the podcast or not, but the whole point of creating that agency was to create something basically like a court. After the Supreme Court had knocked the state courts out of railroad regulation, Right. They said, okay, we want this federal body that isn't just federal courts acting like a court to settle disputes about railroad services, what's fair, what's just unreasonable, what's fair, and so on. Right. And so they're created to look and act like a court, and then it changes over time. That's why by the time you get to Humper's executor, FDR is saying, come on, this is just like any other agency. I'm supposed to have constitutional power over this. And then, ironically, 50 years later, FDR's argument becomes the heart of the conservative critique of the administrative state. Right. It was sort of Reaganite ends by Roosevelt's means. This is a. This is. This is all executive power.

[Sarah Isgur]

That should be the title of this podcast. Reaganite ends by Roosevelt means. Because in some ways, that, to me, that summarizes so much about what the court has to deal with these days. Like, people think it's right, left, and somehow that translates into Republican versus Democrat. It's like, no, everything that this means has changed and shifted by which party it is helping, which president, it's helping, etc.

[Adam White]

But also go back even further. You go back to the very founding where there was a lot of mention at oral arguments today about a thing called the sinking fund, right? This body that was outside of the Washington administration that was responsible for making sure the payments were received to pay off reliably and steadily the debt that was incurred when the federal government assumed the state debts from. From the Revolutionary War, if I remember that history correctly, right? That was, you know, some people would say that was the first independent agency, except to David's point, it really didn't wield anything that we would consider regulatory power in this, in the current sense. And in my line of work at Scalia Law School and at aei, I have, I read, I get to read. I want to say I have to read. I get to read a lot of papers about what happened in the first Congress and what it tells us about the structure of government today or about the amount of power that could be delegated to the executive branch today. And on the one hand, the ideas are very eloquent. On the other hand, you look at it and say, this is crazy. This is crazy to look at a government that had. That was not regulatory in the way we think of modern government. The early government was about defense, taxes and customs and a few other things, all very important, but it was not really a policy state in the way we think of modern government today. And so it's very. Anytime anybody starts to draw sort of a direct line analogy to something from 1887 or 1793, I immediately start, like, keeping a hold on my wallet. We're accustomed to the line about being. Being wary of law office history. I think we also have to be wary of law school office history. There's a lot of good scholarship out there. I'm a fan of the originalist critique of modern independent agencies, although I think Professor Nelson's new paper, sort of pouring some cold water on unitary executive is very interesting and worthwhile. I just, I don't think you can take any of these historical analogies too tightly. The past is too much a foreign country on these things.

[Sarah Isgur]

David, I want to talk about the bundle of sticks a little bit here, because while they didn't use that analogy, I was very disappointed it did come up. And so there was a. There were a few ideas here, one you heard from Justice Kagan, for instance, that how can you take away the removal power and not destroy the whole agency? As in, why not get rid of the power the agency has? And Say that's the separation of powers problem rather than the removal power, for example. That's a bundle of sticks argument. Right. Is this really severable from Congress's intention? You also heard Justice Kavanaugh potentially talk about the bundle of sticks with. And sorry, Justice Kavanaugh brought this up a little. Justice Bear brought. Brought it up specifically in the CHADA context in that legislative veto that, you know, yeah, basically this whole thing was such a spider web where you had Congress giving these executive branch agencies. Sorry, over Congress giving these agencies over to the executive branch while keeping all of these webs intertwined, like for cause removal power, like the legislative veto, where they could have said, like, we don't like that regulation if a majority of House members don't like it, like it's gone. And that as you just keep severing away these little pieces of it, you're now left with something quite bizarre, which is Congress giving away huge amounts of power to the executive branch and that it never, at least in the beginning, thought it was giving. And I, I felt like you had Justice Kavanaugh, Kagan, Barrett, and then of course, Gorsuch bringing this up. But then I felt like the plane never really landed. You had Justice Gorsuch, for instance, raise the non delegation doctrine. And sort of the point, I would say of my New York Times piece, which is like, these have to go together. If you're going to do unitary executive, you have to do non delegation of major questions doctrine because you basically will have a president more powerful and you want a presidency less powerful. And that perhaps, I mean, I suggested we stop calling it the major questions doctrine and start calling it the unitary legislative doctrine and the unitary executive doctrine. And he said, you know, under non delegation, we had this idea that Congress had to give an intelligible principle for that agency to be executing. And that we basically just said like, nah, any, anything will do. We're not going to look too closely at that intelligible principle. And he was like, if we're going to do this, if we're going to follow the logic of unitary executive, don't we have to then beef up intelligible principle, beef up major questions doctrine? And I was sort of shocked that the Solicitor General was like, no, don't worry about it, just give us all the power.

[David French]

Oh, I know. Yeah, I know. Well, first let me just say this is why you listen to advisory opinions, because we talked about the bundle of sticks beforehand, we talked about legislative veto beforehand, we talked about all of these things. And I feel like it really helps set the stage for the holistic view of this situation. That what was intended here, as you said very well, Sarah, was we're going to give you some things, but when we give it to you, we're giving it to you with kind of retaining some of our own oversight. And then the Supreme Court has said, nope, nope, you don't get that oversight. And then all you have left is the gift. And Sauer's like, we'll take all of that gift, all of it. But how constitutionally valid and viable is that to strip out any kind of legislative oversight, leave all executive authority, which by the way, part of what Congress gave the executive was legislative responsibility. And so now we're in a world where just to, you know, sort of put the historical context back into this, where as we've talked about before with changing administrations, you can have certain acts become crimes or not crimes without Congress changing the law. You know, think about the bump stocks, for example. Think, you know, you, you have a world. We've created a world where you can now create crimes without a legislative enactment. It's, it's wild. Or to take talk about one of the most contentious political disputes and legal disputes of the whole 20 teens was the Obamacare contraception mandate, which was only a regulatory mandate. It wasn't actually in the Obamacare statute itself. And so that's what I'm talking about when I'm talking about sort of the way the administrative state, state has grown slipped, slipped its bounds. And there is one other thing though. I thought that was very interesting about the history. And, and I would actually love to, you know, one I would love to get and I've talked about this before, an originalist who is believes the unitary executive theory isn't originalist would be very interesting because I think what we're beginning to see is that the, when originalism becomes the dominant philosophy of the Court, you're now seeing a lot of liberals doing originalism. And when you see liberals doing originalism, it's going to be result in maybe some different arguments and potentially some different outcomes, as you know, Akhil Lamar, the original liberal originalist, can demonstrate. But it's very interesting because the reason why it's fascinating to see liberals do originalism is because it really does illustrate how no one faction of American life has a truly holistic view of American history. We don't have it all in and conservatives by nature and sort of we'll be drawn to a lot of the elements of history that really kind of affirm our view. And conversely, that means we often don't know what we don't know because we're drawn towards the answers that confirm our view. And here come liberals who've not been doing originalism and they come in and they're drawn to particular elements of history that we may not be as aware of. And that's why you need the whole body politic participating in these debates and disputes because it expands the sphere of knowledge. And so I, I did find that interesting. I didn't find the originalist arguments for Humphreys executor that convincing. I did find it interesting to hear originalist arguments for Humphrey's executor.

[Adam White]

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[Sarah Isgur]

Short and the tall, peacemakers, risk takers.

[Adam White]

For the optimists, pessimists for long distance.

[David French]

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[Adam White]

And the doers for old friends and new Coca Cola for everyone. Pick up some Coca Cola at a store near you.

[Sarah Isgur]

Adam, can we actually just back up for a second to David's point? Because it's something that I've thought a lot about. You know, we talked about it. When you look at the statistics, for instance, for the interim docket decisions, they can look very partisan that, you know, these justices were always voting in favor of President Biden, these justices are always voting in favor of President Trump. Except of course, the cases aren't created equal. President Biden was trying to do different things than President Trump has been trying to do. And so we've argued that really if you break that down, it falls very much along the legal ideological spectrum. But my question to you is why is that? Why are legal liberals more likely to favor this current administrative state when as you say, FDR didn't want this administrative state, he wanted more power over it. And the idea that conservatives don't like this administrative state, why is that true even when they're in power over this administrative state?

[Adam White]

Well, that's a great question. That's a great question. I don't know that I can give you an easy answer as to why. Well, what we should read into modern Progressives departure from FDR's constitutional theories, I mean, it's been about a century, so they're allowed to change their minds. So I don't exactly know. But to your broader question about this, I do think that really does exemplify the ways in which the two political parties have polarized around how we think about the Constitution. It's not just in terms of who they want to see appointed to the Court and sort of Superficial sensibilities about.

About originalism versus non originalism. You know, you listen to a lot of the questions today coming from, say, Justice Jackson, where she's characterizing the Federal Trade Commission and other agencies as basically just bipartisan, expert, trade driven.

Independent agencies. And with all due respect to Jackson and I listen, I'm obviously this is like a hobby horse of mine. I'm not a big fan of, of a lot of modern independent agencies. To look at the Federal Trade Commission of the last 10 years and say this is just like nonpartisan expert is crazy, is totally crazy. And not just because I wasn't a fan of Chairwoman Khan's approach, approach to it. Like the, the, the Khan FTC was deeply knitted into President Biden's overall agenda on antitrust. And by the way, as I was listening to Justice Jackson's questions, I kept thinking, I wonder what, I wonder what she would say if this were the Federal Communications Commission under Brendan Carr that we were talking about. Is this just like a non partisan expert commission? I think my one with this is, I think instinctually a lot of thinkers in the modern progressive or Democratic coalition still feel in their bones that the default setting for administration is that it is expert and at its best it is nonpartisan, non political, happens to line up well with the overall policy agenda of say, the Biden White House. But that just reflects a sensibility of how these agencies ought to go about their work and what the White House wants. I think we, I think a lot of the questions here did reveal a lot of latent assumptions about other parts of government. I just, while I'm, while I'm ripping here, I would just add, think about the ways we talked about Congress today. Right? There were some, some questions that suggested that Congress will never pass another law again to change these agencies. Right. And then there were other questions suggesting that Congress is on a slow march through the executive branch to just kind of constantly little by little claim more territory. When I, when the transcript comes out, I'm going to go back. That's one of the first things I'm going to look back to is how the justices kind of revealed a lot of their latent assumptions about Congress and its relationship to the presidency at a given moment in time.

[David French]

You know, there's, there's two, real fast, there's two things here where I think you've got sort of conservative fantasy land and liberal fantasy land. And liberal fantasy land is, is the technocratic, we've got the nonpartisan technocratic experts who are going to do all of this in the public good. And it's going to be apolitical. And you know, every time I hear that now, I just, it's almost like I think, oh, you sweet summer child. We've, we've been through all of this. This is not the way. Technocrats are not like that. They're.

Politics is an inescapable part of government. And then I hear on the convert converse, well, we're going to have political accountability for the acts of the FLTC or the FCC or the SEC. And I'm like, oh, really?

[Ross Anderson]

Yeah.

[David French]

I mean, I can't remember the last exit poll that didn't have regulatory actions of the FTC as issues 1 through 3 on the top of the mind of American voters. I mean, come on, that is not what's happening here. So I want to shed these fantasies, you know, this is not moving the FTC to the world of political accountability. No. And the status quo is not technocratic apolitical expertise. No, those are not. That's not what. Neither one of those things is realistic on this earth. What we've got to focus on is constitutional structure. That's the core. That's the core. These fantasy land idealized versions of what federal agencies are can be. I just strip them from your mind, please.

[Sarah Isgur]

What about the Federal Election Commission, for example? This is an agency that Congress created with all sorts of strictures, both on removal but also appointment. It needed, you know, certain numbers of people who identified with each party. Which by the way, I always felt was pretty weird that it had to be Republicans and Democrats. If you're not one of those, you're not welcome on the Federal Election Commission. Okay. And you wonder why the debate parameters and everything are set the way they are. That's not the fec. But rather like that's how these things are set up through the whole country is for a two party system. It will be hard to unwind for those who are third party. Curious. But okay, brass tacks. Right after this decision, the President now has complete control to appoint the FEC he wants. The current FEC has not made any major decisions because it has been unable to establish a quorum under those rules. So now the President has an FEC that'll just, you know, say his team good, that team bad, I guess. Adam.

I fear that Justice Gorsuch, like there's only one vote for my world where it's a bundle of sticks. Yeah. You're going to do unitary executive. You have to strip out huge wild chunks of power from the executive branch. Otherwise like solicitor General Sauer suggested. No, no, they just want the FEC like they. They're very happy with a Federal Election Commission that says my team good, your team bad.

[Adam White]

It is funny how just 40 years ago, kind of the default assumption of the early originalists was that, you know, in this era of broad delegations of power to the executive branch, the President should have total control over, over firing the heads of agencies and the courts should defer to the President's policy judgments. Right. That's the Chevron deference, basically. The Chevron deference doctrine. Right. They thought they saw both of those things rowing in the same direction and then you'd have political accountability up through the President to the voters and now. And I wanted to make this point in my SCOTUS blog column in the run up to this case where I kind of fleshed out some of the points I made in our last episode about thinking about the who questions versus the what questions. In our modern era, the conservative justices have sort of the diametrically opposed assumption they still believe in unitary executive when it comes to the removal power. That's sort of the core of unitary executive theory. But now they've led the charge in the other direction on the substantive questions, saying, no, we need to be much less deferential to legal interpretations from the agencies. We do need to rethink a non delegation doctrine. And so that's one place where you've seen conservatives shift enormously, I think, in response to reality of the last 15 years, about since the, basically the second half of President Obama's second term, where you got this outpouring of huge new projects like the Clean Power plan and net neutrality and the integration pen and.

[Sarah Isgur]

Phone era where he says, if Congress won't do what I want, I have a pen and a phone and I'll rally the American people to my cause. And he is the year of executive action, he calls it. I agree that like a lot of this there's, it's a slow uphill anyway. But there are moments that is one of the moments where you're going to see it exponentially take off.

[David French]

It's not a 100 year slow progression. There have been.

[Sarah Isgur]

Yeah, yeah.

Okay. I want to make sure we leave enough time to talk about the two other things that happened this week. There was actually a lot. We'll talk about some of the other oral arguments in the next episode. But we had the biggest cert grant certainly of this term, I would say. I'm curious if you guys disagree. I think this is the biggest grant since Dobbs was granted in terms of, you know, its potential to change people's perceptions of the Supreme Court, maybe not of the law itself. Okay, what am I talking about? Of course, the actual birthright citizenship case was granted. This is whether the president, through executive order, can change the definition of who is a citizen at the time of their birth, either based on the 14th Amendment's language or the subsequent statutory language that Congress passed to put the 14th Amendment's language into effect.

They've granted it now in December. Which means like 80, 20. Right. 80% chance this would get argued in March, about a 20% chance that this could end up getting argued in April. We won't know that until at least into 2026. At this point, we're not going to get those calendars, most likely.

But, Adam, I'm curious to start with you. Just is this cert Grant as sort of important as I'm saying it is, or because we have this sense that the Supreme Court is going to. Naw, dog the president here. It's important until they rule against him, in which case nobody will remember this happen and I'll be the one screaming from the rooftops, See, see, look.

[Adam White]

That'S. I love that version of Sarah, by the way. That's.

[David French]

That's the one on the rooftop.

[Adam White]

Yeah.

[Sarah Isgur]

You guys said this was a big case when it was granted, and then as soon as they ruled against Trump, it wasn't a big case anymore. So stop telling me that the big cases all go six. Agree.

[Adam White]

Yeah, I. The way you framed it really struck me, and I hadn't thought about it in those terms, but I think you're right that this is the most politically and morally salient case the court has heard since Dobbs. No matter which side of these issue of the issue you're on. Right. I think that's key, that whether you believe in the version of birthright citizenship that we've had for over a century and a quarter, which, for what it's worth, I agree with, or whether you believe that that was a mistake and that birthright citizenship is much more limited along the lines of the Trump administration has sketched out. No matter where you're on that debate, you agree that this is the legal, political, moral issue of our time when that case gets argued. And as I start to wrap my head around what that will look like, what the political activists on both sides will do, what President Trump will do to ratchet up the temperature, it is sort of horrifying. But like, the upside of that, Sarah, is I don't know if The Supreme Court does naw, dog this thing and says, yeah, the Trump administration's wrong. And Wong Kim Ark, which I believe is 1898, the same year of Sarah's grandfather's birthday, what a year.

[Sarah Isgur]

He was not born in the United States either.

[Adam White]

So, you know, I, I, I, I do wonder if by the time we get to these oral arguments and the decision and the political stakes have been racked up so high, you know, in the early, in the early months of the midterm elections, where political energy will be ratcheting up constantly through 2026, I don't know if the Supreme Court turns Trump away on this. I, I think it's going to be a pretty significant decision in the public's mind, even if, you know, whichever way they go.

[Sarah Isgur]

David, I've been torn on this because on the one hand I could see the court just gnaw dogging it. That is not like, here's the interpretation of the 14th amendment and that's that. But I think they included that statutory language for a reason. And I've been saying from the beginning, if they want to have the narrowest decision here, it's just like we don't have to decide what the 14th Amendment says because the President acting alone can't do what Congress does, which is liquidate, if you will, the language of the 14th Amendment. So, yeah, the President can't do this alone. Feel free to go to Congress. Maybe Congress can't do it either because maybe that's not what the 14th Amendment says. But we don't have to answer that because we don't have an act of Congress here. I think that would take this huge issue and potentially make it a very small one, which is you control both houses of Congress. Dude, you didn't even try.

[David French]

Yeah, yeah, no, I, I think, I love the way you put this because on the stakes of this, which really goes to who is an American, it's really kind of, it's hard to think of bigger cases. I mean, as far as, like, what are the stakes, as far as the outcome, I think you're exactly right. I think there's a way this is a nine zero, little case, A nine zero, little case that says, well, we don't even have to really deal with Wong Kim ark, et cetera. Mr. President, you cannot do this by executive order. You just don't have that authority. It's just not, it's just not within this realm of your authority. And I think that, that you could have a small version of this case that tables the constitutional question. I think that's entirely possible. But there's also a really interesting question here regarding text, history and tradition. You have an 18. What? 1868 ratification, and you have.

[Sarah Isgur]

Correct.

[David French]

And an 1898 Supreme Court decision. Okay, that's. Some of the people who are ratifying are still. Lots of the people who are ratifying are still alive in 1898. I mean, this is not a super close to 1868, but it's a pretty close to 1868 court precedent. Not. I'm going and looking at what the Kentucky legislature did or what the town council did in Tombstone, Wyoming, or whatever. This is 30 years after the amendment, 1898, pretty definitive 14th amendment ruling. How does that land in text, history and tradition? Land would be a very, I think, a very interesting question if we're going to be sort of more fleshing out history and tradition as an element of the Court's jurisprudence. So that's one thing that's very interesting to me.

[Sarah Isgur]

And by the way, that statement, statute AUSC 1401, the following shall be nationals and citizens of the United States at birth.

[Amy Howe]

A.

[Sarah Isgur]

A person born in the United States and subject to the jurisdiction thereof. So that's what the president's going to argue, is that he gets to sort of decide what exactly part A means in that. But what I guess I think is going to be really tough is it has parts A through H. If Congress intended to be more clear about what, you know, an illegal alien was, if it's not subsumed into section A, they had the chance to do that. This was originally done in 1952. It was amended a gazillion times, most recently in 1994. And I just think a president's going to have a hard time saying that Congress didn't cover the world here in liquidating, so to speak, the 14th Amendment. Okay.

[David French]

If a regulation cannot change the criminal law regarding bump stocks, how can an executive order change the. The statutory law regarding citizenship?

[Sarah Isgur]

Well, they're gonna argue it never did. Right. It's just been misinterpreted by other executive branches because these people were never subject to the jurisdiction thereof. Kim Wan Ark doesn't count it. You know, it doesn't touch this at all. Like we're going to be arguing in two different worlds, basically really talking past each other, I think, which will be itself kind of fascinating.

[Adam White]

I'm just really amazed and impressed that we. David just took the case that, again, I think is not just the most legally significant but morally significant case of the last several years and said this is Going to be really interesting for the methodological debates around text, history, history and tradition. I thought I'm able to take like really, really big questions and make them really technical and boring, but I'm amazing.

[Sarah Isgur]

All right, last up. We did finally get the decision in the Texas redistricting interim docket case. Now, remember, Texas does this mid cycle redistricting makes 2025 maps. This goes directly to a three judge panel that basically sits as a trial court. That three judge panel, two to one said, no, no, these maps were racially gerrymandered. You have to use the 2021 maps. That goes directly to the Supreme Court. This is technically not an interim. Well, it's interim docket in terms of what the maps are going to be. But the Supreme Court must take this case also, so it doesn't go through the normal cert process either. Uh, we were expecting a decision on that, David, like Thanksgiving.

[Amy Howe]

Ish.

[Sarah Isgur]

And instead we got an administrative stay from Justice Alito. The administrative stay basically would have undone, did undo the three judge panels decision, putting back into effect the 2025 maps. But then we're all sitting around because the filing deadline was that first week in December. So as each day went by, you had a good idea that they must be keeping the 2025 maps in place. Otherwise we were literally running out of time to have any sort of map or other decision go into effect. And lo and behold, that's exactly what happened. It was a 6, 3 decision, or depending on how you want to look at this, a 3, 33 decision. We had a descent from Kagan, Jackson and Sotomayor. We had a concurrence by Thomas, Alito and Gorsuch. And then we had the three not writing anything separately at all. David, I will say that on the one hand, the outcome didn't surprise, right? We said that we thought it was incredibly likely that these 2025 maps would be in place for the 2026 midterms for all the reasons we talked about in that episode. But here's what did surprise me. I thought that they would decide only for the 2026 midterms. They would decide it on Purcell grounds, meaning that too close to the election for the federal courts to be able to change up the maps. That's not really what this read like. It does start with. With an eye on the upcoming 2026 midterm elections, comma, several states have in recent months redrawn their congressional districts in ways that are predicted to favor the state's dominant political party. Texas adopted the first new map. Then California responded with its own map for the state purpose stated purpose of counteracting what Texas had done. North Carolina followed suit, and other states are also considering new maps. Cough, cough Indiana, which is looking like it may run into some roadblocks, but we are yet to see, based on our preliminary evaluation of this case, Texas satisfies the traditional criteria for interim relief. Texas is likely to succeed on the merits of its claim that the district court committed at least two serious errors. Now, remember, when it says the district court, it's talking about that three judge panel and the two judges that were in the majority that got the you know what for from the dissent. First, the district court failed to honor the presumption of legislative good faith by construing ambiguous direct and circumstantial evidence against the legislature. Second, the district court failed to draw a dispositive or near dispositive adverse inference against respondents even though they did not produce a viable alternative map that met the state's avowedly partisan goals. David, these are very substantive reasons to keep the 2025 maps. They are not just like we ran out of time reasons. They're not Purcell. The, the alternative, the viable alternative map is one of like the hardcore parts of redistricting law, basically. Yeah. And they did that on an incredibly short timeline. That's, by the way, basically the end of the opinion. And then you get the concurrence written by Justice Alito, but only with those three justices that seems to simply repeat most of that. And I am a little bit confused.

Why the other three justices didn't join that where they are on this. Maybe they were more of a Purcell vote and this is one of those interim docket decisions, like so many. I've got a lot of questions left.

[David French]

Yeah, I have a lot of questions left as well. You know, I think point one to me was the most interesting, which is first, the district court failed to honor the presumption of legislative good faith by construing ambiguous direct and circumstantial evidence against the legislature. This to me is pretty clearly talking about the infamous DOJ letter, that the DOJ letter wasn't enough. It was just not enough to overcome this incredibly strong pro legislative bias and pro. And. And this incredibly strong inference. That part. Well, the absolute conclusion that partisan gerrymandering is not what the Supreme Court's going to get involved in, and this is what we talked about ad infinitum, is that's why it's so hard to lose a partisan gerrymander case. It's really hard to do it. And the DOJ tried to pull it off, but judging from this SCOTUS decision, that DOJ letter which seemed to direct Texas to do a racial gerrymander, wasn't enough. That the Texas legislature's action is what is at issue here, not the DOJ's action. The Texas legisl legislature is entitled to that presumption of good faith. I thought that was the most interesting element of it, but I'm with you, Sarah. This seemed like a much more substantive short opinion than I expected to get with Purcell. Purcell's mentioned at the end, but was clearly not the dominant factor here.

[Sarah Isgur]

Adam, thoughts on Texas?

[Adam White]

I have a lot of thoughts on Texas, but that's more than I can handle this.

[David French]

I like you too, Adam.

[Adam White]

I do.

[Sarah Isgur]

The eyes of Texas are upon you. I mean, man, it's been a real Texas, like couple weeks for me. I called a M a cult, but in like a good way. Like, it was a compliment cult. And of course, we are University of Texas family here, so I picked up on that.

[Adam White]

I. I'll just say what struck me about the concurrence in on the Abbott order is it reminds me a lot of some of the recent opinions we've seen in casa, and I think it was the. In the National Institutes of Health interim order opinion with a number of the justices expressing their frustrations with the district courts.

This, like you said, this. The Justice Alito's concurrence in the Texas case really does just sort of echo those earlier standards from Alexander. What was the case? Alexander on these.

[Amy Howe]

On.

[Adam White]

On how the district court should review these. It's. This reminded me a lot of parents just sort of saying, as I said before, and then repeating it like in a slightly sterner register. This. This short couple of the short couple pages from Justice Alito with Gorsuch and Thomas, who also expressed their frustrations with the lower courts, seems to be the latest volley in that. I mean, that's the subtext, not the text, but it strikes me as pretty clear subtext. This is. This really is the one of the timeless fights we're seeing in the judiciary now. It is between the Supreme Court and the district courts. I would not. I would not expect to see it coming out of Texas. Right. You'd think this would be a Massachusetts case or a Washington State of Washington case where you have district judges who the Supreme Court majority believes are simply micromanaging the political branches of government in ways that are really causing a few of the justices to grind their teeth.

[Sarah Isgur]

There is this line from Justice Kagan that I think will go down and get re quoted quite a few times from the dissent. We are a higher court than the district court, but we are not a better one when it comes to making such a fact based decision. Really on that question one David, on the presumption of regularity, the dissent really arguing that the effect that that letter from the Department of Justice had and whether that letter was the animating cause of the redistricting which would have made it an unlawful racial gerrymander and was a fact finding question. That was a question of fact for this district court. They found that it was. And here you have the Supreme Court saying we actually don't think that it was. That's a question of law or at least a clear error by the district court. They don't quite get into the weeds of how exactly they're deciding otherwise. I guess the presumption is a question of law. But the.

Yeah, David. Oh, you're muted or you're gone. There we go, you're back.

[David French]

I felt like the Is it right to say the ghost, the spirit of Calais, not the ghost because the Calais is not gone. It's still hovering out there waiting for an opinion. The spirit of Calais hovering around this, which is, look, if the core element of the district court's opinion was essentially that the of the three judge panels opinion, sorry, was that look, this is really a racial gerrymander. We have the smoking gun, we have the proof. And hovering in the background of Calais is this how do you discern between partisan gerrymanders and racial gerrymanders? And they just kind of sweep that aside in this very short opinion. You know, it feels like we're getting to a world where when the racial gerrymander and the partisan gerrymander become difficult to pick apart, they're just going to go that it's partisan. And I feel like that that's where this seems to be heading. But again, I say that with all due humility because of the last two to three years, the most surprising outcome that I have seen is Alan B. Milligan, that that is the most surprised. That's the most surprised I've been by a Supreme Court outcome other than parts of Trump v. United States. I would say that that's the most surprising. So I say this with the spirit of Calais, with I could be totally wrong about this. I still don't know how that's going to come out.

[Adam White]

And I just want to say, Sarah, a very, very smart AEI colleague of mine pointed out a couple months ago, Justice Jackson loves, loves to point out how big the record was or how many pages of factual findings the district judge made. And now you're seeing this in Justice Kagan's opinion here. This is becoming a very familiar sort of move in these cases or these shadow docket, sorry, interim docket, equity docket, equity docket, energetic docket, whatever we're calling it.

[Sarah Isgur]

One judge called it the bling docket as opposed to the boring docket. And I did like that.

[Adam White]

Yeah. But this is becoming sort of a regular feature of the, of the liberal justice's dissents to point back to how hard the job of the district judges and how these factual decisions are uniquely the province of district judges because they are so fact sensitive, so circumstantial and trying to ring fence these district court judges. Again, to my earlier point, we're going to see this constant push and pull of what's a factual question? What's a legal question? And who sets the rules? And who really decides where the rules are being followed about the legal questions, about the factual questions.

[Sarah Isgur]

All right, that'll do it for us on Advisory Opinions. On the next episode, though, we've got some really fun things to talk about that are maybe more advisory opinions, weedy stuff that we're into. Two other cases will have been argued since the last time we got to talk about, you know, the not big ones. One Olivier versus City of Brandon. Okay, so you've been arrested and convicted for a crime, but you want to go commit the crime again. Can you challenge the constitutionality of it if you've already been convicted? It was really interesting. Okay. And then number two, we have that NRSC versus FEC case about whether parties can be limited in their contributions to their own candidates and what the corruption interest is there. All this and more on the next Advisory Opinions. Thank you, Adam. Thank you, David.

[Ross Anderson]

Hi there. I'm Ross Anderson, editor of the Morning Dispatch, and I'm back interrupting your favorite podcast again with some more news. We were blown away by the positive feedback from everyone who tried the Morning Dispatch for free last month. So I pulled even more strings to work out a special deal for the rest of December, you can get a month of Dispatch membership for just one dollar. Yes, a dollar. That means you get the full TMD delivered straight to your inbox every morning and unlock access to everything else we have at the Dispatch. That means for just $1, you get unlimited access to our newsletters, podcasts, and stories, plus the ability to listen to audio versions of our articles. You can also Join our comments section where you'll find me most mornings and ask me questions about TMD. For our behind the scenes section, head over to www.thedispatch.com join and become a dispatch member for just yes, $1. Happy holidays and happy reading from all of us at the Dispatch.