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A
You ready?
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B
I was born ready.
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A
Welcome to Advisory Opinions. And don't touch that dial. I'm not Sarah Isger. I'm her frequent guest David French sitting in the host chair for just a moment while Sarah is away. And I'm joined, I'm delighted to be joined by my friend SCOTUS blog, original jurisdiction, all the accolades, David Latt. It's the David and David Show. David, thanks so much for joining us today at Advisory Opinions.
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B
Hey, thanks for having me, David. It's always a pleasure.
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A
It's been a while since we've had the David and David Show. I think, you know, it was literally since Sarah's maternity leave, I think.
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B
Yes, I think that's right. I've popped in on an episode here or there, but not just with you. I think often with Amy Howe and Sarah and Zach Shemtob and other guests. So, yes, I think that's right.
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A
And I mean, you picked a great time because we've got some pretty consequential stuff to talk about right now. You know, unless you have not been paying any attention at all to anything, you're, you're very well aware that the United States entered Venezuelan territory over the weekend, took the president of Venezuela and his wife exited the territory. Now there is the vice president of Venezuela now appears to be in charge. A host of legal issues raised by that operation that we're going to work through. Also right after, right before the break, we got a decision in Trump v. Illinois. This is the National Guard deployment case out of Illinois, the one rooted in the Chicago deployment. And it almost, almost merited an emergency pod, but it was just too close to the holidays. We didn't pull the trigger. And so but we're going to talk about it today. We're going to break it down, all its component parts. And also we've got a interesting circuit case or maybe two to talk about if we can get to them. And David's got a great top 10 list from the end of the year that we need to address as well. So a lot, a lot going on and all that is coming up.
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C
This episode of Advisory Opinions is brought to you by our friends at Pacific Legal Foundation. Since they were founded in 1973, PLF has won 18 Supreme Court cases defending the rights of ordinary Americans from guns, government overreach nationwide, including landmark environmental law cases like Sacate vepa. Now PLF is doubling down and launching a new environment and natural resources practice. They're on a mission to litigate cases that make more of America's land and resources available for productive use and to make sure freedom drives our environmental and natural resource policy, not fear. To learn more, visit pacificlegal.org free flagship.
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A
From tubs to toilets and all the tile in between to bring your vision to life. The Home Depot Dream Baths built here. David let's start obviously with Venezuela. You know, we're not this is a legal podcast. We're not going to dive into the geopolitical wisdom of this action. If you want to read my thoughts or hear my thoughts on the geopolitical aspect of it more than the legal aspect, I've written about it at the Times. We've got a podcast at the Times that came out yesterday that this is going to focus much more on the legal aspects and what is the legal basis for the action? How strong is the argument for the action? If the argument is weak, what are the ramifications? There's a lot to unpack here, David, and so I know this is not the area that you focused a lot of your practice on, but we've both been taking a close look at this issue since the attack. Let's sort of start with your broad brush and then we'll get into the specifics.
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B
Yeah, so I think the broad brush is, well, was this operation legal, this going into a foreign country and capturing a foreign leader and his wife and bringing them over to the United States? And it wasn't initially clear what the administration's justification was going to be. But you highlighted for me a tweet by Vice President Vance, who is a lawyer by training, a graduate of Yale Law School, and he wrote in this tweet, PSA for everyone, saying this was illegal. And he puts illegal in square quotes Maduro, the Venezuelan president, or former president, depending on how you see it. Maduro has multiple indictments in the United States for narco terrorism. You don't get to avoid justice for drug trafficking in the United States because you live in a palace in Caracas. So it's the administration's position that this really was the use of military force in support of law enforcement, namely bringing a person who has been indicted to justice. And as of now, I believe Maduro and his wife, who are named in this indictment, together with four other defendants, including their son, I believe that Maduro and his wife are now being held in the detention center in Brooklyn, the Metropolitan Detention center, which is a somewhat notorious jail just in terms of the conditions. And they will at some point go to trial. This indictment is a four count indictment, 25 pages filed in the Southern District of New York, aka Manhattan. And so we'll have to see about that as well.
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A
What's interesting about this, and you know, let's try to steel man, the administration's position here is that they're actually relying on, when they talk about this argument about it being a law enforcement operation, they're not making this up out of thin air. They're relying on a legal opinion that a 1989 legal opinion related to the American attack on Panama, okay? Now if you don't remember this, in 1989, late 1989, the United States intervened in Panama to depose Manuel Noriega, then the sort of the strongman and dictator of Panama. They charged him on drug traffic in part for drug trafficking. So there's some surface similarities here. You have an indictment of a foreign leader, Noriega, he's indicted on drug trafficking and Barr issued an opinion justifying the attack on Panama that essentially. And Jack Goldsmith over at executive functions has a great breakdown on this and it basically makes six points. So bear with me here that point number one, that the FBI statutory arrest authority authorizes extraterritorial investigations and arrests. I think point one would be the least controversial point of all the six that we're going through that that the FBI does have the authority to conduct extraterritorial investigations and arrests. Yes. Number two, the President now from two to six is, is where things get a little bit more interesting. The President. Number two, the President could lawfully order an extraterritorial arrest pursuant to the FBI's statutory arrest authority, even if it violated customary international law in impinging on the sovereignty of other countries. In other words, that arrest authority overrides what's called customary international law. This is, think of that as almost like I know it's imperfect, so don't yell at me. International law experts who are listening think of it as something similar to the history and tradition part of text, history and tradition, that the practice of other countries establishes a sort of illegal environment. Number three, even if those authorizing FBI authorizing statutes were limited by customary international law, the Constitution's take care clause empowered the President to authorize federal agents to make arrests abroad. Number four, Article two, section four of the UN Charter, which prohibits the use of force against the territorial integrity of any state does not prohibit the executive, as a matter of domestic law, from authorizing forcible abductions abroad. Number five, the President has the authority to delegate these powers to violate international law to the Attorney General. And a US Arrest abroad in violation of international law does not violate the Fourth Amendment. Couple things there, David. One, from a historical matter, I'm actually somewhat puzzled by this opinion. That's a very aggressive legal opinion that was wholly unnecessary in the context of 1989 because it wasn't just that Manuel Noriega had been indicted in 1989, Panamanian Defense Forces had attacked and killed a US Marine, seriously injured another, abducted and brutally beat another Marine, threatened his wife with sexual abuse. The government of Panama had declared a state of war with the United States of America explicitly. And there wasn't a specific constituent, a specific congressional resolution authorizing the use of force, but there was a resolution authorizing regime change, including unilateral actions to engage in regime change. Very different. But Barr takes it so much further than that. I'm actually stumped by this reasoning, David. I'm stumped by it because if you apply it, you could say, for example, Bush didn't need to go to the Congress to authorize the Iraq war. He could have indicted Saddam Hussein for trying to kill his father. Hatching the assassination plot against George H.W. bush, attached some FBI official agents to the 101st Airborne and 1st Marines and said, this is a law enforcement operation and all this military force is just necessary to protect the FBI as they go to Baghdad and arrest their man or take it to Russia. I'm going to indict Putin for ordering the interference in American elections, and it's go time and I don't need Congress. This is a law enforcement operation, not a military operation. I don't know. It strikes me as just a remarkable bit of reasoning, but I wanted to lay it out very clearly for you, David, like that, because I wanted to get your read on it as well. How does that strike you?
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B
I tend to agree with you, David. I think Steve Vladig, who's also been writing a fair amount about this, characterized this as a situation of the tail wagging the dog, which I kind of see here, because as you point out, what is the limiting principle here? I think we can agree with some of the first few points that Professor Goldsmith raised in saying, look, sure, the FBI can arrest people outside the borders of the United States, and maybe if executing the arrest is particularly dangerous, maybe they can get some help from military personnel. I think that doesn't seem crazy either. But then again, what is the limiting principle? And can you have a situation where just indicting someone then authorizes a military operation? Because remember, this was not merely the extraction of the Maduros. There were explosions, there were, there was the use of military force. You can read first person accounts from people in Venezuela, in Caracas at the the time. This was not just a, you know, raid on a presidential palace and then quietly spiriting away two people. So again, I want to steel man the administration's position, but again, I think we need to come up or they need to come up with an intelligible limiting principle for this.
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A
Yeah, and there is an intelligible limiting principle which would be your arrest authority is limited to the extent that the arrest would constitute an act of war under international law. So I think that would be a pretty clear, very sensible limiting provision. Because the one thing it seems at the very least a good definition of when we would want Congress involved is when the military action of the President could embroil us in a state of armed conflict with an opposing sovereign. I think that's a very good standard. And look, Congress has outlined the circumstances in which Presidents can use force immediately, instantaneously, in response to their own assessment of America's military needs. And that's through, you know, comply with the provisions of the War Powers Resolution. I mean, this is something where Congress has actually a mechanism for at least some degree of unilateral presidential freedom of action, limited by time, limited by notification requirements, limited by requirements for congressional approval for extended deployments. And all of that is very reasonable and sensible. The President, so far as we know, has not complied with the War Powers Act. But even the War Powers Resolution should not be construed as granting Presidents the, the ability to launch war, an actual armed conflict without congressional input, or to violate international law, so long as you comply with the War Powers Resolution to launch an active and aggressive war in violation of the UN Charter, which we, by the way, have agreed to, we have ratified, we have agreed to the UN Charter formally that. So we're violating an agreement that we have made. And so I do think there's a limit. There's absolutely the ability of the FBI to engage in extraterritorial law enforcement activity. If we took that away from the FBI, we'd be taking an important tool out of their toolbox. No, we do not want to do that. At the same time, granting the FBI the statutory authority to engage in extraterritorial law enforcement actions must end the moment that extraterritorial law enforcement would constitute an act of war under an international law, for the sake of the international order, for the sake of American constitutional law, for the sake of separation of powers. There's so many reasons here, David. Yeah.
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B
And I think a lot of the time it's important to imagine what if the shoe were on the other foot. So, again, we're the United States, we're powerful, we can get away with a lot. But just imagine if some other country came and, and tried to take away Trump, or more realistically, imagine they tried to do it to one of our allies or something like that. I think that many of us would be outraged or at least deeply troubled by that and would perhaps cite international law at that point. But look, international law people always have wondered, well, is international law law? And I think the reason they say that is because of the issue of enforcement, because law typically involves some kind of enforcement mechanism. And Professor Goldsmith talks a lot about this in his post on his excellent substack Executive Functions. Because here, what is going to be the mechanism for enforcing compliance with international law or the UN Charter? And so Professor Goldsmith says, and I'm quoting from his post, it will be interesting to see if the Trump administration tries to claim that it acted consistently with the the charter. Perhaps it will say, as it was said of the 1999 Kosovo intervention, that the action was, quote, illegal but legitimate, close quote. Or perhaps the administration will argue, as the United States did in the 1983 invasion of Grenada and the 1989 invasion of Panama, that the United States was defending U.S. persons there. Or perhaps it will, as it is so often in other contexts, simply blow off international law. So that is really the question here. And I have to admit you and Sarah like to say malpractice warning, international law is not an area of expertise for me. But Professor Goldsmith, and you are certainly pretty knowledgeable about it, so I will defer to a lot of your thinking here. But I think the question here, though, is how do you enforce or punish violations of international law if the UN Charter or other international law was in fact violated here?
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A
Yeah, I mean, you raise a great question. And it kind of goes back to that argument that Sarah and I have had for many years over international law is fake. And I would say to Steel man, the Sarah position, it would essentially be, how real can law be without reliable enforcement mechanisms? In other words, if you don't have sort of an immediate ability and recourse to any sort of meaningful enforcement, do you have law? I think my response to that has generally been, well, to some extent, if the measure is law. Existence of law depends on the ability of a sovereign to enforce the law to greater or lesser degrees. All laws are somewhat fake because all societies depend on mass scale voluntary compliance. Let's just take a speeding law. We don't think of speeding laws as fake even though we violate them all the time, because there is at least some degree of enforcement that doesn't. So the, the some degree of enforcement leads us to believe that speeding prohibitions do actually exist. But if nobody followed them at all ever, would you say that the speeding prohibition is fake? Is that not a law? Really? Truly, that, that would be, It's a, it's sort of an interesting theoretical question. And I think with international law, an enormous amount of it depends on voluntary compliance. But guess what? That has been the case. There has been a lot of voluntary compliance that we don't see because it is non controversial. There are forums and international dispute resolution mechanisms that countries engage in all the time and abide by the conclusions and the findings. And there are all kinds of ways in which there's an awful lot of international law that occurs without much controversy. It is absolutely true, however, that the international law of armed conflict in particular has very difficult and shaky enforcement mechanisms. And so when you go back and you look at the intention of the design of our international legal structure, the enforcement mechanism was supposed to be in the ultimate sense the UN Security Council. We have seen it working in the sense with the UN Security Council in sort of secondary third world conflicts, in other words, where the great powers don't have a specific sort of interest in them. There have been peacekeeping deployments, for example, There has been use of military force to try to maintain international peace. But I would say the salient and most relevant example of where international law might have been at its peak was in response to the North Korean invasion of South Korea. This is the one time, and this is an interesting sort of historical quirk because the Soviet Union boycotted the vote and the UN Security Council voted to enforce the UN Charter and to send forces under UN command under American lead, but a UN authority to enforce international law and prevent and block an aggressive war. So you have seen this happen to some degree. And here's the way I would put it, and this is the way I put it in the piece I wrote for the Times. If you take the five permanent members of the Security Council as the prime five entities, and that's Britain, France, the United States, China and Russia, arguably the five most powerful arm, five most powerful countries in the world, when you combine economics military, etc. If three of those five, Britain, France and the United States, still maintain a degree of commitment to international law, they are able, shakily, imperfectly, to sort of maintain the overall superstructure of international law. An example of this would have been, say, the response to Saddam's invasion of Kuwait. You didn't have the exact same kind of UN operation, but you did have an international armed operation designed to reverse the results of aggressive armed conflict. That would be an example of how international law is enforced. So if three of the five great powers in the UN Security Council are on board with the structure, you can keep it together. You've got duct tape, you've got super glue, but you can keep it together. But if three of the five, particularly if the two that are remaining are Britain and France, but if three of the five, the United States, China and Russia, essentially start to act as if the international law of armed conflict is not even a set of guidelines, just sort of virtue signaling, then it's lost. Then the Sarah position that this all fake becomes, I think, a much more, you know, becomes a much more credible position. It's a, you know, it's a definite score one for Sarah moment in the sense of if you take the United States out of the international legal enforcement equation, what you're left with is some of the less lesser powers trying to maintain an international structure. And I'm sorry, they just cannot do it. Britain and France cannot keep it all together in the years 2025 any more than they could in the year 1938. They can't do it. And so this is one of the areas where I think if you're talking about knock on longer term effects of a Trump administration, if it really is that we kind of pull ourselves out of that web of international law, then I do think you're going to truly find a situation where if all of the most powerful nations in the world are not acknowledging it, then the system just then voluntary compliance ends. There's very little capacity for enforcement. I think you would have a lot of knock on effects at that point. And you're going to hear David's response to that scintillating point, but only after the break.
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C
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A
So, David, your thoughts?
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B
You mentioned, David, the UN Security Council and the five permanent members of it. And you have to recall that any one of the five permanent members can block the UN Security Council from adopting a resolution. So over the years, there have been attempts to, for example, disapprove or condemn some action of the United States, but the United States can just veto that. And so if there were some attempt in the UN to express disapproval of this Venezuela operation, well, the United States could just veto it. And so you raise a very important point, David. What happens when one of the five permanent members is the one that is allegedly violating international law? Look at Russia and its incursion into Ukraine. You're not going to get a UN Resolution condemning that. And so you do end up with this kind of double standard or this sense that a certain country might be, quote, unquote, above the law. It's analogous in some ways to what some people claim is happening domestically, where the Trump administration takes certain actions and then dares someone to try and stop them or to punish them after the fact. And you could argue, well, maybe that's kind of a version of what is happening here. So, you know, it's very tricky. And this is just talking about the legality of what happened over the weekend. There is also the issue of what happens going forward, because shortly after the operation, Trump said that the United States would, for some indefinite period of time be, quote, running Venezuela. It's not really quite clear how that's going to happen. I don't think anyone is imagining some kind of sustained on the ground military presence. Then there seemed to be some sense from the administration of, well, no, we're not going to actually be on the ground in the way that we were in Iraq. But perhaps we are going to pressure or persuade the vice president, who is now, I guess, the acting leader, to comply with our wishes or our vision for the future of Venezuela. So that's also the issue of is the United States going to be running Venezuela as Trump suggested, and if so, by what legal authority?
- [29:20]
A
Yeah, I'm glad you raised that, because Trump is threatening the vice president of Venezuela, who is, because this has not been a true regime change operation. The regime is still in power. The president is out, but the vice president is now in power. Trump appears to just think that the opposition is not capable of taking control of Venezuela. So he's leaving in place the current regime, but he's saying to them, basically, do what I tell you or you'll face worse than Maduro. But that's even moving beyond the bar opinion, because the bar opinion depended on existence of an indictment. What would be the legal justification for war if, say, the vice president of Venezuela says, no, we're not going to reopen our oil fields to American oil companies? Which seems to be the main motivation for Trump at least listening to his words. Can you bomb Venezuela and try to kill its leader because she won't engage in negotiations with American oil company? Now, at this point, we're just engaging in pure thuggery. If, if that, if that turns out to be, you know, that he's saber rattling over, you know, oil rights and oil negotiations, which appears to be front of mind. Now, we don't know that that's going to happen, but we definitely know that Trump has issued explicit threats to the vice president and that the demands right now are not for human rights and individual liberty. The demands right now, the most immediate demand is for oil access. So, and look, I mean, this is, this is something that has echoes. You know, I was just talking to somebody recently who said, you know, who reminded me, I was talking on a podcast recently who reminded me about the famous line from Barack Obama to Mitt Romney when Romney was emphasizing Russia. He's like, the 1980s called, they want their foreign policy back. Well, the 1880s are calling and they're getting their foreign policy back. American gunboat diplomacy in Central and South America violated any conception of what we would now think of as international law for a very long time. And so if you want to look at historical precedent for what Trump did there, it does exist. It does exist. It's just not the historical precedent that we have tended to be very proud of. And the United States of America. And so this revival of gunboat diplomacy violates the UN Charter. And one of the reasons, by the way, for the UN Charter was the very kind of sphere of influence related great power competition that the world seems to be moving back towards right now. And one of the reasons for the UN Charter was to escape that trap that had led to two big world wars. So we could talk about this for a very long time. But it's been now a couple of weeks almost since Trump v. Illinois and advisor opinions has not weighed in. And the people, the people, David, let's just say there's a lot of unrest out there in the streets. A lot of unrest. So, okay, let's move to Trump v. Illinois. And very quickly, this, what this case, the factual basis for this case is really pretty simple. The Trump administration alleged that the protests, including the violent protests outside of the ICE facility in the greater Chicago area, was inhibiting the enforcement of federal immigration laws. So Trump mobilizes several hundred members of the National Guard to permit immigration officials to execute the laws of execute American immigration laws. And under a statute, 10 USC Section 12406, that says that the president has the authority to call into federal service members and units of the National Guard when there is an invasion, there's a rebellion or danger of rebellion against the authority of the government of the United States, or the President is unable with regular forces to execute the laws of the United States. Now, in the lower courts, the procedural posture here is interesting. The district court did analyze this subsection 3, that what did it mean to say that the President is unable with the regular forces to execute the laws of the United States? Did that term, regular forces mean the active duty military? So you could not call up the Guard unless the active duty military was unable to execute the laws of the United States. Now, what's fascinating about this, David, is that is not the argument that the plaintiffs circled the wagons around. And in fact, that argument was essentially dropped at the appellate level of litigation and then brought back in by the Supreme Court asking the parties to brief that issue. And that's very important because that issue, that number three, was the basis for the decision. And so very quickly, what the decision actually, there were three opinions here. The first opinion was an unsigned opinion that essentially said, look, two key components. Number one, the regular forces here does not mean simply civilian law enforcement. It refers to the regular forces of the United States military. And so that means that the President can't call the Guard unless he's unable with the regular military to execute the laws of the United States. So he has to demonstrate that the regular military is inadequate. So in that, and by that reading, this statute isn't a permissive statute. It's really a break glass in the case of extreme emergency. Statute is one way to think about it. But the court went a little bit further than that. The court went a little bit further than that. It also said the President has not carried or the government has not carried its burden that the section permits the President to federalize the Guard and the exercise of inherent authority to protect federal personnel and property in Illinois. In other words, the government says, hey, look, there's an inherent authority that the President has to protect personnel and property. This exists, no matter, in essence, no matter what 124063 says or what section 12406 says. And what the Supreme Court is saying is that 12406 here doesn't permit you, this is not a statute that permits you to federalize the Guard under that inherent authority framework. So that's what at least five justices said. Justice Kavanaugh weighs in and says, I'm going to only agree with the element that says that regular forces refers to the US Military and not to civilian law enforcement. And then beyond that, you had an opinion with Alito and Thomas that, well, let's, let's stop with the majority. Let's stop with the majority here. David, I have been talking a lot, won't call it filibustering quite yet, talking a lot. But let's first deal with the majority opinion, the actual governing opinion in this case. Your thoughts?
- [37:02]
B
As you mentioned, this was this unsigned three page order and here it is. First of all, just sort of top line. This is a rare loss for the Trump administration on the interim short order, equity, emergency, shadow, whatever you want to call it, docket. The administration has a very high win rate on this docket, but in this case, they lost and they were denied their relief. So I think top line, one, big loss for the administration. Two, it is a decision that's already having practical consequences because the administration has essentially, for now, at least, I guess you could say, abandoned its efforts to deploy the National Guard in Chicago, Los Angeles and Portland, Oregon. And even though Trump's announcement of this didn't exactly or explicitly say I'm doing this because of the court, it happened just a few days later. So I think it's reasonable to infer that this was at least affected by the court's ruling. So two, this is a decision with, you know, significant practical consequences. And then I guess just kind of a third fun point I'll make for the nerdy listeners of advisory opinions. You know, shout out to Marty Lederman, a professor at Georgetown Law, who really was the one who revived this issue. As you mentioned, it was mentioned or analyzed by Judge Perry, the district court judge. But then it was sort of abandoned by the parties in both the 7th Circuit and the Supreme Court. And Professor Lederman, who is a liberal, a Democrat, served in the Office of Legal Counsel under Obama. He wrote an amicus brief that really did a textualist and originalist style analysis of, of this provision to explain why regular forces really refers to or should be read as referring to the military rather than civilian law enforcement. And so I think it's nice to see in this polarized age that it is possible to persuade people on the other side of the aisle, as Professor Lederman did, with respect to the conservative majority of the Supreme Court. And that's what it's going to take to score these types of surprising wins on the interim docket.
- [39:29]
A
Yeah, I'm glad you brought up that this broke a kind of a Trump winning streak at the Supreme Court. And it really does illustrate. I have been, We've been talking about this. I know you've probably rolled your eyes at how much you've listened to us say this, which is, no, the Supreme Court is not in Trump's pocket. This is not a MAGA court. And I think a lot of people began to lose sight of that reality because for a period of time, case after case that was coming up to the court on this emergency docket was really related to Trump's authority over the executive branch personnel. And that's where this court is. And sort of Trump, Trumpist legal philosophy and traditional conservative legal philosophy probably overlap the most is over the authority of the executive over the executive branch. However, once you're getting beyond that sort of narrow issue, that MAGA does not have a great track record at the Supreme Court at all. And this is another example of that poor track record, these very, very, very aggressive interpretations of statutes. Supreme Court is showing very little patience with it. And that's one of the reasons why I tend to think, and I'm getting sort of more convinced of this as time goes by, that the administration will lose the tariff case. Just such an aggressive interpretation of a statute. What is interesting to me about this, David, what you're ending up with here. And we'll get to the dissent. There were two dissents. There was the Alito Thomas dissent and a Gorsuch dissent. We'll focus more on the Alito Thomas dissent because it really made two key points in response. One is the sort of party presentment point that we've talked about in recent podcasts more than I've ever talked about it in my whole life. And that is, wait, if the parties, if one, if the parties abandon an argument, how much can the court step in and revive it? I'm not at all surprised to see, you know, that. That the court do this. In fact, it is, as I said on the podcast before, in my experience, courts do this all the time. But I do find it very interesting. And I thought the party presentment argument was the most persuasive element of the dissent that. But the less persuasive element of the dissent seemed to be to me anyway, was the idea that regular forces had to mean didn't couldn't just mean regular military that because otherwise, as Scalia I mean, I'm sorry, as Alito was saying, well, that would have to he would have to show that the entire US Active duty military couldn't control the situation. I'm think, no, I would think it'd be much more that available military forces couldn't control the situation. Situation. Not that the entire military. But I found that less persuasive in part because again, this use of the term regular forces is in the context of a statute regarding the use of military force, not not civilian. So I found that less persuasive than the party presentment argument. But I'm curious about your thoughts about the dissent. How, how persuasive did you find it?
- [42:38]
B
So I have to say I do have some issues with the party presentment argument, not because I disagree with the overall or overarching point that in general, courts should respect the decisions about the parties in terms of how to phrase the issues. The problem is that this is a doctrine that's very inconsistently applied, often in ways to advance the judge or justice's preferred position. Because here's the thing about party presentment, and Professor Sam Bray had a really interesting and very good post about this over at Divided Argument. Judge Patrick boomite of the 9th Circuit actually gave a speech to this past year's Federalist or last year's Federalist Society Lawyers Conference about this. Party presentment can't change what the law is. The judges and justices have to apply the Constitution and laws of the United States. And just because a particular party doesn't raise a particular argument or maybe misinterprets the law or overlooks a case or that cannot and should not stop the court from applying the law. So if the law in question defines regular forces in a certain way, the fact that the parties didn't really focus on this issue before the Court can't change the fact that the law is what the law is. And so I think that's sort of the issue with party presentment. And I kind of I'm sure that this has been explained or articulated in a better way in the academic literature or the case law. But I think there is sort of a difference between situations where a party sort of affirmatively waives some kind of discretionary claim that it is theirs to make versus a situation where there's a question of what the law is and the party doesn't advance a particular argument about what the law is, but the law is what it is, and the courts have to apply the law as it stands. So I don't know that I was hugely persuaded by Justice Alito's point on party presentment just because I have these broader issues about how consistently the doctrine is applied. As for his point about what it means to be unable to enforce the law, I agree with you on that.
- [44:48]
A
Gorsuch's opinion is really a pretty brief, essential statement that's we're just not in a position to answer these questions that 12406 raises a host of questions that we're not in a position to really answer right now. And so, you know, it seems as if he's joining the dissent mainly because that is the way in which you would register that this has not been decided, that the that the majority is essentially deciding issues that we're not ready to decide yet. But I found of all of the additional opinions, what I found most interesting, David, was actually a footnote, and it was Kavanaugh's last footnote. And this was in the Kavanaugh concurrence. And remember, Kavanaugh said, I joined with the majority, but only on the regular forces interpretation, not anything broader. I don't want to bind the President's hands any more than interpreting the statute to mean that the regular forces means regular active duty military. But here's footnote four, and I think this is very interesting, David 4 the state's opposition to deployment of the National Guard appears to stem in part from the state's underlying objections to the activities of federal immigration officers when they make immigration stops and arrests. In Illinois, the state and government disagree about whether the immigration officers have violated the Constitution in making certain immigration stops and arrests. The basic constitutional rules governing that dispute are long standing and clear. And here's where it gets interesting. The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable clause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. This application does not require us to delve into the party's underlying dispute and to determine whether any particular immigration encounter or a series of encounters in an ILOI has violated those constitutional principles. David I suspect that Justice Kavanaugh does not like the term Kavanaugh stops and was wanting to make it really clear that the opinion that the Supreme Court issued weeks and months ago about immigration enforcement stops was not based on the immigration's argument that ethnicity alone can trigger a stop. It was based on the immigration's argument that ethnicity as one part of a combination of factors and circumstances can create a stop. And also that reasonable suspicion does not empower an arrest. It only powers a stop. And so I think what Kavanaugh was trying to do here is just to make it very crystal clear in a very short way that reasonable suspicion is for a stop only, not an arrest. And reasonable suspicion cannot be based solely on ethnicity. And I think those two understandings alone, that ethnicity alone cannot empower a stop, and number two, that reasonable suspicion and probable cause are different things, and you cannot detain somebody on reasonable suspicion or arrest somebody. I think that that would go a long way towards defusing a lot of the tension in the streets in the United States. And when we come back, we'll find out if David actually likes to see tension in the streets. The new year brings new health goals and wealth goals. Protecting your identity is an important step.
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- [49:00]
B
So I agree with you, David, about tensions in the streets. I think there was this issue of a September opinion that you were referred to, Nome v. Vasquez Perdoma, where Justice Kavanaugh wrote a concurrence where he argued that federal agents can consider factors like ethnicity or language, eg, Spanish, as factors in a multi factor test for reasonable suspicion for stopping someone. I think critics of Justice Kavanaugh then tried to argue that, oh, he's arguing for racial profiling. And they called it Kavanaugh stops. And I think that this footnote is essentially his response to that characterization or caricature of his earlier concurrence. By the way, I thought Justice Kavanaugh's footnotes were very interesting. I thought you were gonna talk about his second footnote where he talks about how the court does not address the President's authority under the Insurrection act. Because whenever there's an issue involving the Trump administration, we have to look at the different possible sources of authority for the action. And here the Insurrection act was not invoked. But over the years, Trump has talked about invoking it, including back in his first term when there was some unrest in the streets in the wake, for example, of the murder of George Floyd and Black Lives Matter protests and things of that nature. So, yeah, really very interesting issues here.
- [50:30]
A
David, you had a really interesting top 10 list that you put out in original jurisdictions, so why don't you walk us through that for a moment?
- [50:38]
B
Yeah, sure. So my Substack newsletter, original jurisdiction, has been around now for more than five years. And at the end of every calendar year, I put out a list of my top 10 posts based on readership as assessed by substack. And it's an interesting way to see what stories resonated with readers in the legal world.
- [51:01]
A
And.
- [51:01]
B
And the biggest story was an email sent by Brad Karp, who is the chair of Paul Weiss, which is a major law firm, defending his firm's deal with the Trump administration. As listeners might recall, a number of large law firms, to avoid getting hit with these punitive executive orders by the Trump administration, cut these deals with the administration where they made many promises not to engage in illegal discrimination in hiring, for example, or to consider an ideologically broad range of clients and causes for pro bono work. But one of the commitments they made was to pledge specific dollar amounts of work towards certain favored pro bono categories of the administration, such as helping veterans or fighting anti Semitism. And a lot of these deals were condemned by many as law firms capitulating to the Trump administration. And so some firms have tried to defend them. And one of my top posts was actually essentially reprinting, with a little commentary, an email from Brad Karp trying to defend his firm's deal. But of the top 10 stories, there were a couple that actually related to these deals. And so I think in the law firm world, the sort of Trump v. Big Law story was a major story of the year.
- [52:18]
A
You know, I found that interesting, and correct me if I'm wrong, but didn't you break that news, David?
- [52:23]
B
I certainly was the first to publish Brad's email. That's right. Yeah.
- [52:27]
A
And it actually shows something very interesting about the journalism world, and that is opinion journalism draws a lot of eyeballs, no question about it. It's one reason why news organizations invest a lot of resources in opinion is people are very interested in it. Very interested. However, nothing drives eyeballs like breaking news and that, you know, and it's interesting because I think a lot of people have kind of forgotten that or don't even realize that and understand it. And they put so much resource, they put so many resources into the take economy that they neglect the news economy. But if you can actually be A person who breaks news, if that is an aspect of your work, you're actually going to be. It's going to create much more public resonance than a million takes. And I just thought that was really, really interesting. Another thing that was interesting about your top 10 list was I was really surprised at number two. It was a top SCOTUS litigators major lateral move. Now, again, this is something where there's an element of you breaking the news, but it's also a very inside baseball kind of story. It's fascinating to me how many people eat up inside baseball.
- [53:44]
B
Yeah, this was about Neil Katyal, who's a very prominent Supreme Court litigator, former acting solicitor general in the Obama administration. This was about Neil's move from Hogan Lovell's, where he spent something like 14 years, to Milbank, which is a very prestigious, profitable law firm that's been hiring a lot of partners. But it was big news in the legal world because Neil is a very prominent partner. And it's also big news in the world beyond just the law firm world because Neil has written bestselling books and he does a lot of commentary on television and he is a big antagonist of the Trump administration. He argued the tariffs case, which you and Sarah talked about before the Supreme Court. And it's interesting because, look, Neil moved to Milbank in February and that was before Milbank cut a deal with the Trump administration. So even though Milbank was one of the many firms or nine firms to cut deals with the Trump administration, that hasn't stopped perhaps its most prominent partner from taking on some cases adverse to the Trump administration. I believe Neil is also involved in sanctuary city litigation and he is also involved, I believe, in defending one of the officials that Trump is trying to remove against removal. So again, it does tie. It's inside baseball, but there is some original reporting in it because I was one of the first, if not the first person to interview Neil on the record about his move. And it does touch upon the broader issues. Just because of who Neil is.
- [55:15]
A
Yeah. Again, you know, it's that breaking news. You've got the original reporting very interesting. And then, but let me ask you this, going off the top 10 top 10 list, let me spring something on you. What was your favorite story to write and report on, write about or report on? Over the course over 2025, I wrote.
- [55:33]
B
About two situations where large law firms essentially screwed up by relying too much on AI technology, filing briefs or motions without adequately checking to make sure that none of the hallucinations were fake or hallucinated the citations provided by ChatGPT or whatever their AI tool of choice is. And I think that's a point of broader resonance as well. We are all increasingly using AI in our lives. I use ChatGPT for everything from laundry advice to bedtime stories for my kids. But we have to be aware of the perils and the limitations of these tools as well. And I think as AI just becomes more widely used and adopted, we have to be more careful. So that's a point with broader resonance. Even though people have the schadenfreude feeling of seeing this happen to a large, prestigious law firm, I cannot tell you.
- [56:27]
A
How much those AI stories and the hallucination stories chill me to my core. Somebody asked me the other day, how much do I use AI in my work? And I answered, zilch, zero, none. And one of the reasons is I cannot tell you, and I don't know, David, if this is your experience, I cannot tell you how many times I will ask AI a question that I know the answer to and it gets it wrong. Just a ton. And I know it will get better. Like everyone, every part, everybody who uses AI and likes AI then says to me, it is going to get better. I absolutely know that it is, but for right now, it is way too risky. Way too. And then there's the other element of my work is supposed to be my work. And so I know there are people who put their pros into, you know, say, a Chat GPT or Gemini or whatever, and say, clean it up, check for grammatical, and I think that's okay. Yeah. I mean, I don't do it. I don't do it because I want every syllable that I do to be every syllable from me. I can see it is not even a distant vision of a time when AI will be reliable and much more reliable and much better at actually writing prose. And that's going to be. That's going to be the moment where, from a standpoint of grading essays, if you're a law professor to a. From a standpoint of you're a consumer reading news, it's going to get very difficult to discern the difference between your media and person writing. And often your. Your. Your chat, your, you know, your LLM writing. And that is an alarming situation to me.
- [58:06]
B
No, absolutely. I was chatting with a friend of mine, a college roommate who's now a college professor himself, and he. He estimates that more than half of his students are using AI even though they're told at the beginning of the class, this is not a course where you are supposed to be using AI to write your essays. But that's the world in 2025, or I guess as of a few days ago, 2026.
- [58:25]
A
I do wonder if it might be time to bring back the old blue book.
- [58:28]
B
David, that's what my friend is doing. He has more in class exercises and blue books with the literal blue books where you have to hand write your answer.
- [58:37]
A
Yeah, I think the time has come. Let's make what old is old new again. On that note, we sadly got to jump. It's a very, very, very busy time when the United States attacks another country for all of us in the journalism profession. So we've got to move on to other things as well this morning. But Sarah will be back. She will be back this week. But in the meantime, David, thanks so much. I really appreciate you joining me.
- [59:06]
B
Thanks for having me, David. Always a pleasure.
- [59:08]
C
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