Trump Bypasses Congress on Iran

Summary

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Advisory Opinions (The Dispatch)

Episode: Trump Bypasses Congress on Iran

Date: March 3, 2026
Hosts: Sarah Isgur (A), David French (B)
Special Guests: Abrielle (High school student, Boston Latin), Texas A&M Law School faculty

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Episode Overview

In this sprawling, content-rich episode, Sarah Isgur and David French tackle the legality of the recent U.S. military action against Iran without Congressional approval, interrogate constitutional war powers, and explore how the courts and legal doctrine engage—or fail to engage—with executive action. The episode spotlights divergent interpretations of the Constitution's delegation of war powers, examines the limits and realities of the Office of Legal Counsel (OLC) opinions, and features a remarkable segment with a high schooler discussing the Supreme Court vagueness case Smith v. Goguen. The hosts close with a lively, sometimes tongue-in-cheek roundtable/Q&A recorded live at Texas A&M Law, including a spirited debate on James Madison’s legacy.

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Key Discussion Points and Insights

1. Housekeeping & Initiatives

• [00:47–06:05]
  • Correction regarding Justice Alito and State of the Union ("not true" vs. "you lie").
  • Preview of upcoming United States v. Hamani oral argument (Second Amendment case on drug users owning guns). Advisory Opinions is piloting animated explainer videos about Supreme Court cases with "Briefly".
  • Book buy promotion: Proceeds matched for donations to the Supreme Court Historical Society’s Hometown Program, supporting high school legal education. If listeners buy 250 copies, Chris Christie will return to the podcast with a "funny story."
  • “We had like more than a million listeners last year at Unique Listeners... So I know you guys can buy.” (A, 04:08)

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2. U.S.–Iran Conflict: Constitutional War Powers

David's Thesis: This Is War, Congress Must Declare It

• [06:46–15:51]
  • Cites lack of an “imminent threat” as reported by Pentagon.
  • Distinguishes between executive authority for truly imminent defense and broad, premeditated offensive action.
  • “This is about as directly comparable to an invasion of a sovereign country and clear unequivocal act of nation state war that you could possibly imagine. There was no reason not to go to Congress...” (B, 08:09)
  • Recalls historical reliance on Congressional authorization for armed conflicts (Desert Storm, Iraqi Freedom).
  • Critiques the ever-expansive OLC opinions that enable presidents to take military action without Congress.
  • “Can the defense budget get so big that it outgrows Article 1? That just strikes me as bizarre.” (B, 13:42)
  • Highlights the difference between international legal justifications and American constitutional requirements.

Sarah’s Response: Legal Reality is Political Acquiescence

• [15:51–23:23]
  • Notes that the Gang of Eight (congressional leaders) were briefed with claims of an impending Iranian attack, possibly as defense.
  • Discusses ambiguity about what constitutes “declaring war,” the historical commander-in-chief role, and the unliquidated (unsettled) boundaries at the Founding.
  • “Originalism becomes pretty hard about how these two powers interact.” (A, 18:09)
  • Emphasizes political question doctrine: Courts won’t intervene; if Congress wants to limit president, Congress must act.
  • “It's up to Congress to actually flex its wimpy, wimpy little muscles.” (A, 21:31)
  • Quoting and discounting OLC’s pro-executive bias.
  • Warns that practical factors (scope, duration, nature of strikes) may matter more than legal definitions alone.

Major Exchange: Is Preemptive Defense "War" or Not?

• [26:09–29:56]
  • Sarah queries whether a multi-week campaign to degrade Iran’s ability to harm U.S. forces is "war."
  • David: “It's 1 million percent a war. The only variable here is duration, which is really not completely up to us... The enemy gets a vote, as they say.” (B, 26:55–27:03)
  • Points out how historical parallels (Pearl Harbor, etc.) show that even time-limited attacks are war if purpose and scale merit.

Consensus & Core Insight

• [29:56–31:37]
  • Both agree: The fate of war powers is a political, not a justiciable, question. It's up to Congress—and, ultimately, voters—to check executive adventurism.
  • “Here you've got no adult driving the car. It is really just us as voters who are left...” (A, 30:12)
  • Both hosts express deep dissatisfaction with Congress's failure to assert its prerogative.

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3. Supreme Court Historical Society Hometown Program: Smith v. Goguen

Interview with Abrielle (Boston Latin freshman)

• [34:25–48:02]
  • Case Summary: Massachusetts youth arrested for wearing an American flag patch "contemptuously" (Vietnam War era; prosecuted under flag desecration law).
  • Legal route: Local prosecution → state courts → federal habeas → Supreme Court.
  • Core legal issue: Law struck as “unconstitutionally vague” under the 14th Amendment.
  • Abrielle explains both the vagueness doctrine and how the moot court process encouraged historical perspective and argument from the (historically losing) side.
  • Notable: “I do love learning things and I do love sort of settling disputes and making people have the ability to agree on things... what you need is common ground. And I think that the law really does provide that.” (D, 47:02)
  • Hosts marvel at both her expertise and the value of hands-on legal education.

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4. Q&A and the Madison Disagreement: Live at Texas A&M Law

Fun Opener & Structure

• [55:16–57:05]
  • Law professor Mark Burge’s tongue-in-cheek “You might be an AO fan if...” monologue.

Congress, the Presidency, and the Constitution’s Structure

• [57:05–65:28]
  • David French: Congress is meant to be supreme (Article 1), not "co-equal."
  • “We are not designed to have coequal branches. It's Article 1. It's Article 1 for a reason. Think of it like this. You can't spend a dime of money unless it comes through Congress. And Congress can fire every member of the executive branch...I call the person who can fire me boss.” (B, 57:27)

On Madison’s Vision and Its Limits

• Explains Madison’s mistaken belief in institutional loyalty over party/individual loyalty.
• Modern party dependence has crippled the Madisonian system—it takes humility and imagination to preserve true checks and balances.

Presidential Immunity, Youngstown, and the Pathologies of Power

• [66:25–71:43]
  • Current Supreme Court (Trump v. United States) expanded presidential immunity, often inconsistent with self-described textualist/originalist methods.
  • “Youngstown says the president is accountable for violations of the law. And Chief Justice Roberts said yes, but...the law, properly conceived, excludes the President from its scope.” (H, 71:34)

Expanding Immunities—Barriers to Accountability

• [71:43–75:35]
  • Layers of immunity (qualified, absolute, etc.) have tended to accrue rather than dissipate.
  • Political actors refuse to empower adversaries or diminish their own power for the good of accountability.

Political Theory: Winners' Hubris & Institutional Reform

• [75:35–79:43]
  • The myth of the "permanent majority" prevents meaningful reform. Each winning side believes their victory is total and will endure, so they resist limiting their own power.
  • Sarah: “When you win, it reverberates back on your theory being correct, and you see it as this massive mandate to your theory of the electorate and the election... And it makes no sense.” (A, 79:23)

Endgame: Why Sarah "Hates" James Madison

• [79:52–86:25]
  • Lively roundtable; David extols Federalist 10 (“let a million flowers bloom”), while Sarah needles Madison’s later years as a Jefferson’s errand boy and partisan.
  • "And now whenever I see his face, I want to punch it." (A, 84:37)
  • David: “There’s an interesting conversation...about our founders as political philosophers and our founders as politicians. And James Madison as political philosopher is just a gold mine of wisdom...Then a lot of these other founders couldn’t walk the talk once they got into the grimy, messy, dirty world of politics.” (B, 85:39–86:25)

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Notable Quotes & Memorable Moments

• David French on War Powers:
  “If this strike isn’t war, then I’m sorry, what is war?...I guess I’m just at a loss at this point as to what Article One is supposed to be for if it’s not for an attack on a sovereign nation in the absence of an imminent threat...” (B, 14:10)

• Sarah Isgur on Congressional Abdication:
  “If we’re describing legal reality, it’s up to Congress to actually flex its wimpy, wimpy little muscles.” (A, 21:31)

• Abrielle on Legal Reasoning:
  “You’re not really just learning about the case. During the first few weeks, it’s a lot of what is the structure of the court...Then it’s not, oh, what happened? It’s what do you think about what happened?” (D, 38:02)

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Timestamps for Key Segments

• Book promo & Hometown Program: 03:05–06:05
• War powers deep dive and OLC opinions: 06:46–15:51
• Gang of Eight, defensive v. offensive war: 15:51–23:23
• Nature, scope, duration of “war”: 23:23–29:56
• Political question doctrine voiced: 29:56–31:37
• Smith v. Goguen (Hometown Program interview): 34:25–48:02
• Texas A&M Law “Mini Live Show” and Q&A: 55:16–86:25 (opening monologue at 55:16, Madison debate at 79:52)

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Summary Takeaways

• The U.S. strike on Iran is—by historical and constitutional standards—an act of war, and failing to consult Congress violates both the letter and spirit of Article 1.
• OLC opinions are politically convenient but not truly binding law; only meaningful Congressional action can correct executive overreach.
• The American system's checks and balances were built for a different era and different personalities—primarily George Washington—and modern party dynamics complicate the Madisonian vision.
• Legal education programs like the Hometown initiative foster sophisticated legal thinking, even among high schoolers.
• The Founders were both philosophers and politicians—sometimes those roles aligned, sometimes not—and romanticizing only the philosophical side distorts our understanding.

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To engage further:

• Consider supporting the Hometown Program via the Last Branch Standing book promo (ends March 17).
• Next episode: U.S. v. Hamani and a continued dive into war powers.

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Transcript

[A]

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And if we got a lineup for you, we are going to talk about the legality of America's interventions in Iran, as well as talk about Smith v. Gauguin, a case from 1974 with a freshman in high school. Don't worry, we'll explain. And finally, our Q and A from Texas A and M, where I lose it on James Madison. David, you do.

[B]

You do. Sarah, I have to say that this has been one of our most enjoyable disagreements.

[A]

It turns out I hate James Madison.

[B]

Sarah hates James Madison. I dedicated my book to him. But just to be clear, Sarah doesn't hate Federalist Papers. James Madison, whom I adore, she is talking about post Federalist Paper James Madison. And there's a lot more legitimate beef there.

[A]

So all this on Advisory Opinions. All right, David, let's start with some housekeeping. First, a quick correction. I said that Justice Alito mouthed, you lie at President Obama's State of the Union. It was actually he mouthed not true. I was conflating him with Congressman Joe Wilson, who shouted, you lie at a different President Obama speech. So Justice Alito mouthed not true when President Obama was talking about Citizens United. My bad. Apologies to all involved. Next up. So we're going to talk about United States v. Hamani on the next episode. The oral argument is going on on Monday and this is a case about whether a drug user can be barred criminally from owning a gun. We're back to 9.22G as we always are, David. But SCOTUS blog and advisory opinions have decided to do a different thing to get y' all up to speed. Before we break down the oral argument, we have worked with briefly. They are a tech enabled legal content company whose mission is to make legal information more engaging and accessible. And I think you will think they very much need did that here. It was actually started by a former lawyer, David, which will make so much sense when you watch this because they basically take their deep legal knowledge and combine it with design and animation to produce this type of like visual, sophisticated content for law firms and companies and courts and stuff. So this Hamani case was so perfect for using this type of video and we're going to make more of them. It's going to be really fun. So look for more of these during the term. We'll flag them for you. But it's a perfect way to get up to speed before we talk about the oral argument.

[B]

I literally can't tell you how excited I am about this. I just think this is like blue ocean stuff. How many animated videos of key Supreme Court cases, like shareable animated. Well done. Talk about trying to meet the moment where people's, people's interest is. I think this is great and we're

[A]

going to do more through the rest of the term. So hopefully you guys like the Himani one and we'll flag when we have more coming out for some of the cases yet to come. Next, David, we have a special offer for podcast listeners that will run for two weeks. So until March 17th. You've got two weeks to do this. It turns out, David, I learned that we actually can find out exactly how many books of Last Branch standing are purchased every week, like to the number. And I thought this was kind of a fun thing. So for every book that is purchased for the next two weeks, we are going to match the price of the book and donate that money to the Supreme Court Historical Society's hometown program where they sponsor high school students to teach them like in depth about a Supreme Court case that took place in their hometowns. They moot the case. They work with judges and, and state justices in their home state. And it's a really cool program. So there's no limit to this. However many books you guys buy in the next two weeks, we're going to donate $30 to the Hometown program for every single book. Now, if you get to 250 books over two weeks, that's not that many. David, we have. We had like more than a million listeners last year at Unique Listeners. So I know you guys can buy,

[B]

which still blows my mind, Sarah. Which blows my mind.

[A]

1.4 unique listeners last year. So 250 books in the next two weeks. First of all, that would be $7,500 that would go to the Supreme Court Historical Society Hometown Program. And Chris Christie has offered to come back. He has a funny story that he has not told you guys. He will come back and tell the story if we hit 250books. I talked to him last night, David. He has confirmed he's ready to go.

[B]

So would this be before or after my debate with Governor Christie at UChicago over the legality of sports gambling? And given that, I think it's going to be a very congenial debate. Like I'm, I'm really hoping he doesn't Marco Rubio meet circa 2016 end my career for a time period, you know. So I've come up with a name. The Lark and Hyde Park.

[A]

That's pretty good. The Lark And Hyde Park. Okay.

[B]

The Lark and Hyde Park. So will this be before or after the Lark and Hyde Park? Because I, I could be just seething with resentment if he's publicly humiliated me.

[A]

I don't know. When is the Lark in Hyde Park?

[B]

April 9th. April 9th.

[A]

Oh, yeah, no, we'll do this before then.

[B]

Oh, good. Oh, so I can talk trash.

[A]

Listeners have until March 17 to buy the book. And we'll match the book price and give the money to Hometown's program. And if we hit 250 or above, Chris Christie's gonna come back on and tell us his funny story. And maybe I'll tease out a little bit more about the story as over the course of these two weeks as well. But for now, let's just say it's going to be good. David, let's start this podcast with some news of the day, obviously over the weekend. We are now engaged in hostilities with Iran. You published a piece in the New York Times that I think I disagree with and I wanted you to walk through your thesis and then to fight.

[B]

So my basic thesis is this is a war. Congress has to declare war. This is not an immediate responsive military action to an emerging imminent threat to ourselves or to our allies. One of the things that came out just late last night was that Pentagon officials said no, there was no indication that Iran was about to strike US or Israel with missiles. Now, if you did have a situation where we did have indication that there was an imminent missile threat to US forces in the region, of course, of course you could have. The commander in chief has that authority. Just as if we detected the fleet moving to Pearl harbor, positioning itself on December 6th. And FDR saw that he could have ordered an attack on the Japanese fleet before it launched its planes in Pearl Harbor. There was actually some combat before the full on attack on December 7th. So there's no indication of any kind of imminent threat. We did not have a UN Security Council resolution, which we are by treaty part of the United Nations Security Council process. We did nothing that George W. Bush did or George H.W. bush did before Operation Iraqi Freedom or Desert Storm, for example. And so this was a classic case. If there's ever a case where you can say this was an and we were attacking a sovereign state, not a non state militia. This is about as directly comparable to an invasion of a sovereign country and clear unequivocal act of nation state war that you could possibly imagine. There was no reason not to go to Congress again because we didn't have an emergency unfolding threat. We had weeks of military buildup that we were all watching. And so this is an absolute classic example of, yes, you need a declaration of war or at the very least, an authorization for the use of military force. And I think I'm a little weary of the argument that sort of says, well, lots of presidents have deployed force before without Congress, when we actually have very recent. And the most comparable uses of force, the most comparable have all involved congressional authorizations, whether it's Desert Storm, Enduring Freedom, Iraqi Freedom. We've had these authorizations, and we've been operating under them for years. So, for example, a lot of people who've tried to criticize Obama's drone campaign, say in northwest Pakistan, these were drone campaigns under the Afghan use of military force. Very, very, very clearly. I think one of the things that in our weariness and cynicism about the moment and our weariness and cynicism about the use of presidential power, we can't use weariness and cynicism as an excuse for acquiescence for the violation of the constitutional structure. And it's interesting, I forwarded to you, and I'm sure we're going to talk about this, this really good piece by Jack Goldsmith, which I take as almost a credit more than a legal analysis, because what Jack basically says, friend of the pod, I have utmost respect, is, you know, look, there's been OLC legal opinions just going back for years and years saying that presidents have the ability to use force in tons and tons of circumstances. And, you know, it's interesting, I went back and I looked for my piece, and there was actually an OLC opinion, Sarah, before Operation Iraqi Freedom, that says, no, you don't need a congressional authorization for Operation Iraqi Freedom, okay, to invade Iraq, to topple the regime. And at that point, something inside of me kind of snapped about OLC opinions about the use of armed use of force. Because at some point, you have to realize there's two different kinds of legal opinions you can get. One kind of legal opinion is, hey, lawyers, is there an argument for what I'm going to do? That is one kind of legal opinion. That is what, you know, when, when you want to exercise a particular mission and you're wanting to sort of paper it up, you ask for legal authorities, you ask for legal opinions authorizing what you're wanting to do versus can I, I need an opinion. Can I do this? And I would have more credibility in the cascading series of OLC opinions that have seemed to always say, the president can do it if there was really salient Examples of the DOJ raising its head and saying, you can't do this massive military operation that you're planning on doing. And the President saying, well, dang it, my lawyer says I can't do it, okay? And at that point, I think where the Credit Corps comes in is I'm not necessarily saying that Jack is endorsing the way. There have just been serial OLC opinions allowing presidents to do the military actions they wanted to do anyway. But Decree du Corps comes in, and this is where I'm completely with Jack. Is that really, truly. Yes, this is a legal argument. Yes, it's a constitutional argument, but it's also one of those constitutional arguments that's going to be mediated through political branches, is going to be mediated through the interplay between Congress and the President. And the fact of the matter is that Congress has in many ways just abdicated. Just abdicated. And if you take the argument that the OLC says I can do it and I can kind of come up with a legal justification for the use of force under the international law of armed conflict, which is not what we're talking about right now. We're not talking about the legal use of force under international law of armed conflict. What we're talking about is the American constitutional law. American law as to when we can engage forces that if we're just going to simply say, well, this is. OLC has said it's okay, and Congress has funded this big military, well, that's that for this constitutional structure. That makes very little sense to me there. There's. Here's the closing paragraph from Jack's piece, which I think is profoundly depressing. Profoundly depressing. He says, as Walter Dellinger wrote for OLC 30 years ago, in establishing and funding a military force that is capable of being projected anywhere around the globe, Congress has given the President as Commander in Chief, considerable discretion in deciding how that force is to be deployed. Congress, in giving the President a gargantuan military and in its oversight, in quotes and lack of imposed constraint, is responsible for the use of force against Iran, for better or worse. As the President, I so strongly disagree with that. It's hard for me to express how strongly I disagree with that. We have created a vast military apparatus in large part and as a outgrowth of the Cold War, not necessarily to enable the use of force at the President's whim, but to determine great power conflict, to deter war. And by granting and without that large scale force that we had, we could never have deterred the Soviet Union. The bargain was not we create this giant force, which was intended to deter a military force far stronger ultimately, at its height, than Nazi Germany or Imperial Japan ever were, that we created this immense force to deter global war. But in so doing, we effectively eliminated the declare war provisions of Article 1 of the Constitution. They're just gone because we created. Now, I'm not saying that that's Jack's constitutional argument. I'm really more beefing with Dellinger here. They quote. I guess I'm kind of at a loss as to what does the declare war provision then mean. Can the defense budget get so big that outgrows Article 1? That just strikes me as bizarre. So I think we'd probably violently agree. Not to use the word violently in this context, but we'd probably violently agree that under international law, we have justification for striking Iran. We absolutely do. Under international law, there's no question. But not every law that is justifiable under. I mean, every conflict that's justifiable under international law is wise or prudent for us to get into. And that's why the political branches are supposed to divide this authority. They're supposed to divide this authority. And if this strike isn't war, then I'm sorry, what is war? You know, we had Mark Wayne Mullen went on. Senator, he was like, this isn't a war. I'm thinking, what are you talking about? I mean, this is the equivalent of like a Pearl Harbor. That's war, guys. That's war. So if this isn't war, then what is war? So I don't know. I guess I'm just at a loss at this point as to what Article one is supposed to be for. If it's for. If it's not for an attack on a sovereign nation in the absence of an imminent threat to the United States.

[A]

So we don't disagree on everything. We definitely disagree on some things. I'm not totally sure what they are, but I'm going to fight with you anyway. Let's start with your initial premise. So on Saturday, before the initial strikes, the Gang of Eight was contacted. The Gang of Eight are, you know, the members of Congress who are briefed on classified intelligence matters by the Executive. Just for those, by the way, just fun facts of who's in the Gang of Eight. Right now, it's four Republicans and four Democrats. Actually, it will always be four Republicans and four Democrats. So it's the House Speaker, Mike Johnson, House Intelligence Committee Chair, Rick Crawford, Senate Committee Chair Tom Cotton, Senate Majority Leader John Thune, House Minority Leader Hakeem Jeffries, House Intelligence Committee Ranking Member Jim Hines, Senate Intelligence Committee Chair Mark Warner, and Senate Minority Leader Chuck Schumer. So on Saturday, a senior Trump administration official said that U.S. intelligence, quote, had indicators, end quote, that the Iranians were going to use their missiles preemptively, but if not simultaneously to any American action in Iran. The president decided he was not going to sit back and allow American forces in the region to absorb attacks from conventional missiles. We had analysis that basically told us if we sat back and waited to get hit first, the amount of casualties and damage would be substantially higher than if we acted in a preemptive defensive way to prevent those launches from occurring. So I'm not sure it's quite as clean cut as what you said. Now, again, I am trusting, reporting on someone who said what the administration told the Gang of Eight. So I am not.

[B]

Are you aware of the reporting yesterday that that was not accurate, that Pentagon briefers have said that there was no indication of an imminent Iranian attack.

[A]

So this is what the Gang of Eight was told on Saturday, whether they now want to back away from that or whatever else. But on Saturday, I don't think anyone has said that's not what they were told.

[B]

No, no, I'm very aware of. The administration can tell things that are later turn out not to be true that are true.

[A]

Yeah, yeah. I'm not really arguing that point, but it does make it a different analysis in my view of whether this was a wholly aggressive versus defensive posture. Okay, number one. Number two, let's just read some of the Constitution real quick. I think everyone knows these parts, but we'll do it anyway. So section 8, the Congress shall have power to declare war, grant letters of mark and reprisal, and make rules concerning captures on land and water. There's like a, you know, thousand law review articles on what the declare war power means. I'm not sure it's as simple as. Any time there are hostilities abroad, it is only up to Congress to decide whether we're going to engage in hostilities. So Section 2 of Article 2, the President shall be commander in chief of the army and Navy of the United States and of the militia of the several states when called into the actual service of the United States. So he's the commander in chief at the founding. This is all just going to look so, so different than it does now. There was no standing army. And again, I highly recommend Lindsay Chervinsky's book on John Adams presidency because in the early part of the Adams presidency, you know, in 1796, 1797, they do create a Standing army because of the hostilities that are starting up with the French and then they disband that standing army. So it's like, I think, kind of hard for us to imagine a world in which this constitution is getting liquidated where, you know, we don't have a standing army. Oh, we do for a couple years because we might need to go to war with France. We're not totally sure. But even there, it was really John Adams that was making the decision of whether France had crossed a line, the whole XYZ affair. And again, I'm only using this to show how unliquidated I think both of those declare war power and commander and chief powers really were even at the founding, in the same way that lots of other powers were a little bit unliquidated, I guess is the best term I can come up with. Because it was like, George Washington's going to be in charge, this will be fine. Nobody is more trustworthy to step away from power, et cetera, than George Washington. So yeah, Congress declares war and George Washington's commander in chief. And let's not think too hard about that. And so when we fast forward to today, originalism becomes pretty hard about how these two powers interact. Let's just say that. Okay, another point that Jack makes that I think is really important to underline and you, it sounds like, totally agree with this. This is not a legal dispute in the sense that it can end up in court, right? This is a political question. Like as in political question doctrine. As in even if you tried to sue the court to be like, no, no, no, no, no, no, no, we don't do this. Get out. Like, we don't want any part of this. This is for you two to work out. And so even if you think, for instance, that Congress, in building up such a huge military standing army, Navy, Air Force, space force, et cetera, has sort of unconstitutionally delegated its declare war power. That is a political dispute. It is not. This is not a non delegation issue because that would imply that you could go to court to enforce it. You cannot. It is only a political dispute. And I think that makes it really different. I think you're describing what you want to be. The should you wish Congress were in this game, I do too, obviously, right? You and I both want Congress to be a branch of government, but if we're describing legal reality, it's up to Congress to actually flex its wimpy, wimpy little muscles. And look, it's not, not doing that. So this is the resolution introduced by Senator Tim Kaine. It was introduced in January, by the way. Joint resolution section 2, removal of United States Armed Forces from hostilities within or against Iran, blah, blah, blah. Pursuant to stuff, Congress hereby directs the President to remove the United States Armed Forces from hostilities with or against Iran unless explicitly authorized by a declaration of war or a specific authorization for use of military force. You know, unless it's defending against an attack, unless it's collecting or analyzing intelligence, assisting Israel is on here. You know, there's, there's caveats to it, et cetera. David, it looks like this actually is going to come to a vote and it looks like it might actually get a majority in the Senate, even potentially. I don't know whether it would get a majority in the House. But that's all to say, you know, they're not totally dead, they're just mostly dead, Princess Bride style. And I think, you know, when you talked about, I don't know what declaring war is if it's not this. Look, I actually don't put a lot of stock into OLC opinions when it comes to presidential vis a vis congressional powers. Because OLC represents the Executive, right?

[B]

Exactly.

[A]

The Office of Legal Counsel is in the Department of Justice and they are there to make expansion legal and constitutionally sound. But expansive arguments on behalf of executive power, same as the Department of Justice does when it goes into the Supreme Court. They represent the Executive Branch, they represent the President. It's going to be like not in their job description, slash against their job description to somehow say, like, well, this is ambiguous, but really like Congress, you know, does, you know, has this power and the presidency doesn't. So I discount OLC opinions when it's in that context. That being said, you know, when it talks about what a war is, I think these are the right factors, nature, scope, duration. I think duration matters a great deal. And this goes back to the very first point, David, about what the Gang of Eight was told. Not because I care what the Gang of eight was told, but what the administration thought was their justification. If this is in very short duration, if it is limited to the types of attacks that I think can be viewed to prevent future attacks on American personnel, the kind that we've seen now for decades, frankly, then in hindsight maybe we won't have thought this is a war. Now it's interesting to me, David, that like literally everyone in the administration is calling it a war because I think they want to call it a war. Not for legal reasons. I think in a tail wagging dog way they would like America to be on a war footing. But it doesn't really make it a war per se, unless I think we do sort of hit that nature. You know, nature being, for instance, troops on the ground would certainly, I think, be very different to me in terms of nature, scope, how many people, how many resources are involved, and duration, obviously the amount of time involved. So I think I've picked a few fights there. And David, before you answer any of those fights, I do have a question from a listener for you. I thought that Executive Order 12333 issued in 1981 was still in force. It states no person employed by or acting on behalf of the United States government shall engage in or conspire to engage in assassination. Why wasn't this a violation of that executive order?

[B]

Well, the very quick short answer is Israel did it. That's the answer. Well, rarely do we actually have a really quick short legal answer.

[A]

Sarah, I love that.

[B]

Okay, that was an IDF airstrike on Khomeini. So we provided intel. Apparently, reportedly, you know, there's a lot we don't know, but the short answer, so. Man, that felt good.

[A]

Okay, that was nice. Okay, then here's my question to you. We both agree that this was a provoked attack from the United States. Iran has been funding terrorism to attack the United States has been itself attacking US personnel abroad whenever possible, causing as many casualties as possible. They are bad dudes who have done bad dude stuff to us.

[B]

Not just bad dudes in general.

[A]

That's right, to us.

[B]

Yeah.

[A]

So if we conduct a three week campaign to take out their abilities to continue to do bad stuff to us, is that a war or is that the commander in chief powers used in a defensive way?

[B]

It's 1 million percent a war. The only variable here is duration, which is really not completely up to us. Let's go back to the.

[A]

The enemy gets a vote, as they say.

[B]

Exactly. So let's go back to December 6, 1941. What were the Japanese hoping to accomplish? What they were hoping to accomplish is they viewed us, I think rightfully so, as their number one threat to all of their war aims and ambitions. So they wanted to very quickly, very rapidly disable our ability to be a threat to their war aims and ambitions. And so they didn't just attack, you know, the U.S. pacific Fleet at Pearl harbor, they attacked U.S. forces in the Philippines. They attacked all over and were remarkably successful. Sarah, we forget how successful Japan was for. Until Midway. Well, really until the Battle of the Coral Sea before Midway. But let's imagine then Japan takes the Philippines pretty quickly. They sink most of our Pacific. The battle, you know, sink or disable a big chunk of our battle fleet at Pearl Harbor. And then they say, we're done now, guys, we're done. Well, we would not have consented to that. Right. We don't consent. We don't say, well, I'm glad you accomplished your war aims, but now we have war aims. And essentially, and I'm not comparing this to Pearl harbor from the same moral standpoint. I mean, this is very different. And I can do chapter and verse on our legal justifications for war with Iran. We have abundant legal justifications for war with Iran through self defense and defensive allies. But that doesn't mean the Constitution isn't saying that when you have justification for war under the international law of armed conflict, which barely existed at that time, you don't have to go to Congress. If you take this case to Congress and you make a case to Congress for this action, and if I'm sitting there and you articulate, here's what we want to accomplish, here's why we think the goals are reasonable, here is our strategy for it not spiraling out of control, et cetera, et cetera, et cetera,

[C]

I would probably vote yes.

[B]

You know, as I put it this way, you need to have an attainable goal, you need to have competent leadership. In those circumstances, we don't even know what the goal is. And in interviews, for example, in just on Sunday alone, he said the Iran mission was about regime change. He said it was about threat reduction, he said it was about getting a deal, and then it was about regime change again. And so, you know, this is not the situation if you don't know what your goal is. I'm not voting for this war. The reality is that we have launched a war. And maybe, maybe it's the case, Sarah, that after four days, four weeks, three weeks, two weeks, Trump just decides on his own, I'm done. Maybe it will be done or maybe it won't. I'm also absolutely going to agree with you that we can't look at these OLC opinions as the last word. We just can't. They're the product of the executive branch. And if you're going to advocate for a unitary executive, you cannot then wave around this opinion.

[A]

All right, David, we're going to leave it there and come back to war powers for our next episode where we'll also get to talk about the Hamani oral argument. This is the guns and drug case as well. But I think the punchline for this conversation is that this isn't a court judicial Article three question. This is a political question that will be left to Congress, but more to the point, left to voters who elect members to Congress of whether they want to check the president, whether they care enough to actually vote in people to Congress who will check executive power. And in that sense, it's a little different than our conversations about Congress. Do your job. Where I think the court does play a role in saying, you know, executive, you must, you know, get on your side of the car and quit touching Congress on that side of the car, and vice versa. Here you've got no adult driving the car. It is really just us as voters who are left to elect presidents who will abide by that or interpret it, et cetera, and elect members of Congress who will actually stand up and commit to their role. So, again, we'll do war powers next time because, boy, is that a mess. If you talk to people who have worked in senior positions on the Hill, one of the first things they will tell you is what a mess that is. And of course, if you talk to people in the executive branch, many of them will tell you that they think it's an unconstitutional encroachment on Article 2 powers. So nobody in any branch I've talked to is happy with war powers.

[B]

I'm so excited to have that conversation because it's actually one that we probably. So we're. Can you believe we're in year seven of our podcast?

[A]

So, yeah, so my wedding anniversary predates us starting this podcast only by about, like, eight months.

[B]

It's amazing.

[A]

All right, David, we'll leave it there. We'll talk about war powers next time when we talk about Himani in that gun case. And we come back, we're going to talk to Abrielle, a freshman at Boston Latin in, well, you guessed it, Boston. And the case that she did for the hometowns program. And you guys, I. She is a freshman in high school. You're going to be blown away that at least this isn't a law student or maybe even a graduate of law school. I don't. It blew me away. I don't know, David.

[B]

Yeah, same. Let me just say this. If you had freshman me on this podcast, it would be an absolute train

[A]

wreck when she starts talking about the procedural history through the state courts and then how it moves over to federal court on habeas. I don't know how many law school graduates can explain how that works. So stay tuned for Abrielle coming up next and the hometown program that we hope you guys will all consider supporting by buying a copy of Last Branch Standing over the next two weeks until March 17th. I don't usually think much about a mattress until I sleep on one that truly feels different and that is the Sedona Elite from Brooklyn Bedding. Right away it feels stable and solid, like something designed to last for years, not just a short stretch. And that level of thoughtful design really comes through in everyday use. Every Brooklyn Bedding mattress is thoughtfully designed and assembled in Arizona, which means no middlemen, just quality craftsmanship at a fair price. They have options for every type of sleeper, including hard to find sizes if you tend to sleep hot. Their Glaciotex cooling covers and copper infused temperature regulating foam are built to keep you comfortable through the night. Brooklyn Bedding is also endorsed by the American Chiropractic association for proper spinal alignment, made 100% fiberglass free and comes with a 120 night risk free trial. And with awards like best mattress from CNET and best hybrid mattress from Wirecutter, it truly stands out. Go to BrooklynBedding.com and use my promo code advisory at checkout to get 30% off site wide. This offer is not available anywhere else. That's brooklynbetting.com and promo code advisory for 30% off site wide. Support our show and let them know we sent you after checkout. BrooklynBetting.com promo code advisory. So David, to talk about this hometown program, I want to bring in a graduate of the hometown program. She is a freshman at Boston Latin, here to tell us all about the program that she did. Abrielle, thanks for joining us.

[D]

All right, hi.

[A]

So first of all, we realize that this is during the school day and you're a freshman in high school. Are you in school right now?

[D]

I'm not.

[A]

Are you skipping school to do advisory opinions? I am.

[D]

Don't tell my teachers.

[B]

We endorse. This is a good use of. We'll call this a version of civil disobedience. I like it.

[A]

Well, that actually will transition nicely because I want you to tell us all about the hometown program and which case you did for your hometown program.

[E]

Great.

[D]

So I did the hometowns program last fall and the case we were discussing then was Smith v. Gogan, which started in Massachusetts and thus hometowns.

[A]

Yeah. So for all of these hometown programs, they pick a case that actually is tied to where the students live, which I think is pretty cool because we've not talked about Smith v. Gogan on this podcast at all. So this makes you more of the expert on this case than we are given how much time and hours you put in to learning about this case. We give us the law student notes that we need on what this case was about.

[D]

It all starts during sort of the time of the Vietnam War. It's very anti war protests and there's a lot of patriotism going around. It's very, very high intensity. And so there is this youth who is walking down the streets of Leominster and he's got an American flag patch on his jeans. And the police look at that and they say, that is, that's contemptuous. And they arrest him for treating contemptuously the flag of the United States under the then Massachusetts flag code at the time. So there is a bunch of dispute on this within public media. And basically this case goes down all the way from like, really, really low district court stuff. And then it goes all the way through the state system, goes back to federal, goes back to federal court through a habeas proceeding, and then goes all the way up to the Supreme Court.

[A]

Wow. Okay, so what are the main legal issues when it gets to the Supreme Court?

[D]

Yeah, so by the time that it gets to the Supreme Court, they're starting to argue about the actual legality of the flag code itself. So there was a little bit of disagreement with the word contemptuously. It was viewed as first vague and also over broad. Basically, there was a lot of issue with how contemptuously was being defined because no one really knew what it meant and nobody knew the scope of what it could punish.

[A]

So this sounds like this isn't really a First Amendment case. This is a vagueness case. This idea that the 14th Amendment due process clause means that you need to have some idea of what laws prohibit and so some idea of what actions of yours might violate the law. So what did the Supreme Court decide?

[D]

Yeah, so they decided 6, 3 that the law was unconstitutionally vague under the 14th amendment and due process. They also did touch on the First Amendment a little bit with over breadth, but they decided not to actually state their opinion on whether Gogan's actions were free speech or not.

[A]

Okay, so what did you actually do to learn about this case? I know there's courtrooms involved. Like, this is pretty in depth stuff that you guys do.

[D]

Yeah, I think one of the major benefits of Hometown is that you're not really just learning about the case. It is a lot of lead up. So during the first few weeks, it's a lot of what is the structure of the court, how do they work, basic facts and all of that. You get a ton of also really great guest lectures on this. And then sort of during the next month, you move into

[A]

what is the

[D]

procedural history of the actual court and you move into what actually happened. Every class is very, very in depth. It is treated a little bit like a law school in the fact that you are given case packets and things to read beforehand. And then during the class, it's not, oh, what happened? It's what do you think about what happened? So it's really a more high level discussion that you get there.

[B]

Well, that leads me to my que. What my question, what do you think about what happened?

[D]

Ah, so I think I have a little bit of a skew based on viewing this from the modern lens. Like I say, there was a lot more disagreement back then, especially during the height of the Vietnam War. And so, I mean, I think that looking back, the flag statute was definitely difficult to interpret. I think that contemptuously can be defined in a lot of different ways. But I also completely understand any arguments that can be made to define contemptuously within a legal setting. So I'm quite, I think, open to new interpretations of this case as time goes on.

[A]

Did y' all moot this case and which side were you on?

[D]

We did moot this case. It was really, really fun. So I was on the side of Smith's attorneys. So kind of on the wrong side of history, but make do with it. It was really quite interesting to see how the historically losing side argued. We got to do a bunch of research on what they were actually, what arguments they were actually presenting in front of the Supreme Court. And even though it was. Was kind of a lost cause, we did not win that moot court. I honestly just think it was a great experience because no longer was I just looking at everything through a lens in which, you know, everything had already been decided. And I wasn't looking at it through a more modern lens, but I was looking at it through the perspective of somebody who didn't win historically and actually found that some of their arguments were quite compelling. But that's not my decision to make.

[B]

It's funny, when I was getting ready for the podcast and I had forgotten about this case. It's a marvelous case. It's a marvelous case. For this exercise, I started thinking about, well, how the word contemptuously in the aftermath of this case. It just seems that anything goes with the flag. And I'm so fascinated by this word contemptuously because now you can buy for our 250th to celebrate America, American flag underwear, contemptuous American flag socks, covering your feet with the flag is that contemptuous? It's a really interesting exercise in interpreting words. Did you guys get into. When you're mooting this, were you mooting it as if you're in the Vietnam era, or were you also sort of bringing into the case some of your modern sensibilities and sort of the modern way in which we use the flag bag as well?

[D]

I think we did try to do it in a more historical light. I think that obviously some modern biases did slip through, as it would in any moot court. But I really do think that the student justices and the professional justices within the moot court were quite good at taking into account the historical factors in this.

[A]

So here's what's fascinating to me. This case is decided in 1974, and obviously in 1989. There's going to be a case that we do talk about in this podcast, Texas vs. Johnson, which is the flag burning case, where there's clearly a speech element. Right. He's burning the flag to send a message, a message that he's quite clear about. It's at the Republican convention in Texas where Reagan's getting the nomination. He's burning the flag to protest, you know, foreign wars. Feeling very modern, actually. But in this case, it was really fascinating to see the justices acknowledge that

[F]

there's not a great record here.

[A]

Like, all we know is that he's standing on a corner, there's an American flag patch on his jeans, and at some point these kids laugh. That's it. Like, I don't even know what they're laughing at. But so when we talk about why they didn't really reach into the First Amendment analysis and whether the flag could be speech, this was in some ways the worst possible case, or maybe the best possible case, because there doesn't seem to have been a specific message, at least not one in the record. And so I really liked that this case for you guys was sort of everything you could want it to be and narrower than you could want it to be. Like, I don't know. I think this is a really, really fun case, David, that we should probably be talking about more as something that's First Amendment adjacent.

[B]

Oh, I completely agree. It's a super fun case. I'm glad that Abrielle said what she said about sort of looking at it in modern sensibilities. We're looking at this case 52 years after it was decided, with the American flag chaos that we all live in today. Yes. I mean, it is American flag chaos. And so from my standpoint, because I'M so used to, and I think this is an interesting lesson, how we get so used to the cultural effects of legal decisions that we often don't go back and revisit the actual legal decision, because we're just living in the world that it made, and we don't go back and ask ourselves, is this the right world that we made? And Abrielle, I think that that's one of the most fascinating things about your exercise, is you've got to moot it from the standpoint of sort of standing athwart history and saying, stop. Respect the flag more. So at the end of it, are you ultimately comfortable with this new world that this case has made or standing in, standing in the shoes of the state, as you said, you began to see its point of view.

[D]

I think that, honestly, I couldn't really imagine a world where the flag would be policed the same way as it was like, half a century ago. I have gotten really used to a lot of flag merchandise, frankly, and a lot of flag symbolism everywhere where it probably wouldn't have been at the time. And so, on the one hand, I do think it has made for quite a lively flag culture, if I'm just gonna put it that way. But on the other hand, I do sort of see the state's point of view, and I do see that the argument that the flag is quite a unifying symbol for our republic, and whether that causes any sort of ripple effects, I can't really be sure about. But if it does, then I'm. I'll be, like, glad to analyze that.

[A]

David Another fun part of this case, and for those who are looking for law review note topics out there, you see the full evolution of Justice Blackmun, who's a Nixon appointee, and in 1974, he's going to be in dissent wanting to uphold the contemptuousness of Gauguin's little flag patch. And then in Texas v. Johnson, by 1989, he's in the majority, striking down the flag burning criminal statute in Texas. So, you know, always fun to see justices evolve as well. So, Abrielle, you do this hometown program. You're a freshman in high school. I just need to emphasize that again because I think it's very easy to forget that in speaking to you, especially about this case. What do you want to be when you grow up?

[D]

I would definitely like to go into some sort of field of law. I think that, honestly, my passions lie sort of more in the judging or sort of teaching area. I think that I myself am not a particularly argumentative person. But I do love learning things and I do love sort of settling disputes and making people have the ability to agree on things. I've seen, like, so much disagreement. And what I've noticed really is that when people disagree, they're not really using the same standards to figure out who is on the right side. And I think that the law really acts like that, really acts as that guideline and that sort of unifier. And really, I think it's the most instrumental thing in making positive impact. So you can really have all the tech and the rhetoric and the money, all of that, all of you want. But really what you need is common ground. And I think that the law really does provide that.

[B]

So, Abrielle, you remind me a lot of my oldest daughter, especially when you talked about judging, because if you were ever to find her secret hidden Twitter account, the banner picture is the Supreme Court with her face photoshopped on one of the judges, on the justices. We have a long running fight. And, well, fight's a generous term and advisory opinions as to whether or not you should go to law school. And I just want to thank you for your addition to Team me, which is that law school's an excellent choice. So, Abrielle, I am pocketing this as a victory and I just want to thank you for that very much.

[A]

For those of you who are in high school or perhaps have high schoolers living in your homes who are interested in the Supreme Court Historical Society hometown program, here's just some of the cities and cases that are coming up in 2026. Memphis is getting to do Watson versus City of Memphis from 1963. Danville, Kentucky is getting to do Lochner versus New York, 1905. I'm really jealous of that one. Minneapolis, Minnesota is getting to do near versus Minnesota from 1931. And David, this is where you're going to lose your mind and wish you could go back to high school. The Western District of New York is getting to do West Virginia State Board of Education versus Barnett.

[B]

Oh, Sarah, I've never said these words before in my entire life. Oh, to be in high school again.

[A]

Abrielle, thank you so much for skipping school today and joining us to talk about the Supreme Court Historical Society's hometown program. And again, you guys, if you buy a copy of Last Branch Standing in the next two weeks, we are going to match the price of the book and donate it to the hometown program. So for every book you buy, $30 goes to the hometown program to help students like Abrielle participate and learn all about these cases. Thank you, guys.

[D]

All right, thank you.

[B]

Thank you so much. Abrielle.

[A]

Thanks, Abrielle. David, that did not disappoint. Wow.

[B]

No, it did not. It was fantastic.

[A]

And what a cool case that we get this excuse to talk about that we haven't talked about on the podcast before. So you asked her this question, but now I want to ask you, would you have thought in the time, to the extent you can put yourself in that time period that that was a contemptuous use of the American flag? Did you think that was clear? Because again, this was a 6, 3 case, three justices thought that it was clear enough. Rehnquist was there. You know, what do you think?

[B]

Yeah, you know, I think that I would have just sort of coming in the, in the after. I know it's very different doctrines, super different doctrines. So I'm very clear about that. This is post West Virginia v. Barnett, which really is. Sets the tone that in essence that the flag isn't a object of particular mandatory reverence. So if you've got that already existing and then you've got this word contemptuously, which is not, it's not a self defining word, it's not the easiest thing to define. And that's one of the reasons why I brought up like there's American flag underwear, which is celebratory, but is that celebratory? You know, American flag socks, like you're, you know, you're sweating on the flag. You know, I mean, I don't know, is this, is this celebratory? You know, it's funny, we Americans, and I've seen it, you know, I see Brits do this with the Union Jack and other countries the same. But we Americans, we really do crazy things with the flag, as in the celebratory way. But you could easily imagine a very different scent where the person takes the same pair of underwear and he says, I'm putting the flag on my butt. You know, like that would, Is that contemptuous? Right. So I think the case came out the right way for me. I think the intellectual exercise here that was so interesting was I found it so difficult to place myself back in that world where I could cleanse myself from all of the ways we think about and use and all, you know, the flag burning case and everything. It's very hard to expunge yourself of 50 plus years of culture that's spawned in part by a series of legal decisions and then put yourself back in the first position of trying to make that and trying to understand that case without reference. To everything that came back came afterwards. And that's why I asked her about that. I think it's really good that they tried their best to put themselves back in the late 60s and early 70s also.

[A]

The second she gave her answer about what she thought about the case, I knew she must have been on the Smith side, on the side of the prosecutor, because she was so open to the idea that it was a legal law. I mean, I think it's great to go back to those cases. Six, three, three smart, well intentioned, good faith justices thought that law was fine. And obviously the jury who convicted him did as well. But for me, David, contemptuous actually is a pretty clear meaning. And sewing an American flag patch on your jeans, not contemptuous to me, contemptuous would be, you know, if you had the American flag on your jeans or backpack or anyone else with a line over it or a thumbs down on top of it or you were, you know, intentionally ripping it up, that would be contemptuous treatment. And the statute itself itself seem to contemplate a physical desecration of again, like you're drawing on it, you're ripping it, you're burning it, obviously. So simply putting it on your jeans. I don't see how that could possibly be contemptuous. And the record certainly doesn't have any contemptuousness in it other than, again, laughing, which we don't even know what they were laughing about. They're teenagers. But the jury convicted to your point about putting yourself in the time period. Okay. I mean, we need to go do the hometown program because we clearly love this stuff.

[B]

Totally, totally.

[A]

All right, David, when we get back, we're going to do the Q and A from Texas A and M Law School. And just to remind everyone who's involved here, Professor Katherine Mims Crocker, who's the faculty co director of the center on the Structural Constitution, Neil Siegel, who is the other faculty co director on the center on the Constitutional Structure, and Mark Burge. Well, Professor Mark Burge is going to give y' all a special treat at the beginning. I don't even. Well, do you like Jeff Foxworthy? If you do, Mark Burge has a great intro for you. And for those curious about A and M Center on the Structural Constitution, it's a very cool thing that they're doing. They do events across the country. They are methodologically pluralist, ideologically inclusive, and they bring people interested in serious scholarship around the table to discuss discuss important issues in structural constitutional law. And I know this because I attended one of their events up with the Harvard Law Review a few months ago. That was very cool. So, David, without further ado after these messages, I hate James Madison.

[G]

Good afternoon. I'm Professor Mark Burge. On behalf of Texas A and M University School of Law and our co directors of the center on the Structural Constitution, Professor Neil Siegel and Professor Katherine Mims Crocker, we want to thank the Advisory Opinions podcast for joining us here today, or as those of us in the know call it, simply ao. And though I am a contracts professor here at Texas A and M, I'm here today simply as an AO fan. If you have not gotten to listen to Advisory Opinions before, then you are in for a treat by way of a sneak preview. And with apologies to Jeff Foxworthy, I offer you might be a fan of advisory opinions. If. If you wander empty streets at night randomly shouting out congress, do your job, you might be an AO fan. If you like to describe the holdings in some cases as naw dog, you might be an AO fan. If you believe that an important explanatory canon of judicial practice is bad man stays in jail, you might be an AO fan. If you regularly put all your arguments in buckets, you might be an AO fan. If you correct people who refer to a 6:3 Supreme Court by saying knowingly, it's actually a 3, 3, 3 court, you might be an AO fan. And finally, if the highlight of your podcast listening week is when Grifter Sarah shows up, you might be an AO fan. With that, let's turn things over to today's AO plus panel. I believe we're going to start with Professor Siegel.

[E]

Thank you. I feel like this gives David his opportunity to say that we do not have three CO/ government.

[C]

Let me give this. I don't. I'm a free speech guy. I hate the concept of trigger warnings. The whole idea that words are violence.

[B]

Total.

[C]

No, no. With one exception. With one exception. If you say the words CO equal branches of government around me, I can't promise you that. I can't guarantee my actions that will follow that, because it is not. We are not designed to have CO equal branches. It's Article 1. It's Article 1 for a reason. Think of it like this. You can't spend a dime of money. The government can't spend a dime of money unless it comes through Congress. And Congress can fire every member of the executive branch. It can fire every member of the. Every judge. And I don't know about you, but I call the person who can fire me boss. Now, my boss might be checked. You know, In a corporation, a boss is checked by laws and HR rules and all of this stuff, but the person who can fire you is still your boss. And I think that one of the things that we're struggling with right now is that when you look at the concept of Madisonian democracy, and by the way, if you just want to know what indescribably weird nerds we are, a bunch of our dinner conversation last night was about who likes James Madison the most and least. If you're looking at sort of that vision of Madisonian democracy. Madison had one big swing and miss. And that swing and miss was he believed that the institutional authority that you had as, say, speaker of the House or a member of the House, that the sort of, that will to power element you have, that all people have, would be manifested and channeled through their official position as a member of Congress versus primarily through their party loyalty as an adjunct to a president or an opposition to a president. But the thought was that if I'm a Speaker of the House, that I'm going to have pride of place, I'm going to have a sense of my own power and my own authority, and under no circumstances would want to cede that to another branch. And so the branches would be competing because of the will to power, the sort of natural will to power that people possess. But in our modern system where the actual power that say, Mike Johnson possesses is entirely dependent right now of the goodwill of the president, if, you know presently, right now, the best way to lose your office as a member of the Republican Party is for Donald Trump to oppose you in a prime primary. And so this idea that you exercise independent authority is alien to them because they know that independent authority will cost them their job. And so that dynamic is one of the dynamics that's really stifling our, the actual operation of our republic as it was designed to operate, we've just been sending more and more power to the President. And you know, in the talking about Youngstown steel and statutory directives, one of the problems we have with this case and many others is Congress, in doing the job that it did, just punted enormous amounts of authority to presidents through broad based emergency declarations. And so you're left with Congress has already punted. And the questions are usually, okay, is it so broad that it encompasses this, or was it so broad that it's unlawful? The delegation is unlawful. And those are tough arguments to make compared to you're just contradicting a statute.

[H]

Here's an interesting question for you folks. Is it appropriate for the justices to take into account the sorts of presidents we have now, if they are different from the sorts of presidents Congress was imagining over the course of the 20th century when they delegated all this authority.

[F]

No, I think it is fair for them to enforce the structural constitution as it was meant to work. So it's not that we have individual presidents, I think that are unique or specific to our time period. I think we have a presidency that has changed a lot over time. And the problem is that that presidency doesn't work with the structural constitution that we envision. So all of those, you know, I don't know if you have Lincoln Logs as a kid or whatever, maybe I'm a child of the 80s, but like it all has to work together. And so if one of them is out of whack, the whole rest of it doesn't continue to work on without it.

[A]

And so I think at least one

[F]

argument of what we're seeing from this Supreme Court is an idea that you need to now use unitary executive theory and Major questions doctrine and these sort of high minded, maybe judicial philosophies. But at the end of the day,

[A]

the project that they seem to be

[F]

undertaking is a structural constitution. One, make the president more powerful within his executive branch. As in Congress can't try to run the executive branch from afar, but make the executive branch far weaker and quit allowing Congress to give away its legislative power to that executive branch. Basically the two are like boxers that have been fighting so long that they are just like holding each other. I don't know a lot about boxing, but these guys seem to be hugging a whole lot in these fights. And so you have two branches hugging each other and you need the court to come in there and move them to their opposite sides of the ring so that you can have that ambition. Checking ambition. And obviously I want you to buy my book if you only have $30 left, but if you have a little bit extra. Lindsay Chervinsky's book on John Adams presidency is remarkable because first of all it's only about the presidency. You will hate James Madison and Jefferson and Hamilton. Actually everyone's very hateable except for George Washington. But she's writing it from the lens of our current presidency. And so she's writing it in a way that allows you, I think, to reflect on what originalism would have meant to that generation, what unitary executive might have meant to that generation. And spoiler alert, it's not a lot about what we're talking about in terms of what John Adams viewed the presidency as what his cabinet Thought his job was as president. They did not respect him. They were Washington's cabinet and you know, the Madisonian project. When we talk about Madisonian project, we're talking about the structural Constitution and like how great he was in Federalist 10.

[C]

He was great in Federalist 10.

[F]

But the real Madisonian project is the creation of a two party system, you know, Jefferson versus Hamilton, in which Madison is like a political henchman, no different than, you know, any other political operative, grifter, Sarah or otherwise. And you know, he's paying off dudes to crap on Washington. Call Adams a hermaphroditic character.

[C]

He had some. He was rough around the edges.

[A]

Yeah.

[F]

And what emerges, I think is a really interesting view of the structure of the Constitution at the actual sort of founding big bang moment. And I will say because like my biggest takeaway is, and you've said this before, we built a constitution for George Washington and nobody had a lot of imagination of what would come next, including of themselves, including, you know, James Madison's lack of imagination for Jefferson, who I do think he saw some of Jefferson's flaws in 1796 and after that. And so what do you do with a, let's call it theoretically perfect checks and balances system.

[A]

But that has humans who are not up to the task sometimes.

[B]

Yeah.

[C]

I don't think we understand the extent to which the Washington example has clung to the presidency for a very long time. That there's parts of the Article 2 that, to use George Clinton's words when he was writing as an anti Federalist, that Article 2, the very first sentence is vague and inexplicit. The executive power shall rest in a president of the United States. That's a vague and inexplicit sentence. And the implication of a lot of this was Washington will figure this out. Washington will know what to do.

[B]

And he did.

[C]

And he did. But there is a, you know, there's a scripture that says there arose a king in Egypt who knew not Joseph. There have arose presidents who knew not Washington. And so there's this great line in

[A]

Lindsay's book, by the way.

[F]

So Washington, once he leaves the presidency, like really does try to stop meddling and providing advice and everything. But Adams inherits Washington's Cabinet and the

[A]

cabinet just lies to him about the

[F]

things Washington, the precedents Washington had said. And Adams wasn't included in anything because Washington didn't respect him that much. And so at one point the cabinet's like, oh, the president never made a decision without having the majority support of the Cabinet. Like it just wasn't true. And so to your point, like, the second Washington's out of the picture, all the kids start squabbling and lying to each other and jockeying for position because none of them has the respect of Washington.

[A]

Yeah.

[F]

Thank you.

[E]

So, as I mentioned, my job is to bring it back to the present and what the current Supreme Court is doing. And so, Neil, when I think about your question, I think about Trump versus United States, for instance. Right. The 2024 presidential immunity case. And as much as I like talking about the unitary executive, anyone who knows my scholarship knows I really like talking about immunities. Qualified immunity, sovereign immunity, absolute immunity, all the immunities. But I was rereading that case recently. That case relies on Youngstown, and it's like the court sets it up more as a conflict between presidential power and congressional power than you might sort of think in this criminal prosecution context. But the court is still sort of focused on we need to scale back congressional power, where they might overlap to allow presidents to act really robustly. And they say this is important for things like the evenhanded application of the law and protecting civil rights, which is not necessarily what a lot of people think we're seeing from the Trump administration after that opinion, which arguably emboldened Trump during the second term. And so I would just love to hear, you know, your thoughts, Neal, about the relationship. You know, that we've seen sort of the evolution on the Supreme Court Court and the way that it does or doesn't hold government accountable under the law, you know, between steel seizure and, more recently, Trump versus United States and other cases.

[H]

Yeah. So my read of Trump, the United States is that the court crafted a robust immunity for the president from criminal prosecution. That Chief Justice John Roberts majority opinion refused to acknowledge, in fact denied, was as robust as it was. It was as if he wrote his opinion, but was talking about Justice Barrett's partial concurrence, which, to my mind, was the best opinion written in the case. It was the most measured, the most scrupulous, and even handed. On the one hand, it makes sense to say that the President has criminal immunity when the president's acting within the president's exclusion, exclusive constitutional authority. Exclusive means Congress can't regulate it, including by the criminal law. But as for the rest of it, there's lots and lots of concurrent authority. And again, if you really believe in Youngstown, the lawmaker gets to control the law enforcer, including through the criminal law. Roberts, I think, really, really wanted a majority opinion, but I think he paid too high a price for it. I think I would have expected of him what Justice Barrett wrote. And instead I think he wrote what he needed to get Justice Thomas and Justice Alito's vote. And I think it's unfortunate he kept citing Justice Jackson's opinion in Youngstown and that was almost protesting too much. And he kept denying that the immunity was. I mean, it's an amazing immunity, right? I mean, it's all official acts, at least presumptive immunity, maybe absolute immunity. It can still be official. If it's illegal, it's official as long as it's not manifestly or palpably beyond the President's authority. There is no immunity for unofficial acts, but no one actually disputed that ever. But even then, you can't use evidence of official acts to prove it, right? Even though there are other ways to protect the jury from being unduly influenced. So it's an amazing immunity. And on top of all of that, it's joined by justice who tend to self identify as textualists, as originalists, as history and tradition folks. And yet the good textualist, originalist, historical arguments are on the other side. What you see in the majority opinion is a kind of loose structural inference, prudential arguments and analogies to precedent. Nixon against Fitzgerald, who said the President's absolutely immune from civil suits for money damages. That's what's going on methodologically in the case.

[B]

And

[H]

it's dissonant from how at least most of the justices who join that opinion, usually in fact, in another case that very term. In the Rahimi case, you had separate opinions from Justices Gorsuch and Kavanaugh talking about their approach to constitutional interpretation, which I think is inconsistent with what they signed off on on Trump, the United States. So I understand the Court's concern that we are living in a different time. And whatever else could be said to criticize the opinion, this prevents the current administration from prosecuting former President Biden. And there's reasonable concerns about that. But there are also reasonable concerns that what happened on January 6th is not a one off, that it could happen again. And it seems to me that the majority opinion has no concern at all about Congress's authority, as well as just the practical necessity of trying to ward off another attempt to remain in power through unless lawful means, notwithstanding the results of a free and fair democratic election. That's part of what federal criminal law exists to police. And so I think it's, you know, Youngstown says the president is accountable for violations of the law. And Chief Justice Roberts said yes, but the law, properly conceived, excludes the President from its scope. And that seems to me to be difficult to reconcile.

[E]

And of course, Trump versus United States is just the latest entry in this long line of cases and in somewhat different contexts, but where we've seen the court expand immunities and sort of related doctrines to protect government officials, government entities, from accountability under the law. I really appreciated this, the sort of theme that you hit on David in one of your recent New York Times columns about the death of Renee Good in Minnesota and how that, you know, how we can, can see this as potentially an opportunity to maybe reconsider some of these immunities. Think about this concept of government accountability under the law more broadly.

[C]

I've put it this way. One eye should be placed on like in the very short term, how do we retain respect for rule of law, how do we maintain respect for separation of powers, how do we maintain sort of in near term we have to have one eye on that, but another one is how do we keep from getting in this position again? And so that's where immunities come into play. And immunities, especially at the federal government level, have been kind of a, what you might call a one way ratchet for a long time. There's just been a steadily expanding set of immunities that apply to federal officials. And the difficulty in removing them is pretty obvious. There's always going to be one faction in power that loves them, some immunities, and it's going to be the faction in power. So you're always going to be saying to the faction in power, well, we need to do something that's going to make you more vulnerable to lawsuit, for example. How many people like to do that? Not many. And then the people who are out there in dissent, they often are hoping to be in power again themselves. And so they're very willing to sign on to say, a legislative action that is targeted specifically at your ideological foe. Like, it's hard to find a Democratic member of Congress who would not be for legislation demasking ice. But we don't have as many members of the House or the Senate who are in favor of stripping federal immunity from civil liability. And so that's one of our problems in a nutshell. I can motivate one faction to engage in legislative action against another faction. It is very difficult to motivate either faction to engage in systematic reform that would diminish their authority once they're in power. And because one of the things you'll notice about politics, and I hate to intrude on Grifter Sarah's core competency here. But that once people win races, they don't think they're losing races again. And so this is when I was researching for my book, I looked at the rhetoric surrounding every recent win, presidential win and off year win since 04. And one of the first things you'll find when you look at news reports and analyses is every election is the harbinger of the permanent majority. Every time when Bush won in 2024. I don't know what you guys in here. There's only a couple in here old enough to remember the maps that were online of United States of Canada and Jesus Land. Like people were apoplectic that Bush had unlocked some sort of permanent religious conservative majority. Jesus land. And then blue states were going to have to join Canada to be the United states of Canada. Then 06 rolls around and the Republicans are just routed. 08 rolls around. Do Democrats have a filibuster proof majority in the Senate? And they're the coalition of the ascendant. That's the emerging Democratic majority until 2010. I mean we can just do this over and over. And so what we have is constant irrational optimism that you're going to be in power and you're going to be in power forever. And that is constantly blocking systemic reform to prevent abuses. Because once you win, you're like all that power.

[B]

Yes.

[C]

My it's like a sith ultimate power.

[H]

But why, why do you think that is, David? Because you've just made a very compelling argument that's based in reality that we are a deeply divided country and we have constant razor's edge elections. So why do you think it is that people keep believing what they ought not to believe? Because what I tell my students is when we, when you think about presidential power, don't just think about whoever the president is. And I've been saying that for the last four or five presidents because there's going to be another president and you're going to trust some more than others. Right? In law we're supposed to think with a longer term systemic perspective. You've just told me why people don't seem to do that in politics. But I don't understand why.

[C]

We're people. Very few people can drink their own Kool Aid with more relish than a politician. And so when you have accomplished something that's legitimately a monumental accomplishment, we've won a presidential election that is a monumental enterprise. You've sweat, you've defeated your opponents, you are now part of the faction that is governing the most powerful country arguably in world history. It's a little intoxicating. I mean, I try to be like empathetic and put myself in their shoes. And I can only imagine, I can imagine how devastating it is to lose because each one of the presidential elections that Sarah worked on, I wasn't working on those elections, but I was cheering them on and feeling very grim at the outcome. But that winning your argument prevails. You have incredible amounts of power. You have a high degree of idealism walking into it. And I think there's just sort of a natural human inclination. You know, maybe it's the post the apocryphal story of the Romans when they would have the triumph and somebody comes in on the chariot and there's somebody next to them saying, remember, thou art but a man. There needs to be that. Like there needs to be the, remember, thou art but a man or woman person who just charges right next to the candidate on their way to accept the. Remember, you're only a person. You're only a man.

[H]

That's me getting my head chopped off.

[A]

Yeah. I used to have this newsletter called

[F]

the Sweep and it was based on curling. And now that curling is our national sport for this week, shout out to USA Curling. We are all rooting for you. You have no idea. It's on every TV in America and we've all learned every rule there is. And we hate the British and the Italians with a passion we've never seen before.

[C]

And the cheating Canadians, the cheating Canadians,

[A]

how dare they continue to cheat by

[F]

cheating and their cheating. This will never end.

[E]

We can do a whole episode on that, I'm sure.

[F]

Yes. Well, we've done an episode on the Spirit of Curly that you can go find with Mitch Berman from Pennsylvania, who has a textbook on sports law, sorry, Law of Sports. So like not you're an agent for someone, but the law within a sport and how that appellate process works. Anyway, my metaphor for politics came from curling, which is that politics elections are that 40 pound stone heading down the ice. And the political operatives and the candidate themselves in a lot of ways are the sweepers. You know, they're moving it a little bit, but like the difference that they actually are making is relatively small compared to a 40 pound stone going down ice. But the campaigns always have a theory of the electorate and the election. And when they win, they think their theory has been proven right. And their theory is often we will be a permanent majority if we can tap into this group of people. And so the. And we all do this right. The winning campaign did everything correctly and the losing campaign did everything incorrectly. They are losers. They are the dumbest of all time.

[A]

And that's just not right.

[F]

But when you win, it reverberates back on your theory being correct, and you

[E]

see it as this massive mandate to

[F]

your theory of the electorate in the election.

[A]

And it makes no sense.

[F]

And I would love to see a campaign say, when we get into power, we're going to strip power away so that those guys can never get it back. Like, that would be a really fun election to run. And I don't know why Democrats for 2026 aren't arguing that, because I think it would be quite popular.

[B]

Yeah.

[F]

What is your favorite thing about James Madison?

[C]

I love that last question. Sarah, you need to go first.

[F]

I'm going last.

[C]

I mean, look, I'm not going to surprise anybody here. It's my favorite thing about James Madison is Federalist number 10, the foundational text of American pluralism, where he said he recognized that we have a very fractious and divided country, that we're not all going to agree with each other, we're never going to all agree with each other. And that the historic temptations of trying to deal with disunity, which include suppressing liberty or trying to sort of artificially enforce unanimity of opinion, are a fool's errand. And that the actual way to deal with fractious, divided country with many competing strains of faith and ideology is to let a million flowers bloom, or let. Or to use the words that George Washington quoted more than 50 times in his own letters and correspondence. Let every man sit under his own vine and own fig tree and let no one make him afraid. That's the vision of American pluralism. Federalist number 10. And I don't know why Sarah doesn't like it.

[F]

Oh, gosh.

[E]

Well, this is not anywhere near as good of an answer as David's, but I'll just give a shout out to Dolly Madison. I used to have a dog named Dolly. We adopted her and her name already came as Dolly, but then we gave her the middle name Madison to make sure she had a good Virginia name. Because I'm from Virginia. We were in Virginia at the time. So shout out to Dolly Madison.

[H]

So Madison was the. Along with Wilson, was the driving intellectual force behind the Constitution. And I think he had a nationalist sensibility and vision when it mattered most. He saw that we needed a substantially more powerful federal government to solve the massive collective action problems facing the states during the critical period of the 1780s, we also needed an empowered federal government to stop states from causing collective action problems and undermining the authority of federal law. And I think the Constitution we got, as imperfect as it was, was a major improvement over the Articles of Confederation. What came before, I think Sarah's major objection sound to me to be about the politician Madison in the ensuing years. And David, I think Federalist 10 was less about how the federal government relates to the states or the states relate to one another. It's how the state relates to its own inhabitants. And I think he was prescient in that regard. He saw the need for political process as well as rights protections that governments could not just treat individuals as they will. And he eventually moved from the Federalist 10 solution of an extended republic to an empowered judiciary and individual rights when he saw that the kind of process protections he imagined weren't working as well as he had hoped.

[A]

I think it'd be unfair for me

[F]

to answer in a pre 1796 Madison because there's plenty of stuff to point to and all of that, but I will give the answer in my. The other James Madison, I think your steel man case for James Madison is that he was a moderating influence on Jefferson.

[H]

That's really good. That's really good.

[F]

And so I shouldn't be blaming James Madison because he wasn't egging him on. If anything, he was pulling him back and like, thank God for that. But that's faint praise.

[E]

All right, well, it's about time for

[F]

us to wrap up.

[E]

I just have to say so yesterday when Sarah and David recorded at smu, they did this like, big thunderous round

[F]

of applause and David declared that SMU

[E]

crushed Texas A and M without even giving us a chance.

[C]

I know peak performance when I've seen it. I mean, I'm sorry.

[E]

So I think we should give them a run for their money with a round of applause and saying thank you to Sarah and David for visiting us here today.

[A]

So David, I thought Professor Siegel made perhaps the most important point, that there are really two James Madison's. There's the pre 1796 James Madison, or maybe pre even 1792 James Madison during the first term of George Washington back through the Federalist Papers and the Constitution and American Independence. And then there's the James Madison who becomes a Jefferson lackey, helps him attack George Washington, and is basically a political operative that I think we would feel pretty contemptuously toward, to borrow a term from our previous segment. And they're the same person, but I have trouble bridging the Two of them. Because, like, the Federalist Society uses James Madison's head on everything. Like their ties, their socks, like everything. And now whenever I see his face, I want to punch it.

[B]

There's an interesting conversation to be had about our founders as political philosophers and our founders as politicians. And James Madison as political philosopher is just a gold mine of wisdom. Just a gold mine. And then my other thought about, you know, growing up learning about James Madison, Federalist Paper Papers, Memorial and remonstrances as against religious assessments, the whole Madisonian democracy. Federalist 10. Are you kidding me?

[C]

Federalist 10.

[B]

And then I kind of fast forward led us through The War of 1812, really kind of a second War of Independence in some ways where we fight the British Empire to a stalemate, really sort of securing our status post independence. And so you think about these things, but there's a lot of gaps in there, Sarah, that you're filling in with a lot of things about James Madison the politician. And I think about, you know, the Alien and Sedition Acts. This is founding generation as politicians and what did they do?

[C]

Right.

[B]

And so a lot of our founding and Jefferson as a president, Yikes. In so many ways, really. The only founder who sort of shines and he was less a philosopher. The only founder who really, truly, absolutely just shines as the politician is Washington. He comes in and he sort of embodies the founding ideals in the. In his. I'm never going to say he was perfect, but he walks in and he sort of walks the talk. And then a lot of these other founders couldn't walk the talk once they got into the grimy, messy, dirty world of politics. A lot of their own inherent griminess, messiness and dirtiness that they were trying to warn everyone against, sort of in the abstract that leaders and rulers can be like that. It turns out that they could be like.

[A]

All right, next time on advisory opinions, Hamani and war powers. Coming up,