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

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.

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)

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.

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.

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)

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)

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)

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.

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.