Divided Argument

House Parties

Episode Summary

Will and Dan break down two more decisions from Wednesday. First is Collins v. Yellen, a complicated separation of powers and severability case with a lot of money on the line. Second is Lange v. California, a Fourth Amendment case about the "hot pursuit" doctrine, which gives rise to some high school confessions.

Episode Notes

Will and Dan break down two more decisions from Wednesday. First is Collins v. Yellen, a complicated separation of powers and severability case with a lot of money on the line. Second is Lange v. California, a Fourth Amendment case about the "hot pursuit" doctrine, which gives rise to some high school confessions.

Episode Transcription

 

 

Dan: (00:17)

Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.

 

Will: (00:25)

And I'm Will Baude.

 

Dan: (00:26)

So, Will, we have more to talk about from Wednesday's opinion release. The court gave us too much to do in just one episode. Didn't want to do a two hour plus long episode. I thought we'd give you more digestible chunks.

 

Will: (00:42)

Yeah. Dan, you predicted this. You predicted they were going to jam us up at the end of the term with too many interesting opinions at once.

 

Dan: (00:48)

Yeah.

 

Will: (00:49)

They were not prepared for our willingness to just sit down and break it into a couple episodes if there's a lot to talk about.

 

Dan: (00:55)

Yeah. The court has made a serious strategic mistake as well, because we should give people a little advanced notice that you and I are both traveling on Friday for unrelated reasons, and that means we're not going to record right on Friday. We're going to be a little, little late giving you coverage of those Friday decisions, unfortunately, so you'll have to wait for some colder takes and get your hot takes elsewhere. But the court's error was in dumping some of the more interesting cases today, because I was looking at the list of the final, I think it's eight left, right? There's some decently big ones there, but on the whole, it's not eight blockbusters, I think.

 

Will: (01:38)

Yeah, no, I agree. I agree. They gave us, some of the ones I was most interested in, we now have, especially this case, Collins versus Yellen. You follow this case, Dan?

 

Dan: (01:47)

I have followed this one a fair bit. It's really interesting. It's the intersection of structural constitutional law and finance. It's got a little bit of administrative law in it. There's a lot here. There's a lot of moving pieces in this case, and so we're going to have to do our best to disentangle that for people. But, yeah, I think this one is quite interesting, and that's a good place to start. I would say, this case is probably the one in which the most money was resting of [crosstalk 00:02:26].

 

Will: (02:26)

Not more than the Affordable Care Act case.

 

Dan: (02:30)

Yeah. I mean, although I guess maybe with that, I'm approaching that from the perspective of assuming that it was never that likely they were going to strike down the entire thing, but, yes, I guess theoretically, if they had struck down the entire Affordable Care Act, more money would have moved. It would have a bigger economic impact. But this one had a lot of money riding on it because here's what happened. We have the financial crisis, the old one, pre-pandemic. This was the 2008 financial crisis caused by subprime mortgages, all that stuff, that I would imagine some of our listeners don't remember, right? Some of our listeners who were law students, I mean, this would have happened when they were in, I don't know, middle school or something. Right? But it was a big deal.

 

Dan: (03:21)

The economy really was in really bad shape for quite a while. But at the beginning when everything collapsed and the stock market went down really rapidly all of a sudden, things were bad. Fannie Mae and Freddie Mac, which it's these two corporations that they're public ish, but also their shares are privately traded. They previously were purely public and then they were somewhat privatized, but they have served this public function of buying the underlying mortgages, most of the mortgages on houses that are sold in the United States. They were in real trouble. Right? Their soundness was very much in jeopardy as a result of all these mortgages not being paid because there had been these incentives for banks to basically sell mortgages to people that couldn't really afford to pay them.

 

Dan: (04:25)

These were going to fall apart, and then so Congress did something kind of unusual here, right? They created this agency, FIFA, the Federal Housing Finance Agency, and they put in this single director who was, according to the statute, removable by the president only for cons. Then we went and did stuff. We can disagree about how to characterize what exactly happened here. Some people call this a nationalization of Fannie and Freddie, but basically, the government came in and kind of acted as a conservator or conservator of Fannie and Freddie's assets, but basically put in place a regime under which the shareholders were not really going to get much, if anything, at all. Although, this was all put in place in order to prevent the possibility that the companies would go out of business and the shareholders would get nothing.

 

Will: (05:24)

Yeah. Okay.

 

Dan: (05:25)

Well, Will, you've got a dazed look on your face. Is this too much money stuff?

 

Will: (05:30)

Look, I'm in it for the constitutional law, not the money.

 

Dan: (05:33)

Yeah.

 

Will: (05:34)

But it's a lot of money. It's part of why it's important.

 

Dan: (05:36)

Yes. Basically, there was these amendments that were put in place. There's a more complicated backstory here, that basically said, "Fannie and Freddie, you're going to give us your money." It's called a capital sweep. So, long story short, the shareholders got together, and they've been suing to try to stop this and to get back for what they claim is impermissible action by FIFA, and stealing their money. A lot of those claims they had actually been sold to other companies, a lot of hedge funds and banks and so forth are speculating about this case, waiting to see what was going to happen. That's where all this money is riding.

 

Will: (06:19)

Okay. So, we just talked last episode about the takings clause, so if we just start with why isn't this just a takings problem? If the government's just coming in and, I don't know, unfairly confiscating a bunch of people's money, in a way, I mean, shall we think of it that way? Somehow that's just not on the table.

 

Dan: (06:38)

As I understand it, that's something that had been one of the many claims that had been litigated in the lower courts, but that's not the one that for whatever reason makes it to the Supreme Court, so that's not what we're here to talk about.

 

Will: (06:58)

Okay. Okay. Okay. So, it's not a takings problem. Instead, it's a separation of powers problem that I have to worry about here. Right?

 

Dan: (07:05)

Yeah. So, as well or also in this case, there were some statutory challenges where the plaintiffs were saying, "Hey, what FIFA did here exceeded its powers as the conservator." Right? Conservators, typically, are supposed to come in, and they're appointed to manage someone else's assets to make sure that they don't go bankrupt. But here they came in and basically just were like, "Okay, now we're the government keeping everything for ourselves, and shareholders take a hike." So, that was also in the case that got to the court, there actually were duelings or petitioners from either side. The government filed some sort of petition, and the shareholders filed a sort of petition. So, that's your two. The one we're most interested in, though, is the constitutional question.

 

Will: (07:54)

Yeah. My eyes glazed over for the part of the opinion about the statutory claims, so if there's anything that I need to know, you're going to have to tell me about it.

 

Dan: (08:01)

Not a ton. We can talk about it briefly, but it's a limitation on injunctive relief, so it's kind of a civ pro-ey, fed courtsy angle.

 

Will: (08:10)

Okay. Injunctions I can understand.

 

Dan: (08:11)

Yeah. Okay. So, there, what's the constitutional problem?

 

Will: (08:15)

All right. I got to say, I have a sense of déja vu here. Right? Last term, we had a case called Seila law, about a government official who was the director of the CFPB, the Consumer Finance Protection Bureau, who was a single person who could be removed by the president only for cause, created by a statute also at around the same time period. The Supreme Court said, "That's unconstitutional. If you have a single official, they have to be removable at will by the precedent." FIFA seems like the exact same thing, right? It's a single director.

 

Dan: (08:44)

Yeah. Just to back up one second, but we do know that having a multi-member agency under existing president, at least, you can have multi-member agency where the members are only removable for cause. That's Humphrey's executor, right?

 

Will: (09:00)

Yes. As it happens, maybe this is just a silly dodge in that the court happened to uphold a multi-member agency in Humphrey's executor, and now this is another one of those cases where there's a [inaudible 00:09:11] a lot of difference, they say, "Well, this one is only a single person." Then Judge Kavanaugh, I think, came up with a not frivolous political theory argument about why it might be different for a single person who has more potential for abuse of power than a multi-member body. But regardless, Seila law says, you have a single member director, they have to be accountable to the president. [crosstalk 00:09:33].

 

Dan: (09:32)

This is a thing we're going to circle back to in a minute, but these kinds of political theory, accountability arguments that flow through these conservative separation of powers cases drive me crazy, and they also drive one of the justices on the court crazy. We'll get to that.

 

Will: (09:49)

Not my favorite either.

 

Dan: (09:50)

Yeah.

 

Will: (09:51)

Okay. But this is just déja vu. This is just the same thing we had last term, right?

 

Dan: (09:56)

Well, that's sort of the question, right? It does seem pretty similar, and there are a few places in the law that have these structures, single director movable only for cause. I think it's not the default. Typically you either have an executive agency where there's a secretary who's directly accountable, the president, removable at will, or you have these multi-member agencies, but there are other ones, and this is another one. It does seem to have a lot of features in common, but we had some decent arguments here. What happened was the federal government actually agreed. They were like, "Yeah, unconstitutional restriction on removal. We agree with you on the merits of that." But obviously the federal government did not agree that that therefore meant the plaintiffs got billions of dollars.

 

Will: (10:50)

Right. Well, and when you say the federal government, you mean the Solicitor General's office.

 

Dan: (10:53)

Yes.

 

Will: (10:53)

Which is part of the executive branch that reports to the president.

 

Dan: (10:56)

Yes.

 

Will: (10:57)

So, it may not be a shock that the president said, "Oh, yeah, I agree. I have a lot of power here, and this statute is unconstitutional."

 

Dan: (11:03)

Yeah. It's a situation where there can be a conflict of interest.

 

Will: (11:08)

Right.

 

Dan: (11:08)

Heading into different parts of government.

 

Will: (11:10)

So, they actually had to bring in an Amicus, a law professor, Aaron Nielsen, to brief and argue the case on behalf of the statute, essentially.

 

Dan: (11:19)

Yeah. He was aided in his briefing by another law professor, Chris Walker of Ohio State. They did a really good job. I think they came up with a lot of arguments as to why this was distinguishable and to why there was no constitutional problem here. I'm not going to cover all of those arguments, but one that I thought was pretty interesting, the court obviously doesn't end up buying, was that the director of FIFA is basically, when he's serving as a conservator, he's not actually exercising executive power at all. It's sort of more of a private power. I thought that was pretty interesting.

 

Will: (11:58)

Me too. I thought there might've been something to that. I don't know.

 

Dan: (11:58)

Yeah.

 

Will: (12:02)

But the court says no.

 

Dan: (12:02)

Yeah.

 

Will: (12:03)

Yeah. Then another argument they make that's in here is that for an important amount of the time here, the director was actually an acting director, not a confirmed director.

 

Dan: (12:13)

Yeah. This is another way in which the case has a few too many moving pieces, and it's a little hard to keep track of everything.

 

Will: (12:20)

Yeah. But it turns out there was a dispute over whether acting directors get the same kind of protection from removal, and the court concludes that they don't. So, actually, for a bunch of the time here, it's harmless error. For a bunch of the time, the director actually was removable just by the happenstance that they happened to be an acting director. But the court says it doesn't matter-

 

Dan: (12:40)

And the director then actually engaged in the specific thing that they were worried about, the third amendment to the purchase agreements that have all these bad consequences. That person was actually totally removable at will by the president.

 

Will: (12:56)

Yeah. But then a later director was confirmed, and they didn't undo it, and so maybe it's still relevant, I guess, but it's a little weird. Okay. So, put that aside too. What does that leave us with? That leaves us with standing and separability. Right?

 

Dan: (13:11)

Okay. Well, let's just get rid of the statutory.

 

Will: (13:14)

Okay.

 

Dan: (13:14)

So, short claim first.

 

Will: (13:16)

Fine.

 

Dan: (13:17)

Plaintiffs are also saying, "Look, director went beyond the statute and doing all this crazy stuff, and that's not what you're allowed to do when you're the conservator." There's a statute that says if you're challenging conservatorship authority, courts just don't have the power to enjoin them. The court looked at that and they said, "Yeah, you are. What you're doing is you're challenging the conservatorship authority," and so that anti injunction provision bars that, and so those statutory claims don't go anywhere.

 

Will: (13:47)

Okay. Not because they're wrong on the merits, just on remedial grounds, you can't get [crosstalk 00:13:51].

 

Dan: (13:51)

Yeah. We're not even going to get to those. There's nothing we can do about it, so that's gone. So, now we're just left with the one everybody cares about, the constitutional question.

 

Will: (14:01)

Okay. Okay. So, how should we think about it? The constitutional question, again, the merits seem pretty straightforward. You can come up with some ways to distinguish this previous case, Seila law, you could decide that the previous case Seila law was wrong, as of course, some of the justices think it is wrong. But by itself, this might've just been one of those times the court remands, just gives a GVR and says, "Look, we already decided this. You sort it out." But they don't do that.

 

Dan: (14:30)

Although, the fifth circuit below did agree that this was a constitutional problem.

 

Will: (14:35)

I see. Right. Okay.

 

Dan: (14:37)

Which is part of what makes it confusing as to what's going on here, is the fifth circuit overturned a district courts' granted a motion to dismiss, and said, "You can go back down and deal with your statutory claims." That was the source of the government's petition for service. So, the government was like, they let these statutory claims go forward, please, please overturn that. But then also, there's the en banc fifth circuit agreed that there was a constitutional violation here.

 

Will: (15:05)

There was a constitutional violation, but that the remedy for the constitutional violation, according to the fifth circuit, was not to throw everything out. Right? Okay.

 

Dan: (15:18)

That's actually what the remedy is going to be, I think, is ultimately going to be the more interesting thing to talk about, because you said it's pretty straightforward. You think it's dictated by Seila law. Yes, you can make arguments, and Amicus did make decent arguments, but ultimately the court rejects those, and not just the court, Justice Kagan herself, who's gotten to be pretty pro stare decisis, also says in her opinion, concurring in part and in the judgment, she says, "Yeah, I think this is indistinguishable. I don't like Seila law, but on stare decisis grounds, we should follow it, and that leads to the same outcome here on the merits of the constitutional question."

 

Will: (15:59)

Yes. Although, okay, so Justice Kagan. It's interesting, because she says, "I agree, this is controlled by Seila law, but I'm still not going to join the majority opinion, because, one, it contains a bunch of this political theory crap about the executive power that I don't believe and is unnecessary, and second, Seila law said it was limited to cases where the agency wielded significant executive power, and the majority of it in here doesn't contain that limitation." She agrees that limitation is satisfied here, so it doesn't matter, but suddenly, the opinion's being rewritten in a broader way, and her commitment to stare decisis apparently does not include letting Justice Alito creatively reinterpret Chief Justice Roberts' decisions.

 

Dan: (16:38)

Yes. Yeah. I guess we should probably give people the breakdown here, which we haven't done. We have the majority opinion by Justice Alito and the other conservative justices, except for Justice Gorsuch, [crosstalk 00:16:54], and then Kagan and Briar join part of it, and then justice Gorsuch, he joins parts of it, but not other parts. Justice Gorsuch ends up writing separately, Justice Kagan ends up writing separately, Justice Sotomayor ends up writing separately. So, it's a bit fractured, but we do at least have a majority opinion.

 

Will: (17:15)

Yes. Okay. We have a good majority opinion for the whole thing, and then various people who are dissenting for various parts. Okay. Okay. So, we've got too much going on here. We've already talked ourselves in knots. Let me just say, the part of this that I think is really interesting is the question, when there is an unconstitutional statutory provision, what happens? Right? So, suppose we accept that the removal of restriction on the director of FIFA is unconstitutional. So what? Right? Does that mean the things the director did were unconstitutional? Does that mean that we have to set aside his enforcement actions, we have to set aside the third amendment? I think everybody on the court, other than Justice Gorsuch, agrees the answer is, "No, we don't have to necessarily do all those things."

 

Dan: (18:04)

Yeah, which is what the plaintiff's wanted. The plaintiffs were like, basically, it's all void. Just reset the clock, and the court is basically like, "No, that's not going to happen."

 

Will: (18:14)

Right. So, what does the court say we should do instead?

 

Dan: (18:16)

Well, one thing the court could have done was just say, "Look, we've looked at this, it's unconstitutional, this removal provision, but we've looked at the merits of it. We've looked at how things went and we think it didn't make a difference, therefore no remedy was harmless here."

 

Will: (18:31)

Yeah.

 

Dan: (18:32)

The court doesn't quite do that. The court instead says, "Well, we don't think this makes everything void. Maybe you could still get some relief if there's some showing that this really made some big difference," but prejudges it, I think, and sort of suggests that probably not, but fifth circuit, why don't you think about that? Quite interestingly, Justice Thomas has a separate opinion that I think we're going to want to linger on for a bit, where he basically is like, "Yeah, there's definitely not a remedy here. No way." But then Justice Gorsuch goes very much in the other direction. So, we have another one of these cases. We've seen a bunch of these over the recent years, since Justice Gorsuch joined the court, where sometimes they're really hand in hand, and sometimes they actually have very, very different views.

 

Will: (19:19)

Right.

 

Dan: (19:20)

Justice Gorsuch wants a big remedy. He's like, "This is all void." Right?

 

Will: (19:24)

Right. Part of what's amazing is that it's not just that. Until recently, Justice Thomas and Justice Gorsuch were jointly authoring their own shared theory of alternative severability. The court's severability doctrine doesn't make sense for reasons we talked about last week, we were breaking down Arthrex, and because all courts can do is ignore as void things that are not constitutional, and that should sort of cut through a lot of this stuff. I mean, judges don't have to do these complicated remedial decisions, et cetera. Then what's interesting is now in this case, the two of them, who supposedly have the same theory, are now on opposite poles of the court about the implications of that theory. In a way, this is really interesting, really important. So, Justice Thomas' view is, as I understand it, it's the following. "Look, the removal restriction is unconstitutional, so the president can fire the director of FIFA at will. That's what the constitution requires."

 

Dan: (20:20)

By the way, by the way, we should note that within probably an hour-and-a-half of this opinion coming down, President Biden did fire the director of FIFA. He was like, "Okay, thanks. You're fired."

 

Will: (20:35)

That's funny. That's funny. Maybe [crosstalk 00:20:38].

 

Dan: (20:38)

So, basically, the president could. Interestingly, his view is the president always could, right?

 

Will: (20:44)

Right.

 

Dan: (20:44)

This provision of the law was just always-

 

Will: (20:47)

Right. That's the next step, because Justice Thomas says, "Look, they didn't become true just because we issued this opinion. We issued this opinion because that was always true." Right? Because especially under the Orthodox, the Thomas Gorsuch view of the world, courts don't change the meaning of the constitution. The constitution has always said that. Indeed, in this case, the president has always thought that was true. Right? The president was maintaining all along that he could fire the FIFA director at will, because the removal of restriction was unconstitutional.

 

Will: (21:16)

I believe even the FIFA director actually agreed, although I'm not positive about that. So, in a way, for Justice Thomas' point of view, there is no removal restriction. There was a piece of paper passed by Congress that said there was a removal restriction, but it was never there. You know? So, in a way, I mean, this is the part that [crosstalk 00:21:37].

 

Dan: (21:36)

There was in a situation where the president said, "You're fired," and then the director went to court and got an injunction being like, "I still get to stay here and do all this crazy stuff." that would be different, Right?

 

Will: (21:49)

Exactly. Exactly. This is important. So, Justice Thomas' point of view, in a way, the problem was self-correcting, at least in this case. There was an unconstitutional removal of restriction that never, in fact, restricted any attempted removal. So, our work here is done. I should note, this is related-

 

Dan: (22:07)

One gloss on that. What that means is there was no unconstitutional action, right? There's nothing that the director did that was unconstitutional.

 

Will: (22:15)

Right. It would be different if the director had done something, the president had said, "Stop or you're fired," and the director said, "Can't fire me," and then continued to do a bunch of stuff. Right? Especially if the president of then said, "No, no, you're fired. You're locked out of the building," and then the director had gotten an injunction to stay in office, then it would make a difference. Or, the original removal cases, like Myers and Humphrey's executor are about money and back pay, so it'd be different if the director of FIFA had just been removed and then tried to get back pay, saying "I was unlawfully removed," like Humphrey's executor did, but none of that happened here. So, the removal restriction, if there's a removal restriction in the forest and it doesn't restrict any removals, is it still even a thing? I think Justice Thomas' view has a lot going for it, but Justice Gorsuch doesn't buy this at all. Right?

 

Dan: (23:07)

Yeah. He goes as far in the other direction, I think, as one could possibly go.

 

Will: (23:13)

I agree. I agree. This is like when Scalia and Thomas split the court in the [inaudible 00:23:18] or something. It's just two formalist Titans at opposite ends of the universe, throwing [crosstalk 00:23:26].

 

Dan: (23:25)

I'm not quite ready to elevate Justice Gorsuch to Titan status, like the father of the gods? Come on.

 

Will: (23:31)

Giant? The Giants are below the Titans.

 

Dan: (23:37)

I'm not ready to go there yet.

 

Will: (23:39)

Cyclops?

 

Dan: (23:42)

Good classical reference. You can call them whatever you want. If I'm silent about such Appalachians, don't assume that I agree with them.

 

Will: (23:53)

I never do, Dan. Okay. So, Justice Gorsuch says, "Look, the director is, in a sense, he's unlawful. Right? "Here he is, his office is unlawfully structured, unlawfully created, unlawfully insulated from the president, so everything he does is void of an issue."

 

Dan: (24:11)

Yeah. He was without constitutional authority when he took the challenged actions.

 

Will: (24:17)

Yeah.

 

Dan: (24:17)

These were ultra vurez.

 

Will: (24:20)

Yeah. I guess we'll start here, I mean, maybe you don't like these kinds of analysis at all, but is this like a duck rabbit problem? When Justice Thomas says, "Look, nothing unconstitutional happened, no harm, no foul," that makes sense. What Justice Gorsuch says, he's ultra vurez, I don't know if you look at it a different way. Does that make sense?

 

Dan: (24:40)

I mean, I think that it has that feature in the sense that you can see it two different ways. I do think Justice Thomas is right here, though, in the sense that you can draw distinction between this and this is something that Justice Thomas says. He's like, "This isn't a situation where the person was put into office unconstitutionally." Right? Let's say an appointments clause violation, where the person was appointed by the wrong person.

 

Will: (25:04)

I agree. So, why is this different, though? I mean, appointments doctrine. Removal doctrine, why should we have this sharp distinction between them?

 

Dan: (25:11)

Well, I think the difference being that the director was appointed just fine, so the person was in the office fine. So, we can't just say everything about what the person was doing was unconstitutional. If there was a problem, it's with this restriction on removal on the backend, and if it didn't have any real-world consequences, it's not obvious to me. What if it were shown that the director was appointed, and the day the director was appointed, the president and the secretary of commerce and the secretary of treasury, and everybody who's politically accountable said, "Look, this is exactly what we want you to do. Go do it." Right? The fact that there just happens to be this removal restriction that maybe people aren't even paying attention to that suddenly just renders everything.

 

Will: (26:08)

Good. So, why wouldn't we ask the same question about appointments? So, suppose there was an appointments problem, right? Suppose somebody was appointed by whatever, the president, without Senate confirmation, they should've had Senate confirmation or the wrong person or whatever, we don't ask, did it make a difference? We don't ask, do we think this person's nomination would have gotten held up in the Senate or something? We just say, "If you're not lawfully appointed, no further questions."

 

Dan: (26:34)

Yeah. Although, the counterfactual there is a lot harder, I think.

 

Will: (26:38)

Well, the counterfactual is hard too. What would you do if you knew you were more politically accountable? We don't know.

 

Dan: (26:43)

That is true. But, I mean, isn't there a difference between saying, "These are the circumstances under which anyone can even be in this office," versus, "These are the specific things you're..." I'm trying to think of a more general phrase. "This is the way the office is supposed to work."

 

Will: (27:08)

Yeah, no, I think that's right. I think there is this ultimate, this sharp distinction, Justice Thomas is right between, do you have the authority? Do you have the lawful authority to be a government official? And then, did everybody comply with their various duties? Those are different. There's an Amicus brief in the case from Professor John Harrison at Virginia that harps on this distinction in a very formalistic way that Justice Thomas cites. I think it's very insightful. If you want to go this route, you can find these distinctions in Hofeld, who was an old jurisprudence scholar years ago. But I think there is a difference in those two things. But a couple things. One, Justice Thomas appears to have missed this distinction last term in Seila law, because a lot of the same problems were present there too. I'm glad he figured it out now, but Justice Gorsuch does hold his feet to the fire on that.

 

Dan: (27:58)

Yeah. If you have it in your head, do you mind just reminding me of exactly how the remedy works in Seila law?

 

Will: (28:04)

I believe in Seila law-

 

Dan: (28:06)

There's an enforcement action, right?

 

Will: (28:07)

Yeah. It's an enforcement action, and the majority concludes that the for cause removal is unconstitutional, but it doesn't require us to set aside the enforcement action. Justice Thomas and Justice Gorsuch say it does, that the director has done something unlawful, and therefore we have to set aside the enforcement action.

 

Dan: (28:25)

Yeah. So, what's the difference?

 

Will: (28:28)

Justice Thomas says, "Oh, it wasn't really raised there."

 

Dan: (28:31)

Yeah.

 

Will: (28:32)

But the truth is, he just hadn't thought of it yet. Now he did, which is great. It's great that he was willing to admit it. Here's the other good example. I don't think Justice Gorsuch uses this one, but it sometimes happens there are these so-called judges who don't have article three tenure, like the territorial judges, I think who are appointed by the president, could even be confirmed by the Senate, but they don't have life tenure. When one of them is accidentally allowed to sit on a case, it's automatic reversal.

 

Dan: (29:02)

This is the [Nguyen 00:29:04] case, right?

 

Will: (29:04)

Yeah, exactly. Right? Because you let a judge with an unconstitutional removal situation sit on a case. Justice Thomas says that's a per se reversal.

 

Dan: (29:15)

You're saying that should be the same as this?

 

Will: (29:17)

A little bit, right? Shouldn't we ask? Well, is there any evidence that the judge in this case, their unconstitutional lack of life tenure made a difference? Is there any evidence there was any political pressure on them to decide the case differently? You know? But we don't ask those questions, we just say, if you don't have life tenure, you can't [crosstalk 00:29:33].

 

Dan: (29:32)

I guess it feels different to me because you're basically saying, "You have to have article three judges decide your case. This is not an article three judge."

 

Will: (29:43)

Yeah.

 

Dan: (29:43)

Right? The thing that makes them not an article three judge is removal part, is the lack of life tenure, but it just basically means this person isn't an article three judge, whereas this director is the director. Right? You know?

 

Will: (29:58)

Well, if not having life tenure is all it takes to make you not an article three judge, then why isn't not being a removal by the president all it takes to make you not an article two official?

 

Dan: (30:10)

I think here's the difference. Right? Thinking back to Justice Thomas, he just says, "Look, we just have to look at this as if this removal restriction just doesn't exist." Right? Basically, the removal restriction is unconstitutional, so therefore this person is removable at will. But we don't say the remedy in that case, the territorial judge case is now the territorial judge has life tenure. Right? That's not-

 

Will: (30:37)

Yeah, but it's not the why. Right? In both cases, you have two things. You have the judge is exercising a certain kind of power, and then with a certain kind of tenure, and the two things can't go together. You can't sit on federal cases and not have life tenure. You can't use substantial executive power and not be ruled by the president. In one case, we decide, "Well, we'll let them keep the enforcement authority and change their tenure," and the other case we say, "Well, we'll keep their tenure where it is and change their enforcement authority."

 

Dan: (31:04)

You don't really think those are the same, do you? You're just being a very good devil's advocate. Because it clearly feels different, right? It clearly seems like it would be ridiculous to just say in that case, "Well, you, you accidentally sat in on an article three panel, now you're an article three judge."

 

Will: (31:23)

Yeah. I do think they're different. I do think if you go back and look at the commission that we give to the territorial judges in Guam, it doesn't purport to give them the judicial power of the United States.

 

Dan: (31:33)

Yeah.

 

Will: (31:33)

Whereas we purported to give the director of FIFA the executive power of the United States.

 

Dan: (31:38)

Yeah. I guess that's different. So, if we had all the article three judges, but there was a statute that says, "And by the way, the president can fire you if he doesn't like your decisions," I think that the appropriate solution there would be just to say, "That's not a thing. You can't do that."

 

Will: (31:56)

I think that's right. I think this is all right, but I do think this is where then we get back to the merits a little bit, the courts own separation of powers doctrine does not always sharply sort these different doctrines in different boxes. We just saw in Arthrex the court was like, "Are they unconstitutionally appointed, or are they constitutionally appointed, but then exercising the wrong kind of power?" Who cares?

 

Dan: (32:21)

Yeah.

 

Will: (32:24)

Maybe [crosstalk 00:32:25].

 

Dan: (32:25)

Just for people who've already lost track of it, that's the administrative patent judge.

 

Will: (32:31)

Yes. Right. Exactly.

 

Dan: (32:32)

They were not appointed consistent with the appointments clause was the [inaudible 00:32:38].

 

Will: (32:38)

Yeah. Yeah. I think this works, this interpretation works, but it might require us to be a little more careful in how we think through the separation of powers, doctrines and the merits in the first place. Then a lot of stakes are going to be there, whether is it a power problem or is it a different problem? Which would be fine. I'd love it if the court was more careful about that stuff, but-

 

Dan: (32:59)

You want them to be super careful about everything and parsing all these distinctions.

 

Will: (33:04)

The distinctions that matter. I mean, this is why people hate law professors, I guess, its there are a lot of distinctions that seem like they don't matter, and then later on it turns out they mattered. So, just be careful when you gloss them over.

 

Dan: (33:21)

Yeah. Yeah. I'm just giving you a hard time, because I think that's my value add to the show.

 

Will: (33:29)

Somebody's got to do it. Do you understand the court take a position on the Thomas versus Gorsuch fight?

 

Dan: (33:38)

Not exactly. I mean, well, they certainly take a position on the remedy, right? I mean, more with Thomas in the remedy than with Gorsuch, for sure.

 

Will: (33:47)

Right. Right. They seem to be close to Thomas, but not quite.

 

Dan: (33:50)

Yeah, no. I don't think the court endorses this view that this is a nothing, because basically we just act as if this provision never existed.

 

Will: (34:01)

Right. Although, I read them to be very close to Justice Thomas, because I read them to say something like, "Well, we should act like this provision never existed, but I guess we still do have to ask, Did people actually ask, or did they act like the provision never existed?" So, they say, although an unconstitutional provision is never really part of the body of governing law because the constitution automatically displaces it, it's still possible for an unconstitutional provision to inflict compensable harm, and that possibility cannot be ruled out. They give two hypothetical examples, right? Which we sort of already talked about.

 

Will: (34:34)

Suppose the president had tried to remove a director, but a lower court had stopped him. Right? Then we would say, even though there is no removal restriction, it still caused harm by misleading the lower court into enforcing it when they shouldn't have, or suppose the president had made a public statement expressing displeasure with actions taken by the director and had asserted that he would remove the director if the statute did not stand in the way, then the statute is causing harm for the president's mistaken decision to comply with the statute. So, they're remanding to find out, did the statute accidentally do some work that it shouldn't have done? In which case, we need to unwind it.

 

Dan: (35:07)

Yeah. I strongly suspect the answer to that will be no, but as I think Justice Thomas says too, one reason being that the secretary of treasury was very involved in all this at various points, and the secretary of the treasury is directly accountable to the president. I don't think there's evidence that the secretary of the treasury was wanting to overrule the director and not being able to and so forth.

 

Will: (35:34)

Yeah. Great. That brings me to one more annoying question, which is then should there really have been standing here? Isn't it too soon to say there's any standing here if we don't yet have any evidence that this constitutional violation caused any harm?

 

Dan: (35:50)

Yeah. This is now connecting us with the other big separation of powers type big Commonwealth case we've had so far, California versus Texas, the Affordable Care Act case, right?

 

Will: (36:02)

Yes.

 

Dan: (36:03)

Which there, you're challenging a penalty that is $0 that doesn't do anything, and does that give you standing to try to strike down the whole Affordable Care Act?

 

Will: (36:18)

Right.

 

Dan: (36:18)

Answer, no.

 

Will: (36:19)

That's a no.

 

Dan: (36:20)

So, here, you're challenging a removal restriction that I guess we don't think did anything. I guess the difference is we don't know at the outset. We can just say at the outset, the removal restriction was pointless... I'm sorry, we can say that the $0 penalty, it makes no difference. Right?

 

Will: (36:45)

Sure. Sure. Let's say we could say that.

 

Dan: (36:48)

Whereas under the majority here, there is a theoretical possibility that there could be something, some injury, right?

 

Will: (36:56)

Right. Although normally for standing, we require you to show that there is an injury. Standing can't be speculative injury.

 

Dan: (37:05)

Yeah. Although, we don't really, because you could sue someone, saying, "You caused me harm," and then figuring out whether the person actually caused the harm is a merits question.

 

Will: (37:18)

Right. Here's my case for the analogy. In this case, it seems to me the plaintiffs are kind of doing the bank shot severability thing. They say the removal restriction is unconstitutional, and ultimately, that unconstitutional removal restriction, even though it didn't actually come into play directly, is linked to the separate decisions to enforce things against us.

 

Dan: (37:42)

Yeah, gives us everything we want. Right? That is our hook to get this big win.

 

Will: (37:47)

Then you might respond to them, "No, no, you can't show adequate traceability. You can't show that the removal restriction is traceable to what happened to you." The majority here says, "For purposes of traceability, the relevant inquiry is whether the plaintiff's injury can be traced to the conduct of the defendant, not to the provision of law that is challenged."

 

Dan: (38:08)

Yeah.

 

Will: (38:09)

I think if I took that at face value, I would go back to California versus Texas and say maybe that helps the state. They don't have to show that their injury is traceable to the initial mandate. They just have to show that their injuries are traceable to the conduct of the United States.

 

Dan: (38:26)

Yeah. Although, I guess it's a little different, where here, we're talking about a person, right?

 

Will: (38:32)

Yeah.

 

Dan: (38:33)

Who there may be some problem with exactly the way that person is sitting in office or exercising power.

 

Will: (38:40)

Yeah.

 

Dan: (38:40)

Whereas in the other situation, we're not saying the secretary of Health and Human Services is improperly in office. They're sort of saying, "I don't like the statute, and there's this part of it that seems bad."

 

Will: (38:57)

Yeah. That's true. No, here, there is at least a possibility that there was a real world connection. I mean, I think it's not true, but there's a possibility that the removal actually caused something to happen in the world, the removal restriction doesn't happen in the world that injured the defendants. Whereas in California versus Texas, it was all on paper. It's all about the paper connections to these things. But I'll say, I leave these three opinions, this case, Arthrex and California versus Texas, not convinced the court has fully worked out how to deal with standing and severability when they interact in these complicated cases.

 

Dan: (39:34)

Well, it's because they're waiting for your article.

 

Will: (39:36)

Well, they're going to have to wait a little bit longer, having given me [crosstalk 00:39:40].

 

Dan: (39:39)

Yeah. They keep trying to slow you down. But one interesting thing in terms of the analogy between this and California versus Texas, is that in both of those, Justice Gorsuch bit and was like, "Okay, I will give you everything you want." Right?

 

Will: (39:59)

Yeah.

 

Dan: (40:00)

"I'd go big." Which is interesting. It's aggressive.

 

Will: (40:03)

I do wonder now if we sit down, if a lot of these things will make more sense if they had been interviewed together. Like, are some of the things Justice Alito cared about in his dissent in California versus Texas influenced by the majority opinion he knew he was writing in Collins? Is Gorsuch's eagerness to go all the way in California versus Texas influenced by how worked up he got in Collins, or vice versa? Arthrex, the Arthrex opinion?

 

Dan: (40:26)

In Arthrex, there's also a split between Gorsuch and Thomas.

 

Will: (40:30)

Yes.

 

Dan: (40:32)

So, a lot of disagreement. In Arthrex he also wanted to go big, right?

 

Will: (40:35)

Yes, and Justice Thomas also had the same comment. I mean, he dissented on the merits more specifically, the same self-correcting point of dissent, where he said, if you take the majority's constitutional analysis seriously, the problems have cured itself for the same reason. So, I think Justice Thomas has gone full John Harrison, which is a good thing, and Justice Gorsuch was clearly trying to chart his own version of this theory. So, that's exciting to see where this is going to go.

 

Dan: (41:02)

His version of the theory is whenever you spot one constitutional issue, you just void everything. Right?

 

Will: (41:08)

I think it's not just any issue. I think to Justice Gorsuch, I think the idea is there's some set of constitutional issues that are sort of fundamental or central to the officer's authority. Those are the issues that are causing the blow up, sort of the equivalent of structural error in criminal cases. If you aren't quite as formal about it as we were, you could see removal restrictions as being formal. If you were a serious unitary executive guy, it's a really important doctrine.

 

Dan: (41:34)

We have to fit the ACA stuff into that framework though too.

 

Will: (41:37)

Yeah, yeah. Fair enough. I'll have to work that one in too. But, still.

 

Dan: (41:43)

Okay, so one more note about this. You already flagged one of my favorite things, which is Justice Kagan being like, basically, "I will not endorse this pablum in the majority about how it's so important to have accountability in the executive state and the president," and all these JV political theory. A couple of things to note about that. First of all, if you don't like that, if, like me, you don't like that, because the reason I don't like that is because the folks who have started to really study separation of powers really carefully in the academy over the last couple of decades have basically come up with the answer that the separation of powers arrangements in the constitution rest on some very contestable, normative premises about how stuff is going to work, and it's probably wrong in a lot of ways.

 

Dan: (42:32)

Now, you could still say, look, that doesn't mean you have to go Breyer and just say, "Let's be super functionalist." You could just be like, look, this is the way the constitution lays it out, and those are the rules, and we got to follow them. But the thing I don't like is this reflexive, and, "This is in the constitution, and James Madison is a God," and everything, and it was correct, and it preserved democracy, because that just might be wrong. It might actually be the case that the constitution makes some incorrect assumptions about how things are going to work. But if you don't like that, like me, you know something you're really not going to like is the en banc majority opinion in the fifth circuit. Have you read this, Will?

 

Will: (43:11)

Awhile ago.

 

Dan: (43:12)

Okay. Did you read the first paragraph? This is by the formerly tweeting Texas Supreme Court justice, now non tweeting fifth circuit judge, Judge Willett. His opinion opens thus, "The bicentennial of the United States constitution in 1987 celebrated our founding generations ingenious system of separated powers, legislative, executive, and judicial. The constitution inaugurated a revolutionary design, Madisonian architecture infused with Newtonian genius, three separate branches locked in synchronous orbit by competing interests," goes on, "Our Constitution's most essential attribute, the separation of powers, presumes conflict, which counterintuitively produces equilibrium as the branches behave not as willing partners, but as wary rivals."

 

Dan: (43:57)

IT just goes on and on like this, mixing metaphors and so forth. I just find that really annoying, because it's wrong in the sense that the founders are not geniuses. There were things they got wrong. You can say, "Look, those are the rules they laid out, and I'm a formalist, so I have to follow them." That's fine. Don't make me swallow this stuff about how it's so divine. Right?

 

Will: (44:22)

Yeah. Look, I actually agree with most of that, including the question of whether the separation of powers is even a good thing. But I do think is something consequential here, which is even just how to understand this doctrine in this area of law, because you could think the separation of powers rules are really just mechanical rules, like article one, section seven has this very detailed process for how a bill becomes a law. You wait 10 days and the president re passes, and then two thirds vote, or you could think that it's more of a principle, where it's like there is some sort of principle of executive control that's not exactly written down in one rule, but that the court has to instantiate through a bunch of different doctrines.

 

Will: (45:05)

The court's removal cases vacillate about which one of those they are. Like, is it that just definitionally, the power to fire people is part of the executive power, so just enforcing a rule that's in the constitution and it doesn't matter what its purpose is, or is the removal power actually a structural inference about how the thing is supposed to work. In which case, they kind of need to lean a little bit on the political theory. They could say, "It's not our political theory, it's Madison's."

 

Dan: (45:27)

Yeah. You could just say this is what they were trying to do, and maybe that's wrong, but I think the two things don't have to travel together. You could say like, "I think what they were doing was kind of stupid, but I think those are the rules that they laid out. I'm going to follow them." Or you could say, "I think what they were doing is great, but I think the constitution is pretty flexible, and if Congress wants to do something different, it can," or you can link them up.

 

Will: (45:55)

Right. Yeah. I guess what I would say is something that's more like, "So, this is what they're trying to do. I'm not at all sure it was a good idea. It might well be stupid, but I'm not sure that it's stupid." I think to understand what the rule is, we really do have to understand the logic of it in a pretty sympathetic way. So, I'm going to give you a sympathetic account of what they're trying to do, acknowledging that the whole thing might be a mistake. It wouldn't be quite as ra-ra as fifth circuit, but it wouldn't be quite as denatured as Justice Kagan [crosstalk 00:46:24].

 

Dan: (46:24)

Yeah, I can live with that. Honestly, as far as these things go, I didn't think that the majority here was all that bad compared to some of the stuff I read in other Supreme Court opinions, and certainly in some of these little court opinions. One other thing on that that's interesting is Justice Kagan talks about the remedy here, and she tries to paint the remedy, probably correctly, as the constitutional holding not matter that much, it's not going to require undoing huge numbers of decisions of the social security administration, which I guess is also headed by a single removable only for cause director.

 

Dan: (47:06)

But she sort of says, "Look, most of those decisions just aren't ones that the president is paying attention to, so you're not going to be able to show there's any harm in those cases, so we're not going to suddenly have to overturn all the social security administration decisions." This is on page five of her separate opinion, but then she cites, she does a little self cite where she cites not a previous opinion, she cites her famous and widely cited Harvard Law Review article, presidential administration for the proposition that there's lots of stuff that the executive branch does that presidents just pay no attention to.

 

Will: (47:42)

Yeah. No, I like that. I thought that was a nice little move.

 

Dan: (47:48)

Some judges don't like the self cite to their academic work, and some do.

 

Will: (47:53)

I think this is a special case, though, where the Kagan article on presidential administration gets cited a lot by advocates, and I think including by advocates on the other side, who are pushing strong presidential control. It seems especially fair-

 

Dan: (48:12)

It's not fortuitous. It's a very important article. I think of her academic work, it's her most successful, widely cited, important article.

 

Will: (48:20)

Right. Exactly. I mean, I'm not saying she would have said it if it were by somebody else, but it's not gratuitous, and it's already part of the conversation, so it makes sense to me.

 

Dan: (48:30)

Should would've cited it if you wrote it, Will, I promise.

 

Will: (48:33)

Justice Kagan has never cited me.

 

Dan: (48:34)

Yet, yet.

 

Will: (48:36)

Maybe she'll cite this episode. We'll see. That'd be great.

 

Dan: (48:41)

Yeah. That's the question, which justice is most likely to cite one of our episodes? I did the math, and they're all 0% likely to cite our episodes, unfortunately. So, I think we need to wait for you to get up there, Will, and then you can do a self cite.

 

Will: (48:56)

We'll have to stop the podcast.

 

Dan: (48:58)

Too late. Okay. So, there's a ton in that case. Actually, I could probably go on talking about that one for awhile. It involves con law and money, two things that I like, but we should probably talk about another case that I guess I should be more excited about, because I teach criminal procedure. This is Lang versus California fourth amendment case, but I'm finding it a little hard to get as worked up about this case.

 

Will: (49:26)

Yeah, I hear you. This is a case about the so-called hot pursuit exception to the so-called warrant requirement. Is that right?

 

Dan: (49:37)

Yes. Lots of so-called in that sentence. But, yes, the fourth amendment prohibits unreasonable searches and seizures, and also lays out requirements for warrants. The court has for quite some time said one thing that makes a search unreasonable is the lack of a warrant, but then there are certain circumstances where we're going to say there is no need to have a warrant. Generally, one of those is exigent circumstances, so some reason why. It's things you got to move quickly, and you can't go get a warrant.

 

Dan: (50:11)

In talking about that, the court has tended to say that there's emergencies, need to prevent destruction of evidence, and then one of the things they've listed is hot pursuit. Most typically, hot pursuit of a fleeing felon is the classic example, but this case is about hot pursuit of a person who is suspected of a misdemeanor.

 

Will: (50:40)

A fleeing misdemeanant.

 

Dan: (50:43)

Yes, now in the form of the offender.

 

Will: (50:47)

Yeah. What's really at stake here, right? I guess the majority says sometimes yes, sometimes no, right?

 

Dan: (50:59)

Yeah. Yeah. Let's put it differently. The majority rejects the proposition, the fact that the police are pursuing, chasing someone who is suspected of committing a misdemeanor, they reject the proposition that that always lets you follow the person into a house without a warrant. So, they reject the categorical rule. They do not adopt a categorical rule in the other direction, by any means, saying that you never get to do that.

 

Will: (51:25)

Okay. On that point, I think they have seven justices, right? Except for the two with Chief Justice Roberts and Justice Alito in dissent on that point.

 

Dan: (51:37)

Yes.

 

Will: (51:38)

Okay. So, Chief Justice Roberts and Alito say, "We would have a categorical rule," and Kagan says it's not a categorical rule. There's an interesting side concurrence from Justice Kavanaugh and Justice Thomas about a couple other things, but on that question, is this just rule versus standards? It's just like, shall we have a categorical rule, or shall we have a standard? We have this fight in the fourth amendment all the time, and sometimes we want a rule and sometimes we want a standard, and nobody's consistent of which one they want. I don't know.

 

Dan: (52:08)

Sort of, although it's kind of like, what do you think of as the relevant rule? Because, this gets a little confusing, is that one way to understand the rule is no warrant needed for exigent circumstances. What are exigent circumstances? You're chasing someone suspected of a crime, hot pursuit. But then the court seems to say hot pursuit isn't its own necessarily really its own exception, right? Hot pursuit is a thing that provides one of the other bases for exigent circumstances. This is on page 10. The court says, "We have no doubt that in a great many cases, flight creates a need for police to act swiftly. A suspect may flee, for example, because he is intent on discarding evidence, or his flight may show a willingness to flee yet again, while the police await a warrant." So, it's sort of basically the rule is you always get to go without a warrant if you're trying to prevent flight from dislocation or prevent destruction of evidence, but the mere single act of flight itself does not provide the justification.

 

Will: (53:20)

Yeah. Okay. This is where I end up sympathetic to Justice Kavanaugh, who says, "I add this brief concurrence simply to underscore that in my view, there was almost no daylight in practice between the court's opinion and the chief justice's opinion."

 

Dan: (53:34)

Yeah. I think that's true. I also think that it's also going to be true in a couple of ways, and also the majority's opinion also is not going to matter to basically anyone. This is why I'm having trouble getting worked up about it. With respect to the first point, how many cases are there going to be where a police officer is in hot pursuit of a misdemeanant, but we know there's no reason to think that person might flee again, or they might destroy evidence or something like that. I mean, sure, sometimes, but a lot of times things are going to be sufficiently uncertain that you can probably point to one of these other interests.

 

Will: (54:13)

Yeah. Now, I will say, Jeff Fisher, I think it was, raised an argument that the scenario that was the most plausible would be minors or kids. They'd be the most plausible, that the police are breaking up a party or whatever, and somebody goes fleeing back to their parents' house. Under the circumstances, it's understandable why the kid is doing that, but unlikely they're going to become a fugitive from justice or destroy evidence.

 

Dan: (54:40)

Have you ever fled a house party that was broken up by the police?

 

Will: (54:43)

Okay, true story. When I was in high school, a bunch of my classmates decided to TP our government teacher's house. I refused to take part in this because it was a violation of private property rights, and I found that morally objectionable. But I didn't want them to think I was as much of a spoilsport as I was, so I agreed to follow them along, but not take part in the TPing. So, I actually was driving behind them, sort of, I don't know, out of solidarity or something, but then I wasn't carrying any TP, at which point our government teacher, it turns out, had been tipped off about this whole thing, not by me, I swear, but one of my classmates.

 

Dan: (55:24)

This was one of the other students, this is, I don't know, the 1990s equivalent of showing the Snapchat to your mom or something?

 

Will: (55:31)

Apparently. So, as everybody arrives at his house, four police cars then turn their lights on and roll out of all the neighboring driveways, and police officers start grabbing kids and throwing them in the back of the cars. It was actually a police officer who would come to class to do the, "I'm a police officer. Let's talk about how that works," thing. They ended up, I guess, seizing a huge number of my classmates, ultimately letting them go without even any sort of formal arrest. It was just sort of a, "Don't do that," slash a show by the government teacher that he'd punked us. But as soon as the police cars started rolling out, I just drove off, and then I spent the next couple hours circling the neighborhood, picking up people who were fleeing the police and ferrying them [crosstalk 00:56:13].

 

Dan: (56:13)

Oh, so you were an accessory after the fact. We're also in the statute of limitation, so it's fine.

 

Will: (56:18)

I think so.

 

Dan: (56:19)

I'm pretty sure.

 

Will: (56:20)

I was not myself fleeing the police, because I had not anything wrong.

 

Dan: (56:24)

But you were aiding and abetting.

 

Will: (56:26)

Well, I mean, I was just giving people a ride.

 

Dan: (56:30)

Yeah but I teach criminal law. You were an accessory after the fact. You were helping them evade detection with knowing that they'd committed a crime with the intent to do so. Right? All of the elements.

 

Will: (56:42)

I don't think I had the intent.

 

Dan: (56:44)

Why were you picking them up? Why didn't you just go home?

 

Will: (56:49)

I wanted to hang out with them. I was there to hang out in the first place.

 

Dan: (56:51)

If that's your best defense, I don't know, hope you had a good lawyer. I didn't think I was going to get that good of a story. That's pretty good. I have fled one house party broken up by the police. I didn't really have to flee. They just came in and there were a lot of people there, and I walked out, and nobody hassled me because there were bigger fish to fry, I think. It was a party with a bunch of D1 football players, of which I was not one.

 

Will: (57:14)

I never got invited to that kind of party.

 

Dan: (57:17)

I wasn't really invited. We kind of crashed it.

 

Will: (57:21)

I didn't even know about the parties. Yeah.

 

Dan: (57:23)

Well, the thing I want to know is in your story, how many people accused you of being the rat? I think that's why you were picking people up. You were trying to show that you were not the rat after the fact.

 

Will: (57:35)

I will say, I admit from the external point of view, it looks really suspicious that there's one guy is just there, refusing to participate, but hanging out for no obvious reason, and then suddenly it gets out of the way when the police spring the trap, I admit.

 

Dan: (57:53)

The smarter thing to do would have been to feign, to be what we call in criminal law, the feigned accomplice, where you pretend to go along and then have the police take you away, and then secretly whisk you off to safety. But if any of your high school friends are listening, he didn't do it. It was not him.

 

Will: (58:14)

I just believed in private property and wanted to hang out. Is that too much?

 

Dan: (58:18)

And you still do. You really haven't changed. So, you didn't go through a communist period at some point?

 

Will: (58:27)

When I was in eighth grade, I was an anarchist.

 

Dan: (58:30)

I assume that was a reaction to some kind of parental discipline or school policy.

 

Will: (58:35)

No, I just couldn't figure out any reason that government power is justified.

 

Dan: (58:40)

But by high school, the summer after eighth grade, you figured that out.

 

Will: (58:46)

By high school, I became a libertarian, because my socialist government teacher accused me of being a libertarian, and I'd never heard of that, and so I went and looked it up, and that was sort of my gateway. I took libertarian literature. I was like, "Oh, yeah, that sounds pretty good."

 

Dan: (58:58)

When did you start blogging in this process?

 

Will: (59:01)

In college.

 

Dan: (59:01)

Okay. That's a college development.

 

Will: (59:05)

Yeah. No, in high school, we had early access to Lexis at home my dad used it, and so I set up a bunch of Lexis keyword alerts for various libertarian figures, and so I would read random news clippings about libertarianism.

 

Dan: (59:20)

Were you an Ayn Rand devotee in high school?

 

Will: (59:26)

Yes.

 

Dan: (59:26)

Okay. Okay.

 

Will: (59:27)

Yes.

 

Dan: (59:28)

I saw that coming. Did you wear a suit to school everyday?

 

Will: (59:33)

What? No.

 

Dan: (59:34)

Did you wear a suit?

 

Will: (59:35)

I wore sweat pants.

 

Dan: (59:36)

Okay. There was a type I encountered at my school, the type who wore a suit and was into Ayn Rand, but [crosstalk 00:59:44]. Okay. I'll stop giving you a hard time.

 

Will: (59:46)

Okay.

 

Dan: (59:46)

But, yeah, back to this case, that was quite a tangent. I think people are going to enjoy it. I did. Some of the time, a lot of the time, you're going to be able to do it anyways, and then what happens if the officer screws up and enters without a warrant in a case where we don't actually think there was quite enough of a showing that the flight indicated destruction of evidence or further flight?

 

Will: (01:00:14)

Okay. Are we thinking about Justice Thomas here?

 

Dan: (01:00:16)

Well, yeah. There's actually two reasons why it doesn't matter. Right? I think one of which is the Justice Thomas reason, but also, in all those cases, isn't that going to be within the good faith exception of the exclusionary rule? Basically, this is the rule that as long as the police are close enough and they're not going to deliberately violating the constitution, and it's sufficiently unclear, no exclusion. I think that given how fuzzy this test is, I think it's always going to be good faith. Right?

 

Will: (01:00:50)

Maybe. I think there's still an open question about how broad or narrow the good faith exception is.

 

Dan: (01:00:56)

Yeah. Yeah.

 

Will: (01:00:57)

But, sure. That gives us to, I think, the most interesting thing to me about this opinion. Justice Thomas wrote separately, among other things, to remind us that he does not believe in the exclusionary rule, both that it's narrow as a matter of doctrine and that he doesn't really think we should have it in the first place, and Justice Kavanaugh joins. Justice Kavanaugh I think had not previously been on the record with any kind of particular exclusionary rule skepticism, and it's just interesting that Justice Kavanaugh-

 

Dan: (01:01:23)

Yeah. Although, I would take justice Thomas' opinion as more being like, for these purposes, basically saying there should be a categorical exception to the exclusionary rule here, and that that's the part Kavanaugh agrees with.

 

Will: (01:01:40)

Yeah.

 

Dan: (01:01:40)

I wouldn't say that Kavanaugh is necessarily tipping his hand and saying, "I don't believe in the exclusionary rule." Right?

 

Will: (01:01:45)

Well, I mean, look, the last paragraph of Justice Thomas' opinion is aware of the substantial costs created by the exclusionary rule, courts have sometimes narrowed the protections of the fourth amendment to avoid having to exclude evidence, citing [Aki Lamar 01:01:58], the most famous academic critic of the exclusionary rule right now. But it should be the traditionally created remedy, not the fourth amendment, that contracts in the face of that pressure.

 

Dan: (01:02:06)

Yeah, but you could say that remedy should contract in that pressure, but not that the remedy should never exist.

 

Will: (01:02:12)

No. Right. You could. It's just it only makes sense if you share the view of the exclusionary rule as kind of suspect, this constant [crosstalk 01:02:21].

 

Dan: (01:02:20)

Yeah, or there's something that should be that's broader than it should be. I mean, I note it in Justice Kavanaugh's concurrence, he doesn't say a lot about this, but he says, "I join the courts' opinion. I also join part two of Justice Thomas's concurrence regarding how the exclusionary rule should apply to hot pursuit cases."

 

Will: (01:02:36)

Yeah.

 

Dan: (01:02:37)

So, he seems to be characterizing his join about the application of the exclusionary rule to this one contest.

 

Will: (01:02:46)

Yeah, no, I'm not saying he's gone full Clarence Thomas or full Aki Lamar here, but it's just otherwise an out of position join that I kind of like.

 

Dan: (01:02:58)

You like it because you agree with the merits, or you just like it because it shakes things up?

 

Will: (01:03:02)

Both.

 

Dan: (01:03:03)

Okay.

 

Will: (01:03:03)

I do think the exclusionary rule is not the best remedy for these things, although better than nothing, and sometimes I worry we're going towards nothing. I think-

 

Dan: (01:03:14)

We are going to nothing if we have the court. You were going to write a paper about this a long time ago. This was on your original research agenda.

 

Will: (01:03:20)

Right.

 

Dan: (01:03:22)

This question of fourth amendment remedies.

 

Will: (01:03:24)

Yes.

 

Dan: (01:03:24)

I think this is super interesting, right? Which is exclusionary rule, yeah, it's kind of a modern innovation, right? It didn't really exist a couple hundred years ago. It's more of a 20th century, starts out in the federal government in the twenties. Right? And then gets applied to the states later on. But basically, the whole remedial framework for fourth amendment violations look totally different 200 years ago.

 

Will: (01:03:44)

Right. Well, we used to have a lot more tort suits and no qualified immunity, and now we've made it harder to get the tort suit and created qualified immunity.

 

Dan: (01:03:52)

We also didn't really have even a professionalized police the way we do now.

 

Will: (01:03:55)

Sure.

 

Dan: (01:03:56)

There were the constables and people that were more like deputized citizens. I think that's the best argument for an exclusionary rule, is this is a translation to the fourth amendment to the modern context. You could imagine a different remedial regime, but it does seem like if we were going to get rid of it, you have to really, in order to effectuate the fourth amendment, we'd really need to have some other calibration on other parts of the doctorate and other areas of law.

 

Will: (01:04:28)

Yeah. Part of the pitch for the paper, it might be a book one day, is we had the 19th century remedial regime, which was heavily tort based and liability based, then we replaced it with the 20th century remedial regime, which was much more heavily exclusionary role-based. The 21st century remedial regime appears to get rid of the 20th century regime without bringing back the 19th century regime. That seems like the worst of all worlds.

 

Dan: (01:04:49)

Yeah.

 

Will: (01:04:50)

It's a good case to be made for full originalism, it's a good case to made for compensating translation, but the mix and match. So, the best line of Justice Thomas' dissent is the last line, "Criminal defendants must rely on other remedies."

 

Dan: (01:05:05)

Yeah.

 

Will: (01:05:05)

Justice Thomas, please tell us about these other remedies and where you think we can get them. I am interested in them.

 

Dan: (01:05:10)

Yeah, because, I mean, it's taking a step back. I mean, this case really exemplifies those 21st century problems, right? Because I think realistically, this is not going to result in exclusion almost ever, for some combination of the two reasons we talked about, but also, it's never going to result in other remedies either. You're going to go sue for trespass? That just doesn't happen very often. Are you going to sue for constitutional tort under section 1983? I don't know. What are your damages? I mean, we're really building up this fairly complex edifice of fourth amendment law, and we're fighting about it, but for practical purposes right now, who's it helping? Right? Who's helped? Who actually benefits from this versus a more categorical rule? Does it make any difference in terms of how much searching is going to happen? Maybe a little, tiny bit.

 

Will: (01:06:06)

Yeah.

 

Dan: (01:06:07)

Not a lot. Right?

 

Will: (01:06:08)

Maybe in officer training. I mean, you can sue the municipality if they have faulty training programs, maybe at least they'll change the training programs.

 

Dan: (01:06:16)

I mean, maybe, but they'll also just say, "But by the way, there's no exclusion." As long as it's a close call, probably no exclusion or. I mean, this is a weird area where there's this big conceptual distinction between rights and remedies, and I think some of the conservative justices have been very good on the substance, the rights part of the fourth amendment, but then they basically, Justice Scalia, as far as I can tell, didn't really think there should be much of a remedy, and so it kind of makes the whole broad proclamations about the importance of the right ring a little hollow.

 

Will: (01:06:48)

Yeah. Yeah, no, and this of course goes back to earlier this term, we talked about Ramos, Ramos the broad right to a jury trial, and then the retroactivity decision that makes that immediately much less exciting. This is a common pattern a bunch of people have written about.

 

Dan: (01:07:04)

Yeah. But at least that does help a lot of people going forward.

 

Will: (01:07:07)

Sure.

 

Dan: (01:07:08)

Right? The Is does help a lot of people going forward. Sure. Right. This is the problem with this is that not only does this not help people retroactively, it's not clear that it makes any difference in the future either.

 

Will: (01:07:15)

Yeah.

 

Dan: (01:07:16)

But, yeah.

 

Will: (01:07:17)

Fair enough.

 

Dan: (01:07:18)

Okay. Anything else we want to say about this? I mean, this is just one of these narrow, fact specific cases. The court disagrees a little bit. I think it reminded me of Burchfield. Is that the one?

 

Will: (01:07:36)

You wrote a blog on that case. That's one of those drunk driving cases, so the court says a bunch of weird stuff.

 

Dan: (01:07:39)

Yeah. It was about exigent circumstances for, if I'm remembering this right, I was hoping that you were just going to spout off the holding, because usually you're able to do that, about when you can do a warrant-less, exigent circumstances, breathalyzer and blood draw.

 

Will: (01:07:56)

Yeah. I think I intentionally didn't read that case.

 

Dan: (01:07:59)

Oh, okay. I thought you read everything, but that one.

 

Will: (01:08:02)

I make exceptions, and Brookfield versus North Dakota was one of them.

 

Dan: (01:08:05)

But anyways, there was disagreement on the court between a categorical rule that basically you can always do the warrant-less blood tests versus fact specific. Well, you can when there's really exigent circumstances, but it's not really clear how much distance there is between those two things in practice.

 

Will: (01:08:28)

Yeah. Okay. Well, we finally made it through the stack of interesting opinions we got from the court, so that'll have to do us until we get more. Thanks very much for listening, and please remember to rate and review us on iTunes or wherever you listen to the podcast. We are still looking to get people interested in the show, and reviews are a really important part of that.

 

Dan: (01:08:51)

Please leave us a voicemail, 3146493790. Shoot us an email, pod@dividedargument.com. Check out our merchandise at store.dividedargument.com. Heard from some folks who've already gotten their t-shirts. They're high quality, so check those out. If you are aware of any exciting parties, please invite Will to them.