After a predictably unpredictable set of detours through Latin grammar, parenting philosophies, and 90s video games, we catch up on the latest shadow (interim?) docket activity and recap the oral argument in the tariffs cases.
After a predictably unpredictable set of detours through Latin grammar, parenting philosophies, and 90s video games, we catch up on the latest shadow (interim?) docket activity and recap the oral argument in the tariffs cases.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: I was trying to think of what my lead in would be. I usually say it's been a long time since we've recorded. I think it's been a neutral amount of time.
Will: A medium time.
Dan: Medium time, yeah, Mid. Mid, as they say.
Will: So, I think we last recorded late October 29, and I think I joked that the Supreme Court would surely issue some interesting emergency docket thing between the time we recorded and our episode dropped. And that did indeed happen the afternoon after we recorded our last episode. The Supreme Court called for supplemental briefing in Trump v. Illinois, which is the pending case about the deployment of the National Guard. The parties are directed to file supplemental letter briefs addressing the following question. Whether the term regular forces refers to the regular forces of the United States military, and if so, how that interpretation affects the operation of 10 U.S.C. § 12406 (3). Those briefs are due over the course of November. So, one round of those briefs came in a couple days ago.
This question about regular forces, as far as I can tell, was not raised by the parties and basically raised almost entirely in an amicus brief by Georgetown professor Martin Lederman.
Dan: That's cool.
Will: Yeah. So, the parties are directed to file supplemental briefs over the course of the next month about an obscure statutory interpretation question raised only by an amicus law professor is definitely the kind of thing I'm here for.
Dan: Yeah.
Will: Yeah. By the way, it's clear that Martin Lederman is right about the meaning of regular forces, and it's less clear what that means for the statute. And does that mean you have to call in the army before you go to the National Guard? And can they call in the army under the Posse Comitatus Act? There are a bunch of interesting things about that and I'm sure once the briefs are in, we will eventually get a major emergency interim docket ruling about structure of the National Guard that-- [crosstalk]
Dan: But they don't seem to be proceeding in a super super expedited fashion on this.
Will: Indeed, indeed. This is a case where there is no administrative stay in place. So, the National Guard is not here. And everybody seems to be interested in keeping that going for as long as possible.
Dan: Well, that will be one to watch for. Maybe we'll get something about that immediately after recording. Maybe not. Maybe it won't even be resolved until our next episode or episode after that, depending on how much we pick up the pace.
Will: Yeah.
Dan: We've been thinking a little bit about whether we should be slightly more scheduled. What are you thinking, Will?
Will: I mean, that would really destroy our brand.
Dan: Well we could be more frequent, but we wouldn't promise specific days. But we could be more frequent. The coverage could still be unpredictable.
Will: Yeah, I'd be in favor of that. I mean, I think when we first talked about this podcast, I think my original proposal was we would be dark 11 months of the year and only record in June.
Dan: But that was never going to happen. [Will laughs] You can't keep the vibe going if you have 11-month hiatuses.
Will: Yeah. Yeah.
Dan: Is hiati the plural of hiatus?
Will: No.
Dan: Okay. I've never heard that, but-- [crosstalk]
Will: Can't be right?
Dan: Yeah. I don't know if it's a Latin word.
Will: Ask ChatGPT.
Dan: Yeah, like stati is not the plural of status because I think status is a Latin word. But it's fifth declension, as I recall.
Will: I don't know what a declension is, Dan.
Dan: Yeah, well, you will someday learn, I assume. I assume you're going to go read a book about declensions after this.
Will: No.
Dan: It's fourth declension.
Will: Richard Epstein once told me, before I went on the economic job market that I could not be a serious constitutional law scholar unless I spoke Latin. [laughs] And then I laughed. And then he told me he was serious, but I just accepted that I'm never going to be a serious constitutional law scholar by that standard.
Dan: What percentage of serious constitutional law scholars speak Latin? I think none speak Latin, I think.
Will: Know Latin sufficiently well to be able to work with the Roman law. I think is the question.
Dan: Okay. I know Latin well enough to do that. Although it's been many years. Read a good chunk of the Aeneid in the original Latin. I would not say I'm fluent. It takes a long while to work through Latin.
Will: I'm not there.
Dan: Well, you're always learning.
Will: I try.
Dan: You're reinventing yourself constantly. Now you're teaching election law. You're into federal Indian law.
Will: Yeah. I mean, but that's all law. I'm not like-- [crosstalk]
Dan: [laughs] Okay, fair. Yeah you're not working on any nonlaw related skills. You play an instrument, you're learning guitar or something?
Will: No, I'm trying to learn how to ride a bike.
Dan: Wait, you don't know how to ride a bike?
Will: That's true.
Dan: I mean, you literally don't know how to ride a bike.
Will: I have ridden a bike in my life.
Dan: Can you balance? Are you a five-year-old who doesn't know how to ride a bike and you can't balance and you have to have someone standing behind you, keeping you steady Is that what you mean?
Will: Closer. I mean, I took a bike riding class as an adult a couple years ago, so I successfully rode the bike, but it turns out not to be like riding a bike. It turns out that you can't just learn to ride a bike and then do it again.
Dan: Did you not learn this? Did you not have a bike when you were a child? Did you not bike at all? This is just a skill you never acquired?
Will: That's correct. I mean, again-- yeah.
Dan: Isn't this a failure of parenting? I just feel like this is one of those things like swimming, you have to teach your kids.
Will: I do know how to swim.
Dan: Okay. Did you learn that as an adult?
Will: No.
Dan: Last spring, we were hanging out with a friend of the show, Mila Sohoni and she has a list of skills that she believes children should be taught. We were debating what should be on that list. I think your position was it should include Dungeons & Dragons, Dungeon Master.
Will: Yeah. I think you're thinking about things that will really make you happy as a child, give you command over the world and ways of thinking about things. Make you the hit at all the good parties.
Dan: Yeah, it just depends. Depends on the kind of parties. Different people like different kinds of parties.
Will: Well, the good parties all involve Dungeons & Dragons.
Dan: That's a bold statement. But I'm willing to believe. I'm willing to believe parties that involve Dungeons & Dragons are good parties. Not that all good parties involve Dungeons & Dragons.
Will: That's true. Even now, most of the parties I go to do not involve Dungeons & Dragons. And some of them are still good.
Dan: You do other board games?
Will: Sure.
Dan: You're a big board game guy?
Will: Yeah. Any game. Board games, card games.
Dan: Not video games. You don't like video games?
Will: Video games are fine. Like all people, I believe video games peaked when I was a teenager. So, the best video game systems were the ones that were around when I was playing video games a lot. And now they've gotten too complicated.
Dan: No, I don't think so. I think that we're still cresting.
Will: I don't know. I can't even figure out the controllers now. Too many control buttons. Too many switches.
Dan: Yeah, no, they're great.
Will: Give me the N64, GoldenEye, Super Mario Bros.
Dan: I tried to play GoldenEye the other day because on the Switch they have this thing where you can play previous generations of Nintendo games and the controls were just totally different than the way modern first-person shooters work. The way the sticks worked, I actually couldn't do it.
Will: Well, this is why I can't play the modern ones. I could still play GoldenEye right now but--
Dan: You could learn. You're not too old to learn, but, yeah, my favorite was Proximity Mines in the facility. That was the best combo. We could really just jam people up with those Proximity Mines.
Will: That was terrible and tedious, but I could do it.
Dan: Oh, really? That was super fun. Okay, I don't know if we've hit our-- No, we're only nine minutes in and we've just been doing chit chat. And I think even our most sensitive listeners can't begrudge us nine minutes of chit chat. I was a little late to our recording session because I was talking to, I think, new friend of the show, Judge David Strauss of the Eighth Circuit. He's here to judge our moot court. And he actually told me he saw you recently.
Will: At the National Arts Convention in DC.
Dan: So, how was that, by the way? I did not attend this year and I didn't have the privilege of getting into an altercation verbally on a panel with a distinguished federal judge. They didn't invite me. I would go if they invited me again.
Will: Yeah, they didn't invite me either. I just showed up.
Dan: You didn't do a panel. You just were in the audience. Did you bring your tux?
Will: No, I didn't go to the dinner. I was just passing through.
Dan: Isn't that the point, to go hear the Justices? Wasn't it Kavanaugh and Barrett?
Will: Yeah.
Dan: You didn't care?
Will: I go mostly to stand in the hallway.
Dan: You go to network.
Will: Yeah. Or to say hi to people I already know. I don't really-- Yeah.
Dan: Do you go to the panel? You just hang out in the lobby?
Will: I went to Judge Oldham, gave the Olson Royal lecture about debates.
Dan: He's a friend of the show, right? Or at least friend of ours.
Will: Yeah, he's a friend. I don't know that he has time for podcasts. [unintelligible [00:09:52] he is putting on. There was this interesting vibe in general about the debate and some of this about the convention, and some of this was online about one of the key debates was between Kristen Waggoner of the Alliance Defending Freedom and my colleague Mary Anne Case about is it unconstitutional for does the Constitution require schools to notify parents if their children are using opposite gender pronouns or doing other sort of trans things or framed more tendentiously, is it unconstitutional for schools to trans people's children? [Dan laughs] And there was some complaint online. People were like, “It's outrageous that we're debating this. This should be beyond debate.”
Dan: In which direction?
Will: The people who said that thought that ADF was obviously correct and if anything, the opposite might be true. But there's a lot of good-- [crosstalk]
Dan: The opposite of what?
Will: Of ADF's position.
Dan: Sorry. They thought that the ADF was wrong?
Will: People who said we shouldn't have to debate this thought that ADF was clearly correct and that it's clearly unconstitutional for schools not to notify parents about.
Dan: But how could they also agree with the opposite of that position?
Will: Oh, I'm saying to the extent that there is an obvious answer, it's not what the people who are complaining.
Dan: Oh, you think that there is no-- what about an intermediate position, which is that laws like California's that bars schools from informing the parents or unconstitutional. But maybe there's not an affirmative constitutional obligation. Could that be a defensible middle ground?
Will: I think the more defensible middle ground would be something like maybe schools can't take affirmative steps to try to encourage children to do something that's not what their parents want. I still think that's wrong. But the right to know thing is really strange. I'm not sure what the constitutional basis would be for saying the government is required to provide information to people. But it depends in part on what you think about substantive due process and so on. Anyway, there's this general point that a lot of things that we might have strong feelings about that we might think should be beyond debate, in fact, in a pluralist society, there are people who disagree with us.
And the premise of debate is that we have to live together and might want to talk about our different views, even things that I think should be obvious. Every year we have a debate about originalism here at the University of Chicago Law School. And I think everybody should be an originalist and ought to beyond debate, that we're all originalists. But obviously that's not true and it's profitable to talk about originalism even with people who-- [crosstalk]
Dan: But you think everything should be up for debate?
Will: Well, it should be in-- I think debate is a good tool of resolving disagreements. I think there are some things that are currently not debated because there's an obviously correct answer, and anybody who debated them would be wrong. Like, was Hitler secretly a good guy? No. And it's not that useful at debating it now, if there are-- [crosstalk]
Dan: I thought your view was like, everything should be debated and you would show up to a debate about anything at all times.
Will: I don't think I ever put it that way. I mean--
[laughter]
Dan: We kind of got into a, like, it was the thing that we did at William & Mary.
Will: Yes.
Dan: Somehow, like, I got you to say, like, “You would have dinner with everybody,” and then you were like, “No, that's not what I mean.”
Will: There was some question about, like, if you were calling for me to be executed, whether I would still do the podcast with you. And I think I took the position that I would still do the podcast with you, but not live shows. I do stand by that view.
Dan: I don't believe that. And I don't anticipate believing that in the future.
Will: We'll see or not. Hopefully, we won't see, actually.
Dan: I mean, we will see whether I don't.
Will: Well, you're never going to do it.
Dan: We'll never know, I mean, until I die, whether I would ever have taken that position.
Will: But I just mean we're not going to put it to the test because you're, in fact, a good person.
Dan: That's up for debate, right?
Will: I have not seen any good evidence to the contrary.
Dan: Well, we will see.
Will: All right. Now can we talk about law?
Dan: I suppose.
Will: I think our main order of business is something we don't usually do, but it seems like we should do, which is talk about an oral argument that happened in the past. We don't do a ton of argument recaps because we tend to think--
Dan: Because it's more work.
Will: You say it's more work. I think it's just because there's so much noise. There are all these things every year that people get all heated up about, like, “Is the Supreme Court going to grant cert to overturn a Obergefell or is the court going to destroy democracy?” And 9 times out of 10, the answer is no. Just wait for the opinions. There's plenty to talk about in the opinions, but we had an oral argument of the constitutionality and legality of the tariffs. That's interesting. And that's produced a lot of questions, speculation that's going to happen. And so, it seems like it's worth talking about that. Should we talk about the shadow docket things first, [crosstalk] actual opinions? Okay.
Dan: Although you and I were having a preshow debate about whether the shadow docket terminology was enduring, whether when you retire decades hence, that will be but a footnote in your corpus.
Will: Interim docket. I'm on board with the interim docket renaming. They got to me. But I do sometimes still call it the shadow docket.
Dan: No. I think we should, out of loyalty to you, we should continue to push it.
Will: I appreciate that, but I don't feel any-- You got to hold your identity lightly. Anyway, these shadow interim docket rulings. I guess the most controversial one, the first one let's talk about, is Trump v. Orr, the gender/transgender passports case.
Dan: Well, slash, sex.
Will: Yeah.
Dan: Right. Not just gender.
Will: Fair enough. This had been pending for a while. It was one of the two things, it and the National Guard were the two big interim docket things that have been pending for a while. Last time I recorded-- [crosstalk]
Dan: And that had not been stayed.
Will: Yeah, right.
Dan: This is an order from the district court that had been in effect for quite some time.
Will: Yeah. But no longer.
Dan: Yeah. I remember I had renewed my passport recently. This is not an issue that directly affects me, but I was reading the Reddit passport subreddit for information about the current timing of renewals and so forth, and there was a lot of posts about this situation from people who were trans who originally months ago had not been able to get new passports that accorded with their gender identity and then post the ruling that was at issue in this case by the District of Massachusetts had been able to for some period of time get such passports.
Will: Right. Although I guess it's tricky because it takes a while to get your passport renewed. So, if the ruling came down-- [crosstalk]
Dan: It actually is pretty quick.
Will: Oh, sorry.
Dan: Yeah. These days it actually takes about a couple weeks even if you don't pay for. I mean, it doesn't always, but even if you don't pay for expedited service, I think a lot of people are getting them turned around very, very quickly, and that's-- So government-- I don't think that was true during the shutdown, but when I got mine done earlier in the fall, it was quite quick.
Will: Okay, well. All right. So, as the Supreme Court says, “This case concerns an executive branch policy requiring all new passports to display an individual's biological sex at birth.” The District Court of the District of Massachusetts had preliminarily enjoined the government from enforcing the policy. The First Circuit, of course, did not stay that. The government applied for a stay. And now, after letting it sit for a while, the court grants the stay, grants the government's application to stay the injunction against them.
Dan: “Applying our familiar stay factors at the preliminary stage.”
Will: Applying our familiar stay factors at this preliminary stage. And there were two challenges to the policy. One is an equal protection challenge, which the court spends most of a paragraph responding to, and says, “Displaying passport holder sex at birth no more offends equal protection principles than displaying their country of birth. In both cases, the government is merely attesting to a historical fact without subjecting anyone to differential treatment. On this record, respondents have failed to establish that the government's choice to display biological sex lacks any purpose other than a bare desire to harm a politically unpopular group.” That's a quote from Trump v. Hawaii, quoting earlier, sort of equal protection animus cases.
Dan: Yeah. And can we stop there before we talk about the second thing.
Will: Yeah.
Dan: That first sentence is quite definitive and emphatic for an interim order.
Will: Yeah. It's like a ruling on the merits.
Dan: Yeah. I mean, there's nothing tentative about it. The second sentence is somewhat more tentative in the sense that, I mean, I think that it resolves the claim in this case. On this record, it allows the possibility there could be supplementation of the record that would resolve. It could lead to a different result, right?
Will: I guess on this record, respondents have failed to establish. It allows the possibility that respondents could still establish.
Dan: But it would have to go back down to the district court, right?
Will: Well, I'm not sure whether on this record means, given the facts, there's nothing you could say about it or whether that means given the facts and the arguments you've made in your briefs, you haven't yet shown us, at least in theory, you could parse this to mean respondents could now say, “Ah, but on this record, page 22,” once you look at it more carefully, proves this. But I think you're right. I think the correction-- [crosstalk]
Dan: I mean, that's certainly, I would read it the way I'm reading it.
Will: Yeah. I think that's-- [crosstalk]
Dan: If you say so, “on this record, you failed to show,” I just think that means you haven't given us enough in the record to show. And so, this basically is telling the First Circuit what to do on the equal protection claim.
Will: I think that's right. And I think the equal protection claim did not seem like the stronger of the two claims for reasons we could talk about. Some people also described these sentences as being ugly. I think there's a thought that this is merely a historical fact echoes the standard anti-trans position that sex is a biological fact and that anybody who thinks otherwise is being nonfactual which is not quite what it says, right? Historical fact is different from-- [crosstalk]
Dan: It is a historical fact, right? I think that is a true statement, as a matter of fact.
Will: Yeah, I think if it said displaying passport holders sex assigned at birth, everybody would agree that what sex you were assigned at birth is a historical fact. If your whole claim is that the sex that you were assigned at birth is not your actual sex at birth, then we could still maybe disagree a little bit about which part is a historical fact. But I take it that might just be lingo.
Dan: I mean, that part of it didn't seem offensive to me. It was interesting. It has a certain – that sentence – and I know we're parsing this at the sentence level, but this is what we have to do when the court doesn't give us much.
Will: When the opinion is only five sentences long.
Dan: Yeah. I mean, it has a certain total back of the hand feel. I think it's because it's no more, right?
Will: Yeah.
Dan: Somehow it just has this feeling of like, “You idiot.”
Will: It does. Although it's also legally, and this is true of Skrmetti, too. Legally, it’s the opposite, right? There are questions the court has not resolved, like does transgender status get heightened scrutiny? And by framing it this way, that actually let the court make less law about transgender status by saying, “This case doesn't even implicate transgender status because it's just about stating historical fact.” So, it's legally narrow, even if it's got broad vibes.
Dan: Yeah. And then the second sentence that we just talked about, I think there's less-- I mean, you could disagree with the result on the merits. There's maybe slightly less to complain about there because saying they failed to establish the government's choice lacks any purpose other than a bare desire to harm a politically unpopular group. I think it means it could have that purpose as long as it has other purposes, right?
Will: Yes. Yeah. Although, no, I think actually the more eyebrow raising part of the case is the last sentence and citation of the paragraph. “Nor are respondents likely to prevail in arguing that the State Department acted arbitrarily and capriciously by declining to depart from presidential rules that Congress expressly required it to follow, see 22 U.S.C 211a.”
Dan: So, I had to read this sentence like three or four times. I didn't quite follow the grammar originally.
Will: Double negatives.
Dan: Yeah.
Will: So, I mean, I remember looking at this in the first place because when the injunction first issued, I thought, what's the theory that the Constitution requires passports to contain this or something. And the stronger legal claim, I think was an APA claim, basically that there are procedures for changing the passport form and you have to go through various things and the Paperwork Act. And this is not just something you do. You don't just suddenly change the rules for passport acceptance because somebody said so. And of course, the point about the Reddit threads, people are trying to keep track of the rules and figure out what to do drive that home.
And one of the administration's main arguments, which is an argument they're making variations of in a lot of cases, and this is actually something we should keep an eye on, is more or less the following. It's already established that the APA doesn't apply to the President because the President is not an agency. So, when the President just does something, like you don't go through the APA. So, what if the President does something and tells agencies to do it? Is that a get out of the APA free card? Because the President's actions are unreviewable under the APA and under the unitary executive, everybody's supposed to follow the President or at least can follow the President. That's like a-- I mean--
Dan: That would be big.
Will: That would be big. I don’t, I mean-- [crosstalk]
Dan: That can't be right as a matter of statutory interpretation, maybe it could be read as a matter of-- [crosstalk]
Will: Constitutional laws.
Dan: Constitutional--
Will: Yeah.
Dan: I mean, it just seems extremely implausible that the APA was intended to impose all these procedural requirements that can just be bypassed as long as there's a two-sentence order from the President, saying, “I authorize everything I'm telling the agency to do everything it does.”
Will: I think I'm with you. I mean, I find this argument quite eyebrow raising. And what's interesting is that the court finds a way to accept it in this context. Now they rely-- but as I understand the theory, such as it is. Well, the statute about passports expressly requires agencies to comply with presidential rules. So, in this context, Congress didn't want the APA to apply, or in this context, it's not arbitrary and capricious to follow presidential rules. I mean, these are by hypothesis, it would otherwise be arbitrary and capricious, but the President said do it. But all the statute says – 22 U.S.C 211a – it just talks about Secretary and State granting and issuing passports, and then says, “Undo such rules as the President shall designate and prescribe.”
Dan: Yeah, I mean, and they frame it as the argument being that the State Department acted arbitrarily and capriciously by declining to part from presidential rules that Congress expressly required it to follow.
Will: But in all these cases, it's a potential arbitrary and capriciousness challenge. And the President says, “Do it. Be arbitrary and capricious.” I mean arbitrary and capricious is a term of art, and often it is about annoying administrative law procedure. But the President says, “Do it.” So, what distinguishes this case from every other case, this argument that is being made? I guess the only difference is that here Congress expressly required the agency to follow it. But if you're a unitary executive person who believes that agencies are implicitly required to follow it already, why would that be different?
Dan: I mean, they can't have intended to actually resolve that question.
Will: I'm sure-- [crosstalk]
Dan: I can't believe they all believe it, right?
Will: Right. I mean, I'm sure the reason it is worded this way and with a citation is to avoid taking a position on the broader question of, like, does the President trump the APA?
Dan: Yeah.
Will: But I'd like to know, does the President trump the APA, and I'd like to know whether this limiting principle really works. So, this does, on the one hand, strike me as a good advertisement for Justice Kavanaugh's argument that like, “Look, it's sometimes better if we don't say as much on the interim docket because the stuff we say is going to make bad law. But also, a good advertisement for the standard critique.” Like, “Well, if the stuff you say is going to make bad law, why are you granting this application? Why not just say, ‘It is far from clear that the President can exempt agencies from the APA and therefore the administration has failed to show sufficient success on the merits. And we look forward to hearing your appeal.’” But maybe it's just me.
Dan: Yeah. So, my sense was that this paragraph was a little bit more merits heavy than some of the typical interim orders we get from the court. The first sentence really is leaning almost more towards a summary reversal.
Will: Yes, I agree. It's close to a summary reversal on the equal protection ground with then a mumble mumble fudging of the APA ground.
Dan: Yeah, at least they say they're not likely to prevail. So that does keep open the possibility of prevailing, which is the question at the interim stage. But I mean, if I was on the Court of Appeals, I would just own the Equal Protection Argument, I would just say the court has told us this fails and maybe I would write a concurrence saying, “Here's my view on the question” and flesh it out a little bit more. But I think in terms of what I mean, the majority at this point should just be a per curiam that says-- If the court were just addressing equal protection, I think it would just say the Supreme Court has said this doesn't violate the equal protection clause and that the challengers haven't deduced evidence to the contrary.
Will: Yeah, maybe a per curium rebound, you'd say, the majority has already said the record is insufficient on the animus question, so we remand for animus hearing. What else you got?
Dan: Is that a new procedure, the animus hearing?
Will: No, it's a very old procedure.
Dan: [chuckles] Okay, so then I guess next paragraph, slightly less controversial. For these reasons, the government is likely to succeed on the merits. District court's grant of class wide relief enjoins enforcement of an executive branch policy with foreign affairs implications concerning a government document. In light of the foregoing, the government will suffer a form of irreparable injury absent a stay, citing CASA for that. But I think more generally, we've come to the point already, where enjoining the executive branch from doing something he wants to do is now just kind of de facto per se, irreparable injury. That's not new.
Will: I mean, it's not new in this case. It’s new --
Dan: I mean, it's new in the broader sense, but that's not law this case is making.
Will: Right. It's new since we became law professors. It's not like this was even law when we--
Dan: Yeah. No, I mean, it's new since we started this podcast. It's new since-- [crosstalk]
Will: One of my many projects in the hopper is going to try to unravel how did we get here and what other sensible places might we have gotten instead on this irreparable injury to the government question.
Dan: I think there are other such sensible places we might have gotten for better or for worse.
Will: I'd like to find them.
Dan: Okay, and then next sentence, and this will be relevant in a few minutes. Next sentence is, “The application for stay, presented to Justice Jackson, and by her refer to the court, is granted.” So, then it's just standard stay language.
Will: Yep. And then a dissent from Justice Jackson and I don't know how you felt about this dissent. On the one hand, it makes a lot of good points. It makes the irreparable injury point. It makes a lot of standard critiques. It does have an almost explicitly tired quality. As is becoming routine, the government seeks an emergency stay of a district court's preliminary injunction, pending appeal. As is also becoming routine, this court misunderstands the assignment. And then you could add, as is also becoming routine, Justice Jackson has the dissent, saying, “What else things you expect.” So, the whole thing felt a little, I don't know, a little old.
Dan: Yeah, I think we've seen this a bunch of times. But she basically says the thing that you're saying about herself. She says, “Such senseless sidestepping of the obvious equitable outcome has become an unfortunate pattern. So, too, has my own refusal to look the other way when basic principles are selectively discarded.”
Will: Okay. Just at a sentence level. So, too, does that mean she thinks it's an unfortunate pattern that she keeps dissenting?
[laughter]
I mean, it's unfortunate, I think that's necessary, but I don't think she actually thinks, “It's unfortunate that I refuse to look the other way.”
Dan: I mean, I think it's unfortunate that it's become a pattern in the sense that she would prefer that this whole thing not be a pattern, correct?
Will: Right. Yeah. But it makes it sound like it's unfortunate that she can't get over it.
Dan: It would be much more fortunate if she would just look the other way.
Will: Yeah. You also got a little alliteration. I cannot acquiesce to this pointless but painful perversion of our equable discretion.
Dan: Yeah. At a sentence-by-sentence writing style level. I don't always love her writing. I mean, she likes metaphors.
Will: Often mixed metaphors.
Dan: Yeah, mixed metaphors are not my favorite.
Will: Yeah, it's interesting. Have we talked on the show yet about that New York Times story by Jodi Kantor that quoted you?
Dan: I don't know if we have. I enjoyed the story and I enjoyed my conversation with Jodi about that.
Will: And about some of the different roles that Justice Kagan and Justice Jackson are taking, or Justice Kagan is, in many ways, playing the inside game, trying to work with the majority, make the decisions a little less bad from a point of view. And Justice Jackson is more writing for the public or for the ages or for something else to try to sort of like, sound the alarm. What's going on?
Dan: I think it's a really hard question, which is basically what I told to Jodi, which is, if you're in this situation and you believe the court is doing stuff that's really bad, who is your audience when you're writing separate opinions. And should you just be trying to stem the losses, slow things down, or should you be trying to actually basically delegitimize the institution with the public in a way that can speak to and be used by the political opposition?
Will: Right. And I think this is the thing, in a huge way, this is what Justice Scalia did, especially compared to the Court he joined. I think his dissents were often designed to delegitimize a certain form of legal reasoning that he thought was illegitimate judicial activism. They were written in a way that was supposed to speak to the public more to his colleagues. It famously had costs alienating Justice Kennedy and Justice O' Connor and sometimes meaning that he was not part of the conversation. But also, I think many people look at that and think, well, it worked. Justice Scalia successfully changed the conversation with the courts by going outside the courts.
Dan: It is a different situation there, though, where I think someone like Justice Jackson probably believes or that this Court is deciding issues in a very explicitly partisan way, just consistently favoring Republican presidents, consistently disfavoring Democratic presidents, consistently adopting theories advanced for political reasons. And I think that in the early Justice Scalia period, I'm sure he believed the court's approach was too liberal, but it didn't look exactly like that. A lot of his interlocutors were Republican appointed Justices who I don't think could be confused for Democratic Party partisans. And some of the cases he was doing that in, like early confrontation clause cases, I had my students read Maryland v. Craig a few weeks ago, early confrontation clause case, about the use of closed-circuit cameras for testimony by child witnesses.
He scores a lot of points and it's a lot of harsh rhetoric, but it's on behalf of a criminal defendant. Here it's a little bit-- I think someone like Justice Jackson might feel like it's more of an emergency. Does that make sense? And certainly, I don't think that the Justice Scalia period, if the Court doesn't change its ways, we're going to lose our democracy. Which is, I think, probably her belief to some degree.
Will: Some of Justice Scalia's most famous and effective dissents were often solo, like in Morrison v. Olson and Mistretta. So, it wasn't exactly like there are Republicans and Democrats in the majorities. He was dissenting from a majority by Rehnquist in Morrison v. Olson.
Dan: Yeah. And it was really about method.
Will: Yeah. Now, there were parts of it that were about democracy, like his dissenting Planned Parenthood v. Casey is about why Justice Kennedy, Justice O' Connor and Justice Souter are a threat to democracy. Even then, his explicit predictions is not, we're going to lose our democracy tomorrow. It's more like the long-term effect of this kind of decision making on the institution and confirmation politics is going to be corrosive and politicize the Court which was correct or I mean, which happened – what's the causal mechanism who knows? Yeah, it seems like a different audience. And also, Justice Scalia was just so good at it. Just at a craft and rhetoric level. Even the rhetoric people don’t love.
Dan: No, I mean, he's definitely the best writer on the court in our lifetimes. I mean, Justice Kagan is really good, but--
Will: Yeah, Justice Kagan and the Chief are both good at a certain kind of writing, which is a clear but accessible legal reasoning makes the argument seem persuasive. But Justice Scalia was good at the writing that makes you want to throw the method of interpretation out and feel like something's going wrong here.
Dan: But also, just like on a sentence-by-sentence level, there's more sentences you read by him and you're just like, “Man, I wish I could write as well as that.”
Will: Yeah. I'll also say there are more sentences I’ve read written by Justice Scalia that caused me to be convinced of things I previously thought were wrong. Just like I thought this was the correct view. And then I read an argument in three paragraphs by Justice Scalia. And I was like, “Oh, that's right, actually.”
Dan: Yeah, yeah.
Will: And much legal writing isn't of that form. Judicial opinions, in a way, don't have to convince anybody because they have all the power. But dissenting opinions do, right?
Dan: Yeah.
Will: And I guess I wonder, is there a person who was ever persuaded by a Jackson dissenting opinion, like persuaded that she was right when they presumed they were wrong? There may be people who are persuaded by this, like, “All right, I'm convinced we need to go to the barricades or I'm convinced that we need to pack the court.” And [unintelligible [00:38:23] didn't believe that or something.
Dan: Yeah, on a legal point. Yeah. I'm not sure about that. I mean, an opinion like this, I mean, the majority does leave itself open in the sense that she is able to point to some factual things that are good to know and that it's always kind of annoying when you have an opinion and you get to the dissent. And the dissent is like, “Here's a bunch of factual stuff that you weren't told.” And she does point to some record evidence about meaningful harms. Some of the people in the plaintiff class allege by virtue of this policy being subject to very intrusive strip searches and so forth and the majority opinion, such as it is, if you can even call it an opinion, just only talks about harm to the government, does not grapple with the harm to people in the plaintiff class, even a little bit really.
Will: Yeah.
Dan: So, I mean, there's stuff like that, right?
Will: Yeah, no, that's true. I mean, I think she makes some good points.
Dan: Yeah, I do. Just, I find her opinions not as effective.
Will: Yeah.
Dan: As they could be. But, I mean, I'm not sure everybody feels that way. I think the people who are a little bit more, kind of less milquetoast than me, who are more rah-rah probably are pretty into them, right?
Will: Maybe. I think if we have listeners who want to call in with vigorous defenses of the effectiveness of Justice Jackson, we would definitely play that on the show.
Dan: The people that listen to the show are less likely to be those people, right? They listen to other stuff.
Will: Because we're a team of milquetoasts?
Dan: Yeah, right. [Will laughs] We would just make you mad. If you're one of those people.
Will: I try not to stereotype, Dan. I believe there's only one kind of person.
Dan: [Chuckles] What does that mean?
Will: Everybody's, you know-- [crosstalk]
Dan: Everybody's the same.
Will: I know, but I just, like, we're all-- [crosstalk]
Dan: We're all looking for different things in our media consumption.
Will: All right, that's true. That's true. Some people want to learn things.
Dan: That creates self-selection.
Will: Yeah. Okay.
Dan: I think some people want to be flattered in their preconceptions and some people want to have their views changed and some people just want to nerd out on the little details and that's okay. There's room. I mean, that's the nice thing about our media universe. I mean, there's good things and bad things about it, but the way in which it's stratified and balkanized does mean that there's room for everybody. Like, there's not like one podcast that's run by ABC and you either listen to it or you don't.
Will: Yeah.
Dan: You go in the podcast app and there's many thousands of podcasts and whatever you're into you can find and listen to it.
Will: Yeah. I wouldn't mind if we had some more strident listeners. That'd be fine.
Dan: You want to reach everybody?
Will: Yeah.
Dan: I guess the better question is, has any 30 second soundbite from this podcast ever convinced someone to change their views about an important question of law? That's the corollary question.
Will: Mm-hmm. Yeah.
Dan: Yeah. She also begs the question in a way that, as a former philosophy major, I find odious.
Will: You mean just--
Dan: Just to mean, raise the question, right? Whereas as it's used in its more formal sense, beg the question means kind of like the premise that you're trying to assume is a premise of the thing that you're trying to evaluate.
Will: Yeah.
Dan: Right?
Will: Not great.
Dan: Yeah. But of all the things people in the Supreme Court are doing these days, I think that's one of the least objectionable. I'm just being snobby.
Will: I don't know. That's the kind of thing like Justice Scalia used to call you to yell at you about, if you misuse beg the question or misuse a gerund. But the age of Scalia is dead.
Dan: I had a Scalia question. Do you remember Michigan v. Bryant, a Confrontation Clause case from 10 or 15 years ago?
Will: Yeah. That's the really weird, unprincipled one where they rule for the government and nobody knows why.
Dan: Yeah, basically just because nobody actually wanted to exclude this testimony because it would let this murderer out of prison for silly reasons. He uses the word dystopian and then one of my students ask, because he has this footnote that defines the term.
Will: Defines the term dystopian.
Dan: Yeah, it says footnote, the opposite of utopian. The word was coined by John Stuart Mill has a caustic description of British policy and then cites Hansard's parliamentary debates and the OED, which I agreed was strange. I didn't think it was such an unusual word that it merited a footnote explaining it to ignorant readers.
Will: I did not remember that. I'm looking at it now. My totally unfounded speculation will be the following.
Dan: Okay.
Will: A clerk put that word in the draft. Justice Scalia said, “That's a made-up word.”
Dan: Yeah.
Will: There's words like this. I still try not to use mentor as a verb. Actually, mentor as a verb is fine. I try not to use mentee, the back formation of the person who is the person who you mentor because mentor comes from just the Greek character mentor, I think in the Odyssey. So, it's not a verb. So, it's not that there's a verb to ment. It's a mentor as a person. But obviously, at this point it's there. But I would not be surprised if Justice Scalia-- [crosstalk]
Dan: It's a useful word though, right?
Will: It is. So is dystopian. So, I bet you I'm just again, totally speculating. Justice Scalia was like, “That's a made-up 20th century word from Webster’s Third International Dictionary that I don't believe in.” And then his clerk was like, “Nope, it's actually a real word and it's as old as the Fourteen amendment and then Justice Scalia was like, “Well, okay.”
Dan: Although that's a stupid position, right? Which is that if it's just made up by John Stuart Mill, it doesn't actually become any more legitimate than it being made up today.
Will: Of course it does. That's the common law.
Dan: But I mean, if your objection is to making up words, taking existing words and flipping them around in a way that is inconsistent with their original usage.
Will: Communis error. The premise of the common law is that old mistakes that are well settled or binding law and new mistakes are very bad.
Dan: Okay, fine.
Will: I mean, it's a very Scalian position.
Dan: Oh, Scalian. I like that.
Will: Maybe we could say that shows what's incoherent about a certain legal formalism. But anyway, this is good. I like that. One day when somebody's papers come out, 2011, I'll try to make a note to find out what happened here. All right. Should we talk about the other order?
Dan: Okay, yeah. This one, I mean, it's also a Justice Jackson related order, but the court has given us less to work with.
Will: Yeah, it's an interesting general fact that Justice Jackson is the circuit Justice for the First Circuit, which appears to be the hotbed of anti-trump litigation. And Justice Alito is the circuit judge for the Fifth Circuit, which is also AARP. It just turned out to be very consequential assignment matchups. So, there was a lawsuit about funding SNAP benefits during the government shutdown. And on the one hand, you're not supposed to spend money unless Congress has appropriated it, but then there is this congressionally appropriated backup fund. And so how to think about the law? The backup fund was the subject of this lower court litigation. And Biden appointed a district judge, who ordered the government to pay SNAP benefits, and they went to the First Circuit. And then Justice Jackson entered a 48-hour administrative stay.
Like put everything on a tight timeline. I think the First Circuit had not yet ruled, so she issued a 48-hour administrative stay with instructions at the First Circuit to rule, and they denied it. And then it all shook out with the First Circuit having denied the state of the government to stop SNAP benefits and the government going to the court and we get the following order and pending case. So, this full court it's still pending. The application for stay presented to Justice Jackson is referred to the court. The administrative stay entered on November 7th is hereby extended until November 13th. Justice Jackson would deny the request for extension of the administrative stay and would deny the application. So, nothing much to work with here, but there are a couple of weird things.
And one is, as you noted, I'm talking about Trump v. Orr, the standard thing that happens here is the circuit Justice gets the application for a stay and either denies it outright or refers it to the court. And this says in the passive voice, the application for stay is referred to the court, but it doesn't say she referred it to the court. Maybe that's just happenstance. That seems unlikely, but maybe she refused to refer it to the court and they took it, right?
Dan: Yeah. Although, one way that's dealt with is then the applicant goes to a different-- you're allowed to go to a different circuit judge.
Will: Yes.
Dan: Circuit Justice at that point, I mean, I think maybe the Justice has to formally deny the request.
Will: Yes.
Dan: And then they go to somebody else.
Will: Yes, I think that was the old workaround for a circuit Justice denying something that the court wanted to grant. And I wonder if we're just seeing this is a streamlined workaround, like it's more cumbersome and a little more embarrassing.
Dan: I don't totally know how it works because I mean, formally, these filings, they don't go to the other chambers. If it's just something that goes to one chamber.
Will: Right.
Dan: And so, the other Justices see on the news that this is happening or something.
Will: Well, it's also possible, actually it's plausible that she might have still circulated it. She might have said, “I've gotten this request, my plan is to deny it without referring to the court” or something.
Dan: Isn't that just functionally a referral?
Will: Well, yes. And then in that case, it's formally not a referral, and formally they're-- like, in this case and Trump v. Orr both, Justice Jackson, the circuit justice would deny the request. And in one of those cases, she referred it to the court, who overruled her. And here, maybe she didn't refer to the court.
Dan: And if she hadn't liked, sent it out to the court just saying, “Here's what I'm going to do.” I actually just don't understand what the formal internal procedure would be. The Chief would be like, “The clerk tells me this has been filed. I haven't heard from Justice Jackson. Here's what I recommend.”
Will: So, the other case I was thinking about was AARP, the midnight immigration case. That case also had the same passive voice language.
Dan: It was a little different, though.
Will: [unintelligible [00:49:50] the court.
Dan: Yeah.
Will: Again, Justice Alito had not, at the time, referred it to the court. And maybe in that one, he hadn't even said he wanted to deny it. He was just like, “It's the middle of the night on Good Friday or whatever.” So, I don't know exactly what procedure was used there for the full court to act when the circuit Justice had done nothing. But whatever that is, I take it could be used here too. And maybe it is just like somebody sees it in the news and somebody the court says, “We're acting.” Anyway so this might or might not be a big deal. If Justice Jackson really did de facto refer it to the court and just refused to call it her referral because she was annoyed or because it's an administrative stay and they just overruled her. And this is slightly different language. It's not that interesting. If it is more like the court as a whole is starting to activate some internal procedure that cert before judgment, but for themselves, that could be a thing to watch, right?
Dan: Yeah. This is an area where I'd love to get one of those Joan Biskupic kind of scoops about what was going on.
Will: I wouldn't.
Dan: You wouldn't want to know.
Will: Well, I'm against those scoops.
Dan: Well, yeah, but wouldn't you want to know?
Will: I try not to read stories that are the results of violations of the judicial canons of ethics, which I think those scoops mostly are.
Dan: You try to remain ignorant?
Will: Yeah.
Dan: That's a bizarre position.
Will: Really?
Dan: Yeah.
Will: Okay.
Dan: I mean, did you refuse to read the leaked Dobbs draft?
Will: No, I read it. I read it.
Dan: Why is that consistent with your principles?
Will: I felt bad about it.
Dan: Did you feel like you were doing something wrong?
Will: So, when I had a security clearance in private practice, the formal rule was you couldn't access classified information even if it was public. And during that time the New York Times published a bunch of classified information. And I asked my handler about this and she said, “Look, technically you're not allowed to read that stuff.” So, I didn't read the New York Times for six months because I didn't want to accidentally read classified information in the New York Times that jeopardized my security clearance.
Dan: That’s totally insane.
Will: Now, I mean, the rules around security are insane, but I mean-- [crosstalk]
Dan: There is no such rule that I'm aware of that applies to people in our position.
Will: No, I do think the rules of professional responsibility forbid not just leaking information, but also aiding and abetting the leaking of information. Because there's a professional responsibility rule about aiding and abetting. I don't think that just merely reading the documents would qualify as aiding and betting. So, I'm not that worried about it, but I don't like it.
Dan: I mean, you're not actually worried about it at all.
Will: I don't like it.
Dan: Yeah.
Will: I'm just old fashioned.
Dan: Yeah. I don't know. That's very principled.
Will: No, you might be right. You might be that I actually have no principle to support this view. And it's just like, I just have a weak stomach or whatever for unethical behavior, but I do.
Dan: Yeah. Just my view is you can not like the unethical behavior, but it's neither here nor there in terms of whether you should make yourself aware of information that's out there.
Will: If it's sufficiently important, it's sufficiently out there. I have to learn it. I mean, I read the Dobbs draft, but I don't like it.
Dan: Made you sick to your stomach.
Will: A little bit.
Dan: Okay. All right, so anything else to say about that one?
Will: No.
Dan: Yeah, I would love to know exactly what's going on there.
Will: Well, if you're an inside source and you want to leak it. Leak it to Dan, not me.
Dan: Yeah. And so, we think that her view was not only she would deny the administrative stay, she would deny the whole thing. The actual stay stay that was being requested.
Will: I think so.
Dan: Yeah. I mean, I don't know, it seems weird not to refer that.
Will: Yeah.
Dan: And what would be the ground for not referring it. Where she is referring a lot of other stuff, like the passport thing.
Will: I guess, irreparable injury, like even more so than the passport thing. I mean, this is about funding during the government shutdown for people who arguably need the money to-- [crosstalk]
Dan: But I mean, the government is having to spend money. That seems more plausible that there's a harm to the government.
Will: Yeah, but I think one of her main views is just like there are irreparable injury on both sides of the V. And so, the stronger the irreparable injury on the backside of the V, the more reason to-- [crosstalk]
Dan: Yeah, well, to the extent that this continues to happen, I mean, assuming it has happened, to the extent it continues to happen, I could imagine there being internal changes in how these things work. It doesn't have to be the rule that such applications are formally sent to only one Justice. We could just have a rule that you apply to the court.
Will: Yeah. We can also just reassign the circuit Justices.
Dan: Where would we send Justice Jackson? [Will laughs] What's a safe circuit?
Will: I was going to say the Federal Circuit, but actually they're the source of the argument. [crosstalk] [laughs]
Dan: Yeah, yeah, yeah. And the Chief, by tradition, takes those.
Will: Yeah. Maybe just the Chief could be the circuit Justice for all circuits.
Dan: Yeah. Maybe she could be like, is there some like the Court of Appeals for the Armed Forces or something?
Will: I'm sure also that's not a real court.
Dan: No. Didn't we learn in Dalmazzi the Supreme Court can exercise appellate jurisdiction over it, so it must be a real court.
Will: Well we learned it, but it was incorrect.
Dan: There must be a circuit justice assigned to it, right? Like someone applies for motions for extensions of time.
Will: Who is the circuit Justice for CAAF. I guess it's going to be the Chief, right. It's going to be like the Federal Circuit.
Dan: Yeah. Let's figure this out in real time. Doesn't say. Is that the only kind of weird court that doesn't go through a circuit?
Will: Well, there are state courts.
Dan: Yeah, but I mean, those are within. I mean, I assume those are governed by which circuit the state is in, right? Like if you look at the circuit assignments page on the website, it says for the First Circuit, Ketanji Brown Jackson, Associate Justice, [unintelligible [00:56:39] Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island.
Will: Yeah, it could be.
Dan: So, I assume that means cases from the First Circuit and state cases from the states.
Will: Yeah, but I don't know.
Dan: CAAF is-- Yeah, but are there other courts like that, that are not state courts and that are not-- [crosstalk]
Will: That have direct appeal to the Supreme Court?
Dan: Yeah.
Will: This is the kind of thing that I'm sure our listeners will point out.
Dan: Yeah. I mean, the US Court of International Trade, does that go through the Federal Circuit?
Will: Yeah, that's how the tariffs get-- [crosstalk]
Dan: Yeah. They were the tariffs yeah lower court, yeah. Tax court. They go to the numbered circuits, right?
Will: Yeah.
Dan: There's got to be another one.
Will: Territorial courts used to. That was the case with that. But now the US Virgin Islands court goes to the third circuit, I think.
Dan: Yeah. Guam goes to the ninth circuit.
Will: Yeah. Or this case is in Guam, actually, I'm not sure with the Puerto Rican Supreme Court, I don't think goes-- I think it's [unintelligible [00:57:39] state court.
Dan: Yeah. But it looks like that's still under Justice Jackson.
Will: Okay.
Dan: Because it says First Circuit, Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island.
Will: Yeah. Okay.
Dan: Okay. All right, so enough of that. Maybe we could just quickly discuss the argument in Learning Resources, that consolidated tariffs case coming from the DC circuit and the Federal Circuit.
Will: Well, so this is great, Dan, because you are a good person and largely have weaned yourself off of social media discourse about the Supreme Court.
Dan: Yeah. Well, I regret this, but I use the app, Freedom that actually locks me out of various things, social media, Reddit, computer games during the business day. It means I'm currently missing the real time Steve Vladeck, all caps breaking posts, evaluating stuff. And so, I sometimes have to check with you if there's some take that's already tired or whether there's anything interesting to say. I don't know. I'm not sure if it's sustainable.
Will: I think it's great. I may try to do it.
Dan: One of us needs to be paying attention, right? Or maybe not. Maybe-- [crosstalk]
Will: Dan, our specialty is cold takes. Cold, uninformed takes.
Dan: Yeah. It's like the thing I've talked about where I think The Walking Dead guy doesn't like to consume other zombie media.
Will: Yeah. Well, you don't listen to podcasts. That helps you also.
Dan: Yeah, it does.
Will: I do. So, I think it's safe to say the social media consensus during the morning the case was being argued was government is doing terribly, the tariffs are going down, the Supreme Court's finally going to strike down the tariffs, etc.
Dan: Yeah. And listening to it, I don't think that's right.
Will: Okay. Yeah. I'm curious. So, here's my going into the argument, my prediction, it's not the same as my view what should happen. My prediction was kind of like a lean government, I guess. If you made me bet my retirement portfolio or whatever, which I guess maybe we are.
Dan: Please don't. [chuckles]
Will: Well, I mean, tariffs affect my retirement portfolio. I'm not trying to hedge or anything, but I would have said I don't know, like 60, 40 government in the end, like the odds that the court will agree with the Toronto dissent below. And I think I come out of the argument sort of flipped. I'm like lean challengers. I come out thinking odds are better than not that the tariffs will be held invalid. But that's far from clear.
Dan: Yeah.
Will: Is that-- [crosstalk]
Dan: Yeah, I think that's absolutely right. I think I might even be closer to equipoise.
Will: Okay. If there were five votes to invalidate the tariffs, whose would they be? Is that clear? Like which of the Justices the most marginal?
Dan: If they were so you've got the three liberal Justices.
Will: Sure.
Dan: You've got Gorsuch on constitutional but not statutory grounds.
Will: Yes. Okay, I agree. He seemed to be quite fired up with the annihilation doctrine and asked questions that you wouldn't ask if you were still up in the air about it.
Dan: I am not totally sure about the others. I mean, I thought that maybe Barrett was on the statutory interpretation issue, was leaning government but struggling with it. But I thought Kavanaugh was taking it pretty seriously and really digging in to the legal questions, the statutory questions, maybe some skepticism from the Chief. He starts off by sort of saying to Sauer, “Aren't you overreading Dames & Moore?” Am I remembering there's reason to believe he was the law clerk that worked on that? Is that correct?
Will: I believe there's reason to believe all the law clerks worked on it.
Dan: But he was a law clerk that worked on it.
Will: He was clerking for Rehnquist. Rehnquist wrote the opinion then. And I think we have pretty strong evidence. It was kind of all hands-on deck situation.
Dan: And so, he is asking Sauer very early in the argument.
Will: Doesn't Dames & Moore say, this is limited, this is like a Bush v. Gore statement. Like this is a one off.
Dan: I mean, that's not the crux of the entire case. But it is.
Will: No, but again, that's a thing. On the one hand, he may just have a special interest in Dames & Moore given his history. But that's the kind of thing you would say early on to take a little bit of wind out of the sails of the government's argument. So, I guess I would put it at Gorsuch, then Roberts, then Barrett, then Kavanaugh in order of-- [crosstalk]
Dan: Alito, definitely I'd say on the government side.
Will: I don't know, might be unanimous.
Dan: It's not. You wouldn't bet your retirement on that one?
Will: No, I would not. I guess I would take a bet at like 100 to 1 odds. I mean I wouldn't bump my retirement at 100 to 1 odds.
Dan: Okay. So, one thing that I think is interesting, you and I were debating a little bit earlier. Justice Gorsuch asks a question this is a hypo that comes up a couple times in the argument. He says “Could the President impose a 50% tariff on gas powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change?” And Sauer says, “Yes, that could be done.” And then he says, “You know, I mean obviously this administration would say that's a hoax. It's not a real crisis.” And he got a lot of flak for this. I mean he's not-- [crosstalk]
Will: From who, just from social media?
Dan: Yeah. From the commentary. Well, I think he did. Am I wrong about that?
Will: No, [unintelligible [01:03:21].
Dan: Yeah, I'm not totally sure because I didn't. But he also got flak from it from Neal Katyal who is the advocate on the other side for the challengers of the tariffs, who I thought was pretty effective. And one thing I thought was effective was he seems to have written his intro to the argument in real time and offered a lot of advocates come in with a pre written few paragraphs that they get to do unless they're interrupted earlier. And he did that, and he was very fluid, but he saw the open lane from the hoax thing and just ran with it and dunked on the government a little bit. This is the kind of last thing he says as part of multi paragraphs at the end.
Neal: This is Youngstown at its lowest ebb. If the government wins, another President could declare a climate emergency and impose huge tariffs without fines or without floors or ceilings as Justice Gorsuch said. My friend’s answer, “This administration would declare it a hoax. The next President may not quite say that. This is an open-ended power to junk the tariff laws and is certainly not conveyed by the word regulate.”
Dan: So, I thought that was interesting. When we were debating this, you took the position that Sauer had to say that or else he'd get fired. I don't know if that's clearly right. I mean if all he's doing is responding to a hypo. I mean, first of all, I think that's tragic and embarrassing if that is the case. But I also think it's disgraceful to say that because I think it's clear that saying that was not legally helpful. It was not helpful to his position, in fact, in responding to Justice Gorsuch's hypo, I mean, Gorsuch, he says immediately after that interrupts him to say, “I'm sure you would.” [Will laughs] Right?
Will: Yeah, I totally agree. It's not helpful.
Dan: I mean, it's affirmatively unhelpful. It gave some ammunition to the other side and seems to have caused the Justice with whom he was speaking to roll his eyes, right?
Will: Yeah. I don't think it moved the needle at all. So, two things, I guess. That exchange in particular made me think he thought he was losing. It made me think that the Solicitor General went into the argument trying to win the case, and he came out of the argument just trying to keep his job, trying to at least make sure, like, “We may well lose. But I want to make sure that everybody thought I went down fighting.” And the thing I was struck by. I don't know if you followed the briefs that much, but some of the early briefs about the tariffs, including things or a letter brief about the stay that Sauer wrote, was full of this Trumpian language about the tariffs are necessary to stop us from being destroyed.
Dan: Country killing?
Will: Yeah. And one thing that I thought was notable about the tariffs’ merits brief was that stuff was still in there, still in the first two pages. But every time the sentence would begin with the President says-- [crosstalk]
Dan: Yeah.
Will: Every one is like, “To the President, these cases, that’s their choice.” “The President believes…” And I think that was a clear attempt to signal to the Court: I’ve got to say this stuff, and my brief has to contain the words ‘country killing’ on page one, but I want you all to understand that the President made me do it.
Dan: Yeah, that's interesting.
Will: And I think that was just the same thing here. Now, again, it's not effective. It's probably counterproductive. My guess is the Justices are all in on this and that they understand that John Sauer is a relatively normal lawyer and he has a relatively not normal boss.
Dan: Yeah. But it's still. I mean, it's still, I think, caused the Justices to roll their eyes at least once.
Will: Yeah. And it may in fact have made it easier to roll against them because the more you then say, “Well, we know the SG is here beating the drum, but I guess I hate to blow up John Sauer's spot, but we can read the code and understand that he's here because he has to be and won't be terribly shocked or disappointed to lose.” Maybe that makes it easier to rule against him. I don't think they really care. I think they're just going to decide the case on the basis of what Amy Coney Barrett believes the Algonquins said about licenses.
Dan: Yeah, I mean that seemed to be the crux of the statutory interpretation question. So, the provision Title 50 of the United States Code Section 1702 says basically in the specified emergencies, “The President may under such regulations as he may prescribe by means of instructions, licenses or otherwise investigate, regulate or prohibit any transactions in foreign exchange,” and keeps going, “investigate, block, direct and compel, nullify, void, prevent or prohibit any acquisition holding.” And so, basically, he can regulate importation and he can do so by means of instructions, licenses or otherwise.
Will: Yeah.
Dan: And so, is this a license?
Will: Yeah. Or at least does the presence of license, even if regulated by itself, would not normally cue a revenue raising power. Does license cue that? Because when you have a license, you often have a license fee and a license fee is revenue raising. That's at least the argument. The attorney for the other plaintiff, the state plaintiffs or whatever it was, I think opened their argument by saying, “Look, licenses and license fees are different.” So, their whole theme is that IEEPA is a sanction statute. You can say no to harmful imports and you can say no, but with special permission of things you really need. But that either way, that's not supposed to be a cue to say, “Well, yes, if you pay us $1,000,” which seemed right to me but I see where Justice Gorsuch is coming from and thinking the really helpful way to think about this case is more at the major questions doctrine.
And I will say to me, this looks a lot like the student loans challenge, in that you have the president using a catch all statutory provision that doesn't obviously apply to do a thing that can be done through other statutes that the resident didn't use because it required annoying procedures and annoying findings that has a huge economic impact. And where it's a mix of major questions and almost the specific governs the general. And I would think it would be attractive to the court also to be able to remind people that the major questions doctrine was not just a good for the Biden administration only doctrine.
Dan: Yeah. Another one that I've mentioned, I think I mentioned in my remarks at the SCOTUSBlog Summit, Alabama Association of Realtors v. HHS. The eviction moratorium case, where again you have the statute has some emergency authority, doesn't clearly encompass an eviction moratorium. Court says, “No, it does not.” Here I mean look, I mean every time it's a different statutory scheme and it's different words. But I do think that if you step back, it does seem concerning and unfortunate if these doctrines and these moods seem to only apply to Democratic Presidents.
Will: Yeah. My other step back thought is just if Trump is right about the scope of statutory provision, then even though I'm not the biggest nondelegation hawk in the world, it does seem a little bit like what is the constraint on power. The other option for constraint on power would be to say well it has to be an emergency. But everybody seems to just take it as table stakes that the court can't or won't really second guess what counts. And actually, emergency isn't even the phrase. It's an unusual and extraordinary threat. And I actually think it would be totally reasonable to say trade deficits are not unusual and extraordinary. They've been going on for a long time. I mean it's a little complicated because can't you argue that it's like going bankrupt, Hemingway quote, “that you go bankrupt slowly and then suddenly” or whatever. But still if we're not going to have any judgment about the threshold, the President can say we're in emergency and nobody second guesses that. And the President saying that unlocks untold powers with no constraint, then I don't know what happened to separation of powers.
Dan: Yeah. And on the separation of powers questions, I mean there was a really interesting exchange by Justice Gorsuch with General Sauer where he lays out a constitutional theory, I think basically of why you need the nondelegation doctrine generally, but why it might be really important here in particular.
Justice Gorsuch: Congress as a practical matter, can't get this power back once it's handed it over to the President. It's a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people's elected representatives.
General Sauer: I disagree with that. In the recent historical counter example of Congress's termination of the COVID emergency demonstrates that the political oversight-- [crosstalk]
Justice Gorsuch: With the President's assent.
General Sauer: Meaningful.
Justice Gorsuch: With the President's assent, in fact, you know--
General Sauer: Once he lost it by a veto proof majority in the Senate, I think the position moved. I think he realized-- and that's the political process working. There was a little bit-- [crosstalk]
Justice Gorsuch: Yeah. It takes a super majority.
General Sauer: -against the-- [crosstalk]
Justice Gorsuch: Veto proof majority to get it back.
Dan: So yeah, I thought that was really interesting. It was an interesting point. Not really something I had thought about, about how the more you delegate, the harder it is to ever get the power back. Because you'd need to take it back from the President, if the President always wants this power, you need a veto proof majority, which is hard to do.
Will: Yeah.
Dan: And the other thing, and this is not something unique to this case, but I do find maddening about law in this area generally is this theme that came up over and over and over about how this is a special context because of the President's inherent foreign affairs power, which is, there's not like a foreign affairs clause in the Constitution.
Will: Right.
Dan: There's a series of clauses divvying up different forms of power that have foreign affairs implications to both Congress, the President and the Senate, right?
Will: Yeah. I mean, I think the right way to think about it is, yeah, that foreign affairs is often like a proxy for this is an area we think the President has some inherent Article II authority.
Dan: Yeah.
Will: If there is inherent Article II authority, foreign affairs is one of the things he'll think it might be.
Dan: But I mean, it's clearly not all foreign affairs, right? Because Congress is the one that's supposed to regulate foreign commerce.
Will: Yeah, exactly. So, I still think, if that's the argument, then this is what I think Katyal said, “Look, maybe there's reduced scrutiny when it's an area of inherent Article II authority, but that's not true here.” I think if you're more of a pragmatist, though, there is just this general sense of we do a lot of judicial review domestically and judicial review fades the further out you go over the water. Now, even then, tariffs are at the border, so there's still some judicial review. But I think there is a kind of just much more pragmatic approach to it, which is not how I like to think about the separation of powers.
Dan: You're a formalist all the way down.
Will: I try.
Dan: Do you think, am I going to get a refund if challengers win?
Will: I hope not.
Dan: Why? You don't want me to get money?
Will: Did you pay a lot of tariffs?
Dan: I'm not sure. I mean, I've bought some stuff on Amazon.
Will: So, I say I hope not. So, there was a discussion about what is the remedy here. And I think one sort of at least specter the government tried to hang over the court is if you strike these down, just the refund litigation was already going to be complicated and ruinous and terrible because all this money, and Katyal made the point that it's a little rich for the government to complain about that after they fought hard to stay the ruling against them and now want to say it's too late to rule against them.
Dan: Justice Barrett asked about this though. It's not clear that it's legally relevant, right?
Will: It's not clear it's legally relevant unless you're a pragmatist or have a pragmatic approach to this. But to the extent that Justices are maybe colored by it, I hope they're not worrying about that too much. My understanding is it is complicated that you have to do an administrative protest. And there have been some cases where this has happened where a tax or a tariff has been held invalid and not everybody gets refunded under our standard, complicated retroactivity rules. And that strikes me as probably good if it helps keep the Justices focused on the merits, rather than deciding that these tariffs are too big to fail.
Dan: Yeah. Katyal did suggest more interesting possibilities. So, Northern Pipeline, that was the case where the court struck down the kind of then existing system of bankruptcy courts, and the court explicitly stayed that for some period of time to let Congress go fix it.
Will: 180 days.
Dan: Yeah. And then it also mentions John Q. Hammons, which is a case that I think we talked about a couple seasons ago, which was like-- I'm trying to remember now. It was about bankruptcy trustees and fees and stuff.
Will: The court decided that the fees violated the bankruptcy clause because they were not uniform, but then also decided that the remedy for that would be nothing.
Dan: Well, the remedy going forward is they can't do it. But the remedy, looking back is the-- [crosstalk]
Will: Remedy for all the people who paid the unconstitutional fees is nothing.
Dan: Okay. Well, that's all I have to say. Or at least that's all I can say in the limited constraints of time.
Will: Yeah, me too. Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring our endeavors. Thanks as well to the University of Chicago Women's Board who's given a grant to the show this season to help us promote civil discourse.
Dan: Please rate and review the show wherever you get your podcasts. Visit our website dividedargument.com for transcripts, blog.dividedargument.com for commentary from the wider Divided Argument expanded universe, store.dividedargument.com for merchandise. Send us an email, pod@dividedargument.com and leave us a voicemail. 314-649-3790.
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