SCOTUS Is About to Turbocharge Presidential Power

26:31And, you know, he did a fantastic job and it didn't work, right? They struck it down and they laid the foundations for the court to just basically say in this case, ah, the writing was on the wall and say the law. And so I wonder whether that kind of shed some doubt on this as a strategic matter. And the other thing I thought was that I found so galling, really on the part of the justices more than Agrawal, although I don't know that he handled it as I thought he should have, the justices having invented this distinction in say law where a single member director structure is constitutionally intolerable, but a multi-member one is at least for now fine.

27:07This is, of course, only five years ago. And five years later, they're about to say, well, that one's not fine either. But it was an invented distinction. It never really made any sense as Kagan made crystal clear in her dissent in Say La Law. But then they made Agrawal defend the distinction which they made up, which was so outrageous. But he did. And they asked him if he thought Say La Law was correctly decided. And he said yes. And I just think once you've done that, you've given the game away. And I don't think they were at all fair to make him defend their insane distinction. But I also think that if you say say the law was right, I just think there's no chance you even have a principled basis on which to say I should win here, let alone a chance of winning here.

27:46And so that I think was kind of tactical. But there's probably nothing that could have been done. Advocate selection or, you know, kind of argumentation or otherwise, they're going to do what they've already decided to do here. But I do think that maybe other ground could have been gained along the way with a different approach. I don't know. I think they were in the bag for this and it could have been anyone. And so it's just like, why pretend? Well, I mean, I give him credit for making the point and making it, I think, to the public. Like, these are not woke views. Like, these were conservative principles.

28:19I don't think he made that to the public. I just don't think he was effective. I mean, anyone listen. I mean, I got that. I mean, like the whole history and tradition piece, I think he really laid out like there is a long history of this and conservatives used to think that this was a conservative posture. And I do think the emphasis on history was striking in that the Trump administration never affirmatively brought up history and didn't do a good job of engaging with history when, you know, the occasional question arose, which is a pretty clear tell that they do not think that the history is on their side.

28:49And that is because it is not. This is a world turned upside down. I'm defending John Sauer and Amit Agarwal. What is happening? It truly is the festive season. It is. I'm giving. You're wearing an almost festive sweater for the season. It's a cute colored sweater. It's green of some sort. Well, the kind of green for when you're losing separation of powers, but gaining a better version of it. A better version that we have long needed.

29:21Strict Scrutiny is brought to you by Fatty15. Again, I do not like this whole aging thing, but what I really don't like about it is that there are so many different effects of aging. There's the poor sleep, there's the lack of energy, there's your stiff joints, your abnormal blood work, anything else. And many of these real health concerns just diminish your level of comfort in your body. Well, listeners, I'm excited to share with you C15 from fatty 15, the first emerging essential fatty acid to be discovered in more than 90 years. It is an incredible scientific breakthrough to support our long-term health and wellness, and you guessed it, healthy aging.

30:01Based on over 100 studies, we know that C15 strengthens our cells and is a key healthy aging nutrient, which helps to slow down biological aging at the cellular level. In fact, when our cells don't have enough C15, they become fragile and they age faster. And when our cells age, our bodies age too. By replenishing our cells with the crucial C15 nutrient, Fatty 15 effectively repairs cells, reverses aging at the cellular level, and restores our long-term health and wellness. What I love about Fatty 15 is that I hate having to take a whole boatload of supplements, but with Fatty 15, I know I'm addressing all of the things that really matter to me.

30:40My external health, my internal cellular health, all with one supplement. and I absolutely love it. It comes in a beautiful glass and bamboo bottle so you can put it out on your counter and know that you're still styling and profiling because they have you covered. Fatty15 is on a mission to optimize your C15 levels to help support your long-term health and wellness, especially as you age. You can get an additional 15 % off their 90-day subscription starter kit by going to fatty15.com forward slash strict and using the code strict at checkout. Transform your home in one weekend and save big money at Menards.

31:19Protect and enjoy your outdoor living space with Thompson's Semi-Transparent Wood Sealer. It maintains wood's natural color and provides durable year-round protection from water and sun damage in just one coat. Save big money on Thompson's Water Seal products. Our knowledgeable team is ready to help bring your dreams to life one gallon at a time. Stop by your local Menards today. Save big money at Menards.

32:11pretty clearly that only presidents and maybe only Republican presidents represent the democratic will. They refuse to acknowledge that Congress is democratically accountable and that both Congress and previous presidents have signed lots of laws, the Federal Trade Commission Act, but many, many others creating these independent agencies. So it is a bit much to now decide the court needs to be the guardian of democracy by striking down this law and by extension, lots of other laws that the people's actual elected representatives have passed. Justice Jackson was, I thought, excellent in really driving this point home.

32:43And essentially working to, as I think Jackson's questions really brought out, make the president the repository of even more power, as we are seeing in real time, the catastrophic consequences of a president who seizes more and more power, breaks laws, asserts sweeping authority over the administrative state, and more. So they're insisting that the executive branch is the only truly democratic branch and also unitary at the very same time that we are seeing the executive branch not exercising just the president's whims, but also being driven by a lot of, in the immortal words of Melissa Murray, the new DEI cadre, dicks, ex-husbands, and imbeciles.

33:20The theory that makes this whole song and dance about giving POTUS control over these agencies, the thing that makes it so great is this idea that all of this is good for democracy, that it makes the agencies subject to democratic control because Congress was apparently not democratic at all. And it makes them accountable to the president who is the most democratic figure in the entire government. So anyway. Also, when did this court decide it loves democracy so much? Because partisan gerrymandering would like a word. Like, when exactly are we a democracy versus a republic, it's a little hard for me to follow.

34:00Justice Kavanaugh throughout the argument also kept making these gestures towards liberty and essentially conjuring this idea that the really dangerous thing for liberty is the prospect of these unaccountable agencies. And I was just sort of sitting there thinking, like, do you read the paper? Do you read? Because Sir, you know what else is a true danger to liberty? An unconstrained, unfettered president just doing things. Kavanaugh stops are a danger to liberty. Like, sir, be so for real. Any event, just as Justice Jackson challenged Sauer's argument that the unitary executive theory is good for democracy, she also challenged the administration's arguments about constitutional tax.

34:44And I thought this was a really important intervention. John Sauer was essentially gesturing toward the vesting clause, which states that executive power is vested in the president. This was supposed to be a kind of slam dunk argument that the Constitution gives the president all the power. And Justice Jackson was like, sir, I see that you've read the Constitution. Good for you. Here's another unexpected but welcome development. What do you think of the necessary and proper clause? Because that is also in the Constitution. And it also says, quote, the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof.

35:29Kagan has been shouting into the void about this for years. Congress can, the Constitution makes crystal clear, address how powers vested in other departments, like in agencies, are exercised. Congress makes those agencies. The text of the Constitution actually says this stuff, unlike the redline version of Article 2 that has all of in the executive vesting clause. So on this textual point, I wanted to highlight, I'm not going to play the clip, but just describe it, this otherworldly thing that Justice Barrett floated. So she asked Sauer, do we, the court, really have to decide which clause in the Constitution is the basis for the unitary executive theory?

36:13Can't we just be kind of vague about the whole thing and gesture at the Constitution and say, voila, the unitary executive theory is a thing, but not explain why that is? I think we should play the clip. Let's play the clip. Let's play the clip. So, General Sauer, you argue that the removal power comes from the vesting clause. And I understand why you make that argument, because that would be the broadest authority, because it would give, you know, that would be the full unitary executive theory. But there are other theories of where the power could be located. For example, if it was part of the take care clause, then it might be more limited, because it might apply only or give removal authority only over those officers who exercise significant discretion, or it might be an adjunct to the power of appointment, which would mean that inferior officers didn't come within it.

37:09And I don't read our cases to this point to really be very specific. They mention all three, and they could be mutually reinforcing. Is there any reason for us to be specific about it in this case? This is maybe the best evidence that no thought, no arguments going on, right? It's just like the talking points of a cult. And like, you need to believe the right things. And that's it. Because when I hear stuff like this, like, I wonder, do they think they are serious? Or do they understand they are parodying legal analysis? It's also just like, it's one thing if you're sitting around trying to figure out you want to like actually bring a lawsuit, like, how do we frame our claim?

37:52Like, what? You're building something from the ground up. But to say we're going to announce constitutional rule based on something. We're going to strike down a law. Let's just spitball what we think the Constitution, where we should find it. That is so on brand. They have been telegraphing this all fall. This is just like her book tour interviews. It's just like Brett Kavanaugh's Eighth Circuit talk where they were just like, all that stuff we do on the Shadow Docket, we're just kind of freestyling. And we're not trying to be really concise or precise here because we know that we don't want to get locked down.

38:26We haven't really figured it out. Like, who wants to be pinned down? I'm a free agent. Like, about everything. We're just blowing up agencies. We just have to figure out why. That's what we mean. Free agent, free agency. Be free of them. That's the whole point. I mean, again, she's doing exactly what conservatives and Fedsock have accused liberals of doing for years. I mean, this is the same argument that people leveled against Harry Blackmun and Roe versus Wade. Like the whole idea that Blackmun couldn't identify the precise part of the Constitution that authorized a right to choose abortion.

39:03She's basically like, we can do that here too, but for blowing up agencies, right? And Sauer and everyone else is like, yeah, that seems right. Like be as vague as possible. Just do it. All right. Don't worry. We have other complaints. There is the complete unwillingness to own up to a legal principle and its implications. Obviously, that was on display in the Barrett excerpt, but appeared throughout the argument. The administration is peddling, and SCOTUS is about to embrace, but maybe hasn't figured out the precise constitutional foundations for it. But the theory says that because the Constitution vests executive power in the president, the president must be able to fire everybody who exercises significant executive power.

39:40This necessarily raises a lot of questions that sweep beyond the Federal Trade Commission, such as, if that's the rule, who else besides commissioners exercise significant executive power? And as we said at the outset, Sauer and the Republican justices seemed totally unwilling to engage with this inconvenient question, much less to answer it. At times, they declined even to acknowledge it. This led to the following exchanges. But you're putting at risk the independence of the tax court, of the federal claims court, Article I courts. You're putting at risk the civil service. I don't see how your logic could be limited.

40:19As to the non-Article III courts, we haven't challenged the removal restriction as the non-Article III court in this case. Not yet. Not yet. And we recognize that there are some line-drawing issues as to those that came up in cases like Freitag and Ortiz. Again, those aren't presented here. Those aren't briefed here. Not yet. Our logic has consequences. Once you use a particular kind of argument to justify one thing, you can't turn your back on that kind of argument if it also justifies another thing in the exact same way. I know what you don't challenge. You're missing the point. Just details.

40:55No big deal. No rationale, no limiting theory, just vibes. Like maybe this is how the just the tip migrates into the merits docket, right? because like they don't actually say this is what this theory is going to do. They just say like, oh, yeah, we're just saying this about multi-member commissions. But like we're not actually blowing up like all of government yet. Like that was really their line. Like, don't worry, this won't blow up the government yet. Slight problem was Neil Gorsuch couldn't keep it in his pants. Like he could not contain his excitement about blowing up the government in other ways.

41:31And this came up when several of the Democratic appointees observed like, you know, to date, there's been this kind of settlement and compromise. Congress has given these agencies a lot of authority, some executive, some more adjudicative in nature. At the same time, it has limited the president's control over these agencies. So the agencies get to do a lot, but we are not creating them as a mechanism for expanding presidential authority. Their point was straightforward. We shouldn't now give the president more control over these agencies and disrupt that settlement. And Justice Gorsuch took this as an invitation to blow up the agencies themselves, as you can hear here.

42:05General, let me suggest to you that perhaps Congress has delegated some legislative power to these agencies. Let's just hypothesize that. And let's hypothesize, too, that this court has taken a hands-off approach to that problem through something called the intelligible principle doctrine, which has grown increasingly toothless with time. Is the answer perhaps to reinvigorate the intelligible principle doctrine and recognize that Congress cannot delegate its legislative authority? Is the water warm, General? Sorry, what was the last? I couldn't hear the last bit. Is the water warm? The intelligible principle to which Justice Gorsuch is referring in that passage is a key component of the court's settlement around what's known as the non-delegation doctrine.

42:59The non-delegation doctrine is the idea that Congress cannot delegate its legislative power to other branches. And the court last relied on this view in 1935. And the argument there was that in these two laws that were struck down, the Congress had given the executive what was essentially a blank check when it delegated power to these agencies. Since that time, though, the court has held that congressional delegations of power to agencies are fine when the Congress provides an intelligible principle that guides the agency's use of the power. And again, because we're quoting great men, no less than Justice Scalia wrote the major decision, Whitman versus American Trucking, making this point about the intelligible principle and the non-delegation doctrine.

43:43As Kate recognized, sometimes the great men just not reactionary enough. But like Neil Gorsuch was seemingly suggesting like maybe we're just not thinking big enough. Like maybe we should also blow up the agencies themselves by reviving the non-delegation doctrine. Yeah. It's also – I mean I'm sure it won't give them much pause, but they might have to work a little bit to explain why the same court that went so badly awry in Humphrey's executor in 1935 the same year was actually properly channeling the non-delegation doctrine, which we have under-enforced since. What is time, Kate? I am sure they will find a way.

44:19Speaking of doctrines designed to constrain agencies, at various points we were reminded that the court's ruling in slaughter will probably not benefit Democratic and Republican presidents equally. Different Republican appointees made clear that they have still got the major questions doctrine in their back pocket, which they will undoubtedly use to say that Democratic agencies cannot do things that trigger the Republican Party and Republican appointees. So yes, both Republican and Democratic presidents will be able to fire agency heads and staff agencies with their own people. I think even this court couldn't, although, you know, maybe I shouldn't call it into being, identify a rule that explicitly prohibits a future Democratic president from doing what they're about to say Donald Trump can do.

45:00But it might not matter because only the Republican appointees in the agencies of Republican presidents get to actually do things when they had the agencies because the major questions doctrine will be waiting in the wings to invalidate anything significant that Democratic agencies might try to do. So more crazy making things. The Republican appointees were, for the most part, not bothering to come up with arguments. They had basically one talking point that consumed a ton of the time of this oral argument, which was what if Congress decided to turn every department into a multi-member commission?

45:36What? But because we all know the real danger is Congress, first of all, passing laws at all, but second, limiting the president's power too much by trying to install these bipartisan commissions at the head of bodies like the Department of Defense, Education, Agriculture, Interior. Like this was what they decided to spend their time on. Elena Kagan had this, I thought, really epic response to that string of hypotheticals. It strikes me, Mr. Agawa, as I listen to this, you know, if you go back to, let's say, the education department with the chief just which the chief justice raised, that the more realistic danger here is that we'll have an education department as authorized by Congress by law that won't have any employees in it.

46:22And Justice Barrett kind of, you know, poo-pooed this concern saying, like, who can possibly say what will happen? Like, we can't possibly predict it. Like, it's a real mystery girl. Yeah. And I already mentioned the way the professed originalists on the court were pretty uninterested in actually engaging with history. But I also want to say that when they did engage, they got some pretty basic stuff wrong. So one, they think statutes with terms of years but not explicit removal protections mean the president can fire those people in those offices at will. But as professors Love Menand and Jane Manners have been writing about for years, that is just not how terms were understood.

46:56Barrett really botched this in a question that she was asking about the Revolutionary War Debt Commission, which is an important early agency that had appointees with these terms of years. There were also, I think, some real misrepresentations of a case called Parsons, a case called Ex parte Hennin, even Marbury v. Madison. So Lev Menand had a really good post-argument blog post on notice and comment that got into some of this, and so we'll post that in the show note. All right, let's touch briefly on the implications of what the court is likely to do here. So first of all, this ruling is very likely to give us an FTC, that is the FTC of Jeff Bezos' dream.

47:31So awesome. It's also going to give the President of the United States sweeping powers over every other agency in the administrative state. So what he's doing with the Department of Justice, the CFPB, Health and Human Services, the Department of Education, he will be able to do elsewhere. And if you've loved this last year, you're gonna love what's coming. It's going to be great, an utter nightmare. And yeah, that's what this court is going to unleash. Also, you know, so we now are going to, after this decision comes down, have these agencies with a lot of power that were designed to have that power wielded by these balanced bipartisan leadership structures.

48:10And it really does raise the question, maybe it would be better not to have some of these agencies at all if they're just going to be the playthings of an aggrieved and self-dealing narcissist. Although not have the agency at all, I worry I am now channeling Neil Gorsuch, which is not really what I mean. But I do mean that, you know, this is a critique that folks like Josh Chaffetz at Georgetown have made. But when the court, say, in INS versus Chata invalidated the one-house legislative veto, left broad delegations, but without congressional ability to oversee those delegations of authority, like the court just thinks like, oh, what will happen if we pull this block out and leave the rest of it intact?

48:44And sometimes it is much worse than if they just, obviously, best case scenario, didn't meddle at all. But, you know, maybe the agencies left standing are worse than if they did not exist at all. So the New York Times had a piece on the potential blast radius of this decision just to name some agencies potentially affected. You know, there might be up to 50, including the National Transportation Safety Board, the Securities and Exchange Commission, the Nuclear Regulatory Commission, and more. And we actually aren't going to play this exchange, you know, which I thought of when you were talking about the history, Kate.

49:15But during the argument, Justice Kagan asked the Solicitor General, look, you would agree, wouldn't you, that the founders wanted powers separated, right? To which he said, I agree with an important caveat, the presidency itself. You know, to which Justice Kagan, you know, was a little taken aback and said, you know, that's not a caveat. It's the whole fucking thing. Right. That's right. And, you know, honestly, so this is our recap. I know we went long. We will go more quickly on the rest of this. Hopefully you didn't have to listen to this argument, not worth your time, unless you want to get amped up with rage.

49:43Like, it's very clear, 6-3, Humphreys' executor overruled or at least declared no longer applicable.

49:52Strict Scrutiny is brought to you by Earth Justice. Guess what, folks? Earth Justice is taking the Trump administration to court because they are determined to protect our public lands from fossil fuel drilling. They're determined to save our bedrock environmental laws, and they are determined to defend our future on planet Earth. Earthjustice has 200 of the best environmental attorneys, and they represent their clients free of charge. Every lawsuit they file is funded by people just like you. Yes, the Supreme Court is a challenge these days. That is a euphemism. But that's what makes Earthjustice's expert litigation even more important.

50:31And right now, Earthjustice needs your support to scale up and meet the threat of the Trump administration. So we are inviting you, listeners of Strict Scrutiny, to help Earthjustice take on the fights ahead. All of your gifts to Earthjustice are tax-deductible, and donations made through December 31st will be matched up to$25 ,000. Earthjustice is using their legal muscle to protect our public lands and our climate. They represent clients free of charge, and that's everyone from communities and tribes and conservation groups that get top-tier legal representation from Earthjustice even when they lack resources.

51:08There are major victories and there are historic fights. Earthjustice, for example, has defended the roadless rule that protects millions of acres of forest land. They have defended countless acres of the Arctic from fossil fuel projects, and they're going to continue to do so. Earthjustice is working to block large-scale fossil fuel and mining development on federal public lands and waters, and they are protecting the Arctic, our national forests, and our national monuments. And Earthjustice isn't satisfied with just plain defense. They are winning cases internationally and pushing the clean energy transition forward at the state and local levels.

51:41And right now, you can donate to Earthjustice to support their lawsuits that go to protecting our planet. Every gift through December 31st will be matched to double your impact. So head over to earthjustice.org forward slash strict. That's earthjustice.org forward slash strict to make your tax-deductible donation that will be matched through December 31st. It's cozy season and nothing compares to wrapping yourself in a Minky Couture blanket. Luxuriously soft, perfectly warm, thoughtfully made. From movie nights to chilly mornings, Minkee Couture turns everyday moments into pure comfort. Once you feel it, you'll understand why it's called the original best blanket ever.

52:28Visit MinkeeCouture.com or a store near you and make this cozy season your softest one yet.

52:44now because things can't get any worse the following day the court decided to hear argument in the campaign finance case national republican senatorial committee versus federal election commission what could go wrong it seemed like the republican justices and the advocates arguing against the campaign finance regulation mostly wanted a rerun of Trump versus Slaughter. And just to play that one back, they had such a great time in that one. Let's do a quick refresher of the campaign finance case. So the provision at issue here is the anti-coordination provision, which basically limits the ability of entities here, specifically political parties, to spend money in coordination with a political candidate.

53:24So unlimited coordination would allow individuals and entities to circumvent contribution limits, which are still intact for now. Contribution limits restrict the amount of money that someone can give directly to a candidate and to a party. It's much smaller for individual candidates. It was$3 ,300 at the time this case was filed and to a party more than$40 ,000. And a donor can actually give a bunch to state parties to get that number actually overall closer to$500 ,000. Small contribution limit for candidates, relatively speaking, larger for parties. but the limits, again, for now, do still exist.

53:57The contribution limits prevent quid pro quo corruption. So the idea here is that preventing a single individual from giving a ton of money to a candidate makes it less likely that the candidate will be captured by that individual going forward. The coordination limits, by contrast, effectively prevent and runs around the contribution limits because they don't allow individuals to give money to a party that would then effectively be given to a candidate. The lawyer for the challengers, former Solicitor General Noel Francisco, basically laughed off the suggestion that there might be any corruption going on here in politics.

54:33And it was such a jarring intervention that we thought we should play it. I need to suggest that the fact that one major donor to the current president, the most major donor to the current president, got a very lucrative job immediately upon election from the new administration does not give the appearance of a quick pro quo. Your Honor, I'm not 100 % sure about the example. that you're looking at. But if I am familiar, if I think I know what you're talking about, I have a hard time thinking that his salary that he drew from the federal government was an effective quid pro quo bribery, which may be why nobody has even remotely suggested that.

55:23Maybe not the salary, but certainly the lucrative government contracts might be. So that was fun to joke about Elon being uncorruptible, wasn't it? Oh, yeah. Great times. Yes. And also just like, no, no one's saying the salary was a problem. We're talking about billions of dollars in contracts. Like, come on. Anyway, but on the kind of slaughter slash Humphreys energy that Leah was mentioning, the court really brought to this argument. There was the same kind of insularity and also sort of like polarization of the right-wing legal profession. At various moments, it became very clear that the Republican appointees view themselves as part of a club that includes Republican advocates.

56:03They are all on the same team. They are all engaged in the same project. So here is an exchange between Kavanaugh and Francisco as Kavanaugh was asking about other campaign finance regulations aside from the anti-coordination limit that was actually at issue in this case. You think it's constitutional? Your Honor, I don't have a position on whether it's constitutional or not. I'm willing to assume for the sake of argument here that it's constitutional, but it's still only the second of the two. You're not going to want that cited back to you in a couple of years. Assume for the sake of argument.

56:31Okay, that's all right. He's literally yucking it up with Noel Francisco, former Solicitor General in the first Trump administration, about how they are coming for the remaining last shards of campaign finance regulation. It was almost like FedSoc Mad Libs, and it reminded me so much of the references to Wolves and Scalia in the slaughter argument. Second, and relatedly, was the courts and the challengers' unwillingness to recognize or at least acknowledge the implications of the new legal theory that they were pushing and their unwillingness to adopt any kind of limiting principle here. So this is very much like the energy and slaughter.

57:12Here, it seemed like the Democratic appointees wanted to know, OK, if you win on this campaign finance challenge, where does your craptastic logic then take us? And here's the response. I understand. But what I am saying is that that's not what we're challenging here. I appreciate that. But how can your argument be today that these limits can fall and it will be OK because the other limits exist if you can't make a representation that we're still going to have those other limits? Translation shorter Noel Francisco. You can kill this limit because other campaign finance regulations will prevent corruption.

57:47But also I refuse to say we won't challenge those other campaign finance regulations and we probably will. This generated a rejoinder from Roman Martinez, who is the court-appointed amicus defending the judgment below. So remember, as we've said, because the Trump FEC was on the same side as the challengers here, the court-appointed Martinez, who is a former law clerk to both the chief justice and Justice Kavanaugh. So he is totally fluent in right-wing legal speak, but actually deployed that fluency for the forces of good in this argument. So let's play a clip here. And I think what Mr. Francisco's position is, and I think I'm glad he laid it out, this wolf comes as a wolf.

58:21he has basically told you that they're going to keep litigating to knock down every single one of the restrictions. And that includes the limits on donors to candidates directly. But just listen to how the donor candidate limit is going to be undermined. As Kate said, as we learned, you got to speak in fluent FedSoc about the wolves. And there were also just striking moments where the justices wanted the advocates, at least the ones on the same team that they are, to tell them they're doing amazing. and that all criticism of them is unfair. Here you are. In our much maligned, I think unfairly maligned decision in Citizens United, the effect of the provision at issue was to privilege certain corporations, namely the corporations that control all of the national media and disadvantage other corporations like Citizens United, and the effect of our decision was to level that playing field.

59:23Here, it is not apparent to me who is benefited by this provision and who is disadvantaged by the provision. I would appreciate your enlightening me on that subject. Sure. I was in D.C. and listened to the argument a couple of hours after it happened and I texted you guys. I howled as I walked into the metro listening to this. I mean, he really cares. And honestly, I think that that gave me a great deal of energy because the criticism actually on some level does get to them. I mean, it's maybe a small comfort because they're still going to do what they're going to do. But the fact that maybe I should remind everybody what he's talking about here.

1:00:01Right. So in 2010, in his State of the Union address, President Obama made this comment that will play here. With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our election. And as the camera panned to the crowd, it caught Justice Alito very conspicuously mouthing not true while shaking his head vigorously side to side. Really, not true, really? But again, the fact that Alito is still mad about this almost 16 years later tells you everything you need to know about him.

1:00:44And another, I think, rinse and repeat aspect of this argument was the fact that the court, by inserting itself into this area at all, is upsetting settlements that Congress and the president, the actual Democratic branches here, brokered. Is this a good time to remind everyone that a wise man once characterized this kind of negotiation and settlement as, quote, hashing out in the hurly-burly the give and take of the political process between the legislative and the executive? Yes, that was none other than Chief Justice John G. Roberts in the majority opinion in Trump versus Mazars. And wait for it, he was quoting a young Antonin Scalia.

1:01:23Even Scalia was getting things wrong, it seems. Anyway, Justice Sotomayor made this very point to Noel Francisco. See, she speaks fluent Scalia, too. She basically said, look, you're arguing that we have to strike down this campaign finance regulation because our previous campaign finance decisions, like Citizens United, benefited corporations and advantaged them relative to political parties. Well, now we have to come in and correct that imbalance. We had a settlement. You fucked it up. Now we're correcting that imbalance. Basically, we're just fucking shit up and this court is now going to fix it by fucking up more shit.

1:01:59This doesn't seem very sustainable. And again, back to the slaughter recalls. This was just like when the court effectively upset the settlement compromise that Congress made, delegating broad authority to administrative agencies while then insulating the agencies from presidential control. And now we're going to unpack that and they're going to have to fix it going forward. So basically, they're just fixers. They're handymen, not justices. A few more highlights slash lowlights. I want to play this clip with zero context. Boy, you are assuming a lot there about people's, honestly, dumbness. Just I thought this evergreen for this court assuming a lot about people's dumbness.

1:02:48Just want to say maybe another word about appointed amicus Roman Martinez of Latham and Watkins. I thought he did a really excellent job arguing that there are serious jurisdictional problems here, and specifically that there is no live controversy and no prospect of enforcement of the regulation, both because neither of the petitioners, Vice President J.D. Vance and Congressman, former Congressman Steve Chabot from Ohio, neither is currently an active candidate for federal office. And in addition, the Trump administration has said very, very clearly, we are not going to enforce this law. We think it's unconstitutional.

1:03:19And you can get an opinion from the FEC that will be an absolute shield to any potential public or private liability if, you know, you're concerned about the possibility of future enforcement. So there's literally no actual live dispute for the court to resolve here. And I just want to play a clip where I thought Martinez got kind of close to telling the justices, like, have some self-respect. at least try to look consistent and like you're doing law. If any other plaintiff in this court told you that his injury is speculative, that it's uncertain, that it's premature, that it might happen and it might not happen, they wouldn't have a prayer under Article 3.

1:03:55The same rules apply to the vice president. There's no politician exception to Article 3. This is why I said, like, I thought he did great. Like, you know, I know the court appointed him, selected him, but it was just fabulous, I thought. And like he also invoked the Texas SB8 case, you know, when some of the justices were floating the prospect of like private enforcement, even if the federal government might not enforce the regulations. He's like, look, you said the prospect of private enforcement wasn't enough in the Texas SB8 case. So like QED. And there weren't like many questions, either to Noel Francisco or the federal government on mootness, but at least some of the chief's questions to Martinez sounded like a little friendly to me.

1:04:37And, you know, Martinez noted that the challengers can seek an advisory opinion from the Federal Election Commission that would immunize them from future enforcement by a future administration if they're worried about it. And there weren't any questions from Justices Jackson, Barrett, Kavanaugh, Gorsuch, and maybe even Kagan in the seriatim section where the justices go one by one to Martinez or to Mark Elias who argued for the interveners. So maybe, maybe they will say this is all moot. I'm just gonna say, maybe this is another opportunity where they appoint someone with conservative bona fides.

1:05:10Again, as long as they're good, I don't have an objection. Fair enough. Fair enough. He was great. All right. The court also heard argument in Hamm v. Smith. This was a death penalty case about Atkins challenges. Atkins v. Virginia is the 2002 decision that prevents states from imposing a capital sentence on someone who has severe intellectual disabilities, Although the decision also allows the states to define and determine who has an intellectual disability. Under Alabama law, someone claiming an intellectual disability under Atkins has to prove, among other things, that they have a true IQ of 70 or less.

1:05:47And post-Atkins, there has been a lot of litigation around the way states actually implement the prohibition on executing people with severe intellectual disabilities. In HAM, the specific question is how courts should weigh the cumulative effect of multiple IQ scores when they're assessing an Atkins claim. So the defendant in HAM, who prevailed below, scored in the mid to low 70s on multiple tests. The district court and the Court of Appeals said that based on the standard margin of error, these scores might indicate the defendant could qualify as mildly disabled and actually may have an IQ below 70.

1:06:19And so they therefore considered not just the IQ tests, but also other evidence of intellectual disability. The state seems to want to press a rule that makes an individual's IQ, that is whether it is below 70, a way of foreclosing an Atkins claim if it is not below 70. But prior to this, making a showing of intellectual disability was not just based on a number on a test score, but could also be shown through kind of adaptive functioning limitations. And some of the Democratic appointees suggested that this particular case might not cleanly present the question about multiple IQ scores like being enough because it's not clear.

1:06:55The state has or applied, you know, a version of a rule that would say a defendant can't show intellectual disability if their IQ is above 70. And there were also conflicting experts about the defendant's intellectual abilities. The district court credited the defendant's expert. You know, I say that knowing how well this court respects district court's fact findings, but still. Right. The court also heard oral argument in FS Credit Corp versus Saba Capital Master Fund. The question here is whether the Investment Company Act creates a private right of action, that is, legal authorization for private entities to sue.

1:07:30And this case invites the court to clarify when statutory history and legislative context might matter to that analysis. As Justice Sotomayor noted during the argument, you know, there are reports from the legislative history, both the Senate and the House, saying they understood the statute to have a private right of action. I don't know if you guys felt the same way, but this to me was another case also the same week in which the kind of clubby in-group feel was just sort of like so present and kind of turned my stomach. So one issue in the case or maybe the biggest issue in the case is how the court should grapple with both its own decisions and statutes passed by Congress before the court's very hard textualist turn.

1:08:06That is before the court decided to totally change the way it reads statutes. And in particular, the question here is whether it will read implied rights of action into statutes that don't explicitly have those rights of action. So let me just play one clip from that here. If the court lets the Second Circuit's decision stand, the clear statement rule in Sandoval and Gonzaga will have little meaning. The court should leave private rights of action to Congress and reject Saba and the Second Circuit's unworkable return to the Ancien Regime. So there was just like all of this talk about like the ancien regime and like when that changed and what earlier decisions were like tainted by that.

1:08:42And it just – you have to be so deep in the weeds to even decode what they are talking about. It was just like you really don't have to make this as impenetrable to a lay audience and yet you're choosing to. But yeah, honestly, like I talked to my Fed court students about this, about how like they have to kind of learn the different players because like so much of this now is about like context relationships and like memes in almost a certain way about like this is just, you know, what this stands for and like the social understanding of different groups about like this period or this area of law.

1:09:14And, you know, on this like insularity point, like there was one moment, I think, where one of the advocates asked Paul Clement, who was arguing on behalf of a private right of action, you know, for respondents, like, I know this is awkward because you're usually arguing against legislative history. And it was just so, again, like clubby, insular, like these are the rules. And like we can all kind of joke about them because like we all understand it. You know, on the substance, I'm not sure how this case might come out. It's possible this will be the rare case where the court says there is an implied right of action in the statute, but unclear.

1:09:47Strict Scrutiny is brought to you by Skims. Guess what, folks? The holiday season always brings one person that's really difficult to shop for. In my life, it is a certain teenager with very discriminating tastes. But that is why this year for the holidays, I'm going to be stuffing that stocking with all of the great finds at Skims. Why? Because according to my teenager, Skims is comfortable, flattering, and consistent. Yeah. I mean, you can't make that stuff up. They love how the fabrics feel. They love that they feel great on. And they love that you can always count on them. They fit the same way every single time.

1:10:31And honestly, you can't get that consistency from your Supreme Court, so you might as well get it from your loungewear. At this stage of my life, I'm also focusing on comfort, consistency, and flattering loungewear, which is why I'm changing up my loungewear and I'm headed to the Skims shop for the very best pajamas. Literally, I feel like I sleep better in Skims. I especially love the new Skims sleep set. This is a very cute little pajama top with matching pajama bottoms. They come in all kinds of colors and some very festive holiday prints. So get on it. Start shopping for yourself as well as those very hard to please people on your holiday list.

1:11:14Head over to skims.com for your new favorite pajamas. After you place your order, the folks at Skims are going to ask you how you heard about them. Guess what? But you need to select the podcast option in the survey and then select strict scrutiny from the drop-down menu that follows. Let them know who sent you. And if you're looking for the perfect gifts for everyone on your list, the Skims Holiday Shop is now open at skims.com. Head over there for your comfortable, flattering, and consistent new loungewear.

1:11:53That's all for Recaps. It was a lot. Hopefully you're still with us. But we will now turn to a grab bag of news and court culture. First, the Supreme Court vacated a Second Circuit opinion upholding New York's vaccination requirement. As a parent with kids in New York City public schools, I am psyched. Kneesles for everybody. It's the giving season. So the requirement, I should say, applies to both public and private schools, and it has no religious exemptions. The court just basically directed, at least at this point, obviously I'm sure it'll go great down the road, But at least for now, the court just said the appellate court had to reconsider its decision upholding the requirement in light of the Supreme Court's decision in Mahmoud v.

1:12:31Taylor, which we've talked about a good amount on this podcast. That's the case that held that parents had a First Amendment right to opt their children out of storybook time at school when the storybooks had LGBTQ characters. The plaintiffs slash challengers in the vaccination case argued that the vaccination requirement and the lack of exemptions for vaccinations was animated by religious hostility. I will also note that there was a maddening typo in the opening paragraph of their submission. So can I read it? Please just read the last sentence. No, but I love it. It's so petty and so good. It just like really fucking bugs me.

1:13:08Yes, read it. Okay. Today in New York, if a vaccine would harm your lungs, you may be exempted. But if it would harm you soul, you may not. You soul. Just one letter. Just get that R in there. Just say me in. Could not land that plane. When Jenny McCarthy is editing your briefs.

1:13:35Justice for Jenny. Anyway, in other news, Judge Emile Beauvais of the Third Circuit attended a Trump rally. And when asked by MS Now, why was he at the Trump rally, given that he is a member of the Third Circuit Court of Appeals, Judge Beauvais responded, just here as a citizen. Seems almost quaint, but maybe I'll just read a little from Canon 5 of the Judicial Ethics Code. Quote, a judge should refrain from political activity. That's all I'm going to say, because it seems pretty straightforward. The actual text includes the admonition that a judge should not, quote, attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate, end quote.

1:14:25Again, once you take away the reading requirement for a federal judgeship, I think everything's off the table. Yeah, you know, he, Judge Beauvais, is really upping the ante in the America's Next Top SCOTUS justice race. Like those idiots on the Fifth Circuit think they can get a Supreme Court nomination by writing screeds about Joe Biden in their opinions. Like get real. The Dark Lord of the Third Circuit is showing you how it's done. And if you're not a contributor to Stephen Miller's sub stack, you just don't have the game. Well, can I ask a serious question, though, about that? Like is cluelessness about things like these canons or genuine like I really don't care?

1:15:04Do you just watch me kind of energy? You think it's the second? um i think it doesn't matter like it's just so wackadoodle i think it's the second like it's just so like i am not a judge right i am aware that there is this canon right that says like judges shall not participate in political activity because like even observing the courts right like i know like judges do not engage in these activities and opt out of many of them in order to avoid the appearance of engaging in politics and partisan activity. The other thing, too, is you can't get mad, as the Supreme Court and some of these lower court judges do, when people talk about you're clearly doing politics if you're literally going to a political rally.

1:15:51You don't get to talk about how, no, what we're doing here is law, and you dumb fucks out there just don't get it. Yeah. Yeah. So during this particular rally, you know, Donald Trump once again said a bunch of horribly racist things, you know, including some directed. So it was a Thursday. Right. Right. About Representative Ilhan Omar. You know, the crowd shouted, throw her out. And again, Judge Beauvais is in the crowd. Like, is he chanting along? It's just horrifying. Jesus Christ. In other news, Alina Habba announced her resignation from whatever it was she was doing at the U.S. Attorney's Office in the District of New Jersey.

1:16:32So this is, of course, fresh on the heels of the Third Circuit opinion that affirmed the district court opinion, finding that Habba was unlawfully appointed to head the U.S. Attorney's Office for the District of New Jersey and therefore could not exercise the powers of the U.S. attorney in the District of New Jersey. So she basically said, you can't fire me because I quit. And I don't know what she's going to go do with herself. But MSNOW has reported that with respect to one of the other sort of dubious acting U.S. attorneys, this one, Lindsey Halligan, she is apparently actually going to go before the Senate as Trump seeks her confirmation to be a Senate-confirmed U.S.

1:17:14attorney, which I genuinely am looking forward to. popcorn galore as we watch that confirmation hearing if in fact it ever comes to pass right i'm a little dubious um but you know i don't think you have to show every charge to the grand no i haven't no you don't have a right not to testify against yourself you don't like no i haven't read the fifth amendment but i'm sure it's not as good as the fourth or the third Because it's after. All right. Well, the possibilities are pretty exciting. So we'll see if that actually does come to pass. In the meantime, the district courts are still courting, unlike some high courts we know.

1:17:56Judge Zenas granted Kilmar Abrego Garcia's petition for habeas corpus, ordering ICE to release him from custody ASAP. That is a developing story, as we record on Thursday. but that is a major development and it comes with a finding of some incredibly egregious conduct by the federal government in his case which we're all familiar with but we have we now have some additional detail on another district court uh judge brier that's charles not stephen um issued a preliminary injunction finding that the president's continued federalization of the california national guard is unlawful it opens with this line quote the founders designed our government to be a system of checks and balances.

1:18:35Defendants, however, make clear that the only check they want is a blank one, end quote. I feel like as I was saying that first sentence, the founders designed our government to be a system of checks and balances. I thought John Sauer would say with one caveat. But Judge Breyer's opinion was stayed until this upcoming week. The federal government has already appealed it to the Ninth Circuit. So there's likely to be some quick appellate developments there. And speaking of the Ninth Circuit, the Ninth Circuit issued some additional opinions respecting the court's decision to take on bank the challenge to President Trump's federalization and deployment of the National Guard in Oregon.

1:19:07So one judge, Jay Bybee, did not really see this coming, honestly, penned a long statement arguing that the president's deployment of the Guard may violate another provision of law that the parties actually really haven't focused on, and that is the domestic violence clause in the Constitution, which says, quote, the United States shall guarantee to every state in the Union a Republican form of government. That is a little bit more familiar to a lot of people, but the rest of that phrase says, and shall protect each of them against invasion and on application of the legislature or of the executive when the legislature cannot be convened against domestic violence.

1:19:41So Judge Bybee suggested the clause meant the Ninth Circuit was wrong in the case involving the deployment of the National Guard in California to defer to the president's assessment that one of the conditions authorizing the deployment of the National Guard has been met. To which newly appointed Trump judge Eric Tung said, no. He wrote that, quote, Judge Bybee's work is, in the end, a great labor producing a mouse, end quote. And we should take a reference to a wolf. Should have been a reference to a wolf. It's got to be a wolf. But we should also note that Judge Tung has some issues of his own.

1:20:18So when he was nominated, it came out that he said some kind of rando things. So in his past, he had said that he believes, quote, in gender roles and that women are simply better than men at some things. I would say one of those things is law, but I digress. He also went on to say that when these radical feminists try to blur gender roles, they undermine institutions like marriage, institutions which hold society together. You know what else holds society together, Judge Tong, a constitution. And it seems that that was kind of Judge Bybee's point. And before we gild the Judge Bybee lily a little too hard, we should also note that he was appointed to the federal bench by George W.

1:21:00Bush. And he, along with John Yoo, drafted the so-called torture memos, which were a set of legal memoranda justifying the CIA's enhanced interrogation techniques in the aftermath of 9-11. So just got to say, Judge Tong, when you've lost the author of the torture memos, where are you exactly? And where are we? We are at the end of this episode, which means it is time for our favorite things. That's my attempt at a transition. My favorite things are wolves. Yes, exactly. My favorite thing is Neyrus, the fiercest of all the Norse wolves. No, my favorite wolf is a dire wolf. A dire wolf reference I could get behind.

1:21:38Yeah, yeah, yeah, yeah. But actual favorite things. So Don Moynihan had this great post about, you know, slaughter and the project at will whose will that I definitely recommend. I want to call out Alexandra Petri, friend of the pod. She had a great piece in The Atlantic documenting the Kennedy Center Honors. It's called Trump's Very Weird Night at the Kennedy Center Honors. And I mean, she really just puts her finger on the pulse of all of the weirdness that happened there. And I'm not even just talking about the bad plastic surgery. Like everything is covered. It's truly a rollicking read. I also wanted to recommend a book, A Flower Traveled in My Blood by Haley Cohen Gilliland, which is about Argentina in the 1970s and 1980s when a military junta would just randomly disappear people.

1:22:31This is a chronicle of the work of mostly women getting beyond their family roles, Judge Tong, to try and recover their family members. Oh, that's great. It's been on, I think, the Times' best books of the year list, and I've been meaning to read it, so that's good. I really do need to. I want to call just a long piece of investigative reporting that ran in the New York Times late last week by Megan Toohey and Isabella Kwai. Pretty incredible investigative reporting on the Tate brothers. That's Andrew and Tristan Tate, these Manosphere stars and accused rapists and sex traffickers who have very deep ties to a lot of people in the Trump administration, including like Barron Trump, which I had not known but is detailed in the article.

1:23:11So pretty incredible investigative reporting that seems to have spanned the US, the UK, Romania, where they were living for some time before they were sprung out of their release limitations and allowed to return to the United States. On a private plane. Profoundly disturbing, dystopic account, but just really incredible reporting. So definitely read that if you haven't. All right. So let's turn to some housekeeping before we go. First up, this week on Runaway Country, Alex Wagner is joined by three incredible guests to dig into the chaos at the Pentagon. First, former CIA analyst and former Assistant Secretary of Defense and now Senator Alyssa Slotkin joins Alex to talk about her stance on both the boat strikes and Signalgate and how it has been in the crosshairs of the president and his allies.

1:24:00Then Ben Rhodes weighs in on the reputational damage and what it says about America on the world stage. And lastly, Nancy Youssef, one of the journalists who gave up for Pentagon press pass rather than bow to the authoritarian rules that Pete Hegseth was seeking to impose on the press, shares what it is like reporting from outside the walls while still holding Hegseth accountable. It is a jam-packed, must-listen episode. Tune into Runaway Country now on YouTube or wherever you get your podcasts. And guess what, Stricties? We are headed to the West Coast best coast. In case you missed it, or in case your group signal chat included an Atlantic journalist and you didn't get all the info, Strict Scrutiny is headed to the West Coast for the first time ever.

1:24:44You can catch us on March 6th in San Francisco at the Herbst Theater and on March 7th in Los Angeles at the Palace Theater. You can come for the analysis, but stay for the gentle bullying of Chief Justice John Roberts. Don't worry, he can take it. Tickets are at crooked.com forward slash events, and you should grab them before they sell out. West Coast, Best Coast, we're coming for you.

1:25:28And thanks to our digital team, Ben Hethcote, Joe Matoski, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at Strict Scrutiny Podcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

1:25:59Thank you.