The Legal Battles Over Trump’s War on Blue Cities

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29:07Shifting gears, we wanted to talk a little bit about some of the things that are going on at the court, not necessarily in oral arguments, but behind the scenes. So currently pending in the court cert pool is a petition from Kim Davis, the Kentucky clerk of court who refuses to issue marriage licenses because in the wake of Obergefell versus Hodges, she would have to issue them to same-sex couples and opposite-sex couples, and she says that issuing them to same-sex couples violates her religious beliefs. Her cert petition asks the Supreme Court to review a Sixth Circuit decision holding that because she was functioning in her position as a state actor rather than as a private citizen, her actions are not protected under the First Amendment.

29:50However, in addition to making that request, Davis has also asked the court to, wait for it, overrule Obergefell versus Hodges, the 2015 decision that legalized same-sex marriage across the nation. She argues that a right to same-sex marriage has no basis in the Constitution. I hope no one tells her about executive privilege, which is also not in the Constitution, but whatever. It's going to be a real hard day for her when she gets that news. But this is where we are, folks. Obergefell versus Hodges in the crosshairs, apparently. So this is not Kim Davis's first SCOTUS rodeo. She is something of a repeat player, having petitioned the court for review in 2020 at an earlier stage of the litigation.

30:31There, the court denied cert, but notably, Justices Thomas and Alito took that personally, issuing a statement respecting the denial of cert. They didn't dissent from the denial. That is, they wouldn't have heard Kim Davis's case, but they had some things they wanted to say about Obergefell. And what they wanted to say was a broadside against Obergefell. So the two justices accused the Obergefell majority of, quote, altering the Constitution and, quote, having ruinous consequences for religious liberty. So this is the first conference at which the court will consider Davis's latest challenge because the court doesn't grant review without considering a case at at least two consecutive conferences.

31:08That's become the practice. So there would have to be a second conference before we hear about any cert grant if they stick with, again, past practice. So if the justices deny review, however, we could hear about it as soon as Monday, November 10th. And again, to underscore that there are no new ideas, in related news, on Friday, October 24th, the Texas Supreme Court amended its judicial code of conduct to permit justices of the peace to refuse to perform same-sex marriages based on their religious beliefs. This follows a years-long legal battle involving a mclennan county texas judge who faced sanctions and public warnings for doing so in 2019 the court's new rule states quote it is not a violation for a judge to publicly refrain from performing a wedding ceremony based upon a sincerely held religious belief end quote i will also note that you could have sincerely held religious beliefs that people of different races should not be married, and this would seem to be okay here too.

32:08Moving on, justices in the wild. We had a lot of Justice Barrett in the wild sightings when she was in the first couple of weeks of her book publicity tour, but we saw in the last week Justices Sotomayor and Jackson actually out and about in Massachusetts. Justice Sotomayor appeared at Boston University Law School, where she was in conversation with her former clerk, BU alumnus, and current counsel at Oric, Cesar Lopez Morales. The justice who appeared in a pair of red and white Nike dunks. Fashion. And comfort. That's fashion. Yeah. What's on your feet, Leah? Not Nike dunks. Allbirds. That's great.

32:47Comfort for sure. Anyway, so she encouraged the audience to keep the faith and to keep fighting. As she said, quote, I refuse to be a bystander. I get up every morning ready to fight every morning to dissent this vehemently as I humanly can and to scream from the mountaintops, no. Justice Jackson was a little more opaque in her conversation with Danielle Holly, the president of Mount Holyoke College. This took place at the Springfield Public Forum in Springfield, Massachusetts. Justice Jackson told the audience, quote, anything worth doing takes effort, which was ostensibly about her path to the bench and the hard work that it required, but could also have been a meditation on her efforts to save this court from itself.

33:30Speaking of efforts to maybe save this court from itself, the New York Times' Jodi Cantor is now officially on the Supreme Court beat for the Gray Lady. And she has a new piece about the tensions between the three Democratic appointees about how to approach their time in the jurisprudential wilderness. What did you all think of the piece? Well, I had great quotes from both of you. 10 out of 10. No notes. Look, I mean, I think that we are not the audience for this piece because we have been talking about these dynamics so much. Like, it's just we are kind of obsessed with this. Like, it's impossible to do what they're doing.

34:08They're taking very different tacks in dealing with the collapse of the constitutional order, their colleagues, how to speak to the public and to try to persuade at the same time. And I think at different moments, we've had different kinds of sympathy for different approaches, or at least I have. I did learn a few things from the piece. One, this made me so furious. So we know on the bench, Justice Jackson sometimes gets side eye from her colleagues. I didn't realize that's also true in conference, which the piece suggested. Like they don't like that she talks for a long time in conference and that she brings detailed notes.

34:39And I was just like, as a compulsive overpreparer myself, like, you know, I would have pages and pages of detailed notes to be sure. that I had really thought through everything I wanted to say, and I would show up and do that. And they're like, somehow that's offensive or unserious or something. Well, Kate, you know, the first black woman on the court is really just there to get the door until the end of time, or at least a new justice to join the court. So don't consume all this oxygen with your ideas in conference. The idea that they go to conference to ostensibly speak with their colleagues about how to resolve these cases, maybe have a debate, explain their reasoning, just in like free-balling it, is insane.

35:17Right? Well, do you remember Justice Barrett at her confirmation holding up the notepad? No notes. Yeah. You know who has lots of notes? Ketanji Brown Jackson. You know, I have been teaching for 10 years and I still go to class with pages and pages of notes. Detailed notes, including a one-page sheet that is a densely packed outline of everything. It's just... Can I just say this? This actually, again, she is the only black woman on the court. People routinely, even before she became the only black woman on the court, talked about was she qualified? Was she smart enough? They still continue to do this.

35:56Under those conditions, wouldn't you overprepare? Like, if you want her to stop coming with notes, stop having your little minions out in the world. Tell her that she's stupid constantly. Like, shut up. Like, this is every black woman who ever worked at a job. Yeah. Like you just show up because you have no safety net and you have lots of notes. Yeah. And then that's held against you too. Right. Yeah. Yeah. So that was pretty enraging. Yeah. I mean, it's an impossible task that the three dissenters have. And I do not envy them. They all seem really committed to staying the course and pursuing in their own different ways.

36:36like what they think is the kind of like right way to try to either keep things from going radically off course or to tell the country they already are. And so I guess I felt like a lot of empathy and gratitude for them and the impossible position there. And I think that was my big takeaway. I loved Pam Carlin's drop the mic. Oh, my gosh. Oh, my gosh. Friend of the pod, Pam Carlin. Yeah. Telling it like it is. So what she said is, quote, the problem with waiting to speak frankly, is that, quote, over time, you normalize what's going on, end quote. And she said it might be tempting to hoard influence and leverage for a, quote, cataclysmic case, end quote.

37:13But by the time that happened, she said, quote, it may be too late. I mean, and this is sort of the anti-Jackson position. Like, instead of speaking freely and publicly and forthrightly, you kind of hedge because you're trying to maintain equanimity with your colleagues. And just like, maybe there's no time for that right now. So that's what we've been saying, I think. Yeah. And I can imagine a world in which this is like a both and, right? Like some people try one course, like some people try another. But I'm very sympathetic, obviously, as a piece made clear, to the Pam Carlin view of like, what exactly are you waiting for?

37:49Like they have so allowed the president to just demolish so many aspects of our constitutional system. What again are you waiting for? So I was talking to a friend about this and one of the things that he noted, and I don't know that Jodi meant for this to be sort of the tenor of the piece, but there is this kind of setup where you have Kagan, the tactician, and then Sotomayor and Jackson, the emotive, like, forthright speakers. And my friend, I think rightly mentioned, like, sometimes speaking forthrightly and to a particular audience is a strategy, and it's also tactical. And I wish that had come across more clearly to all audiences?

38:29I thought Sotomayor, though, came across as like somewhat between the kind of Kagan and Jackson polls. Well, I actually thought she came off as like, she was very much like that when Justice Jackson wasn't on the court. So I think about her intervention and Dobbs is like, you know, I'm not convincing these guys. Let me talk to you people. Like, will this institution stand the stench? Blah, blah. And now Justice Jackson is maybe taking it on even further. So it's not that Sotomayor has moved. Maybe it's just the moment has moved even beyond where she was. Yeah.

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41:18Shall we turn from Article 3 to Article 2 for more hope and aspiration? Yes. Excellent. Okay. In additional Article 2 news, we should note that the president's bombing campaign against Caribbean boats continues apace and ostensibly in the absence of law. The only difference now is that the campaign to decimate these boats has no longer been confined to the Caribbean. It has expanded to the Pacific Ocean and again seems to be predicated on totally unsubstantiated claims of drug trafficking. So the administration has acknowledged even more lethal strikes on boats in the eastern Pacific, this time four boats.

42:00These attacks left 14 people dead and one survivor. And this is apparently the first time multiple strikes were announced in a single day. Yeah, which did feel like a genuine escalation. And it just seems more and more apparent that this president badly wants a war with Venezuela. Could it be because of oil? Maybe. Or maybe he just like wants a little war. Like, I just don't know. Yeah, yeah. Just seems like a fun thing. I mean, you know, he obviously has had a lot of antipathy to the Maduro regime. So I think this, again, could be a both. And there are multiple reasons. But they all seem in confluence to be moving us in this direction of the strikes turning into something that begins to look more like full-scale war.

42:42And on Friday, in that vein, we got news that the administration's aggression towards this, you know, the Maduro regime in Venezuela was likely to escalate into actual full-scale military campaigns, including striking military targets inside Venezuela. This is according to reporting by both the Miami Herald and the Wall Street Journal. And, you know, they're trying to suggest this is just ordinary drug interdiction to bomb boats, which it is very much not. But you cannot make a plausible argument that bombing inside a sovereign state, whatever your relationship with that government, is not war.

43:18Like that would be essentially launching a war with Venezuela. And it feels like we could be on the precipice of that. You can't make a plausible argument. And yet I wouldn't put it past Brett Kavanaugh to try. So did any of you see the 1997 movie Wag the Dog? Yeah. Yeah. This is Wag the Dog. Yes, yes. That's why I said he just wants a little war. Well, I mean, Wag the Dog, they start a war with Albania to distract from a sex scandal in the administration. The jokes write themselves. Anyway, in addition to what is happening in the Caribbean and now in the Pacific, we wanted to also acknowledge the percolating effort to ignore the 22nd Amendment and install Donald Trump into a third term as president.

44:05So here is noted constitutional law scholar and former football coach, Senator Tommy Tuberville, on this issue. If you read the Constitution, it says it's not. But if he says he has some different circumstances that might be able to go around the Constitution, But that's a team. We've got a long way to go before that. The president, for his part, has been reading the Constitution, it would seem. And although it seems he's not reading the polls, but he also had this to say. I have my highest numbers that I've ever had, as I should. I ended eight wars and we have the greatest economy in history.

44:46I have the best numbers for any president in many years, any president. And I would say that if you read it, it's pretty clear. I'm not allowed to run. It's too bad. I'm just stupid. But we have a lot of great people. So, thoughts on this. One, it seems to be an enormous mistake to take Donald Trump just like offhand, seeming to concede that he's not allowed to run as somehow forever resolving the issue. Like, he's done. He's like seen the light. He's not going to try to like further explore this possibility. I think he's – we're going to see a lot more rounds of this. And I also just think it really matters how we talk about the 22nd Amendment and the two-term limit, which is, you know, not the way that Tuberville is talking about it.

45:35But, you know, I do think that there are ostensibly serious people who are like, I don't know. He says he's got a plan. What are the legal arguments that would actually entitle him to run for a third term? And I just feel like a thought experiment, like if you'll indulge me briefly, is helpful, which is like, what if Trump announced that women wouldn't be voting in the 2026 midterm elections or that he was giving every red state a third senator? Can I just interrupt you right here? Because I just want to point out that you basically manifested the reconstruction and demolition of the East Wing.

46:04And I'm a little concerned here. I better not go on. Like you are exercising these witch-like powers on Halloween. Okay, I'm done. I am saying that he is – when he says I might have the ability to run for a third term, he is just saying we are actually going to stop pretending there is a plausible argument and I am going to announce that I am suspending the Constitution. And we absolutely have to talk about it in those terms. Agreed. If he continues to publicly play with the idea of not leaving office when a second term is done. Agreed. I won't say anything more. All right. Speaking of life tenure, let's switch to case previews and talk about what the Supreme Court is going to get its little hands into this week at its first week of the November sitting.

46:49The sitting is two weeks long, just a reminder. And as is our practice, we're going to preview the cases that will be heard during the first week. We'll get to the second week in time. First up, though, RICO versus United States. So this is one of the many criminal cases on the merits docket this term, although it is not a case about RICO, which is the federal racketeering statute. It's just a party whose name is RICO. So here's what the case is about. Isabel RICO is the defendant in the case. She was on supervised release after serving time in prison for meth and heroin distribution. While on supervised release, she moved to another county without telling her probation officer.

47:24By the time she was rearrested in 2023, the 42-month term for supervised release had expired. However, the district court applied the fugitive tolling doctrine, meaning it did not count, as time unsupervised release, the many months when she was a fugitive and out of contact with her probation officer. The court sentenced Rico to prison time again with an increased sentencing guidelines range because she had absconded. And the question before the court is whether the fugitive tolling doctrine can be applied in the context of federal supervised release, even though there is no explicit statutory authority for courts to do that.

47:59It'll be very interesting to hear what noted libertarian Neil Gorsuch has to say about this, especially given his prior embrace of the rule of lenity. That is the rule of statutory construction that says criminal statutes ought to be construed if there is ambiguity in favor of the defendant. It may also be an opportunity, I think, for a strange bedfellows coalition of Gorsuch, Sotomayor, and Jackson coming together. I don't know if that's enough to overcome the law and order crowd, but it'll be interesting. Law and order or no law and no order, just depending on the context. Well, depending on the president.

48:34Exactly, exactly. So on the same day that RICO will be argued, the Supreme Court will also hear Hensley versus Floracorp, a case concerning the liability of government contractors. Floracorp is a government contractor that employed an Afghan civilian who turned out to be a suicide bomber. An army specialist, Winston Hensley, was injured in the suicide bombing, and he sued Florida Corporation in state court for negligently employing and supervising the suicide bomber. The issue before the court is whether a federal common law defense preempts a state law claim against a government contractor in these circumstances.

49:08If the court answers this question in the affirmative, it will probably be extending a 1988 Supreme Court decision, Boyle v. United Technologies, which immunized a government contractor from suit where the contractor performed the contract according to specifications to cases like this one, Hensley, where government contractors violate the terms of their contracts. And they would be saying those contractors also can't be sued. So Boyle is a somewhat famous slash infamous federal courts case written by Justice Scalia. It foregoes bright line rules in favor of a loosey-goosey standard for when federal courts can fashion federal common law, something Justice Scalia was often at pains to say federal courts shouldn't be doing.

49:48You know, that is like the great man was of the view that federal courts shouldn't be acting like common law judges. I had always gotten the impression that he had like quietly noted some misgivings about his opinion. Oh, absolutely. After the fact. But like when you interviewed with Justice Scalia and they asked you, like, what opinion of his do you disagree with? You basically weren't allowed to say Boyle after a certain period of time because it was just so boring. And everyone said it. He's like, yeah, I know. Yeah. Get over it. He was fond of saying that. So it should be noted that the federal government is weighing in here as an amicus.

50:20and it has asked the court to leave aside the question of whether Boyle should be extended and simply establish a rule of constitutional immunity under the Supremacy Clause. So that's kind of an escalation. Not surprisingly, Flora Corporation would be absolutely fine with this option as well. Interestingly, there are a number of different groups, surprising groups really, who are not in favor of this option, who are arguing in favor of Hensley and against this kind of immunity. And it includes states of a wide variety of ideological postures. So red states like Alabama and Mississippi and blue states like Minnesota and Oregon and purple states like New Mexico and North Carolina are all weighing in here to say that they do not want this kind of immunity for government contractors and circumstances like these.

51:11So this may actually be the judiciary's version of the Epstein files? Apparently saying no to government contractor immunity when the government contractor defies the terms of their contract is the one issue that unites all facets of our polarized country. So the Supremacy Clause question could have important implications for some current events and some questions that people have been raising over the last few months, specifically about the potential for state-imposed liability against federal officers who violate state law. So supremacy clause immunity is the doctrine that limits states power to impose legal liability on federal institutions or federal officers.

51:50And the doctrine arose from a state's prosecution of a deputized federal marshal after the marshal shot a person trying to assassinate Justice Field. Supremacy clause immunity is also related to the doctrine of intergovernmental immunity, which goes back to McCulloch versus Maryland, where the Supreme Court said Maryland couldn't tax the National Bank and instrumentality of the federal government. So the basic gist of the doctrine is that state laws, and specifically criminal laws, can't be enforced against the valid actions of a federal officer who is acting with federal authority. But the standard has a lot of wiggle room built into it, like determining when an act is authorized by federal law.

52:26The doctrine also limits immunity to actions that are no more than necessary or needed to perform whatever the federal function is. Supremacy clause immunity is implicated where state law is trying to limit or hold liable the federal officer from doing something that's pretty integral to functions and duties that federal law authorizes. So there is something that makes a lot of sense to this doctrine of immunity. But the question is, can it totally disable states from pursuing federal officers if they exceed the bounds of their authority under federal law? And if you're picking up what Kate is putting down, it should be clear to you listeners why supremacy clause immunity is such a big question right now.

53:06It should also be clear why this administration is pushing it at the Supreme Court and why so many states of differing ideologies seem to be resisting it. This is because supremacy clause immunity will affect whether states can potentially impose criminal liability on and prosecute federal officers who are part of this militarization of American cities. And that means whether they will be immunized for abuse of innocent bystanders and protesters who are simply exercising protected constitutional rights. This is really about whether states can prosecute federal officers when they tear gas protesters or body slam people or zip tie kids or shoot nonlethal weapons at journalists, protesters, etc.

53:49So this is a big deal. And Stephen Miller, this is the vice vice president of the Trump administration, says that, of course, the state should not be able to do this. So let's roll that tape. To all ICE officers, you have federal immunity in the conduct of your duties. And anybody who lays a hand on you or tries to stop you or tries to obstruct you is committing a felony. You have immunity to perform your duties. And no one, no city official, no state official, no illegal alien, no leftist agitator or domestic insurrectionist can prevent you from fulfilling your legal obligations and duties. All right.

54:29So insofar as he's making this confident categorical claim, he's wrong. But it is definitely unclear exactly what the scope of supremacy clause immunity is. And the fact that we right now have the federal government asking the Supreme Court to weigh in on this really important question in a case that is flying under the radar, although not if we have anything to say about it, is, I think, quite significant. And just stepping back for a second, like part of why we are talking about the prospect of state liability against federal officers is because of the limited availability of federal remedies against federal officers who violate people's constitutional rights.

55:08So you can sue federal officers to get an injunction that would stop unconstitutional conduct, but the Supreme Court has vastly limited your ability to sue federal officers for damages if they violate your constitutional rights. So you can sue to prevent future violations, but not hold viable officers who engaged in past violations. There's a 1971 case, Bivens versus six unknown named agents of the Federal Bureau of Narcotics, and that case recognized the ability to sue federal officers for damages for violating Fourth Amendment rights. And this court, that is the modern court, the Roberts Court, has predictably been hostile to that precedent.

55:46It is from the 1970s. Cases from the 70s really aren't entitled to stare decisis effect when you think about it. That was a joke anyways. So this court has vastly narrowed. Right. Is it? Yeah. No, I know. A little problem with manifesting there. But modern court, Roberts Court, has really narrowed the ability to sue federal officers for damages, with some justices included noted libertarian Neil Gorsuch and his buddy Clarence Thomas calling for Bivens to be overruled. And so the fact that you can't sue federal officers for damages under federal law is part of why people are talking about state liability for federal officers who violate state law.

56:25And why there is a real fear that this court will find another way to shut any potential doors that remain somewhat open. So this is a case we're going to be watching very closely and obviously not just for what it's going to say about federal common law and defense contractors. All right, on to the next. Coney Island Auto Parts Unlimited versus Burton will be argued on Tuesday. This is a civil procedure case and specifically it asks whether federal rule of civil procedure 60C1 imposes any time limit to set aside a void default judgment for lack of personal jurisdiction. As a general matter, rule 60 sets forth the circumstances under which a litigant can receive relief from a judgment order.

57:0260C1 specifies that a motion for relief must be made within a reasonable time. And Coney Island Auto Parts didn't file its Rule 60 motion to vacate a default judgment as void for lack of personal jurisdiction until six years after that default judgment was entered. The company argues that the summons notifying it of the judgment was improperly addressed, and so it was defectively served, a point the Sixth Circuit acknowledged, even as it ruled against the company for failure to comply with the reasonable time requirements. And so Civ Pro Mavens will love this case. Actually, Civ Pro Mavens are going to love all of the cases that are being heard on Tuesday because Tuesday is Civ Pro Day at SCOTUS because that's the day that the court also hears Haines Celestial Group versus Palm Quest.

57:44And this is a case that considers state court removal, a final judgment, and diversity jurisdiction. So if you are into civil procedure, you should be tingling right now. And I know that you are. The facts are very interesting. Sarah and Grant Palmquist, residents of Texas, sued Whole Foods and Hain, the makers of Earth's Best Baby Food, which is sold at Whole Foods stores, in a Texas state court alleging that heavy metals in the product caused their son's autism. Citing diversity jurisdiction, which allows federal courts to take up cases involving parties from different states, Hain, which is based in Delaware and New York, removed the case to federal court.

58:21In doing so, Hain argued that Whole Foods, which is based in Texas, was immunized from suit under a Texas law as a quote-unquote innocent seller of the product and therefore they never should have been included as a party to the suit. The Palmquist amended their complaint to add new claims against Whole Foods and tried to have the case remanded back to state court. The federal district court denied that request and dismissed Whole Foods from the case and two years later, after a trial, the district court entered a ruling in favor of the company. The Palmquists appealed that ruling to the Fifth Circuit, which concluded that the district court had improperly dismissed Whole Foods and lacked jurisdiction to enter a judgment against the Palmquists.

58:56The appellate court then sent the case back to state court with instructions to do the whole thing over. And Palmquists may be an opportunity for the court to side with corporations while also potentially bench-slapping the Fifth Circuit. Too great taste. Yeah.

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1:00:19All right, so those cases are obviously interesting, at least for Fed courts and CivPro stands. But of course, the main action in the first week of the November sitting is the case the court will hear on Wednesday, Learning Resources v. Trump, aka the Trump tariffs case. The case is actually two consolidated cases, both challenging the president's authority to impose tariffs under the International Emergency Economic Powers Act, or IEPA. The court has fast tracked these cases, which, I don't know about you ladies, causes me to stare in Jack Smith presidential immunity and classified documents.

1:00:58But whatever. Yeah. So we are going to be covering the oral argument in the tariff cases in much more detail at our live show at Crooked Con on November 7th. We will just note that there has been a ton of amicus activity in this case, including amicus briefs from small businesses and states that are siding with the plaintiffs, challenging the president. Also, if you are going to be joining us at Crooked Con, we are going to have some, I think, pretty fun tariff-related games in store. None of which requires the costume. Leah won't be wearing a frog suit, to my knowledge, but the tariff games, I think, will be really fun.

1:01:33To my knowledge. You'll have to show up and see. Surprise! Back to the tariffs case. So the case involves two different kinds of tariffs. So the first category is the trafficking tariffs. So these are ostensibly imposed on some products from China, Canada, and Mexico because those nations allegedly failed to do enough to stop the flow of fentanyl. It is, just a quick editorial note, tough to keep track of everyone who is to blame for the flow of fentanyl. We are bombing Venezuelan, Colombian, and Ecuadorian fishing boats because they are responsible for fentanyl, but also tariffing all of these nations because it's also their fault.

1:02:13Anyway, so that's one category of tariffs. The president has also been imposing worldwide or reciprocal tariffs on a bunch of countries because of trade deficits. So AIPA authorizes the president to take action to, quote, deal with any unusual and extraordinary threat which has its source in whole or substantial part outside the U.S. to the national security, foreign policy or economy of the United States, end quote. But the statute only authorizes such action if the president declares a national emergency with respect to such threat. And when there is a national emergency, the president under AIPA can, quote, regulate importation of property in which any foreign country or national thereof has any interest, end quote.

1:02:52So obviously a question here is whether a trade deficit constitutes a national emergency or merely a cyclical economic phenomenon that has been part of our country's economy for several decades. Another related question is whether the trafficking tariffs deal with an unusual and extraordinary threat or instead part of a long term phenomenon that is just part of ordinary federal law enforcement. I predict a big part of the oral argument will focus on the question of whether the statutory language actually authorizes the imposition of the tariffs, since the term tariff is not explicitly used in the statute.

1:03:29Instead, the statute speaks of the authority to, quote unquote, regulate, which prompts the question, is regulate a synonym for tariffs? The strange bedfellows coalition of Warren G. Merriam-Webster and textualism would like to know.

1:03:48The case also presents the authority question of whether the major questions doctrine applies with full force to Republican presidents or is it just for Democrats? Asked and answered. Asked and answered. We do have some indications of that on the shadow docket. But the major questions doctrine recall is the Republican appointees made up judicial doctrine that said statutes that authorize administrative agencies to adopt certain regulations have to be construed basically against the agency in cases of major economic and political significance, basically a carve out from the statutes and what powers they grant to agencies.

1:04:26Again, at least when it's Democratic presidents who have appointed the heads of said agencies. But I do want to propose a possible reconceptualization of all Supreme Court case law on executive power. So the foundational executive power case is Youngstown. Youngstown asks whether the president is acting in agreement or disagreement with Congress. If he's acting in agreement with Congress, the president has more power. If in disagreement, he's acting less. Youngstown, again, three zones. But I actually think there's like a Youngstown step zero, which is, is the president Republican? Is the president waving their hands and saying foreign affairs?

1:05:02Because we have some indication, you know, from the AIDS vaccine advocacy coalition stay in the foreign aid funding case that when Republican presidents get up and say foreign affairs, all of a sudden the president gets to exercise Congress's powers like the spending power or act in violation of congressional statutes, even in areas of congressional authority. But, you know, it's a little like hocus pocus. That's a deep cut for Halloween. It is. So another part of this case is the challengers are raising non-delegation doctrine, you know, as a way of challenging the tariffs. And that is really going to be a tough one for Neil Gorsuch because it will pit his fervent desire to make it 1939 again against the Trump agenda to make it 1839 again.

1:05:52What a difference those hundred years make. Which date to pick, we just don't know. It's true. Good time either way, though. We're dialing the clock back in some fashion. The question is just, yeah, like where are we stopping the dial? So we're going to have much more to say about this case after the argument, and we will do it on stage at Crooked Con and then in your ear holes for our regular Monday episode. And to say one more thing about the amicus involvement in the case. Leah mentioned at the outset that you actually had a lot of small businesses on the side of challenging the tariffs. It's also like kind of wild to look at how lopsided the amicus activity in this case is.

1:06:30So you have very few supporters of the federal government and just an enormous number on the other side, including the Cato Institute, the Chamber of Commerce. Those are more often fellow travelers with the administration, but they are very much on the other side. You have conservative law professor Michael McConnell, who's part of the team challenging the tariffs. I still think they find a way to rule for the administration, but I don't think this is going to be an easy one for them to do that. So they're going to have to contort themselves, which they are all too willing to do. The pretzel court.

1:07:01Exactly. Much more to come. And that is the news. Let us end, as always, with our favorite things this week. I will start. I have kind of a long list. So on the less substantive front, I've been watching Task. I know I'm a little late to this train. It's phenomenal. would definitely recommend. Mark Ruffalo is just fantastic. Also listen to Lily Allen's new album, West End Girl. Listen to it once, not like 50 times. Do not preempt me. Many, many, many times. Also recommend to our listeners. Sorry, Melissa, did you want to? She's going to pick it up. No, I have things to say. Okay, okay. Well, I'll leave that to you.

1:07:42Chris Geidner over at Law Dork wrote a piece, The Kavanaugh Stop 50 Days Later, just surveying all that has happened since Brett Kavanaugh declared that ICE stops are no big deal, very much worth checking out. Steve Vladek has a new paper, The Supreme Court's Self-Defeating Supremacy, that is available on SSRN. Also would recommend that. ProPublica had a story, God's Chief Justice, that is a long profile of the Chief Justice of the North Carolina Supreme Court. And given the importance of that court, it is well worth the read. So the Chief Justice This is the one that spearheaded the North Carolina court immediately reversing course once the court flipped to a majority of Republican nominees.

1:08:19The court's recent pro-voting rights decision. So overruling the decision, invalidating the state's voter identification law and overruling the decision, limiting the state's ability to engage in a partisan gerrymander. The piece is just wild. So to give you a quick flavor, quote, when ProPublica emailed questions to the chief justice's daughter, the North Carolina Republican Party's communications director responded. writing that ProPublica was waging a, quote, jihad against North Carolina Republicans, which would not be met with dignifying any comments whatsoever. Quote, I'm sure you're aware of our connections with the Trump administration, and I'm sure they would be interested in this matter, the spokesperson said in an email.

1:08:57Anyways, the piece is really worth your time. It's an in-depth exploration of a man who seems to have just vastly transformed state institutions and law in North Carolina, and it is deeply alarming. Two other things. So the organization People's Parity Project has organized a Lawyers March for Democracy on November 15th from 1 to 3 p.m. That will be a protest that will start outside at the Supreme Court or be outside the Supreme Court. If you are in D.C. or able to get to D.C., definitely worth checking out. Again, it's Lawyers March for Democracy on November 15th. And there will be a note on the show notes, as always, with our favorite things.

1:09:35One last favorite thing I don't actually have, but I know I would love, the Jodi Cantor piece in The Times, which we were talking about, the opening anecdote discusses a version, a non-public version, of Justice Kagan's dissent in the student debt relief case. So apparently she deleted the most heated passages before signing off and releasing the dissent. So my favorite thing is the uncensored version of this dissent, which I really need in my life. Elena's version, please. Yeah, exactly. I mean, even the public one is pretty spicy. When she got her maskers back from John Roberts. Yeah. Yeah. Oh, can't wait for that.

1:10:13Okay. So I will start with my least favorite things. And one of my least favorite things is a hurricane. A hurricane that is named Melissa that hits your family home in Jamaica. Absolutely rude. First of all, I thought hurricanes were supposed to have out-of-circulation names, not names that are used by people who are still walking around, breathing, and being young, okay? You do not name a Hurricane Melissa. Melissa has young girl energy. She will mash up your coast. You need to name your Hurricane Mildred, Mercy, Matilda. These were all there. These were all available. What about Millicent? Millicent.

1:10:56Also, I mean, like FYI, Jamaican people have such a hard time pronouncing Melissa in the first place. All my Jamaican relatives cannot say my name. They're like, Melissa, Melissa. It's just like, it's too much. And so it was wild to hear the reports from Kingston about Hurricane Melissa coming and having all kinds of negative effects on the coastline. Absolutely terrible. So this was horrible. second if you like me love this island and i do and you want to help the wonderful people who are right now really suffering in jamaica because this storm although it did not hit the capital kingston it did decimate montego bay which is a huge site for tourism which is a major a major industry in jamaica and will be very will make it very challenging for the nation to come back from all of this if you want to help out there are a number of great organizations that are trying to get aid to the beleaguered island.

1:11:50They include the Walk Good Jamaica Relief Fund, and their website is biosite, S-I-T-E, forward slash walkgoodjamaica, all one word. The American Friends of Jamaica are also doing great work. You can look them up on the internet. Global Empowerment Mission, Mercy Corps, and Food for the Poor Jamaica are also doing relief efforts. So those are fantastic. Please help out if you can. Jamaica is fantastic, not just for vacations, But just for being from there, it's awesome. And they deserve our help. In addition to helping out Jamaica, one of my favorite things is Impermissible Punishments, How Prison Became a Problem for Democracy by Yale Law School's Judith Resnick.

1:12:31Judith is one of the nation's foremost experts on prisons, on litigation related to prisons. And this is truly a tour de force on how the prison became not just an American fixation, but a real problem for American democracy. And then finally, also another feminist icon, not unlike Judith Resnick, is Lily Allen and her amazing tour de force album, West End Girl. Such a fantastic album. Great songs. Sort of toggles between a kind of retro vibe and an electronica vibe. But I loved Relapse, Madeline, Sleepwalking. Definitely second Madeline. Also Tennis. Madeline is great. Tennis is great. But I also love that she's so petty that she did it right before Stranger Things.

1:13:19And also the song Pea Palace takes the Stranger Things theme. She's working on many different levels, but all of them are petty. It's also just the monomania, right? It's just every single song is about him. And it's so detailed. And, you know, there's obviously like lots of, you know, like sort of revenge tracks on albums, but not like the full every single word of every single song. It's pretty epic. Well, I think Lemonade was there. Some of the songs. Sure. Yeah. No, Lemonade was – it was an arc. She got to forgiveness. Lily never gets to forgiveness. And I love that for her. And it's amazing.

1:14:00Okay. So there's like whatever, Becky with the good hair. There's like some explicit detail. But most of it is like – That's called sorry, Kate. But it's metaphor. It's obviously suggestive. Like, here is the stuff I found in the bag. Here's the bag it was in. Like, here's what it is. It's very granular. It's very, she's doing textualism. This is textualism. This is textualism. Textualism. In the debate between airing public grievances and dirty laundry versus being diplomatic, we know which side Lily Allen came down. And we're here for it. The other thing, too, it has caused me to go back and look at all of their sort of public stuff that's on the internet, like their videos.

1:14:36It was like, what an absolute jerk he was when she did the Olivier Award. She was nominated for an Olivier Award for this play that is, you know, what eventually starts off this album, West End Girl. He's such a dick. Like, he cannot be happy for his wife's professional success. Like, such a dick. Anyway, so I love this. I hope the video for Pee Palace will be a parody of their Architectural Digest tour of their Brooklyn Brownstone, where she's like, this is what I thought was a dojo. but it actually turned out to be the place where you cheated on me like a million times. I was also going to mention the Lily album.

1:15:12But in that kind of granular detail. I think we've covered the topic. I will just mention two more things, which is I started. George Packer has a new book called The Emergency, which is a novel. And Michelle Goldberg actually features it in a recent column. And it's great. I will report back when I've read more of it. And then actually brand new, Beck Ingber and Jessica Thibodeau have a piece in Just Security that was just released, I think, on Friday that they think makes really crystal clear that as of November 3rd, under a statute called the War Powers Act, the administration's use of force against the suspected drug cartels, which we have been talking about, including on today's episode, will be categorically illegal.

1:15:50No question. The only question is, is Congress going to do anything about it? And last, we had a terrible storm in New York that felt like a little bit like the after effects maybe of Melissa. Melissa! Yeah. In the city, in the streets of New York. I mean, a couple of people died, like just a really shocking amount of water. And in my Brooklyn neighborhood, there were so many random New Yorkers like getting their shoes and pants soaking wet, like digging with their hands or sticks leaves out of the drains in various parts of the city and keeping, I think, the streets from even worse flooding. So anyway, thanks for...

1:16:25So there will be a cholera epidemic in two weeks. You are fellow citizens. Maybe. Maybe that is the cause. But the basements were spared. All right. We also have some notices of stricties in the wild. So I was recently in Berkeley, California for a former law student's investiture as a judge. And I ran into some stricties. I know. It was so nice. I'm very proud of her. And I ran into some stricties who are big fans of the show. So I wanted to shout out Kristen, Kristen slash Kiki and Anya, who are longtime time listeners, but first time callers, at least to me. And we should also thank Maeve in Cambridge for writing in and telling us all of the things that she learned from the show that she's now applying in a class on the Supreme Court.

1:17:10So some housekeeping before we go. Once again, Crooked Con DC Stricties, have you gotten your Crooked Con tickets yet? This Friday, November 7th, we will be closing out the day with a live pod at the Ronald Reagan Center. Perfect place to discuss tariffs, head to CrookedCon.com to get tickets before they are gone. And if you can't catch us there, good news, we are heading to the West Coast for the first time ever. So you can join us at the Herbst Theater in San Francisco on March 6, 2026, then at the Palace Theater in Los Angeles on March 7. You can get your seats now at Crooked.com slash events.

1:17:53Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Lippman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Jordan Thomas is our intern. Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production support from Katie Long and Adrienne Hill. Matt DeGroat is our head of production. And 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

1:18:50Thank you.