Advisory Opinions - Are Marijuana Contracts Legal in Federal Court?

Episode Date: September 22, 2026

Sarah Isgur and David French discuss the upcoming “long conference” that marks the unofficial start to the new Supreme Court term, a prosecutor being referred to the Department of Justice for obstruction of justice, and a review of several circuit-court cases, including breaches of contract between marijuana-related businesses. Crime versus commerce reaches the courts.  The Agenda: –⁠Hello Justice John Marshall⁠ –⁠What is vulgar student speech? ⁠ –“There are only two genders” and race-neutral criteria –⁠Prosecutor referred to the DOJ⁠ –⁠Hash-ing out business⁠ Advisory Opinions is a production of ⁠The Dispatch⁠, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—⁠click here⁠. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member ⁠by clicking here⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger with my guest, David French. David, we have a popery today. We're going to start with a discussion of the upcoming long conference. We are but a week away from where the justices will sit down in that room with John Marshall Harlan looking down upon them as they decide what more cases to add this term. And a prosecutor being prosecuted.

And not for what we normally prosecute prosecutors for, hiding evidence, being overzealous and trying to convict. What about being underzealous in protecting a conviction? And then we'll get some circuit cases, David. Marijuana contracts. It's legal in your state. You have a business. You have to contract to have a functioning business, right? And what if they breach the contract? Surely you can go into federal court to enforce a contract against a breacher of the contract. right? We've got warrantless searches at the border. Can they just take your cell phone and look through it? As well as applying Looper Bright and videotaping everything you do in a store when you go into buy a gun in California. Oh, we've got thoughts, David. We've got thoughts. We've got thoughts.

We have thoughts. Let's do this. All right, David, well, there's certainly some things on the horizon. We have the long conference coming up on September 28th. For this, who need a refresher on what the long conference is, all those cert petitions that built up over the summer, well, the justices go through them in a very long conference that we've creatively named the long conference. Now, your cert petition has the lowest percentage chance of getting granted at the long conference, which is why any appellate litigator will tell you that they will gnaw off their arm rather than file a cert petition over the summer if they can avoid it. Now, of course, because of briefing schedules and requirements of how quickly you have to appeal,

sometimes you can't avoid filing over the summer for your cert petition. It sort of cuts both ways, David. On the one hand, lowest percentage chance, because there are so many petitions to review at the long conference, on the other hand, in general, the highest single number of grants will come out of the long conference. So there's tons of interesting cases that are sitting there. we're not going to like, we don't generally cover cert petitions on this podcast because there's so many

and the likelihood of anyone getting granted is so low and then you guys learned about a case that wasn't going anywhere. So we're not going to go over the gazillion interesting cases that are pending at the long conference. But David, I reserve the right after the long conference to highlight interesting ones that didn't get granted. We do reserve the right to complain. Yes. And especially, I just want to pre-reserve. I want to reserve a special slot if they don't. And is the Let's Go Brandon T-shirt case up at the Long conference? That's so funny. I was literally in my head. All I'm thinking about is the Let's Go Brandon T-shirt case. Remember, this is where the mom gave her sons for

Christmas. Let's go Brandon. I forget whether they were sweatshirts or T-shirts. They wear them to school, and the school says, no, citing vulgarity. And they're like, well, but it's not vulgar. And so it's this question about student speech. It's a question about, what actually is vulgar if everyone knows that it stands for something else like let's go brandon is that close enough but what about holy forking shirtballs like at what point is it like you know heck is technically a stand in for something more vulgar our kids not allowed you know in georgia to wear you know heck of a good engineer or you know whatever t-shirts they may wear around georgia tech but david i can't remember whether it's up at the long i know the surp edition has been you

been filed. I just don't remember whether it's up at the long conference. Yeah, I don't either. I don't either. But Amy brought up a bunch of interesting cases towards the end of our live podcast. So, you know, I'm looking at some of those that she brought up. But the reason it was fresh on my mind is I just sort of did a little guest lecturing via Zoom for a regent law class. And we talked about the angry cheerleader case. I got to choose the case I was going to talk about. And so I talked about angry cheerleader. And Sarah, as I was rereading angry cheerleader, if we can just take a five seconds for a diversion here, what was really interesting about this case that we did not really zoom in on as much, because we zoomed in on the, how much control do the parents have versus the school when you're

out of class. But what was so interesting about that case was all the justices, except Thomas, who dissented, because as we all know, he hates the whole idea of students. student speech. And of children. No, just kidding. And the kids. Get off my lawn, kids. But he, every one of them emphasized that subjective response, in other words, if I get really

angry at you, that's not enough. That's the heckler's veto. And as I was reading that, I'm thinking, there's a lot of lower court cases where the substantial disruption or the material disruption that merits. the suppression of speech is a heckler's veto. And not necessarily in the Let's Go Brandon case, which is much more is this in that kind of obscene or profane category that's a separate category for student speech. But it was very interesting to me because we have talked about this.

This is a huge question mark in First Amendment doctrine, which is in school, how much can the reaction of another person in K through 12, how much can the reaction of another person to speech that is not inherently disruptive, like a bullhorn in a classroom would be. But how much can the reaction create grounds for censorship? And if you go back, Sarah, it's really interesting. If you reread that case, that's a minor chord, at least. It's not the major chord, and I'm probably messing up the musical reference. But you get what I'm saying.

It is not even a subtext. It is a text. It's just not the key text, but it's definitely a text. Yeah, and look, I, as the student who was the problem, I mean heavily on the student speech aspect. However, as an adult, you know, you don't want to tie a principal's hands behind their back either and say like, oh, we are not going to take into account any disruption this may cause in your school. You've just got to figure out how to deal with really offensive speech that would be protected by the First Amendment outside of the school. And it's like, ah, this is a school, right? It is not the public sidewalk or a Walmart.

So, you know, is what it is. But, David, I've got a question for you because I have a, I don't want to put you on the spot except that's what I'm absolutely going to do. Go ahead, Sarah. That's the live spontaneity of this podcast. It keeps them coming back. I have two cases that were denied cert in recent history. Okay. like return to me late at night when I am having trouble falling asleep. Like it deeply

bothers me that they weren't granted. And their two twins are up on cert grants right now. I mean, I've given away the game here because one of them is the let's go brandon is the twin. And the original case that was denied cert is the, they're only censored. So this is the kid who wears their only two genders t-shirt to school, they tell him he can't wear that to school. And he's like, okay. So he puts like black duct tape or whatever and then writes censored on it. And so then he wore a t-shirt that said,

there are only or there are censored. And they told him he couldn't wear that to school. I loved that case because it tees up both, right? That is definitely going to be disruptive at the school. but there's nothing unprotected about that. It's not, you know, per se offensive. It's not vulgar, all of these things. And then when he put censored over it,

it's even more about the pure speech aspect. Yes. And that got denied cert, and it hurt my feelings. So the Let's Go Brandon case. And it hurt my feelings as well, Sarah. I just want to get that out there. Okay, but there's another one. Okay, it's the Thomas Jefferson High School one,

where, yes, you have neutral. criteria for accepting students to a public charter school, but the purpose of the criteria was racial balancing, and in particular, to get rid of all those Asian students. And again, this is actually a hard case in the sense that, you know, we have the Texas top 10% rule. We have race neutral reasons that were nevertheless created to reflect the state as a whole, like with the Texas top 10% rule, which is now like the Texas 3% rule or whatever. Yeah. So they denied cert in the Thomas Jefferson High School case really hurt my feelings.

There is a dopple coming up out of Maryland where arguably the record is worse for the school. There are more on the record statements about the purpose of the race neutral criteria, that the purpose of them is not to be race neutral. And the circuit court decided it more or less the same way as they had in the Thomas Jefferson case, that while Asian students were disproportionately affected by these new rules, because they are still overrepresented as a racial category, somehow there's no problem there. But David, this is my whole thing. Nope, you guys have missed the point of what the Supreme Court is saying on race.

In all of these cases, be it a Voting Rights Act or affirmative action or anything else, it is about the individual, not the race group. And so if the race group is, you know, there's fewer but still overrepresented compared to their population, nope, does not matter. The question is, are you intentionally discriminating against that student, Bob, because of his race? And I just think in these school cases, well, yes, there are going to be examples of race neutral criteria that are fine. if you have evidence of racial intent, I think they're going to take one of these cases. I'll tell you that. Yeah, I think you're exactly right.

And I analogize it to First Amendment retaliation doctrine. So, for example, I don't have a right to a government job. Just like I don't have a right to admission at UT Austin or Harvard or any place like that. So I don't have a right to a government job. But what I do have is a right not to be. discriminated against in my government job, say on the basis of my politics, you know, the no Republicans need apply, no Democrats need apply. And, you know, one of my last cases when I was litigating was a retaliation case involving a professor denied a promotion to full professor because of their politics. And

he doesn't have a freestanding right to receive promotion to full professor. He absolutely had a right not to suffer from viewpoint discrimination in the promotion process. And I think of this similarly, there isn't any one constitutionally prescribed admissions program. In other words, if you say, we're going to go by SAT scores and high school GPA, that's not required by the constitution. Or if you say, well, top 5% roll, that's not required by the constitution. It's not prohibited by the constitution. But if you say, we have way too many Asians in this class, how can we get fewer Asians in the class without alerting like courts that we're trying to get rid of Asian students, well, you're going to, you should have a problem there. Even if you choose a race

neutral on its face way of doing it, if the intention is racially discriminatory, and we know how to deal with this, we know how to deal with intent-based constitutional violations, because we do it in the retaliation context every day. I would say, Sarah, gosh, six, seven out of ten, of my First Amendment cases had a retaliation component to them. So we do dig down into intent. It is something that is very possible to do. Well, those are my two heartbreakers from the last several years, both of which, as I say, have dopples coming up as cert petitions. And again, I'm not sure the Supreme Court's going to take either of these, but they are both areas of the law that the Supreme Court's going to have to weigh in at some point. Yeah, yeah, absolutely. No, I completely

agree. And I think the school situation is, you know, look, what's a principal to do? We're probably going to see even more school uniforms. But I prefer school uniforms to the heckler's veto. The heckler's veto is actually like really a malignant thing to teach children. And it's one of the reasons why we have a terrible problem right now with a very high percentage of students sort of believing that they have that ability to shut anything down that they want to shut down. And by the way, a school uniform can just be solid t-shirts. Right. Right? As in it doesn't, you don't need to buy expensive anything to be a school uniform, just solid colored shirts. Exactly. Exactly. All right, David, I want to talk, and by I, I mean, I want to hear you talk about what the heckers is

going on in Pennsylvania with this district attorney who's being referred to DOJ for potential criminal investigation. I keep seeing the headlines. Thank goodness for David Latt at original jurisdiction, I thought his write-up was pretty clear in this. But I remain a bit confused. Can you walk us through the facts of how we got a district attorney in a criminal case, crimeing? Yeah. So basically what has happened. But let me back way up for a second and get a bit meta. Sarah, have you heard the term the Fox News fallacy? Yes. Oh, this is a good one.

I love it. John Judas coined this term not long ago, and it was basically that in a big part of the country, on the big part of the left-leaning side of the country, if they hear that something is covered in Fox at Fox News, they just discount it. Like, if it's a news story and it comes from Fox News, nope, nope, can't be right, can't be true. And so what ends up happening is often that will leave. Now, every listener knows all of the beat. that I have had with Fox.

So just bank all that in your brain. But like Biden shouldn't run again in 2028 because of his mental decline was like the epitome of the Fox News fallacy. The more Fox News covered it, the more every other outlet had to say it wasn't true. Yeah. And so the Fox was on that story legitimately. And here's another example, the border. Fox was all over the border.

And the fact that other outlets didn't cover it as intently. didn't mean it wasn't a problem. And so you then get this sort of dawning realization in 28 on the part of Democrats of, holy crap, we might lose the presidency because of the border. And then all of a sudden you see movement towards bills. You see shutdowns and limitations at the border. But a lot of people, they didn't even realize that the border was so far out of control, again, because of the Fox News fallacy. Here's another one of those examples, the progressive prosecutor problem. And these are prosecutors who are elected in very deep blue parts of the country and who have a view, they're against over-incarceration, they're against mass incarceration,

of which I don't think anybody should be, is for over-incarceration. But they're essentially believed that there's been a lot of excessively punitive punishments handed down. And so one of the most famous slash infamous of these is Larry Krasner in Philadelphia. And so if you followed conservative media, you have followed stories where this guy has intervened and conceded prosecutorial error. This is important. We're going to talk about the term concession, essentially conceding prosecutorial error in cases that could result in, for example, diminished sentence, a commutation of a sentence, release from prison entirely, etc., etc., And so there has been a pattern of practice of looking at past convictions and now look, this gets complicated because when you're a prosecutor, you, yes, you have an adversarial relationship with the defense, but you also have some affirmative ethical obligations.

If there is exculpatory information, if there is exculpatory evidence, you are required to bring that forward. So it's a adversarial process with an asterisk where the prosecuting attorney does have an extra burden. So if they do find big mistakes in the prosecution, they should bring that forward. Anyway, bring this, let's fast forward. And what we have is a situation in which the triggering, sort of the triggering issue here is an attempt at post-conviction relief. And what he's tried to do and what there was an individual named Dennis Johnson, there's a federal habeas case involving an individual named Dennis Johnson who's challenging a 2009 murder conviction. And if you dive into the facts of this, and we don't want to get too complicated because there's lots of twists and turns. But essentially what you have is you have an attorney named Jacqueline Mason who worked under one of Krasner's lead subordinates,

filed a brief, claimed that there were problems in the case. There was an evidentiary hearing scheduled, but ahead of the hearing, some of the colleagues, now let's just be very clear about this. Krasner is not apparently uniformly popular in the district attorney's office. So you have some colleagues who look at all of this and say, wait a minute, there are some problems here. So they come forward and they say, wait, there's material misstatements in this brief. We need to withdraw this filing. Well, in the interim, the attorney who filed the brief resigns.

So the judge calls a hearing on the matter. What you then begin to find out is a very tangled tale that we don't need to go all the twists and turns. But essentially where this individual says, look, I didn't want to file this. I was pressured by the senior subordinate of Krasner to file this. And that in essence, what had happened is that the senior subordinate had been essentially colluding with the defense attorneys from the federal community defender office, the Pennsylvania Innocence Project. Essentially, and essentially the practice had been if a defendant made a claim,

say, of ineffective assistance of counsel, or if a defendant made a claim of an informant recanting, you name it. If a defendant made a claim of a problem in the prosecution, that Krasner's office was just accepting that as true. In other words, one of the quotes was, if it's good enough for the Innocence Project, it's good enough for me. Now, look, I respect the heck out of the Innocence Project. We have talked about their work here many times. But I would think that even an Innocence Project attorney, who was listening, would say, yeah, I don't know that a prosecutor's job is to take whatever we say. And specifically, let's just be even more specific, whatever our clients say as gospel. Now, it'd be great for us. I mean, representing our client,

if they take everything our clients say as gospel, well, with Yahoo, we're going to win these cases. But that is not their job. Their job is to listen. Their job is to consider what the Innocence Project has to offer, but not to take it. So then, this person resigns. And then the senior folks at the Krasner and his senior subordinate basically kind of cook something up to say, oh, one thing that we're going to do is we're going to take all of these cases and kind of throw them in this attorney's lap and look at all the legacy of all the bad work that she did. And the court's coming in on this and saying, wait a minute, you're colluding with the defense attorneys, you have misstatements in the brief, you're not.

not doing what you're supposed to be doing. The misstatements have been so material, the collusion has been so material that I'm going to refer you for a potential criminal prosecution of the DA, of Krasner. Now, I don't know if that's going to happen. A referral is not a command there. You can't mandate anybody to do it, but that is the posture. And when you actually go through and you actually read this, it is quite scandalous, Sarah.

It is quite scandalous. And I do think there is a real possibility. of some criminal action here. But I'm highlighting this because this is a real problem. You know, we don't normally dive into any given district court case. We don't dive into any given trial. One of the reasons is that when you are talking about a trial, you're talking about the luminous amount of information,

that even the people who follow it like every day cannot adequately summarize eight hours, say, of trial testimony and in a 20, 30, 40 minute time period. But when you're looking in the aggregate here, Sarah, this is pretty remarkable. It's pretty remarkable. And this sort of idea that as a matter of practice, we're going to essentially just take what the defense attorneys

or, as I said before, the defendants say, without further inquiry and act on that as prosecutors, Wow. So I just wanted to highlight this in the wow category. Okay. So on the one hand, I think what he's being and his deputy are being referred to DOJ for our false statement. It's, you know, lying to the court. That feels different, though, from what you're wowing about, which is basically a non-adversarial process. Right. And I guess to that, I say, I wouldn't vote for the guy.

But isn't that what the voters get to decide? Like, if you don't want to prosecute crimes in your area and you want your DA to believe everything that defendants say no matter what, nothing unconstitutional about that, I think you're allowed to vote for that, right? Oh, 100%. But I would, now, I'm not an expert on Larry Krasner's case. campaign material. But if you say... He didn't say, like, I was going to let murderers go free. I'm against mass incarceration, the carcereal state.

Defendants have been treated unfairly, and I'm going to fix that. So there is a difference between running and saying, I believe there's been systemic injustice in cases that I'm going to go back and look at and fix. And actual collusion with defense attorneys and accepting everything at face value. look, if that's how he wants to run it, where he essentially hands the baton to the Innocence Project and says, you tell me who to let out of jail and tells the voters that, yeah, okay, they can do that. But part of what the misstatements are doing is concealing the existence and the misstatements.

They're putting material misstatements out there that conceal what is actually happening. Now, again, you're right. There's a difference, like, you are allowed as the district attorney not to bring the case. in the first place, you're basically allowed a trial to throw it, right? You can just not present a compelling case to the jury. What you can't do is after the jury has convicted, then lie or mislead in any way to get someone out of jail who has, you know, gone through the process. Then you're in the process, right? You're in habeas. You can try to concede error, but you can't lie about what the error is. You can, you know, all of these things. So, you know, I was sort of painting with a broad

brush there about what voters, you know, can get good and hard. Whenever I hear someone saying, you know, DOJ should be totally independent from the White House, I'm like, you guys, like, that's just never been true. And so what happened during the Obama administration was that federal prosecutors in all of these U.S. Attorney's offices, not only were many reassigned to white collar, which I think is, you know, actually totally legitimate because that's where the crisis was at that point, but they were also told, for those who stayed on sort of the guns and drugs docket to undercharge what amounts to like, you know,

your guy committed seven potential offenses, you know, don't charge that gun one. It comes with mandatory minimums. Don't charge the full amount of drugs, charge a smaller amount of drugs, things like that. Which, I did not like. They led arguably to the huge uptick

in the murder rate across the country and the gun violence rate that then has now been coming back down, it does track pretty closely with it, although correlation, not causation, really hard to ever prove causation when it comes to crime rates. But it's what voters, you know,

chose when they picked the president who then gave direction to the attorney general of what to prioritize. You don't get criminally referred because you're really bad at prosecuting crimes. You get to be bad at it. You get to undercharge. Again, I mean,

that's like the sort of the, Fox News fallacy idea, David, that like they were covering that crime rates were increasing in all of these cities and the murder rates were exploding and the gun crimes were exploding and that nobody was charging these. That was just true. Yeah. I mean, they were covering it and it was true. Now, again, correlation doesn't cause causation because some of these progressive prosecutors are right now presiding over major crime drops. So the crime rates are super complicated. It's very difficult to draw straight lines from this or that action. Sometimes you can. But the way I would put it is there's a huge difference between sort of saying, I'm against the death penalty, I'm not

going to charge the death penalty, or I'm not going to seek the death penalty. I will not seek the death penalty in any case in which I'm a DA. You tell the, you tell the people that, you run for office, you tell the people that and they say yes. Versus, let's suppose somebody's a serial killer, and you just say, look, to the public, we didn't have evidence sufficient to charge a death penalty offense or you turn to, more importantly, you turn to the court and say there was insufficient evidence to charge or you to conceal the existence of evidence or you do something in a way that you're making material misstatements to the court in furtherance of your policy. No, no, you cannot do that. You know, and David Latt says that very well in his newsletter. Look, you can vote

for a soft on crime DA. Absolutely. Absolutely. But the most soft on crime DA still has to dot the eyes and cross the tease on telling the truth to the court. And by the way, Sarah, your story reminds me once again of why, I mean, we've just given presidents so freaking much power. Because think of the giant menu of powers available to a president that they can then turn around and say, well, I was vote, you voted for this. Like you've, no, no. 90 plus percent of people going to the polls don't even know of the full range of presidential power. And the only way you can say, well, you voted for this is if you're just going in your heart to heart saying, well, I'm going and I'm voting for this person because I trust them to handle everything that I think of.

Welcome to representative government. And the problem is, as the president's portfolio has grown and grown and grown and grown and grown beyond its bounds, at some point, you're then moving into the essentially almost truly elected monarch realm. I'm just electing a human being to run things. And that is just, and whatever, how are they run it is up to them. And that's what I put them there to do. And that's really inconsistent with the separation of powers, especially as it just concentrates more and more. All right, David, when we get back, we've got some circuit cases.

We've got searching your cell phone at the border, and we've got selling drugs legally, but also illegally, the Schrodinger's cat of federal crimes marijuana. We'll be right back. Hey, y'all, it's Sarah Isger. I want to share part of a conversation that happened live at the SCOTUS blog summit on September 16th.

We're so grateful to Cooley, our presenting sponsor, for helping make the summit possible. At the summit, Scotis blog, executive editor Zach Shemtob, sat down with Elizabeth Preliger, the former Solicitor General during the Biden administration and the head of Kooley's Supreme Court and Appellate Practice Group for a wide-ranging discussion in which she shared her insider's view of arguing before the Supreme Court. I'm not going to spoil it.

Just listen. Well, there is obviously always a lot of thought that's put into how do I get to at least five, right? You need to be thinking about how you're going to build a coalition. and ultimately persuade a sufficient number of justices that you can get to the result that that, that, that supports your client in the case. I'm also simultaneously an incorrigible optimist. And so I basically never fully write anyone off. You know, look, I know that there are certain cases and certain issues where the justices have laid out perspectives in their jurisprudence that can sometimes signal that something is going to be a real uphill battle and that it might not be easy to get to five or, to get particular votes. But even then, I feel like, especially at oral argument, you know, you can't control where the questions come from. And so frequently, some of the most active questioners will be those who might feel most out of reach. And I still feel like that's a real

opportunity, because even if at the end of the day, you are not going to fully satisfy whatever concern they have about the case, by virtue of having the chance to truly engage and take your best shot. Maybe you'll pick up votes, you know, that that are slightly a few degrees off from where that particular justice is and thinking about the issues. And it's ultimately a good thing to get asked the toughest questions because the justices, they are not going to overlook the tough issues for your side of the case. And so having that chance to confront those tough questions head on and really grapple with them and, you know, take your cleanest, best shot at articulating your limiting principle or explaining how a hypothetical would work. And, you know, take your cleanest,

or trying to give a condensed version of the legal rule you're asking the court to adopt, that is all opportunity to try to pick up those votes. David, I feel like starting with pot today. Let's do it. We're on the crime theme. Let's just go. Let's go. All right.

So this is Judge Nalbandian in the Sixth Circuit. Very famous circuit judge. Always want to, like, you know, check out what Judge Nelbandian's doing. Okay, hello farms, a Michigan marijuana grower. entered a contract to supply marijuana to defendants, GR vending, and Kourami. When GR Vending breached, Hello Farm sued, and a jury awarded Hello Farms $31.8 million. Defendants argue that because the contract was illegal under federal law, the district court erred by not granting them judgment as a matter of law on their illegality defense.

When the parties contracted, federal law made the growth, distribution, and possession of marijuana a crime. Michigan, like many other states, made it a business. But despite the legalization of marijuana in Michigan, federal courts cannot enforce agreements to commit federal crimes. We reverse. I mean, yep. David, have I ever told you? I think I didn't say the story because at the time I didn't want to, like, potentially. identify someone, but it's been enough years now that I have an amazing story to tell you.

Oh, I'm up for this. Okay. When I first got married to husband of the pod, he has a wonderful sister. And I'm an only child, and I was really excited to have a sister. And so she was coming to visit us with her boyfriend. And they were going to stay with us. And the boyfriend, she said, was a park ranger. And you know me.

Like, I love hiking. I love animals. I love national parks. I'm like obsessed. My son's blanket that he sleeps with is a national parks blanket. I am super excited about this visit. And so the second they land or flight was delayed, whatever, we like meet them excitedly at the door. Scott rushes off with his sister to like get bags and whatever. And I take the boyfriend into the house and offer him a drink and sit him down. And the first thing I say is, so what kind of park ranger are you state or federal? Like a total. I mean, I just. Yeah. If you can imagine, like, what a goody two-shoes tryhard I am, right? And he's like, what? You know, like there's state parks and there's federal parks. And I'm just curious about the difference and how much y'all are. I mean, I am word vomiting on this guy.

I'm so excited about his job. There's this long pause and he looks down and then he looks up at me and he goes, I grow weed. That is so funny. How did it get translated from, he runs a grow operation? to he's a park ranger. I worked at the Department of Justice and she didn't want to tell me. Well, I love that he confessed.

I love that he confessed. I don't think she told him. It was so funny. And then it was the most stereotypical four days you can imagine with a professional pot farmer, but not that professional, to be clear. If it's many years ago, there were not that many, like, actually above above board professional.

They were in a state where it was legal. Okay. And so I immediately, like, switch gears. And I'm like, so how do you do your banking? Because, like, this has been a big issue at the Treasury Department, you know, circa 2018 of, you know, can you keep your money in a FDIC bank when it is unlawful under federal law? Once again, a blank stare.

He does not know what I am talking about. Is that right? He had not thought of that? Did not know that at all. Also, I'm not sure he was using the banking system. So then this is unrelated to the pot, except is it, we went to the Washington Monument, and I had never gotten to go up in the Washington Monument because the elevators were under renovation, like my whole adult life. So they reopen. I'm so excited. We take them to the Washington monument. The elevator's open at the top. And as they open, you get this like, you know, plaquey thing that says George Washington, America's first president. And he, to no one in

particular, says, huh, they're listing him as first. David, there are legitimate reasons to say that. But I was so dumbfounded in the moment that the guy who didn't know about FDIC insured banks maybe he was talking about the Articles of Confederation. Oh, first thought I had, Sarah. Totally. Totally. That's, yeah, totally. And I've never gotten the answer to what he meant by George Washington.

Yeah. Maybe he'd never heard of the guy. I'm not sure. That's all to say, David. I think this has to be true. Federal courts cannot enforce a contract to do something unlawful. Yeah. I mean, to me, I have been, I mean, not really stumped because I understand what's happening,

but it is one of those things that make you go, hmm, about the quote-unquote legalization of marijuana, which has happened in state after state after state. It's not a legalization. They have not rendered it legal. They have rendered it legal under state law. They have not rendered it legal. We've been talking about prosecutorial discretion. there's just been a truce declared.

There has not been a legal change. And so this is, I think very few people know that, sir. I think if you took, you know, 10 regular marijuana users and you said, is pot legal in your state where it has been quote unquote legalized, 9.9 of the 10 would say, yeah. And you would have to say no, no. No, when your state legalizes, quote unquote legalizes, they haven't legalized it. What it is is there is a legalization where there's no state prosecution.

And the federal government has just decided not to prosecute this, especially when it comes down to individual possession and individual use. But you can't then walk into federal court and say, hey, enforce our agreement to commit a large-scale federal crime. Not the amounts here were in the millions. This wasn't like somebody didn't give me my dime bag and I'm going to small claims court over it. This is a large-scale transaction. Yeah, I mean, that's what makes this kind of crazy because the bad guys who breached the contract for $32 million, according to a jury.

They just get away with it because they were doing something illegal? That's a weird outcome. Yeah. And also, think about this. let's suppose you are elected president, Sarah, and you want to destroy your enemies. One of the things you could do is reignite marijuana prosecutions because a very large percentage of American adults now consume cannabis, not the sort of legal versions of it, the whatever you call it, Delta 8, Delta 9, whatever, but the actual full-on thing,

they consume it at scale. They buy it in decent amounts. And so you've got just tons of people that are all over America who are committing a federal crime that is not prosecuted. Do not put marijuana in your suitcase when you are traveling between airports. Those airports are federal property often and certainly traveling between states. Right. And so it creates this problem. where, well, you've got millions and millions of otherwise law-abiding people are out there consuming this product.

And they don't understand this legal structure. They don't understand. They think that when it's been, quote-unquote, legalized, it's been legalized. And so... Yep, your bank is a problem. All of your contracts are a problem, which is interesting. Now, again, you can enforce this contract in state court. But no running to the federal courts. No federally. insured banks. Anyway, David, that was a fun one. It was a unanimous opinion by the panel. So, thanks Sixth Circuit for that good time. Next up, David, I wanted to talk about cell phones at the border. Let me read you this one. This is the second circuit coming at you, Judge Menashie, writing for, again, there is a separate concurrence, but a unanimous panel in the outcome. Our dude, who's a lawful

permanent resident appeals from a judgment of conviction following a trial for conspiracy to commit bank fraud, actual bank fraud, and conspiracy to commit money laundering. International law enforcement agencies suspected that he used fraudulent passports and identification documents to open bank accounts in the names of real people. In 2019, officers from the New York document and benefit fraud task force of Homeland Security investigations and customs border protection stopped our dude at JFK International Airport. During an interview, an officer scrolled through his cell phone and photographed its contents. The officers found images of other people's names, birth dates, and social security numbers. Two years later, officers again stopped him at JFK. An officer scrolled through his cell phone

and photographed a WhatsApp message in which he asked a co-conspirator whether he had received, quote, anything for, end quote, an individual whose identity he had stolen. The district court denied his motion to suppress the evidence obtained from his cell phone. In doing so, the district court concluded that, quote, cell phone searches cannot be conducted without reasonable suspicion of criminal activity because they are not routine border searches. But it decided that on both occasions, law enforcement agents searched a cell phone belonging to him.

They had reasonable suspicion to do so. There was such suspicion, according to the district court, because DHS had launched an investigation regarding his use of multiple identities. The United Kingdom's border force had seized a fraudulent South African passport bearing his photograph. The document and benefit fraud task force was planning to pursue criminal or administrative charges against him. You know, the dude had problems. The district court noted that other district courts in this circuit have held that a warrant is required to search a suspect's cell phone at the border. The district court concluded that even if a warrant were required, the good faith exception to the exclusionary rule would apply

because neither the Supreme Court nor the Second Circuit had addressed the lawfulness of warrantless searches of cell phones at the border. So David, just to summarize where we were coming into this case with, if you're at the border and the government wants to look at your phone, they can. One, get a warrant. Hard to do. Takes a long time. Two, they can have reasonable suspicion, articulable, and look at your cell phone, according to at least this district judge. And then you have the second circuit coming in and being like, nah, dog. First, we conclude that the district court properly denied his motion to suppress evidence obtained at the border. But contrary to the district court's reasoning, reasonable suspicion was not required.

The longstanding recognition that searches at our border without probable cause and without a warrant are nonetheless reasonable, has a history as old as the Fourth Amendment itself. The border search exception is grounded in the recognized right of the sovereign to control subject to substantive limitations imposed by the Constitution who and what may enter the country. Because the government's interest in preventing the entry of unwanted persons and effects is that it's zenith at the international border, search is made at the border pursuant to the longstanding right of the sovereign to protect itself

by stopping and examining persons and property crossing into this country are reasonable simply by virtue of the fact that they occur at the border. That's pretty sweeping, David. Whoa. I mean, let's just put this in perspective. To use a non-random example, let's suppose you're an American citizen and a journalist and you travel to Ukraine and you talk to Ukrainian national security officials.

They give you some information that's on the record that you include, say, in a story, but they also give you a lot of sensitive information that is off the record. In circumstances, we have had, when I was in Iraq, for example, we had journalists who actually participated in and watched classified briefings, and were allowed to watch classified briefings on various conditions. And what if you have information as a result of those off-the-record conversations that's highly sensitive, that you then just come back to America as a U.S.

citizen and a journalist, the government, your phone, and that they're then able to scroll through your phone with no suspicion at all of any wrongdoing, or you're an attorney coming in back into the country, and you have loads of privileged attorney-client information. Or you're a doctor, and you've been reviewing, let's say, medical slides while you're on your vacation. It's got all kinds of sensitive patient information on it. Maybe you're a celebrity doctor, all kinds of sensitive patient information about some of the most famous people. You just have to turn your phone over and what? And my favorite part of this is we reject the defendant's invitation to extend Riley v.

California, 2014 Supreme Court case to conclude that, quote, search of a cell phone requires a warrant even in circumstances where a warrantless search is generally allowed, unquote. They said nope to that. that was involving a search incident to arrest because that there was not the threat of harm to officers and destruction of evidence. That's the reasoning behind Riley. But I find this fascinating and quite alarming. One of the things that libertarians always had a trouble with, those of us who consider, I'm not a libertarian, I'm definitely a civil libertarian. but those of us who are civil libertarians always had trouble with when there was a lot of background trust in the government was saying, do you really want to trust the government with all of this

information? And a lot of people are like, yep, totally fine with me, got nothing to hide. And I think that as our government gets increasingly weaponized, more and more people are seeing that, no, you know, this Fourth Amendment really does, that really is important. It really is important. So this is maybe not the point, David. But I'm going to point it out anyway. Side point. Yes. Cold a second point. If you are coming back from Ukraine or you're a celebrity doctor or any of the examples you just gave, the government can take and look at your phone all they want to, even if there were a warrant requirement. Because you can't stop them in the moment. All you can do is suppress that evidence if they try to use it against you or sue them, which we've already said of their federal

officials, Bivens. Yeah, good luck with that. Maybe you have some federal tort claims act, etc. So actually, just so everyone knows, like, you can't just say, no, I won't give you my cell phone when they ask for your cell phone, even if you happen to have listened to this podcast and this case had come out differently, just ask, you know, the poor gentleman, oh my gosh, how Am I blanking on his name? Our Rastafarian dude who had his... Oh, yeah. Yeah, the guy who had a piece of paper with a court order.

By the way, one of the attorneys on his case was at this Godis blog conference. Oh. Met him afterwards, and we mutually lamented that outcome. We lamented that outcome. But you're absolutely correct. He had a piece of paper saying, I get to keep my dreads, basically. And they're like, throw... Figured out later.

Yeah, bro. So now, that being said, the case did turn out this way. So you doubly don't have the ability to not turn over your cell phone in all the examples David said. Okay. The Fourth Amendment, you are protected from unreasonable searches and seizures. And think of this almost like a Second Amendment analysis, right? We've said under Bruin, the test is, you know, number one. Is this even in the, you know, Second Amendment's purview?

you know, if yes, then go to step two, you know, does the history and tradition stuff. When it comes to the Fourth Amendment, the first question you always have to ask is, is this unreasonable? And basically, when it comes to the border, we've pretty much always said they're like, oh, no, no, no. Like, nothing's unreasonable at the border because it's the border to our country. And David, in the before times, I think that made more sense because we're talking about sort of literal ports of entry. Now, any international airport is the border. So there's just a whole lot of border in our country. Like basically every state has a border in it because of the airport.

Now, they did reserve the question of whether, you know, programs to search someone's cell phone, celebrate, like, forensic searching, whether that may require something more. that's different than like the guy sort of taking your phone and flipping through it. Pulling up your notes app. Right. Can they actually take your phone, send it over, you know,

to some other dude who takes it over to Quantico and like, you know, find metadata on your phone and stuff? That was not resolved in this case and they explicitly leave that for another day. The concurrence, remember I mentioned there was a concurrence.

The concurrence does, agrees in the result, that this dude's going to jail. But this is what the concurrent said. While I agree that neither a warrant nor probable cause is necessary to search a cell phone at an international airport, which is the only basis on which our dude seeks suppression of the evidence seized as a result of the cell phone searches in this case, I disagree with the majority's additional and broad conclusion that such searches are, quote, routine requiring neither reasonable suspicion nor any other kind of individualized suspicion.

Accordingly, I concur only in the court's judgment. That is the weird part about this case to me, David, didn't really need to decide this issue. Like, they had reasonable suspicion here, so who cares? Right. Exactly. They went above and beyond. And this is one where, let me just say, if cert isn't granted here, that is case number three to your lamentation list, in my view. Interesting. Yeah. I think this has a high chance of a cert grant. Yeah, I do too. I do too. Yeah. All right, David, when we get back. I've got a couple more cases to talk to you about the one that has like stayed with me is the application of Chevron at the circuit courts or actually the application of Loper Bright at the circuit courts. And it's sort of like Trumpy Kassa.

After all of the, you know, rending of clothes and lamentations at the wall, it hasn't changed anything. Loper Bright is different. I think it will change a lot of stuff. But not in a conservative versus liberal way. No. And so I want to talk about one of the first applications of Loperbright, post-Loperbrite in the Fourth Circuit. We'll be right back. Hi, everyone. This is Zach Shemtab, the executive editor of SCOTUS Block, the gold standard for independent insights and analyses of the Supreme Court.

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or just visit our website at scotisblog.com and go do plus. All right, David. For circuit case, I am reading from Judge Richardson. For decades, Chevron deference restricted courts from exercising their duty to say what the law is. Citation Marbury v. Madison, 1803, biotches. I added that. Sorry. in case you weren't sure whether Judge Richardson also had seen mean girls recently. Newly freed from that restraint, courts now exercise their independent judgment about the best meaning of statutes. The practical change will often be modest, but other times a fresh read will mark a sharp break with past practice.

This is that type of case. Dun done, law and order bill. Okay. Courts and agencies have long struggled with how to analyze the immigration effects, if any, of a vacated conviction. Eventually, agency practice cobbled together a framework that sought to balance policy priorities. Under that framework, a conviction vacated because of a substantive or procedural defect in the underlying proceedings no longer qualifies as a conviction for immigration purposes, while a conviction vacated for rehabilitation, immigration hardship, or another reason, still does. Many courts deferentially accepted that distinction under Chevron. But the statute we apply here does not make the continuing effect of a vacuble.

conviction turn on the state court's reasoning for vacating it. It makes inadmissible any alien convicted of the relevant offense. In this case, the petitioner's conviction was vacated and her charge dismissed. At that point, she was no longer convicted of that offense, so we grant in part the petition for review. Yeah, so David, this is an example where the outcome applying Loperbright is far more liberal, like far more liberal, than the outcome under Chevron. And I don't see once again how anyone can disagree with this being just correct under the law that we were allowing agencies to just take the statute. It was not ambiguous.

Yeah. And just make stuff up to have their own policy preferences and tradeoffs weighed. And then the courts were just like, okay, well, we defer to the agency's best reading of the statute. which again wasn't even a reading of the statute. This just seems correct to me. And yes, it's the liberal outcome, but I don't understand why this fight. Sorry, I do understand why it turned into conservative versus liberal

because everything turns into conservative versus liberal and we can't have nice things. And I literally wrote a book on this, but everyone's just wrong. You're wrong about which way this was going to go. Even if you're saying, like, well, most of the time, nope, I don't even believe that. I don't believe that either. And look, Sarah, we're in a world where currently politics are realigning in a dramatic way, and yet a lot of the commentary about politics is not realigning in the same way.

So, for example, there's this super simplistic way of looking at the last 25 to 30 years that says the Democrats have been the party of government, the Republicans have been a party of limited government, which rhetorically, yes, there's a lot that's correct about that. But if you looked at actual Republican governance, it's not that the Republicans have been the party of limited government, really. They've just been the party of different kinds of government power and different priorities for government power. And that's extremely true in the MAGA era, which is very statist, arguably more statist in many ways than the Democratic Party. And so any construct that says, well, we're the party of government and they're not is no longer the case. I mean, wielding government power is sort of the core mission statement of MAGA.

They want to wield as much government power, often directly against their enemies as they can. And so we're just in a completely new environment regarding the attitude towards government power. And I think what's going to end up happening, Sarah, is the longer that sort of MAGA wields government power, you're going to see more liberals negatively polarizing into libertarianism or quasi-lipped. libertarianism because suddenly seeing the full power of the government deployed in a way against them is going to make a lot of people realize that maybe nobody should have all of this because we can't be sure we're always going to win. And it's the most basic insight possible, but don't tell that to partisans, and especially don't tell that to partisans in the flush of

victory when they're exercising sort of their maximum power is right in the flush of victory. And to sit there and to be the person, I don't know if it's apocryphal. You know, the Roman general comes and there's the person next to him whispering, remember thou art but a man. We need someone immediately whispering in the ears of every partisan in America, remember, thou shalt soon lose. And if you don't absorb that, if you don't absorb that, you're going to make some pretty catastrophic mistakes. I think it's us, David. I think we are that job. We'll do it. We'll do it. I I volunteers tribute. All right.

Last case I wanted to mention, David. This was out of the Ninth Circuit. Judge Ken Lee dissenting in part. By the way, another petition that I am almost certain is up at the long conference is the Korean Spa case, which was another Judge Lee dissent. So I just wanted to read a dissenting in part from Judge Lee. In recent years, California has enacted a series of laws restricting the people's ownership and use of firearms.

Many have been found to violate the Second Amendment by 3rd. three judge panels of this court. And now the first and fourth amendments are at risk, too, at the hands of California's state government. Governor Gavin Newsom signed a bill that mandates constant audio and video surveillance, 24 hours a day, seven days a week, of brick and mortar federal firearm license dealers, FFLs, and home-based FFLs. The majority, and the state, justify this intrusive law claiming that videotaped interactions can help identify suspects and thefts and illegal straw purchases. Fair enough. But there is no rational reason to audio tape every single conversation between a firearms dealer and a potential customer.

Audio recording of conversations at a gun store will not help law enforcement nab a thief. This never-ending surveillance, however, will have an insidious impact on the First Amendment. As the plaintiffs explain, gun stores are a hub of political activism where owners and patrons discuss their Second Amendment rights and their involvement in political activities. California's surveillance law, however, will likely impede the exchange of this core First Amendment speech because people are wary of speaking freely if they know that they are being audiotaped, especially if the government may potentially listen to these conversations up to a year later. The First Amendment shrivels under the constant surveillance of an even benevolent big brother.

Oh, by the way, the law also authorizes warrantless inspections of the audiovisual recording systems. like there's kind of crazy stuff. David, got to take this out of the gun context, right? Because based on this reasoning, you can require video and audio surveillance of any abortion provider, right? In the waiting room. Anything. Audio.

This seems obviously wrong to me. Even if I kind of, like, I get it. There is criming at FFLs. I want, I want so much more. money on gun crime prosecutions, you have no idea the amount of money I would take a DOJ if I were Attorney General and put on gun crime prosecutions. Like so much. I would take money away from the drug crimes to put it on gun crime prosecutions. Like just huge, huge percentage. Everyone would hate me. They would just be doing guns all the time. And this would help.

I'm for more prosecutions. But the theory under which the government can mandate and without a warrant, watch and listen to conversations because of the type of business that you are in? No me likey. Oh, I hate this case so much, Sarah. This is number four, okay, feelings hurt if there is no cert grant. We're now up to four of these cases. So, no, I'm totally with you. I'm totally with you on this, and I'm with you on additional prosecution for gun crimes.

One of the more disillusioning things that you will discover is when there is an enormous amount of rhetoric about an argument, legitimately so because of the scourge of gun crimes in America and gun deaths in America about what can we do. And I'm with you. What can we do? This is unacceptable. It's totally unacceptable as we've talked about many times on this podcast. And then you look at not doing the stuff that's already on the books. Oh, yeah. That there's stuff that's there are laws. Well, because it runs headlong into over-incarceration, quote-unquote, by the way.

So like, you're not prosecuting the gun crimes because you don't believe in prosecutions and you don't believe in prisons. But also you want to video and audio tape the gun stores? I don't even understand. What is the purpose other than? the First Amendment intrusion because you're not prosecuting the actual crimes. The system of gun enforcement, of gun crime enforcement in this country, it's broken. It's outrageous. It's broken. And, you know, one of the reasons why often, you know, this is, this is very, very sad. It's very, very sad what I'm about to tell you. One of the reasons why

gun crimes are often not prosecuted is often the straw purchasers are the girlfriends or wives of the criminal. And so, therefore, you will convict the criminal. and also the girlfriend or spouse, and the kids will go to foster care, which is horrible, which is horrible. And so I'm not saying that there aren't tradeoffs here. It's terrible and it's sad. And maybe there are circumstances

where all things being considered prosecutorial discretion should result in not prosecuting. But as a policy basis, the way in which we have de-emphasized prosecution of gun crimes is, in my view, just horrific. And by the way, one of the other things that we learn about actual gun crime is that there's a heavily disproportionate percentage of gun crime is committed by people who've had a lot of kind of encounters with the state before.

You know, one of the life hacks of dealing with crime is how do you deal with the repeat predatory criminal, because again and again and again, when you see some of these horrific events that happen on streets that are seemingly random and you find out who did it, you will find out that they have been known to law enforcement for a long time. A long time. Yeah, I mean, it's not the same as the guy who abuses animals and the, you know, not all animal abusers kill people, but almost everyone who kills people abuses animals, you know, the serial killer types, etc. sort of random crime types. Similar, not the same, but similar. Generally speaking, not everyone who commits a gun crime is going to go commit a violent crime, but almost everyone who commits a violent

crime has at some point committed a gun crime. Right. Right. Exactly. Well, David, it's a heck of a case to end on. You know, the long conference is around the corner. Arguments will start soon. Our summer vacation is nearing to a close. But we've got one more episode this week. And then I am actually going out of town and you are going to take up from your perpetual guest duties and be a guest host. Yes. With Ellie Honig, our recent, our CNN analyst, recent guest who's fantastic, fantastic. I'm going to tell you, David, I'm going to record something for you guys. I know. I know. I didn't know if you wanted to tease it, but Sarah is going to record something that when you hear it, you will know what I mean when I say that only she could say.

And then we're going to use that as a launching pad for a conversation. Yes. Yes. Coming up soon on an advisory opinions episode near you. See you later.