Advisory Opinions - Be Not So Sensitive

Episode Date: January 10, 2023

We got some exquisite First and Second Amendment content for you today. David and Sarah discuss a Fifth Circuit decision to strike down the Trump administration ban on bump stocks. They then discuss whether a teacher has a right to wear a MAGA cap even if it engenders emotional reactions. Show Notes: Fifth Circuit Majority Opinion on Bump Stock bans Gorsuch's dissent Judge Elrod's musical talents Summary from 9th U.S. Circuit Court of Appeals on MAGA hat and free speech NYT: A Lecturer Showed a Painting of the Prophet Muhammad. She Lost Her Job.   Learn more about your ad choices. Visit megaphone.fm/adchoices

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Well, if he wants to earn cashback on his purchases, he will, and... Oh, hang on. He's at the computer with his card, and he's done it! Oh, clicky-click magic trick! The click heard around the room. You guys just about finished?

Sorry, we got excited. Thanks for snagging those tickets. Make every purchase highlight-worthy with the BMO Toronto FC Cashback Mastercard. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger, and I'm particularly excited about this podcast. And I know I say that a lot, but it's because I'm almost always particularly, particularly excited about the podcast. And this is one where I'm

excited for non-Supreme Court reasons. We're not going to talk about Supreme Court cases. I mean, tangentially some sort, but no, not a Supreme Court decision. Okay. A dissent from a denial of cert is going to be relevant, but we're really going to be diving into a Fifth Circuit case on bump stocks. Now, the very small fraction of our listeners who are Second Amendment enthusiasts just suddenly got really excited. And the majority of our listeners who are not Second Amendment enthusiasts said, wait, what? You're excited about discussing bump stocks? But hold on. There's a lot more to

it than that. And it's a really interesting case out of the Fifth Circuit on Bonk. Then we have a case about a MAGA hat in the Ninth Circuit that I'm particularly excited about talking about, not just because it's a speech case, not just because it's involving teachers, another pet issue that I've talked a lot about, teacher-free speech. I'm like over here on teacher-free speech island and have been for a while since a teacher-free speech case, but it's also going to bring up some good conversations about manners and how should we approach manners and when and under what circumstances should we approach manners? And when and under what circumstances should we take offense to things? And then we've got a really interesting thing to talk about.

FTC is issuing a rulemaking banning non-competes. Now, that might sound like eye-glazingly boring, but it is not for reasons. Nope. Nope. For reasons that we will explain. Uh, but let's, let's kick it off with bump stocks. By the way, y'all, David's just enjoying his last few episodes of hostum introductions. Can you tell he's really reveling in it? Don't forget the takeover will occur at the end of the month. And instead of telling you how great every podcast is, I will start by telling you what a mediocre podcast we have for you today.

All right. But this one's good. And you'll agree. You agree. I do agree. We do. You do agree. All right.

Do you want to start us off by talking about the bump stock case? All right. So back in the Trump administration, there was a horrible shooting that everyone is going to remember in Las Vegas. We still, to this day, do not have any motive related to that horrible shooting. I actually use it as an example in my college course that I teach on crisis communication because it was over a weekend. I got a phone call from one of my regular reporters at between 1 and 2 a.m. or so. And I picked it up. And the reporter said,

there's been a shooting in Las Vegas. You're going to need to wake up. Call me back. And that was it. And I think that's just such an interesting dynamic between regular reporters and communications professionals. He wasn't asking for comment. There was no comment to make. It was a professional courtesy to wake me up at that point. But, and this is what I tell my class, like, okay, now what do you do? You know, how are you going to confirm what's going on? Is this just like someone was killed in Las Vegas, which is incredibly sad, but not really Department of Justice level, you know? And so I went immediately to Twitter, there were already videos being posted on Twitter. And I just remember this like, truly shuddering, chilling feeling as I was confirming what exactly we were dealing with. And then of course, your decision tree is, do you call the

chief of staff? Do you call the attorney general himself and wake him up? And watching just a couple of those videos that were being posted on Twitter, I called the attorney general and woke him up. And that's how the day started at the Department of Justice that weekend. Just a horrific crime. And so the conversation very quickly turned to bump stocks. And David, you're going to get into some of the details on what this means. But machine guns are banned. And the idea of a machine gun is that if you pull the trigger back and hold it there, it will just keep spraying bullets. A regular gun, each trigger pull equals one bullet. Now, maybe you can pull the trigger really fast on some guns or whatever, but it's one trigger pull per bullet. What a bump

is, is something that a very experienced gunman can do, which is basically it doesn't change the mechanism of how the one trigger pull one bullet works but it speeds up that process so that it almost is a rhythmic i don't want to say automatic because that word carries so much um uh weight but it it creates a feeling of many bullets coming out with what amounts to one trigger pull, even though technically that's not what's happening. What a bump stock does is helps you do that. So you don't need to be an expert gunman in order to create that rhythmic sense with the trigger pulling and the mechanics of the gun itself. So from a legal standpoint, the question is, when you modify your gun with a bump stock, does it make it a machine gun

where one trigger pull sprays lots of bullets? Or is it still a one trigger pull one bullet mechanism that happens to now move more quickly? Some relevant points here. One, as I said, it doesn't change the actual mechanical operation of the gun. Also, the alcohol, tobacco, firearm folks had previously said that a bump stock did not violate the machine gun ban. But during the Trump administration, they revisited the same regulation. So the law didn't change. The underlying regulation didn't change. The ATF's interpretation of that legislation changed.

And if this is sounding somewhat familiar to you, like haven't we talked about this before? We have because there have been so many lawsuits about this. The second the ATF changed their interpretation, there was a lawsuit trying to stay that interpretation. The Supreme Court denied that one. Then there was a preliminary run up to the Supreme Court. The Supreme Court denied that with a Gorsuch. It actually was a concurrence, but it sure felt like a dissent. And we'll talk more about that.

Then you had various circuit courts keeping it in place for different reasons. And we're going to get to that as well. So up to this point, bump stock ban has been doing very well. Yes. Enter the fifth circuit en banc decision this week and they strike it down.

It's a long opinion, and David, I'm handing it over to you to walk through some of that. Yeah, and so on the bump stock point, let's start with the language of the statute. So this, the Gun Control Act of 1968 says that she'll be unlawful for any person to transfer or possess a machine gun.

The act defines machine gun as follows. Now, here's the language. The term machine gun means any weapon which shoots is designed to shoot or can be readily restored to shoot automatically more than one shot without manual reloading by a single function of the trigger. Okay, those are the key words right there. And Sarah, you did a really good job of explaining the difference between a semi automatic weapon, which is each trigger pull is one shot. And then the bump stock. Now here's what's interesting about the bump stock. Now the, when you modify a weapon with a bump stock, from the perspective of the shooter, what you're essentially doing, and now I have never fired a bump stock weapon, so I'm pretty sure we're going to have listeners who have, so please correct anything that I get wrong in the comments. But from your perspective, when you are shooting a

bump stock weapon, what the bump stock does is it takes advantage of the recoil of the weapon combined with forward pressure you put on the weapon itself. So you're pulling the trigger and you're pushing forward on the gun. And then the combination of the recoil, the trigger pull, and the forward pressure on the gun creates or simulates what is pretty close to, but not actually, an automatic rate of fire. It does not make the weapon, from the weapon's perspective, automatic. From the shooter's, the trigger puller's perspective, it makes it quite similar to an automatic weapon. And so the question really boils down to, does this mean, this statute, as a matter of statutory interpretation, does this phrase, single function of the trigger, is that a definition that applies to the weapon? Or is that a definition that applies to the user? And the pulling of the trigger and the pushing of the

bump stock? Is that a single function of the trigger? So that's your statutory question right there, or your issue of statutory interpretation. So that's one. David, I'm just curious before you, like, what is your take on that? It seems to me that the fifth, my take on it is that it is somewhat ambiguous. I think so too. But the Fifth Circuit has the better of the statutory argument, but it is somewhat ambiguous. So I disagree with someone who would say, clearly, this means that a semi-automatic weapon, a bump stock does not transform a semi-automatic weapon into an automatic weapon. So I'm going to be in the camp that says this is ambiguous.

Good, good. Yes. Okay, so we're on the same page as that. It's an ambiguous law. Yes. Or regulatory language when you head into this.

And I do think it's relevant that the ATF had previously interpreted that as not applying to bump stocks. Right. And that this is criminal. This carries criminal penalties. This is not simply a little regulatory line in there. Right. Okay. Continue. Yeah. So what the Fifth Circuit did is they really helpfully walked through all of the steps. So step one was, what does this statutory language mean? And they interpreted it to say, the majority opinion interprets it to say, this is from the gun's perspective,

a single trigger function that is just happening very rapidly. So they said, look, the statutory language is clear to us, it applies from the weapons perspective function of the trigger, not the user's perspective function of the trigger. And so therefore the rulemaking is unlawful, but they don't stop there. You could just stop there, but they don't stop there. They then dive into something that I think is really,

this is where it gets really interesting beyond the bump stock issue. And that is, okay, this change in the regulation means that you can be subject to criminal penalty, criminal penalty for maintaining a bump stock. There's no legislature for keeping a bump stock. There's no legislation. Congress didn't change the law. Nobody disputes that Congress can in fact change the law to eliminate bump stocks. Congress didn't do it. This was a regulation. Okay. Well, what do we do if it's ambiguous? So here the Fifth Circuit says, well, when it's a criminal penalty, Chevron deference is not going to apply. Okay. Long time advisory opinion listeners know immediately that when I say Chevron deference, I'm not talking about gas stations. Well, it originally came through the Chevron company, which has gas stations.

It is gas stations. It's all about gas stations. How dare you mislead our listeners? I'm sorry. It all comes back to gas stations. No, but what Chevron deference means is if there is an ambiguity in a statute, then the court will grant deference to an agency interpretation of ambiguity. And here they say, nope, not for criminal penalties, not for a regulation that carries with it a criminal penalty. In that circumstance, there should not be any deference at all because there is a, the law biases, the law is biased in a way towards individual liberty. And if you're going to be revoking a person's liberty to such an extent that they are confined,

you know, that there's no greater, aside from capital punishment, there's no greater deprivation of liberty than imprisonment. Chevron deference is not going to apply. Then they also talk about something called the rule of lenity. And the rule of lenity,

I'm reading from a really nice definition of it from the Legal Information Institute at Cornell Law School. It says, the rule of lenity is a principle used in criminal law, also called the rule of strict construction, stating that when a law is unclear or ambiguous, the court should apply it in the way that is most favorable to the defendant or construe the statute against the state. So in addition to saying that there is no Chevron deference in the case of a criminal, a regulation imposing a criminal penalty,

they also say, well, it's kind of the opposite of Chevron deference, that there's a rule of lenity here, that there is, you construe any ambiguity against the state. So you start to see why this is a lot bigger case than the bump stock case, than about just dealing with bump stock, because it's dealing with how much deference

do you give the government when criminal penalties are attached to regulatory interpretations of a statute? And so that's what's very important. And then let's add another piece on top of this, Sarah, which is the Fifth Circuit basically lifted one arm and extended the middle finger to multiple other circuits when it issued this opinion. It did a little bit, didn't it? It did. It did. It was feeling feisty, which the Fifth Circuit is wont to do of late. Right. And so what the Fifth Circuit did, and quite intentionally, because it noted in there that the Supreme Court has denied cert on multiple circuit court cases that reached the opposite conclusion, which found the language ambiguous and then applied deference. Including just last month, by the way, we're now up to three rejected denials of cert, just this term on the bump stock question, all from circuits that upheld the ATF's ban on bump stocks. Yes. And so what the Fifth Circuit said, explained it very clearly.

This is one of my, this is a really good, if you're a law student and you're finding a lot of the opinions you're being asked to read in your case books early on, somewhat weird and opaque and unclear, like a lot of, you know, 18th century case law can seem to us now,

read this one. It's like a breath of fresh air. Any educated person can read this statute. I mean, read this opinion and really get a sense of the law and walk away from it understanding the stakes, I think. I thought it was a really clearly written opinion in layman's language that, anyway, but-

It's an Elrod opinion, by the way. Jennifer Elrod of the Fifth Circuit. We talked about her before. She's also been a friend of the pod who came on to sing for us. Yes. On the podcast. So she's a singing judge,

well-known for her voice. She did a Hamilton COVID era thing with Judge Eskridge, which maybe we need to put in the show notes just to remind people how amazing that was. They did a Hamilton parody during COVID with federal judges and it was incredible. So she is a woman of many talents.

Yes, absolutely. Writing is one of them. So the Fifth Circuit says, we know what's been going on and we also know that Justice Gorsuch has dissent. Well, we can get into what Justice Gorsuch said. Oh, I can't wait. I can't wait. But we know that Justice Gorsuch has dissent. Well, we can get into what Justice Gorsuch said. Oh, I can't wait. I can't wait.

But we know that Justice Gorsuch has indicated that Chevron deference shouldn't apply to criminal statutes. And here's what we're going to do. We're going to create a circuit split. Watch us do it. So now there's a circuit split and which makes the likelihood of the Supreme Court,

it makes it almost certain that the Supreme Court's it makes it almost certain that the Supreme Court is going to intervene to resolve the split. So that's the case. Do you want to take up the Gorsuch matter? Absolutely. I just want to, two notes. One, for listeners, you know, background purposes in terms of how I'm coming at this. I don't care one bit if bump stocks are banned in this country, if they are illegal, and if we set them all on a pyre and light them. I have no affinity for bump stocks. And I don't care about this case, because of that largely. The bump stock issue itself is not interesting to me.

It is really interesting to me for all the reasons you said, David. This is a grade A administrative law case in part because we don't have that many of them that are criminal. And so that makes this interesting right off the bat. The rule of lenity we don't get to talk about a lot. And, you know, Chevron deference. It's closing in on zombie precedent, David.

Yeah. So that's why this case is interesting to me. You definitely don't need to care about the second amendment and you don't need to like bump stocks to think about this case coming out either direction. I'm with you. I could light every bump stock on fire in America and I'd be kind of happy about it. I wouldn't feel like my rights were being infringed or anything else. It's a, it's a toy that I understand many gun users enjoy. And I, I totally get that. I do, but I don't care. Um, it is, it is different to me than any sort of fundamental second amendment, right. As I see it. If you're, if you're, and let me just, as, as a gun owner and somebody who has fired a lot of rounds in my life, um, if you think that a bump stock is something that is useful

to gun owners, other than a hobby is like a toy at a gun range at a firing range or something horrific like happened in Las Vegas, firing into a big, big crowd of people. A bump stock, what a bump stock does effectively is to turn an accurate weapon into a wildly inaccurate weapon. Right. That's what it does. And the only reason why it was effective for the shooter's purposes in Las Vegas is because he was firing into this huge, huge crowd of people,

which is what made that- He wasn't trying to be accurate. Right, it was horrific, horrific. And so this idea that it could be used in that way is dangerous enough to, this is not a situation where banning bump stocks inhibits a person's right of self-defense. Nope, nope, nope, nope, nope, nope.

And I do think it's worth noting that the gun can be used that way with or without the bump stock by someone who is particularly practiced and well-trained and everything else. That is relevant to me administrative law-wise. And again, therefore, you don't need the bump stock. You could just train yourself. Right, right.

And yeah, but again, this is not an issue that impacts the right of self-defense. If you're trying to bump stock your way through self-defense, you're kind of an idiot. This is so. So anyway, we're both united, like banning the bump stocks. Do it. And the other interesting thing about this is I I legitimately think the ATF rulemaking short circuited the legislative process. This is what the Fifth Circuit said. Yeah, you're exactly right. So in fact, I want to read part of that because it's so relevant.

And it gets to our larger point on the role of Congress and the brokenness of this three-legged stool if one of the legs gets cut off by one of the other branches. So this is reading from Judge Elrod's majority opinion in this case.

Bump stock classification reached a point of inflection on October 1st, 2017. On that day, a gunman murdered over 50 innocent men and women in Las Vegas and injured 500 more.

I mean, just those numbers continue to absolutely astound me. Just staggering, yeah. And not having a motive, you know, after a year plus of investigation by the FBI, what would bring someone to do that? Anyway, sorry for the aside. He used several weapons,

many of which were equipped with extended magazines and bump stocks. These tragic events thrust bump stocks into the center of national attention. Okay, this is my now footnote. This is exactly how, generally speaking, legislation happens, right? Like a big national spotlight gets shined on it. That's why we have accountable representative government, especially the House that's up every two years. This is why we designed it this way.

Back to the opinion. Within 10 days of the shooting, two bills prohibiting bump stock devices were proposed in Congress. While Congress debated these bills, ATF published a notice of proposed rulemaking intending to reverse its previous interpretation that non-mechanical bump stocks are not machine guns for purposes of the National Firearms Act and Gun Control Act. Senator Dianne Feinstein, who sponsored one of the bills mentioned above, expressed concern with the proposed rule. I'll just read the very end of that. This is Dianne Feinstein. Both Justice Department and ATF lawyers know that legislation is the only way to ban bump stocks. The law has not changed since 1986, and it must be amended to cover bump stocks and other dangerous devices like trigger cranks. Our bill does this. The regulation does not. Nevertheless, ATF continued with the rulemaking process, publishing the final rule later that year.

The final rule purported to modify the definition of a machine gun. And of course, all the legislation died. And we've just seen this over and over and over again, David. And it can start one of two ways. The executive branch tries to solve a problem first. And so why would Congress take controversial votes in that case? Or in this case, Congress starts to do something and the executive branch steps on it. And either way, the problem with executive branch administrative agency action is that it winds up in courts, drags the courts then into a huge political fight,

frankly, over whether bump stocks should be banned. And the courts are then having to make a legal judgment over whether the executive branch has the power to do this, when in fact, we all know that Congress has the power to do it. But why would Congress act if the executive branch is going to take the political heat, get it done so much quicker and easier, and you just wave your hands if you're the ATF through the Administrative Procedure Act, I will grant you. And, you know, after having a week-long fight over who would be Speaker of the House, I gotta say I came down pretty firmly in the Chip Roy-ish camp in terms of the changes to process that they wanted to make in the House to actually make these people legislators again, to actually

allow members to take tough votes, just because some, you know, small group of members want to vote on an amendment or vote on a piece of legislation that they drafted. What's happening right now is that the speaker can say, nope, I'm protecting my flock. They're up for reelection in 18 months. So we're not going to make anyone take a vote. It could be flanking them from the right or from the left. So we're just not going to vote on that at all.

The changes that that little rump caucus wanted, not all 20, by the way, but the Chip Roy group of them were so that, yes, they're actually going to vote on things and have small groups of members from whichever political party be able to force those conversations instead of right now where it has to be this overwhelming majority of the majority party. And it's brought Congress to a standstill so that you have that problem, which I think is incredibly important to why Congress is broken. And then you have this, which is just such a perfect example. Congress is debating two different bills and the ATF is like, no, no, we need to get in here too. No, you don't. And I totally grant you, I was at DOJ at the time. So like, I get that I'm talking against myself in some ways.

Here come the carrots making their way upfield, followed by the whole wheat bread, over to the two dozen eggs. Sir, do you do this every time? Sorry, I've been a little excited ever since I got this BMO Toronto FC cashback MasterCard. Oh, and the broccoli boots that are over the line. What a goal!

How would you like to pay, sir? Credit, please. Make every purchase a win with the BMO Toronto FC Cashback MasterCard with up to 5% cashback on your purchases in your first three months. Terms and conditions apply. Can I have a complete aside into the Chip Roy? Oh, yes. So curious.

Here's my take on this. to the Chip Roy. Oh, yes. Yeah. So here's my take on this. Chip Roy rather cleverly, and I've had my disagreements with Chip Roy, but in this circumstance, I think what Chip Roy did is he rather cleverly used Matt Gaetz

to undermine Matt Gaetzism. Yes. Isn't that the best part? That it totally will change if Chip Roy gets his way. If these process changes actually go into effect, the result would be to change the incentives of who runs for Congress and how one runs for Congress. And it totally, you know, would make it so that you actually might run on your legislation and accomplishments instead of how many cable news hits you have. Yes, exactly. That's exactly what I mean. Matt Gaetzism is I'm not actually a legislator. I'm a performer. I'm a member of sort of the right wing infotainment caucus. And you might as well be if you're a member of Congress right now, because 434 of these members don't really do anything legislative. Frankly, that's a bit of an overstatement, but not much. Even if you're a chairman of a committee, you have very, very little power compared to what you did 30 years ago.

Right, exactly, exactly. So what Chip Roy did was say, okay, I'm gonna use Matt Gaetz. And Matt Gaetz put himself as like Never Kevin, right? And then by extracting these concessions from McCarthy, he gave Matt Gaetz the fig leaf of justification for backing away from Never Kevin, who's actually quite shrewd, I thought, and really interesting as a, and really interesting ultimate outcome to this thing. I didn't have- I found it so frustrating, so frustrating

that the media narrative and the narrative from the left bought into this idea that having a weak speaker is a bad thing. Like knee-jerk reaction. Weak speaker, that's really bad for our government. It's undermining democracy. No, no, the exact opposite. And the inability of,

I thought a lot of mainstream reporters to make that argument or to even look into that argument. It was very frustrating walking through a week of this. I get it. Nobody wants to sit in the house and have to take these votes over and over again. Kevin McCarthy, it's not just process wise that he's going to be weak. There's just because he had to go through a week of this, he's going to be a weak speaker sort of leadership wise as well. All of that is true. But why is that bad? There was never like a good explanation

for why weak speaker is bad. I get the debt ceiling vote and I'm happy to like eat my words to some extent when that debt ceiling vote comes around. I don't think that Kevin McCarthy or any speaker was gonna have some easy time corralling the Republican caucus on the debt ceiling regardless.

This week didn't change that. It's a symptom, not the cause. But the idea that maybe these individual members of Congress could have some skin in the game on legislation, on committee chairmanships, and on what the job of the committees will actually help with debt ceiling votes because they'll understand what it is they do

as members of Congress, which right now these guys are coming in and not even hiring legislative staff. They just hire more bookers and comm staff to do their social media platforms and get them on to, you know, talk radio and cable news. And that's, that's rational. Their incentives are all aligned to do that. Because again, all of that power is concentrated in only the speaker. And I do think that looks pretty different than the Senate. And my views evolved on the whole thing. So my initial view of it was, this is a Gates-Bowbert play. It's sort of nihilism. And they had no alternative candidate. It was a chaos agent. And then here comes Chip Roy saying, Ooh,

what's the old, and I don't even know if this is true. The old sort of saying you hear it's a 90% chance it's apocryphal. The Chinese symbol for chaos is also the symbol for opportunity. And here comes Chip Roy going, Ooh, I sense an opportunity and he turned something constructive out of the chaos. And look, on the debt ceiling issue, in my mind, and you tell me if I'm wrong about this, the other thing that I really dislike about Congress, aside from the way in which Congress has become a non-functioning legislative body, through many of the sort of more arcane and archaic rules of the house and the way in which the speaker exercises an enormous amount of power that a lot of that

was dealt with at Chibroy. If we could just take the Hastert rule and light it on fire and then scatter the ashes and try to light those ashes on fire again, I would be really happy. And the Hastert rule, for those who don't know, is essentially unless you're not going to bring, if you're in the majority, you're not going to bring legislation to a floor vote unless it has a majority support of your caucus. So that means that there's a lot of legislation that has majority support in the House of Representatives that is not brought up for a vote because it doesn't have majority support of the majority. And the debt ceiling issue is a classic example of how it's an artificial crisis created by this ridiculous rule because there's always a majority to raise the debt ceiling. because there's always a majority to raise the debt ceiling.

And so at some point, every time we have this, I'm like, what are we doing here? We have majority support for raising the debt ceiling. And then placeholder for advisory opinion, Sarah, we need to have a whole conversation about whether it's even constitutional. Oh, we do. Wait, can we do it right now? Can we do it just really fast? Yes, yes, yes. Do it.. Wait, can we do it right now? Can we do it just really fast?

Yes, yes, yes. Do it. Come on, let's do it. Oh, wait, the debt ceiling or having a speaker from outside the house? No, no, the debt ceiling. Oh, wait. No, is this constitutional to default?

In other words, is there is, okay, well, this is a whole rabbit hole. This is a placeholder and remind us, tweet at us, send us emails that says, when this debt ceiling fight rises and it will rise, can we even default constitutionally? So put a placeholder in that one. constitutionally. So put a placeholder in that one. And then also, by the way, so the Constitution says the House of Representatives shall choose their speaker and other officers. This has widely been shorthanded out in the public as the House of Representatives can have anyone they want as their speaker. It doesn't need to be a member of the House. Yes, asterisk, because while they shall choose their speaker and other officers, there is a another part, which in fact says you can't hold a position in, for instance,

the executive agency and a position in the legislative branch. Same with the judiciary. Basically, you can't be in, you know, have a conflict of interest in terms of your branchiness. So Donald Trump could be the Speaker of the House, but, well, I guess it wouldn't be a Republican Speaker of the House who's also a cabinet member, but you get the point, right? Right, right. There actually are some limits. I think it would be interesting about, for instance, could Ted Cruz be the speaker of the House?

He's still within the legislative branch. So that's an interesting philosophical fight that just isn't really coming up. And it's so sad because I want to have it. And I want to. Yeah. Just because you went there on the speaker, because I now feel like I'm letting down the listeners, if I don't give at least a morsel as to why I say, is this debt ceiling fight possibly, not the fight unconstitutional, but would it be unconstitutional default? Section 4, 14th Amendment, first sentence.

The validity of the public debt of the United States authorized by law, including debts incurred for payment of pensions and bounties for services and suppressing insurrection or rebellion shall not be questioned. So very interesting constitutional provision. But I question it, David. I question it. It says you shall not.

Sarah, you just committed a constitutional violation. Okay. This was all a cul-de-sac to come back to the idea about the legality of that ATF rulemaking and the atmospherics around it. Nobody questioned that Congress could have done this. The question is all about whether an administrative agency can. And so to bring it full circle, back in 2020, when this was coming up through an intermediate step, so not a final rule from the D.C. Circuit, they kept in place the ban on bump stocks, and they denied cert on the question with Justice Gorsuch dissenting. Well, concurring. He just issued a statement.

And let me just read some excerpts of that statement to tell you a little bit about where one justice at least stands on this. Is owning a bump stock expose a citizen to a decade in federal prison? For years, the government didn't think so. But recently, the Bureau of Alcohol, Tobacco, Firearms, and Explosives changed its mind. Now, according to a new interpretive rule from the agency, owning a bump stock is forbidden by a longstanding federal statute that outlaws the possession of a machine gun. In the first place, the government expressly waived reliance on Chevron.

The government told the Court of Appeals that if the validity of its rule in reinterpreting the machine gun statute turns on the applicability of Chevron, it would prefer that the rule be set aside rather than upheld. Yet, despite this concession, the court proceeded to uphold the agency's new rule only on the strength of Chevron deference. Think about it this way. The executive branch and affected citizens asked the court to do what courts usually do in statutory interpretation disputes, supply its best independent judgment about what the law means. But instead of deciding

the case the old fashioned way, the court placed an uninvited thumb on the scale in favor of the government. That was a mistake. The court has often declined to apply Chevron deference when the government fails to invoke it. To make matters worse, the law before us carries the possibility of criminal sanctions. And as the government itself may have recognized in offering its disclaimer, whatever else one thinks about Chevron, it has no role to play when liberty is at stake. Chevron's application of this case may be doubtful for other reasons too. The agency used to tell everyone that bump stocks don't qualify as machine guns. Now it says the opposite. The law hasn't changed, only an agency's interpretation of it.

And these days, it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. That was sarcastic. almost as often as elections change administrations. That was sarcastic. How in all this can ordinary citizens be expected to keep up? Despite these concerns, I agree with my colleagues, this interlocutory petition before us does not merit review.

The errors apparent in this preliminary ruling might yet be corrected before final judgment. Further, other courts of appeals are actively considering challenges to the same regulation, but waiting should not be mistaken for lack of concern. So this was back in 2020. Many of these court of appeals absolutely upheld the bump stock ban based on Chevron deference. Justice Thomas and Gorsuch dissented on denial of cert and at least one of the other cases that I'm thinking of,

we know that Justice Gorsuch, I mean, even in his confirmation hearings, he is not BFFs with Chevron. Chevron, in fact, became basically a zombie precedent when Gorsuch ascended to the court without him ever having to say anything. Everyone just kind of knew Chevron was no longer what it used to be. So I think absolutely, David, there's never 100%, but, you know, to paraphrase Zero Dark Thirty, but it's effing 100% that the Supreme Court is going to take this case. I know you guys hate certainty. Yeah, yeah.

You know, this is the, Chevron is in the stage where if you've seen a zombie movie or TV show where there is that first bite and there's like a bite mark on the arm and it broke the skin and, and the per, the poor person who's been bitten looks up at the, you know, at their comrades with that look of shock and horror and hopelessness, that's Chevron right now. Chevron has been bitten. It's not fully a zombie yet. It's still sentient and walking around, but the virus is spreading in the Chevron system. And you're right, it has been ever since Gorsuch got on the court. And it's one of my favorite things about Justice Gorsuch, to be honest. When I saw his record on administrative law in Chevron,

when he was nominated, I was like, yes, yes. Okay, are we ready for some MAGA hat discussion? Except now I'm going down the hole of Zero Dark Thirty and the great quote. A hundred percent, he's there. Okay, 95% because I know certainty freaks you guys out. But it's a hundred percent. I love it. Such a good movie.

It is a great movie. So good. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos.

So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night.

I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Okay, MAGA hat with him to teacher-only trainings on threat of disciplinary action and when the school board affirmed the denial of the teacher's harassment complaint filed against the principal. So here are the basic facts. Plaintiff

Eric Dodge was a longtime teacher in the Evergreen School District in Vancouver, Washington. Before the 2019-2020 school year began, he attended two days of teacher training and brought with him a MAGA hat. His principal, Carolyn Garrett, considered the hat inappropriate. After consulting with the district's chief human resource officer, Janae Gomes, Principal Garrett told Dodge that at the end of the first day

that he needed to exercise, quote, better judgment. When Principal Garrett learned that Dodge brought his hat with him the second day, she called him a racist and a homophobe, among other things, and said he would need to have his union representative present if she had to talk to him about the hat again. Now, there are some little other parts about this. So this was a cultural sensitivity and racial bias training that he shows up to with the hat. He wears his hat up to the front doors of the school, takes it off when he enters the building. And during the training, Dodge sat near the back of the room,

placed his hat either on the table in front of him or on top of his backpack. He didn't wear it. Yes, because it'd be rude to wear your hat inside. As you say, while I'm wearing a hat inside. The professor leading the training, and this is where, I mean, okay, the professor leading the training saw Dodge's hat

and complained to Principal Garrett after the training that she felt intimidated and traumatized. Principal Garrett also learned that Dodge's hat upset a few teachers who attended the training. One teacher had cried, and another found the hat threatening. There's no allegation that Dodge did anything with his hat during the training other than place it near him with his other things, nor is there any allegation that he did anything to interfere with or disrupt the training.

So this is a case that I think is not super interesting legally because, spoiler alert, the teacher wins. The teacher wins. And this isn't close. The teacher wins. You know, part of the discussion as to whether the reaction and sort of the upset that was caused. So, number one, this was private speech. He was speaking as an individual, not as an employee here. here. And so the issue part, there's some discussion about, you know, whether this,

the disruption itself was sufficient to justify whether, whether there was a legitimate administrative interest that prevented in preventing Dodge's speech that outweigh Dodge's First Amendment rights? And the court quite rightly said, no, no. And you just simply, your own subjective emotional state is not a sufficient grounds for blocking another person's speech. In other words, the fact that you might have extremely sensitive feelings towards a MAGA hat or that a MAGA hat might trigger in you an extreme emotional reaction is not justification for suppressing someone else's free speech rights. Kind of the definition of a heckler's veto. Exactly. exactly. And look, there was a recent, there's a big controversy right now.

New York Times covered it about a professor at Hamline University who was fired because she, in an art history class, showed an image of the Prophet Muhammad and there was a Muslim student. Now there is division within the Islamic faith as to whether it is offensive to show images of the Prophet Muhammad. There are many millions of Muslims who disagree with the idea that it's offensive. And there are

many millions of Muslims who believe that it is offensive, that showing the image of the Prophet Muhammad creates a temptation to worship Muhammad rather than God. And so, but there was a student in the class, Muslim student class, very offended in spite of trigger warnings, in spite of being warned, the class was being warned that an image of Muhammad was going to be shown by an Islamic artist, by the way, a very famous image by an Islamic artist. And, but the student was extremely offended and angry and upset. And the college reacted by firing this professor. One of the more egregious violations of academic freedom you'll read about.

Yeah, what? I mean, that seems so, like the law is kind of settled on that one. Well, it's a private university. So it's an academic freedom issue more than a constitutional issue. But that's an example of the students' feelings were no doubt quite real. The person who's crying, just for the sake of argument, just take the feelings at face value.

The person who's crying was probably not crying fake tears in the MAGA hat situation. probably not crying fake tears in the MAGA hat situation. Genuine feelings can arise, but my First Amendment rights are not contingent upon your feelings. And so very straightforward case. Also, it just sets up these terrible, terrible incentives. So if you wear a yes, we can hat. Right.

And people on the right are really offended by that and believe that it means that you're trying to take away their right to pray or take away their guns or whatever else. And so they start crying because you clearly don't respect their views and their political stances. Then you can punish someone for doing that. And I say that not because it's such an obviously absurd example. I say it because you're setting up that incentive system, that the only way for this all

to work out so that everyone's equal is for then people on the right to react the same way to political signage from the left. Do we really want that? And frankly, I sort of intellectually understand the reaction that people have to MAGA hats, but it is no different than the Obama hope and change poster. It is a political statement and imagery used to support a candidate and their movement. You don't have to like that candidate. You don't have to like that candidate. You don't have to like that movement. But if the Obama hope and change poster is okay with you, then the MAGA hat needs to be as well.

You know, I didn't vote for the guy. It's not like I'm for it. Right. But that's all it is, folks. So, you know, my goodness. And you talked about manners, David. I do think there's a manners conversation to have here. I do.

But I got to tell you, the whole like MAGA hat equals violence thing, I am very sick of. Very, very tired of it. Because again, it sets up these incentives where each side has an incentive to then say that the other side's fill in the blank is violence to me and my beliefs.

It's not. Right, right. And what made this case even easier, I mean, easy to the point of this was a slam dunk is that there was a Black Lives Matter poster that was hanging in the school. So, and then when the principal was confronted about it. So again, this is a MAGA hat that is not,

it's not like the teacher set it on his desk in class, right? This is in a teacher training, takes the hat off, sets it on his desk during a teacher training, only adults present. And there's a Black Lives Matter poster in the school. And this is what the principal said. While the Black Lives Matter poster is a symbol of cultural acceptance and inclusivity, Mr. Dodge's MAGA hat is a symbol commonly associated with white supremacy

and other anti-immigrant symptoms. To you. Right. And now, viewpoint discrimination, anybody? I mean, this is about as a slam dunk as you can get. But the reason why I wanted to get into the manners discussion, Sarah, was not so much the MAGA hat. Because MAGA hat manners have been discussed.

That's discussed a lot. I tend to think of there are two gifts that you can give to people in life, sort of relational gifts, not the only two, but here are two gifts. And let me articulate them. One is, do not gratuitously offend. Okay, that's a pretty common understanding of what it's like to live in a, respectfully live in a diverse, pluralistic society. Don't gratuitously offend. And we usually focus on that, and I don't want to focus on that. Here's number two. Don't be easily offended.

That's a gift that you can give other people in a pluralistic, diverse society. Don't be easily offended. One of my goals in life... Can I actually, can I asterisk that? Because it's not, for me, it's not don't be easily offended. It's don't assume offense instead of asking questions first. Don't assume the motives of the other person, the intentions of the other person.

Look, if someone says you're ugly, the intentions of the other person. Look, if someone says you're ugly, you know, and they mean you are not a good looking person and therefore I don't like you. I have no problem if you want to be offended by that. But just when they say you're ugly, just ask a couple of follow-up questions. Don't assume that they meant it as some personal attack on you. I don't know how else you could mean you're ugly, but in my hypo, you can. Okay. That wasn't a good example. I'm sorry. But you take my point all the time, people say something or do something and everyone jumps to the worst version of what they possibly could have meant and their motivation. They could write novels on the motivations of someone they

don't know. Yes. That's what I like to mean by don't be so easy to take offense. Don't be so easy to assume offense. Attributing motives is a malignancy in our discourse right now. It really is. Now, there are times when motives are transparent. If somebody says, I hate you,

then they might hate me, right? But one of the things that we do, and I think that distinguishes this podcast, if I can promote our own podcast on our own podcast for a minute, is what I think makes our legal analysis better than what you will get in many other places is we do not attribute motives to judges. We analyze reasoning, okay? We take their words at face value and analyze the logic and reasoning of the words rather than sort of saying, well, such and such judge hates Christians or such and such judge hates women and then filter everything through that prism.

And so this is- Which a lot of people, I think one of the criticisms of this podcast, to be very fair, is that we focus so much on the trees, we miss the forest. And we're not willing to say big picture, the conservative legal movement wants these ends. And we're too quick to accept the individual reasoning in any given case. I do think we try to talk big picture from time to time. But I also hear that criticism. I just think that there's a balance to be struck. I think that we kind of intentionally,

when there's a close call, we try to be on one side of that balance and not ascribe motives. And I think that way, way too many other legal commentaries don't even try. They just assume the motives, only want to talk about the forest. They never talk about the trees. And I think you see that in so many headlines and write-ups of different decisions. Well, and also I think you can start to, motives do matter. There are such a thing as motives,

but how do you, under what circumstances, how do you attribute motives? And one way, the most obvious way is when somebody tells you their motive. Another way is there's often tells when there's a motive. One tell, for example, would be in the judicial context is a departure from your own judicial philosophy. If you have a stated judicial philosophy and you depart from it in a way that reaches an outcome that seems to favor what we

would think of as your ideological side, huh, then I'm raising an eyebrow at something like that. But if you are consistent in your application of your legal philosophy, you might want to have some sort of discussion as to whether or not the legal philosophy itself is derived from a particular kind of motive. But I can guarantee you, every single mainstream legal philosophy that exists, if you're consistent in its application, is going to, on occasion,

drive you to a place where you're going to rule against sort of your ideological interest. And so unless your legal philosophy is nothing but outcomes. And so I do think there are tells, there are tells. there are tells, but I think you're exactly right, Sarah, that the attribution of motives is the root of an awful lot of gratuitous offense, a huge amount. But I have this goal, I have this sort of personal resolution,

and that is I try to be a walking safe space for conversation. In other words, if you want to have a tough conversation, you can have it with me. That is kind of a walking resolution that I have. And that means if you want to come in and you want to say, David, I think Christianity is garbage. And I'm going to tell you why.

Let's have the talk, right? Let's have the conversation. Now, there are limits. There are limits, and we all have limits. But we should push the limits as far away as we practically can. I mean, if you're going to come in and you're going to be malicious about my children, you're going to be malicious about my wife. No, no. But in the realm of ideas, in the realm of ideas, I've got, I try to, and I feel like this is maybe, and it's motivated a lot by kind of manners, as well as also trying to push back against this culture

of offense that we have is try to create a try to to to create a ethos that says I can have the tough conversation I can be exposed to speech that I don't like and it is not going to wound me emotionally um so, that's the manners conversation I wanted to have about this case. Because when I read that somebody cried, that somebody said they were traumatized at the side of the MAGA hat, all the time the conversation goes to, well, you know, even if he has a right to wear the MAGA hat, he shouldn't because these people are very sensitive. The conversation rarely goes to should people be so sensitive or doesn't go there quite enough from my perspective. And I think it's an act of kindness not to be as sensitive.

Does that make sense? Do you think I'm off base here? think I'm off base here. So the pushback to that that I often get when I have these conversations with people on the left is, okay, what if he had worn a swastika hat? Do you think the Jews need to be less sensitive? To them, what they see when they see a MAGA hat is someone announcing that they don't think that trans people exist, that they don't think immigrants have a right to be in this country and have, you know, are human beings. It's a message that certain people

aren't humanized in their view. And so they feel dehumanized and that's what they think when they see someone wear a MAGA hat. How are they supposed to react any differently? Yeah, I mean, at some point, you know, again, like I said, there are such a thing as limits. I would feel differently about somebody walking in with a SWAT sticker than I would with a MAGA hat. There are about

50 million fewer bodies attached to a MAGA hat than a SWAT sticker. I mean, let's just be, one of these things is not like the other. And, you know, in the Hamline circumstance, a student compared seeing the image of the prophet Muhammad to a teacher praising Hitler. Okay, so that was the comparison. The fact that there is a limit does not therefore mean that any sort of communication that is offensive is going to be the same

as the most offensive form of communication. And I guess for me, it would be ask the question, hey, what does that hat mean to you? Because here's what it means to me. And have the person say, nope, that's not what it means to me. Yeah. I had a really interesting conversation.

I was on a Zoom with, and it was a group of folks, great folks, way to the left of me, way to the left of me. And they asked me a question, which I thought was a really good question. And I can't remember if I've talked about this before. And on this podcast, and the question was, what is something that the right needs to know about the left? And what is something that the left needs to know about the right? And, and my, my answer on the, what does the right need to know about the left

is people on the left love this country too. Like there's this sort of notion that we on the right are the people who are the true patriots. Now, I know that there are people on the fringes on the left who don't like America. Like I've encountered it. I've seen it. I know. But I know as a general matter, people on the left are patriotic citizens. And I really hate this sort of view where people on the right call themselves, quote, patriots as if no one else is. And they said, well, okay, we agree with you.

We do like this country. Now, what do we need to know about people on the right? And especially in the time of Trump, one of the things that I have seen is that a lot of people on the left know chapter and verse of every grievance of the MAGA movement. Everything that Trump has done,

everything that Trump has said, everything that his allies have done, everything his allies have said, and believe that someone that they are, done, everything his allies have said, and believe that someone that they are as a Trump voter that they meet knows about all of those things, A, and B, endorses all of those things. And then therefore C is a pretty malicious person. Now, we know that, Sarah, you and I know there are people who fit A, B, and C, who know everything Trump has done, who endorse everything Trump has done, and it's a malicious person.

We know those people are out there, just as we know that there are people on the far left who don't like this country. But here's what I know living in bright red America. A, they don't know A. They don't know everything Trump has done. And in fact, if you confront them with things that Trump has done, they'll say, absolutely not. That did not occur. That is, they've never heard it before. Or to the extent that they've even heard the allegation, they've only heard it through in the context of a rebuttal that they've heard on Fox or on talk radio. B, if they knew that that was true, they wouldn't endorse that. They would say, I support Trump in spite of that, not because of that. And C, are definitely not malicious people. And so I feel like when someone sees a MAGA hat, they see A, B, and C, right? And to your point,

neither A nor B nor C might actually be true. And so that's why it's important to ask some questions or maybe have a conversation before you get, you're ignited. Fair enough. I think we should save our non-competes for next time. Yeah, yeah, we passed the hour mark. And that's a fun discussion. And actually in a way that's far more relevant to your life than you might think.

We also are watching certain cases in conference. So there's been one interesting shenanigan, David, that I just thought was worth mentioning. The Supreme Court was supposed to talk about the Florida social media bill case in conference at the end of last week. And instead, they delayed it and moved it to January 20th conference date. And that might be interesting because that's the date that the Texas social media bill has been conferenced for in terms of what you can read into that. I mean, on the one hand, nothing, who knows? On the other hand, it certainly makes the idea that they're looking at consolidating those cases higher, I would say. I think it makes the chances that they're taking those cases

a little bit higher. And it's very interesting to me because they have some room in their calendar. If they take the two cases and consolidate them to still hear them this term, and you and I have talked about this term being the tech term potentially. Do they have enough tech cases? Do they not want these cases? They're right on the line. They could easily say, and it's calendared next term. They could easily say, and it's calendared for April. So a lot to watch in the conferences this month. Just wanted to flag that.

And as the asterisk as always, my husband is counsel in that Texas case for NetChoice. Yep, that is interesting little shenanigan. I would put this, I'm not quite at the zero dark 30 level of certainty that they're taking it, but I'm really close to it. Yep, yep. I'm at the true 95%, not the fake 95%. You know, the Supreme Court's actually still,

I believe, pretty low for their overall grants this term. So I do think they're gonna have a few more big grants in the next couple of weeks. Yeah, yeah. It's gonna be an interesting term. The tech cases make it even more interesting. It's not the last term, but it's an interesting term

that has the potential to become even more interesting. So, all right. Well, thank you guys for listening. Please rate us. Please subscribe. Please check out thedispatch.com. And we'll be back Thursday with some helpful advice on boilerplate contracts.

And if that doesn't bring you back, what would? What would? There's just nothing. Absolutely nothing. Well, thank you as always for listening and we'll see you next time.