Advisory Opinions - Can Churches Commit Fraud?

Episode Date: February 6, 2025

Sarah Isgur and David French discuss our two favorite topics: God and guns. Can you sue your church, and do young adults have the right to bear arms? ’Merica! The Agenda: —Corrections! On USAID comments. —It is still illegal to murder FBI agents —SCOTUS chooses to stay out of religious cases —You can't sue for your tithes —Young adults have a right to guns —Bruhimi —Civic vs. individual rights Show Notes: —Tess Bridgeman's article on firings —Hosanna-Tabor case —Jack Smith's and Bob Bauer's article on the power of the executive 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 Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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That's David French. We're going to do guns and religion today, man. I think it's going to be Opinions. I'm Sarah Isger. That's David French. We're going to do guns and religion today, man. I think it's going to be a good show. Oh, it's going to be a great show. But unfortunately, Sarah, it's a great show that begins with a correction, which is not my favorite way to begin a great show. So you know, one of the downsides of responding in real time to shotgun blasts of legal issues

is sometimes you make mistakes. And so last show, I made a mistake. So I said correctly that USAID, which is the agency that is now under frontal assault from sort of the Elon Musk doge apparatus within the Trump administration, that it was a weird situation because USAID was created by an executive order, but it was spending money appropriated by Congress that has to be spent according to the appropriation.

Okay, that was true, but incomplete. USAID was created by an EO issued by President Kennedy, based on language in the Foreign Assistance Act of 1961. But in an act of Congress later in 1998, Congress essentially said, this thing that was established by EO, we're recognizing it. We're saying there is within the executive branch of government, the United States Agency

for International Development. Now, there were some caveats on this at the Clinton era, where Clinton could have done more of an extensive reorganization and he chose not to. So one way to think about this is, okay, it's an EO created by an EO, then in essence, its existence, which by 1998 had been for more than 30 years, was ratified and solidified by Congress. And so it is not the case, as I said on the show last week, that it was an EO established entity funded by congressional appropriation. I missed a step in the middle. It's an EO established entity ratified essentially into an agency by Congress that is now spending money appropriated by

Congress. So what is occurring, Sarah, is not the unwinding of an EO. What is occurring is the unwinding of a statutorily recognized agency, which makes the legality of the situation a bit more clear. This is then not something that, you know, under any of my ideas about what unitary executive means that is within the authority

of the president to execute unilaterally. The complicator before, I did not think before that he could unilaterally unwind all the appropriations. My question was about the USAID entity itself, what kind of discretion existed if it was created by executive order, but the executive order wasn't the end of it. And we'll put a piece in show notes from Just Security by Tess Bridgman from earlier or from late last week that explains all of this, I think, very well, walks us through the precise sequence of events. So in all of this confusion, sadly, Sarah, I contributed

to it. And so now I'm trying to unring that bell. Okay, so here's something that I hope people have picked up on, but that we have not, I don't think said clearly enough. Unitary executive theory is about personnel, right? That's what the unitary executive is about. It's about whether you can fire people, whether they're at will employees, whether you can move people around within the executive branch. Unitary executive has to involve people, basically. It does not involve things like money or authorities, powers of the executive.

That's not unitary executive. That's executive power. There's definitely Article two issues around that, legal questions around it, but like we've been joking around a lot about unitary executive. And I just wanted to make clear, it's actually a pretty narrow point

about unitary executive. It just deals with whether the people who work in the executive branch are all solely responsible to, and the responsibility of the president alone, in short. And properly, I would say that when you're talking about unitary executive, under a more proper understanding of what it is. But I do think that if you're going to look, there was a tremendous, you know, we had Jack Goldsmith on last week, and he and Bob Bauer put together a

really tremendous piece that we should also put in the show notes talking about sort of, okay, there's this way that we have thought about the power of the executive. And then there's the way Russ Vought is thinking about the power of the executive within the administration. And what we are seeing with USAID is much more in line with sort of what that Russ Vought approach is to the Interterritoria Executive. And if you wanna know what that is, it's actually been kind of mapped out. So he's talked about, and here's a quote,

that the Trump administration needs to throw off the precedents and legal paradigms that have wrongly developed over the last 200 years. So there is, in some ways, maybe perhaps, again, this is all fog of war, a kind of method to this madness that Goldsmith and Bauer outline that, wait, what we might be dealing with is a radical form of constitutionalism that is being sort of introduced to us through language or used to hearing like unitary executive. But it is something else sort of an order of magnitude beyond what you would think of

as encompassed in a unitary executive theory. Yeah, I think the USAID stuff does fit into a debate over the unitary executive because it does involve the people who work for the president. They're not talking, at least for our purposes, they're not talking about impounding the funds, not giving money that Congress has appropriated. They may separately also talk about that. But in terms of disbanding USAID or moving it under the State Department, all of that is personnel related and that is unitary executive. Another point that I've seen made about unitary executive theory that is worth, I think, underlining again is it might be better called Trinitarian executive theory because unitary executive theory, I think too often sounds like someone is saying the president is above the other

two branches or something and it's just not about that at all. It is about the president's authority within his branch. It just doesn't really have a whole lot to do with the other branches at all. It's whether Congress can come in and tell him he has to do certain things within his branch, or whether within his branch, he is... I mean, I guess there is some religious analogy here, right? Like, if there's the Father, the Son, and the Holy Ghost, they're still all one God. And that God is the President of the United States, regardless of whether there are these other people who act on his commands, if that makes sense. But those people still are part of his body, rather than part

of some congressional thing. And this isn't contradicting anything we've said, I'm just hoping to clarify a little. Well, and you know, when we talked to Jack, I thought it was very helpful when we were talking about sort of this authority over personnel, does it extend all the way into telling every executive branch employee that you're essentially an at-will employee? And as Jack was saying, whoa, that's,

that's an extreme version of it. It's much more that you can tell to every executive branch employee, here are your lawful instructions and you must carry out my lawful instructions. And if you don't carry out my lawful instructions, again, note the presence of the word lawful in that formulation,

that if you don't carry out my lawful instructions, then I can take action. And that is a much more, I think, precise framing of it than the way it's often thrown around and used. And so, as Jack was explaining, very, very unlikely that the Supreme Court would overturn civil service reform, overturn merit systems protection, overturn all of that. Very unlikely that the Supreme Court would do that.

However, very likely that if Trump issued orders to an executive branch agency and those orders were lawful and within the scope of this authority, and if it was found that there were employees that were impeding the execution of his lawful orders, that would be grounds for taking action against that employee. And when you think of it like that, it sort of all makes sense. And kind of think of it in the sense of like a unionized workforce in the private sector, that you can ask your unionized workforce to build, say, a Toyota Corolla or a Toyota Camry. And if they refuse to build the Toyota Camry, you can take action. But you can't just waltz onto the shop floor, anticipate and presume that everybody is against you, sweep it all out,

bring everyone back, bring in a whole new workforce. That would not be the way that would work, say, in the private sector. And I think that's a rough analogy. Also, can I just read what's happening at the Equal Employment Opportunity Commission right now, which is, it sort of highlights this perhaps in more specific ways. I'll read here from a Wall Street Journal piece. Since President Trump fired the Equal Employment Opportunity Commission leadership last week, the agency's new acting chair has instructed staff to change the agency's procedures and materials to reflect only two sexes, male or female. That includes removing the option for U.S. workers making a discrimination charge to

check a non-binary X gender marker on their claim form. The agency has also ordered that any claims possibly falling under Trump's executive order to quote, defend the biological and binary reality of sex and related rights, end quote, be elevated for review at EEOC headquarters instead of dealt with at field offices. So then you have an agency judge sending this email that we have the text of the tactics you are employing and the actions you have taken in lockstep with this new administration are illegal and unconstitutional. So in short saying, you've given me an order and I won't follow it because I don't think it's lawful. And so that's going to be then where the, and I mean litigation here in both the literal

sense and the more metaphorical sense. Right. If that was a lawful order, then that person can very much be fired. Correct, yes. And if it wasn't, then they can't. Correct. Under current law. Yes. So when you see stuff like that, I agree, it feels very like,

this still all feels very fog of war to me, David, in a lot of ways. But anyway, just hoping to break that down. Yeah. Part of what we are taught in law in a lot of ways. But anyway, just hoping to break that down. Yeah. Part of what we are taught in law school, dear non-lawyer listeners, unfortunately for you, is to issue spot. We just identify the problems. We don't actually solve them or know how they get resolved. So when it comes to something like this on the front end, I can issue spot this for you. I can't tell you right now that there's an obvious resolution.

Just like David on your USAID point, it's gotten a lot more complicated. I don't know that that makes, it makes the resolution harder to spot. Like I can issue spot this, okay? So we have the executive order now is pretty much irrelevant. You have a congressional statute creating,

ratifying the creation of something called USAID. It's gonna matter a whole lot exactly what Congress was doing there. And about whether it can now be moved into the State Department, for instance. It is not that because there was a Congressional statute, they obviously cannot move it into the State Department. Now it just isn't that they obviously can, basically. We can issue spot that and say, now someone's gonna have to really dive

into that congressional statute, the language, what else they were debating at the time, all of these things. Because if they were just ratifying what already was, that could give some wiggle room compared to saying, this is what it shall be moving forward. And I did go and look at the statute. And it is not so obvious that I feel like we can tell you

the resolution here. Right. And I feel much more confident about, say, does the president have to expend appropriated funds where there's mandatory language in the appropriation? Yes. Yes. I feel much more confident about saying, can

Trump take adverse job action against civil service protected employees, against the rank and file civil service protected employees? No, he cannot. He cannot. Now, is there a gray area between your high level-making political appointees and your highest level civil service protected employees? Is there some gray there? Yes, absolutely. Are some of the terminations and job actions in that gray? No, they're much more in the black and white, where the sense is quite clear that unless the Supreme Court

reverses course Unless the law changes this is just flat out flat out long lawful So I do think that there are black and white things that we can identify We've talked about you know, for example birthright citizenship. That's much more sort of black and white to talk about We can identify the issue, we know the history, we know the analysis, we can make a projection based on all of that, how we think the court will rule. But by golly, guys, there's a lot of stuff right now that is very vague as to what exactly is happening.

And we're getting a lot of emails saying, I want you to talk about A or B or C. And I agree, some of those things, when we have more clarity, absolutely I want to talk about it. But, you know, for example, the correction I led off with is an example of sort of why when stuff is coming in fast and furious, we sometimes have to pause because we're doing legal research about all of these things. And you can't cut corners. And yeah, so anyway, so that's why I wanted to start with a correction, both because it was important to make and B, because it helps launch, you know, helps us

analyze how we can go wrong in this moment, like I did. All right. Well, next up is an easy one, David. Remember how we can go wrong in this moment, like I did. All right, well, next up is an easy one, David. Remember how we talked about how one of the January 6th pardon guys had been under investigation for an unrelated crime and whether that pardon would then relieve him of potential prosecution for an unrelated sex crime that they found evidence for while investigating the January 6th stuff.

And we were like, yep, nope, no problem there. The evidence is still good. You can do whatever you want with it. All right, I've got a related one for you. Pardon January 6th defendant Ed Kelly is now arguing that Trump's broad pardons, which cover offenses related to January 6th, also pardons him for his November conviction in Tennessee for conspiring to murder the FBI agents who worked on his January 6th case. Here is a paragraph from his filing. It is clear from the president's executive action that he intended his executive order to sweep broadly. If he had wanted it to apply just to the actions of January 6th, he would have said so.

Rather, he styled it executive action as, quote, related to events that occurred at or near the Capitol on January 6, 2021. Thus, Kelly is entitled to the immediate dismissal of the indictment in this court and immediate release from custody. So let me read you from the pardon, if you will. Acting pursuant to the grant of authority in Article 2, Section 2 of the Constitution of the United States, I do hereby grant a full, complete, and unconditional pardon to all individuals convicted of offenses related to events that occurred at or near the Capitol on January 6, 2021." So he's got the related to part going in his favor, but the at or near the Capitol.

Nope, this seems like pretty obvious that they were intending not to sweep in the guy who then conspired to kill the FBI agents who worked on his case. It has nothing near or at the Capitol on January 6, 2021. They even gave the date that the events have to happen on. This one seems easy to me. What do you think?

I agree. It seems very easy to me. You don't, this is not, I shall now go hunting or the hunting expedition I went on for law enforcement is not encompassed within the events of January 6th. or the hunting expedition I went on for law enforcement is not encompassed within the events of January 6th. Yeah, I agree with you, Sarah. I don't think this is that difficult.

Although I could imagine a slight wording change, a slight wording change, and you've got a real problem on your hands. Yeah, but I don't know whether they really thought too much about this. Yeah, no. But they might have, in which case, like, yes, we want to be clear that you're getting pardoned for what you did on January 6th. But if you then went and did other crimes related to January 6th, no, you didn't get

pardoned. And in this case, of course, the guy is convicted of multiple things, some of which are related to what he did on January 6th. He helped break the first window near the Senate wing door was the fourth rioter to enter the building and helped kick open the doors from the inside, allowing rioters to pour in. He gets pardoned for all of that. That happened at the Capitol on January 6th, clearly within the scope of the pardon. But then, when weeks later, he conspires to murder the FBI agents related now to his investigation and prosecution,

nope, that conviction's gonna stand just fine. Yep, absolutely. There's so many things I wanna do and see, like redoing the basement without having to do it all myself, or doing absolutely nothing with a spectacular waterfall view, of course. So I'm starting here investing with RBC. When it comes to reaching your goals, personalized advice and performance matter. And now you can get $300 when you invest with RBC.

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God's a lot more important than guns. So this is- All right, this is a great one. Yeah, this case is it's wild. So here's a headline from Deseret News, which I think is a great, a great entree. This Ninth Circuit panel dismisses Huntsman tithing lawsuit. Tithing lawsuit? Wait, you can sue over your tithes over the money that you give to your church? What? Okay, so here's what happened. There was a panel of 11 judges, Ninth Circuit, unanimous ruling last week that dismissed

James Huntsman's lawsuit against the church. Huntsman had sued the church wanting return of about five million dollars that he had donated. And he's alleging the church committed fraud by using tithing funds to finance commercial endeavors. In other words, finance a development project. And so there are 11 judges, six of the judges said, no, you lose Huntsman because no reasonable juror can conclude that the church was fraudulent. And then five of the judges essentially said, okay, you lose Huntsman, but you lose because what are we

even doing deciding this? In essence, wait, what a church does with its tithes really is the church's business. And this gets, it's a very dangerous way, it's very dangerous to intrude upon the role and the function of the church in deciding how to dispense tithes. And there was also this great concurrence from Judge Bumate, somebody we have talked a lot about. And I'll just read from a little bit of this. My colleagues believe we have a choice on how to resolve this case. According to the majority and main concurrence, we can either decide the case on the merits.

We can take the Church of Jesus Christ of Latter-day Saints President's Word on the meaning of tithing and conclude that the Church did not misrepresent its actions. Or we can decide this case on the basis of the Church autonomy doctrine, which precludes courts from reaching religious questions and deny the fraud claims. So that's the...the majority is just as a matter of fact, there was no misrepresentation. The main concurrence was there's this church autonomy doctrine, which prevents us from reaching this question. Here's Judge Bumate. The Constitution gives us no such choice. In deciding religious matters, the Constitution strictly limits our authority. Simply put, the Church autonomy doctrine bars federal courts from resolving matters of faith,

doctrine, and church governance. So we can't just sidestep the doctrine and jump straight to the merits. Nor can the doctrine be assumed away, considered an afterthought, or serve as a convenient alternative ruling. Rather, it is a threshold structural bar that must be reckoned with. On this, I think he's exactly right, Sarah, that the majority reaching the merits of the case, in essence saying, we've looked at the facts and you don't have a fraud claim, never should have gotten there. This is outside of, this is a threshold, this is a jurisdictional issue that you cannot dive in and look at tithing. And you can't dive in and have a judicial evaluation of

how a church spends tithes. And I think that's exactly right. I mean, when you think through the alternatives, how much are we, you know, let's suppose the church autonomy doctrine is not a threshold, it's not a bar, you will be dealing with subpoenas, depositions, all kinds of inquiries into the conduct of religious institutions. And giving them that zone of autonomy is not saying that any given religious institution is trustworthy with tithing funds. It's just, is it the role of the government to come in and backstop the congregation in oversight of church use of tithes? But I've got a question for you, Sarah. If I'm the LDS church, do I kind of prefer this outcome? Oh, 100%. This is in fact the outcome that they asked for,

which the majority points out in sort of taking on Bumate's point, which is like the parties wanted this. So we don't know what you're talking about. The church itself wanted us to get into it. Can I read you what the president said is like the fraudulent, the allegedly fraudulent statement? Yeah.

Okay. He says, I wish to give the entire church the assurance that tithing funds have not and will not be used to acquire this property, nor will they be used in developing it for commercial purposes. Funds for this have come and will come from those commercial entities owned by the church. These resources, together with the earnings of invested reserve funds, will accommodate this program. That's like the most truthful statement I've ever seen. It's extremely truthful. So what he did was he invested the tithed funds, you know, let's say $10. He earned $2 of interest when he invested those funds.

He never spent the $10. He spent the $2, the interest. That's literally what he's saying he's going to do. He says tithing funds have not and will not be used. Instead, we're going to use funds that come from commercial blah, blah, blah, and the earnings of invested reserve funds. So the argument from Huntsman is that the earnings on the investment are itself still tithed funds. I don't know my bank who has my mortgage would like to like have that deal. My house's appreciation now belongs to the bank?

Nope. That's not how that works. So this is why to your point, David, like, of course, the church wanted the court to look into this because it's a near frivolous lawsuit. Yeah. And it's always nice to win on the merits rather than them say, well, maybe this was totally fraudulent, but we can't get into it. So it's dismissed. But okay, you said something interesting, David, that I felt queasy about. Uh oh. Okay. Which is the Bumatey dissent. I don't know if I agree with it or not. Because what Bumatey is saying is basically they're, or correct me if I'm wrong, we just can't look into it no matter what. So even if there were crazy fraud,

like the guy said, you know, your tithed funds go to build the church. And instead, the tithed funds went to buy him new Armani suits. So you're just talking about like entire strands of like prosperity gospel Christianity, Sarah. Okay, interesting. But in short, once, basically a church can't commit fraud. Well, it certainly can commit fraud in a commercial transaction. Okay.

Yeah, it absolutely can commit fraud. So if a church is selling its building and it is saying, and you know, they're filling out a commercial real estate form and they say, we have never had any flood damage and they've had, you know, so obviously, like churches commit fraud in many, many ways. The question here is, when you're talking about donations to the church as part of religious exercise and part of religious command, how much is the state going to walk in here and talk about fraud?

And Bumate and some of the other judges are no doubt aware that this is a very tricky world, Sarah, because let me put it like this. There's an awful lot of people. There's a whole strand. I use the term prosperity gospel for a reason. There's sort of a whole strand of mainly Pentecostal Christianity that essentially tells all of its members, if you give a dollar to the church, you will be rewarded tenfold. And so, it's called sort of sowing into the church. And so, you give your $100, it will be $1,000. Your thousand becomes 10,000, you name it.

And so this is, but they're not making a promise that they're gonna invest it and give you a $10 return, like some sort of pyramid scheme or multi-level marketing plan or something like that. It's a religious argument. They're essentially saying your dollar becomes $10 because that's what God promises. Well, there's millions of people running around out here right now in the United States, Sarah, who've given more than a dollar, have not gotten their $10.

That it's gone to the Armani, it's gone to the private jet, it's gone to a lot of terrible things. And the question then becomes, okay, in the atmosphere, what do you do about this? Is there a state-based solution to this? And I'm not going to say there is none. It depends on the facts of any given person. But sort of this argument that says, okay, when it comes to tith dollars, giving of money, which is, you know, biblical command, the ways in which those tithes are presented to a church

or induced, or, you know, sort of the way in which parishioners are convinced to tithe, getting sort of a state oversight, is the state hovering over that. It's very difficult. This reminds me, Sarah, of the EEOC situation with Hosanna Tabor. I was just gonna make you explain

all the facts of Hosanna Tabor. So do a little footnote on the Hosanna Tabor case. It's a unanimous Supreme Court case, 2012. Go ahead. Yeah, so it's unanimous, including Ruth Bader Ginsburg in the majority here. So, Hosanna Tabor, you had a lawsuit brought against a Lutheran church and school involving a teacher where their claim was there was adverse job action taken against her on the

basis of disability. And so the question was, as a person, as a ministerial employee of this church, someone who has a religious role in the church, a religious role in the school, can federal employment discrimination law apply? And the Obama administration said, yeah, that in fact the church is gonna be required to protect its ministerial employees from discrimination.

And the Supreme Court 90 said, no, sir, no, sir. So this was 90, this was not a five, four, you know, with pulling Kennedy into the majority. No, this was a 90. And 90, the church says, look, if we're gonna get involved in something as sort of closely connected to the core mission of a religious institution as the definition of who is going to be a minister of that church.

It's impossible to do this without implicating both the free exercise clause and critically and the establishment clause. Because if we get into the business of determining who is and is not going to be qualified to be a minister, how do you do that consistent with the Establishment Clause? And I would argue that there's a similar kind of calculus at work when it comes to tithing, because you're talking about core, core religious functions of a religious institution. And the Supreme Court has been very reluctant to get into that because it's not just a free

exercise matter. It's not just does the Church have a right to do with it, what it wants with its ties. It's an establishment clause matter. How much can the state tell a church how to receive tithes from its congregants and how to spend those tithes? Would it be fair to say that that also extends

to whether to be truthful about how to extend, how to spend those ties. Like, so, and I guess I'm like buying into this, right? Like, what if you say like, well, look, in our religion, the head of our religion doesn't need to tell people where the ties funds go at all. So whatever he said is irrelevant because they didn't have a right to know where the funds went. Or in our religion, the leader often is told to lie for the good of the order or something like that. So you can't commit fraud, because it's part of our religion to sometimes

say things that are untrue. And obviously the government can't look into that. That's part of the church doctrine. Right, and this is where it gets really, this is where it gets very difficult, because Sarah, you will have people say, for example, I have the anointing of the Lord, and in a dream, he told me that, you know, this tithe fund that I had accumulated for one purpose, that I was wrong, I was outside of his will. And to be brought into his will, I should spend it on this other thing.

And so, you know, that's- Right. How do you get into that? How do you adjudicate that, right? You know, and especially how do you adjudicate that in a way that's not creating precedents that then govern the way churches raise and spend tithes? And again, this is not saying that churches are not abusive, many of them abusive and irresponsible in the way they use tithes.

It's just that the accountability for that piece of it really does rest with the congregation more than with the state. Although that's not to say that churches have carte blanche and their dealings, especially with dealings with people outside the congregation, as I was talking about, like real estate. A church can be held liable for fraud. And they can't argue, God told me to commit fraud

because he needed this building. Exactly. Okay, so then let's get into the, if you're a non-lawyer, sorry, but now we're gonna do the real nerdy part, church autonomy doctrine, right? Because the actual fight here, that everyone on the Ninth Circuit agreed,

this was a crap case and Huntsman loses. But like so many of our more interesting cases, the question is how you were gonna lose. Yes. And you have Bumate, our chief standing alone here, who's saying, not only does he lose, we don't determine, the majority just says, this isn't fraud.

Yeah. And he's like, no, you don't get to say that because the church autonomy doctrine is quasi-jurisdictional, similar to subject matter jurisdiction or article three jurisdiction. There has to be a case or controversy. And that if there's no jurisdiction, you don't even get to answer the question. You would just dismiss the case because there is no case, basically, because you're asking

us to get the church stuff. Now, like we said, the LDS church, I think, is very happy with how this was resolved because it was like the best version for them. You didn't commit fraud. You're good. What Bumate is saying is we should have said, it doesn't like, nope, we're just love, love, love, fingers in the ears. Yeah.

And so he is talking about whether this is jurisdictional or not. And I just want to read a couple of sections here. Given the history and precedent, the church autonomy doctrine speaks directly to court authority and cannot be assumed away. Constitutional text, history and history and precedent, the Church Autonomy Doctrine speaks directly to court authority and cannot be assumed away. Constitutional text, history, and tradition and precedent all confirm that the doctrine has structural roots.

It operates as a strict bar to federal courts deciding matters of faith, doctrine, and church governance. While it may not be jurisdictional in the technical sense, it still has a uniquely structural character. Thus, it's no mere affirmative defense to be decided in the order of the court's choosing. Instead, when raised, it must be treated as jurisdictional like other constitutional doctrines limiting federal power. And here, I found that pretty persuasive. The worst evidence for him, which he addresses, is this footnote in Hosanna Tabor. Okay, so now I'm reading again from his opinion.

In Hosanna Tabor, the court suggested in a footnote that it may favor the non-jurisdictional view and addressing whether the ministerial exceptional component of the church autonomy doctrine operates as an affirmative defense or a jurisdictional bar, the court said, the former. The court reasoned that under the ministerial exception, the issue presented is whether the allegation the plaintiff makes entitle him to relief, not whether the court has the power to hear the case. According to the court, by the way, that quote is, parentheses, simplified, which, you know, I have feelings about that, David. Yes, we have feelings. Bad bumate, bad Judge Bumate. Okay, anyway, you know, I have feelings about that, David. Yes, we have feelings.

Bad Bumate, bad Judge Bumate. Okay, anyway, but it does make it much easier for a podcast. So actually, thank you, Judge Bumate, because then I would have had to summarize it. Whatever. I don't love it, but I do like it. According to the court, district courts have power to review the claim brought and to decide whether the claim can proceed or is instead barred by the ministerial exception. As some have noted, however, the footnote was not necessary to the resolution of the case, and so it's not technically binding precedent. I mean, this goes to something, David, that we've talked about on and off, like what is precedent? What is dicta? And if you get, you can basically say everything is dicta

except the literal holding of the case at the end, the things absolutely necessary to resolve the facts of this case. And I think that would be a disservice to the doctrine of stare decisis. The point is to have a bit of a broader sense of what the court held that we're not just revisiting it when there's a new fact. Like, well, he was wearing a blue shirt,

now he's wearing a red shirt when he committed this crime. So is it a crime? So I'm not in favor of the overly technical reading of what is precedent and what is not. Nevertheless, I wonder whether since 2012, if that issue were squarely presented to the court, I think they might side with Bumate. I think they might say it's jurisdictional and that the court shouldn't be resolving the question, even when it's easier to resolve the question than the jurisdictional

question. Well, in a lot of these discussions about religious autonomy, you know, there is an element of bad facts can make bad law. In this circumstance, there were not bad facts for the church. There were good facts for the church, which is why they wanted to get them it out on the merits because they could then broadcast everyone. We didn't commit fraud. Not only did a jury say we didn't commit, the court here said no reasonable juror could say that we committed fraud. That's a vindication from their point of view. Absolutely. But there's a deep issue here that I think is really important to get at.

And that is, if you look at the founding of the country, one of the things that the founders wanted to do in the Constitution was strip from the government anything that looks like ecclesiastical authority. And I think that's the way to think about this. from the government anything that looks like ecclesiastical authority. And I think that's the way to think about this. If what you are asking the government to do in its intervening at a church would constitute an exercise of ecclesiastical authority, that is just not what the government can do.

It is just not what the government can do. It is just, it's out of bounds. And the reason for that is because, well, if you wanted to look at the record of hundreds of years of wars, leading up to, you know, the ratification of the Constitution in the United States, it was very clear to the founders that you marry ecclesiastical authority with state power, you get violence. And so, the original Constitution does not provide any ecclesiastical authority as an enumerated power. The First Amendment explicitly strips ecclesiastical authority with the Establishment Clause. And so, a good way to think about the interplay from free exercise and establishment is that

they're not circumstances where the state possesses anything that looks like ecclesiastical authority. Let's do some guns. Guns, guns, guns. So we've got a Fifth Circuit decision holding that a law, USC 922B1 and C1, so there's a federal law. We've talked about 922 a lot, although usually 922G, but these are sort of the federal gun crimes that federal prosecutors use. This part of it

prohibits federal firearms licensees from selling handguns to 18 to 21-year-olds. And the question is, whether that's constitutional, whether 18 to 21-year-olds. And the question is whether that's constitutional, whether 18 to 21-year-olds have a Second Amendment right to purchase firearms from FFLs, which is what we're going to call federal firearms licensees from now on. David, they said, yes, 18 to 21-year-olds do. This is interesting because a lot of people may not realize or remember that at the founding, 18 was not the age of majority. It really was for most purposes 21. So this isn't one of those things where you go like, well, yeah, obviously, because at the time of the founding, like 18 year olds, you know, had all these rights, like, no, actually, this is going

to be kind of the reverse of that. a lot of ways. At the founding, they wouldn't have had the right to vote, to join certain militias, all sorts of things that they would have been prohibited from doing. What the majority says here though is basically the right to vote was so restricted that we can't possibly use that as our guidepost because women and black people and non-property owners and all sorts of folks couldn't vote. So we can't just look at some constitutional rights. We have to look at this constitutional right.

It's an interesting opinion, David, what were your thoughts? This goes to that discussion that we have a lot of text history and tradition and what level of specificity applies here. And, you know, I have a lot of sympathy for the majority that essentially says, wait a minute, the idea that the age of majority was 21 is not dispositive to a conception of who the people are who have a right to bear arms and a right of self-defense. So I do have a lot of sympathy for that point of view,

but then we move into sort of this other part of the question that if you're looking at the combination of Bruin and Rahimi and shout out to David Latt for coining the term Brahimi. Which I now actually forget that that's not the name. He's messed me up and I'm now not gonna say Rahimi and Bruin. One time I was going to be like, oh, you know, Brahimi. And someone's going to be like, what?

So a lot of this depends on, okay, what really is the end result of Brahimi. So if Brahimi is, okay, all we did in Rahimi was correct any impression from Bruin that you have to find an exact match. But the reality is that you still are going to have to be adjacent. You're going to have to sort of, it's not exact, but you're going to have to get close. You're going to have to get in the neighborhood. And that was, for example, in Rahimi, the surety laws. Surety laws were where you, if you were potentially dangerous, you're putting up money beforehand as a condition

of having a weapon. And so they're saying surety laws showed that there was this interest in restricting access to guns for unusually dangerous people. And so what is it that the final principle is out of Brahimi? Is it that the historical record tells us you have some liberty to regulate firearm possession and firearm sales for unusually dangerous persons and unusually dangerous weapons, and that's the general principle.

Now go out and determine who's unusually dangerous. Or is it, okay, yes, you can do it for unusually dangerous persons, unusually dangerous weapons, when there is a historical analog that applies in some general way to this precise person or this precise weapon. And that's kind of, I think, where we are here. And if I, my own sense from reading Rahimi is that we're actually moving much more into a world where they're going to say the historical record says unusually dangerous persons and unusually dangerous weapons are out of bounds. So let's determine what is unusually dangerous. And if there's evidence that 18 to 20-year-olds, for example, are substantially more dangerous, that they have a substantially higher, meaningfully higher crime rate, then maybe that would pass

muster. But I feel like these are sort of the terms of the debate right now. We're still in the land of how closely do we have to match the historical record with, have we already gotten an answer from the historical record? And that answer is this sort of unusually dangerous formulation. So let me walk through a couple of the things that the majority opinion said.

First, they distinguished between civic rights that presupposed virtue limitations and the right to keep and bear arms as an individual right rooted in the right to self-defense. So then they move on to the people, like, does that include just those who are enjoying the civic rights and voting rights? Then, of course, they point out, like, basically, nobody had voting rights, many people did not have voting rights. Thus to say that the people covered by the Second Amendment is limited to those who are part of the political community at the founding would imply excluding law-abiding adult citizens

based on property ownership, race, or gender. Okay? Finally, the firearms use, particularly in connection with militia service, contradicts the premise that 18-21 year olds are not covered by the plain text of the Second Amendment. Here they point out the Second Congress enacted the Militia Act of 1792, which basically stated in part that if you're between 18 and 45, you're joining the militia. And so as they note, it would make zero sense that you're required to join the militia but not able to buy a gun. But David, this like kind of gets to the what I always refer to as

the Judge Ho problem. Yes, they did not limit the ability of 18 to 21 year olds to own guns. But does that mean they couldn't limit the ability of 18 to 21-year-olds? Did they exercise their authority to its maximum? That's like the Justice Barrett question, right? Yes. And like, all they've proven is that they didn't exercise the authority, but that's a very different question than whether they could have exercised their authority. Exactly. And I guess, to me, nothing is going to answer that. That's the problem with text history and tradition

oftentimes, is that unless you have some line that's like, we don't believe that consistent with the Second Amendment, we could limit, though we wish we could, like that would be helpful. But short of that, I don't know, man, what am I supposed to look at? Yeah, and again, not only is it unanswered by the historical pattern or practice as to whether the legislature exercised the maximum authority it could exercise, there's also

the matter of the legislatures are not interpretive bodies. Okay, so they're not setting judicial precedent. And I think this is very, very important because under our system, yes, we do want legislatures take an oath to uphold the constitution. They take an oath to uphold, protect, and defend the constitution of the United States, but their role in the process is lawmakers. They do not determine the extent of the law. Their job is not to declare what the law means.

And so if we're looking at legislative enactments determine the extent of the law. Their job is not to declare what the law means. And so, if we're looking at legislative enactments to provide something that seems a lot like the way the text history and tradition analysis goes, that seemed to act a lot like legal precedent, why are we doing that? I mean, we just went through this whole thing with like Loper, Bright, and Chevron about the executive branch is not qualified to interpret the law. That's what judges do. So then why are we going back to 1811 and saying, well, this legislature's interpretation, but it wasn't an interpretation.

It was just an enactment. Okay. But here's the paragraph that I find the most perplexing, David. And David, maybe I should note that this opinion was written by the judge that I clerked for, so I tread lightly here. But nevertheless. Finally, the government argues that mere participation in the militia was not enough to establish Second Amendment protection because black men served in the militia but were otherwise barred from possessing arms. And Virginia bylaw disarmed men who refused to take a loyalty oath while still requiring them to enroll in the militia, albeit without firearms. The treatment of blacks is hardly probative as to 18 to 21

year olds because race-based classifications would apply regardless of age. Yeah, but that misses the point. The point is that clearly mandatory service in the militia was not evidence of who was included in the Second Amendment because if there could be a race exception to the Second Amendment, of who was included in the Second Amendment. Because if there could be a race exception to the Second Amendment, then why couldn't there be an age exception to the Second Amendment? The militia service isn't evidence, therefore,

of what the Second Amendment encompassed at the founding is the point, not whether it was race-based versus age-based, duh. Yes, we know. The point is there were exceptions to the Second Amendment. And then on the loyalty oath point, it says, in some respects, loyalty tests contradict the government's position. Virginia required men over 16 years old to swear an oath of allegiance, lest they be

disarmed. This language implies that Virginia expected that potential dissidents as young as 16 may be armed, and young men of 16 were considered to have rights even if they were being restricted equally with other suspect class members. So do we have to give 16 year olds guns? Cause that, if you're saying that it's militia service, that determines the second amendment and 16 year olds were in the militia, why are 16 year olds not allowed to buy guns now today?

So I don't think this is necessarily a problem with the fifth circuit. I think this is a problem with text history and tradition. Yes. If we're sort of scanning about and like, well, malicious service, oh, blacks, I don't know, but that's different, race is different than age. You get to this Justice Scalia point of looking for historical analogies

as like a drunk trying to find his keys under the lamppost. Yeah. You're looking where you decide to look. historical analogies as like a drunk trying to find his keys under the lamp post. Yeah. You're looking where you decide to look. All right. So David, related to that though, we have a district judge who has done something pretty close to what I would call malicious compliance with the text history and tradition test on guns.

This is Judge Carlton Reeves over in Mississippi. And basically this is a guy who was prosecuted for possessing a machine gun in his house. That's definitely been illegal. And what he says is like, well, look, I'm supposed to look at whether the gun is dangerous. Yeah, it's dangerous, but so are handguns and so are semi-assault rifles. This one's a little more dangerous, but those are all dangerous. So, like, it's clearly not, you know, dangerous isn't clearly the dispositive test. And then unusual,

what determines unusual? There's a lot of these out there. Is it this number? Is it four times this number? I don't know. Doesn't seem that unusual to me. So, nope. You're allowed to own machine guns. A bar on owning, possessing machine guns violates the Second Amendment. And then he has this section at the end, David. I will read a piece of it. Wow. Wow. On this section. Yes, please go, Sarah. The age-old problem of judging is how to honor an individual's constitutional rights and respect the will of a democratically elected

majority. We look to history to try to find a satisfying answer to that dilemma. But this court has its doubts that the historical approach wielded in these Second Amendment cases is the right one. Bruin specifically requires judges to follow history and tradition, evaluate

whether new laws are relevantly similar to past laws, and determine whether certain firearms are dangerous and unusual. These tests are deeply concerning to many. They will continue to generate confused and confusing lower court precedent. But step back from that for a moment. At their core, the Supreme Court's recent Second Amendment cases are predicated upon a lack of trust. The Heller-McDonald-Bruin decisions did not trust that local and state lawmakers had protected their citizens' Second Amendment rights or would protect them going

forward. The decisions also expressed doubt that federal courts were doing enough to protect those rights. New boundaries were set. They used history as the first and most important test of legality, as if history would be a more trustworthy and reliable guide to constitutional law. The ultimate irony is that the version of history endorsed in these and other decisions has itself been deemed untrustworthy by actual historians. The experts don't think lawyers and judges have gotten it right. And unfortunately, the lack of trust inherent in these decisions cannot be untangled from the public's declining trust in Article 3 itself. Oh, man. Whew.

As one of those tasked with applying these new tests, the court understands the confusion. It feels the frustration, but it's doubts and the discourse, no matter how serious or justified, cannot deter it from faithfully applying the law, even if that application is later to be found erroneous. I mean, you know I'm sympathetic to some of this.

I think the trust part is a bit much for me. Like, we don't trust local governments to not discriminate on the basis of race. Like, that's not how we do this. And we've said the courts are meant to be counter majoritarian. That by definition means a lack of trust in majorities, which are represented in majorities, which are represented in state and local and even federal legislative bodies. But boy, the point was made. And I do think this is a bit of malicious compliance in the sense that I do think you can distinguish some amount of dangerousness and what is clearly a lot more dangerous. And I think you can distinguish unusualness. Judges have to make these kind of judgment calls

all the time, but it will serve a purpose when this is overturned. And when they have to say like, well, yeah, handguns are dangerous, but this is a lot more dangerous. And somehow we're drawing that line. Like making them draw the line will serve a purpose. Yeah, it's an interesting decision.

I understand the purpose that it will serve. I do not think this is the way to do this. This is the way to serve the purpose. I mean, because if you're looking at language from Heller to Bruin to Rahimi, it's quite clear. I mean, whether or not the Supreme Court believes that machine guns and private hands are something that the Second Amendment is going to require or permit. Permit's the wrong word. Second Amendment would require, sorry, require permitting citizens to purchase machine guns.

There's all kinds of indications from the President that this is not, that the Second Amendment is not going to protect my right to, for example, get an M60 machine gun. And so, you know, this is defiance more than confusion, let's be honest. I totally sympathize with confusion when it comes to lower court judges trying to sort through Bruin and Rahimi. This goes a little bit beyond confusion and moves into defiance. And with that, David, thus concludes this episode of Advisory Opinions. Our next episode will be recorded live at Stanford Law School in beautiful Palo Alto, and it's extra beautiful when you live in D.C. in February.

So looking forward to some nice weather, hopefully. And we'll see you out in Palo Alto next week.