Advisory Opinions - Can Marijuana Users Be Barred from Owning Guns?

Episode Date: March 5, 2026

Sarah Isgur and David French break down United States v. Hemani, a Second Amendment case involving an alleged user of a controlled substance in possession of a gun. They then discuss two interim docket decisions, one on elections and congressional districts, and one on parental rights and substantive due process.The Agenda:–Guns and drug use–Downtown Bonkers Town–Interim Docket: California Parental Rights–New York Redistricting Emergency Stay–War powers resolution debateShow Notes:–United States v. Hemani, Animated Explainer | SCOTUSblog + Briefly Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. I'm Sarah Isger. That's David French. As promised, we will break down that Hamani argument about being an unlawful user of a controlled substance while in possession of a gun. And then two interim docket decisions, one on elections and congressional districts, another racial gerrymander, question mark. And one on parental rights and substantive due process. Did the conservative suddenly fall in love with substantive due process again?

And lastly, our promised war powers discussion is that 1973 war powers resolution a thing or not a thing? Do you get a free 60-day war pass from Congress? All this and more on advisory opinions. At Desjardin Insurance, we know that when you own a law firm, your bar for everything is high. That's why our agents go the extra mile to understand your business and provide tailored solutions for all its unique needs. You put your heart into your company, so we put our heart into making sure it's protected. Get insurance that's really big on care. Find an agent today at Dejardin.com slash business coverage.

You might be tempted to let Taco Bell's new Lux Value menu go to your head. Because 10 indulgences for $5 or less makes you feel fancy. Like you might think you need cloth napkins. Well, you don't. Just use the ones that come in the bag. Don't let the Lux go to your head. Okay, David, before we jump in, I finished recording the audio book for my book. Congratulations. That takes old. That's energy. That's effort there.

It was physically demanding in a way I wasn't expecting to talk nonstop for seven hours a day for multiple days in a row. Yeah. Yeah. That's nuts. And then it just blows this seven hour hole in your schedule. Well, yeah, that for sure. Yeah. Yeah. But, you know, I was in this little, tiny little red room. I had a director, a sound producer, and like the director literally just follows along. And, you know, it's very much like being in Hollywood. Yeah. Oh, yeah. Minimal difference. Remindered to everyone, if we raise $7,500 for the Supreme Court Historical Society's hometown program for students like Abriel, Chris Ristie's going to come back on. If you buy a copy of Last Branch Standing, we are donating $30 to the hometown program, et cetera.

etc, et cetera, et cetera. So get your orders in before March 17th, and I will report whether we reached our $7,500 goal. David, it's time to jump into Hamani. Hopefully everyone did their homework that we assigned. There was a little animated video to get everyone pumped for the Hamani oral argument laying out the stakes of this case. So 18 USC 922G3 prohibits unlawful users of control. controlled substances from possessing firearms. Now, a separate part of that talks about people who are addicted. This is not that part that he was charged under. Hamani uses marijuana.

Honestly, the record's not great here, but like we all sort of accept maybe every other day, but we don't know how much he's using every other day. But yeah, he uses marijuana several times a week and was charged with having a firearm, even though he was not, or at least the government did not contend that he was using marijuana at the time that he possessed the firearm, just that he likes smoking a lot of pot and he possesses a firearm. Separate things. And that's all that's required under the law. So the question is, does this violate the Second Amendment? And again, separate from if he were addicted to a drug, if he were using the drug while possessing the gun. All of those are separate questions, not at issue here. And as the justices said, David, this was kind of a weird test case for the government to bring. I mean, marijuana, first of all, as your drug of choice for this case. And that it's like just all of the facts are the least helpful for the government set of facts you could possibly have for 922 G3. Yes.

This is the opposite of Rahimi in so many ways. I mean, it's the opposite of Rahimi. And so, you know, if you're going to just apply that the bad man stays in jail shortcut that we often do, which is just a true. We've had some justified put back on how broad brush that is, I'd push back on how broad brush that is. But it is, there is a trism, it's more of a trism around case selection. How do you frame legal issues and what kind of cases set up, what kind of legal issues? But in this case, what you have is a situation where the potential injustice of 922, G is more apparent in this case than many other cases.

And that was absolutely hovering over this entire thing. And I found the oral argument both delightful and really interesting in a substantive level. I mean, can we get our biases out of the way first? Because I think generally speaking, I'm the libertarian on this podcast and you're more of the social conservative. And so I'm curious how you felt going into it. But I just want to explain because for me, I don't know what to say. I know what I should think about this case. I should be very sympathetic to Hamani in my little libertarian world.

And I'm not at all. I'm like, if you use illegal drugs, you shouldn't have a gun. I don't know why this is interesting to anyone. Like, no, like you're, you've already shown that you're breaking the law. So why are we doing this? First, I think I'm every bit, if not more, of a civil libertarian than you are. I'm definitely socially conservative, but when it comes to the Bill of Rights, I'm a pretty libertarian dude.

I meant more like life vibes than law. Yeah, yeah, yeah. Well, life vibes. I'm the libertarian, the libertine, and you're the good guy, upstanding, you know, church killer. Well, so I had the opposite inclination. I'm absolutely so intrigued by this, Sarah, because I had the absolute opposite inclination. I was very much taken by the Justice Barrett analogy of, let's suppose you have a spouse who has an ambient prescription, and then you're struggling to sleep one day, so you take it in an ambient. Your spouse is sitting there. It's the drug has the exact same

effect on you. And it is not, there's no problem with him taking an ambient. every night under a prescription. And they're going to be able to have a gun. There's no controversy. But the moment the spouse takes it for the same purpose, same effect, same degree of danger, then what, they can't own a gun, they can't possess a gun. That strikes me as nonsensical. Very sensible to me.

Yeah, you were prescribed the drug. So you are breaking the law. You know it. And look, there's a mens rea aspect that we'll get to when we get to justice. Kavanaugh. And I just say all that, like, I entered this case not being very sympathetic, but each of the justices had, I thought, illuminated really interesting points in the oral argument. Let's start with the justice who got the most attention in the oral argument, Justice Gorsuch. His point was at the historical threshold for being a habitual drunkard,

which is basically our historical analog under the text history and tradition test that habitual drunkards could be subject to all sorts of restrictions at the founding. Okay, so the historical threshold for being a habitual drunkard was astronomically higher than what the government claims qualifies as an unlawful user under 922G3. He noted that the American Temperance Society considered eight shots of whiskey a day, merely occasional drunkenness. And then he goes on to say this, John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day.

Thomas Jefferson said he wasn't much of a user of alcohol. He only had three or four glasses of wine a night, okay? Are they all habitual drunkards who would be properly disarmed for life under your theory? He asked to Principal Deputy Solicitor General Sarah Harris and she said, no. David, first of all, before we start thinking that all of the founders were just total lushes, important to note that one of the main ways you could die back then was drinking water. Water was very dangerous. So if you wanted any sort of liquid, whiskey was much safer, which is why you're going to see all sorts of whiskey drinking up and through the mid-19th century.

Can you imagine the tolerance? Like if you're drinking a tankard for breakfast of ale or whatever, hard cider, whatever it's going to be called, wow, you're going to, you've got some tolerance. Though there is also some evidence that their alcohol was far less alcoholic than ours at lower alcohol levels. But regardless, Gorsuch's point is maybe the standard for unlawful user needs to be really, really high. Something like the habitual drunkard, which would have to be a lot more than eight shots of whiskey a day per the American Temperance Society. Okay, now let's do bear it. Her core concern was that there was a disconnect.

between why drugs end up on the controlled substances schedule and actual dangerousness with firearms. She has the Ambien hypothetical that you mentioned. One spouse takes Ambien with a prescription and the other takes it without one. The drug's pharmacological effects are identical. So the disarmament isn't really about the drug making someone dangerous. It's about the lawfulness. And I'm like, yeah, exactly.

I don't see the problem here. but I get it. You do. And it makes sense to me. I'm not saying it's nonsensical. I totally get the dangerousness point. Brett Kavanaugh, mens rea. How do you know you're habitual? What does this even mean? Is this sort of a vagueness problem in some ways? He also points out this someone's status as a habitual user versus their action. So for instance, could you ban someone from owning a car based on this same rationale to which again, my answer is absolutely. If you are a habitual user of illegal drugs, we should ban you from driving a car. No problem with that, actually. Same. I don't see the difference between the gun ownership and the driving a car in terms of the reasons for doing it. So I'll be

curious whether they distinguish if they uphold this law, which I don't think they're going to, why you would be able to ban someone from possessing a gun, but not. possessing a car, given the actual effects of drugs on those. Okay. And then here's Alito. Basically, his point is alcohol is just different culturally, which of course it is, right? We have always considered alcohol to be something people can use in various, you know, amounts socially. There's a reason one might drink alcohol that's very different from drugs. And then, David, here's Alito and Jackson. making some really interesting points, I think, on the flaws of text history and tradition as a doctrine and as a test. But I'm not sure Alito knows he's making the case.

So although Alito, by the way, has never been the most originalist of the justices on the court at all. Right, right. But here's him. Most of the commonly used illegal drugs either had not been invented at the time of the adoption of the Second Amendment or the adoption of the 14th Amendment. heroin was invented in 1874. Cocaine, 1855. Methamphetamine, 1893. Fentanyl, 1959. Marijuana existed, but my understanding, yeah, hemp was grown for industrial purposes. My understanding is that it was not consumed to any degree by people in the United States until at least the beginning of the 20th century. Is that consistent with your understanding? Ms. Harris, that is correct, Justice Alito. So we don't know with the founders, what those who adopted the Second Amendment or the 14th Amendment thought about illegal drug use per se. Indeed, Justice Alito. All right.

And then last one, Justice Jackson, who I think makes, again, some great points on the Bruin Rahimi problem here. So this is a bit long, but I'm going to read the whole thing because I think she lays out the case pretty well. So I guess my problem is it might be a fair judgment, but conceptually, that is precisely what the Bruin test. prohibits, that we don't credit the judgment of the modern legislature about who is dangerous and who needs to be disarmed as a result. The entire point I thought of the Bruin test was to say that the only thing the modern legislature gets to do is follow the judgments of the founding era legislature around who was dangerous and who gets to be disarmed. So I think your argument sort of falls apart under the Bruin test to the extent that you are saying the reason why there are

these historical analogs is because the historical legislature was making the same kind of determination, that they were making a determination that these people, habitual drunkards, were dangerous. And you see the modern legislature, Congress, is making the same kind of dangerousness determination. And so, therefore, we have a match. And what I'm saying is that that can't work because the modern legislature, under our Bruin test, which again, note Justice Jackson hates, only gets to do the policy judgments of the historical ones. we have to see that the historical legislature, going back to Justice Gorsuch's point, was making a determination that someone who only drinks or takes an intoxicant once every,

you know, other day, and is not doing so while he is using the firearm, can be disarmed. And if we don't see that, then the fact that today's Congress thinks that that person is dangerous is irrelevant under the Bruin test. And she goes on to say, and I guess I'm concerned that Bruin and Rahimi are going to be allowing for arbitrary identifications of analogs and producing inconsistent results. You were here in January with respect to the Wolford case when you argued that historical, this is the Hawaii gun case that we talked about in December, David, when you argued that historical anti-poaching laws were different enough from what Hawaii was doing that it's unconstitutional. Here, you are arguing that historical laws that have

nothing to do with guns, very little to do with unlawful users of intoxicants, as you know was going on in the history are similar enough to cause this law to be unconstitutional. I don't understand how this works anymore in a meaningful way. She's got a point. Now, nobody who listens to A.O. regularly is going to think that that statement is going to surprise it. I just said it's going to surprise anyone who listens to AO. But I thought that was a very succinct explanation of why this is a problem. But when I look at this case, Sarah, let me put my disagreement with you in this context.

I feel like a lot of, we really haven't wrapped our minds around whether gun ownership really truly at its core is a right or a privilege. So if it's a right that is rooted in sort of this fundamental notion of the human right of self-defense, this is sort of a fundamental human right of self-defense.

Then you're going to look at it from the standpoint of, well, you're going to have to have a showing. that you're going to have to show me, and this is the way I have to put it, dangerous weapons and dangerous, you're going to have to show me that I'm dangerous before you can deprive me of that right. Now, what I think about when I was looking at this and thinking about, now, what is it about taking an ambient that makes you any, that's not been prescribed to you, that makes you any more dangerous than somebody who says speeds a lot. But somebody who speeds a lot is objectively a more dangerous human being than somebody who took their spouses ambient.

And yet we would not say about somebody who speeds all the time as a long record as speeding tickets, well, you can't exercise your right of self-defense because you have broken the law. And it seems to me that we have to really get into our minds that the Second Amendment is rooted in a fundamental human right. And then that then gives us the framework for going forward as opposed to guns are dangerous owning a gun as a privilege. And there's a whole list of things they're going to put out there to say that even if you do this thing, even if it's not dangerous and it doesn't show that you're dangerous, you can lose access to this human right. That's how I process it. So I don't see illegality as a synonym with dangerousness. And only dangerousness should deprive you

of this right, if that makes sense. Here's where I'm going to tend to agree with you. And this was a point that Justice Kavanaugh made quite well. When we look at where most state laws are, they are either specific about addiction. There was some discussion over what the difference is between addiction and this sort of habitual user stuff is, unlawful user. I actually thought this was sort of helpful.

It's the same amount of drugs. One person has a compulsion to use that amount of drugs and one person chooses to use that amount of drugs. But the amount of drugs we're talking about, are probably the same under either of those. But we could imagine, under your point, David, there being a difference in how we want to treat someone who cannot stop using that amount of drugs.

Right. Versus someone who is choosing to and thinks, you know, I'm still able to hold down my job, I'm taking care of my family, versus someone who does not have the choice, the ability to be able to stop. Justice Kagan used an example of ayahuasca, a wildly hallucinogenic drug

that is not addictive. You know, we can presume, this wasn't necessarily her point, but like we can presume someone choosing to use ayahuasca is, you know, putting their gun away and their car keys

and everything else, whereas someone who is addicted to using a drug, maybe not. So when we look at all these state laws, they tend to focus on addiction and or they tend to focus on someone being convicted

of using illegal drugs, selling, you know, illegal drugs, whatever that is. And I admit that that is what I'm trying to get at, is this idea that if you cannot conform yourself to not using illegal drugs, then you shouldn't have a gun because I think there is a per se dangerousness there. While I think that Congress needs to narrowly tailor it, I don't think it has to be perfectly

tailored. And so, yes, the Ambien example is a good one at the outer ends. But again, that person could go get a prescription for Ambien. They're choosing not to. They are choosing to use an illegal drug habitually, not just like they couldn't sleep that one night. And that, yeah, maybe they don't need to be possessing a gun. David, how do you think this case is actually going to come out based on the oral argument? Is it acceptable to lump this into the Calais case and say, I don't know? If you push comes to shove, I think they're going to probably, even though this seems like a tough vehicle, it's just difficult to draw lines short of illegality and illegality. So, for example, if you're going to have the occasional ambient, you know, the regularly

dipping into your husband's ambient jar, which I like that. That was the actual phrase used in the oral argument. It made me imagine like you've got a candy jar. You've got an ambient jar. Do not mix the two. Anyway, I felt like the line drawing problem here, Sarah, is going to be the problem. That it's just easier. It's just easier to say, okay.

illegal drugs. And because some of the drugs, which came up during the oral argument, not all of these are the same. Taking your spouse's ambient at night is fundamentally different from like PCP or methamphetamine. They're not all the same in dangerousness. And so if push comes to shoves there, I don't know. I feel like the line drawing issue is really out there and that kind of your default position, which is it's illegal. You don't have to do illegal stuff. If you want to own a gun, you know, come on. We're not asking a lot, right? And so I feel like that that may win the day. What do you think? Oh, I think they're going to strike it down and say there has to be some tied dangerousness and that this is too attenuated. We're being unusually solicitous

of each other's, each other's, yes. Alito and the chief seem to be on my side slash agree with you on the outcome. But I think, I mean, Gorsuch, our libertarian is flying the libertarian flag high, Barrett seemed to agree. By the way, Barrett, who I consider actually to be sort of a, like the normie, the most normal person on the court in a lot of respects, had never heard of ayahuasca. So after Justice Kagan walks through ayahuasca, Barrett says, I was just going to give you a variation on Justice Kagan's hypothetical. I have never heard of the drug that she was, is that real? I love it. But Sarah, in her defense, it was shockingly, recent for me to know what it was. I mean, like, there was a show starring Nicole Kidman where she

runs a clinic where they're like microdosing and everybody slowly gets more insane. It's a very ominous show. And that's when I was introduced to like, I knew stuff was out there, but the name of it. I just want to be clear, David, I never thought you were the normal one. Oh, okay. I misunderstood this whole exchange. I am looking forward to this decision. Obviously, the outcome itself will be interesting. but more for how we're going to keep distinguishing Bruin from Rahimi, where remember, you know, Bruin 6-3 on the shall issue versus May issue licenses in New York, Rahimi is the domestic violence restraining order. Rahimi's then 8-1 with Justice Thomas being the sole dissenter saying, you guys aren't doing text history and tradition, right? The guy who wrote Bruin creates the text history and tradition test.

And he's saying, no, that historical analog needs to be pretty freaking perfect. And, you know, Gorsuch is like, well, I mean, it's just close enough. Like, it's pretty close. Sure, there were domestic violence restraining orders. And, you know, Justice Jackson walks through this as well. It's like, what are we doing here? And, you know, what we've described, David, as the, what I've described as the vertical problem, right?

How exact does it? Is it just dangerousness? Because that doesn't do much work. Or is it intoxicants? Oh, that's not great here. but then you have the Alito point, which I've made as well, which is, what if the problem didn't exist? But this is a problem for all of Second Amendment jurisprudence in my mind, because, sure, cocaine didn't exist. Marijuana and its use that we use it for now didn't exist. But you know what else

didn't exist? Assault rifles. Right. You know, any of the type of high-powered guns, not just in terms of the speed with which you can fire bullets, but also the deadliness of those. Those bullets are quite different. The range, the velocity. I mean, yeah, yeah. So, like, you're proving too much, Justice Alito. The founders also didn't have the gun problem, just like they didn't have the drug problem. It's problems, new problems all the way down.

That's why I really do think that text history and tradition is going, there was a lot of celebration, I think, in the Second Amendment world when text history and tradition was first articulated. I honestly wonder how rights protective is. it will ultimately end up being versus a tears of scrutiny approach because we're doing this right now, which just feels very loosey-goosey. Is that the appropriate legal term? It's very uncertain. I hope that your prediction is correct and my prediction is wrong. But where do you see the three liberal justices falling on this? Oh, I just think, remember in Brahimi, they write sort of this like,

we told you this was going to be a problem in ruin. So sure, we agree with you on this, but your test sucks. I think we're going to see something like that. What's great about this term is that Wulford, the Hawaii case on whether Hawaii may presumptively prohibit concealed carriers from going into private property, like where the default is, if you remember in that case, David. I love that they're getting decided the same term because the tests have to match. and we did have those anti-poaching laws,

which seemed like a much closer analog than the habitual drunkard laws, even though I think the vibes theory would say that you strike down the Hawaii law and uphold the drug user law. But the text history and tradition test comes out differently than the vibes and those two. And that's exactly what I want.

I want the clash of vibes versus doctrine to actually discover more about what the doctrine is. All right, David, when we get back, we're moving dockets from the merits docket over to the interim docket. Two decisions. One, really shocking to me. And one, the least shocking interim docket decision of the entire interim docket in the history of the interim docket. We'll be right back. Where are my gloves? Come on, heat. Winter is hard, but your groceries don't have to be. This winter, stay warm. Tap the banner to order your groceries online at voila.ca. Enjoy in-store prices without

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student consents. And the facts for the plaintiffs in these cases were, you know, pretty heartbreaking. I'll just read one example, although there were many examples given. Teacher sued, parents sued. Here's John and Jay Poe. They have a religious objection to gender transitioning, but were not told by their daughter's school when she began to present as a boy and use a male name and male pronouns during her seventh grade year. In parent teacher meetings, no one told the pose about their daughter's transitioning or referred her using the male name and pronouns that were used at school. At the beginning of their daughter's eighth grade year, she attempted suicide and was hospitalized. Only then did her parents learn from a doctor that she had gendered dysphoria and had

been presenting as a boy at school. Just months after being discharged, the pose's daughter was re-hospitalized and held there involuntarily because she was a risk for self-harm. At a new school in ninth grade, she once again began identifying as a boy. Contrary to the pose instructions, teachers and school officials continued to use a male name and pronouns for their daughter, citing their obligations under California state law. So, David, this was, drumroll, a six-three decision along ideological lines. There's three different things to discuss here. one, the merits of the decision.

So in this case, they are upholding a district court injunction, preventing the law from being enforced. The Ninth Circuit had reversed that. So they're reversing the Ninth Circuit and allowing the district court injunction to go back into effect. So we have the merits of this, the merits of whether parents, whether schools can withhold information from parents that the parents ask for and the school can. and the school can say, like, nope, we're not going to tell you. It actually appeared to be close to nine zero on the merits, potentially. There wasn't a lot of disagreement on whether this law was constitutional. Then there was the question on substantive due process. Is that what we're doing here? Because that was a dirty word up until, I don't know, yesterday. And then what we're doing on the

interim docket, the fact that this was not a merits decision, but it was an interim decision. So, David, let's start on the merits. There is, by the way, a written percureum opinion from the majority and then a concurrence by Justice Barrett. And then we have a dissent from Justice Kagan. Okay. So just from the per curiam majority opinion, basically, one, on the free exercise, you guys didn't understand Mahmood.

The parents can opt out of books that violate their religious beliefs in schools. What did you guys think we were saying? And the parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs. California's policies violate those beliefs and impose the kind of burden on religious exercise that Yoder found unacceptable, citing Mahmood. Indeed, the intrusion on parents' free exercise rights here, unconsented facilitation of a child's gender transition, is greater than the introduction of LGBTQ storybooks that we can considered sufficient to trigger strict scrutiny in Mahmood. You guys, Night Circuit don't understand

Mahmood. Let us spell it out for you. This is a joke, right? Like, what were you thinking? And then on the due process question, under long-established precedent, parents, not the state, have primary authority with respect to the upbringing and education of children, Pierce versus Society of Sisters. The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children's mental health. Okay. So, David, just on the merits, I find this law so egregious as a parent. It sort of stuns me that even in the bluest of blue states, this would be considered acceptable.

So, Sarah, you know how we talk about whether something is Bonkers Town or in the suburbs of Bonkers Town or the Exerbs? this law was downtown bonkers town like the heart of it even before Mahmood even before my mood like the idea that you could look at the history of precedent around parents rights in public schools and say that like to take the example of these parents who they learned their child was transitioning at school when the child had a suicide attempt and that was their first inkling and the child had been doing it openly I mean that That is remark. Those facts are absolutely remarkable. Just remarkable. And this sort of goes back to the right privilege discussion that we're talking about earlier. If you have a fundamental right

in the care and upbringing of your children, you can only have that. You can only have the material aspects of that right revoked when there is proof that you, you, the individual, are abusive. You, the individual, have done something terrible. That's important here for those listening. The law, it was universal. No matter what, unless the child says, affirmatively, you can tell my parents. The school may not tell the parents. The student does not have to allege that their parents would even disapprove or that there would be potential dangerousness or harm to the child if the school told them.

That is a very, very different scenario and would be a very different law, actually. Very different. It is simply a minor having to make a decision over whether to tell their parents something. And the justification for these laws rested on basically a presumption of abuse that if the reason why this exists is to protect trans kids from their parents' potential abuse, and with no requirement of a showing that the parents were actually abusive. Now, if there was a showing that parents had been actually abusive as we have traditionally defined abuse, and by the way, disagreeing with gender identity politics is not abuse or gender identity ideology is

that that is not the definition of abuse, right? And so if you have evidence that parents are abusive as we understand abuse, yeah, then different things start to lock in. You've got, at this point, you've got mandatory reporting obligations. You're so, there's a lot of things that should be unfolding in that moment if you know that a parent is abusive. But in this circumstance, to essentially take away from parents access to information that's a fundamental importance about their child because you're just going to presume that they're abusive. That's why I say suburb, I mean, not suburbs, downtown, downtown.

downtown bunkers town with this law. It's also this fundamental difference in philosophy over what the role of government is to the individual, which is sort of fascinating. It reminds me back to that life of Julia cartoon that happened during the Obama administration. You know, at every step of Julia's life, the government is there to step in to help her or prevent a problem. This law presumes that it is the primary caretaker to children is the government. when like even if you thought philosophically that was a good idea, it's just literally not what's happening in terms of who actually is raising children. Class sizes are too big to think that that teacher is raising each child in that class knows their mental health.

And obviously, in the case of the suicide attempt, the information the parents could have had would have been pretty relevant because they have things that they see that are going on at home. Right. Exactly. Anyway, on the merits tragic. But to be clear, nobody. the dissent, majority, concurrence, nobody defends this law on the merits constitutionally or morally. Okay. Right. So let's talk about substantive due process, David. Or to put it, you know, in terms that we've talked about on this podcast more often,

unenumerated rights, this idea that there are things in the Constitution that are fundamental and that you do have a constitutional right to the government not to interfere in those rights, but they didn't list them. The problem has always been that judges then all of a sudden find a lot of unenumerated rights that fit with their current cultural, moral, political likes of the day. And this is how substantive due process gets a bad name, starting with Lochner and going through the Warren Court and Griswold. And this idea that the 14th Amendment says the government can't take life, liberty, or property without the due process of law protected substantive rights because we decided to talk. totally like whole the privileges and immunities clause in some deep, dark closet in the basement. We did a whole podcast, David, on this a couple months ago.

Highly recommend it if you want a deeper dive historically into substantive due process and unenumerated rights in the Lochner era. And then how that's a bad name with liberals, then it becomes a good name with liberals, substantive due process in the Warren court, then a bad name with conservatives. And basically, that's where we are. David, we have conservatives, Justice Barrett writing in this concurrent saying, yep, we're doing substantive due process. What's your point? Fascinating. Okay, so this really is going back to the argument over what Dobbs meant truly. Did Dobbs mean the end of row or did Dobbs mean the end of row

and the rights secured by substantive due process? And now, Alito wrote quite clearly in the actual opinion that we're not touching that other precedent. This gets to, I will never forget this. you know, I'm coming in and I'm doing an event this summer, or the summer that Dobbs was decided. And I was called it. We realized all of our panelists on this are pro-choice. We need a pro-life panelists. Will you do it? Yes, I'll do it.

And so I go in and defend the decision in front of a very, very, very, very, very pro-choice crowd. And when I was explaining the abortion elements of the decision, they were largely kind of, you know, just taking it in. Like, okay, I want to hear this explanation. When I then said, I do not think, based on what Alito said, that this will mean the end of the other substantive due process cases like an Obergefell, the crowd reacted audibly angrily towards me. It was almost as if they were saying, oh, you're just blowing smoke to try to make us feel better, that this is not actually what's going to happen. This court is going to roll back all of that substantive due process. And I said, I truly did not think so. I did not think that the court was going to be overruling all of that prior precedent.

And Justice Barrett comes in here and basically gives the same answer that I gave a couple of years ago, which is we haven't touched that. We haven't touched that. It's very interesting how these things work. On the one hand, you know, if you're looking at this, a lot of folks who are on the cultural left would be upset with the outcome of this case. But on the other hand, if you're, I don't know if you've seen this. there's just this new legal effort to try to overturn Obergefell that's sort of unrolling right now. And if you're advocating for that, the Barrett concurrence is not your favorite day.

Because the Barrett concurrence is basically saying, no, at least from her perspective, preexisting non-Rowe substantive due process precedent remains locked in. Yeah, I mean, I think her point was, Roe failed on stare decisis factors, not substantive due process, isn't a thing. If you just look at Roe, there was no history of abortion being an unenumerated right. So substantive due process, as substantive due process, did not justify Roe or Casey, which, you know, largely replaced Roe, that's how you get Dobbs. It has nothing to do with substantive due process. And yes, conservatives have a beef with substantive due process being sort of a, you know, whatever the judge wants type intermediate scrutiny idea.

in reverse, where you go, like, find rights that feel good. And maybe we do have a problem with substantive due process. But Dobbs wasn't about that. If there was any unenumerated right that was fundamental at the founding, surely it was the idea that parents get to raise their children, not the government. So we may argue over substantive due process at the edges. We may argue whether it's in the due process clause or the privileges and immunities clause, but this ain't that case. So, yeah, thanks for playing. Yeah, exactly. What Justice Barrett does very well is say, look, here was the test for substantive due process and Roe failed it. It was improperly applied. There is no history of abortion as a right that the founders would have contemplated as being implicit to the concept of ordered liberty, much less existing and being understood as one of those unenumerated rights. So, you know, it really was the case. My view of Dobbs, it really was the case that this was just different.

And guess what? I think everyone's known that from the beginning, including, you know, Ruth Bader Ginsburg, when she was criticizing Roe back in the 1990s. This was different. By the way, it matters who joined this concurrence by Justice Barrack. Because I said this was a six-three case. But it actually is a little more complicated than that. We have the per curiam from the majority.

So we don't know who authored that. Justice Barrett joined by the Chief Justice and Justice Kavanaugh. So we're back to our traditional 333 model with our three in the middle. Then we have a dissent written by Justice Kagan, joined by Justice Jackson. And then we have Justice Sotomayor saying, you know, she disagrees with the grant. And you have Justice Alito and Thomas saying they agree with the grant. Why didn't Justice Sotomayor join the dissent? Why didn't Justice Gorsuch say anything at all?

we don't really know. I can assure you that the reason justices Alito and Thomas didn't join that concurrence have everything to do with substantive due process. And again, if you're really into that sort of thing, definitely go read the concurrence, but read it with an eye toward why Alito and Thomas didn't join it, what they're saying about substantive due process that Alito and Thomas find objectionable. All right, David, let's talk about this last portion that's important in the Bonta decision here. And that's the interim docket part of this. Justice Kagan's dissent, I think, lays out a very strong case that even if, and this is the perfect case for it, right? We all agree that this law is downtown bonkers town, but this isn't a merits

decision. This isn't, you know, a cert. We had options to grant cert. You didn't grant any of those yet. And instead, you've reached into this case that's been going, you know, up and around since 23. The district court is the only one who's done a full merits review of this. The Ninth Circuit, on their emergency docket, panel opinion, stopped the injunction, so stayed the injunction to allow the law to continue to be effective. The plaintiffs in this case are also trying to go to the Ninth Circuit on Bonk. At the same time, they went to this court's emergency docket. Like, what are we doing here, guys? I thought she made a pretty persuasive case on this, David.

the one thing that I thought she was really unpersuasive on was her complaints about the majority locking themselves in with a written opinion. You definitely can't have it both ways. I cannot hear complaints about how these unexplained orders, you're not giving guidance to the lower courts, you're giving too much guidance to the lower courts, you're locking yourself in when you haven't heard the merits and you haven't had oral argument. I think it's a very strong case to make that the interim docket is now going to be the docket of choice because the court is willing to step in in situations like this. Very unpersuasive, though, that's why they shouldn't write anything. Like, I agreed that they maybe shouldn't write stuff, but you guys lost that argument when you complained,

called it the shadow docket, the emergency docket for years because they weren't writing anything and telling you how all the justices voted. And now that they're doing that, you're complaining about that. that's not going to work. Yeah, I mean, I thought she made a lot of really good points. I really did. I mean, I think the desire of the court would be less emergency docketing, more writing. Like, I think that if you have a consensus, the consensus would be fewer emergency docket cases. When you take the emergency docket cases, at least write something. But where is the right line between more and less? Because there's going to be some that are going to have to be taken. I mean, there's just going to be some number. And I think what Justice Barrett was saying here is, you know, while we're looking at this case,

you actually have parents who are being cut off from access to information about their children. There is a degree of urgency here that's different from the urgency you might have about disputes around money or back pay or, you know, budgetary figures or things like that that, yeah, maybe we don't need to intervene when we're talking that quickly when we're talking about dollars and cents versus fundamental rights. And maybe, you know, and that could be worth articulating as a doctrine is to, okay, we're going to do it less. But these are the circumstances under which we will do it less because you get close to this. When you say from going from more to less, you're always going to be vulnerable to the, oh, how convenient. The fewer

cases that you're taking happen to be the cases you most want to take, which would be sort of like that cynical outside critique. Well, when we've talked about the prongs for the interim docket, the prong that we were fighting about was the likelihood of success on the merits. That, you know, if you think this case is likely to come out one way, you want them to take it. And if you think it's not going to come out that way, you don't want them to take it. Basically just the merits analysis. What I really like about this is, again, there's no disagreement on the likelihood of success on the merits for the merits case if it were to come back to the court.

The disagreement here is perhaps on the irreparable injury prong. Justice Barrett thinks the irreparable injury while this case is pending is just too great. I'll note, however, the case was pending on the emergency docket for more than a couple months. So, okay, maybe. And, you know, look, this will take potentially years to get back up. So years and months are very different. I'm not disputing that. Or they could have been converted to a petition for cert and scheduled it. That's true. The other thing that I will note is that the Ninth Circuit's decision to stay

the district court injunction was the Ninth Circuit's emergency docket. So the other problem with complaining about the jumping in here is like, so why can the Ninth Circuit do an emergency docket reversal of the district court, but the Supreme Court can't? Because if you remember back to that Idaho versus Pocke, or Po, I think it was Idaho versus Po. And there they said, well, when the two lower courts, the dissenters said, when the two lower courts agree with one another, we shouldn't step in. Well, what about when the only court to look at the merits is on one side?

And then the Ninth Circuit emergency docket flips that lower court, and the Supreme Court wants to go back to the status quo set by the only court to review the merits. That could be a standard all on its own. But I think you revert back again to what Justice Kavanaugh said, At the end of the day, a lot of this comes down to likelihood of success on the merits. And I think it's pretty clear that there was an egregiousness factor here that's doing a lot of work that is implied, but not explicitly said. There's something that's consistent between, well, when you're looking at this case, and both Mahmood and this case have come in circumstances where you have conservative or more conservative parents who are intervening to block sort of very, very left-leaning, policies. As you see that that Life of Julia kind of version of the state directing the lives of people

rising on the right, because what's very interesting about the change in the right is it seems to be moving much more to the left in terms of theories of state power. In other words, how much do we want to be in this position where we're telling you how to raise your kids? We're directing you as to sort of more of what is our version of the moral path, et cetera, as we're seeing the return of the Ten Commandments and all of this stuff into schools, you're going to have more left-leaning parents running into court looking for our libertarianism, Sarah, and in appealing to our libertarianism. And I really want people to think, as they're thinking about their very urgently felt underlying world, they're very urgently felt and sincerely felt underlying worldview, whether it's rooted in religion, you know, a more secular humanistic view, etc. That really, really think hard about how much you want the power of the state to be invested in your opponents who possess the same deeply felt, sincerely felt impulses from the other direction.

And how much do you want the state to have the, to give them the authority? And we're beginning to, like, I think, discover in real time, Sarah, once again, the values of Federalist number 10, which is we could fight all day about whose worldview is going to win and we're never going to conclude that fight. We will never conclude it. We're all too different. We all have too many competing worldviews. So at the end of the day, we're going to have to come back to figuring out how we're all going to be in this thing together. And that's where the small, very merry band, very disorganized band of libertarians comes waving their flag saying, Now is our time. This is our moment.

So I think I've defended the interim docket about as much as anyone. You know, give these guys some time to figure this out and to come up with their factors and standards. All of this is pretty new for reasons that we've discussed in the past. Well, David, we're going to talk about the next interim docket decision. But I got to say in both of them, I thought the merits were correct. And the choice to intervene on the interim docket was probably incorrect. I think in the end, I agreed with Justice Kagan on the Bonta case that I would have at least let the en banc night circuit decide this case and then potentially intervened on the emergency docket. But I would not have stepped in now, again, not because of the merits, but because of the interim docket factors and sort of discouraging, you know, think of it as like school.

Like the more the teacher intervenes in playground stuff, the more the kids are going to keep running to the teacher to intervene in playground stuff. Maybe I am dealing with this now. So I just wouldn't want to intervene that much. And this gets us to our next interim docket decision, David, the New York redistricting question. This is the one that I was shocked by. Shocked. We have a state court order that according to Justice Alito, and I tend to disagree, blatantly discriminates on the basis. of race. The New York Supreme Court, the state's trial level court, ordered the New York Independent Redistricting Commission to draw a new congressional district for the express purpose of ensuring that minority voters are able to elect the candidate of their choice. And basically, that sets off a panic because we're about to be in the middle of a midterm election based on these maps. So to make this a very complicated story overly simple, they run around to all the New York state courts and are like, blah, what? No, help us. This is like totally crazy. And some of the New York courts are like, no, some of them are like, I don't know, we're not

going to do this right now, come back later, we're not sure, flim flamming, flamming. They also go to federal court. There's some flim flamming around there. And they go to the Supreme Court. And I thought there is no way that the Supreme Court is going to step in and do anything with what is so clearly a state court issue right now. Let them get a final state court appellate decision and then the Supreme Court can deal with it. That is not what happened, David. Instead, once again, we appear to have a six-three along ideological lines decision where the Supreme Court stays that trial court order to redraw the maps. Here's Sotomayor and dissent. If this court's grasping reach extends even to a non-final decision of a state trial court, then every decision from any court is now fair game.

By granting these applications, the court thrusts itself into the middle of every election law dispute around the country, even as many states redraw their congressional maps ahead of the 2026 election. It also invites parties searching for a sympathetic year to file emergency applications directly with this court without even bothering to ask the state court first. There is much reason to question whether the majority will exercise its newfound authority wisely, But there is no reason to question this. If you build it, they will come. And here's Alito in response in his majority or concurrence.

Justice Sotomayor's 13-page dissent is most notable for what it conspicuously omits. Even the most tepid, imaginable defense of the constitutionality of the trial court's orders. Instead, her disquisition ducks that issue and demands that we wait until the completion of a series of events that would likely run out the clock before we could review the order. That would provide a way of achieving what full review would not permit. The use of an unconstitutional district in the November election and the election of a member of the House of Representatives whose entitlement to the office would be tainted.

That is a prospect of this court should not countenance. So same case, David, they're not disagreeing on the merits, in this case whether the map is an unconstitutional racial gerrymander. They're disputing whether the court should intervene to do something. something about it now or let the, in this case, state court process run its course before potentially intervening whether on the interim docket or the merits docket, which would be after the midterm election. David, once again, I'm left thinking, boy, I'm not sure I want more interim docket cases and I would have let this be, even understanding the consequences for an

unconstitutional racially gerrymandered district to elect a member in 26 based on on a state court ruling the same way, I think I would have let that California law continue to be in effect for a few more, maybe many more months before intervening and let the Ninth Circuit run its course. I guess I'm with the dissent on those, even though the merits are undisputed by anyone. I think I'm with you. I think you've persuaded me, especially since we have seen them convert these petitions into, essentially convert them into cert petitions and grant them and resolve them relatively expeditiously. We actually, at the end of the day,

the tariff issue got resolved relatively expeditiously, not as expeditiously as people wanted, but relatively expeditiously, certainly by the standards of federal court cases. So I think I'm with you on this. And I'm interested here on the merits, because here's what seems to be happening, Sarah. If you gerrymander a map and you say it's for racial reasons,

even if there's a distinct partisan advantage being gained by the racial gerrymander, then you're going to lose. If you did the exact same gerrymander and you said it's for partisan reasons, but you used race to create the partisan change, it seems as if the court's going to go, that's okay. So as long as you have like a fig leaf of partisanship around it, the, because they're taking the hands off of the partisanship, on the partisanship basis, if the racial gerrymander can be cast as a partisan gerrymander, then it's going to be acceptable,

but it looks like, at least based on the very brief discussion here, they were just so explicit that this was for increasing minority representation, more so than partisan representation. But again, this is the area that we've both talked about. we don't know exactly where the court is going on this. All right, David. As I said, I really thought they would leave this B. I mean, there's Purcell.

There's sort of the exhaustion, if you will, through state courts. There's the interim docket part. So, you know, the interim docket still evolving. I'll just put it that way. Yeah, very much so. I'm pretty good at predicting merits stuff. Not great still at predicting the interim docket. Yeah.

The curve comes in sometimes, yes. Yeah. All right, David, when we get back, the as-promised conversation about the 1973 War Powers Act. We'll be right back. At Medcan, we know that life's greatest moments are built on a foundation of good health, from the big milestones to the quiet winds. That's why our annual health assessment offers a physician-led, full-body checkup

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from your first pitch to your first acquisition. Whether it's improving cash flow or exploring investment banking solutions, with Desjardin business, it's all under one roof. So join the more than 400,000 Canadian entrepreneurship. who already count on us and contact Desjardin today. We'd love to talk. Business. So, David, we promise to talk about this 1973 War Powers resolution because everyone's sort of

throwing it around in the ether when it comes to Iran. But if you actually talk to folks who have spent a lot of time on the hill, they will make this face, like the sort of cringing face. like, uh-oh, I don't want to talk about that. We're not really sure we like it. We're not sure it's a great idea or what the idea really is maybe. And if you talk to anyone in the executive branch, literally anyone going back to Nixon forward, they will all say it's unconstitutional, so they don't care. Now, as we said, David, this isn't going to court. So when we say something's unconstitutional, it's sort of a funny thing to say because who, who's saying it's unconstitutional? Nobody with a

In 1973, this was a federal law passed over President Nixon's veto. They overcame the veto. You don't see that very often. And basically, it says that the president must notify Congress within 48 hours of deploying forces. And it limits combat to 60 days without a formal declaration of war or specific authorization, like an AUMF. David, is this, it's just relevant at all? Does this matter anymore? Well, it absolutely, well, let me put it this way. Throughout most of my adult life, the, what we have seen as presidents sort of treat the, there's this weird treatment of the war powers resolution as if it is, I don't believe in it, but I'm going to comply with it just to just to avoid the drama, right? Because they're, they're introducing forces into hostilities. They consult with Congress. Now, and this has typically been for very relatively short.

intensity engagements. So if you're doing a bombing raid or if you're doing a very quick operation, etc, that you've kind of had this kabuki theater. And look, we've had many, many, many examples of introduction use of force. I'm not going to over generalize and say presidents have always complied or never or whatever. But there's been at least compliance or a degree of compliance begrudgingly for a long time. There's a flawed way of looking at the law and a proper way of looking at the law. but the flawed way of looking at the law is sort of been the practice. So the flawed way of looking at the law is when a president decides to employ the armed forces, here is your procedure to do it.

And this is sort of shortened as 60 days of free war, Sarah, that if once I decide as commander chief to employ the forces, then as so long as I jump through these hoops in the war power's resolution, then I'm in the clear. Like, why are we having this debate, if complied with the war powers resolution, whatever? And I think that's a flawed reading of the law for a reason that's pretty clearly laid out in the law itself, where it says that the constitutional powers of the president as commander in chief to introduce United States armed forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances are exercised only pursuant to one, a declaration. of war, specific, two, specific statutory authorization, or three, a national emergency created by an attack upon the United States, its territories, or possessions, or its armed forces. So in essence, what they're saying is, no, this isn't 60, this isn't saying this is 60 days of free war, that in these very specific circumstances, here is our process and procedure.

But that's not the way that has been treated. And I think this leads to something that we saw from Jack Goldsmith and his creedicore that we discussed in the last podcast where he kind of calls it just like a dead letter. Like what is this, you know, what are we even doing here? And so I would say this. I think if you look at the war powers resolution, it is not 60 days of free war. No question. At the text of this is not 60 days of free war. Zero indication from the text. The way that it has been employed is more like 60 days. days of free war, the way it's been employed. Now, what that means to me, Sarah, is that whatever meaning, whether it is 60 days of free war is our shorthand for I get to decide when to introduce, whatever meaning you want to attach, whether it's a 60 days of free war, or in these hyper-restrictive

circumstances, this is what you do. Only in these restrictive circumstances can you even introduce armed forces into the mix. And here's the process. That meaning has to be, that means, has to be supplied by Congress through Congress acting on that meaning. If you're going to respond to the introduction of use of force, then Congress to apply that meaning has to act on that meaning. And that's where, again, we're putting that ball back into Congress's court. Guys, I would say to every member, every Senate staffer, House staffer who listens to this podcast, here is our message. We're your best friend because we are trying to make your boss more powerful every day. That is all, we wake up in the morning and we just, Sarah and I,

we just think, how can we make your boss more powerful? And so that's what we're trying to do here. I think that's right. You know, we also talked about that executive order on assassinations on the last podcast and you said there was a really easy answer. Israel did it. I did want to expand on that as well while we're on the subject because there is a conspire part of that. Yeah, yeah, yeah. It's like the exact reverse of what you just said, David. EOs are by the president. Therefore, they can only apply to not the president and executive branch employees. So an executive branch employee by that EO is barred from on their own, you know, decision making authority assassinating someone. Yeah. But if the president tells them to, it's fine. Also, it's an EO. And I hope we've made the

point that EOs are worthless. Totally entirely worthless. So that's also a simple answer, but an expanded answer for all other categories of assassinations that may come up where Israel didn't do it. David, we have my, I mean, it really is my, you know, I always have a sleeper case from the term that like becomes my favorite case. My sleeper case of the term is almost certainly this pun case on Fifth Amendment takings. We're going to save that for next time. And as well as Lisa Blatt telling the chief that maybe he should be medicated. So we've got plenty to talk about in the next advisory opinions. We did get opinions on Wednesday morning.

They were not sleeper cases. They were just asleep. So sorry. But there was one that limited immunities a little bit. That's all we need to say about it. Like in my ongoing crusade against immunities, there was some limitation of immunities. Yay. So David got that out of it, I guess.

More to come. On the next advisory opinions. Getting ready for a game means being ready for anything. Like packing a spare stick. I like to be prepared. That's why I remember 988, Canada's suicide crisis helpline. It's good to know just in case. Anyone can call or text for free confidential support from a train responder anytime.

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