Advisory Opinions - Congress Won’t Contradict Trump

Episode Date: September 11, 2025

When the president orders a strike, who decides if it’s legal? Sarah Isgur and David French unpack the commander in chief’s powers after a hit on an alleged Venezuelan drug-smuggling vessel. The Agenda:—The laws of armed conflict—Violating the Constitution?—The complexity of terror designation—SCOTUS to decide fate of Trump's tariffs—Interim docket before the emergency docket—Sarah name-drops Jonah Goldberg—SCOTUS interim docket decision on immigration stops in L.A. Show Notes:—Orin Kerr on Los Angeles immigration enforcement case 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

Hey, advisory opinions listeners, this is Sarah Iskir. I just wanted to let you know that this episode was recorded before Charlie Kirk was killed in Utah on Wednesday. I first met Charlie when he was 20 years old and Turning Point USA was a crazy idea that this kid wouldn't stop talking about. I speak for both me and David when I say that we are sickened, as should every American who cares about free speech. We are praying for Charlie's family. We'll have more to say on this in the next episode. Here's this episode of Advisory Opinions. Ready? I was born ready.

Welcome to advisory opinions. I'm Sarah Isker, that's David French, and we're going to start with the Venezuelan Boat Strike, do a little tariff, interim do a little tariff, interim docket action, as well as, as well as, Are we just doing interim docket on top of interim docket, as Justice Kavanaugh warned us? We've got to talk about the Federal Reserve and its historical anomaly, as well as the immigration enforcement case out of Los Angeles that the Supreme Court issued an opinion on as well. All this, and I finally learned how to pronounce the name of that case about the Consumer Financial Protection Bureau. Coming up on advisory opinions. David, one of the things I love about doing this podcast is that it feels like cramming for an exam

and then like you walk into the exam and you're so ready to like write everything you know down before it leaves your brain. Like I can feel things already dripping out of my ears. I'm very excited for today is the point. This is a very loaded podcast. So yeah, buckle up everybody. And if you're not the type of person who likes cramming for exams, then you're probably not a lawyer because that's what everyone has to do for the bar exam. Okay, David, we're going to start with the Venezuelan boat strike. Did this violate the laws of armed conflict? The short answer to that would be a yes, and the longer answer requires explanation. Also, there's a shorter answer of did it violate the Constitution, which would be also, I believe, a yes, but with the longer, but with the

understanding that almost certainly nothing can be done about that yes. In other words, that we know that Congress is not going to take any particular action to contradict Trump while, certainly while Congress is in the hands of Republicans. Okay, so there is a boat traveling. Well, we are told by the United States government that a boat left Venezuela, that there were 11 confirmed members of Trenda Agua, the Venezuelan designated terrorist organization on the boat and that the president himself ordered a strike on that boat, killing all 11 members who they said were, again, confirmed members of a foreign terrorist organization and smuggling drugs into the United States. But what they did not claim was that there was an imminent

terrorist attack or other violent attack that these 11 people were planning to perpetrate or any other evidence like that. So you have membership, again, let's trust the U.S. government what they're telling us, not that you must, but just for our legal purposes, because frankly, it's going to be iffy enough, even if you take everything they say as accurate. So we're going to take it as accurate. 11 confirmed members of a foreign terrorist organization in international waters who are believed to be bringing drugs illegally into the United States.

What is the power the Constitution gives the president? what is the power that Congress has given the president? The power that the Constitution gives the president is the commander-in-chief power. That's what we've talked about before. And in theory, in theory, the system is supposed to work like this, that there is an authorization for the use of force by Congress or a declaration of war by Congress. Once there is a declaration of war or authorization for the use of force,

that then switches to the commander-in-chief power. Then that's the president then starts to operate under his authority. The way things have worked out over the course of American history, is that the commander-in-chief power by presidents of both parties has been very, very broadly construed to give the president the power to react to, here's what's not controversial, immediate threats against American. So, for example, on December 7, 1941, when Japanese bombers are bombing, no one had to call back to Washington and say, we need a congressional authorization to return fire. No, no, you defend yourself in the moment. And if there's an imminent or immediate attack on American forces, they have a right to.

defend themselves. But this has since been expanded into a presidential authority to wage war that has been extended to multiple situations where Congress hasn't gotten involved, such as a security council vote that activated UN forces to respond to the Korean War, or such as NATO action in the Baltics when Yugoslavia was breaking up. So we have seen such as when Trump launched attacks on Syria in response to chemical weapons usage by the Assad regime. We've seen many, many examples of the use of force without authorization by Congress, but usually with a tied to a very specific military, a very explicitly military threat, such as a North Korean invasion, Serbian invasion, such as a use of chemical weapons by the Syrian military.

Now, in this circumstance, what you have is no congressional authorization for the use of force, followed but an independent exercise of military authority relying on, and from what we can apparently tell, he was relying on the fact that his administration had classified, and let's call it TDA, because I can't, I don't know how to pronounce it, that his administration using the authority, Congress granted it to determine whether something was a foreign terrorist, organization, that his own designation of an entity as a foreign terrorist organization unlocked his war powers. That seems to be the argument that's, that, that argument has been made publicly. It was made in a letter to the House and Senate, notifying the House and Senate of the strike. The problem, however, Sarah, is sort of twofold. One, the statute authorizing the administration to declare something to be a terrorist organization does not authorize the use of force against that entity. It authorizes the use of very specific immigration and economic sanctions against that entity. It does not authorize the use of force. So this is not

comparable to say Obama's drone strikes, which were all authorized by the post-9-11 authorization for the use of military force. So there's no congressional authorization. The statute that he's relying on to create the designated terrorist organization doesn't authorize force. Let's pause for a second here just because I think this is important, but a little confusing. So you can designate al-Qaeda as a foreign terrorist organization, but that's not why President Obama can direct a drone strike against Anwar al-Alocki. That was because the authorization of use of military force that Congress passed after 9-11 included basically stopping another 9-11 in groups that helped with 9-11 with a lot of fuzziness

on the edges, but whatever that fuzziness may be. B, it does not going to reach a terroristic, no question, drug cartel in Central, South America. So, like, you still, they're both foreign terrorist organizations, Al-Qaeda and TDA. And in terms of the president's congressional authority from designating them as terrorist organizations, no difference between Al-Qaeda and TDA. But when you want to move to the next step, which is doing something militarily, you have the AUMF for, you know, Al-Aki, and you don't have a congressional authorization for TDA. So now you're moving back or up the chain, if you will, to your commander-in-chief powers inherent in Article 2 of the Constitution because you don't have congressional authorization. Then it comes to, is this something that is just inherent?

And if you had a situation where it was a speedboat, loaded with explosives, headed for a U.S. destroyer, yes, you can absolutely engage that target. If you have intel that it's a speedboat carrying drugs and a crime, a crime under civil law that does not carry, which by the way, even though this is not really relevant, that doesn't even carry the death penalty, to then say, well, we have intelligence that a crime, that a crime, crime is in process, then I therefore have the ability to unlock war power. That's where you are breaking through not just the bounds of Article 2. I'd argue you're breaking through the bounds of international law. Does it matter? Okay. Again, we're going to assume that they were bringing drugs, although I got to say, David, I'm not the world's foremost expert on drug importation into the United States. However, at the Department of Justice, I worked on several adjacent issues, toured many facilities that were all about this. Most of the time these days, these guys are

using go-fast boats. That's like the very long-tipped hull boats. And there's like two guys on them. It would be very strange for a drug-carrying boat to have 11 people on it. That's just overstaffing in a way that I'm giving TDA some credit for efficiency. It would be weird, which, again, might call into question any of the factual statements that we've been given by the U.S. government. Not that we're doing that here. I just want to raise, like, for me, like, some spitey sense. Like, what are 11 guys doing on a boat that's for drugs?

Okay, so here's my question to you, though, which is related. Like, I don't necessarily buy the drug thing. But if you've got 11 guys from a terrorist organization, and by the way, I absolutely believe TDA is a terrorist organization. There's no question they've engaged in terroristic acts against the government of the United States. I mean, sex trafficking, violence, all sorts of criminal activity. Yes, their motives are very different than Al-Qaeda, for instance, but don't care about their motives. Okay, so 11 guys are coming to the United States. Does it matter to that inherent Article 2, Commander in Chief Power, let's say, that I know that

these individual guys are going to do a bad, a specific bad thing? Or is it enough to say they're a member of a terrorist organization that is planning to do specific bad things? As in, is this an individualized assessment of this boat with these guys? We have to know that they are the ones that are going to blow up the boat? Or is it enough that the organization wants to blow up stuff? And these 11 guys are part of that organization. So here's why this gets, in my view, scary. Okay, so if you're holding the view that membership in TDA and that positive identification of you as a member of TDA, it's sufficient for purposes of ordering an airstrike on you, not detaining you. So the normal thing in these circumstances would be you would detain, you would try to stop the boat, you would detain the people, you would search the boat, you would seize the drugs, etc. No, this is for a military strike.

And ordinarily, the reason why we say congressional authorization is needed or there has to be some sort of imminent military threat is that, think about it like this. When we were in Iraq operating under the Iraq use of force authorization, I did not have to wait to watch if I could confirm that somebody was a member of al-Qaeda. And when I say confirm, don't think of it in the terms of I have a jury finding that this person's a member of. of al-Qaeda? No, according to the intel standards we said and the burdens of proof we said in our intel standards, if I could confirm that somebody was a member of al-Qaeda, I could bomb them, shoot them, call in an artillery fire mission on them with no due process where they are, where they are. And so the logic of this strike says that, okay, if we've positively identified a member of TDA, no matter where they are, because this strike was off the coast of Venezuela. This

was about as far from imminent threat to the U.S. as you can get. That was a speedboat off the coast of Venezuela. And so the idea that what that then means is like under this logic, let's suppose you're a National Guardsman and you're deployed to Chicago. And you see somebody, I believe MS-13 is on this list as well, or whatever, you see a member, they have a TDA tattoo. Under the logic of the strike, that National Guardsman could just lift up their M-4 and gun that person down right in the middle of the streets of Chicago? What about Posse Cometatis Act? International Terror Organization.

I mean, this is not, this is war, Sarah. It's not law enforcement. But it's in United States territory. But, okay, what if, I know this is not reality. But imagine that Maduro has a change of heart. The president feels like a wrong term, but whatever. The head of the Venezuelan government quotation marks. And he's like, hey, America, there's this terrorist organization operating in

my country. They are undermining the government of Venezuela. Can you come kill them for me? Here's where their headquarters are. Then could the president do it? On his own? No. No. Yeah. I mean, now, do the president, now, when you say, could they do it? Okay. Could they do it in fact? Yes. Just like Trump did it with the boat. And this circles back to the point at the very beginning. a lot of this, sadly, it's just an academic discussion because who's going to stop it, right? That's a key question. I am a little hung up, though, on all of the headlines about killing civilians. Because, again, under that definition, Al-Qaeda members are civilians as well.

They are not a member of a foreign government's military. Like, everything about this debate has felt a little bit too easy to me. I think this, my takeaway is like, this is a little bit hard. I think it would, you would, you would have me on a little bit hard, huh. You would have me on a little bit hard if it was load, if the intel was, this was loaded up with AK-47s and explosives. What if it was just AK-47s? What if it was just guns that they were going to distribute in Miami for the purpose of terrorizing the population, Yeah, it's really hard for me to get to the point of justifying an airstrike versus a stop.

And that's where I keep getting hung up. Okay, it is easy to convince me that you should stop that thing. Stop it. Absolutely. Why wouldn't you stop it? It is very difficult to convince me, and it's very difficult for me to even see it as that heart of a question if you're saying, blow them up. Okay, but if there were an AUMF equivalent, so you had no problem blowing up the Al-Qaeda boat that was off the coast of Venezuela, in my example, if they have nothing in the boat. If there were a terrorist drug cartel authorization act from Congress, then you'd be fine. If there's AUMF against TDA, it's a different analysis. That's why all of the comparisons to Obama were off point because there was an AUMF with Obama. This is funny because I feel

feel like a lot of what we're going to talk about today and maybe for the rest of our lives is the president's inherent authority if he doesn't have an act of Congress that's directly on point. So next up, let's talk tariffs David, the Supreme Court. No surprise to A.O. listeners has fast-tracked two consolidated cases to hear oral argument in November. So this is not going along the normal merits docket, you know, stage. This is from the one case is from the Court of International Trade and one case is actually from the D.C. District Court. So they even skipped the D.C. Circuit Court as well. Okay, let's go over some facts here. Article 1, Section 8 of the United States Constitution,

the Congress shall have power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare of the United States. So we've got two branches coming off from that language. One is the non-delegation branch. Can Congress delegate any of that power to the president, even if it wanted to? And, of course, our next branch did Congress delegate that power to the president in AEPA, the Emergency Powers Act from 1972, whatever it was. Okay, non-delegation, we haven't heard a whole lot about non-delegation in a long time.

So not going to spend too much time on that, but I want to read you the language from Aiepa. The president may, this is not the quotation, but I'm just going to say, The President May upon a valid emergency declaration. Now, quote, I'm going to include punctuation in my oral description of this because it might be relevant. Quote, investigate, comma, block during the pendency of an investigation, comma, regulate, comma, direct and compel, comma, nullify, comma, void, comma, prevent or prohibit, comma, any acquisition, comma, holding, comma, withholding, comma, use, comma, transfer, comma, withdrawal, comma, transportation, comma, importation, or exportation of, comma, or dealing in, comma, or exercising any right, comma, power,

comma, or privilege with respect to, comma, or transactions involving, comma, any property in which any foreign country or a national thereof has any interest. Okay, that was really hard to understand. So now I'm going to read you how the Department of Justice, you know, with their dot, dot, dot. under iipa the president has the power to quote regulate importation in quote of foreign goods

to quote deal with any unusual and extraordinary threat end quote to quote national security foreign policy or the u.s economy really regulate importation now again i actually think reading the full list you know, to that conversation we had with Justice Barrett, it gives you context for what Congress was trying to do with a whole lot of words and a whole lot of punctuation and what they were trying to get to. I also want to just give you a rundown of some of the things that other presidents have used AEPA for based on that language, which to me doesn't cut totally cleanly either way, but I think it's helpful. And it was enacted in 1977, so there you go, not in 1972, certain AEPA-based executive orders have targeted the policies and actions of

specific foreign governments and resulted in the imposition of comprehensive sanctions against countries or regions, which generally prohibit virtually all economic relations between U.S. persons and the targeted jurisdictions. So, for instance, we maintain comprehensive sanctions in part based on AEPA against Cuba, Iran, North Korea, Syria, and the Crimea-D Doniesk and Nuhansk regions of Ukraine. Presidents have also sanctioned categories of foreign persons, which may include groups, political parties, terrorist organizations, corporations, and individuals. Some AEPA actions have focused on persons in identified geographical areas, i.e. the Western

Balkans, while others have focused on foreign persons engaged in activities creating emergency conditions, regardless of nationality or geographic locations, like blocking property of transnational criminal organizations. Such sanctions have blocked access to assets for designated persons, prevented their utilization of U.S. financial systems or credit, denied visas to or excluded the designated persons from the United States, or prohibited U.S. persons from engaging in transactions with the designated persons. However, no president has ever invoked IEPA to impose a single tariff on goods in the statute's nearly 50-year history. All right, let me read you one more section from the government's brief here.

The court has long interpreted, quote, regulation of commerce, and remember this is regulate importation, regulation of commerce in this area to encompass tariffs or duties, e.g. Gibbons v. Ogden, the very famous opinion by Chief Justice John Marshall in 1824. By contrast, the federal circuits majority, a textual, some but not others theory of IEPA tariffs would leave courts with no metrics for judging when tariffs last too long, realize too much revenue, cover too many countries, or become too effective for the court's liking. So, David, there's four issues here. Non-delegation, which I'm not sure we need to deal with, but it's worth a second if you want to. Major questions doctrine. Did Congress grant this power in IEPA

based on the language in IEPA? Three, what was the proper court for this to go through? Was it the Court of International Trade or was it the D.C. Federal Court? Because I actually still think that's an interesting question and the fact that they took one of each and consolidated them, I think means we will get an answer to that. And four, what about this argument that I think will be very persuasive, always as persuasive for the Supreme Court, that you must, whatever the answer is, must be a judicially cognizable rule that courts can actually impose. So it can't be like, well, yeah, sure, Aikpo could probably use for tariffs, but not these tariffs because they're more about revenue and less about fentanyl because we feel that, or they're forever,

maybe if they were shorter, like, oh, now you get into some real weird line drawing and sort of policy work by the judiciary. So those are my four categories. Pick and choose as you will after this break. Going online with that ExpressVPN is like not having a case. for your phone. Most of the time you'll probably be fine, but all it takes is one drop, and you'll wish you'd spent those extra dollars on a case. Every time you connect to an unencrypted network, in cafes, hotels, airports, your online data is not secure. Any hacker on the same network can gain access to and steal your personal data, passwords, bank logins, credit card

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Secure your online data today by visiting ExpressVPN.com slash advisory. That's EXP-R-E-S-V-S-V-P-N dot com slash advisory to find out how you can get up to four extra months free. ExpressVPN.com slash advisory. I'm not going to talk about which court this should have been brought in. I'm only going to briefly, because I honestly don't know the answer to that question, and I'm very curious about it as well, but I don't have a lot of input on it. And then the other question, I'm very interested in theory and non-delegation, but I'm mindful of when I was talking to Judge Sutton about non-delegation, and I was kind of forecasting this term,

and I said, or forecasting this next Trump term in the legal issues, I said, major questions and non-delegation are going to be terms that come up. And he very gently was like, yes, major questions, but not a lot of non-delegation case law out there. So the much more interesting issue to me is the interplay between this case and Biden v. Nebraska. That was the student loan debt forgiveness case. The OSHA cases. OSHA was vaccine mandate. Yes.

Because in both of those cases, you had a broad grant of authority to the executive branch. but it was broad but not explicit and did not explicitly cover the scenario advanced by the Biden administration. In both of those cases, the court was pretty clear that if you're going to do something big, generalized grants of authority, if you're going to do something big under a statute clearly enacted for a particular purpose, then the statute should be more explicit than implicit about it. And so that is the question I'm most interested in. And whether, Sarah, whether the fact that this is dealing with the president's powers over foreign relations is going to interject enough of a variable that it's going to remove this case from that sort of student loan OSHA frame. That's one of the absolute key questions to me is does the international flavor of this dispute,

create this greater zone of discretion for the president. So three things on what you just said. Remember, we have two different versions of the major questions doctrine, and I'm calling them the Barrett School and the Gorsuch School. The Barrett School just tells you that the purpose of the major questions doctrine is to provide that context to find the best reading of the statute from Congress. In this case, again, I think you can say, like, that long list is supposed to help you understand what the word,

regulate importation means. Really, it's regulate, right, in a list of, what, 20 other words that include nullify, void, prevent, or prohibit. So to just take regulate on its own, I think Justice Barrett would say, no, no, those other words are giving us the context for what regulate means, even if regulate all by itself, would be a very broad term. But nevertheless, regulate is a broad term, and it is in this list. So under the Barrett version, Trump does better. Under the Gorsuch version, major questions doctrine is meant to be something more like a clear statement rule. If Congress wants to give such a huge sweeping power that they've never given before, we expect them to say, and the president may impose tariffs for the purpose of raising revenue if he believes that is a national emergency.

They didn't say that, clearly. So under the Gorsuch version, Trump really loses, like it's not close. Now, I don't have a great count for who's in what camp at this point. point we're going off all of these concurrences, which again, XO, XO, love the concurrences, everyone. But that's the one question is you need to decide which justices fall in which camp and whether the Barrett one is favorable enough to Trump to have him win or just more favorable, but he still loses. Number two, major questions doctrine so far has only been used against agency power, never presidential

power. Now, under your sort of unitary executive, all power derived from the president anyway. It shouldn't matter, but it's worth noting that when we're talking about Congress giving powers to an agency, maybe we would expect more clear statement under the Gorsuch theory of major questions doctrine than if Congress were giving power to the president in an international flavor, as you say, David, maybe major questions doctrine doesn't quite do the same amount of work. Flagging that. Now, number three, my favorite, of course, because I'm the biggest nerd. Does this belong in the Court of International Trade

or in regular district court? Okay, so the Court of International Trade is a federal district court. It's life tenure and all that. But they only take cases over, quote, any civil action commenced against the United States, its agencies or its officers,

that arises out of any law the United States providing for tariffs. So it gets to the heart of the whole. question. If IEPA provided for tariffs, then it belongs in the Court of International Trade. If IEPA doesn't provide for tariffs, then it didn't. Now, the way the Court of International Trade itself dealt with this was saying, like, yes, IEPA could provide for tariffs in a sort of sanctiony way, but it doesn't provide for these tariffs because they're revenue generating and they're like permanent tariffs. This is not sort of the national emergency

flavor of tariffs that we could imagine. But sure, Aipa, in theory, could. Therefore, we have jurisdiction. I have said this on the podcast before. I think that's Hocum. Either it does or it doesn't. And I think that the court will have very side eye of some tariffs, but not these tariffs. I mean, let's do predictions, David. The government wanted this case in the Court of International Trade. They thought it was a friendlier venue to them. They lost in both. They lost 7-4 in the Court of International Trade, and it did not fall along partisan lines. I believe that the Trump administration will lose this, and I'm saying that before oral argument, so I reserve the right. This is not a lock-in effect. After oral argument, I could change my mind.

I'm with you, with the caveat that I said earlier, the Epcotness of this, the internationalness of this, does throw in a wild card that makes me a little bit more, a little bit more, a little bit less confident. I'm sorry in the conclusion. But I do think the proper conclusion here is that this was not a, that at the very least major questions doctrine should apply. It'd be an ideal opportunity to revive non-delegation or to breathe some life into non-delegation. There's a kind of unifying theme to a lot of this. I mean, there are a case involving, for example, the designation of TDA under the Alien Enemies Act. And using, invoking the alien enemies act. Can the Supreme Court go back a step? And instead of saying, okay, you know that list that

you read with all the commas, Sarah, which tells me that you spend a lot of time on voice to text, that it's very possible the Supreme Court just say that as long as that list is, it doesn't say that we're tariff in it, so we're done. Or right, part of you wonders, are we going to get to a point where the court squarely addresses the distinction between, say, a statute that says, whenever the president finds that X, X, X, X, X, X, versus a statute that says, when there is an invasion or whatever, and so is there a distinction there? Is there a room for judicial review when it says when there is a particular kind of emergency? Can the judges, can the justices review whether that emergency exists? Or is it just whenever there's an emergency that is completely up to the president, whether the statute says whenever the

president finds, or if the statute doesn't say whenever the president finds. I think that's going to be, that's also hovering around in the background. All right. I want to move on to another topic, which is the Supreme Court, damned if you do, damned if you don't, interim docket problem. Okay, so just refresher, right? You have the merits docket where you get all the lower court opinions, percolating, marinating, nice gumbo. Then there's, they grant cert. There's full briefing. There's oral argument. They get another couple months. I mean, minimum, even if your case is argued in April, you've got two months till the opinion comes out as compared to the interim docket, which is about what the status quo will be while

that case is making its way through the courts and potentially all the way up to the Supreme Court for that cert petition and that full lengthy process. Now, people are complaining, myself partially included, that it's pretty hard to have an interim docket where you tell the lower courts that they must follow the precedent if we don't have opinions from the majority as to why they ruled the way that they did. And even we do get opinions, they're pretty short, and it's hard to know, you know, exactly why they decided something. Well, Justice Kavanaugh warned us some number of months ago that, you know, part of the way you write opinions is you have to take time to write them. Justice Barrett talked about that with us in our interview with her.

and he warned, Justice Kavanaugh warned, that we could end up with an interim of the interim of the interim docket. And here we are, David, I'd like to introduce you to our interim docket before the emergency docket before the merits docket. I want to read you two headlines from this week. First, from the Associated Press, Chief Justice Roberts keeps in place Trump funding freeze that threatens billions in foreign aid. The high court order is temporary, though it suggests that the justices will reverse a lower court ruling that withholding the funding was likely illegal. Okay. Next headline from Bloomberg. U.S. Chief Justice lets Trump oust FTC commissioner for now. U.S. Chief Justice John Roberts let President Trump temporarily oust a Democratic member of the

Federal Trade Commission, signaling that the Supreme Court is likely to back Trump's bid to assert control over the independent agency. David, dead giveaway in the headline that we're not even in the interim docket anymore. What is it? Chief Justice, right? And you're like, how can a single justice, is he just writing for the majority? No, no.

These were administrative stays. So that something could move to the interim docket. This is what Justice Kavanaugh warned us about, is that now we're getting news stories about the administrative stays. Now, administrative stays are based on no factors except that they want to wait for briefing. So it is trying to hold in place the same.

status quo for like a few days. I want to read you what these say. It is ordered that the September 3rd order of the United States District Court for the District of Columbia is hereby partially stayed for funds that are subject to the President's August 28, 2025 rescission proposal currently pending before Congress pending further order of the undersigned order or of the court. It is further ordered that a response to the application be filed on or before Friday, September 12th. So we're just like two days away from getting the briefing and then okay then it'll take another couple days to do the interim docket decision from the court like you have to you can't ask them to write and to actually decide things but then also get mad when there has to be some rule in the meantime

just for those few days while briefing minimal minimal briefing is ordered so i'm deeply frustrated that we have media about these interim to the interim docket that also are saying that administrative stays now project the likely outcome. I mean, we really are now turtles all the way down, David. Yeah, I mean, obviously you're going to report the existence of a stay, but it should be very, very clear that this doesn't actually indicate much of anything at all. No, and by the way, this used to be how the whole emergency docket was handled, meaning it was just one justice. I talked about these being in chambers opinions if they issued any opinions, but more often the docket itself was just the application went to one justice. They like

thumbs up or thumbs downed it. And like that was that. And everyone was like, no, we need more. Okay, you got more. And now the administrative stays are getting the sign of scrutiny. I don't understand how this is going to work. I'm very, I am hopeful of this. I'm hopeful that as the new term starts, and we start to, for example, just like we talked about with the tariff case, that we actually now have an oral argument schedule and briefing, that we're going to start getting to the actual merits-based reviews of a lot of the issues upon which we've had preliminary orders. So that I'm hopeful that as the merits-based briefing, merits-based decisions starts to come down, it's going to move the conversation away. And this will, we'll look back in

this moment as a bit of a blip that in this sort of historical sweep, the thing that's going to matter is the thing that was always going to matter, and that's the final decision. And so I'm hoping, I'm hoping we're moving more into that phase. All right, when we get back, we're going to do the Federal Reserve and an interim order docket opinion from the Supreme Court on Los Angeles immigration raids. Okay, David, you know, they've set oral argument for tariffs, but we haven't heard yet on the Federal Reserve what they're going to do about that question. And you and I haven't gotten to talk about it much. So I thought we'd spend just a moment on the Federal Reserve.

Now, remember, we have Humphreys Executor back 100 years ago that says that the Federal Trade Commission is A-O-K. Now, we have the Supreme Court. We have the current Federal Trade Commission versus the old Federal Trade Commission, and the Department of Justice is now arguing that the old Federal Trade Commission might have been okay. But this Federal Trade Commission asserts executive power, much more like the case of CELA law. By the way, we got this email, David, to whom it may concern. For the love of God, Sarah Isgher, it is CELA law, not Celia law, and not Celia law. and not Celia Law.

This is like five episodes now where I've had my ears wantonly violate it and I can't take it anymore. For the love of God, Sarah Isker. I told you guys, I knew I was mispronouncing it, but in the moment I can't ever pronounce it correctly. So now I've written out at the top of my notes for every single time we do this podcast

just in case it comes up, SELA. SELA. All right, so in SELA law, they were doing the Consumer Financial Protection Bureau, but they were noting in that one that that was like a single head. So let me read you footnote, footnote 8 from CLA law. The dissent categorizes the CFPB as one of many financial regulators that have historically enjoyed some insulation from the president.

But even assuming financial institutions like the Second Bank and the Federal Reserve can claim a special historical status, the CFPB is in an entirely different league. It acts as a mini-legislature, prosecutor, and court responsible for creating substantive rules for a wide swath of industries, prosecuting violations, and levying knee-buckling penalties against private citizens. And, of course, it is the only agency of its kind run by a single director. Okay, so that's what we're trying to distinguish, right, David? sort of original FTC, a multi-member body that just did financial regulation from many legislature, prosecutor, court, prosecuting violations, penalties against private citizens, single director.

Okay. Now, fast forward to Wilcox, a decision on the interim docket decided in April reading a paragraph from that. This is the majority. Finally, respondents Gwen Wilcox and Kathy Harris, their members of the National Labor Relations Board, BT-dubs, contend that the arguments in this case necessarily implicate the constitutionality of four-cause removal protections for members of the Federal Reserve's Board of Governors or other members of the Federal Open Market Committee. We disagree. The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States. That's true that the Federal Reserve historically did that. It is also true, however, that the Federal Reserve has

some of the powers that they listed as the bad place in CLA law about the CFPB in terms of sanctioning power and investigatory power and things like that. So, David, we have Humphrey's executor on the one side. We have the unitary executive. All power must derive from the president on the other side. Does the Federal Reserve's power? Does the Federal Reserve's power devolve from the president. Does some of it devolve from the president and not other parts of it? It's been a few times that the court has sort of singled out the Federal Reserve. In 2024, there was a decision where Justice Alito called it a unique institution with a unique historical background, a special arrangement sanctioned by history. Interesting phrase. So you raise a very,

very good question. And I'm going to be very interested, obviously, as everyone will be in the answer. But it seems as if, on the front end, the court has gone out of its way on more than one occasion to say, okay, if we're doing sort of text history and tradition here, history and tradition are really cutting a different way when it comes to the Fed. And same text, same article two, first sentence of article two, but very different history and tradition. so it seems to me that the court is signaling, hey, the Fed is different. Now, that's not the same thing as saying that Lisa Cook will win, but it is saying that the Fed, I do think that the court is going to say the Fed is just different. Okay, David, well, let me tell you, Jonah Goldberg

thinks we're idiots. Here's Jonah writing, but you know what? I think Trump can fire members of the Fed. Again, I'm not a lawyer, and I left the section on the second bank of the United States on my 11th grade history test blank. All I can say is my view stems from the fact that I think the Federal Reserve resides in a constitutional null space. If it's part of the executive branch, then the executive has the power to fire its members. I don't agree with Trump's version of the Unitary executive, but I do broadly subscribe to the view that the executive is unitary. I have been content to live with the Fed as an extra constitutional appendage, mostly because I have no choice. Similarly, I don't like North Korea's regime or the general availability of black licorice. But it's

not like I can do anything about that stuff either. Moreover, unlike the Kim regime or the orc jerky that is black licorice, I don't send a lot of time complaining about the Fed's existence, because I think it serves a very useful purpose and has served America well, all things considered. Indeed, I'd welcome a constitutional amendment creating an independent central bank largely along the lines of what we have now. My only point here is that originalists often get accused of liking originalism only because it furthers their political or policy agenda. My view is that Trump's political and policy agenda is bonkers, but that doesn't mean it's unconstitutional. It gave me pause, David. How much of this is because I am concerned about

the instability and chaos that would result if presidents could now basically mess with monetary policy in the run up to an election. How much is really the fact that I think it's different? Yeah, well, I think a lot of it depends on how much your originalism is how big is unitary going to be under your version of originalism. So, you know, it's interesting. I wrote a piece in the time, I wrote my newsletter at the Times about this idea that I've been turning over in my head about, you know, and I know constitutional amendment conversations,

they sort of have a feel of being irrelevant because no way there's any amendment coming in the near, in the short or medium term. But sort of thinking through some of these issues that we're encountering, I've been turning around in my head this idea of a constitutional amendment that clarifies the first sentence of Article 2. This is what Cato, the anti-federalist, said, was vague and inexplicit. And that first sentence is the vesting clause. The executive power shall be vested in a president of the United States. And we had talked about this briefly on the podcast. What if you have that the executive power is, instead of the executive power, it is the power to execute law. passed by Congress is in a president of the United States. And I got some really interesting responses, including from law professors that said, that's actually the best originalist reading of that first sentence. It is not, in fact, the big unitary executive. It is, in fact, that that first sentence should be read and using an originalist framework more narrowly. And I do think,

I do wonder how originalists the broad unitary executive theory is. That's, I think that's a very interesting question. All right. Well, I expect we will hear something from the Supreme Court on the Federal Reserve pretty soon. We may even hear an interim to the interim. So I have a thought on this for cause, Sarah. I tend to think that if there's strong evidence of mortgage fraud, that's going to meet the requirement. There's a couple of questions.

One is, does for cause refer only to on-the-job conduct? In other words, things that you've done. And I think the answer to that has to be clearly no. Like, it would be for cause, just to take an absurd example, if they were caught on video robbing a bank. Well, I mean, that might be related to their Fed Reserve. Well, caught on video holding up a convenience store. Yeah, for cause, absolutely. So that sort of answers your question.

If they're caught on video, do you have to wait for the indictment to be handed down? You can get an indictment pretty quickly. Because otherwise, you end up in this really bad incentive place where as long as your Department of Justice says they're investigating the person, did they even have to say why? Then all of a sudden, what is for cause removal if all you need is? is the attorney general, to go out publicly and say they're investigating someone, which again, DOJ isn't even supposed to be doing. And then all of a sudden, you've checked the four cause box. That can't be four cause removal. No, no, no, that can't be. That can't be. No, but what I'm saying

is if they're coming forward with evidence of the mortgage fraud. In other words, not just that, well, we say it's there. We're investigating it. But again, how does DOJ do that when they're not supposed to be, like they only are supposed to be speaking through indictments? I'm reluctant to say that an indictment would be necessary, but it has to be more than just the mere existence of an investigation. Is your point also perhaps that it doesn't have to be a crime? It could be something, right? It doesn't say a crime. It says for cause. So one could imagine something that is less than a crime. So obviously an indictment isn't needed. So your point is like maybe there needs to be evidence of something that would call into question of misconduct. More to come on that. last thing, David, we did get an interim docket decision from the court on immigration stops in the Los Angeles area and what factors they may use in the interim while the case is pending to make those stops. What constitutes reasonable suspicion? What can constitute reasonable suspicion? Here were the four factors that the court was supposed to be giving a status quo. Thumbs up, thumbs down. One, presence at particular locations. such as bus stops, car washes, day labor pickup sites, agricultural sites, and the like. Two, the type of work one does.

Three, speaking Spanish or speaking English with an accent. And four, apparent race and ethnicity. So, if you have some combination of those factors, does that constitute reasonable suspicion for the purpose of a short stop to determine whether the person is a citizen of the United States? Now, like, on the one end of the spectrum, you could have a full-blown, equal protection, racial profiling. You can't stop someone because of their race. That is not reasonable suspicion that they've committed a crime.

And on the other hand, you have the sort of, there's a bulge in their pants in a high-crime area. And you heard that a young guy with a red baseball cap said he was going to rob a convenience store today. So the guy with the bulge has a red baseball cap, surely that's reasonable suspicion to stop him and check if he has an illegal weapon. Okay, where does this fall in between? It was a, as best we can tell, six three decision from the court. We had an opinion from Justice Kavanaugh concurring in the grant that, yes, immigration officers can use some combination of those factors as reasonable suspicion for immigration stops to ask someone. and verify their immigration status. You had justices Sotomayor, Kagan and Jackson, dissenting.

You know, David, it's interesting to me that we got an opinion from Justice Kavanaugh that nobody else signed on to because Justice Kavanaugh, his opinion is 11 pages long, and by the way, the dissent is 20 pages long. Clearly, there was some time to write here. Justice Kavanaugh raises several reasons that the majority, that the other justices might have thought this, one of which is just standing. So it's not on the merits at all, although Justice Kavanaugh talks about the merits as well. But what if this was a like 513 case where six of the justices didn't think that the individuals here had standing because they did not show likelihood that they would ever be stopped again, for instance? And again, when we get to this precedent question of how lower courts are supposed to apply

this precedent, it really matters whether it's a standing decision or not. There is also an interesting point that Justice Kavanaugh raises about the potential use of force. One of the people involved said that he was pushed against a wall, his arm was twisted behind his back, they asked him for his immigration status. I'll just read what he said here. Finally, although the dissent emphasizes the force allegedly used by immigration officers, that is not the issue in this case. The district court enjoined the government from stopping individuals for questioning based on several enumerated factors. The injunction is silent as to the use of force, and it is not necessary for the injunction to address that use of force question because the Fourth Amendment's

reasonableness standard continues to govern the officer's use of force and to prohibit excessive force. To the extent that excessive force has been used, the Fourth Amendment prohibits such action and remedies should be available in federal court. But David, are remedies available in federal court? If, right, because remember, state officers, you have 1983. These aren't state officers. These are federal officers. And Bivens is quite clear that this is not going to be a way in which you can bring a damages claim against the government if they use excessive, against the government. If they use excessive against the federal government. If these immigration officers use excessive force against you, you've got the Federal Tort Claims Act. Maybe. Anyway, it was kind of a weird line and maybe a

really important use of the word should. Right? He didn't say and remedies are available in federal court. He said remedies should be available in federal court. Cool, cool. But they aren't. All right. You know, I really appreciated Oren Kerr's friend of the pod, Professor Kerr's post about this and we should put this in the show notes. And he makes a very interesting point. And here I'll just begin read a little bit of it. The usual practices that courts rarely enter injunctions in Fourth Amendment cases. Fourth Amendment law is just too fact-specific. What the police can and can't do is so dependent on the facts that it's hard for courts to carve out ahead of time a class of things the Fourth Amendment will not allow. This creates a problem for courts wanting to impose

broad injunctive relief to prevent Fourth Amendment violations. It forces courts to either say something generic like don't violate the Fourth Amendment, something the Fourth Amendment already covers, or to try to come up with prophylactic rules to protect the underlying Fourth Amendment values, even if it means enjoining some constitutional acts to prevent other unconstitutional. ones. The Supreme Court has in the past interpreted limits on Article 3 to basically block these options. The key case is City of Los Angeles versus Lyons to get an injunction, a plaintiff has to show that the specific unconstitutional practice to be enjoined has happened to him before and will likely happen to him again. When that happens, the injunction will be specific,

not prophylactic. It will specify a clearly unconstitutional practice. But that's a high bar it requires a situation in which a plaintiff who had his Fourth Amendment rights violated in a specific way before to have good reason to think its rights will be violated in that same specific way in the future. It means that injunctive relief in Fourth Amendment cases is uncommon. Okay. So then he goes on to the injunction of this case. And I thought this was very helpful. So the court below had an A and a B. A, it says as required by the Fourth Amendment of the United States Constitution, defendant shall be enjoined from Kentucky detentive stop. in this district unless the agent or officer has reasonable suspicion that the person to be stopped is within the United States in violation of U.S. immigration law. Professor says A is just Fourth Amendment. Right. That's not helpful because, like, so wait, is ethnicity part of reasonable suspicion or no or what? Yeah.

Now, B is where the rubber meets the road. It says, in connection with paragraph one, defendants may not rely solely on the factors below alone or in combination. So right, you're at a Home Depot, you can't speak English, you definitely appear to be from a, you know, central South American country. I see you hopping in a, you know, the back of a truck in the Home Depot parking lot, not speaking English. And is that enough to stop someone, to have reasonable suspicion that they're not in this country legally and to ask them if they have, if they are and if they have proof of that? That injunction, just looking at it and And as Professor Kerr read, said, the injunction, as he said in the beginning, he was dubious about Part B from the beginning because it looked like the kind of prophylactic, programmatic injunction that Lyons bars.

And so only after I read Professor Kerr, who knows this subject better than anybody, did I, was I really able to wrap my head around, okay, I'm now making sense of what, like, happened here. But again, as you said, Sarah, there was a writing by Kavanaugh that the others could have joined and they didn't. And so I'm going to the Volok conspiracy at Reason Magazine to try to figure out what the Supreme Court is doing. Not ideal. Here's my conspiracy. Justice Kavanaugh, I think, feels pretty strongly or rather takes to heart the criticism that the court needs to needs to explain its reasoning on the interim docket. And so he's going to write more than everyone else. The other just, we know Justice Barrett, for instance, fears a lock in effect. She may want to look at this case kind of afresh when it comes back up to the court on its actual merit

stage. I think you have, for instance, a Justice Alito and maybe a Justice Thomas, really on that standing question, on the lion's precedent, saying like, well, the precedent of our court is. It's literally from Los Angeles. They don't have standing because there's just no particular likelihood that they're going to get asked again for their, you know, passports or proof of legal residence. And then you have, you know, the chief justice who doesn't join concurrences. So that's where you get a mess, right? And there is no majority opinion. And that's why you only get Kavanaugh, who, you know, writes a pretty full opinion, right? He has some merit stuff. He has some standing stuff. He can only write for himself. He answers some of the things

the dissent says. And that's going to be the rule as the case makes its way up the courts. Hopefully, hopefully, please, in the next several months, we're going to start to get these merits decisions and have something more than speculation and judgments. I've complained. about Congress not doing its job driving a lot of this, but it's driving sort of the underlying churn. The immediate, like, froth on the top here is we have all these executive orders coming from the president that are coming at the beginning of his term. Once that initial push gets resolved, in theory, we might see a lot fewer things coming up on that docket because there will be fewer emergency orders. There haven't been that many recently, for instance, though still, like, the

Federal Reserve thing is recent? You know, it's not a cure-all. David, can I tell you my reasonable suspicion case? One is never allowed to talk about the cases that they worked on during a clerkship. So I'll just say that it happened during my clerkship. The police have a confidential informant that tells them that there's drug dealing going on at House A and that the person leaves their house, you know, each day at 7 a.m., turns right. on the first street turns left on the second street and makes, you know, three stops and that's the drug dealing or whatever. And so the police are like, cool. So they park outside the house. The person comes out at 7 a.m., just like the confidential informant said, they turned right on the first street,

but then they turned left. And the police officer pulled them over and said reasonable suspicion. They knew I was tailing them, and that's why they turned left instead of right. And it was just such such an amazing case because it's like if they turned right, you had reasonable suspicion because it confirmed the CI. But if you turned left, you had reasonable suspicion because they must have been on to you. I'm going to guess that didn't fly. I'm going to guess. It did not. And if you're, you know, for those wondering how I can say that Justice Kavanaugh's point about how there should be remedies, this was not a damages case. This was an exclusion case. Because while they did not find the cocaine, I believe, that was supposed to be in the car. They did find, I think, pot,

like a dime bag of marijuana or something like that. So that was excluded from the trial, and therefore the case was dropped. No idea if that person was really a drug dealer. They probably are, for all I know. But, you know, Fourth Amendment has to mean something, David, and it means that you get to drive your car and turns one way or the other without getting stopped. At least a 50-50. All right, next episode, David, we have quite the snack pack for listeners. One, we have that alien enemy's opinion from the Fifth Circuit that we mentioned. Two, we have an incredible piece by Andy Smerich on the two schools of Supreme Court clerks, the Soutarian School and the Requestian School. We'll talk about that.

And I just wanted to revisit for a moment, Judge Young. If you remember, he's the one that got that pretty spicy concurrence from Justice Gorsuch and Kavanaugh about district judges do what we say. Don't, you know, ignore us. I've had that discussion with my five-year-old. And Judge Young apologized. So more to come on all of those topics and who knows what else. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us, and we hope you'll consider becoming a member of the dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles.

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Thanks so much for tuning in. We'll see you next time. Thank you. Oh! Oh! Thank you. Thank you.