Advisory Opinions - Delegate Fun Time

Episode Date: March 2, 2020

David and Sarah discuss the likelihood of a brokered convention after Joe Biden's big win in South Carolina, the appeal court's Don McGahn decision, the CFPB fight at the Supreme Court this week, and the intersection of #MeToo and revenge porn in the Katie Hill story. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. We've got a super packed pod today. We're going to talk about Joe Biden. We're going to talk about brokered conventions. We're going to talk about Don McGahn and why the D.C. Circuit seemed, at least one judge on the D.C. Circuit seemed terrified of wading into a legal dispute. We're going to talk about Elizabeth Warren and the Consumer Financial Protection Bureau and a Supreme Court oral argument. And we're going to wind it up with a little discussion of Katie Hill. And we're all going to do that in less than an hour. It's a lot.

It's a lot. It's a lot. So let's get started with the obligatory. Please subscribe to this podcast. Please become a member of the Dispatch, thedispatch.com. And please rate us on Apple Podcasts. We really appreciate it. It's helped us out a ton. And with that out of the way, OK. Well, David, wait. I have two updates from our previous pod. Oh, good. Okay. I saw Liz Merle yesterday.

She came over to do laundry, actually. And she has her argument this week. I thought it was a great pod. Two items. One, we said that Heller's stat was 5-4. Justice Scalia had already died. So it was actually 5-3. So just a quick, you know,

sorry for that. Two, if you are curious about her shoes, as I know you are, David. Well, that's all I've been thinking about. Right. So the shoe situation was resolved. She brought them over to the house. They are gorgeous and a perfect compromise. I mean, they're black, lower heel with red, like, front nice pieces on the toe. So it's like exactly perfect. That's what I was thinking she should go with. Yeah. Except that, can she put in Sharpie Joe Burrow's number, like, in the back of the shoe? It's weird. She's not going to do that. Yeah. Yeah. Oh, well, that's that's unfortunate. But they've got the red bottom, the Louboutin. So if you are going

to the court to hear this argument this week, check out the shoes. Well, we're going to appeal to your expertise on things unrelated to footwear for the rest of the podcast. OK. And I want to start with your expertise, your political expertise, because we had a primary Saturday, the South Carolina primary. We've got mega primaries tomorrow, which I'm sure we'll be talking about on the flagship dispatch podcast come Wednesday. In a world where 35% of the delegates are allocated on one day. Exactly.

So I have a question for you. Putting on your veteran of presidential campaigns and the roller coasters of primaries hat. Yeah. When you saw what happened on Saturday in South Carolina, where Joe Biden really ran up the score on Bernie Sanders. Was that a moment, to use a biblical analogy, a Lazarus come, Lazarus come forth from the grave, from the political grave moment? Or was that a false dawn for Joe Biden? Or is it just impossible to tell until Wednesday morning?

All three. So, okay, let's break this down. One, Joe Biden, Joe Biden's win on South Carolina was larger than really any of the predictions. He won by just under 30 points. The poll that had come the closest to predicting that had him winning by 28. And that poll wasn't used in a lot of the averages because it was seen as an outlier by so many of the polling average websites. Shout out to FiveThirtyEight. They did include it because they spend so much time actually looking at the fundamentals of these polls. And, you know, I've gone off on using polling averages and not single polls, and this is why. But you also need to make sure you're looking at polling averages that pick good polls. Right. OK, so first of all,

exceeded expectations is always the benchmark for presidential campaigns. Second, he was about four to one with black voters according to exit polls. That's a big, big deal heading into the rest of these primaries, Tuesday notwithstanding even, just all of them. Also though, the number that I found most interesting in South Carolina was the first

time caucus goer number. And it was higher than 2016. And what we haven't seen from the Sanders campaign, their main argument is we're going to expand the electorate. We can reach new voters, which is important for November. But again and again, Iowa, New Hampshire, Nevada, that hasn't really been in the numbers. Iowa in particular, where we have sort of weirdly the I think the best breakdown, even though it took forever and the AP still won't call a winner. even though it took forever and the AP still won't call a winner. The electorate expanded by about 3%. But if you go look at where that was, it wasn't in Sanders-won precincts. His precincts were usually the same or about 1% higher. It was the non-Sanders-winning precincts that went up by about 3% to 4%. Interesting. non-Sanders winning precincts that went up by about three to four percent.

Interesting. So you combine that with South Carolina, where now we do have a real bump in first time primary voters. If I say caucus goers, I'm sorry. Primary voters. And Joe Biden won those people as well. So it undermines Sanders argument, definitely helps the Biden argument on electability, which he needed not only a win, he needed an electability win, if that makes sense. So no question, Joe Biden stays alive. If he hadn't won, or if it had been close, frankly, that would have been the end. The real story of South Carolina is Joe Biden's still in the race, and then we move on. Well, it also seems like the story of South Carolina is it's Joe Biden and Bernie with maybe an honorable mention by Bloomberg and everything else. Everyone else is just yesterday's news, whether they know it or not.

Well, this is where it's important to know the differences between the Republican primary rules and the Democratic primary rules, because now we're into like the delegate fun time. Yes. We're done with the early states now. So can I dive into some delegate fun time? Yes, please dive into delegate fun time. Is there any other time of fun? Is there anything other than fun time when talking about delegate time? I love delegate fun time. I have to tell you, this is like what I do with Excel sheets at home is look at delegate numbers. So on the Republican side, the reason that you haven't seen brokered conventions in the past, despite even in 2016,

everyone like there could be one. It's very hard because they're winner take all states. They're plurality states. There's different thresholds. Sometimes the thresholds are very high, like around 20%. And so the field narrows

much more quickly because of that. And delegates get accumulated by the front runner much more quickly because of that and delegates get accumulated by the front runner much more quickly now look at individual states and their incentives if you're a big state you want to do plurality because you want everyone to compete if you're a mid-level state you have an interest in doing winner take all so that someone comes to compete you want that those sweet sweet ad dollars uh, so that's the Republican side. On the Democratic side, for as long as it matters, they've been doing plurality

with this 15% threshold. Asterisk on the 15% threshold. This is more complicated than it sounds. There are statewide delegates and there are congressional delegates, congressional district delegates. The 15% threshold applies to both separately. So just because you get, let's say Bloomberg gets 16% statewide, in any number of congressional districts, he's going to dip below that 15% threshold. Or he gets 14% statewide, but in any number of congressional districts, he gets above the 15% threshold. So the delegate map gets messy and it is hard to do at home unless you're sitting there with a huge map of California with every CD and every outcome of the primary. Okay, so that's why we're most likely to have a brokered convention this year of all of the possible outcomes.

likely to have a brokered convention this year of all of the possible outcomes. It's a fractured field still. The 15% threshold plus the plurality means that Bernie Sanders certainly has the highest likelihood of being the plurality delegate getter. But at this point, you know, 538's models, common sense, it does not look like he can get to 1,991, which is what you need to have pledged to you on that first ballot. Now, fun caveat, because Buttigieg and Steyer have dropped out, the other part of this is that those votes, California had a lot of early voting, so it's a little messier than I'm going to make it sound, But those votes are going to go to Bloomberg, Warren, maybe Klobuchar. That will raise more people above the 15 percent threshold. Right. It fractures the vote even more. So real quick digression. Yeah. What's your thought on early voting? Because I look, I understand the appeal of, in theory, getting more people out through early voting.

But also there are tens, hundreds of thousands of people who maybe millions who voted in some of these early states and are the Super Tuesday states for people. Tuesday states for people. And no doubt tens of thousands, if not hundreds of thousands of those votes have now gone to candidates who are no longer in the race. So I it's funny you say this because I was struggling with this as I drove in today because I saw people on both sides tweeting. And I was like, what do I believe on this? Because I think having more people vote is a good thing. I think expecting everyone to vote on a random Tuesday during work doesn't work for everyone's schedule, child care, etc. But there is a difference between the general election where we are usually down to two people. There's no likelihood of someone dropping out. The only likelihood is that you will find out information that you did not know before. Right. That is different to me.

Because if you're just like, look, no, I'm voting for Trump. There's no information you could tell me. Right. And you know that about yourself and you really believe that. OK, I think we should maybe limit early voting to two weeks or something. There are some states that have just enormous early voting windows. Being busy on a Tuesday, it's a little hard to justify why you're busy for like a whole month. Right, right. We have absentee ballots. That's separate. Like if you're going to be out of the state, out of the country, et cetera, there's another way to do this.

In the primary, though, early voting, you're right. It becomes much trickier. And in California, for instance, this sucks a little. There's a ton of early voting that's already happened. Yeah. You know, my general view on early voting is I totally agree with your point about the Tuesday, that there are things that come up on the Tuesday that you can't foresee and you're out of luck. And I think that that's a problem. I would tend to be more in favor of a voting week, a voting week culminating in that

Tuesday. Then the longer it gets, the more we're starting to sort of talk about the electorate that we would like to see rather than the electorate that really is. And one of the things about the longer it is, the fact of the matter is most people, especially some of the people who are more later deciding, don't really zone in until later in the process. And so, you know, votes get cast on lots of partial information before there's a flood the zone of information, before there's a really raised voter awareness. And you see this happen time and time again. I agree on primaries. It's far more problematic on the primary. Going back to 2016, there are people dropping out of the Republican primary when after people had already voted for them.

But I honestly think it's one of those things that's sort of like in theory, what do you think about this? dropping out of the Republican primary when after people had already voted for them. But I honestly think it's one of those things that's sort of like, in theory, what do you think about this? But in reality, I think the ship has sailed. I think that a lot of people do just like it and they like having that broader window. And once it's there and once people sort of like it, we just have it. And well, let me point out two other issues on the other side, on the pro-early voting side. One, at least according to the most recent poll that I saw, which was a morning consult poll, Buttigieg's voters, for instance, when you ask them their second choice, are, believe it or not, equally split. Bernie Sanders takes about 21 percent.

Biden and Warren split with about 19 percent. And Bloomberg then has about 17 percent, which is all within the margin of error. So really, everyone gets about a 2 percent bump, in which case it didn't really matter except if you were going to fall below the 15 percent threshold. Second, if we did voting weak, as you suggested, you know, they didn't drop out until this weekend. Like South Carolina didn't happen until Saturday. So the voting week would have ended up more or less the same. Yeah. Yep. That's true. That's true. Well, I mean, let's just let's just be blunt about it. There's it's going to continue. Early voting is going to continue. It's going to continue. Early voting is going to continue. It's going to have positives and negatives. And voting week, as you said, would have some downsides this year. It's funny to me, though. I do think there is an interesting phenomenon where we're always fighting the last war in primary rules, and it always has negative unintended consequences in the next primary.

And we never learn. And we never, ever learn. Speaking of that, by the way, let me dive into some brokered convention fun time. So in 2016, all of the delegates, including the superdelegates, got to vote on the first ballot. It's another reason why brokered conventions have been less likely on the Democratic side. The Bernie Sanders campaign was upset about that because of the superdelegate issue, let's call it. And so they worked with the DNC to have new rules for this time. Speaking of fighting the last battle, they made rules that they thought would have helped them in 2016.

rules for this time. Speaking of fighting the last battle, they made rules that they thought would have helped them in 2016. So the new rule for 2020 is that on the first ballot, only pledge delegates, and there are 3,979 pledge delegates, as I said, some statewide, some CD, 15% threshold, all that. Only those pledge delegates get to vote on the first ballot. So a candidate has to have 1,991 of those delegates already pledged to become the nominee. If no one reaches that, which right now is the most likely scenario, on the second ballot, all 3,979 pledged delegates become unpledged, meaning they can vote for anyone they want to. And 771 superdelegates will get added into the mix for the second ballot. And so now you're going to need 2,375 delegates on the second ballot to secure the nomination.

And in 1952, you just keep voting from there. Deals get struck. Delegates get traded. Horse trading. And this is where Warren's main hope is. Right. Their campaign manager is not arguing that they're staying in the race because they think they can get to that magic 1991 number. They're staying in the race because they want to have delegates going into that brokered convention for really not even ballot number two. They're

looking at ballots number three, four, five to see what could happen. Well, and this is a situation where perhaps you could have Bernie short of 1991. Elizabeth Warren has a few hundred out there. And, you know, second ballot, third ballot, you have, oh, are we going to have the unity ticket? Or are you going to have the Biden and

Bloomberg? You know, what's their total number? And coming with delegates in that case helps. Right. Exactly. And that's why people will stay in the race longer than would otherwise make sense, especially now that it looks like a brokered convention. Which then, of course, by staying in the race longer makes it a brokered convention. Which then, of course, by staying in the race longer makes it a brokered convention. the Democrats could nominate somebody who is an avowed democratic socialist. My favorite piece in the last couple of days has been one by Ronald Brownstein in The Atlantic called The Sixty Trillion Dollar Man, describing Bernie Sanders, that that's the actual price tag of his agenda is $60 trillion over 10 years, which to put in perspective, the entire federal budget is less than that. Like if you had 10 years of the current

federal budget, it's less than $60 trillion. So he's talking about more than doubling the total budget. So on the one hand, you're looking at it and going, are you kidding me? You're talking about the Democrats probably, although not certainly, but probably as of right today, nominating somebody with the most fantasy land agenda that I have seen in my entire adult life, which I think is bad for America. And then on the other hand, you just sort of like remove yourself from the good for America, bad for America. And if you're like a bystander, this is going to be a total bystander. This is going to be unbelievably interesting, unbelievably entertaining in some ways to sort of watch this all play out.

But I can't disconnect from the fact that the end result of this might be the nomination of the $60 trillion man. And again, I'm not somebody who thinks that Bernie can get even one of the key elements of his agenda through, not even one of them. Like I don't even think the most modest of his big reform ideas will make it through Congress. But I think it's really bad for this country when you get into office, a person who has made it into office in part through the most extravagant promises possible, fired up millions of people on the basis of those promises, and then bam, runs into the brick wall of the American constitutional system and the separation of powers. It's just, you know, this is something from just the standpoint of what is good for this country. I don't think that that is good for this country. I'm not sure that I agree with several points of what you said there,

but I think it's a good place to put a pin in this conversation. And perhaps next pod, you and I can talk about the Senate races up in 2020 and the likelihood of Democrats taking the Senate. Yeah, that's that would be a great conversation. In the meantime, tomorrow, I will be watching California to see how much Biden or Sanders wins by. And then Texas. I know I'm from Texas, so I'm a little biased here, but I will be watching those Texas numbers like a hawk. Everything about the exit polls there, that's where Biden needs to show that South Carolina mattered. And he needs to pull up. He was running about three to five points behind Sanders before South Carolina. he needs to pull up now and get closer or overtake Sanders in Texas

to make this a viable thing going into the brokered convention. I mean, if Bernie wins Texas and California, it is just the sheer math of that starts to become overwhelming. Well, and it's hard for the superdelegates or the unpledged delegates on a second ballot It's hard for the superdelegates or the unpledged delegates on a second ballot to not vote for the person who won. Maybe he got short of 1991. But what if he's 50 delegates short of 1991 or just 100 and everyone else is way, way below him? That's very different going into a brokered convention than Biden and Sanders are clumped together within 50 or 100 delegates of one another. So California is 415 up Tuesday. Texas has 228 up Tuesday. Let's see what happens. And it is a Southern heavy Super Tuesday. I mean, the California

California was is kind of added to it to, you know, it wanted to go earlier. It wanted to be more important. It also diminishes the very Southern heavy flavor, traditional Southern heavy flavor of Super Tuesday. But it's still a pretty Southern day tomorrow. It is. And you have North Carolina, which will be interesting, and Virginia. Virginia in particular, look at those suburbs and how they turn out. Sanders has been struggling in the suburbs. Again, if Biden can really rack up numbers among college educated suburban white voters, as well as his four to one that he was running in South Carolina with black voters, that's another thing that a brokered convention and unpledged delegates would really have to think about.

So lots to lots to look forward to tomorrow. Yes. And by the way, this is going to take a while for the results to come in. So expect a lot of complaining on Twitter that we don't have results at 7.01 p.m. Correct. And also, this is a good time to plug the fact that we're going to be offering the best analysis of Super Tuesday in the podcast universe on Wednesday. Oh, true. Yes, on Wednesday, our flagship dispatch podcast. I don't think that's too much puffery to say the best. Not at all. No, no.

Well, adding in Jonah and Steve, I mean, it's everything. Yeah, I mean, well, we would have the best analysis. It's just the margin between the rest is narrowed a little bit by adding Steve and Jonah. Well, then let's move to our specialty, which is law. So yesterday or last week, we had a very interesting case decided in the D.C. circuit. And this was this was involving the House's attempt to. And I just got a just got a did you see, we got a little alert as we transitioned. Maybe we need to detransition briefly. It looks like we have breaking news that Klobuchar.

Klobuchar is out and endorsing Biden. Give us 30 seconds. How much does that matter? It matters for the same reason as Steyer and Buttigieg. It is more likely now that Warren and Bloomberg will get over that 15 percent threshold in the rest of these states, taking some delegates. It does narrow the field. I don't see Warren or Bloomberg, though, moving out. So we will have a four person field moving forward through at least a little while now, certainly through Tuesday, but probably well past that. And the only question is whether Biden and Sanders can treat this like a two-person race and move Warren and Bloomberg out of sort of the main conversation. Bloomberg's money prevents that largely, and Warren's debate performances. Right, right, right, Exactly. OK, well, that nice 30 seconds. Now we'll we'll move to the back into court. So the D.C. Circuit Court ruled last week that, well, the D.C. Circuit rejected the House rule, it did not reject Don McGahn's, it did not reject the House's bid to have Don McGahn testify in the subpoena on Don McGahn on the grounds that McGahn has any sort of absolute immunity from testimony, as he had argued that he did, which is asserting an argument that we've dealt with in previous podcasts. which is asserting an argument that we've dealt with in previous podcasts.

But essentially what the D.C. Circuit said, and I'm just going to put this in plain English. Why are you asking us to resolve this political dispute? Keep us out of this. This is between this. If this is a schoolyard fight, this is between Congress and the president. And don't pull us into this thing. We want to keep our hands clean. between Congress and the president. And don't pull us into this thing. We want to keep our hands clean. That was essentially the ruling. This is a political dispute between political branches of government. And and we're not going to make a ruling on absolute immunity. We're not going to make a ruling on in really any of the substantive points. Just keep us out of it. Your thoughts. Okay. This was a fun opinion for a few reasons. One, you have three DC Circuit judges each writing their own opinion. Right. And so I think what you're describing very accurately captures Judge Griffith's opinion.

Yes. Which Henderson joined but narrowed in her concurring opinion. And, of course, Rogers disagreed with entirely. So, first of all, this will not even – this isn't the last word on this by a long shot. I think there's a high likelihood this goes en banc, like really, really high. I don't see how this doesn't go en banc when you have all three judges writing very different opinions, frankly. It may even go all the way up, but I do think it'll go en banc first. Henderson's opinion is interesting in how she first, the Griffith opinion makes it sound like this forecloses any institutional injury from any interbranch dispute. Right. She doesn't accept that.

Yeah. She also quibbles with the assertion of absolute testimonial immunity for McGahn. So she just narrows it on two pretty important fundamental parts of the Griffith opinion. But everyone agrees this turns on the Raines case, which is the line item veto where you have a group of House members that bring the challenge against the line item veto that was under President Clinton. There's a lot of differences between Raines and this case. The Judiciary Committee was authorized by the whole body of the House to do this impeachment inquiry. Therefore, their subpoena of McGahn was sort of in a bank shot agreed to by the whole House of Representatives. Totally different than Raines, which was like a group of some random members being like our rights as congressmen, individual congressmen are being stepped on.

Yeah, I found the reliance on Raines to be unpersuasive for the very reason you state. And, you know, the interesting thing about this is one of the – I found the Griffith position – the Griffith opinion very unpersuasive on a couple of grounds. One, I thought the – Raines is easily distinguishable along the lines that you say. And then the other thing is he put a lot of stake in the absence of precedent being precedent. And here's what I mean. He basically said. Proving that the elephant fence I have in my backyard has been working this whole time. Yeah. Yeah.

It was like because there hasn't been a dispute between the branches brought to the court along these lines until sort of the Nixon era, that meant that this dispute should not have been brought to the court. And that was an interesting line of argument. If you really applied that as sort of a precedential concept, wow, the implications for that would be pretty profound because let me just take an example. very sparse, very sparse for more than a hundred years in American history. All kinds of areas of jurisprudence have been extremely sparse until the modern era. There's a lot of reasons for that. One of the chief among them is the doctrine of incorporation of the Bill of Rights to the states and local governments, which is irrelevant here. But this idea that because there wasn't a precedent before, we're treating that as precedent, that this should not be before the court is a true reach in my view. And the fact that political branches were able to,

at least one or more to their satisfaction, work things out prior to the modern era, to their satisfaction, work things out prior to the modern era. It's, again, quite a bit of a reach as far as a standpoint of what is the legal precedent here. And then the other thing that was persuasive to me about the dissent is, look, the dissent goes and it locates the House's power here right smack in the plain text of the Constitution, this impeachment power. This is the House of Representatives operating the absolute apex of its power. And the practical result of this is that, yeah, the House can operate at the apex of its power, but it has zero ability judicially to enforce any aspect of, to seek the aid of the judiciary to conduct its investigation. And the interesting irony there then is that if the House cannot go

to the judiciary to get evidence or to enforce its, to seek evidence and to enforce its ability to seek evidence, doesn't that then render sort of the count two of their impeachment count all the more vital that if you're going just the mere act of resisting our investigation itself, we now have no recourse to the courts. So if you investigate, if we're investigating and you resist, our only recourse is what we're going to do. We're going to shut down the government or we're going to impeach the president. That's it. You say this with like David incredulous tone, but I actually want to make the same point, but in non-Sarah incredulous tone.

Because Griffith says that. He says the absence of a judicial remedy doesn't render Congress powerless. Instead, the Constitution gives Congress a series of political tools to bring the executive branch to heel. Congress may hold officers in contempt, withhold appropriations, refuse to confirm the president's nominees, harness public opinion, delay or derail the president's legislative agenda, or impeach recalcitrant officers. So what we're discussing is actually, I think, a very fundamental question, which is, does Congress have subpoena power like what you're talking about, a subpoena power backed up by the judicial branch? And Griffith is saying no. And you may disagree

with that, but it's defensible that the Constitution gave each branch certain checks and Congress's checks don't know, like a Nixon v. United States, they're still good. Yeah. They're still good. So. It's going on Bach. Yeah, it's going on Bach. It's going on. Yeah, it's going on. It's going on. So Nixon v. United States, you know, there are other other legal processes where are going to be just totally fine. But the House of Representatives operating the apex of its constitutional power. Nope.

And well, and to your point, it also causes a messy situation where, as as Rogers notes, every administration from now on can just tell Congress to hit the pavement and may well do so. And then Congress's really only response can be to impeach the president. What if they just want something pretty simple and now they have to decide between giving up on this pretty simple thing or impeaching the president. Yeah, or shutting down the government. Yeah, that's not great. No, especially when Griffith's opinion was full of – it was frankly really full of policy arguments. It was quite – it was full of sort of like a parade of horribles and if this, then this. horribles and if this, then this. And it was a surprising opinion to me from the standpoint of this did not read to me like the court opinion of a conservative originalist jurist.

It did not read like that. Non-precedent is precedent. Hmm. You know, precedent isn't precedent. Hmm. Griffith has always walked to his own drummer. This is not so out of step with Griffith's jurisprudence. Well, yeah. Fair enough. Fair enough. And it's why it's going en banc. And it's why it's going en banc. Yes. Yes. And I expect something a lot more coherent out of en banc.

But we shall see. Well, let's move on to two Supreme Court items just very quickly because this will follow up on a previous podcast. The Supreme Court is going to hear the Obamacare case after all. Next year. Next year. Next term. Next year. Next year. Next term. Next year. So this year, next term. Sorry. Yeah, this year, next term. So we will not under any circumstances get an opinion or barring shockingly unexpected turn of events, get an opinion before the presidential election. Correct. But they will hear the Obamacare case. Super fast prediction. I expect them to strike down the individual mandate and sever it from the rest of the statute. That's got to be where money is in Vegas. Yeah, I'm sure. Did you check the money line on the.

It's weird. You and I are the only ones involved in the pool. That's true. And we just distorted the whole thing. But severability rears its head again tomorrow in the CFPB case in front of the court. Yes. Now, this case is interesting. It's getting less interesting with the demise of Elizabeth Warren's presidential candidacy. to see. I say that because she has consistently pointed to the CFPB, in which she absolutely took the lead in creating this agency, Consumer Financial Protection Bureau. She took the lead in creating this agency. She took the lead in designing this agency. It's entirely fair for her to say that, to point to that as a political accomplishment of hers, a signal political accomplishment of hers in the course of her career. And it also happens to be, in my judgment, profoundly

constitutionally flawed. And again, this is in my judgment, one of the reasons why it's profoundly constitutionally flawed is what Warren attempted to do was to create and actually did do was to create an essentially an independent agency that has been disconnected from the constitutional separate. It attempts to circumvent the separation of powers by taking an executive agency and removing it from the control of the chief executive or largely removing it from the control of the chief executive and doing so by creating an extreme degree of independence or what I would call an unconstitutional degree of independence. And the director of the CFPB, who though is nominated by the president, cannot be removed by the president except for statutory cause. The president's hands are tied to at least to some degree in removing this director. And this director has an awful lot of power. And wait, very importantly, executive power. Yes. That will become very relevant to this.

Yes. Executive power. An enormous amount of what we had classically construed as executive power without the ability of the executive, the chief executive of this country, to remove him at will. And this will turn on a couple fun cases from the past. And this will turn on a couple fun cases from the past. I mean, the most fun named case, certainly in the first year law curriculum, I think, is Humphrey's Executor. Yes. I don't know why. I always got very attached to that name. So this was on the structure of the Federal Trade Commission.

Five commissioners who could only be removed for cause. Some want to distinguish that, that A, there's five of them. I'm unclear on why that's important. People have tried to make this case and I don't follow why five is particularly different than one if it's unconstitutional, but that they do not really wield executive power. Right. That is more relevant to me. That's the more persuasive part. And the second one is Morrison v. Olson, which is the independent counsel appointment. Yes. Which falls underneath the attorney general. There's other ways to distinguish that one as well.

And so to some extent, we're walking into tomorrow, into CFPB land, with not a whole lot of precedent, actually. Right. And that's fun. Those are, actually. Right, right. And that's fun. Those are always fun. No, that's good. And it'll be very interesting to see. And there's a severability issue here. So if-

A big one. A big one. So if the director, if the statute's governing the independence of the director are struck down, does that mean that the CFPB, to use a poetic term, goes the way of all flesh, that it goes gently into that good night? It disappears. So there's a few things here. One, the court could make this a referendum on severability. Right.

But if it doesn't, it seems pretty clearly severable. Yes. Like either severability law exists, in which case this is severable, or all severability law is stupid and wrong. And, you know, then we'll have a big discussion on that. Part of that, for me at least, is that for cause is not defined anywhere. For cause, I agree it can't be that the president's Wheaties weren't mixed properly with the milk, but anything can be for cause. Right. They don't show up to meetings on time. I don't know. Bad tweets. That's for cause. Bad tweets. So, you know, for cause is the least onerous standard, really. And then second, there's another problem with this case, which is that none of that really matters to what this person actually her actual injury is.

Right. That is another. I'm so glad you brought that up. I'm so glad you brought that up. So I could. So, I mean, the court could kick this, like explain it. But like basically the court could say like, yeah, this is irrelevant. Yeah. In other words, the person who is suing to challenge the owner, the ownership, the leadership of the CFPB, the leadership of the CFPB has exactly nothing to do with her. nothing to do with her. The precise issue at hand in the case has absolutely nothing to do with the CFPB's operations against her and proceedings against her, unless you can use the unconstitutionality of the director to punt and get rid of the whole thing. Yeah. And this is where so the solicitor general more or less refused to defend the CFPB's constitutionality. The court then appointed Paul Clement, no surprise there, to represent that interest. And this is Clement's argument.

Yeah. Why are we here? What is this about? This is irrelevant. We should go home. Yep. This is not a good use of my time. Well, you know, it's interesting. Let's just let's wrap several strands together at once. OK. And this is not going to be too much of a reach. So I can imagine a situation where this court basically says, can you I can imagine a situation where this court punts this case on the basis that, why are we deciding this issue? A future president fires a CFPB director for cause, and the cause is, they looked cross at me at a cabinet meeting. Not that they would be at a cabinet meeting, this isn't a cabinet position, But they looked across at me in a meeting. The CFPB director then sues. The fired CFPB director then sues. And then the D.C. Circuit rejects her lawsuit because of the Griffith opinion that says,

don't get us involved in political disputes. That would be fun. That's a fun. I like that. How fun that's a fun uh i like that how's that how's that you know so i like it clements uh just to read a portion of his brief uh that while and i'm paraphrasing at times here just to shorten it but uh while the constitutionality of this structure is undoubtedly important it has almost nothing to do with the actual dispute between her name, Celia law, which I love that name, by the way,

great litigant name. Oh yeah. Um, uh, which arises from an effort by the CFPB to enforce a garden variety, civil investigative demand. And then he goes on to basically say that the currency CFPB director will fully acknowledge that the president can remove her for any reason.

And with that acknowledgement that she is choosing not to drop the enforcement petition against Cecilia, Cecilia Law. So once again, why are we here? Yeah. Yeah. You know, and this brings up a good a good one last last thing one last law nerd thing um and that is the there was an aspect of the the um g the case we talked about last podcast that we didn't get into all that much and that was because a lot of these supreme court cases we talk about that are very very hot button in very different ways often have the escape hatch to them, like in Celia Law, the escape hatch. Well, there was an escape hatch we didn't really dive into in the G case, which is that there is a way that the court could render a ruling in that case without dealing with the underlying doctrine governing abortion at all. And that was there was a standing argument regarding the ability of can Planned Parenthood

or can someone assert essentially third party standing on behalf of women who would be allegedly suffering an undue burden to their right to abortion? Or does this have to come from an actual person who is a person who believes that they have suffered an undue burden to their personal right? And if the Supreme Court decides decides that you've got to have, you know, an actual, if you've got to have an actual woman who is suffering the undue burden, that actually has some really interesting implications for pro-life or for litigation supporting abortion rights going forward that could have some positive effects for the pro-life movement. We actually we had a we had someone who wrote us. You can write us, David, at the Dispatch dot com, Sarah at the Dispatch dot com, making that point.

And I thought it was a good point worth exploring just a little bit. And David, you have just I mean, you've tied all of these threads together, all threads now forming one weaving Supreme Court jurisprudential basket, I would say. Yes. Yes, they're all. Exactly. See, the law, it's like a symphony, Sarah. Ah, yes. Thank you. Yes. It's not just the woodwinds and it's not just the strings playing independently. Side note, did you play an instrument? Let me just go ahead and say for all time and for all purposes, I have zero musical talent or experience in any way, shape or form.

Wow. I did. I did play the flutophone in fifth grade. Are you familiar with the flutophone in fifth grade. Are you familiar with the flutophone? I don't even know what that is. I am definitely not. It's sort of a plastic, and the higher end ones can be wooden. It's like an elementary school in the south, intro to music sort of instrument.

It has like five or six holes on it. Hey, here's my daughter's, my youngest. This is her flutophone right here. hey, here's my daughter's, my youngest, this is her flutophone right here. David is showing me what looks like that thing that elementary school kids blow into. I would not necessarily refer to that as a musical instrument, though I'm sure I'll get massive complaints. So I played viola and, in fact, made all of my money in high school and some in college playing viola.

So I'm all here for the symphony metaphors. all of my money in high school and some in college, uh, playing viola. So, um, I, you know, I'm all here for the symphony metaphors is my point. I know I, I have seen and listened to symphonies. So that's, that's my experience. Well, good for you. Let's move on to our last, uh, our last, um, point or the, our last topic, which is a really, really interesting. Messy. Yeah, this is so this is getting back to a story that keeps getting sort of new life because Katie Hill, the congresswoman who won a pretty dramatic, some would say upset victory in 2018. There was a revenge porn incident where pictures of her leaked in various states of undress. One of the salient aspects of this was that she was in a thruple with her husband and a young campaign aide. And she ultimately was then accused of having a relationship with a congressional staffer, which is against the rules.

She denied that. He denied that. She resigned anyway. She denied that. He denied that. She resigned anyway. And she's sort of enjoying a second life after this resignation as someone who's sort of an empowered, outspoken victim outspoken, will not be silenced victim of revenge porn kind of skates over what those and admittedly very vile disclosures disclosed, which was a highly inappropriate relationship with somebody that worked for her in a very junior position. And it's just interesting to me how much a lot of the sort of the post-resignation coverage of her skates over that. And so, yeah, so I really wanted to hear your thoughts. What is interesting about the story

is that you have two colliding cultural movements. You have this revenge porn online pictures, usually of women, used to shame them, ostracize them, slut shame them, whatever term you want to use, bumping up against a different tectonic plate, which is the Me Too movement. Right. And the idea that someone in a position of power cannot get consent from someone who is in a position beneath them. And OK, so that's where we enter this story. I think I disagree a little on the coverage. And in fact, I think that I've seen a number of journalists do a really good job grappling with a complicated story. And it's an interesting story. Like so most recently, I was reading the cuts profile, which is very complicated and interesting. Yeah. Yeah. And like, this is a line from the reporter. Well, let me quote what Hill said to the reporter.

You know, honestly, it was one of those things where it was like, well, I'll just deny it. Hill said, Morgan is not accusing me of anything. This is the young staffer. She doesn't want it to come out any more than I do. And the reporter, the next line from the reporter is plenty of politicians lie, but it's rare for one to tell a reporter it was her game plan. Right. And then it goes on to talk about, you know, this woman has not had a life that you would wish for your child. Yeah. Oh, my. Yeah. You know, she recalls several sexual assaults starting when she's eight years old through when she's 16. There's four in detail here. Depression, which is not surprising.

You know, a story that weaves together pretty nicely, even if you want to pick apart any single part of it. Yeah. This is the story of a woman who has not had a happy life so far. And then through a series of unexpected events, finds herself running for Congress. And then an unexpected victory is in Congress. And she makes some bad decisions. And isn't just in Congress. She's kind of pulled out of this freshman class as, hey, look, this person is a rising star. This is somebody to watch. Right. She's 29 when she starts running.

The staffer is in her much earlier 20s. running. The staffer is in her much earlier 20s. But, you know, something that Hill kind of keeps saying throughout is like, I didn't think of myself as an adult, which gets to a third tectonic plate that might be worth exploring. I talked to one of my friends at length about this at dinner last night. This idea that we have given millennials and and I'm an elder millennial, I'm the oldest year of millennials, so I am part of millennials. But Gen Z millennials, that adulthood doesn't really start until I don't know when? Yeah. Caleb, by the way, is saying 30. Definitely it doesn't start until 30.

And this is a really good point. I didn't know you were going to bring this up, but I'm so, so glad you did because this is really one of those things where often I think the generational differences narrative is a little overblown. Like it isn't exactly true that each generation has a completely distinct personality. I think we double down on that a little bit too much. I do think there's something to it, but we just overread it. But one thing I do think that has changed over time is this notion that when you're in your mid to late 20s, you're still a kid. And you should get to play by kid rules. And you play by kid rules. That idea would have been utterly alien to me when I was 23, 24, 25. When I got out

of law school, the idea that I was still a kid would have been kind of offensive to me. Like, kid would have been kind of offensive to me. Like, no, I'm an adult. And you're kind of questing for more and more and more responsibility. But the interesting thing is she kind of tries to have it both ways. She does the most adult, one of the most adult things you can possibly do, which is run for freaking Congress, you know. And then the other thing is she then says, well, I mean, I was only almost 30. What do I know? And those two things are very inconsistent, I have to say. Yes, but like, you know, we contain multitudes. I'm sure you hold many inconsistent thoughts as well about yourself.

David's like he's literally looking up into his brain. I can see him. He's like, what are the inconsistent are the we'll get into that later but okay so can she be a spokesperson for revenge porn given the me too stuff it's sort of what you're trying to drive to right i i'm torn on this because whenever someone has been the victim of revenge porn, there is clearly something that has gone, there's something to attack them for, basically. And so we're never going to have a great spokesperson for revenge porn unless we accept some of the messiness that is going to come with that.

For instance, she claims that her husband, alleges that her husband was, you know, pretty abusive. And she details a lot of that abuse. And he's the one, she again alleges, who releases the 700 images of her, took many of them without her knowledge or consent. And so she is correct that the woman, the younger staffer, has not accused her of anything, alleged any impropriety. This was all done by an abusive spouse using revenge porn to get that narrative out there about her. I can see this from her point of view that this is about revenge porn. Yeah.

That it's one thing in the Me too movement when someone says like i did not give consent i my career was affected you know this hurt me and i want an apology and i want my rights um you know justified here that's not what happened here yeah and that does make it messier for me that this is um you know a pretty vicious thing that someone did to her who she said has abused her through the marriage. I think that I think that it's yeah, it's it's pretty vicious. It's it's it's extremely vicious. It's just wrong, malicious, full stop, like just full stop, wrong, malicious, awful, to do that to another human being, to try to so thoroughly, publicly humiliate them in a way that will stick with her, you know,

the Google trail of that. I mean, it's... We're talking about it. Yeah, it's awful. It's terrible. It's wrong. I think that, you know, one of the things that we often do in our culture is we, in the effort, we take issues, and this is part of the natural, just the way we are as human beings, is we take an issue and to make it really resonate, we put a face to the issue. That this person, this person is the face of, you know, this person is the face of the cost of X, or this person is the face of the cost of Y. And I wish we didn't do that. I don't know how we can get around that. It's human nature.

Harvey Weinstein is the face of the Me Too movement. Yeah, it really is. It really is. It's how we tell ourselves stories since humanity began. I mean, this is 10,000 years ago sitting around a fire. Stories involve people and narratives. Yeah. We're not getting away from that.

Yeah. I mean, and there are ways in which I completely agree we're not getting away from it. I do think that we can try to temper it a little bit. I mean, poster child legislation where you bring somebody in and they tell atypical stories and we tend to use that to draw larger conclusions or, you know, all of that kind of thing I think is part of the brokenness of the system. But I completely hear you. There isn't going to, there are circumstances where we're going to highlight somebody who is legitimately a victim of a terrible thing, but their own personal story is quite complicated. And that's why I would recommend if you're really interested in this, read the cut, the story. I came to it on Twitter where people were kind of, I thought, mischaracterizing it as lionizing her.

Yeah, I didn't feel that it did. I didn't either. I didn't either. I thought it was great journalism. I thought it actually really grappled with a bunch of the issues in a detailed, fair, well, on the one hand, on the other hand, I don't know. Like, I felt like the author wasn't quite sure. Yeah, I felt exactly the same way.

I thought it was actually really a very well done piece of journalism. It highlighted the messiness of her story. It highlighted the contradictory explanation she gave for various aspects of the event and its aftermath. I thought it did a really, really nice job. And it also just brought back to my mind a, I think, a truth that we don't fully appreciate, and that is bad actions have all so much so often not only have multiple branching negative consequences, but they also leave people who are trying to seek to do the right thing with very few good options. And one of the things here is, hey, look, if you want to elevate the issue of revenge porn, which is a very real thing that happens with very real negative consequences, and then you say, well, who does it happen to? And you say, oh, Katie Hill. Then people immediately come in and say, well, that story is messy. That story is complicated. And it goes back to your point of, well, where's the sort of the clean story about it? And I think that one of the things that's important is to tell the stories and all their messy complications and be able to parse them out and say that a bad thing happened to a

person who did a bad thing. And yeah, and that that's part of the reality of life. I mean, we get that in criminal law all the time, for example. Absolutely. So for, you know, a great example is a case I've been following out of Tennessee where a person was fleeing from the cops and was a suspect in a crime. They surrendered. And after they surrendered, the police sicked the police dog on the surrendered suspect. I'm following this because I'm waging a crusade against qualified immunity, Sarah, which we need to talk about. And the officer was granted qualified immunity for sicking a police dog on a surrendered suspect. But you go and you look at that and what was the suspect's record and what kind of person was he

and blah, blah, blah, blah, blah. There's all this stuff that makes him not sympathetic. And you say, wait a minute, I should be able to argue against qualified immunity without having to come up with a case where the police sicked their attack dog on Mother Teresa. Well, this happens just so often in criminal law. You know, it's not supposed to matter, for instance, for Fourth Amendment purposes. The reasonableness of the search does not turn on whether you find the drugs or not. Right. But boy, if you look at the statistics, it sure seems to. Oh, doesn't it, though?

Oh, doesn't it, though? All of a sudden, we think there's really reasonable searches against people who did, it turns out, have drugs on them. You know, I have said this back in my civil litigation days, and we're running a little long, so we'll end on this. But I've said this in my civil litigation days. I said, look, guys, you know, talking to my clients, we can talk all day long about court precedent. We can talk about the facts that we pull out in the deposition. But the fact of the matter is when you're in front of the jury and when you're also when you're in front of the judge who is supposed to be able to just shed all this from your mind. You want to be the kind of person they want to rule for.

You know, it's you don't you want to have minimal. You want to establish minimal reasons why they would want to rule against you and lots of reasons why they would want to rule for you. And that doesn't seem fair and that doesn't seem right. But we're dealing with human beings here and that's how human beings operate. And that's what it all comes back to. Narratives, stories, people. That's how we relate to one another and that's how our brains evolve. Yeah. And with that, I'll see you on Thursday.

And we hope your brain evolves in a direction of subscribing to this podcast, rating us on Apple Podcasts, and becoming a Dispatch member. And it would be completely my mistake if I did not thank you all again for your support. The response to us so far has been beyond our wildest dreams and expectations. And so we really, really appreciate it very much. And thank you again for listening. This has been the Advisory Opinions Podcast with David French and Sarah Isger.