Advisory Opinions - Disney Sues DeSantis

Episode Date: May 4, 2023

The feud between the governor and the mouse has more nuance and legal curiosities than it might seem at first glance, and David and Sarah are here for it. But also: -Is the debt ceiling "unconstitutional"? -History and Tradition revisited (listen to this week's week earlier episode for the full discussion) -Trigger warning for one of the most gruesome 4th Amendment analysis taken up by the pod. Out of context: "These people could have been in drawers." Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And we've got a fun little, I don't know, it's a potpourri, David. We're going to talk about the constitutional underpinnings of this debt ceiling fight, a little revisit on history or tradition, and that Disney lawsuit, the DeSantis quagmire in the swap, we'll call it. And finally, a little lesson on how not to kill your parents in the state of Tennessee. All right, David, let's start at the beginning here. The debt ceiling fight is

raging in Congress. You have a Democratic president not wanting to negotiate with Republican House members. In the meantime, we are hurtling towards our debt limit, by which people fear that the United States will no longer meet its debt obligations that could cause any number of economic problems, we're not so much interested in any of that. Instead, we're interested in the 14th Amendment, Section 4, which I will read to you now. The validity of the public debt of the United States authorized by law, including debts incurred for payments of pensions and bounties for service in suppressing insurrection or rebellion, shall not be questioned. So David, there was a New York Times piece, and there's been little whispers and shenanigans, that what this means is that the debt ceiling itself,

as in Congress setting a statutory limit of how much debt the United States can incur, is unconstitutional. Therefore, Congress doesn't need to raise the debt ceiling. The debt ceiling is void, if you will. And then in fact, the president has an obligation with or without Congress to meet all debts incurred by the United

States because of this 14th Amendment provision. And again, if you take out the including language, which is clearly a post-Civil War, just to make sure we're being clear here about Civil War debts, the validity of the public debt of the United States authorized by law shall not be questioned. David, do you think there is a constitutional argument that the Biden administration doesn't need to have a debt ceiling fight because there is no debt ceiling? There is no spoon. That's a good reference, by the way, Sarah. I like that. We'll see how many people get that. But that's a fantastic reference. Yeah. So I'm going to, cutting to the chase, I tend to agree that the debt ceiling, well, let me put it this way. Obviously, the language is

pretty darn clear. You can't default on the debt. So I think it's better to say constitutionally, the United States is not permitted to default on the debt, which doesn't exactly answer the question of, is the debt ceiling unconstitutional? There is a great law review article from 2012 after the debt ceiling fight that occurred in the Obama administration by Neil Buchanan and Michael Dorff. And he says that in 2011, and I think this states it pretty well, that Obama and now Biden face a trilemma offering three options of dubious constitutionality. So one is ignore the debt ceiling and unilaterally issue new bonds, thus usurping Congress's borrowing power, which is specified elsewhere in the Constitution. Unilaterally raise taxes, thus usurping Congress's taxing power. Or unilaterally cut spending,

thus usurping Congress's spending power. So when you look at it like this, okay, here's the situation the president is in. Let's suppose you say that a debt limit is unconstitutional. Well, isn't any remedy to the unconstitutionality of the debt limit that doesn't involve Congress, isn't that usurping Congress's power in a different way? So if you're going to extend the debt limit, you're going to borrow more. Well, Congress has the borrowing power. If you're going to raise taxes, Congress has the taxing power, as I just laid out. So to say, for example, that, well, United States should not question its debt, you can say that, but then what's the remedy for that? And this is where the law review is really interesting,

because it says, well, every one of the remedies is likely unconstitutional. So this law review article says, well, what you do to comply with Article 4, Section 4 of the 14th Amendment is you take the least unconstitutional course. That can't be right. That's not. What does that even mean to be least unconstitutional? That's like a little bit pregnant. Yeah. So their argument is you ignore the debt ceiling and issue bonds. But the problem, of course, is, well, if you're issuing bonds, aren't they going to have some sort of crazy interest rate because aren't these risky bonds?

I mean, are these bonds that are issued in violation of the borrowing power, are they valid? So it's a bit of a mess. So I think the way to think through it, Sarah, is to say, well, you know, Section 4 of the 14th Amendment is pretty clear. It shall not be questioned. But is there a constitutional way to comply with that constitutional provision without Congress? And that's where this gets really tough. Not so much in the idea of shall not be questioned, but in what mechanism is that constitution through what which mechanism is that constitutional obligation carried out? And it seems very difficult as a practical matter to see how it can be carried out

without Congress giving Congress's indispensable role in each method of carrying out that constitutional obligation. Does that make sense? I mean, it does. I think I just disagree. You don't think that the, in which regard, that the remedies would be unconstitutional? This section four. I don't think it means what you think it means.

All right. So reading from the New York Times here, because I just, this paragraph tickled me for some reason. A group of legal scholars and some liberal activists have pushed the constitutional challenge to the borrowing limit for more than a decade. No previous administration has taken it up. Lawyers at the White House and the Justice and Treasury Departments have never issued formal opinions on the question. And legal scholars disagree about the constitutionality of such a move. I mean, that's like the New York Times paragraph equivalent of the shrug emoji. Who knows? Okay. So here's what I think. And again, because we have no case law on this,

no opinions on this, you're going purely on just this text in section four. this. You're going purely on just this text in section four. The validity of the public debt shall not be questioned. That to me is the taking on of the public debt, which is a congressional action. It is not in any way increasing the powers of the president. The president has no power to borrow money. Therefore, this section has nothing to do with him. It is about Congress's power to issue public debt and to borrow money. And therefore, Congress can borrow the money. Congress can also set a ceiling on itself. I mean, this is a self-limiting statute, which makes it in some ways sort of pointless, right? Because any Congress can undo the acts of a previous Congress, but they

do have to undo it. So absolutely, I think Congress can limit its own borrowing power as long as future Congresses can undo that limit on its borrowing power, which is what we have here. And that Section 4 is, in fact, a congressional increase in power. Because remember, the 14th Amendment is really about rejiggering, if you will, the power between the states and the federal government. It would just be very bizarre to me if all of a sudden in Section 4, it's like, oh, and by the way, Congress can't set a limit on how much money it can borrow at a time. So I don't think that's the purpose of it. I don't really think it can be read that way because it's about validity of the debt. Therefore, it's about Congress's borrowing power,

not about the paying power. Because imagine, for instance, a hypothetical where the United States is out of money. I mean, we are out of money. We've been out of money. But make this very simple. Congress borrowed $10, but now we only have $3. Well, the validity of the debt isn't what's questioned. The debt ceiling here is about whether you can take on more debt. So that's what I think. I don't think this is a particularly close call. And I think there's a reason that DOJ and no previous administration has really taken this argument very seriously. Right. I don't know. I would agree that this isn't saying that the debt ceiling has to be increased, that you can't put a debt ceiling. It's just that you can't default on the debt.

And there are ways to not default on the debt without increasing the debt ceiling, such as, as the Law Review points out, raising more money, allocating more money to payment of the debt. But again, I don't think you get to pick the least unconstitutional option, i.e. this didn't increase the president's power. The president cannot act without Congress. But the way I would put it is it's a constitutional obligation to pay the debt that doesn't have a constitutionally valid enforcement mechanism. It's like telling Congress, this is your job. You have to do this.

Okay. I think we might be in agreement here in that, A, the debt ceiling is constitutional. Congress does not have to raise the debt ceiling. As in, the Biden administration can't ignore the debt ceiling either. Right. They cannot take on more debt. They cannot usurp Congress's powers either. But current debt that has already been taken, you know, is valid, basically. Yes. Has to be paid.

It's valid. Yeah. But I don't think that's what this debate is about. Because I think the Biden administration, again, and this is based on a New York Times piece that doesn't even really have anonymous sources. It's just like, what if? Yeah. They're saying that they can ignore the debt ceiling because Congress can't have a debt ceiling

because of Section 4. And I think that's a silly argument. Well, that's why I thought this Law Review article was particularly helpful in outlining how the mechanisms for addressing a problem with the debt all have their own constitutional problems, right? So they were urging the least unconstitutional course, which, you know, as you note, wait a minute, hold on, shouldn't there be a course that's not unconstitutional as opposed to least unconstitutional? But what I thought was very helpful about the Larvey article was it outlined how every remedy outside of Congress has its own constitutional problem. And that Congress could fail here.

Congress could not do what the Constitution requires. But the other branches of government don't necessarily have the ability to remedy that. And we see this in other constitutional provisions. We have, for example, you know, it's pretty darn clear that Congress declares war, but we've never had, for example, the court step in and say,

well, this military action that's underway, we're enjoining it because Congress didn't declare war. We're enjoining the Korean War because that came through UN Security Council resolution and not Congress, right? So there is such a thing as a constitutional violation for which there isn't really a judicial remedy or an executive remedy. That's the category I would put this in. If the United States

defaults on its debt, it's because Congress failed to uphold its constitutional obligation. But I'm not sure that there's a remedy for that that doesn't involve other branches of the government

violating their constitutional limitations. So it's a mess. It's a mess. All right. Well, let's move on to a little history or tradition. Remember last episode, we talked about text history and tradition being the test for the Establishment Clause and for the Second Amendment, and really that the Supreme Court seems to be leaning into that test and applying it to more types of constitutional rights. And we got the Supreme Court seems to be leaning into that test and applying it to more types of constitutional rights. And we got that question about, okay, but what's the difference between history and tradition? What work is tradition actually doing there? Because aren't most traditions couched in history? And we had that concern from Judge Newsom in that footnote

in which he was bothered by the idea that perhaps history refers to sort of traditional originalism. Ha ha, traditional, get it? I.e. the original public meaning at the founding. But that tradition was like a workaround. When originalism either doesn't have an answer or doesn't give you the answer you want,

you can look to more recent history and say, ah, but it's tradition. And that that is sort of just not originalism in any sense of the term. And we talked about the need for a law review article on this. And boom, David, ask and you shall receive. And in fact, there is a law review article waiting to be published that you can nevertheless get on SSRN, and we'll put it in the show notes, by Professors Randy Barnett and Lawrence Solem. Randy Barnett is at Georgetown, and Lawrence Solem is at the University of Virginia. And really, their law review article is actually about just simply applying that text history and tradition test and how all of that will go. But on page 11, they've got a nice little

section on the interaction between history and tradition. So I thought we might just read a little piece of that and get your reaction, David. Here it goes. In clarifying the proper role of history and tradition in constitutional law, our first important claim is that history and tradition are conceptually distinct. Tradition is often constituted by long-established historical practice or historical doctrine. Even a recently emerged tradition could be established by a historical narrative. In other words, history provides evidence of the existence of a tradition, but historical practices and doctrines are not the same as traditions. The three types of history,

and they talked about this earlier in the Law Review article, practice, doctrine, and narrative, interact with tradition in different ways. By itself, the existence of a historical practice or doctrine does not establish a tradition. For example, legislation enacted by the first Congress might later be repealed and hence fail to establish a tradition with respect to the subject of legislation. This could be true even if Congress's actions provide strong evidence of original meaning.

Historical narratives can identify the existence of an ongoing tradition or the rise and fall of traditions that have gone by the wayside. For example, while the first Congress established the first Bank of the United States, that bank's charter was allowed to lapse in 1811. A second Bank of the United States was established in 1816. In 1836, the renewal of its charter was vetoed by President Andrew Jackson, and by 1841, its activities as a national bank had ceased. Thus, when the Federal Reserve System was established in 1913, while there was a historical

practice that established a precedent for such an entity, there was no longstanding and continuous tradition supporting its establishment. David, what do you think? Are you convinced about the difference between history and tradition? I mean, I think that's persuasive, but it still doesn't really... Tradition's still not doing any work. All this is, is I am not surprised that you can find an example of something that is historical, but not traditional. But the problem has always been find something that is traditional, but not historical, not historical. So they did the one thing that I didn't need them to do. I need someone to come up with an example of something that is traditional, but not historical,

because otherwise we don't need the word tradition. The word history still does all the work. That's the original problem. It's still my problem. Thank you, Northwestern University Law Review for publishing this piece in an upcoming volume, but I need more. Yeah. I mean, we talked about traditions being rooted in myth, for example, or rooted in historical inaccuracies, but the tradition still is identified through history and its presence throughout history. So, yeah, it's a subset of the historical analysis is the best way I can think of it. It's a distinct subset of the historical analysis, perhaps, but it's still a subset of the historical analysis perhaps but it's still a subset of the historical analysis um as i said at the beginning when we first started talking about this i kept being tempted to think of it as sort of a rhetorical flourish text history and tradition kind of rolls

off the tongue kind of nicely um even though they're not history and tradition are not so distinct but yeah i mean good Larvey article. Interesting. I still think it's a subset of history. Which is a problem. Yeah. Yeah. So how does one treat the federal, I mean, how does one treat the bank, for example?

Well, there's history, so you're fine. But again, what did tradition do? Okay. And by the way, just for those who are like, wait, should I go read this law review article or not? Because I just read you the whole section on sort of the distinction between history and tradition. history and tradition. Part two lays out four distinct roles that history and tradition can play. One, as evidence of original meaning and purpose. Two, as modalities of constitutional argument within a constitutional pluralism framework. Three, as a novel constitutional theory, which we call historical traditionalism. And four, as implementing doctrines, part three investigates the roles of history and tradition in Dobbs, Bruin, and Kennedy. So abortion, guns, and establishment clause. And part four articulates a comprehensive strategy

for the incorporation of history and tradition in constitutional jurisprudence. Basically, this is a pretty important law review article that is going to get cited a lot. But we're only touching on that one question, history versus tradition. But I have a feeling we may come back to this Law Review article in future conversations. And boy, just you reading these excerpts reminds me that the text history and tradition test is not going to be easy to apply. No. And has not been easy to apply. No, it's not.

It's difficult. You know, you and I were talking offline about how to use, for instance, the text history and tradition test for banning AR-15s because there's been

some interesting problems with this. First of all, California has tried to ban this weapon AR-15s because there's been some interesting problems with this. First of all, California has tried to ban this weapon and they've run into some problems. Basically, like what's in a name? You can ban the AR-15 and then someone's just going to create a gun that looks like the AR-15. So then they were like, aha, we will ban guns with specific features. And then they were like, cool, cool. We'll come up with features that don't look like that. And they're like, no, no, no. It's what the gun does. Okay. We'll come up with a gun that looks like an AR-15, but has slightly different mechanisms.

And so round and round, California has gone. And we've talked about the case, for instance, that has also struck down their assault weapons ban, and that's still working its way through the courts there. So what does text history and tradition say about the AR-15? I don't know if you have top of your head thoughts, David, or if we should do that down the road. Yeah, that's a really, really good question. And a lot of it depends, you know, those who oppose the AR-15 or who want to uphold their bans on the AR-15 would say, okay, come on. Text history and tradition. This is a modern,

it's even in sort of gun lingo, it's called a modern sporting rifle. This is a new deal. This is a new thing. This is not something. Yes, but by the virtue of calling it a modern sporting rifle, I mean, according to my theory of text, history, and tradition, you would simply say, okay, were you able to ban sporting rifles at the founding?

Well, you're jumping ahead to the next part, Sarah. So the initial part is, what are you talking about this? This is, if you're going to be talking about text, history, and tradition, history and tradition have no category for a personal weapon of this destructive power. This is a new thing. And to which point the answer is, wait, wait, wait, wait, what are you talking about? In Heller, we talk about guns that are in common use for a lawful purpose. And this gun is nothing if not in a common use for a lawful purpose. And if you're talking about military-grade weapons, well, you know, the brown bass musket over the hearth of a colonist was the same musket that the British regulars used when they were, you know, in combat. So what text history and tradition shows us is that,

is that in fact individual citizens can own the weapon that an infantry, you know, an infantry officer or an infantry soldier would carry in combat. So wait, text history and tradition says if it's in common use for a lawful purpose then you can own it and if that lawful purpose overlaps with the if that lawful purpose is overlapping with the lawful purpose that, for example, a member of the infantry uses the weapon

that doesn't disqualify the weapon. And history and tradition would show you that. And now, I do think what's interesting to me, Sarah, is I think on the text history and tradition argument, the AR-15 bands are going to have trouble. I think they're going to have trouble under text history and tradition because of the reason I just articulated that history and tradition is that in actuality, private citizens did in fact own the exact kind of rifle that military forces deployed.

And so I think there's going to be a history and tradition argument against assault weapons bans now that's not the whole story because the real thing that makes an AR-15 dangerous isn't the fact that it's a semi-automatic rifle I mean a semi-automatic rifle is an extremely common maybe even more common to own than a bolt action, for example. What makes an AR-15 more dangerous is the magazine. It is not the semi-automatic

operation of the rifle. So the question then is going to be, well, what about the magazine restrictions? What's text history and tradition going to say about magazine restrictions? And that one gets maybe a little bit more interesting. Maybe there's not necessarily a whole lot about the magazine restriction when the magazine is a relatively new innovation. The existence of that magazine is a relatively new innovation, certainly in the historical sense.

of that magazine is a relatively new innovation, certainly in the historical sense. So that might be one where you might have more openness than the restriction on the rifle itself. But that's where Judge Newsom's distinction between history and tradition becomes a little concerning, i.e. at the founding, there's nothing equivalent to a large capacity magazine. Right.

So the historical originalism analysis seems to fail. However, there is certainly a tradition of late of people owning large capacity magazines for lawful purposes, as you've noted. And so can you then just rely on tradition and not on history? Judge Newsom would say no. And yeah. And how long does the tradition need to have been going on, et cetera, et cetera. But that's to bring us back why it's important to know what work tradition is doing there. Yeah. Yeah. It really, so the AR-15 issue to me is one where text history

and tradition is probably going to mitigate against the ban on the weapon itself. And as far as the magazine goes, I would say it's going to depend on the precise nature of the magazine ban. If it's banning the most common sizes of magazine for the AR-15, it might have a trouble under the, sizes of magazine for the AR-15, it might have a trouble under text history and tradition with an emphasis on tradition? But there are some kinds of magazine bans, such as these big drum magazines, things that are not in common use for a lawful purpose that I think you're going to be solid on. Again, if the text history and tradition test boils down to common use for lawful purpose, which is. Which is debatable to begin with. Which is debated because it's absolutely debatable whether text history and tradition boils down

in reality to, you know know responsible law abiding citizen when it comes to other forms of restriction so yeah it's I would say gun regulation the legal status of gun regulation is

as more up in the air in many ways post Bruin than it was pre Bruin as a practical matter. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame

preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save

on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best selling frame. That's auraframes.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Speaking of things up in the air, let's talk about Disney a little. That's, man, that's good. Was it? It felt, it felt, I just used whatever you said last and would have, anything you would have said. Speaking of drum magazines, let's talk about Disney. I misinterpreted the reference because when you said up in the air, I was thinking just up. Oh, up. Yes. Yeah. Yeah. Okay. No, that's good. Yeah. Speaking of up. Oh, I like that segue better. Let's do that. All right, David, do you want to run us through

where we are in Disney litigation, Reedy Creek, DeSantis versus Disney, or is it now Disney versus DeSantis? Yeah. So this is interesting. And it's more interesting than even the stuff that I've written about it indicates, in part because when you write, you have word limits and you can't really explore all the nuances. But there's an interesting aspect to this lawsuit that I haven't really heard anybody talk about much, but we're going to talk about it. So the basic outline here is not, the basic, the factual outline here is not really in dispute. So what you have is a situation where Florida is passing HB 1557, which is colloquially known as the Don't Say Gay Bill,

but I hate to call it that because the bill doesn't say don't say gay. That's a talk, you know, that's like a partisan talking point. It's called the Parents' Rights and Education Act. And when the bill was being debated, Disney was put under a lot of pressure both to talk and to not talk. There are activists both within and outside of Disney who are saying, you need to step up here, Disney. You need to assert your lobbying strengths to defeat this bill. There are others who are saying, just stay out of it. It's not your business. This is K-12 education. It's not tourism. Stay out of it. And so Disney

jumps in, but kind of half-heartedly. It's interesting. I went back when I wrote a piece on this and for the Times that I went back to look at the contemporary commentary around Disney's quote intervention here. And the left is really after Disney. Like that's all you got. That's all you're going to do. So Disney CEO called the governor.

Disney put out a public statement saying that it was in opposition to the bill. It was really tepid stuff, not a real big deal. But DeSantis went pretty ballistic. And in no uncertain terms, no uncertain terms, declared Disney out of bounds for opposing his bill. My favorite quote is when it talks about, DeSantis says Disney crossed the line and he promised to make sure, quote, make sure we're fighting back.

And he accused Disney of pledging a frontal assault on a duly enacted law of the state of Florida. Ooh, a frontal assault on a duly enacted law? Like, what does that even mean? Guess what? We all have the ability to oppose duly enacted laws or to protest duly enacted laws. I mean, come on. But anyway, and so what Disney did, or what Florida did, is enacted legislation that was going to dissolve something called the Reedy Creek Improvement District. Now, this is a special taxing district that allowed the major landowner in the improvement district,

which was Disney, to essentially run its own, not really its own, because the Reedy Creek Improvement District was a part of the government of Florida, but essentially run the body and appoint the members of the body that ran the area, the land area on which Disney sits. And so initially what Florida did was it got rid of this Reedy Creek Improvement District. However, the problem with that is you can't really just dissolve it with no consequence because the Reedy Creek Improvement District held a lot of bond debt. So like a billion or so dollars of bond debt, which if it's dissolved, then that bond debt falls to not Disney, but other Florida taxpayers.

So that was never going to be a solution. So what DeSantis did was reconstitute a new district, rename it, something like the, you know, the Florida, Central Florida tourism, whatever, and put a bunch of sort of his cronies on it. Well, soon when this announcement was made, all you had to do was sort of go to the cronies Twitter feeds and you saw that they were vowing to watchdog Disney's content, that this was going to be a new government board that was then going to be watchdogging Disney's content and then making development decisions based on whether they were pleased with Disney's content.

Okay, that's got a lot of problems right there. So Disney's looking at this and they say, huh, well, here's what we're going to do. So Disney's looking at this and they say, huh, well, here's what we're going to do. Before this new board comes in, we're going to essentially go ahead and execute these long-term land use contracts. Sarah, you and I have already talked about the rule against perpetuities, tying the contracts to the last surviving heir of King Charles plus 21 years. So they, quote unquote, pull a fast one, except they did it in plain view with notice, lawful notice according to state law. So then in comes, after the long-term contracts are executed. The new political appointees declare all these contracts void.

So these long-term contracts are declared void. And then here comes Disney filing suit, alleging contracts clause violations, takings clause, due process, First Amendment, et cetera. That's the factual background. Now, here's the thing, Sarah, and I'll stop filibustering after this, that is the interesting aspect to me. So if you go back and you look at sort of the initial evidence trail, it is all over the place that both the governor and legislators were saying as loudly and often as they could that we are taking this action to punish Disney.

We're taking the action to punish Disney. Now, there's been a lot of commentary over whether or not that kind of declaration of intent or purpose when it comes to legislation is going to be enough to create a cause of action for retaliation. But what was interesting, and Eugene Volokh pointed this out all the way when this original conflict kicked off, is that what DeSantis actually did, though, was not so much taking action against Disney as he dissolved another governmental body. This is the Reedy Creek Improvement District. And is it actually the case that Disney would possess a First Amendment cause of action if Florida just dissolves another political subdivision of Florida? Which is a really interesting legal question and could be one reason why Disney didn't initially file suit.

Because if you're going to be extremely legalistic about things, which legal cases are nothing if not extremely legalistic, then is it the case that what Florida actually did as a concrete matter wasn't against Disney, but against this other governmental body. So this is what Eugene Bullock raised. Very interesting question. Very interesting. But then as this played out, and Disney and the Reedy Creek Improvement District executed their long-term contracts, in the zeal to take on Disney, DeSantis and this new board essentially remove that defense because what they do is not just dissolve and reconstitute a government body, the Reedy Creek

Improvement District. They then take specific actions to void contracts entered into between the government body and Disney, thereby taking direct action against Disney and removing that defense that all that was done in reality was just one government body regulating another one. So that's a lot, but that's sort of setting this up. And it still leaves sort of, even if you realize that now there has been direct action taking against Disney and not just the Reedy Creek Improvement District, that's still going to leave open,

there's still going to be the question as to, can you look at legislation and say that legislation is retaliatory? How much are you going to be able to peel back and look at the motives of legislators, even if they've expressed it honestly, and the motives of the governor? That's going to be part of this litigation. But that's the setup, Sarah. Yeah, I mean, A, can legislation be retaliatory? I think that's a big deal and a really interesting legal question that could come out of all of this litigation, although the litigation is going to be so messy. We may not even get a clean answer to that. give you an example. If the Reedy Creek Improvement District violated the Florida

state constitution's non-delegation doctrine to begin with, so it was unconstitutional under Florida law, what's their remedy? You can't say like, well, we had this unconstitutional thing and you took it away also unconstitutionally. So we want our unconstitutional thing back. That doesn't work. Right. That's an interesting question. So you would be asking. So Disney would be essentially asking the federal court to declare the original Reedy Creek Improvement District unconstitutional under Florida. No, no, no. Other. Sorry. Florida would want Reedy Creek declared unconstitutional under Florida law. Yeah. Yes. Florida would want Reedy Creek declared unconstitutional under Florida law. Yeah. Yes. Florida would want Reedy Creek declared unconstitutional by a federal court in this litigation. Interesting defense tactic to go and walk into federal court and to say under state constitutional law,

this improvement district is unconstitutional. There's over 1,800 of these improvement districts, not exactly Reedy Creek, but there's more than 1,800 of these special taxing districts in Florida. They're extremely common. The villages have several, I believe. I'm not sure that that's one that is going to necessarily fly in federal court. If you're going to be, because you're going to be making a Florida constitutional argument with the presence of 1,800 of these things enacted over decades and decades and decades. Good luck with that. Good luck. And you have all the original problems that we talked about when Florida initially filed their lawsuit. You know, contract against public interest is void. The fiduciary duty problems. Those were against Disney for their last minute Reedy Creek. Well, it's against Reedy Creek for their last minute shenanigans. Anyway, I think this whole thing

will be a mess. This is why we don't talk about complaints because we like district courts to figure out the facts for us first. Exactly. And so this is going to be before Judge Walker, who is the same judge that was already enjoying the Stop Woke Act, enjoying both the public university aspects of the Stop Woke Act, the private corporation aspects of the Stop Woke Act. I believe he also enjoyed the Disney social media law. I mean, the Disney, Florida social media law, sorry. So it's not the most favorable judicial environment, I'm going to say, for Florida at the moment. In this judge's chambers, the last time he wrote, I believe he compared Florida to the upside down,

a First Amendment upside down. So, yeah. And if there was ever a case where you were going to see a court say, well, you know, we don't know when the limit is as to when legislation can be viewed as a retaliatory act. But under these facts, we're confident in saying that it is, in part because the evidence is just everywhere, including in Ron DeSantis' book. So, you know, and it's not just Ron DeSantis. Here's a state representative. If Disney wants to embrace woke ideology, it seems fitting they should be regulated by Orange County.

That's pretty clear. Here's another one. Representative Randy Fine. You've got me on one thing. This bill does target one company. It targets Walt Disney Company. Yeah, it's about as strong of evidence, factual evidence of retaliation in a legislative context as you're going to find. So. Interesting. But you're right. This is one reason why it's tough to comment on complaints, because there's there's a lot that's got to be sifted through before we're going to get that clean series of questions. And that's for poor Judge Walker. Good luck, Judge Walker. We'll see you on the flip side.

All right, David, we're going to end with a fun... I mean, it's not fun. If by fun you mean awful? A really gruesome case. Yes. But with kind of a fun legal question embedded into it. So a man killed his two parents in particularly brutal fashion. He killed them with knives, chopped them up, was sort of melting down their bodies

and various chemicals, things like that. The police come by to do a welfare check. They sort of find the whole scene. There's a barking dog. It's just, it's, it's wild. Um, I mean, the description of sort of as they're walking through the house and what they're seeing, and there's a head in a pot, and there's hands on the stairs, and I mean, it's...

Oh, it's so bad. It's really, really, as I said, it's very gruesome. They found a lot of things in the house, I think it's fair to say, but the one that I'll focus on for the purposes of this podcast is a

list that they found. The black notebook contained a syllabus for a fall 2016 class, pages of math problems and handwritten notes, the legible portions of which said the following. And the opinion here includes the bullet points. It includes things struck through. So I'll try to read this the best I can. Get killing knives, quiet, multiple. Get carving knives to make small pieces. Get sledgehammer, crush bones.

Bring blender and food grinder, grind meat. Get bleach, denature proteins. Get plastic bin for denaturation process. Does not matter where they're killed, just get rid of the bloody spots to prevent evidence of time of death, not the mattress or couches. Get rid of bodies inside the house, there and my DNA already there. This is then struck through. Open up doggy door to provide entryway. Okay, back to not struck through. Flush chunks down toilet, not garbage disposal. Get plastic sheeting for disposal process. This is struck through.

Get hollow bullet points just in case, then not struck through. Will be seen buying bullets. Just use computer room gun check to make sure there are bullets, parentheses, last resort. He's not alive to claim her half of the insurance money, arrow, all mine, parentheses, $500,000. Flood the house. Turn heater up as high as it goes, arrow, speeds decomposition. Bleach reacts with luminol just like blood, arrow, douse area with bleach. Fig sprayer, lie. Trash compactor, question mark.

Body gives time of death. Arrow, alibi. Don't have to get rid of body if there's no forensic evidence on the body. All caps, his fingerprints and DNA. Minimize things I touch throughout. Wear gloves and socks to prevent fingerprints and footprints.

Drop something down the garbage disposal to break it. Arrow, get socks to prevent fingerprints and footprints. Drop something down the garbage disposal to break it. Arrow. Get him on the ground fixing it. Arrow. Kill him with the knife. Clean up mess from him before she gets home. Kill her with knife. Now this is struck through. Kill dog after. Not struck through. Leave alive. Take dog with you uh place her in shower turn on hot water point at her to get rid of forensics remove her clothes and take them with me for disposal place him in plastic bin and use it to get him into the upstairs bathroom cut off his arms and plant his flesh under her fingernails place her dna with his dna so that his dna is not washed away by shower use sodium hydroxide to destroy his soft tissue

and soft bones for transport. Based once every hour to accelerate. It continues, David. I was going to say, do we need more? Yeah, it keeps going for a while. There's also another page that is, I'll just read a few of this. Her assets, her life insurance, 500,000,

possibly more with double indemnity. With him missing dead, I get the whole thing. All of her other assets are joint. Go to him if missing, unknown if he is dead. His assets include all joint property of missing. When he gets all joint property, also gets joint debt. He's writing about the cars, whether they're paid for, the 401k. That's all to say, David, I think it's been clear in what I've been reading, this is some evidence of everything. It's motive, it's means, how he did it.

I mean, this is not good criming. No. This is very bad criming. Right. But, so he's convicted. I don't think that's going to surprise anyone. Afterwards, though, he moves to have the evidence, a lot of the evidence in the house suppressed

because the police searched the home without a warrant. Now, there's a lot of interesting things about that. A, they had initially come by to do a welfare check. However, at the point that they saw the hands on the staircase that were severed in various blood spots, they did leave the house. And I believe on their way out of the house, they noticed the head in the pot.

They then came back with a whole bunch of people to do a crime scene analysis. They still hadn't checked on the dog at that point, by the way. They did not know if anyone could be alive in the house, but I think it's fair to say they assumed that nobody was alive in the house. So initially came for a welfare check. You don't, well, we've talked about whether you need a fourth amendment warrant for that. But regardless, they then left before collecting, for instance, that notebook with all the details in it. They come back without a warrant and get things like that notebook. And the question is, he was staying with his parents

over Thanksgiving. It appears that he killed them the day after Thanksgiving. The police arrive about two days after that. Can he get the evidence suppressed? Overnight guests, as a general matter, then enjoy the Fourth Amendment protections of their host. And the Tennessee court said, no. They said, we conclude that although the defendant initially was an invited overnight guest in the victim's home, his relationship with the victims, quote unquote, disintegrated. I'm not sure that's the word I would have chosen. Um, once he attacked and killed them and the defendant no longer had their permission to be in their residence and was no longer a guest at the

time of the officer's entry. We do not hold that the defendant lost his legitimate expectation of privacy simply by engaging in illegal conduct. Rather, the focus is on the effect of the defendant's illegal activity on the relationship between the defendant and the host and the defendant's status as a welcome guest. We hold that by attacking and killing the victims upon whose permission he relied in claiming that he was an overnight guest, the defendant no longer had a legitimate expectation of privacy in this residence that society is willing to recognize as reasonable at the time of the officer's entry into the residence. Now, David, I think it is fair to say that I think this person should be in jail.

I do. However, I'm a little confused by that Fourth Amendment analysis. And here's why. In other cases that the court is citing, the overnight guest has gotten into a, you know, scuffle. The person has withdrawn their permission and like now the police are being called. And so like it's very clear to all parties involved at the time the police show up whether there's Fourth Amendment expectation of privacy. Now, of course, in all of these things, we're litigating them after. I get that. But in this case, the decision relies on the fact that he killed them. Well, at the time the police show up, all they know is that there's dead people in the house. So you'd have to prove that he killed them to be able to use the evidence that he killed them? You see the problem? That is a little concerning to me.

I gotcha. I'm following you. And the interesting thing is, though, as you read the story, I keep wondering about, wait a minute, exigent circumstances. They had exigent circumstances to go in, but once they saw the severed hands and left to then go get crime scene texts, they didn't really have exigent circumstances at that point. Right. Right. That is true. That is true. So they have exigent circumstances that would allow them to just go in right then and there. For sure. But, you know, for instance, if that black notebook were not, you know, they can't open drawers looking for the people who are missing. People aren't in

drawers. They can open closets. We know that in exigent circumstances. These people may have been in drawers. These people could have fit in drawers at that point or various parts of them. But yeah, so the exigent circumstances gets you out of the warrant requirement for the purposes of fulfilling the exigent circumstances. You're looking for a missing child. You can check the closet or places that a child might fit, the laundry hamper, things like that. But you can't open drawers. And there's also surgeons that get to arrest, yeah.

Sure, but you can't open drawers and take the black notebook out and then flip through it and then be like, you know, get knives that kill quietly. Keep all money for myself. Break the disposal. Have him bend over to fix it.

I mean, come on. I do think that the reasonable expectation of privacy analysis, that he does not have a reasonable expectation of privacy, is quite solid. It's just that

it's only rendered valid in the hindsight. In other words, from... I know. Which is not how we do Fourth Amendment analysis usually. So for instance, if I pull over your... Me, police officer, pull you over and I check your trunk because you look like a drug dealer. I have a reasonable suspicion that you're a drug dealer or something to that effect. It does not matter whether I then find drugs in your car as to whether my search of your trunk was reasonable without a warrant. Now, when we litigate this, we're all going to know whether

I found drugs in your car. But the Fourth Amendment analysis doesn't depend on that. And I see some similarities here. The Fourth Amendment analysis should be minus the crime, i.e. finding the drugs, knowing that he killed them. The Fourth Amendment analysis should exist regardless. And that's what I'm missing here. If you take away the proof that he killed them, which is the drugs. By the way, David, there was a very interesting case out of the Fifth Circuit that I am aware of, let's just say. I had a footnote for people who are not lawyers listening to this. You can't talk about cases that you particularly worked on as a clerk, but you can talk about cases that happened that you know about.

Yeah. So you're aware of a case. I'm aware of a case. Okay. And I thought it was so interesting. So basically the police say, you know, they believe David's a drug dealer. They got an anonymous tip

from a confidential informant. Sorry, not anonymous. A confidential informant that they have dealt with before, but anonymous to us, the public, that David's a drug dealer and that David is going to leave his house, drive down Main Street and turn left to deliver the drugs. So we, the police, decide to follow David. And David leaves his house at the appointed time,

drives down Main Street, and he turns right. So we pull David over and search his car. And the argument from the police was, well, he clearly saw us and made us out as cops. That's why he didn't turn left. To which the response is, so wait a second. If he turned left, you could pull him over because it corroborated your tip. But if he turned right, you could pull him over because it corroborated your tip. But if he turned right, you could pull him over

because obviously he'd made you his cops and that's why he didn't turn left. And they were like, yeah. And in that case, it might be relevant to people that in fact, he didn't have the drugs in the car. So the tipster also was wrong in that sense. Now look, was this person probably a drug dealer? Yeah, they probably were.

Maybe that's why he turned right. But it cannot be that no matter which way you turn, the police don't need a warrant. And that is, in fact, what the Fifth Circuit held in that case. So, sorry, that was just a totally different tangent that I just really enjoyed that. No matter which way you turn, the police don't need a warrant anymore argument. But here, David, woof.

I just don't think I don't like the because we have evidence that he killed them. He loses his expectation of privacy. You're going to need to have something else. Yeah. Based on. Well, I'm just still kind of stumped by the whole, I saw body parts and did not go in. Yeah. Especially when the dog's barking. Yeah. They said they heard the dog barking and whimpering and were like, we'll come back. I, I don't know.

I would have, I mean, you know me, I obviously would have run and grabbed the dog. Yeah. So they were actually in. So it says the officers moved up the staircase. That's where they saw the hands. Yeah. It's noticed a stain of what appeared to be blood, observed clothing, sharp instruments, a bucket and reddish brown staining on the floor. It was also 90 degrees in the house.

I didn't get to that part of the list, but he includes that he turns up the temperature to 90 to speed up decomposition. So they won't know the time of death. Again, helpful to write this all down, then leave that written down stuff in the crime scene. It's just wild. I saw severed hands and everyone's like, get out. He says, get out. That's wild to me, but anyway. Well, the part that's a little odd, and again, I'm sure the officers at that point had a very good idea of what had just gone down, but not to get into like really gruesome details.

There's two people that are missing at this point. You've seen two severed hands. We're still missing two more hands. So there was some chance that there was another person in the house. But they were right. But they were right. Yeah, they were right. They were right. But that's what mystifies me is you find evidence of a crime

and you're just going to go ahead and assume that everyone's dead. For those who were, obviously you caught the motive there was money, but the parents were going to cut off their young child and let him, quote, stand on his own two feet. He disagreed.

Gosh. What a case. Okay. But really interesting Fourth Amendment stuff. It is. It is. If you're an invited guest, you have an expectation of privacy. The police can't search the home for your stuff without a warrant. But at least in

Tennessee, if you kill them, then they can search the house for your stuff. Well, that's one more deterrent in addition to the death penalty or life without the possibility of parole against killing your hosts is you're not going to be able to raise a Fourth Amendment objection. Huge deterrent. And thank you to Oren Kerr, Berkeley professor, friend of the pod, for highlighting this case. Oh man, it was a doozy. Oh man. Weird that that didn't, I mean, doesn't that case strike you as so gruesome you're a little surprised it didn't make like bigger news? Yeah. Yeah, it really does. And it also shows that why there's such fodder for true crime podcasts is there's always some wild crime

out there that nobody knows about. Yeah. And this one, I guess it's not that interesting since he again left very detailed notes about every single thing he did. There's no real open questions here. Whether the evidence gets suppressed or not, we know. Yes. This was a bad man stays in jail. Yeah, for sure.

Really bad. And I have all sorts of questions about, for instance, given his plan, why two days later the police are walking in and like the plan has been abandoned. That part I don't totally understand. But regardless, he wasn't good at criming and he wrote down all of his criming plans. So the end. David, it's been a it's been a weird pod.

It's been very potpourri pod. It's a potpourri pod. And, you know, you have your kids staying with you, so they have an expectation of privacy and Fourth Amendment rights that you have conferred upon them. I just wonder if you're going to talk to them about this case to make sure they understand

exactly that that evidence will not be suppressed against them if they cause you harm. We might need to sit down for an additional deterrent. Yeah. I'm going to tell Nate for an additional deterrent. Yeah. I'm going to tell Nate all about it for sure. Like make sure. He'll completely understand.

We, you know, he's learning pronouns and possess, you know, all these little words. And so he'll say things like, is this my house? And I'll be like, no, it's my house and daddy's house. You live here. Or, you know, is this my house? And I'll be like, no, it's my house and daddy's house. You live here. Or, you know, is this my mixer? No, it's my mixer. You can borrow it. I'm very into teaching him that he lives at our, you know, grace. A lesson he will absorb, no doubt. Yeah, he is a vassal to my state. All right. Well, David, next week for our first episode,

I will be out at the Legal Eagles Retreat in Gettysburg with lots of stories to come back and tell you guys about. And then you'll be out a little bit this month too. So the rest of AO this month could be really sort of fun. Sometimes it'll be the two of us, but sometimes it's not. And we might have special guests. Exactly. You've already lined up your special guest.

I don't think you want to announce it yet, but. Oh, I don't know. I mean, it's David Latt. David Latt will be filling in for David French later this month. I think it'll be really fun. But then I can just say that we're co-hosts. I don't know what you're going to do without me, David. What are you going to say? Yeah. The guest is now guesting the guest pod. How's that going to work? I don't even know how that works. Have fun figuring that out. Well, we'll figure it out. Whoever your guest is, is now the host.

They just get automatically moved up to host status. That's exactly right. Exactly right. I'll just introduce, this is Sarah Isker's podcast, Advisory Opinions. That's how I'll do it. I'll talk to you next week. Bye.