Advisory Opinions - DOGE v. The Administrative State

Episode Date: November 26, 2024

Can Elon Musk colonize Mars? Or, even more challenging, can he take down the administrative state? Sarah and David take a look at his roadmap for the Department of Government Efficiency (DOGE) and debate the likelihood of regulatory reform. The Agenda: —Legal questions for the Trump 2.0 administration —Will DOGE work? —Unitary executive magic wands —Honoring James Garfield’s memory —Challenging birthright citizenship —Stepchild of the First Amendment: Commercial speech —Marihuana case —Gravity is the weakest force Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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For alcohol, you must be legal drinking age. Please enjoy responsibly. Product availability varies by region. See app for details. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and David, I've got a fun little thing for us to do today.

My former professor, Jack Goldsmith, put out a 17 tweet thread with all of the various legal questions that he had for the incoming administration about just like administrative stuff, how is this going to work? And we can't get to all 17. Frankly, this podcast is just not long enough because each one of these could be podcast full length. But I wanted to pick a couple of them, particularly because we got a lot of listener questions around the Department of Government Efficiency Do, run by Elon Musk and Vivek Ramaswamy and their Wall Street Journal op-ed. I also thought we'd talk a little bit about the debates around birthright citizenship,

as that seems to be at least an interesting question around some of how Trump's immigration policies are going to work. And then you had a fun little case on commercial speech. And commercial speech, frankly, I don't we talk about the First Amendment a lot on this podcast. And, you know, we're like First Amendment absolutists, and we're all in on the First Amendment. But we don't spend a lot of time on the stepchild of the First Amendment commercial speech. Right. Yeah, I'm looking forward to that conversation. It's not a complicated case, but for people who have not been listening to advisory opinions for a very long time, which is some of you.

I mean, a lot of you have listened to all of them. But you're right. We've not talked about commercial speech much because. Well, well, you'll see. It's an interesting it's an interesting thing to wrap your arms around. All right. I want to read just a few excerpts from the Wall Street Journal op-ed published by Elon Musk and Vivek Ramaswamy, The Doge Plan to Reform Government. So I'll start at the beginning. Our nation was founded on the basic idea that the people we elect run the government. That isn't how America functions today. Most

legal edicts aren't laws enacted by Congress, but quote, rules and regulations promulgated by unelected bureaucrats, tens of thousands of them each year. Most government enforcement decisions and discretionary expenditures aren't made by the democratically elected president or even his political appointees, but by millions of unelected, unappointed civil servants within government agencies who view themselves as immune from firing thanks to civil service protection. This is anti-democratic and anti-thetical to the founders vision. Now, as you go down, you will see such cases mentioned as in West Virginia versus Environmental Protection Agency,

the justice is held that agencies can't impose regulations dealing with major economic or policy questions unless Congress specifically authorized them to do so. In Loperbright versus Raimondo, the court overturned Chevron Doctrine and held federal courts should no longer defer to federal agencies interpretations of the law or their own rulemaking authority. Together, these cases suggest that a plethora of current federal regulations exceed the authority Congress has granted under the law. Doge will work with legal experts embedded in government agencies aided by advanced technology to apply these rulings to federal regulations enacted by such agencies. David, so right off the bat, was this written by lawyers? Because this frankly doesn't sound like Elon Musk and Vivek Ramaswamy. This sounds like it was written by the Federalist Society.

I know. I know. Well, you know, in the first part of it, I'm like, man, Elon and Vivek, you're advisory opinions listeners. This is, I mean, you're playing our song right here. Major questions doctrine, Chevron, I mean, my goodness. No, it's, the opening to the op-ed is actually very interesting, but it also raises something that I think a lot of people conflate. So, okay, let's talk about the name,

Department of Governmental Efficiency. So they're talking about the regulatory state here, talking about civil service protection, which we'll get to. I'm glad it's not called DODE, Department of Deficit Elimination, because nothing that they talk about here really is even a rounding error on the deficit. And a lot of people get that confused. A lot of people think, okay, here comes Elon, he's going to cut the deficit and he's going to make government more efficient. Maybe, maybe.

I mean, I have my skepticism that we'll get to. But if you're not talking about entitlements and national defense and things like that, you're not talking about the deficit seriously. The regulations and everything else that we're dealing with, that does go to efficiency. How well does the government work? Is it able to accomplish what it is setting out to do? Those are the kinds of efficiency kinds of questions that are very, very, very important. No question, but also not exactly the same as shrinking government in a meaningful way

as far as when it comes fiscally and fiscally reforming government in a way that will make an impact over the long run. So I just wanted to get that out there. These are different things and a lot of people just don't understand the math of it all. I mean, this is about really the friction of government in the economy, right? The idea would be that if you get rid of tens of thousands of these regulations, the economy can move more smoothly. More businesses can start, more businesses can fail, and that that is more efficient, frankly, in the economy itself. All right, so we've got the West Virginia VEPA and Loperbrite part of this.

Next, a drastic reduction in federal regulations provides sound industrial logic for mass headcount reductions across the federal bureaucracy. DOGE intends to work with embedded appointees and agencies to identify the minimum number of employees required in an agency for it to perform its constitutionally permissible and statutorily mandated functions. The number of federal employees to cut should be at least proportionate to the number of federal regulations that are nullified. Okay, let's come back to that. Finally, we are focused on delivering cost savings for taxpayers.

Skeptics question how much federal spending DOGE can tame through executive action alone. The federal government's procurement process is badly broken. DOGE will help end federal spending, federal overspending, by taking aim at the $500 billion plus in annual federal expenditures that are unauthorized by Congress or being used in ways that Congress never intended. From $500 million a year to the Corporation for Public Broadcasting, $1.5 billion for grants to international organizations, and nearly $300 million to progressive groups like Planned Parenthood. Here's how it ends, David. Again, kind of an interesting ending to this. With a decisive electoral mandate and a 6-3 conservative majority on the Supreme Court, Doge has a historic opportunity for structural reductions in the federal government. We are prepared for the

onslaught from entrenched interests in Washington. We expect to prevail. Now is the moment for decisive action. Our top goal for Doge is to eliminate the need for its existence by July 4th, 2026, the expiration date we have set for our project. There is no better birthday gift to our nation on its 250th anniversary than to deliver a federal government that would make our founders proud. Okay. So one, you have the major questions doctrine, Loper-Brite, West Virginia, the EPA, Chevron, all of that part. Two, eliminating large chunks of the federal workforce.

And three, not spending money. Those are all three pretty different buckets. Yeah, so let's just take one. You already mentioned, of course, getting rid of regulations is not itself a cost saving. It's an efficiency issue. But you've got an administrative procedure problem here. So the president can't get rid of regulations

that were promulgated through the Administrative Procedures Act without going through the Administrative Procedures Act without going through the Administrative Procedures Act again. There's always exceptions to this, but for the purposes of sort of our theory of DOGE, that is going to be the case. That will take a long time, David. They want to do this in two years. Yeah. I mean, some of this stuff was so pie in the sky, but you're right. If you have promulgated regulations through the Administrative Procedures Act, you can't just eliminate them with the stroke of a pen.

There is a process that exists. You know, there are reasons why things like this haven't happened before other than simply swamp. You just sort of can't sort of wave your arms and say, well, all of this hasn't happened before because it's a uniparty and everyone's the same. No, we've had commissions, we've had deficit reduction, government efficiency kinds of efforts in the past, but the way the system works, the way when Congress created the administrative state, one of the things that's important for folks to realize is, yes, the president is the head of an administrative

agency, but Congress, these are statutory creations. So the administrative agency is a statutory creation created by Congress. President can't do away with it, just do away with it. And then the regulatory process is a statutorily created process by Congress. And again, the president just can't do away with it. And so these are going to be some of the challenges. And one of the things that the essay indicates later on is it's sort of like, okay, well, we also know that there's going to be a lot of legal challenges and bring it on.

Let's have the fight. But again, if you have it sunsetting by July 4th, 2026, and when I say you have it sunsetting, I don't think we actually clearly know what DOGE is. Like what is the actual entity that is being created? Governmental, private, quasi-governmental, private contractor, what is happening here? And these these issues because we're dealing with statutory creations Doge is going to run up against the same thing that an awful lot of us have run up against through years of trying to eliminate regulations, streamline regulations, is that these legal processes exist. They cannot be waved away and that's why we constantly default back to who has to do his job. Congress has to do its job for fundamental change and fundamental reform. And if Doge can persuade Congress, a Republican-dominated Congress, though with a filibuster hanging out there, if Doge can persuade Congress, then you can maybe get some real stuff done.

If Doge is going to be pin and phone, then we won't remember Doge. Doge will be a footnote along with all the other commissions and studies and all of that that has happened over the course of the last 40 plus years. Okay. So, we're still on number one. This is the getting rid of onerous regulations. The APA definitely stands in the way of this. Now you can go through the APA process and get rid of those regulations. That's number one. That will take a while. It takes a while to make a regulation. It takes a while to get rid of a regulation. It's kind of the point of the APA actually. Number two, they could put together a list of, let's call 10,000 regulations.

They could hand that list over to Congress, and Congress could pass a law simply repealing all of those because remember, laws trump regulations, Constitution trumps laws, right? So you just need to move up one level. Congress could simply have a law and all it does is list 10,000 regulations that are repealed. And then that would just happen immediately. But you'd have to get Congress to do it. You have to overcome the legislative filibuster, for instance. I don't think you could do it through like budget reconciliation. But I am not an expert on House and Senate rules of whether there'd be a way to get around the legislative filibuster to do something like that. But I really, really don't know of one right now. The third way, David, would be for Congress to

get rid of the Administrative Procedures Act, which to me is a little like the recess appointments issue. Feels good right now. Wait two years. Right, exactly. Wait until all of a sudden presidents have no governor on the speed at which they can regulate and move regulations, and you would lose all the legal protections. Remember, most of the lawsuits about an executive branch regulation, yes, some are major questions doctrine. You know, Congress didn't give you the power to do this. Those would still exist minus the APA. But the whole like, you didn't follow notice and comment, you didn't dot your i's and cross your t's. Like the vast majority of regulatory lawsuits are actually processed lawsuits from the APA. Those would all cease to exist immediately.

Those are the three ways I can think you do this, David, in terms of getting rid of all of these regulations. I mean, I guess the fourth way is bringing lawsuits, basically friendly lawsuits. Sue and settle is what we've referred to those in the past. And this is where an outside group sues the executive branch on something the executive branch doesn't wanna do already, and then gets an injunction that the executive branch doesn't want to do already and then

gets an injunction that the executive branch doesn't appeal. And then they're bound by court, that court injunction, that court stay to not enforce this thing they didn't want to enforce. Now, the right has complained about this and the liberal folks doing this for many years, about a decade now, we've said that's no way to run a business. Now there's a fine line, like what exactly is sue and settle?

You're being flanked by the far left or far right, and you think you're gonna lose and you'd rather not make bad laws. You simply accept the injunction on the small regulation versus losing all sorts of other regulate. Like, just because a quote-unquote group on your side is suing doesn't make it pure sue and settle pure sue and settle is when it's collusive basically

So those are the four things I can think of yeah No, I'm with you Sarah on those four things and you know, one of them only one of them is efficient to go with the Doge moniker. And that would be a law passed by Congress eliminating a whole bunch of these regulations. Again, you know, that's something that, you know, in theory, depending on what the regulations are, I think could be a really tremendous reform.

If you identify- We can get behind that. Regulations that absolutely, absolutely get behind that. Also, that's the one I'm most skeptical of occurring, unless you had a parliamentarian ruling that this could be done through reconciliation, then you would have when it says, when we say done through reconciliation, that is a very limited exception to the filibuster rules for

legislation that allows some bills to be passed through the Senate with a majority vote only without the filibuster looming over it. It's a very narrow opening in the legislative filibuster and it's really the Senate parliamentarian is sitting there sort of like Darth Sidious and in Attack of the clones, like unlimited power, because whatever he says or she says is reconciliation eligible, it is, as I understand it, that's essentially the way this goes.

So yeah, there is an efficient way of doing this. One that I think we'd both get behind, which is legislation passed by Congress, sadly, least likely to take place. Everything else that you identified, Sarah, would be legal trench warfare. You know, it would be, you know, you would have rulings that would resolve all of this,

but not by July 4th, 2026. This would be dragging out for years, even if you had a persistent Republican effort. And then the other thing I'd say is, it'd be very, very, very hard, I think even for maybe the most forum shopped judge, to get a, so if you're gonna go for an injunction that you then don't appeal or that is not appealed,

but if there is an injunction that you then don't appeal, or that is not appealed, but if there is an injunction against the usage of the, it's a very weird, like, su-and-settle would be very, very difficult to use at scale, to use it at scale for thousands of regulations. Very, very, very difficult to do that. And so, yeah, there is an efficient way to create government efficiency, least likely,

and there's extremely inefficient ways to try to move towards government efficiency, and they're more likely to be used. And so you begin to see why it gets hard to create government efficiency when Congress is not on the job. When that is not a congressional priority, it is very difficult. It's winter and you can get anything you need delivered with Uber Eats.

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That's the dispatch.com slash premium and Black Friday for the promo code. May this be the last ad you'll ever need to listen to on the dispatch podcasts. All right, I want to kind of combine two and three. So this was once you get rid of those regulations, you don't need people to enforce the regulations. Huge workforce reductions they're envisioning. Two, basically not spending money that they don't need to spend. They mentioned the $535 million a year to the Corporation for Public Broadcasting grants to international organizations. I want to collapse these because now I want to move into sort of pure unitary executive

theory world for a little bit, David. And in order to do so, I need to mention two congressional statutes, the Impoundment Control Act and the Anti-Deficiency Act. So I'll start with the Anti-Deficiency Act. So I'll start with the Anti-Deficiency Act. Basically, it prohibits federal agencies from expending or promising to expend federal funds in advance or in excess of an appropriation and from accepting voluntary services. So I will read you 31 USC 1342. An officer of employee of the United States government or the District of Columbia government

may not accept voluntary services for either government or employee personal services exceeding that authorized by law, except for emergencies involving the safety of human life or the protection of property. I mention this because of course Musk and Ramaswami have said they're not going to accept payment for their work. Right. Oh, man. Yeah. So the Anti-Deficiency Act prohibits voluntary services, and anyone who has worked on a transition

team will be very aware of this. But because before you are officially onboarded, even though you've got sort of a limited amount of time to get everything up and running. They call it the landing team, right? There's the landing team. The transition team is before he takes office. The landing team is what happens for the few weeks after the president takes office. And then you finally got people coming on board, Senate confirmation, getting hired through the regular process. They have to get security clearances that can take a while. So I was in 2016 on the transition team as far as helping soon to be Attorney General Sessions get confirmed. I was not on the landing team though, right? Because the confirmation is happening post Donald Trump being sworn into office.

Well then I've got a problem because I then need to get a security clearance. I have to actually get onboarded. But now he's been confirmed and I don't want him out there like running around without a comms person doing God knows what, saying God knows what, David. So I- Go in rogue, Jeff Sessions, go in rogue. Right? So every day I go in and get a little visitor pass at the Department of Justice, and I just sit there. I'm not allowed to work. That would violate the Anti-Deficiency Act. But I believe that for three to four hours a day, I can simply sit there and listen and kind of shake my head vigorously when some bad idea comes up.

So the Anti-Deficiency Act is real. They will not let you just show up to the federal government and work without a salary. So I'll be curious about like them getting around that. And it's going to come up as I think in our theoretical conversation here. Next up is the Impoundment Act. Okay, so this is passed in the Nixon era. Actually, so is the Anti-Deficiency Act, by the way. These are both Nixon era fixes, if you will. And it's basically the idea was for Congress to reassert the power of the purse. So if Congress expends money, that is then a statute, a statutory obligation, and the president can't not spend the money, okay? So there's, actually it's interesting

because there's also this paper that I read of a theory that basically you don't need the Impoundment Act for that to be true, right? Once Congress creates a statutory obligation, the president's job is to take care that the laws be faithfully executed. What the Impoundment Act did was actually create a process by which the president could go back to Congress and say, I don't want to spend this money. Can I get an exception, like a reverse allowance,

if you will, and that it creates this 45-day window whereby the president can pause expending the money so that he can go back and ask Congress for an exception. And basically in creating that process, Congress reasserted its power to expend that money, power that presumably already existed. All right, David, I mention all this because there's a real question of whether the Impoundment Act in some of its applications then would be constitutional. And let me give you a few examples that come to mind for me. If Congress says we obligate, I don't know, $200 billion to NATO, the president's the one that has to actually write that check. That to me seems like pure faithfully execute the laws. The president can't then not give

the money to NATO, assuming the law says give this money to NATO. Yeah, exactly. But what if the law says, we, Congress, create the Corporation for Public Broadcasting under the presidency or, for the sake of our purposes here, our theoretical discussion, David, let's do the Department of Education. We, Congress, create a Secretary of Education and the Department of Education, and here's $200 billion for the Department of Education. I actually do not think that is constitutional. Congress can't create an employee for the president and tell him how to run the executive branch, who he must be advised by, and create employees for the president and tell him how to run the executive branch, who he must be advised by, and create employees for the president within the executive branch, I think, under its power or the impoundment act or anything else.

Wait, wait, wait, wait. All right, David, why am I wrong? So the Congress can't, Congress can't create like the EPA, like the Department of Education is unconstitutional, like the EPA is unconstitutional. Like I guess I'm confused. Like what you're saying that Congress cannot create an executive agency or cannot create... Sorry, let me nuance this a little. If the President and Congress are in agreement that the President wants to have money for a Department of Education, Congress can appropriate him money for the Department of Education, Congress can appropriate him money for the

Department of Education. But what they can't do is say, you must have a Department of Education. And the president's like, no, I don't want one because it's his branch. So they can't force him then to spend money on an employee that he doesn't want, an advisor, a cabinet member that he doesn't want. And the, a cabinet member that he doesn't want. And the basis for that is... Unitary executive, man. That's his branch. Like, let's the... No, no, no. I know you say unitary executive, but it's not like a magic wand. I mean, like, you can't just say unitary executive. What is the...

Or can I? I mean, you can. Like, I can't physically stop you from saying it. All right, so I just want folks to sort of understand this unitary executive theory has been controversial for a while, and you'll see why. So section one, article two says, "'The executive power shall be vested "'in a president of the United States of America. So the Unitary executive theory essentially says well

when it says the executive power shall be vested in president United States of America he gets all of the power of the executive. There is which okay you say well that's kind of a tautology right it says the executive power shall be vested therefore it means the executive power is vested. But then that turns into the question of what is the executive power? So one version of the unitary executive theory then therefore becomes, well, anything that like an executive could conceivably do is exclusively within the power of the President of the United States of America. In other words, if you're thinking, how do executives operate in the world?

What is executive power? What is executive authority? All of that just belongs to the president. And so this is kind of what you're talking about, Sarah, like, okay, a CEO, for example, would normally just be able to determine whether or not you're going to create a new product division in your company. And the subordinates, the underlings, cannot create a new product, right? And so this is, it cannot compel a CEO to adopt a new product. So if this is something that an executive would do,

then it belongs to the president and only the president. And I think part of this has been persuasive to me within the president's enumerated powers. What does it mean to be commander in chief? They lay out what these executive powers are, what it means to be commander in chief. Your, what you're articulating is something, I think a bit more than that, which is essentially if this is something that executives could conceivably do as executives, well then that's none of Congress's business. And it feels like to me under this-

Not quite. But it's interesting because it feels like to me, you can't, you could not create an EPA. Like a president could come in tomorrow and say, It feels like to me under this- Not quite. But it's interesting, because it feels like to me, you could not create an EPA. Like a president could come in tomorrow and say, I don't want an EPA. I don't want it. I mean, I'm in charge of it and I don't want it.

Like I'm ahead of that agency ostensibly. I'm just in my administration, that's gone, it's over. Okay, but- Yeah, how's that tenable? Okay, so first of all, if you want something, Congress has to appropriate money for it. So certainly running that direction, you need Congress. Now also, Congress passes the Clean Air Act, let's say. You still have the duty to execute that law.

If you don't want to do it through the EPA because you don't want an EPA, and again, I like the Department of Education example a little bit better just because, you know, there's the cabinet member of the Secretary of Education, but let's use the EPA administrator, whatever you want. We know that presidents can fire, for instance, their cabinet members. They fought this out with President Johnson. Remember, he was impeached for firing Congress passed a law that you can't fire your cabinet members once they've been advised upon and confirmed by the US Senate. We all now kind of agree that that law is unconstitutional, a restraint

on the president's power. This is along those lines. It's Humphrey's executor. It's the idea that all of these people work for the president. If he doesn't want them, you can't force him to have them. Now, we haven't quite gotten to independent agencies, but that we don't need to deal with that today. This is, again, my theory conversation about core executive branch employees. So my argument goes something like Congress can't force you to spend money on employees and agencies that you don't want. But you still have a duty to execute the laws that they have passed. For instance, the Clean Air Act or the Education,

the Heroes Act, whatever that was. You may want to retain people to do that, or you may need to hire more people into the White House. Let's say you just want those people closer to you who are actually executing those laws. So David, I think my theory isn't as sweeping as you think it is, because you still have to execute the laws that Congress passes. My argument is only that you don't have to have a secretary of education or a department of education as such with those human beings that Congress has appropriated money for, but you better find some other way to execute

the law because you definitely have a duty to do that. And so to the extent you think that my theory kind of collapses into reality, I'm not really disagreeing because again, you still have a duty to do that. But I think the doge point is that once we get rid of these regulations, there's a whole bunch of people in there who in theory have civil service protection, but who won't have anything to do once we get rid of these regulations. And I think the people who are pushing back are saying, well, impoundment act, Congress said you must have the Office of Regulatory Blah-de-blah for Tuesday regulations. And my argument is, no, I actually do not think that Congress can demand employee expenditures

because I think that probably is solely within the president's purview as long as he's executing the laws. Does that make sense? It makes sense. It's a lot to get out of those few words in the Constitution. The Constitution isn't very long, David. We have to squeeze out everything we can. I know. But this is why the dance between the legislative branch and the executive branch here, there are different kinds of processes for resolving sort of this notion of what are the constitutional roles and how does this play out in real life.

And one of them is the statute is the lawmaking process where Congress says, hey, we want to have clean air. And we also know that, look, if every four years in comes a president and they can, they're going to, we're going to pass a law that says we need clean air and the president walks in and says, okay, I'm gonna try to execute the laws, but first we have to fire the whole clean air group that was before me, that have our 10,000, 15, 20,000 employees and then we're gonna bring in the new 10,000,

15,000, 20,000 employee clean air team. The idea that as a practical matter, that that is in any way shape or form a way to run a railroad, so to speak, is just, you know, wild. And I haven't gotten to the Civil Service Act where Congress put limits on how and when the president can remove those employees deemed civil servants. Under my theory that I just explained, I think you'd have to say that the Civil Service Act exceeded Congress's authority to dictate to the president

how to have those employees. Now, there's various ways that the Civil Service Act, people have tried to kind of save it from that problem, that basically all it says is you can't remove them for certain reasons, but to the extent you don't need those employees anymore, you're still allowed to fire employees for workforce reduction, redundancies, et cetera, without violating civil service protections.

Right. Again, in theory, that's all well and good. In practice, like, let's move back down to reality here for a second. In practice, the civil service protections are so onerous. There's appellate processes, the civil service protection review board, etc. You would be so stuck in lawsuits and administrative red tape should you try to remove any large-scale number of people. You would have to litigate whether the Civil Service Protection Act is itself, not necessarily all of it, but partly unconstitutional, whether that's severable, because it is a web of regulation

that I think, I will say for my own part, David, I will say, I think has become unhelpful to actually making the government function well. I think in theory, again, having protections for people in government so that as you note, David, you don't fire the 10,000 Clean Air Act people and then bring in the next 10,000 Clean Air Act people. And remember, this comes about right after a president was assassinated over these sort of hiring decisions. This is James Garfield, right?

He was assassinated because he didn't give a job to this like crackpot dude, because it was seen as like once a president comes in, he gets to hire for all these positions. Of course, what's funny now is I don't have the exact numbers in front of me, but right now it's about 4,000 jobs in what's called the plum book, get it plums,

that are political appointee jobs. I'll bet that James Garfield didn't have a whole lot more than 4,000 jobs to give out to begin with. But now of course it's- In the whole federal government. In the whole federal government. Yeah. I'm not sure we actually,

I've really honored James Garfield's memory here. And once you then had the civil service protection, it's just created a whole different host of problems. But David, that touches on several of Jack Smith's thread tweets, and lots of what Doge says they're going to do. But we'll see when the rubber hits the road. I'm going to totally agree with you that the civil service protections have become extremely onerous. There's no question about it.

If you're a median private sector employee, if you're listening right now and you're a private sector employee, you have a small fraction of the protections against termination that a public sector employee does. Now, I do think that in a functioning civil service, you're gonna have to have some protections against the kind of sweeping out, I'm throwing out your 10,000, I'm bringing in my 10,000, the chaos of that, the way in which,

there were very good reasons why the Civil Service Reform Act was passed. But it's very fair to ask, is it too much? Is it too much? But again, you get to this common theme of, will Congress pass this law for civil service protections? Congress needs to do something about it. Similarly, when we talk about monetary appropriations,

the president in a budgetary cycle can request, can go to Congress and say, to accomplish your intent for clean air, I don't think I need 10,000 employees. I think I can get this done with 5,000 employees. I think I can get this done, and it's better to get it done by repealing these regulations. And you can go to Congress in a fiscal year and say, I want less. I am requesting less money.

And Congress can say yes, and Congress can say yes or Congress can say no, but this sort of idea that the president acts is, you know, that the, if you want to think through the implications of sort of this argument that the president can spend less than he or she is given, imagine you have a requisition and it is $100 billion to build 10 nuclear submarines. And Congress has passed this because we believe we need 10 nuclear submarines to meet the Chinese threat. A new president comes in after this has passed,

building submarines takes a long time, guys. And let's say it's a president, Bernie Sanders comes in and he really, really, really disagrees with the strategic posture of the previous administration and decides, I'm not going to spend the money on these submarines. So let's suppose he's tasked to spend $200 billion for submarines and a new president come in, let's say a president Bernie Sanders who wants big time reductions in defense spending. Well typically the way you do it is you go back to Congress and get new legislation rescinding

the purchase of the submarines. Under the doge impoundment theory, he can just say, nah, I'm not going to spend the money. And then therefore, what he's just done is he's essentially vetoed an act of Congress. It's an extra veto hidden in the constitutional text that's nowhere found that essentially says, okay, you overrode my veto, how about this? I just won't spend the money. I think you can see quickly how that gets, it becomes a problem very quickly. And again, this is where you have to make it for my purposes of the unitary executive theory,

a real distinction between you must cut a check to X versus you must spend money X versus you must execute law. You must give money to outside place. Congress can absolutely do that. The president must do it. He doesn't get to just not write the check because that's the same as the doing, right? You must build 10 submarines. Then the president must build 10 submarines. It's again, it's a relatively narrow argument here. But what they can't do is say, you must have 27 employees to build the 10 submarines if the president only thinks he needs 15. Or you must spend $100 million per submarine when the president thinks he only needs to spend 50 million. Now,

they can say the submarine must meet these specifications and we think that's going to cost a hundred million dollars and of course they can say you can't spend more than a hundred million dollars etc. But all of that. Okay, one other note, another statute worth mentioning is the Federal Advisory Committee Act. This kind of goes in conjunction with the Anti-Deficiency Act. So when I mentioned you couldn't have volunteers in government, the Federal Advisory Committee Act

can use volunteers. This is how federal agencies establish advisory committees. So I think that they're arguing the DOJ, for instance, is going to be an advisory committee, which is why you're allowed to have, you know, Musk and Ramaswami as volunteers. The problem when you hear them argue this is that all meetings must be open to the public.

All records must be proactively published. You have to announce meetings in the federal register. You have to allow the public to attend meetings and provide input. It's like crazy how onerous FACA compliance is, and there's no way that these guys are going to actually meet FACA compliance. I would suggest that they should take a very small salary and become federal employees rather than try to meet with FACA compliance or run afoul of the Anti-Deficiency Act.

And FACA still, I don't think covers what Musk is doing, for instance, sitting in on calls with foreign leaders, CEOs. I think there's some amount of private advice a president is allowed to get, of course, from someone who's not a federal employee. And I don't really know how you would challenge Musk doing all of this. We're pretty much running ramshot over some of these laws. Yeah, you know, and it's funny. How can you work for Doge right now, Sarah? You send in a Twitter DM. Cool, cool. We're going to increase. I'm multi-hatted here and I'm going to use one of my hats. You got to go through my software, my app,

to apply for my government efficiency. I mean, it's wild. It's wild. Let me provide you another example. Musk sits in on a phone call where the president or president elect at this point is on the phone with another CEO. Musk then tweets about that meeting afterwards, moving markets against one of his competitors. Like, boy, the president didn't like that phone call. So and so might see some regulations coming in their future and the stock price falls. That feels not legal. Yeah, yeah. There's a big energy or there's like big like tech bro energy around this, Sarah, that is, and by that I mean like nobody's ever done anything correct before we got on the scene. And these idiots and fools shall soon see the full power of our breathtaking intellect.

And they're going to run hard up against the reality that a lot of smart people for a long time Have been looking at this issue and a lot of these institutions and structures that they despise Were put in place for a good reason for example the impoundment control act and anti-deficiency act Some of these coming out of the Nixon administration America has America has spent a lot of time being run on an honor system essentially, there are these sort of norms and values that American leadership should uphold and embody. And then Nixon blew through a bunch of these guardrails, and Nixon just wrecked them.

And so Congress came in in the mid-1970s and was like, you know, no discretion for you, Mr. President, after we've seen what you do with this discretion. And so there were good reasons for this existing, but if you're gonna wanna tear down these institutions that have been created, that were created because, and we have to always, Chesterton's fence, why is this fence there?

Why does this exist? And if you're gonna try to rip down that fence, which can be done, and sometimes, sometimes the fence doesn't need to go, you gotta know why, and you gotta be able to do it through the actual political process that exists in the United States of America. And that's where I feel like this gets,

when you read this, that this is not encouraging. As the world's population grows, so does the need for resources like Potash to support sustainable food production. not encouraging. committed to Canada. The future is clear. It's happening now at BHP, a future resources company. To discover how, visit BHP.com slash better future. Shop Cyber Monday deals now on Amazon with up to 35% off home goods to deck their halls, toys to stuff their stocking, and electronics like noise-canceling headphones to silent their night. Shop Amazon Cyber Monday deals now. All right, let's move to mass deportations. So David, you and I have talked pretty extensively about the immigration laws in this country and in particular the asylum laws

can feel a little like civil service protections in that there's just a whole bunch of process that one is due. If you're a civil servant, or if you're someone who has gotten into the country and claimed asylum, again, without an act of Congress, you simply can't show up to someone's house and say you're here illegally if they have applied for asylum, which is still the majority of people who have crossed the border illegally. Now, there's visa overstay, folks. But again, as long as they say that they're now applying for asylum, they will get tangled up in that whole system. So I wanted to talk about a few other options that seem to be on the table. One, there are about 1.5 million removal orders pending in the country. million removal orders pending in the country. 100% you can go find those 1.5 million people and deport them tomorrow. I don't know whether... I mean, I would imagine we would all agree

that 1.5 million people is mass deportation, but 1.5 million people also is not a large percentage of the folks who are here illegally. So what else? What I've heard a lot about is this idea of challenging birthright citizenship. Because of course, for those people who do have removal detainers, imagine that it's a single mom whose two children are American citizens. And everyone's sort of struggling with this because either you let the mom stay illegally or you have to send the kids with her back to a country that they are not citizens of and that they've never been to because they were born here under this theory.

Now of course you have the DACA type people know they were brought here illegally as children, but I just want to focus on nope, they were born here. So she is an illegal alien who has two American citizen children, but she has a removal detainer because let's say she got a DUI or something like that. Now what do you do? So one of the theories brought by folks is that we need to tackle birthright citizenship. And I thought, David, that was worth just a few minutes of our time. First up, the United States is one of the very few countries that has birthright citizenship.

And if I read a handful of the other countries that have it, you're going to recognize kind of a theme here, both in who does and in who is not on this list. Antigua, Argentina, Barbados, Belize, Bolivia, Brazil, Canada, Costa Rica, Cuba, Ecuador, El Salvador, Honduras, Jamaica, Mexico, Panama, Trinidad, Tobago, Uruguay, Venezuela, the United States. I'm leaving out a few, but they all, oh, Tanzania. That's the one that I've left out that you will see does not fit into that. But right, it's the Americas, David.

We're the only ones. You know, and it makes sense when you think about it because this is a place where you had an enormous amount of what settlement, these are not blood and soil countries like the European nations, which were created out of ethnic groups. I mean, look, I know listeners who are experts in all this, this is super compressed, simplistic history,

but before the rise of the modern nation state, you had ethnic groups, you had sort of these blood and soil geographic entities, cohesive entities. Not the same thing when you're dealing with the big amalgamation that you had between native born individuals who were often in their own sovereignty's when European settlers arrived and European settlers and then the creation of new nations out of European settlement. It's a very different situation than the origin story of some of the nations overseas. So just to be super clear about this,

if you head over to Singapore or Germany or Australia and you're pregnant and you have a child in those countries, even if you've been there for 10 years, let's say, whatever, those children are not citizens of that country. And I think it's sometimes hard for Americans to understand this because it can mean in some of these countries that you're a citizen of nowhere. And look, I listed the total birthright citizenship countries. There are also these countries that you're a citizen of nowhere. And look, I listed the total birthright citizenship countries. There are also countries where if you're not going to be a citizen of anywhere, you are allowed to become a citizen of that country. If you were born there and you don't belong anywhere else. So there's like lesser birthright citizenship

countries, if you will. But yeah, I mean, Americans, I think are like, but what do you mean? Like, I don't understand. Who are you a citizen of? So, uh, David, you've explained sort of how it starts, but then of course we've got a problem with Dred Scott, for instance, and both free black people living in the United States. And then what happens after the war when, you know, formerly enslaved black people are now just in the United States. What exactly are they vis-a-vis the United States? The 14th Amendment in 1868 says, all persons born or naturalized in the United States and subject

to the jurisdiction thereof are citizens. Now, what folks will tell you is that the subject to the jurisdiction thereof was meant to encompass freed blacks and formerly enslaved black people living in the United States of America, that they are citizens. And it was meant to prevent this whole, you know, well, they were born here, but they're not citizens because of their color or ethnicity or anything like that. But what it was not meant to include, for example, diplomats children, you know, if the ambassador comes over with his wife and they have a child and they're an adversary country or even a friendly country, they're here as diplomats, they're not subject to the jurisdiction thereof, they're subject to their home jurisdiction, their child is

not an American citizen just by virtue of being born here. And we have a Supreme Court case to that effect. But that specific not subject to the jurisdiction thereof was actually meant to exclude Native Americans, that they were subject to the jurisdiction of their tribe, remember, in 1868, and not subject to the jurisdiction of the federal government. And so they were not automatically US citizens. We have changed that since then, but that their argument is that's what the subject to the jurisdiction thereof is. And so they apply that to people who have come into the country illegally and say, similar to Native Americans, they may be living on this land, but they're not subject

to the jurisdiction. We didn't agree to have them here. They broke our laws by coming and they're kind of just living here. And therefore, the 14th Amendment doesn't apply to them. And there is no birthright citizenship without the 14th Amendment. So David, I'll pause there. Reactions. Yeah, I think that's a specious, you're laying out, when I say that's specious, not what you just said. The argument is a specious argument

regarding illegal aliens. Because when you're talking about, subject to the jurisdiction thereof, we're not talking about, that is dealing with those individuals who have, in particular in the diplomatic arena, a degree of immunity. So there's this whole zone of diplomatic immunity.

They're literally not subject to the jurisdiction. You cannot do to them what you can do to anybody else in the country, right? If someone is here illegally, you can do to them what you can do to anybody else in the country. You can arrest them, you can try them, you can deport them, you can imprison them. There is in every way that the law can operate on them, the law can operate on them. And that is not true with diplomats, for example.

And in certain circumstances, historically, if you're going all the way back to 1868, there was a negative side of that when it came to Native Americans, the ha-ha, you're not citizens. But also there was the side of it that said, wait a minute, there are still sovereign Native American entities in the continental United States. It was extraordinarily complicated, more complicated than even than it is now on the legal status of Native Americans because a lot of Native Americans back then were, no, no, no, no,

what's this United States of America thing? I'm part of the Sioux, you know, the Sioux Nation or the Apache Nation or whatever. You're something else entirely. And so that is just to put that into the illegal alien context where you can go arrest somebody, try somebody, imprison somebody, deport somebody, and all again in all the ways that the law can operate on them, the law can operate on them. So of course, they're quite literally in the way the words mean on the page subject to the jurisdiction of the United States. Well, this brings us to the last question around that, and that's the invasion question.

And this is what I was trying to get to in my conversation with Jim Ho, but I don't think I phrased my question very well. And I actually wonder, David, if we should save this part for our next episode, which is, what if they're part of an invading force, right? This is the ex-parte Kieren. The Nazis come with their pregnant wife and they bury their uniforms in the beach and then she has a baby five minutes later. Can that child be a US citizen? I think the answer to that is clearly no. They weren't subject to the jurisdiction thereof. They're enemy combatants. Page and Henry from the Americans.

Page and Henry from the Americans. Yes, right. The two kids. Yes. Right. Absolutely. Absolutely. They've got some problems there.

So let's get to that this circuit invasion question that the next episode gave it because I want to leave time for commercial speech. And I thought it would be fun first for me to simply lay out the central Hudson four-pronged test for commercial speech. For commercial speech to be protected by the First Amendment, it must concern lawful activity and not be misleading. Next, the asserted government interest regulating that speech must be substantial. If yes to both of those, then we determine whether the regulation directly advances the government interest asserted and whether it is not more extensive than necessary to serve

that interest. So David, this comes into play when you have restrictions on advertising. For instance, law firms in some states can't call themselves something other than the names of the people in the law firm. They can't promise certain outcomes or things. There's all sorts of restrictions on how law firms can advertise. It's how you can have calorie counts on menus and make restaurants do that. Otherwise you would be compelling their speech to put that that Bloomin' Onion is 10 billion

calories. Still happy to order it, by the way. Okay, but David, this is a fun case. Tell us about it. Yeah. So this is a case out of the Northern District of Mississippi moving up to the Fifth Circuit Court of Appeals. And I'll just read a little bit about the read a little bit from the facts here. Clarence Coecroft and his medical marijuana dispensary, true source medical cannabis.

Now why did I pronounce it like that, Sarah? This cracks me up. Throughout the opinion, they spell marijuana, M-A-R-I-H-U-A-N-A, marijuana. And I can't, for the life of me, figure out why. It sort of like feels like a relic of a previous time and I don't even know if it is, but there's just something, I don't know, strange about seeing that spelling.

But throughout, medical marijuana, it says, true source, medical cannabis appeals a judgment of dismissal from their First Amendment challenge to Mississippi's near total restriction on the advertising of medical marijuana. So they have, they're trying to advertise medical marijuana in the state of Mississippi, and Mississippi, which permits medical marijuana, had extreme restrictions on how much you can advertise it. So the act says,

restrictions on how much you can advertise it. So the act says, advertisement is largely banned, but the rules may not prevent a sign on the property of a dispensary, listing and business directories, including phone books, listings and cannabis related or medical publications, display of cannabis and company logos, et cetera. But beyond that, you just couldn't advertise it.

Now, the 11th, sorry, the Fifth Circuit makes short work of this argument because, Sarah, of that first prong in the Central Hudson test, is this a legal product? And it gets to something that I think a lot of people have forgotten. It might be legally under the law of Mississippi, but it is still a controlled substance federally. So federal law still, marijuana is still a controlled substance under federal law. So it's just not lawful, even if Mississippi under Mississippi law makes it lawful. So it's not a very long

opinion, but it's an interesting entree into the discussion of commercial speech. Why is it, for example, that we permit regulation of commercial speech in such a dramatic way compared to say political speech? And this gets down to, this gets to originalism. What is the original public meaning of the First Amendment? And the reasoning has long been that political speech is core speech. If you're gonna talk about why the First Amendment was created, you're gonna have political speech front of mind.

However, if you're gonna talk about original public meaning of the First Amendment, was it really intended to permit a person who's hawking goods and services to say anything that they want as they are advertising? Now of course there were common law fraud rules and things like this and so really truly the question is, was, is the meaning of that First Amendment to place all forms of speech in a degree of parody, or there's some forms of speech that are core to it

and some that are peripheral. And the courts have long held, at least in the modern era, that there are some core and peripheral elements and that commercial speech is peripheral. But there's something kind of weird about this because I would agree. I agree. If the federal government banned marijuana and the federal government said you can't advertise the sale of marijuana. That makes sense. But here you

have the state saying that it's legal but restricting the speech, right? Yeah. So like this date is fine with you selling, but the state is not fine with you advertising it. And then they point to the federal law prohibiting, like making it illegal to say that, aha, see, we can regulate this speech because some other sovereignty has made it illegal. That's a little confusing, David. Yeah, it is a little confusing, actually. And it's of a piece with marijuana regulation more broadly.

Oh, that's very confusing. Very confusing. Everybody talks about legal weed, legal weed. Now, there are some elements of THC for sale that are legal. So, for example, you know, these different derivations that have been, and oh my goodness, I assume there are certain areas, Sarah, when you wander into them, There are certain areas, Sarah, when you wander into them, that you know there are people who they know every syllable of the law and everything around this. One of them is guns. So if you say, if you have any wrong lingo

when it comes to guns, just be ready, right? Another one of those areas is marijuana regulation. So I just, listeners, if you want to refine what I'm saying in the comments, and please do, but there are certain versions of THC that are now federally legal like Delta eight, I believe Delta nine THC, you'll see this advertise, people have no problem, you know, using the banking system like credit cards to buy this stuff. But other parts, other other kinds of quote legal weed are still absolutely illegal federally, which means they're not legal weed.

It's not legal. It's legal in the in the sense that the state will not unleash itself upon you. But the federal government still theoretically will, although we're now in this area where enforcement of federal marijuana laws has been so de-emphasized that at some point you wonder what are we doing here right now? Because to have it legal, I mean illegal, but not enforced, again, what are we doing here? So it is a very messy area and this case is just an illustration of that.

Okay, so here's how I think I can get to the same place as the Fifth Circuit panel here. The state is welcome to say they're not gonna expend resources prosecuting marijuana laws because it's illegal at the federal level, for instance. So like, we don't think it's worth state, which is where the vast majority of prosecutions

and arrests take place. But if someone is a big enough dealer or something to get the attention of the feds, great, while we're not gonna make it a crime in Mississippi, because it is a federal crime still, we are certainly not gonna allow people to advertise it. So it's almost a way of keeping it illegal in the state while saying you're not going to prosecute people for doing it, because it's almost a way of keeping it illegal in the state, while saying you're not going

to prosecute people for doing it, because it's just not where we want to spend our resources, our prosecutorial resources. That makes some sense to me, David, versus, I think, having a law on the books that somehow affirmatively says something is legal, and we're not allowing commercial speech on it because the feds say it's not legal at the federal level. That's not quite what Mississippi did here. They simply don't have a law criminalizing marijuana, but have the law banning the speech because it's a federal crime. Yeah, I think I can get there. Yeah. You know, it's sort of the way I would look at the Mississippi law, it's a federal crime? Yeah, I think I can get there. Yeah. You know, I it's sort of the way I would look at the the Mississippi law, it's sort of, hey, we're going to be very

nice to you. And we're not going to also ban this thing that is federally banned. But our our patients has limits and those limits revolve around advertising. Yeah. It's basically a civil crime. Not a civil crime. Sorry, a civil penalty. I mean, yeah, sorry, a civil penalty, I mean. Yeah. No, it's a fascinating case and it's fascinating because it illustrates, hey, if you're in the commercial speech business, you've got a lot more limited rights. I remember when legal advertising really began to burst under the scene and very heavily restricted, very heavily. You know, advertising for drugs, pharma advertising.

Why do you think you get to this point where it's the beautiful scene on the beach and the couple are walking hand in hand and it says side effects may include spontaneous combustion, rotting of limbs, gangrene. And they're required to say that. They have to say these things. It's not that they just said, you know what?

We don't want people to think our drug is too good, so hey, here we go with all the side effects. So we're very used to this kind of commercial speech regulation. But at the same time, as when you're articulating the Tessera, you can't just trust the government to regulate it by fiat because you would immediately begin to have the favor trading, the favored industries,

the politically favored industries, the politically disfavored industries, the politically favored owners, you name it. And so the way we have the commercial speech doctrine is, yeah, there's some protection, but it basically sort of means when the judge decides the government's come too far. Indeed. All right. Well, David, we're not going to have another episode this week because it's Thanksgiving. And I am so thankful for your friendship and for our listeners and for this podcast. That brings me a lot of joy to do.

Have you watched the Netflix series? Nobody wants this. No, I don't even know if I've heard of it. Okay. It's Kristen Bell and Adam Brody and it's a rom-com series, but she's a host of a podcast. The podcast is called nobody wants this. Yeah. She's a host of a podcast. The podcast is called Nobody Wants This. Really?

Yeah. Okay. And she's talking about how, you know, it's sort of like a sex podcast, but she's like, our podcast is about so much more than that. It's about making people feel comfortable. It's about like allowing them to feel, you know, their whole selves, blah, blah, blah. And I was thinking like, yeah, totally. Our podcast is so much more than a legal podcast.

And then I thought for a second. Amen. And I was like, maybe it's not. Maybe it's just a great legal podcast. And I'm good with that too. No, Sarah. No, Sarah. Well, A, I'm good with having just a great legal podcast, for sure. And I'm thankful. I'm thankful for our friendship. I'm thankful for our listeners. As, you know, we were at an event together recently, and one of the things that was really fun for me to hear

was some of the listeners who were there who said, it's just obvious that you guys enjoy doing the podcast. And I thought, yeah, we do. We really do enjoy it. And it is more than just a legal podcast because Sarah, we have marriages to our credit. That's true. I mean, right? Our soul credit, right? I mean.

And speaking of that, before we go, we also have physicists that listen to the podcast. And if you remember, on the last episode I talked about, you remember Justice Gorsuch saying gravity is the strongest force in the universe and me saying, that's weird because of the four fundamental forces, gravity is the weakest force, but we're gonna have physicists come in because I know that, you know,

gravity works at large scales and the strong and weak nuclear forces work at very small scales and maybe they're gonna tell me that I'm totally wrong. So here's the subject line. Gravity is the weakest force and it's not close. As soon as you read Justice Gorsuch's hypo from oral arguments, I cried out to no one in particular, but gravity is by far the weakest of the fundamental forces. And I am glad, though not surprised, that Sarah immediately

put that to rest. Gravity is indeed the weakest of the four forces and it isn't particularly close. That is a good thing, otherwise your body would collapse into a pile of goo and fall through to the center of the earth. You can also test this by looking at your fridge, which is probably littered with cheap magnets, valiantly resisting the gravitational pull of our entire planet. While the three other fundamental forces are much stronger, they differ from gravity in some important ways. The two nuclear forces are short-range, meaning they're effectively non-existent above subatomic

scales. The designation of the weaker of the two nuclear forces as the weak force was done specifically to annoy David. Electromagnetism, like gravity, is infinite in range. You might remember from high school physics, they can have the same inverse square law, but it has positive and negative charges where like charges repel and opposite charges attract. Not so with gravity, where everything has positive mass and attracts everything else. Caveat.

Gravity may in fact become repulsive at the very largest cosmic distances. And caveat. This is the reason gravity is the dominant force on astronomical scales, governing everything from the orbits of satellites and planets to the expansion of the universe. Fun fact, the extreme weakness of the gravitational force is actually one of the deepest mysteries in physics, which may only be resolved when we have a full theory of quantum gravity such as string theory. Indeed, a popular line of research conjectures based on thought experiments involving black holes, that no matter what theory ultimately describes nature, gravity must be its weakest force.

Returning to Justice Gorsuch's question, what more powerful force in the universe is there than gravity? We may require a closer textual analysis. If by the universe we mean everything it contains, from quarks up to galactic superclusters, then the answer is literally all of them. If, however, we're referring to the universe as the object of cosmological study, where we care about the motions of galaxies and dark matter on the largest distance scales and are not concerned with zooming way into the level of atoms or even individual stars, then he deserves few, if any, Pinocchios. Despite the greatest

efforts of many physicists, including yours truly, to propose and look for new forces in cosmology, particularly to explain dark energy, gravity is, as far as we know, all there is. So David, I am grateful for your friendship. I am grateful for this podcast, but boy do I love and cherish our listeners because no matter what I ask on this podcast, we have not just one expert and thank you to Adam for that email, Physicist Adam, but we got several emails. Wonderful email. From physicists. And I'm so grateful for all of you listeners, all of you experts, because as I have learned, you're all experts in something.

And you know what? Through the course of this legal podcast, we're gonna touch on everyone's expertise. And I am grateful for that. Amen to that, Sarah. I can't say it better. Happy Thanksgiving. You