Advisory Opinions - Dorm Room Originalism

Episode Date: September 25, 2025

Sarah Isgur and David French break down the Supreme Court’s latest move: taking up a case before the lower courts have even finished with it. What does that mean, and why now?They also dig into three big rulings from the 11th, 5th, and D.C. Circuits that could have a major impact going forward.The Agenda:—Federal Trade Commission firings—Is Humphrey’s dead?—‘Dorm room Originalism’—Originalism and the Constitution—Healthcare covered sex-change surgeries—Trump’s use of Alien Enemies Act—Predatory incursion vs. invasionShow Notes:—How Originalism Killed the ConstitutionAdvisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. We have a new cert grant from the Supreme Court. CERT before judgment. We'll tell you everything about that in this episode. three circuit decisions, the 11th, the 5th, the D.C. And finally, we'll talk about Jill Lepore's piece in the Atlantic. So many of you have asked us to how originalism killed the Constitution. A radical legal philosophy has undermined the process of constitutional evolution.

All coming up on advisory opinions. You get access to exclusive dining experiences and an annual travel credit. So the best hapice in town might be in a new town altogether. That's the powerful backing of Amex. Terms and conditions apply. Learn more at Amex.ca. Slash-Y-Amex. Bankmore on-course.

when you switch to a Scotia Bank banking package. Learn more at scotiabank.com slash banking packages. Conditions apply. Scotia Bank, you're richer than you think. All right, David, let's start at the beginning. This is the Federal Trade Commission. It's Humphrey's executor. It's the Battle Royale that we've been waiting for.

Although I'm not sure that I really thought we would get the head-to-head federal trade commission, which is what original Humphreys executor was about from 1935. If you remember, Donald Trump fired Rebecca Slaughter from the FTC. She was one of the democratically appointed commissioners, and she sued. The lower courts reinstated her, finding that Humphrey's executor controls. And the administration obviously appealed that on the emergency document. to the Supreme Court, here's the answer we got on that application for stay. The application for stay presented to the Chief Justice and by him referred to the court is granted, meaning that Rebecca Slaughter is no longer an FTC Commissioner, but it continues. The application is also

treated as a petition for a writ for certiorari before judgment, and the petition is granted. Okay, let's break this down for just a second, David, from a procedural standpoint because I feel like we're going to be talking about cert before judgment more than usual this term potentially. So we all know the way this usually works, right? The circuit court makes a decision on the merits and then you file a cert petition at the Supreme Court and you go to conference. You often get relisted. If you get relisted once or twice, that's a really good sign, 75% of the petitions granted in any given term sometimes have been relisted once or twice. If you get relisted 23 times, like the current record holder in the ham case from a couple

terms ago, you're going to get denied as it did in the ham case. That was on how to measure IQ tests, multiple IQ tests for intellectual disability in a death penalty case. 23 times you're getting you're getting something, but you're getting denied. In that case, it was GVR. That means granted, vacated, and remanded. You just send it back to the lower court. And there were two dissenters on that one. Gorsuch and I want to say Thomas. I might be right about that. Might be wrong. Going off memory here. Okay. So that's the normal process. You get granted. Then you get your oral argument schedule. There's two weeks about a month that they hear oral arguments on Mondays, Tuesdays, and Wednesdays. And around the merry-go-round we go. Okay. And then you also, know about the interim docket, the emergency docket. That's where we're deciding what the status quo is going to be while the case is pending. That's all of these stays and injunctions and reinstating people and grant money, all of those things. Okay, cert before judgment is where the two are going to blend. So a case goes up on an emergency application for a stay like this,

and the Supreme Court says, you know what, instead of sending this back down with what the status quo will be while the case is pending, we're just going to go ahead and take this case because the issues are already teed up and sending it back down. You're basically just going to redo the whole analysis because it's the same analysis for the merits as it was for the interim docket. That's not always the case, right? Think on, well, any of these cases, right? Your status quo determination may be really different than your merits determination. But here, the Supreme Court decided, you know what, let's just, let's save ourselves all the trouble of going district court, circuit court, Supreme Court, district court, circuit court,

Supreme Court. So this basically gets transferred from that interim docket to the merits docket. So now it gets slotted in somewhere. So they will hear oral argument on this. It will be briefed like a merits docket case. It will now be a merits docket case because it has been granted cert. the only difference will be that it will move faster than a normal case would. My guess is it will get slotted in November or December for oral argument. And, you know, that makes your briefing schedule and everything maybe a little bit more truncated. And of course, you don't have a full decision from the circuit courts as you normally would. Okay, so there's more to this case, though, that we have to talk about because they granted two questions presented. Let's take these one

at a time. The parties are directed to brief and argue the following questions. One, whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers, and if so, whether Humphreys' executor v. United States from 1935 should be overruled. So, David, I got to say just by, I don't know, the tone, the answer is yes. Offreys is going to die a second time. Of course, the joke here is that, Humphreys' executor. Humphreys himself died before the case, actually made it through the courts. That's why it's Humphrey's executor. It's the executor of his state who was bringing the case.

Anyway, so yeah, Humphreys is going to die a second time. Ha, ha, ha. But you agree, right? This is bad for all those fans of Humphreys executor who are out there. We've been leading to this point, but it's only been on that interim emergency docket. Right. No, I will say, I'm totally with you, I'm totally with you, that it looks like Humphrey's executor is gone. But number two. Okay, yeah. Okay, so number two. And remember, Humphrey's executor was about the Federal Trade Commission, and the Supreme

Court held that Congress could restrict removal powers from the President for the Federal Trade Commission. The argument from the administration has been twofold. One, that was just wrongly decided overturn it. two, the Federal Trade Commission of 1935 may share the same name with the 2025 Federal Trade Commission, but they are very different entities and the power that this Federal Trade Commission exercises is far more executive in its nature than the 1935 Federal Trade Commission, which was more advising and, you know, thoughts and feelings.

I was just going to say, okay, if only I was only looking at number one, I would say Humphrey's executor is gone, but to such a wild card. But anyway, that, yeah. Well, I just, I mentioned number one, because it would have been really easy for them to not touch the Humphreys executor question and just say that this federal trade commission is different. The fact that this QPT's up, whether to overturn Humphrey's executor means, I guess we're not going to spend a whole lot of time on, you know, the transformation and evolution of the FTC. We may just, you know, Humphrey's executor is wrong. Moving on. Okay. But here's the number. number two question presented. Now, this was briefed in the administration's application for a stay,

but it was at the end, like the very end, David. And it was given pretty short shrift in this. Now, generally when you're going to the Supreme Court and writing your brief, not generally, always, your strongest argument goes first. And your longest argument is your strongest argument as you perceive it. So this shoved in little redhead at the end of the brief gets the QP granted. Number two, whether a federal court may prevent a person's removal from public office either through relief at equity or at law. Okay, this may not sound like a big deal.

This is a very, very big deal. And I would argue, David, a bigger deal than the universal injunction case that was argued in the spring that we got in the summer, Trump v. Casa. one million percent yes i mean we we had the universal injunction case and as soon as it was as it was over both of us said okay honestly not that big a deal i mean and there were two very clearly right away right out of the gate administrative procedure act and class actions you could see it and and literally was it within a day or two days from the ruling that a class i think it took i think it took two days for a class certification and injunction on class

basis. I mean, on the very question of citizenship and naturalization, this is infinitely bigger because listen to the language. The language is not even whether a federal court may prevent the president's removal of a member of the executive branch. It's whether a federal court may prevent a person's removal from public office. What? Okay. Now, I don't want to be like, okay, this is a doom and gloom type of situation. Maybe it's number two is like, let's just be clear. The answer is obviously yes, but under these conditions. But that doesn't feel like it, Sarah. It doesn't feel like it. And I have a theory. If the answer were obviously, yes, there didn't need to be a grant on the second QP. We've seen Justice Barrett in particular really

into the formalism of the specific powers of the courts. Like, where do we have this power? Point to it. What all Ritz Act section are you looking at? And we've seen Justice Gorsuch, I think, tip his hat in this direction as well. So, no, I don't think this is a grant that's an obvious, we're granting it just to like do a bench slap. Uh-uh. No, this is real. This is not a drill. Okay, what's your theory, David? So one of my theories is that the question would be, wait a minute, isn't equity available only when remedies at law are inadequate? And what is the traditional remedy at law for removal from an office. It is back pay and reinstatement. So that's the general course of action, say, in a Title VII case or something like that,

it tends to be back pay and reinstatement. Now, in some cases, in the private world, it's just damages. In other words, that there is not irreparable harm of not occupying the position because the position at its very core is about remuneration. It is not about power. And so if you have lost a job, the injury really isn't the lack of the ability to say make a car. The injury is the lack of the paycheck. That's the real injury. And so that's why you see in a lot of tort cases involving private citizens, the damages are damages. I mean, the remedy is damages, that you've lost your job unlawfully, you get damages for that. And the Title VII context, you'll often get a reinstatement in back pay, or you'll get the promotion and back pay.

So when I went a case involving a professor at a, when a jury trial involving a professor who was denied a promotion because he was conservative, that was exactly the remedy. The remedy was he got the promotion and he got the back pay that he would have been entitled to. So I wonder if they're looking at it through this lens, Sarah, that what you do when somebody has lost their job is that you give them the financial compensation for it and reinstatement we're provided for by law. And I think that's a category error here because the actual loss and damage is not, this is not the same situation as a person. who is, say, fulfilling a private employment obligation to balance the books of a company

or make a Toyota Camry or even run Apple computer, all of those things are seemingly mainly in, it's a financial, it's a pecuniary relationship, that's what it is. Whereas if you are a public official acting under a statutorily authorized use of power, it's not just you're in this for a paycheck, you're fulfilling a public role as defined by law, that there is a real interest in the fulfilling of that public role as defined by law. And so I do wonder about if we're looking at apples and oranges, but that's kind of my theories. Let me read you a paragraph from the Department of Justice's brief on this question. As I said, it was at the end of the brief, but here it is.

Even accepting the Court of Appeal's erroneous premise that this case involves the exact same agency, the exact same removal provision and the same exercise of executive power as Humphrey's executor, this court should still grant a stay because this case involves a different remedy than Humphrey's executor. Humphrey's executor arose out of a suit for back pay, the remedy traditionally sought by offering officers claiming wrongful removal. In this case, by contrast, the district court granted injunctive and declaratory relief restoring respondent to office. As Judge Rao, who is in the dissent, correctly determined, the government is likely to succeed on the independent ground that district court's reinstatement of respondent exceeded its remedial authority. Article 2 precludes

a court from ordering the reinstatement of an executive officer removed by the president. The president's removal power is conclusive and preclusive, which means that it may not be regulated by Congress or reviewed by the courts, and that is a quote citing the Trump case. This was the criminal immunity case. Although Humphrey's executor held that Congress may sometimes restrict the removal power by statute, this court has never held that courts may restrain the removal of executive officers through injunctions or declarations. Permitting judicial reinstatement orders would substantially extend Humphrey's executor. Unlike a back pay order, a reinstatement order compels the president to entrust executive power to someone he has removed, a far greater intrusion.

So, David, it's, you know, very close to what you were saying. Now, there's one other part of this that I found interesting at the very end, the district court stated that, quote, if injunctive relief were to become unavailable, it would award a writ of mandamus. But a court may grant mandamus only if the applicant has a clear and indisputable right to relief. I find this interesting, David, because a writ of mandamus is sort of to this case, what a class action is to the universal injunction case. It's like, oh, sure, take away the equitable relief, but there's always a writ of mandamus. But I think they have a pretty good point here. A writ of mandamus is when a court can compel a government officer to do something, but they're

right. It has to be clear and indisputable right to relief. That is obviously not the case here where it is at least an interesting question whether a commissioner at the FTC is removable only for cause because of congressional statute or by the president for any reason because of Article 2. So, hmm, hmm, I say. This would be turning public servants into SEC football coaches. Here's what I mean. If you're an SEC football coach, well, I just single out SEC because they're the most fabulously well-paid people in the land and, you know, public officials in the land.

But they, you have a contract, for example, but these guys just get fired constantly until, you know, and what ends up happening is that the schools get on the hook for all of this. It's not back pay. It's their contractual, you know, it's their contractual obligation. So I was just looking up before the podcast. How much did Texas A&M pay out last year to people who were not coaching anymore? And the answer was $27.5 million were being paid, I was being paid by Texas A&M to people who were not coaching anymore who would be in the situation of public officials who lost a job and are receiving compensation from their government. And it's you think about it like this. And Sarah, if you, if the answer to that question, becomes yes, this isn't unitary executive anymore. This is, I don't even know what to call it, quite frankly, because it's not just can the president, can you prevent a person's removal by the president if they're a member of the executive branch, which that's the unitary executive.

This is, can a person be removed from public office period? Can a court prevent a person from being removed from public office, period. And I got to tell you, if you're talking about preventing lawless authoritarianism, the back pay remedy is inadequate at law. It is adequate for financial compensation. It is not adequate to sustain the statutory or constitutional structure and balance of power in our government. I mean, for a private employer, right, the back pay, the threat of back pay is the incentive not to wrongfully terminate someone. I think the problem, as you say, David, is the threat of back pay to the government when it's not their money, really. It's our money. It doesn't provide much of an incentive. And of course, the remedy to

the individual person harmed, I actually think I might disagree with you a bit here. The individual person harmed, I do not think, has an interest in continuing their service for separation of powers reasons. Their individual harm is different than the harm to the system of government. But of course, does a member of Congress have standing to bring this to say that, no, my power was diminished? No, they don't. So this is all a mess. If you remember back to, I mean, I know you were, you voted in this election, back in the 1880, 1880, yeah. In 1880, James Garfield was elected president, and he served not very long because while he was sworn in in March, he was shot. He was shot in July and died in September by a delusional office seeker, because this was back before

we had any protections. So, you know, the system we have now has evolved a great deal from its original purpose, but the original purpose was to prevent, A, the switching out of every federal employee every four years, and B, filling those roles with randos who, you know, volunteered in some campaign office that the president's never met and he's just returning favors and that person has no experience and no qualifications for the office that they're being put into. That's how you get the original civil service reform. It was a huge campaign issue, even in 1880 and certainly after, when Chester Arthur came on the scene and the Tammany Hall stuff.

But David, back then, think how small the presidency was in comparison, how few executive branch employees there were compared to now. But here's the problem. original theory of civil service protection really transformed during the progressive era. Roosevelt, first Roosevelt, Wilson, second Roosevelt, where it went from, you know, hey, let's not just move these people in and out every four years based on whether they volunteered on the campaign into let's put experts in and protect them because the politicians are dumb-dums and we don't want them to be able to override the expertise of these people who we

want serving, you know, forever because they're experts. I think that's a different theory of government and one that is bad. I mean, that's why I come down pretty hard on the unitary executive side and think if you work in the executive branch, your power is derived from the president and therefore the president must be able to remove you. Otherwise, there is no political accountability for people who serve in a government in a republic. Like, it can't work that way. There cannot be independent people who answer to no voters. So that answers the first question for me, right? I think the FTC commissioners are removable. The Federal Reserve is a different thing, as we talked about in a previous episode. Maybe civil servants are a different thing. I don't know.

But these people who are senior officials of the government, absolutely removable. Answer to question one, overturn it, and the FTC is different. Like, I would answer all the questions, yes. But on number two, this is really weird, because I do believe, as Justice Barrett explained in her book, not every constitutional wrong has a remedy that the courts can give you. This is a fundamental difference between her and Justice Jackson that we saw in the Trump v. Casa case, where Justice Jackson is like, it's what you said, David, if the president is acting unlawfully, unconstitutionally, like an authoritarian, we the courts must stand athwart and yell, stop. In Justice Barrett, I mean, her famous line, right? Quote, Justice Jackson would

do well to heed her own admission. Everyone from the president on down is bound by law that goes for judges too. This is the difference, David, and I feel like you're leaning on the Justice Jackson side of this argument? Yes? Is that fair? No, I would say, of course not every constitutional wrong has a remedy. No, a separation of powers wrong, the big ones, not like some random one, but when it comes to the fundamentalness of the Constitution, it would depend on there has to be standing. There has to be a concrete. And so I'm not, I'm not going to say that there is a freestanding when it's important enough. You get, you get a Supreme Court opinion. But on this one, let me put it this way. I'm with you on our, as article two is written, as, you know, the first sentence of

article two is written. I'm full firmly of the belief that the executive should have authority over the policymaking officials of the executive branch. So that's a, that is a version of, you know, unitary executive theory. We talked about with Jack Goldsmith that the president is in charge of the policymaking officials in the executive branch. But the civil servants, so the difference guys, for those of you who are like maybe puzzled about this, think of the difference between the U.S. attorney and all the line prosecutors, many of him have been working there 20, 25 years. They work on, you know, let's say they're in the organized crime division and the Southern District of New York or whatever, and they have been working on the Gadi investigation for 11 years. And, you know,

this is kind of basic function of government stuff where you have to have a certain level of continuity and a certain level of consistency in the provision of services. Or you just have chaos. I mean, you know, you made a great point, Sarah, about the Gilded Age era. In the Gilded Age era, you had a much, much, much, much, much smaller government. I mean, people, a federal government, people just probably can't even wrap their heads around how much smaller it was by comparison. And even in that circumstance, the spoil system was intolerable.

The spoil system reached a point where it was interfering with the administration and government. It was creating large-scale corruption. So the creation of, you know, civil service protections really was a one of these sort of at the end of the day, no-brainer good government, reforms that enabled America to move out of this sort of backwards frontier, small country kind of life into a much more rule of law-oriented continent-spanning democracy that it is now. And so this sort of idea that, well, you can get damages when your defendant prints money,

I think that's a bit of a stretch. What this reminds me of is the difference between dorm room originalism and responsible originalism. Oh, my God, that's such a good term, dorm room originalism. Oh, my gosh. You know, what dorm room and originalism says is, okay, well, I figured out the original public meaning, and the original public meaning is this. And then you look at the large, massive edifice of 100 years, 100 years of development economically, 100 years of development, governmentally. legally, et cetera, and you go, well, it's all got to go. It's got to go. And look, if Congress wants to rebuild something else in line with our precedents, then that's up to Congress. And we're getting perilously close if the answer to that question is yes to what you might call dorm room

originalism in my view, that it is, okay, and working from the state of nature, what is the ideal sort of form of remedy for loss of government employment versus working from the reality that we live with. And when you say that, that's not a compromise on the Constitution. It's an acknowledgement that a lot of people have been operating under one system for more than a hundred years and that you build up an entire web of checks, balances, precedents, etc. over more than 100 years. And look, this could be all much to do about nothing where the answer is number two is, look, we're getting this. This is lobbying up to us and the answer is obviously yes. But here are the circumstances. I don't know. They took this question.

I'm troubled. Think about it like this way. When we adopted Naomi, we went to our local social security office, a nice little building in Columbia, Tennessee, and there was an array of employees there. They had supervisors, et cetera. And they helped us navigate getting Naomi a social security card, changing her name to French, you know, to Naomi French. By the way, her legal name when she immigrated to the U.S. was congeet David French. which let me just say that if my 17-year-old daughter would not want to be named Conjit David French right now. But the, so you name, you change your name, et cetera, and they're very helpful. And the person we worked with had a lot of experience with this, and he was able to smooth the process. He was fantastic. So what if instead of, you know, you walk into your Social Security office, what you're

dealing with is the members of the local Republican Party committee. who, or Democratic Party committee, who helped campaign and put yard sides out for the presidential candidate and a slate of their names has been sent up the chain. And it comes back that everyone who wants it can work at the social security office. And so you get rid of all the people who've been changing names and doing social security numbers and all of that and providing for benefits and for disability benefits and correcting problems with grandma's check and all of this for all of these years. and in comes a bunch of folks who want a higher-paying federal job with better benefits. And they don't have any experience in Social Security.

They don't know what they're doing. They're going through a train-up process, even if they're well-meaning. And then maybe the president loses next time around. And then it's the Democratic Party Committee, the local Democratic Party committee, for anyone who wants it, gets that federal job. That's absurd. And if you think I'm painting too weird a picture, consider some of the facts that we'll talk about in some of the cases we're going to talk about later in this podcast.

podcast. I mean, I'm just gobsmacked about the librarian case. All right, David, put a pin in this, because we'll come back to when we talk about that D.C. Circuit case, but right after this break, I want to talk about this Jill Lepore piece from the Atlantic and whether originalism killed the Constitution when we get back. Going online with that ExpressVPN is like not having a case for your phone. Most of the time, you'll probably be fine, but all it takes is one drop, and you'll wish you'd spent those extra dollars on a case. Every time you connect to an unencrypted network in cafes, hotels, airports, your online data is not secure. Any hacker on the same network can gain access to

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great for. Secure your online data today by visiting expressvpn.com slash advisory. That's X, P-R-E-S-V-P-N dot com slash advisory to find out how you can get up to four extra months free. ExpressVPN.com slash advisory. Okay, David, Jill Lepore in the Atlantic, how originalism killed the Constitution. Let me read a few pieces from this. The abandonment of amendment has meant that constitutional history since the 1970s has turned on presidential nominations to the Supreme Court, placing pressure on that institution that it has proved nearly unable to bear. Presidential elections no longer involved campaigns to amend the Constitution. They involved campaigns to appoint justices. Nomination hearings have become spectacles.

I think you and I agree with every part of that. Okay, next step. originalists accused the Supreme Court of amending the law by creating new rights, such as the right to an abortion. Yep, so far so good. And insisted that both Article 5 amendment was the only legitimate method of constitutional change. Yes. And that originalism was the only legitimate method of constitutional interpretation. Yes. Practically, though, originalism took hold from the failure of conservatives to change the Constitution by Democratic means by means of amendment. Quote, the aim is now to accomplish in the courts what the administration failed to persuade Congress to do, namely adopt its position on abortion, apportionment,

affirmative action, school prayer, and the like. Whoa. First of all, David, can we just start with the very simple problem? So while Roe v. Wade and Casey were good law, how exactly was a Republican administration supposed to have Congress adopt its position on abortion, that was exactly what the court said couldn't happen, right? It's a constitutional right that Congress cannot place an undue burden on. So by definition, the whole point was that Congress couldn't reflect whatever the Democratic will was at that point, whatever the majority will was, even if the majority was pro-life for pro choice or anything else. Couldn't do it because it had been constitutionalized. That's the dumbest. That's just like wrong. Reading it charitably, I think what she's saying is one way to put it is,

well, you need to at least first go through Congress unless you're calling a convention of states to amend the constitution. My take on this is wait, my take on this is wait, wait, wait. I'm with you 100% Jill on, we need to amend it. It needs to be easier to amend the Constitution. We need to revive the constitutional amendment process. We do one million percent. The worst possible example of the need for that is Roe and Dobbs. Why? Because Roe wasn't a constitutional amendment establishing a right to abortion. It was a court precedent. It was not an amendment. And so by the argument that we should have an amendment to reverse a court precedent, no, no, no, no, no. Once Roe was established, All that was was a court precedent. In fact, one of the arguments going all the way back,

I mean, distinctly remember that this like throughout law school was that, hey, look, guys, if you think the right to an abortion is fundamental and should be a fundamental part of the American constitutional project, you should amend the Constitution to protect a right to abortion. All you have right now is a court precedent that you are fiercely defending every four years by trying to make sure that the president that is elected won't appoint the people would overturn road. That's very unstable. It's inherently unstable. And so if you want to enshrine the right to abortion, you need a constitutional amendment. It cannot be the case that we essentially say, well, let's look at what all the things the Warren court did or the parts of the burger court that we

like. And then you've got to have a constitutional amendment to reverse court precedent. And I, I think what you have seen happen is that with the death of the amendment process, you had two very powerful legal philosophies that emerged, you know, one of them, you know, this is imprecise, but I like the, I tend to think of, you know, some of the best expression, the best contra to originalism philosophy to me is purpose ofism. In other words, hey, you can't read the constitution like a statute. You're reading it much more like. these are declarations of values and principles that we're seeking to uphold. And the, but the answer can't be that purposeivism or whatever, your liberal judicial philosophy, establishes precedents that can only be overturned by a constitutional amendment. The same, originalism, if you establish a president, Dobbs could be overturned by a liberal democratic, a liberal and dominated majority. It's just a precedent. And I think that if the point of the article was competing judicial philosophies result in instability of constitutional

law that can only be resolved by constitutional amendments. I'm marching on that. We would march right along linked arms. One side gets to freeze the judicial conversation and then from that point forward, you're anti-democratic. If you change the judicial conversation, that's insane. Either we're for the amendment process or we're not. Originalism didn't freeze or it's not the one that undermine the amendment process, and we know that because I have quotes from LBJ. You know what, David? I'm going to read it. Here's President Johnson. So well before originalism, right? Originalism does not exist at this point. Quote, for us to amend the Constitution, we need two-thirds majority in Congress and then a vote of three-quarters of the states. Justice Douglas can do it in one afternoon.

That's what killed the amendment process. Originalism ain't got nothing to do with it. originalism is the reaction to the death of the amendment process. So let me ask you this, Sarah. And I mean this in both directions, by the way. How much of the originalism debate is all about abortion in Roe? You really have to have some interesting conversations about the origin of the originalism story because you almost have these different strains at the beginning. You have a bork strain, a scalia strain, and a me strain.

They're all going to then merge around 1984. in, I think Meese wins that. And I think it is fair to say that the strain that came out of that, that the strongest thread in that strain, at least, was the abortion strain. But I wouldn't say that all the threads that made that rope were abortion, if that makes sense. But I'm going to agree on that. And then, of course, it's ignored, except in academic circles, for a long time by the political left. Once the political left starts paying attention to it, absolutely it's about abortion because they believe that the litmus test that originalists are using to put judges on the court is the Roe v. Wade test.

Now, the problem with that is I can agree that it was a litmus test, but that doesn't necessarily mean it was because of abortion, qua abortion. Roe v. Wade also was a litmus test for originalists because it was so untethered to the original meaning of the Constitution. and so both can be true at once in a lot of ways that it is about abortion, but maybe not for all the reasons the left thought. I would put it like this. Roe was maybe one of the very few questions that originalism makes pretty easy. And so, and Roe is also one of the most important judicial decisions of the last 100 years. It is one of the most inflammatory from a public standpoint. So if originalism is a legal philosophy that is utterly at odds with Roe, although very not, it is not, as we've seen, and as we've talked about, if you listen to this podcast, it doesn't

make a lot of other things super crystal clear. It's not like a turnkey solution to legal complexity. Originalism is not at all, as Amy Coney Barrett's book makes clear, for example. But it is very simple when it comes to Roe. And so then it became a symbol of something that if you were supporting Roe, you were, had to be against originalism, if you were opposing Roe, or if you support abortion rights, you're against originalism. If you are opposing abortion rights, then originalism becomes the banner under which you walk. And so it was actually the conversation around the popular argument around originalism was almost entirely a proxy for the argument about Roe. And so, and then it gets so much more, and I feel like that becomes so much more clear when you now begin to see so many liberal scholars

and advocates pivoting their arguments to originalism. And here's Akeel Reid Amar over here, waving his hand saying, hey, there's always been room for liberal originalism. It exists. I'm here. I'm here. I write things.

And so you have, you're beginning to see, just because of the reality of the court, you're beginning to see a lot of liberal writers, thinkers, advocate, scholars making originalist arguments that are very compelling that lead to what you might think of more liberal outcomes. In the same way that when purposivism or its adjacent theories was dominant, conservatives could make some very compelling purposivism arguments, First Amendment free speech, for example, in that area. But I feel the more we fight about originalism and the more we see

how complicated it is and how it isn't a turnkey solution to legal complexity, the more I just feel like a lot of the popular argument is just rehashing Roe and Dobbs. okay i think we've solved that you know maybe on a future episode we got a question from a listener about different types of judicial philosophies let we should do a glossary on the next episode of all the different types of judicial philosophies and methodologies that are out there and try to give them some definition but when we get back we've got three circuit cases to get to dc circuit 11th circuit and fifth circuit where david i have a feeling you're gonna have feelings All right, David, given what we were just talking about, let's do this D.C. Circuit case first.

I'll give listeners some of the facts here. Pearl Mutter was appointed Register of Copyrights in October 2020 by the Librarian of Congress. In May, she released a report on AI and Copyright, where she suggested that some use of copyright material might be fair use, but a lot of it would violate copyright laws. The day after the report, the president fired her via email because he disagreed with the report's recommendations, and he attempted to appoint Deputy Attorney General Todd Blanche as acting librarian of Congress, who then appointed Paul Perkins as the new acting registrar. Okay, so very similar setup to our FTC case in a lot of ways. The question is, is the Library of Congress different?

Is it an executive agency two to one, judge in a judge? Pan and Childs said only the Librarian of Congress can remove the registrar, not the president, and the Library of Congress is not an executive agency that this case is different than Wilcox and Boyle, the other two removal cases that went up to the interim docket to the Supreme Court on the National Labor Relations Board and one of the other alphabet agencies that I'm blanking on at the moment. Because the registrar primarily, advises Congress and doesn't exercise substantial executive power. Judge Walker dissented. And I got to say, David, the dissent had some receipts here that I thought were pretty well done. Can I read a

couple pieces of this? Yeah, please. Here's just the first paragraph. The Register of Copyright exercises, quote, executive power footnote to a case. So I went and looked up that case because that's, I mean, if that's like the ball game, right? If that's correct. So I went and looked up that case, and here is the previous decision by the D.C. Circuit. Furthermore, we have recently recognized the important executive power exercised by the library, suggesting that whatever the library's historical association with Congress, it is squarely a component of the executive branch in its role as a copyright regulator. So specifically the Copyright Office is an executive power held another DC Circuit panel like not many years ago. But of course, that had a citation as well. So then I went to

that citation and it's like all over the place. Intercollegiate, who was the one of the parties in this third case I'm mentioning, notes that we have referred to the Library of Congress as a congressional agency and argues that it is not executive department that can satisfy the, quote, head of department definition. Despite that language, the Library of Congress is a freestanding entity that clearly meets the definition of an executive department. To be sure, it performs a range of different functions, including some, such as the Congressional Research Service that are exercised primarily for legislative purposes. But as we have mentioned, the librarian is appointed by the president with advice and consent of the Senate and is subject to unrestricted removal by the

president. Further, the powers in the library and the board to promulgate copyright regulations to apply the statute to affected parties and to set rates and terms case by case are one's associated in modern times with executive agencies rather than legislators in this role. The library is undoubtedly a component of the executive branch. That's like a mic drop to me or a peroration, as we learned from Professor Driver. Yeah, it feels like the kind of case that if they're going to reach this conclusion, they have to do it on Bonk, that a three-judge panel can't contradict two previous panels of the court. And so it strikes me that the action, that the actual, the majority opinion, the way I would, the way I would personally evaluate this is the majority

is mistaken because it can't do what it just did. A three judge panel isn't supposed to be able to reverse another three judge panel of the same circuit. It's almost like cases from SCOTUS involving trans issues, abortion, gun rights, etc. are like small ball, nobody cares about them compared to unitary executive theory. And if, and if I had on my bingo card, that what is going to be the number one culture war issue at SCOTUS in the year 2025, unitary executive theory was something that was in the air for a long time. But I had no idea that this would become sort of the issue around which the Supreme Court was going to be weighing in to the most consequential sort of culture war type issues in the United States that are all

centered around the power of the chief executive. This is wild, wild stuff, Sarah. And can I make a suggestion about the prior case law? I think a lot of the prior case law on this point is a little bit imprecise in part because when they're working on it, nobody knew that this was going to be the number one issue in the land years later. And so carefully defining in a, say, a DC circuit opinion, what is, can you have a legislative agency that exercise, that does anything that looks like executive power really should have been something super parsed out. But here we have it. We have a legislative agency that has executive, that has functions, functions that look very,

very executive. What do you do with that? That's a very, very, very good question to which we don't have a really comprehensive, satisfactory answer. In the previous cases from the D.C. circuit here, though, seem to pretty clearly indicate that this sort of hybrid setup should code as exact. executive, not legislative. I think that's obviously true.

And by the way, some of the way they got to this was to say that the president couldn't fire Perlmiter himself because only the librarian can fire the head of the copyright agency, the registrar. And he can fire the librarian, but he can't put in Todd Blanche's acting librarian because the librarian must be confirmed with the advice and consent of the Senate. and the vacancies reform hack that allows the president to put in actings doesn't apply to the librarian of Congress because it's not an executive agency. So the whole thing is like wrapped in itself on the executive agency front. And I'll note, David, the facts can really distort the

outcome of some of these cases. That previous case that I mentioned where the library, in particular the copyright office, was an executive agency, was about whether the Administrative Procedure Act applied to the Copyright Office. And there they were like, yeah, definitely. It's an executive agency. It definitely applies. But here, whether the Vacancies Reform Act applies, yeah, I think this one's a loser.

Yeah, but the one thing that struck me, there are many things that struck me about this, but one thing that struck me was this paragraph. The president subsequently invoked the Federal Vacancies Reform Act to purportedly appoint Deputy Attorney General Todd Blanche as acting librarian of Congress. Okay. So this is like Marco Rubio is half the cabinet.

You know, I guess Todd Blanche is, you know. And so guys, when we talk about, okay, the president, a sort of an out, what could an out of control executive do when it comes to populating the executive branch of government with basically just little more than partisan allies that this is. And when I say little more than partisan allies, I mean, I'm not naive. I absolutely know that there is a long history of using partisan allies and presidential appointments that are well beyond their zone of competence. Don't get me started on some of the people that, for example, President Clinton put in charge of negotiating the North Korean

nuclear deals or attempting to negotiate North Korean nuclear deals in his presidency. It's just wild stuff. So I know at the very top edges of the federal government that it is very common to put partisan, just pure partisans in positions of power. No question. But, you know, one of the things that you see when you look at this administration, I'd never seen one so purely dedicated, almost regardless of the function of the agency, to putting someone in charge where their chief qualification was going to be absolute unyielding loyalty. And if you think that would stop at the highest echelons of government in a world where the Supreme Court answers, no, into question two, I got a bridge to sell you. This would happen up and down the system. Up and down

the system. All right. Next up, we've put off the culture war for too long. The 11th Circuit sitting on Bonk decided this one, 7-6. Very close. Anna Lange, a transgender woman and sheriff's deputy sought coverage for male to female sex change surgery. The county's insurance plan excluded coverage for drugs for sex change surgery and services and supplies for a sex change and or the reversal of a sex change. The plan did cover other gender dysphoria treatments, hormones, counseling, endocrinologist visits. And the question was, is the exclusion of drugs for sex change surgery and services and supplies for sex change or the reversal facially discriminatory under Title VII.

Seven judges on the 11th Circuit said it did not violate Title VII, pointing to Scrimetti, and six judges said that it would. What's your take, David? I'm surprised it was that close, to be honest, after Scrimetti. And the reason why I would say that is I feel like Scrimetti really undercut the sex discrimination analysis when you're dealing with one of the key factors being a diagnosis. So if you look at Scrametti, the thing that took Scrametti out of the sex discrimination rubric was it was about age plus diagnosis, age plus diagnosis. And so therefore it wasn't a sex discriminated.

If you took an 18-year-old person and a 16-year-old person, the 18-year-old. The 18-year-old year old would be able to receive the treatment, the 16 year old would not, the only distinction, and they both had the same diagnosis, the distinction there was age. Here, essentially, what the majority is saying is the real distinguishing mark here is diagnosis. It's not sex discrimination because neither male nor female individuals can receive this insurance coverage. So there isn't a sex discrimination component here. There is a diagnosis for which the insurer is providing limited coverage for in the way that it provides limited coverage for other kinds of diagnoses. And then you have to get to, well, wait a minute, in this circumstance,

is this a diagnosis that is dealing with a protected class? And if the protected class isn't sex, then is it transgender status? But there's no indication from Scrametti. And in fact, there's a lot of indication from Schumetti to the contrary, that there isn't a protected class that transgender individuals are not a protected class under federal law. You're protected on the basis of sex, not transgender status. So if this isn't sex discrimination and then transgender status isn't a protected status under federal law, then you're left without a cause of action here. So I was surprised it was 7-6 based on the Scermetti case because there is not the sex discrimination component.

instead, what you're really talking about is a discrimination on the basis of transgender status. The interesting questions, Sarah, though, is one of the reasons why you went back at Scermetti and they were talking about, and was it Justice Barrett? Gosh, I think it was Justice Barrett. Correct me if I'm wrong. Who was talking about, okay, should transgender individuals be a protected class, a suspect class for equal protection analysis? And one of the factors was that there just wasn't a history of sort of dejura discrimination against transgender individuals in the same way you'd seen against, say, black Americans, et cetera.

It would be if you did have an awful lot of insurance policies that were preventing transgender adults from receiving treatment for gender or covering treatment for gender dysphoria, I do wonder if that would begin to adjust the discrimination analysis down the road about protected status. But as of now, without sex discrimination and without protected status, yeah, I don't see how the plaintiffs win here. What was your thought? So you've got Scrametti that was decided on 14th Amendment equal protection grounds. And you've got Bostock that was decided on Title VII statutory employment discrimination grounds. And I think they can feel intention. I had never really thought of them as being intentioned. And I think, David, you described it well, that sex discrimination based on stereotypes, for instance, of what you look like in the office, does to me seem fundamentally different than what Scrimetti was talking about, which was medical diagnosis and treatments

that will be covered. Now, this case is the first time we've seen the combo, right? So it's the Scrametti facts, if you will, but in the statutory context, and you have, of course, a concurrence by Judge Newsom saying that the two do not collapse. Your equal protection analysis, is not the same as your Title VII analysis and discusses why there is a great quote, by the way, that really has nothing to do with what we're talking about, but it's pretty fun. Another difference, noted by the most, in a good way,

notorious sex equality advocate of her generation, the Equal Protection Clause prohibits only intentional discrimination, while Title VII aims to eliminate all forms of employment discrimination, unintentional as well as deliberate, citing Ginsburg J. dissenting in Ritchie v. Stefano in 2009. Anyway, I just thought it was a fun use of notorious in a good way. So, yeah, I mean, I think this comes out the right way. The case that I am interested in that is yet to come, so this was Title VII, but in the factual context of Scrametti, I would like to see another case like Bostock come through that is not medical,

but not purely what you wear to work and see whether Bostock gets cabin to the most narrow set of facts, like whether you wear makeup to work or not, which is to me, I know I'm like the only conservative in the world who's like, yeah, that seems like sex stereotyping to me. I don't know what else we'd call that. Same reason, for instance, a woman couldn't be forced by her employer to wear makeup to work, which I also am against.

I'm curious to see what will happen when someone tries to extend Bostock, but not to these facts, right? Not to the Scrimetti facts, which I think are just clearly not within the Title VII permit. I do think that there is a building momentum to take punitive legal action against transgender individuals, which is different from sort of saying the legislature has determined it does more harm than good, that these medical interventions do more harm than good. Entirely proper legislative determination to sort of a sweeping sort of crackdown on transgender individuals, you're going to start to move the needle towards creating a protected class. If you start engaging in sort of this punitive actions against individuals on the basis

of transgender status, you're going to start to raise those kinds of 14th Amendment concerns. And so it's a very interesting, evolving arena of law, but under present case law, I think that the 11th Circuit majority is just correct here. If there isn't sex discrimination and there isn't, there isn't a protected class around transgender status versus sex, and even here there's not sex discrimination, then, you know, I don't see how you square a contrary result with Scermetti. All right, David, last circuit decision that I wanted to do. talk about just briefly. Remember, the Supreme Court remanded back to the Fifth Circuit that Alien Enemies Act case about the Venezuelan petitioners. Now, the Alien Enemies Act

was issued, this is a 1798 statute, the Alien Act that we're talking about. It is applicable only in the event of a declared war, no, an invasion, or a predatory incursion by a foreign nation or government. And then it allows the president to detain alien enemies without going through the Immigration Naturalization Act and the sort of congressional process that you would follow from that. And David, we talked extensively about the difference and why one would probably just be better off going through the administrative immigration process than going into Article III courts every time by using the Alien Enemy Act.

Okay. But it goes back down to the Fifth Circuit. the Fifth Circuit says, yeah, no. Our analysis leads us to grant a preliminary injunction to prevent removal because we find no invasion or predatory incursion, and that's the end of that. The reason I bring this up is because of the dissent by Judge Oldham. I'll just read. For 227 years, every president of every political party has enjoyed the same broad powers

to repel threats to our nation under the Alien Enemies Act. And from the dawn of our nation until President Trump took office a second time, courts have never second-guessed the president's invocation of that act, not once. The reason is simple. Determining whether the AEA's preconditions are satisfied, whether there is a declared war or any invasion or predatory incursion being perpetrated, attempted, or threatened, depends upon matters of political judgment for which judges have neither technical competence nor official responsibility.

Time and time again. Can I stop you right there? Yeah. That's so completely wrong. That is so completely wrong. I mean, come on, Judge. The reason it's not been controversial is because it was enacted three times in three declared wars. The War of 1812, World War I, World War II. That's the reason it's not been controversial. Let me read on. Time and time again, the Supreme Court has instructed that the president's declaration of an invasion,

insurrection, or incursion is conclusive, final, and completely beyond the second-guessing powers of unelected federal judges. That rule does not apply only to presidents. It also applies to governors. And one famous case from the 1930s, for example, the governor of Texas, declared an insurrection because some oil barons in East Texas were pumping too much crude, referencing a 1932 case that went to the Supreme Court. It seems patently absurd to call profit maximizing business practices and insurrection, but that's irrelevant. The Supreme court unanimously held, quote, by virtue of his duty to cause the laws to be faithfully executed, the executive is appropriately vested with the discretion to determine whether an exigency

requiring military aid for that purpose has arisen. His decision to that effect is conclusive. For President Trump, however, the rules are different. Today, the majority holds President Trump is just an ordinary civil litigant. His declaration of a predatory incursion is not conclusive. Far from it. Rather, President Trump must plead sufficient facts as if he were some run of the plaintiff in a breach of contract case to convince a federal judge that he is entitled to relief that contravenes over 200 years of legal precedent and it transmorgifies the least dangerous branch into robed crusaders who get to play act as multitudinous commanders in chief. First of all, David, just great SAT sentence there at the end. Second, so you disagree. Come on. I mean, a president

does something no president has ever done before. And then you say, why are you treating him the way no president has ever been treated? Why is he acting the way no president has ever acted? But doesn't it matter? Could Congress give that to the president? As you've said before, David, there's a difference between saying when there is a predatory incursion and when the president determines that there is a predatory incursion. Do you believe that courts can second guess that second statutory language. The reason why I think the Insurrection Act is so dangerous is for exactly that reason. The legislature has given and delegated that authority to the president. Interestingly, the War Powers Act, for example, seems to imply, although there are others who would disagree with me

on this, that a president sort of can get like, what, a couple months of war without a congressional declaration, as long as there's congressional notification. Or if you look at the travel ban case, In the travel ban case, this was when the president determines that a certain class of aliens, a certain alien or class of aliens presents, you know, I forget the exact language. But when Congress does know how to delegate, explicitly delegate that power to a president, absolutely knows how to do that. Now, I do think there's major questions doctrine issues there, but major questions doctrine has been, it's very dormant. It's very dormant. we need a lot more development. But here there isn't that language. That language just flat out doesn't exist. It refers to a, you know, it says whenever certain conditions exist, it doesn't say when

the president finds that certain conditions exist. And then since we're dealing with an area where there is specific reservation of power to Congress in the constitution, the power to declare war, this isn't just a matter of intruding on the executive here. There's a legislature who has the power to declare war. And so this isn't just treating with the executive. I felt like the majority opinion did an excellent job of going through that, look, if you're going to take any sort of what do words mean analysis here between invasion and predatory incursion, that what the words mean, it's not hard to discern. An invasion is what Russia is doing to Ukraine. A predatory incursion, And they went back to things like, you know, raids by Indian tribes, et cetera.

A predatory incursion, again, is something that sounds in a military context. So although I'm one million percent in favor of it, Pakistan would argue that we had a predatory incursion when we raided Islamabad and killed Osama bin Laden. That would be when a country's military or an armed force is using, you're using military force within a sovereign country in a way. way that's distinct from an invasion, which is taking and holding territory, versus an predatory incursion, which is often a, for one nation to damage another, one nation to inflict harm on another. And so the historical context of this couldn't be more crystal clear. The idea that this is a way in which you can escape the entire criminal justice system by presidential fiat, wow. So, yeah, if a president is going to do something that has no precedent in American history,

it's not a defense to judicial intervention to say there's been no similar intervention in history. That's just what I find so objectionable. Okay. So I actually think in the end, we agree violently. So here's the statutory language. Whenever there is a declared war between the United States and any foreign nation or government or any invasion or predatory incursion is perpetrated, attempted, or threatened

against the territory of the United States by any foreign nation or government and the president makes public proclamation of the event. That's when his powers are unlocked. The and the president makes a public proclamation to me separates out that first clause, as in that first clause is open to judicial fact-finding and review. So I agree with the majority.

I disagree with the dissent, but I think that the statute could be written differently and that there are statutory things, as you mentioned, David, that are committed to the president's discretion, understandably so. As in some, it might be wise or unwise, but it's what Congress intended it to be, that, like, this isn't up to courts to get to second guess the president. In this type of emergency, look, someone's got to make the decision. We pick that guy, not you courts. In this statute, however, it looks like it was a factual determination, and the president is a separate, as in the president must agree with that previous factual determination.

And the president makes public proclamation of the event is basically you have to have two keys on the nuclear code. The factual determination is made by someone, and the president agrees with that by making a proclamation. So yeah, all right, well, that's the fifth circuit for you. That one might be going back up or not. course, if the Supreme Court thinks that the Fifth Circuit majority got it right. Okay. Well, we ended in violent agreement. We solved who broke the Constitution. And I'm feeling good. You know, David, our next episode will come out after the court's long conference. And so we'll talk about the long conference a little bit. We'll talk about judicial methodologies, some of the cases for the

upcoming term because first Monday of October is right around the corner. O.T. 25. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up at the dispatch.com slash join. And if you use promo code AO, you'll get one month free and help me win the ongoing deeply scientific internal debate over which dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership at the dispatch.com slash premium. That'll get

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