Advisory Opinions - Dumb But Constitutional

Episode Date: January 16, 2024

Sarah and David discuss a cert grant relating to homelessness in San Francisco and Massachusetts’s Eighth Amendment. But first, Sarah announces her pending litigation against Fairfax County. The Agenda: —Robinson v. California —The different types of justice —A no-fly list dispute —The law of war: Houthis —How do we beat pirates? —Anti-straight discrimination —DeSantis v. Warren Show Notes: —Niz-Chavez v. Garland, Attorney General —Smith v. Arizona —Sheetz v. County of El Dorado —Briahna Joy Gray's "nonviolent" tweet —Ames v. Ohio Dep’t of Youth Servs Learn more about your ad choices. Visit megaphone.fm/adchoices

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Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome back to Advisory Opinions. I'm Sarah Isker. That's David French. And David, I don't know.

We're recording this on a holiday and we've got a lot to cover. So we're just going to like zoom around. Yes. Most importantly, though, we are going to cover some law of war stuff regarding the Houthis and Supreme Court things, grants, arguments, etc.

All right, let's go. Most importantly, the county put up a temporary sign on my property. The sign fell over because of very light winds into the road. They then put it back up, added some sandbags. Last night it fell over and decapitated my mailbox. I feel like the previous falling over is proof of their negligence and that we will be talking about my future litigation against Fairfax County for decades. I look forward to these conversations. I'm already predicting a rant about a denial of an administrative appeal in 2029,

the spending of enormous sums of money to vindicate your interests in a $50 mailbox. I like it. It's good. Yes. Because what I will not accept is that simply they reimburse me for the mailbox and not the effort and labor that will now go into fixing something

that wasn't my fault. Already, Sarah, you're setting yourself up for problems. You've got maximal goals. I'm so annoyed. So it's snowing here today and I don't have a mailbox. Also, that's federal property that they destroyed. Supremacy clause or something. Now, is that right? It's no, it's not federal property. Absolutely. If you opened my mailbox, you would be committing a federal crime because it's federal property, my federal mailbox. Interesting. Okay. But I buy a mailbox at Target. Home Depot, it's not federal property. It's transformed into federal property when I erect it for the purpose of receiving my federal males.

So in essence, OK, wait a minute. I understand under federal jurisdiction. But if anyone can't tell, I am making up this law as I go along. I was going to say. But I'm going to be an expert again about 10 years from now as this litigation continues. I like it. I like it. Okay. I want to start with a major cert grant that, you know what, we've gotten emails about this topic and we have yet to talk about it because frankly, it's complicated is the wrong term, but there's a whole lot of precedents that led up to this. And we knew the Supreme Court would grant cert

eventually. They have. This is the famous Grants Pass case for those who follow these types of things. The Ninth Circuit has been dealing with homelessness and homelessness-related cases as, you know, lots of places have city ordinances against camping on public property, sleeping on public property, etc. Some of those are civil. You get a ticket for doing so. Some of them are criminal. And the Ninth Circuit has held now repeatedly, but in various contexts, that those types of ordinances can violate the Eighth Amendment against cruel and unusual punishment. They've said that the Eighth Amendment is actually a substantive right, not just against the type

of punishment inflicted, but against the type of laws that can inflict that punishment. So in the same time that they granted the case out of Grants Pass, Oregon, there was also an interesting case decided coming out of San Francisco's ordinances with a

very spicy dissent from one Judge Patrick Boumete, who I had previously thought was the dissent king. I was corrected based on the data, but not based on my vibes, which is that Boumete is so powerful in his dissents that the Supreme Court granted cert in a similar case within hours of his dissent being issued. So, David, I thought I'd walk through just a little bit of the precedent and a little bit of the problem, because we're going to cover this so much when the oral argument comes around and when the decision comes out. We don't necessarily need to spend a ton of time on this. But basically, there's these Supreme Court precedents about making something illegal that is involuntary.

And this goes to a very basic principle about actus reus, mens rea, etc. about actus reus, mens rea, et cetera. So in this one case, Robinson v. California, 1962, the Supreme Court actually did hold that the Eighth Amendment prohibited criminalization of particular acts or conduct and not just particular forms of punishment, which again, I can imagine a current Supreme Court revisiting that decision,

but that already is on the books from 1962. That case though is interesting. So the police pull over this guy, Mr. Robinson, and he has track marks. Again, he disputes this, but for our purposes, at least. Right. There's track marks up and down his arm. He admits that he uses heroin, that he's addicted to heroin. Again, all disputed, but for our purposes, he's a heroin addict. California had a law making it a misdemeanor to be addicted to the use of narcotics. So he was arrested and convicted for being a narcotics addict, even though there was no evidence that he had used narcotics in the state of California or had possessed narcotics or

anything else, nor had he done anything. The track marks alone. Yeah. Track marks alone is for our purposes. Okay. The facts of this case and the Supreme Court nod dog that one. And I think that that makes a lot of intuitive sense. Like you don't even need like the Eighth Amendment doesn't really almost need to come into it compared to like, you can't make something illegal that isn't an act. Like being an addict is a state, not an act. Right. But nevertheless, this case is going to serve as the basis for striking down these public nuisance laws, anti-camping, yada yada. So here's some of the problem you're going to get into.

There's a whole bunch of homeless people in these states, right? We're going to, there's Oregon, there's Idaho, San Francisco. There's been one out of Arizona, all of which are in the Ninth Circuit, as you may remember. Like when you look at a map of the world, the Ninth Circuit takes up a sizable portion of the world. It's really weird that it's still one circuit. But the folks, for instance, on the are you kidding me side of this, say, look, if you simply tell cities that they can't move people from public sidewalks, from public parks, why would they then invest in shelter space? And so what you're going to end up doing is setting up this perverse incentive that actually is far worse for people who do not have anywhere to go because there will be fewer places to go. Now, what the grants pass majority

at least argues, and this was denied from going on bonk with a big dissental from Judge O'Scanlan. Judge O'Scanlan, as you may remember, he's gone senior, so he can't actually vote on en bancs, but he can still write dissentals from en bancs and express his thoughts on en bancs. And the reason that we did 2017 on for our dissental data was because if you do anything beyond that, it's going to be Judge O'Scanlan, but like so far above everyone else because he's had, you know, 30 years plus of dissentaling. And he's just had such a track record of getting those granted at the Supreme Court. So he writes the dissental in that case, in the Grants Pass case that has now been granted, upping his numbers more. But their point is, you've got, this is a class action lawsuit, and you've got more people in the class than there are shelter beds. And by the way, they won't count any religious shelter beds. They have to be secular shelter beds. Wait, wait, wait, wait. So they will not count a religious bed even though it is an available bed? Correct.

Okay. Nevertheless, in Grants Pass in particular, there's a bit of a problem because maybe there's no beds in Grants Pass. So they do like cold weather sheltering. They had very few beds available last year. They had no beds available the year before. So there's like more and less extreme facts, depending on whether you're looking at San Francisco or this little town called Grants Pass, Oregon. Okay. There's a lot more to these cases. Like I said, we'll dive into the oral argument when it comes in great detail. But David, I wanted your initial reaction because I think, again, public sense just tells you how this is going to turn out.

And it may even turn out unanimously that obviously states can have time, place and manner restrictions on sleeping in a public park. The San Francisco case, by the way, the one that wasn't granted but is now going to sort of be lingering out there, also said that you can't have a law against having some blankets with you and other things that would help you sleep in the public park. I mean, it's it's a mess. It is a mess. And, you know, this reminds me of some of the other jurisprudential issues we've had with the court reach when you have some precedent reaching back into that Warren Court era, where there was a time period in which, yeah, I think there are

some things that the court in that era did that were very good, that were very sound. And then there were some things where it seems as if the court basically said, you know, I really think that's unjust. I don't like that. And so therefore, we're going to strike it down. And this, you know, when I was reading the dissent here, and the dissent is really emphasizing, look, the Eighth Amendment is dealing with modes of punishment. That's what it's dealing with. It's quite persuasive. And that's what it's dealing with. It's quite persuasive. Not to say that what you're really reaching at here, it seems to me, Sarah, is you have a situation in which the justices believed it was unjust, you know, the criminalizing addiction. They're looking for what's the constitutional hook that I can utilize to dispense with this injustice. And that seems to be some of what's happened in Supreme Court jurisprudence in years past.

Here is an injustice that seems really bad. It doesn't pass the smell test, but I don't see the easy constitutional hook. No matter. Here we go, let's go. And that seems like a little bit of what's happening. I mean, not to make light of this, but it's a little bit what happens with Roe. Yes, true. It seems unjust that states can ban this procedure.

Therefore, we will sort of find these emanations in penumbras. Yes, yeah, exactly. I had Roe in my mind as we were talking about that, that this is something that just feels bad, man, feels wrong. So therefore, wait, where are we locating this right? And then of course it gets, it's a fragile right. Because if you're locating it in sort of the judgment of the judge of the justices, it's inherently a fragile right. And I remember having this argument with some of my more left-leaning friends in law school

where I said, you've created something that's extremely fragile by not moving through the democratic process and turned out to be just as fragile as we thought. It was just a matter of switching a few more justices and that and Roe is gone. But yeah, it's a very similar sort of sense to it, which is, I don't like this, doesn't feel right, don't have the clear constitutional hook, YOLO, let's do it anyway. So first of all, for

those of you who are not Justice Scalia aficionados, he was fond of saying it would be a lot easier if he just had a stamp that said dumb but constitutional. And lo and behold, someone did send him that stamp. And so on his desk, he had a stamp that said dumb but constitutional. That being said, David, imagine a world in which city limits expand so much across the country. We urbanize so much that city limits all touch each other okay okay so everything is now under some city's limit and all the cities say no homeless people in our city there's there's gonna be no camping um what are you supposed to do if you can't afford a home and it's criminal to not have a home yeah yeah That's that is obviously, obviously an issue.

Now, on the flip side, it's worth acknowledging that many of these people acknowledge that they don't want to go to a homeless shelter. Right. They're they're horrible places that can be violent and disturbing and all sorts of other things. So that's why you end up with this weird rule coming from the Ninth Circuit that says. All of the laws are enjoined unless you have the same number of beds as the same number of homeless people. By the way, the majority disputes that characterization. I'll just asterisk that. But because if you go individual by individual, those individuals are often offered a place to sleep that night and they turn it down or have turned it down in the past. But David, I don't know what you do about the underlying problem unless we have a law that says we have space for you somewhere to sleep. Then it can't just be illegal to breathe because breathing people need a place to sleep.

Right. The question I have is, and look, as you lay that out, I mean, there's obvious justice issues here. How can you say to a community of people, you can't be here unless you have a place to sleep? By the way, we have not provided sufficient places to sleep, although I do wonder once you add the religious beds, are there sufficient places to sleep? Fair enough. And maybe the argument is we can put you in jail and jail is now a place to sleep, but then you lose your liberty over that trade. Also worth noting in the Grant's past case, it was a class action in the end, but the three plaintiffs, basically one was sleeping in his car outside of city limits. The other was sleeping in her car, sometimes in city limits,

sometimes outside city limits. And BLM, the Bureau of Land Management, said that you can stay on federal property for a few days at a time, whatever that means. So that's why I mentioned these cases get really complicated in the facts of the different ordinances and how they interact with each other, whether it's a blanket ban on being homeless while in the city versus a ability of police officers to move you from specific parks at specific times of day, whether they can ban having blankets in the park. But as they know, now we're in the blanket intent business. Is that a blanket because you're cold while reading with your cup of dollar latte Starbucks? That blanket's fine. Oh, that's a blanket for sleeping? Nope, that blanket's illegal.

You know, this is a little different from the dumb but unconstitutional stamp, that as you sort of lay out this hypothetical... Dumb but constitutional. Oh, sorry. Dumb but constitutional. Sorry. This is a little different from dumb but constitutional. It strikes me as what you're talking about here in your hypo is unjust but constitutional, which is slightly different from dumb but constitutional. Dumb has a sort of sense of harmlessness about it, whereas unjust has a sense of real harm about it. And that's a harder determination to make, unjust, but constitutional. But if you're looking at the Bill of Rights here,

if you're looking at the relevant amendments here, what is the amendment? And I do wonder, what is the substantive right you're attaching? I wonder, for example, is unreasonable search and seizure. Is this an unreasonable seizure? I don't know, Sarah. We are veering really into an arena where it does seem as if, look, if you're going to criminalize this state of being without a sufficient way to remedy it, that seems unjust. Okay. But what's the constitutional provision that says unjust laws shall be struck down? No, it's in narrower areas than that. And so it's really hard for me, though, to see the Eighth Amendment coming into play here. Well, speaking of the Eighth Amendment, the Massachusetts Supreme Court had an interesting decision that's worth just a couple seconds.

It was not decided under the Eighth Amendment exactly, but Massachusetts has its own Eighth Amendment that they found might be more protective than the federal Eighth Amendment. But regardless, according to the Massachusetts Supreme Court, which I believe has all political appointees from Republican Governor Charlie Baker right now, they held that it is unconstitutional under Massachusetts state constitution to sentence someone who is 18, 19 or 20 years old to life without the possibility of parole. Came out of a case where basically one guy tells another guy, hey, go shoot those two guys, those other guys, because they're not from here. For no particular reason, though, they weren't doing anything. They're just in a park.

And so shoots one to death, the other one severely injured. And the argument is that it's cruel and unusual because of the plasticity of young male brains. So it had already been the case that it was cruel and unusual to sentence minors to life without the possibility of parole. But this will now be held for early minors. I mean, sorry, early adults, late minors, whatever you want to call it, 18, 19, and 20. There were three dissents in this case. And the dissents point out the obvious, which is, if we're going to follow the science, quote unquote, on this, why is it 18, 19, and 20, when the science is actually, first of all, that it's a spectrum, but definitely the spectrum continues until 24, 25, 26, probably,

et cetera, with no individualized assessment at all. Second, this could have some really weird, at all. Second, this could have some really weird unintended consequences where we basically say that the plasticity is now how we determine punishment. So older people now are less likely to get out of prison because they're less likely to change when in fact the data, as far as recidivism goes, shows that an older person who is let out of prison, of course, is less likely to recidivate than a younger person, which of course makes perfect sense. We already know about plasticity. And if you're committing murder at 19, basically the more serious your crime, the earlier, the more likely your recidivism is as well. Anyway, David, I thought it was a very

interesting state holding. Of course, states can read their state constitutions however they please. But, you know, it's Eighth Amendment-ish. It is-ish. It is-ish. And again, this is one of those questions where it feels like the judges feel really bad about this scenario and are moving to sort of expand doctrine to fit into this arena that they feel really bad about. And I do think, you know, we do have a question, which is how much of what kind of punishment can be just punitive? Like its entire goal is we're just punitive now. You have a low recidivism rate. Maybe you're 70 and 75 and in poor health and there's just absolutely zero

prospect of you robbing a bank ever again, but we're going to keep you in here. Well, the murdering your spouse example, right? You're 80 and you kill your spouse because you just can't take it anymore. Surely that's not a get out of jail free just because you're 80 and you killed her. Right. And there's very, very, very low probability that you're going to kill anybody else. No.

How much can be purely punitive without it being cruel and unusual? And a prison term, so long as that prison term is conducted, is under humane conditions. In other words, the actual conditions in the prison are not cruel and unusual. conducted is under humane conditions. In other words, the actual conditions in the prison are not cruel and unusual. A life prison term for murder, that would be a pretty bold stroke

to say that that, if we're going to move anywhere beyond the Massachusetts Constitution here, pretty bold stroke to say that would be cruel and unusual. That would be an extremely unusual and strained reading of anything approaching original public meaning if you're going to try that federally. And as the dissent points out, when it comes to adults, that really is the job of the legislature. The legislature is able to read these neuroscience studies

as well as judges are. So why is this a judicial question versus a legislative question and pointing out sort of the separation of powers there problem and legislating from the bench and all of that stuff. But David, I am curious, just your personal opinion. You know, there's the deterrence value to punishment, the preventative value to punishment, protecting society, and the punishment part of punishment, as you said, what do you think the right balance is? Is it just all of the above? Is one more important than the other? How do you weigh those? Yeah, that's a really good question. I think if you're talking about sort of maintaining a peaceful and orderly society, the deterrence value of punishment is, deterrence value is extremely critical,

but it is not what you think, or it is not what a lot of people think, because the reality is, and I was looking into this when I was writing some pieces about, okay, number one, you have a lot of momentum for criminal justice reform on left and right. And then all of a sudden, in 2020 in particular, we had this huge spike in violent crime. You had this huge spike in murders. And so, wait a minute, what do we do when a criminal justice reform effort meets a crime wave? It's a really interesting question. But, you know, fortunately, we have lots of decades of experience with different kinds of reform efforts and crime rates, etc. And one of the things that I found interesting and compelling

is that from a deterrence standpoint, it is not the severity of punishment that is really key in the deterrence framework, because criminals don't actually know the penalties. So, you know, if the legislature passes a law that says that the imprisonment for a felony shoplifting is now increased by five years, that is not like a news bulletin. It's just then spread out onto the streets and everyone's like, well, five more years. No, it is actually deterrence is much more related to certainty of punishment, not severity. It is certainty. How sure am I that I'm gonna be caught?

Which is one of the reasons why police presence in communities is much more correlated with the decrease in crime rate than sort of just the size of the police department in abstract is, more correlated with the decrease in crime rate than sort of just the size of the police department in abstract. It's, are you there? You're much less likely to rob a convenience store if a cop is in the convenience store, for example. And so I would say sort of, if you're talking about what is for the good of society at large, the deterrence factor really, really looms large. But we also cannot forsake individual justice.

What is it that is individual justice in the circumstance? And I'm sorry, when you're talking about premeditated murder, premeditated murder, it's hard for me to see a punishment, a lesser punishment than life as really acknowledging the gravity of the harm. Because part of the justice here is, this is the state saying, we also acknowledge the sheer gravity of the harm that you inflicted. And I've always found it interesting when we look at some of these European countries that have these maximum penalties. You'll have somebody

who's killed multiple people and, you know, they're eligible in what, 20 years, 25 years? No way has the criminal justice system acknowledged the gravity of the harm. On the other hand, aren't you a pretty different person than you were at 25? Yes, but that that gets into the pure punishment aspect of it, which is, does the severity of the punishment is an aspect of justice, that the severity of the punishment matches the gravity of the harm, at least in some way, or is connected to the gravity of the harm in some concrete way. And I would say, yeah, especially when human beings are hurt, as opposed to when property is taken. At Real Canadian Superstore,

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visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. The Supreme Court is in the midst of oral arguments last week and this week. I thought I'd run through the list because we will be talking about the cases upcoming. So I'll start from the end, the ones that haven't happened yet, because that makes perfect sense. So obviously we're going to have to talk about Loperbright and Relentless. These are the Chevron cases. So we'll bring you that oral argument after it happens and all the fun around that one. But there were some lesser big headline cases from this sitting that I think are pretty fun. So I thought I'd run through just a few of them, David,

and we can talk about them later, certainly when the opinions come out. So we have a follow-on from that Niz Chavez case where the immigration system basically is sending out a notice. Hey, we know you're here illegally and we're going to try to remove you. We'll tell you when and where later.

And then later they send you the when and where in a second notice. So in Niz Chavez, two terms ago, they held that that won't fly for stop time purposes. For the amount of time you've been in the United States, you do have to actually have the hearing. It can't just be a random letter that's like, aha, we found you. Justice Gorsuch wrote that opinion. So fast forward to this term, argued last week is okay,

but how about not for stop time purposes? How about just, you got the first letter that said, hi, we'll tell you later when your hearing is. You got the second letter that said when the hearing is, but you didn't show up to the hearing. And so you were given a removal order in absentia. Does that count? Like it was still two separate documents. Are you allowed to send them piecemeal like that? Or do you have to send them together? The reason I find that one interesting, obviously, we're in the middle of immigration being a huge political topic. But there's also this big consequentialist part. If they find that you can't do those piecemeal, there's a whole lot of people

that are gonna get to have another hearing. It will, according to the government, flood the system. And you have some of the justices saying, not my problem. And you can guess which ones. And so it's this really Y-axis case in a lot of ways because they basically already held that you can't do it piecemeal, that the statute talks about one hearing notice. So now when the rubber hits the road, what will they really do?

Okay, another fun one. Guy's placed on the no-fly list, isn't told why, then sues, and they take him off the no-fly list and they tell him, you will not be put back on the no-fly list isn't told why, then sues, and they take him off the no-fly list and they tell him, you will not be put back on the no-fly list based on any of the information we have now. Is it moot? Most circuits have held that it is, but the Ninth Circuit said no because,

and here's like the hypo, you gave money to a mosque that then supported terrorism. Okay, so they put you on the no-fly list. And then you sued about it. So they took you off, they figured out you weren't really a problem, you know, based on that or whatever. And now, two years later, you give money to that same mosque again, because you have no idea why you got put on the no-fly list in the first place. Is that now new information so they can put you back on the no-fly list? And now you still don't know why you got put on. You still can't sort of conform your conduct to not being put on the no-fly list. So that one is kind of

fun. I'll look forward to that. Yeah. Okay. Sixth Amendment case, the person who runs the test to determine that you did in fact have heroin leaves the police department. So now another guy testifies at your trial and is like, well, I'm looking at this report and this report says that she found it was heroin. And in addition, I can tell you X, Y, and Z also. You as the defendant were not able to cross-examine the person who ran the test. And you have a right to confront the witnesses against you. But she left the department. And that guy was testifying additionally.

So is that violating the Sixth Amendment, where someone's using the report of someone who you can't cross-examine at your trial? We'll find out more on next time. Okay, but this one was a real favorite of mine. Guy has some land and wants to put a prefab house on it. So he goes to the county, I think,

and is like, okay, I'm putting my prefab house, you know, so it's a relatively inexpensive house to put on this property. And they say, great, you owe us $23,000 for traffic and road improvements. You know, something having nothing to do with his house or mitigating the environmental effects of him putting a prefab house on his land. Okay.

The problem is that the state of California, and it's always California, man, it really is. The state of California passed a statute that's generally applicable that says that you can assess this fee, user fee, if you will. Did they just do like an end run around the takings clause because they passed a statute? That's literally the question, which at argument, I will tell you this already happened. Basically everyone agreed like, well, no, that's not how that works. You can't just statute yourself around Supreme Court precedent. But is it a tax? Is it a fee? And maybe it is more related than you think. If you're putting up a prefab building, but that prefab building is going to be, you know, a hopping awesome coffee shop,

then maybe you do need traffic mitigation as people put more buildings on the land nearby, et cetera, et cetera. We tax people all the time. That's not an unconstitutional taking. Is it really related to the property? Like you're not taking property or the use of the property, but then the assessment is based on the property. And you know, David, I just love my takings clause cases. Yeah, I'm interested in this one as well.

This is a fascinating case. I'm very in this one as well. This is an fascinating case. I'm very, very interested. And by the way, it's just amazing how much California comes up and Florida comes up. Like, it's just amazing. We may or may not get to the Florida 11th Circuit case today, but it's absolutely amazing. And I'm very interested in the outcome of this case. I mean, California for a long time seemed to be inventing new ways to prevent residential development. And now is reversing course in many ways because it's become just a very absurd, a justice level at absurd, to an absurd extent, how expensive housing is

in big sections of California. And for a very, very progressive state, that's a very, very big problem. So it's going to be interesting to see over the long term what happens to regulation in California. In the short term, this case is fascinating. Also, CEG homeless conversation. Yes, exactly. Okay, David, we are going to try to get to two other circuit court decisions. But first, the United States engaged in military action against the Houthis in Yemen. action against the Houthis in Yemen. Interestingly, this has somehow fallen into our culture wars as being if you are against Israel, you're now for Hamas and the Houthis. I'm pretty

confused about this. So the Houthis have basically been doing their best Somali pirate impersonation and launching rockets, et cetera, at shipping and particularly us shipping in the area, you know, all of those super elitists who work on commercial shipping vessels, moving goods for all of you who are then protesting them. Yeah. They have not though killed anyone with their rockets.

It just been delaying shipping. And now the United States is moving against them. Now, obviously, this is like an OG why the United States was formed in our Constitution. We were against piracy, Barbary pirates and the whatnots. But I thought maybe you could talk to us a little about how the law works here, because Biden just went ahead and did that. And he just did it seems a little cranky. Yeah. So first, Sarah, let me just say that the last several last few months, really, since 10-7 have been a reminder that, you know, we've spent a lot of time on the crazy right. There is a crazy left. And it has really come out of the woodwork after the attacks on Israel on October 7th.

My favorite example of just the wildness of some of the political discourse was, was it Breonna Joy Gray, who talked about the Houthis as nonviolent because they hadn't killed anybody yet with their missile attacks. Really never seen a missile attack characterized as nonviolent before. But there's been this enormous wave of sympathy for the Houthis. Not well, enormous is probably a bit of an exaggeration. There has been a wave of sympathy in the far, far left for the Houthis. And a number of people in an unrelated way have raised this Biden attack and said, wait a minute, what's going on here? And I thought it might be worth just a couple minutes of time to sort of break down what Biden did, what is the law, and what is the dispute about the law? What is the law and what is the dispute about the law?

So what Biden did is he notified Congress. He wrote a letter to the Speaker of the House and President Pro Tem of the Senate, and he did it consistent with what's called the War Powers Resolution to notify Congress that he was initiating military action and the purpose of the military action. Now, this created a response where some members of Congress were saying, wait a minute, you can't do this. You cannot attack and unilaterally attack an enemy entity unless we're under immediate attack ourselves.

Obviously, you can respond in self-defense, but you cannot launch large-scale military strikes without the approval of Congress. And Congress has not voted for this, and therefore you do not have the authority. There's a school of thought that says, wait a minute. Yeah, certainly Congress can declare war, but inherent within the powers of the commander in chief of the military is an ability not just to react in the immediate threat environment, in other words, response to immediate incoming fire, but really ability much beyond that to engage in activity short of full scale war that advance the interests of the United States, protect the free navigation

of shipping, protect American service members. And then there's another whole camp that says, right, Congress has this authority to declare war. The president has commander-in-chief authority. And how we have harmonized that is the War Powers Act. That's how we have harmonized those two things. Now, what has happened as a general matter is since the passage of the War Powers Act back in 1973 passed over a Nixon veto, because presidents have rarely agreed with the constitutional sort of framework of the War Powers Act Act is that presidents have tended to comply with the War Powers Act, even as their official position might often be that they don't agree that it is constitutional. I'm not sure if the Biden administration takes a position that the

War Powers Act is unconstitutional, but what they did was comply with the War Powers Act, which says that there should be notification of Congress in the event of military action. And then Congress has essentially 60 days under the War Powers Act to then decide whether or not the action can continue. And the action, the military action is supposed to cease after 60 days if there is no congressional authorization. And so what Biden did was he launched it, notified, launched the action, notified Congress under the War Powers Act. And Sarah, this is one of those areas where my thinking on this has

evolved pretty substantially, mainly because my early thinking on it was fundamentally tribal and not at all thought through. So when you grow up a kid of the Reagan and Bush eras, and you are a Reagan Republican and Reagan administration and Bush administration take the position that the War Powers Act is unconstitutional, well, then you just kind of agree with it. But I gotta say, I think I'm in the position where I think the War Powers Act is in fact a valid congressional way of harmonizing. It's a valid method of harmonizing the two responsibilities,

the commander-in-chief responsibility and the declare war responsibility. And so I tend to, as more time goes on, to believe that that framework is actually a reasonable accommodation of the two powers and a reasonable framework and a constitutionally appropriate framework. So that's my monologuing about the Houthis and the War Powers Act. Yeah, but how do we actually beat pirates? Well, this is a really interesting other issue. So the other issue is, did he even have to do the War Powers stuff in the first place because of a little law called 33 U.S.C. Section 381, which says, 33 USC Section 381, which says, the president is authorized to employ so many of the public armed vessels as in his judgment the service may require, with suitable instructions to the commanders thereof, in protecting the merchant vessels of the United States and their crews

from piratical aggressions and depredations. I did not know the word piratical until right now, and I do plan to use it at least five times before the end of the day. Love it. Love it. That seems spot on to me. The answer here could be simply, well, the Houthis, are they pirates, maybe? Are they really, are they also pirates in addition to just terrorists? And is there sort of a pre-existing presidential authorization that you can just deal with pirates, man? Except are they pirates?

Because they're not actually trying to make money off of the stuff on the boat. Right. They do have a merchant ship, I believe, that's in their possession that they have captured. And they have in their port. At least they did for a while. I don't know if they still have it. But yeah, this is not like the Somali pirates. This is not a neat, easy, clean. We're taking this for the booty.

No, it seems more like we're trying to sink you for the politics. OK, well, weird bedfellows that somehow the as you said, the crazy left has now adopted the worst actors in the world. world as somehow the like, you know, oppressed class that should be vindicated and yada yada, with just no acknowledgement of what the Houthis have been up to for quite some time, actually. It's really stunning to see. I mean, you've seen some of these far, far left voices really joining with the most crankish anti-Semitic right wing voices. it's really bizarre. And it's kind of broken out everywhere. I posted something about, you know, that I was glad that Biden administration was taking action against the Houthis. And the number of Houthi sympathetic responses I received, I was like, where is this coming from? This is also from the same generation

complaining that everything's too expensive, that they can't afford a house, that they can't afford to have children, that they're stuck living with their parents and all this stuff. Like, do you know what'll make a bunch of stuff more expensive? Stopping international shipping. Yeah.

And the Houthis guys are not your social, they're not team social justice. Indeed. There's evidence that they've engaged in modern slavery for crying out loud. So, yeah, anyway. All right, well, we have those two circuit decisions. The one I just thought was worth a quick mention. This was coming out of the Sixth Circuit. And the facts, I don't know, the facts are worth a hot second to go through. The straight woman is hired as the administrator

of the Prison Rape Elimination Act in the state of Ohio. Her supervisor is gay. However, there's two other people who also oversee her who are both straight. She is not given a promotion and is then demoted. The person she is replaced with is gay and the person who got the promotion

is also gay. So she sues under Bostock, basically, that Title VII protects sexual orientation and says that she's being discriminated against because she's straight. Little flipperoo there. Well, interestingly, in the Sixth Circuit, if you're a member of the majority,

you actually have an additional hurdle to overcome from just regular discrimination. So this is a concurrence by Judge Kethledge. You may remember the name. He's been on Supreme Court shortlists of the past. And in his concurrence, he walks through, you know, the language of Title VII that says, Title VII bars discrimination against, quote,

any individual because of such individual's race, color, religion, sex, or national origin. Thus, to state the obvious, the statute bars discrimination against any individual on the ground specified therein. Yet our court and some others have construed the same provision to impose different burdens on different plaintiffs based on their membership in different demographic groups, specifically to establish a prima facie case when, as in most cases, the plaintiff relies upon indirect evidence of discrimination, members of, quote, majority groups must make a showing that other plaintiffs need not make. Namely, they must show background circumstances to support the

suspicion that the defendant is that unusual employer who discriminates against the majority. And this is the really fun part. He ends it this way. Respectfully, our court and others have lost their bearings in adopting this rule. If the statute had prescribed this rule expressly, we would subject it to strict scrutiny, at least in cases where plaintiffs are treated less favorably because of their race. And nearly every circuit has addressed this issue one way or another, perhaps the Supreme Court will do so as well. I had no idea that the Sixth Circuit had that rule. That seems insane to me. I spent the vast majority of my law practice with my butt sitting in the Sixth Circuit, and I didn't know that was the rule. Wow. The line of the dissent that is talking about if this was this rule was passed statutorily, it would be subject to strict scrutiny.

Yeah. And the legislature can't do that. But the judges can. The judges can. What? Are you kidding me? You know, it really is interesting, Sarah, how much judicially made rules have undermined civil rights statutes. how much judicially made rules have undermined civil rights statutes from undercutting qualified, you know, qualified immunity, which undercuts the Klan acts going all the way back to post-civil war to the McDonnell Douglas standard that we talked about earlier to this. It's fascinating. And I think, again, just to point out the obvious, what makes this interesting to me is not the fact that I think she should win her case based on that evidence. But rather,

if you had reversed everyone involved, she's gay, her supervisor is straight, she's replaced by someone straight, and the person who got the promotion is someone straight, she would have made it to trial. Now again,

probably would have lost at trial because you needed to show that she was fired for some, or demoted for some other reason. I'm sure they have some reason, but who knows? We'll never find out because she's straight. Her case got dismissed. Yeah. So if you're gay, you would have got a trial. If you're straight, it gets dismissed on the exact same evidence. Yeah, that is that is contrary to the plain language of the statute. This sort of idea that you're going to have a two tiered system based on your race or your sexual orientation. have been created to conserve judicial resources. I mean, that's what qualified immunity is all about, right?

They don't want to have a zillion trials where someone sues a state official because they don't like what happened. Same thing with Title VII. They don't want a zillion trials where it's really obvious the person wasn't discriminated against. So they've created these judicial rules that are atextual and deeply unfair.

And we should consider them problematic regardless of who they affect or whether you're in the majority or the minority, et cetera. Yeah, it's a remarkable rule. I'm so glad you highlighted that, Sarah, because yeah, I was shocked. Well, that will tell you that I did not do

very much employment discrimination work on behalf of, like, for example, white plaintiffs when I was in the Sixth Circuit. In fact, had zero cases like that. But wow, what a rule. And just a shout out, by the way, to the federal clerks who I know are listening. You know, you're sending us corrections, which I appreciate hugely. But you should also be sending us little nuggets of wisdom,

like this concurrence that we might otherwise miss. Now, again, we don't want anything before it's published. We don't want any inside information on what's going on in your chambers. Wait, what? But after a cool decision has been published that we might miss or it's concurrence, especially those are sometimes hard

to get through all of them. Yeah, flog them for us. We like that stuff. Sarah might not like inside information. I just, for all the federal judges listening, I don't want them to then have a chamber's rule to never talk to Sarah and David. Gotta make everyone happy, David.

Sorry. All right, speaking of Judge Newsom, this case that we're about to mention has already become a little bit famous in online circles because I'm going to read you what a tweet said about this case in which one of Trump's

brightest young FedSoc things immolates his future SCOTUS hopes under any Republican president. David, do you want to introduce this one? Yeah, this case, that's pretty funny. Okay, so this is the case involving Ron DeSantis and a prosecutor named Andrew Warren. And people may remember this, that when DeSantis was sort of building his case as the Trump who actually gets things done in Florida and he was sort of on a law passing firing spree, he fired a state attorney for Florida's 13th Judicial District.

judicial district. And this was an interesting case from the get-go because the question was, did he fire this attorney, which Florida law does give him some disciplinary control, even over people in this, even though this is more of a local official than a state official, is that the question was, was he fired for, in other words, not doing his job, sort of the policies that he had enacted, or was he fired for his speech? In other words, this was a progressive sort of, quote, reform prosecutor who had signed a number of public statements about the law and about prosecution. Some of these statements really didn't have much of anything to do at all with Florida law, didn't have anything to do with his actions as prosecutor. And so it really became a question and the case really started to boil down to, was he fired for his speech? In other words, his political point of view that he had articulated, or was he fired for his job, for failing at his job? And Sarah, initially,

I would say when I first saw the reports of this, I mean, I have some skepticism around some of these DeSantis moves because he has been so punitive against free speech in the past, but I thought this case might be a little bit different because it is in fact that, as we have talked about at length on this podcast, that when you're a public official, not all of your speech is protected speech. If your speech is in your as part of your official in your official position, then under Garcetti v. Sabalis, it's not protected. So not all speech by public officials is protected. Certainly, if you have a supervisory role, the actions of a public official as opposed to the speech, the actions as part of their official and undertaken their official capacity, again,

that's something that a supervisor, even a supervisor is a public official, of course, even a supervisor is a public official, of course, can take into account in hiring and firing decisions. So how much of this was Ron DeSantis speech police versus Ron DeSantis supervisor of a government official who's not doing his job, at least in DeSantis' view? That was, to me, always going to be really the key issue. And what Newsom does in this, in his opinion, is he really sort of takes apart the idea that this prosecutor was fired for his actions versus his speech. And one of the telling moments, Sarah, is that Newsom relates is in the majority opinion is there's a state official named, with the last name of Keefe, who is looking into Warren, looking into Warren's statements. And it says, there's this paragraph. During his inquiry, Keefe found online the four advocacy statements. These were advocacy, in other words,

these were statements that Warren had signed on hot button culture war issues. It says, Keefe found online the four advocacy statements that FJP had published and Warren had signed regarding transgender care and abortion, as well as election security and capital punishment. Keefe never looked to see whether Warren's office had adopted these statements as policy. It had not. He never determined whether Warren's office had encountered a case about transgender care or about abortion. It had not. And so the essence of this case was, is this speech or is this conduct? And what Judge Newsom found was what you had was speech and it was protected speech. that's the case, Sarah.

I actually agree that I went into this thinking that probably the statement did fall on the other side of the line, but here's a line that's very Newsom-esque. Remember he said, he tries to write like he talks and you may not like it, but so this line stood out. There are admittedly a few aspects of the statement that give off official policy vibes. Is that the first use of vibes in a circuit opinion?

And what's coming next? Sus? That explanation is totally sus. This defendant's lacking riz. Now, I know what sus is. What is riz? Charisma, David. Oh, charisma. It was word of the year, I think what such is. What is Riz? Charisma, David. Oh, charisma.

It was word of the year, I think, last year. Riz was word of the year? Yeah, David. Man. And I try to keep up on the slang. Yeah. So look, I mean, what is going to be the case is that you have this document that is definitely a political document, right?

But so is everything coming out of these offices. It's all about winning reelection or else they wouldn't put out the document publicly and tout it publicly. So some pieces of it are political rhetoric and some pieces of it sound as he had, had official policy vibes. You know, he signed it using his official title.

The statement purports to represent his views as quote, an elected prosecutor. By definition, only a prosecutor acting in his or her official capacity can decide whether to charge a crime. And the letter makes representation about the use of our offices. But Newsom continues, on balance, it seems clear to me that no part of the abortion related statement, including the, quote, commitment, constituted official policy. That is true for both procedural and substantive reasons. Then he goes on to explain those. Um, yeah. So, I mean, this is interesting because it would seem then that we don't take the statement as a whole, but we actually break it down into like the part that was about the thing.

Yeah. So that's one interesting question there's also like how you weigh like if the statement's a little bit of both how much needs to be one versus the other um but regardless of whether i might have come out differently on this you gotta love this ending the First Amendment is an inconvenient thing. It protects expression that some find wrongheaded or offensive or even ridiculous. But for the same reason that the government can't muzzle so-called conservative speech under the guise of preventing on-campus harassment, the state can't exercise its coercive power to censor so-called woke speech, with which it disagrees. What's good for mine is whether I like it or not, good for

thine. Yep. That's good writing right there. 100% agree with that. Yes. Impeccable reasoning on that top line legal philosophical statement. You know, the real question, the devil's in the details of this case. And this was one that I was skeptical. I was actually quite skeptical that the prosecutor would, that Warren would win this case. But as Newsom really broke to make judgments about these cases based on news reports. Because even the most comprehensive news report wasn't anywhere as close to as detailed as the statement of facts. The statement of facts really pulled out the key, you know, the key factors in this case. And you just didn't get any of that nuance, any of it in the news reporting. And I'm not saying that the news reporting was negligent or that the news reporting was incompetent.

It's just these cases are a lot more complicated than the top line assessment often is. And so, yeah, there was a lot of detail in there that I think shifted my own thinking of the case that I had not seen before I'd seen this statement of facts. Okay, now we have just a meta thing to talk about with this case. Yes. This was a Newsom concurrence. He had clearly already joined the majority.

He did not need to write this. So back to the tweet about a conservative star self-immolating. Either one might think that the First Amendment is going to be cool again someday and having your own writing about your consistent views on the First Amendment will be helpful. One possibility. Two, you don't think you're ever going on the Supreme Court. So YOLO, say what you want. Yeah. Or three, is there a three I'm missing? you don't think you're ever going on the Supreme Court. So YOLO, say what you want. Yeah. Or three, is there a three I'm missing? Yeah, I found that tweet to be a little grandiose.

Okay, three, the tweet's wrong. But the point is that Judge Newsom did not have to write this. And it is true that generally speaking, a Republican president would not like this opinion. President Haley, I think, would dig this opinion. No, I do think that you actually are raising a really important point, Sarah. I think that once we get past Trump, we don't really know what the Republican Party is and that the DeSantis argument that it was a more authoritarian anti-free speech party is not doing that well

right now because he is fading as sort of the heir apparent pretty dramatically. And a lot of, you know, a person a lot of people thought had no chance is now, you know, number two in many of the polls still has no chance versus Trump. But if you're talking about what can we learn about sort of who's waiting in the wings based on the way the Republican voters are going, it's up in the air. It is absolutely up in the air right now as to what the Republican Party is. And I can guarantee you the little tin pot right wing authoritarians who dominate the site formerly known as Twitter are not having the best time right now in sort of casting

themselves as the heir apparent as to what conservatism is. But there are they are very good at grandiose tweets and in large and big declarations. Well, I'll say this. I think this is the reason I particularly like this concurrence more than most, because it is against, you know, the home team or however you want to phrase it. But it goes to this piece of, it's now going to be my go-to example of a piece of career advice that I like to give people when they ask me, you know, should I do X or Y? Because if I do X, you know, I want to do Y. But, you know, if I do X and I play this out five different, you know, chess moves down

the way, this other thing could happen. A, humans are really bad at playing out chess moves that are far away, that are in a world of chaos and unknowns. That's first of all. But more importantly, the people who live their lives that way, I have tended to find, are actually pretty unhappy because they're constantly trying to live in this, what if this happens? What if this happens? And it's constant risk assessment. Instead of just doing what you think is right in the moment, let the chips fall where they may. And you're right. Maybe it'll keep you off the Supreme Court.

Or maybe it'll be the thing that gets you on the Supreme Court in 10 years. You don't know. So just decide it the way you want to decide it, that you think it should be decided. Make the career move that is actually right for you, for your family. You know, I always say, anytime I've had two jobs to pick between, and let's be honest, it actually hasn't happened that much. I always ask myself when my alarm goes

off at six in the morning, which one am I more likely to bounce out of bed and which one am I hitting snooze? Yeah, because I hate hitting snooze. And this is like a version of that. Like, yeah, if you're constantly thinking, you know, five steps ahead and not to pick on him, this isn't meant to be like personal, but I use John Kerry as sort of the other side.

This is someone who wanted to be president his whole life. All these decisions he made were to try to create the resume of the type of person who can be president and all the decisions. And in the end, all he achieves

is being a famous senator, Democratic nominee, secretary of state. And yet you get this sense that he's deeply unhappy that he didn't achieve this thing that he had set out to achieve instead of in the moment being like, holy crap, I'm secretary of state. Yeah. Yeah. I mean, a capstone by any reasonable measure, absolute capstone achievement by any reasonable measure. But yeah, Sarah, you're right. I mean, you know, you don't want to be a person who's constantly tilting at windmills, but, and this is something I have seen, timidity is habit forming. And, and guess what, the stakes only get higher the older you get. So if you're not saying what you actually believe, because you can't, you can't feel like

you can risk your grad school recommendations. Or if you don't actually say what you really think, because it might limit this or that opportunity. The older you get, it is not the case that everything feels more secure. Typically, it is often the case that everything feels often more fragile and the stakes feel a lot higher. And if you're timid when the stakes are low, that's a high degree of,

that's a good indicator that you might be timid when the stakes are high. And again, I'm not saying you just charge at every windmill, but I've seen it a million times that timidity is habit forming and that very calculating lifestyle that says, well, when I feel, I'm not going to say exactly how secure, but just more secure than I really am. That's what I'm going to actually say what I believe. Oh, man, you might find yourself 78 years old still waiting for that moment when you feel free to say what you really believe. So point of personal privilege before we end our little podcast here, David, my cousin

was just elected editor in chief of the University of Houston Law Review. Oh, David. My cousin was just elected editor-in-chief of the University of Houston Law Review. Oh, congratulations. How cool is that? Yeah. So now she gets to spend a year of total misery. No question. But I just thought that was very cool. So shout out to Sophia. Congratulations. And I'll look forward to talking to you again next in 2025. You know, February 2025, after you take a little bit of a nap after your job. In the meantime, take care of your husband, who's my cousin-cousin, and your puppy.

They're going to need your full attention. Which they will not get. All right. And with that, we'll come back to you next time with those Chevron oral arguments. Chevron, does it live or die? Is it the gladiator moment? Thumbs up, thumbs down, the thumb is right in between, but it's leaning down. What's going to happen? Next time on Advisory Opinions.