Advisory Opinions - Squirrely Religious Expression

Episode Date: June 20, 2024

Awaiting a week full of emergency pods, Sarah and David discuss latest round of SCOTUS opinions and take a look at a religious expression case. The Agenda: —Your foreign earnings are taxable —Malicious prosecutions, do they fall under the charge-specific rule or any-crime rule? —The Fifth Circuit was wrong —Defining expert testimony —Louisiana's Ten Commandment's law Show Notes: —Georgia Tech sued over speech code —History of the Lemon test Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And yep, we got four Supreme Court decisions on Thursday morning. We are expecting more on Friday morning where we will do another podcast. Look, are these for the most exciting for Supreme Court decisions ever to come down? No, they're not. But are there interesting tidbits that will make a podcast? One way or another, yes, they are. So, David, I thought we'd start

with the 16th Amendment case. This is the Moore case. And, you know, like Julie Andrews taught us, let's start at the very beginning. The 16th Amendment says, the Congress shall have power to lay and collect taxes on incomes from whatever source derived without apportionment among the several states and without regard to any census or enumeration. And I'll tell you what I love about this Moore decision, which was written by Justice Kavanaugh with a Jackson concurrence, a Barrett concurrence joined by Alito, and a dissent by Justice Thomas joined by Justice Gorsuch. So it was 7-2 of a sort. It's not so much the outcome of this case, but actually just learning a lot about the history of the 16th Amendment.

I feel smarter for having read all this. So I thought I'd give listeners just a little tidbit of some of the fun 16th Amendment history. So of course, we get this great history from Justice Thomas and his dissent. And it's going to start with the Declaration of Independence, right? Because taxes are a big part of the reason why we declared independence, taxation without representation, right? So we have this declaration of independence, we win that war. Then we have the Articles of Confederation where basically the federal government has zero actual ability to raise taxes from people. They can like ask the states nicely for money. Turns out that wasn't working too well. The states were like, new phone

who dis? We'll get to it later. The checks in the mail. So that's a big part of why they call the Constitutional Convention is because the federal government does not have the money to run. And so a big part of the debate at the Constitutional Convention was, okay, so how are we going to balance this power between the states and the federal government when it comes to raising revenue for the federal government? Obviously, we need to fix the problem with the Articles of the Confederation. But if the federal government, obviously we need to fix the problem with the Articles of Confederation. But if the federal government can tax people directly, they're basically taking that power from the states.

And so where you end up in the US Constitution, to make a very long story, way too short, direct taxes shall be apportioned among the several states, is what Article 1, Section 2 says. That's of course gonna raise a lot of questions for you. Like, what are direct taxes? Not a self-defining term necessarily. Nope.

So we're gonna fight about that for a long time until you get to 1895, where you're gonna get this really fun case called Pollock v. Farmer's Loan and Trust. It's gonna be about whether the federal government can impose an income tax. It's the first income tax in US history during peacetime. There'd been a Civil War one,

but this is basically raised on the top 2% of the wealthiest Americans. They're not amused by that. And so in 1895, the Supreme Court says, no, the court held that a tax on income from property equated to a tax on the property itself. And thus was a direct tax that had to be apportioned among the states. This of course had huge political consequences in the United States. It was like the major issue. The once and future Chief Justice Taft,

who was president, then Chief Justice, is like, wait, we need to fix this. So in 1913, the 16th Amendment came along, the one that I just read to you. Okay, so some fun facts along the way here. One, that 1895 case where the Supreme Court blew up the federal government's ability to impose an income tax, guess who dissented in that case?

John Marshall Harlan. The great dissenter. The great dissenter himself. So I don't know, that's just fun. Once again, he, well, sort of looks prescient, certainly in that we would need an income tax. But I just want to take a little side jaunt here, David, because the Supreme Court makes a decision that people don't like based on the law as they read it.

Yep. And the result is, wait for it, they pass an amendment. Yeah. Like, the political process actually works. And you have this line in the Jackson concurrence that I feel like we might be reminding her of later? I don't know. She says Pollock, that's the case, teaches us that this court's role in such disputes

should be limited. Quote, the remedy for such abuses is to be found at the ballot box. And in a wholesome public opinion, which the representatives of the people will not long, if at all, disregard and not in the disregard by the judiciary of powers that have been committed to another, citing Harlan's dissent. So like, fix it through the political process. And yes, in this case, I meant ratifying a new constitutional amendment.

It's happened more than two dozen times. Yes. Yes. Yeah. And I guess my big thing on this, we talked about originalism as it would be applied to Brown v. Board of Education, for instance, and one of the big complaints or drawbacks of originalism, which I take very seriously, obviously.

But one of the big criticisms of originalism is that true, strict originalism couldn't have justified Loving v. Virginia, the case that struck down a state ban on interracial marriage. Now, make your originalist case or not, but the point being, that still misses a key element of this. Even if originalism would not allow you to strike down

a ban on interracial marriage, do you know what would? The political process, an amendment, all sorts of other ways in which we change our laws that aren't just at the Supreme Court. And so I was reading someone recently who was like, so if you really stood by originalism, we would have bans on interracial marriage today in the United States. Well, no, I don't agree with that actually at all. I think we would have gotten there through different means. Now, I think we can argue like, would

it have taken too long? Does the Constitution need to protect that sort of thing? Did the 14th Amendment actually do that? All of that. And I think there are originalist grounds to read the 14th Amendment as banning bans on interracial marriage. But the 16th Amendment actually do that, all of that. And I think there are originalist grounds to read the 14th Amendment as banning bans on interracial marriage. But the 16th Amendment is like this living embodiment that when you don't like a Supreme Court decision, you don't have to fight then over fixing the Supreme Court, adding justices, impeaching justices,

fighting over the confirmation hearing of the next person. We actually have a lot of other ways to do that. Absolutely. This case is really interesting. Well, did I just say really interesting? Mildly interesting for a couple of reasons. One, I'm not sure that we talked about the basic facts of the case yet,

which are to say basic and facts in this case is a little bit of a misnomer because it's kind of complicated. And it's essentially about taxing the petitioners invested in a company, an American controlled foreign company called Kyson Craft. The company generated a great deal of income. It did not distribute that income to the shareholders. So this is unrealized income.

And at the end of the 2017 tax year, the new taxing rules resulted in a tax bill for the petitioners, which was a pro rata share of the, based on the pro rata share of accumulated income that had not been distributed yet. So they had been realized by the company. It had been realized by the company. It had not been distributed to the Moors, the petitioners yet. And so they paid the tax and sued. And this is an interesting case that the tax was upheld, the court upheld the tax. And what was interesting to me about this is this is another case in which a conservative coded legal effort is turned

back by the conservative court. But it's a bit more complicated than that. Because one of the first things that I got in the mail, in my email after the decision was something from philanthropy community saying, we don't love this because it's paving the way to things like wealth taxes and things like that that might impact philanthropy. So it's another one of these cases where a conservative coded litigation effort is turned back by the Supreme Court, but this one's a little bit more complicated. And then once again, what do we have? The least powerful justice and dissent.

Clarence Thomas. Yeah. So I wanted to spend a couple more moments on the difference between direct taxes and indirect taxes historically. And I'll read here from Justice Kavanaugh's opinion for the court. As a practical matter, Congress has rarely enacted direct taxes because the constitution requires

that direct taxes be a portion among the states. To be a portion, direct taxes must be imposed in proportion to the census of enumeration. In other words, direct taxes must be a portion among the states. To be a portion, direct taxes must be imposed in proportion to the census of enumeration. In other words, direct taxes must be a portion among the states according to each state's population. So if Congress imposed a property tax on every American homeowner, the citizens

of a state with 5% of the population would pay 5% of the total property tax, even if the value of their combined property added up to only 3% of the total value of homes in the United States. To pay 5%, the tax rate on the citizens of their combined property added up to only 3% of the total value of homes in the United States. To pay 5%, the tax rate on the citizens of that state would need to be substantially higher than the tax rate in the neighboring state with the same population but more valuable homes. To state the obvious, that kind of complicated and politically unpalatable result has made direct taxes difficult to enact. Indeed, the parties have cited no apportioned

direct taxes in the current Internal Revenue Code, and it appears that Congress has not enacted an apportionment tax since the Civil War. By contrast, indirect taxes are the familiar federal taxes imposed on activities or transactions. That category of taxes includes duties, imposed and excised taxes, as well as income taxes. Under the Constitution, indirect taxes must be uniform throughout

the United States. A tax is uniform when it operates with the same force and effect in every place where the subject of it is found. So first of all, I just feel like a lot of Americans don't know why only states can impose property taxes and the federal government imposes an income tax. This was part of that original balance in the Constitutional Convention that they were so worried about, is that the feds would basically come in and bankrupt the states. People would be getting double tax that they wouldn't want that and you'd end up with this republic and no states, not a confederated republic of states. So I just really like that explanation that, yep, so you have to have this income tax.

So when the Supreme Court said you couldn't have an income tax, you had to have the 16th Amendment basically. And so the question here is, is that tax that you described, David, on the realized gains of the corporation that are unrealized by the shareholders, is that a tax on income, or is it a tax on property? And what Justice Kavanaugh is going to say is the fight really isn't over whether the tax is realized because, of course, it does tax realized income, namely income realized by the corporation. The MRT attributes the income of the corporation to the shareholders and then taxes the shareholders, including the Moors, on their share of the undistributed income. But the reason you're going to end up with so many

concurrences and dissents is this tax is weird. And you could imagine a version of this tax that would be really unfair to people. And it's a foreign corporation, not an American held corporation. And what does it mean to realize income as Justice Barrett sort of uses the example of, you know, Ford sells you an F-150? Did you just realize some of Ford's corporate profits and can you be taxed on that? Like, so there's so many questions that this continues to leave open for Justice Barrett and Alito. They leave open the possibility that in fact, the MRT still is unconstitutional, but that these guys waived their best argument.

So that would add up to then four votes on the unconstitutionality if you add in the dissenters Thomas and Gorsuch. There's just a whole lot of mess here. But David, we basically said that they were not going to invalidate this, you know, an income tax, for instance. The 16th Amendment was gonna be safe and sound and Congress's power to tax is so large that if there was any way to get to yes, they were gonna get to yes. Yeah, no, we said that after the oral argument

and nothing about the decision has, nothing about this decision changes the assessment we made at oral argument. So let's go to two different six three cases that we have next. The first one is Chiaverini. This is about section 1983 and malicious prosecutions. So this is that jeweler that we talked about after oral argument. He's got a ring that he's selling at his pawn shop for $45. And these people walk in and they're like, hey, that's our ring and it was stolen. And he's like, ooh, I don't know about that. And then the police send him a letter that says, don't give anyone the ring. And then the police come in and say, give us the ring. He's like, I'm not doing anything to anyone. Like, I

don't know what's going on. And by the way, I don't have a license to operate this place. So they then bring charges against this guy. Those charges eventually get dropped. He brings a 1983 claim for malicious prosecution. Now reminder, 1983 allows an individual the right to sue state government officials, anyone acting under color of state law, for civil rights violations. So we're going to have a couple of questions here. One, they brought multiple charges, some of which they had probable cause for, and one of which money laundering, he argues that they did not have probable cause for. So for instance, he claims, first, they had no reason to think that

he knew the ring was stolen. Indeed, he said their claim that he had admitted as much was an out and out lie. And second, that they could not show, as in his view Ohio law required, that the ring was worth more than $1,000. Its value was far less, more in line with the $45 purchase price. So, he concluded that his suit satisfied the without probable cause element of a Fourth Amendment malicious prosecution claim. So the question is if officials bring multiple charges and only one of those lacks probable cause, do the valid charges insulate the official from a Fourth Amendment malicious prosecution claim relating to the invalid charge? And David, we predicted that the answer to that would

be no. Right. That if one of them is malicious, it doesn't matter that you brought two good ones. Yes. And this was the Sixth Circuit holding. Sixth Circuit said, so long as probable cause supports at least one charge against him, like his receipt of stolen property violation, then his malicious prosecution claim based on the money laundering charge also fails. Or said another way, a single valid charge in a proceeding would insulate officers from

a Fourth Amendment malicious prosecution claim relating to any other charges, no matter how baseless. They were never going to uphold that. And 6-3. Nodogged, that one. Yeah. And the 6-3. Anybody want to guess what the 6-3 is?

Kagan, Robert, Sotomayor, Kavanaugh, Barrett, Jackson. And then the dissenters are Thomas, Alito, Gorsuch. Almost feels like you're 3-3-3. Oh, look at that 3-3-3 court. Now, what was sort of interesting is the dissent is not making the argument that you think. They're not saying that like, yeah, yeah, one totally baseless claim can be insulated

as long as they bring one with some probable cause. What they're arguing is back to 1983, that it has to be a state officer acting under color of state law who's committed a civil rights violation. But where in the Constitution do you see a right against malicious prosecution? Because there's this long line of cases, basically, that recognizes a malicious prosecution claim in the Fourth Amendment,

but the Fourth Amendment is about search and seizure. So, huh? And malicious prosecution claims, you don't have to be arrested, your person doesn't have to be seized. So the dissent is actually just arguing that there is no 1983 lawsuit for malicious prosecution, at least not one found in the Fourth Amendment, and that perhaps you could bring a Fourteenth Amendment due process claim that like process was violated.

But of course, then you would have to sort of meet that. You'd have to prove that in fact the process was violated, but of course then you would have to sort of meet that. You'd have to prove that in fact the process was violated. Which bringing a case without probable cause would seem to be encompassed by it. That would seem to encompass a, that would be a process problem, a rather severe process problem I'd say. So it was sort of a weird 6-3. Yeah. Not all that 6-3-ish. And as you said, the 6-3 was along those other lines. All right. Next 6-3, this is the Diaz case. Federal rule of evidence 704B prohibits an expert witness from offering an opinion about whether the defendant did or did not have the mental state needed to convict her of a crime.

So this woman crosses the border and the border patrol officer asks her to roll down the back driver's side window. And she says, Oh, it's like a manual crank. So I can't reach it. He's like, no problem. I'll do it for you. And he opens the door and tries to turn the window thing and meets resistance and starts hearing kind of a noise in the door. No one will be shocked to hear there were a lot of drugs being held in that door. She claims that she had no idea that there were drugs

in her car, that she was an unwitting mule. Now, there's lots of reasons to believe that she was lying through her teeth. She claimed that it was her boyfriend's car, but also that she didn't have her boyfriend's phone number. There were two cell phones in her car, one of which was hers. The other one, she said, I'd rather not say, and that she didn't have access to that cell phone.

There was just lots of shady stuff going on. Anyway, the government decides to call Special Agent Andrew Flood, who's from Homeland Security and expert witness. He was going to testify about the common practice of Mexican drug trafficking organizations. Specifically, he planned to explain that drug traffickers generally do not entrust large quantities of drugs to people who are unaware they are transporting large quantities of drugs. The majority held that that did not violate the federal rule of evidence, that saying what people, what a group of people

generally do is not offering an opinion about whether the defendant did or did not have the appropriate mental state. This was an interesting grouping, by the way, not the 33363 and not the ideological 63. In dissent, you're going to be Gorsuch, Kagan, and Sotomayor, which means in the majority, you've got the chief, Thomas, Alito, Jackson, Barrett, and Kavanaugh. Okay, so the dissent makes an interesting point here. I'll just read from Gorsuch's paragraph. There's no rule 704B problem the court holds,

as long as the government's expert limits himself to testifying that most people like the defendant have the mental state required to secure a conviction. The upshot, the government comes away with a powerful new tool in its pocket. Prosecutors can now put an expert on the stand, someone who apparently has the convenient ability to read minds, and let him hold forth on what most people like the defendant think when they commit

a legally prescribed act. Then the government need do no more than urge the jury to find that the defendant is like most people and convict. What authority exists for allowing that kind of charade in federal criminal trials is anybody's guess, but certainly it cannot be found in Rule 704. I'm with Gorsuch on this, this most people characteristic. Now, when you say most, I agree with the bottom line holding of the majority that says you can't say most people and apply it to the defendant specifically. But I'm also with Gorsuch on the more general principle that that general principle that he's articulating, I think is exactly correct.

A most people kind of a most people form of expert testimony, Sarah. Um, we're trying a defendant, a defendant. I know, but you see why this testimony is well within this person's expertise. He's actually not testifying about most drug mules, sort of. He's testifying about the way drug organizations operate and saying that, again, I'm quoting here about what he planned to testify on, drug traffickers generally do not entrust large quantities of drugs to people who are unaware they are transporting them. So the point is that drug traffickers don't want to use unwitting mules.

So her argument that she's an unwitting mule would be really unlikely because the people who move drugs across the border don't like using unwitting mules. And he is an expert in that, which is a little different than like what I feel like the dissent was defining it as, which is you're giving your expert opinion on the mens rea of a group of similarly situated defendants, just not this one defendant. Well, no, not really. You're explaining how large criminal organizations work and that this defendant's defense doesn't make a lot of sense

because it's not really part of how the businesses operate. Yeah. No, I can see that. I think that there are ways to introduce that line of questioning into, for example, cross-examine it. Well, she may not testify, but into the presentation of testimony about the practices of the specific organization. But the problem that I have is, again, you're trying somebody based on their specific state of mind and when you're creating an evidentiary situation that says in general, in general, this is the case,

it's almost like it's flipping the burden of proof. So it's sort of saying, okay, well, we've established that in general, it is the case that the drug, the cartels operate like this. Now you have to show us that you specifically were not part of this general rule. Yeah. Not so sure about that in the context

of just burden of proof. But yeah, I tend to find myself agreeing with Gorsuch on these cases. But again, the actual holding of the case regarding that specific testimony about her, I think is correct. Also though, interesting lineup, as we talked about that sort of ideological lens that empirical Scotus, Adam Feldman over at empirical Scotus looked at and that Gorsuch was the justice

most likely to cross over to have opinions, whether dissents, concurrences, majorities, with his ideological counterparts. Obviously, this holds true here. It's Gorsuch, concurrences, majorities, with his ideological counterparts. Obviously, this holds true here. It's Gorsuch, Kagan, and Sotomayor. More interestingly, at least, is that Jackson did not join that dissent. Yeah. Very interesting. Very interesting. Former defense attorney, Jackson.

Yeah, and look, Jackson did write her own concurrence as to why she was joining with the majority, and basically, she said that she thinks it's a really important tool for the defense as well to be able to introduce expert testimony about how groups operate. And so she's, I think, very much speaking as a former defense attorney and thinking like, ooh, good for the goose and the gander here. And maybe this tends to help the defense more than the prosecution.

So an interesting concurrence from Justice Jackson. All right. the gander here and maybe this tends to help the defense more than the prosecution. So, an interesting concurrence from Justice Jackson. All right. Last case, David, is the Nevis case. We talked about this one as well. It's about the city councilwoman who circulates a petition to remove the mayor. When that petition is then found in her binder, she is later arrested with removing a government document, spends the night in jail. She sues, also under section 1983, claiming retaliatory arrest that her civil rights were violated when they arrested her.

But again, right, they have probable cause. So the question here is whether probable cause defeats a retaliation claim. Remember, our last one was whether probable cause on one count defeats malicious prosecution on a totally different count. So look, this one ended up being a per curiam opinion, 8-1. So we don't know who authored it and this whole thing raises very interesting questions. So the Fifth Circuit held that there is an exception to that probable cause. Generally speaking, if they have probable cause, you don't get to bring a retaliation

claim. But there's an exception. If you can find that there were other people similarly situated to you who weren't arrested and who didn't have your First Amendment speech, for instance, the Fifth Circuit held that you need pretty specific evidence, that she didn't have evidence of anyone else who had done what she had done who wasn't arrested. So here, the a justice majority is going to say, no, no, it's enough to show that of all of these other people arrested on this offense, nobody had done what she had done. We can make an inference based on that,

that they were not arresting other people for this. Justice Alito has a concurrence that says, this is not the case you think it is, though, and walks through the facts from a very different light. Justice Kavanaugh has a concurrence in which he says she's not even arguing over the facts. She's arguing over her mental state. She's saying that there's not just that there's nobody else who's been arrested for removing a government document. There's plenty of people who've been arrested for that. She's saying there's no one else who's been arrested for doing it accidentally, but that's just the

mental state required. But also whatever, and I don't care enough to actually dissent in this case, fine. You also have a Jackson concurrence, and then finally you have a Thomas dissent. Once you have probable cause, we're done here. They had probable cause, game over. Again, you're seeing Justice Thomas in dissent quite a bit. I expect that you're going to see the same numbers as last time that the justice least likely to be in the majority this term is once again, Justice Thomas. But David, I thought this case was worth taking a moment because oftentimes, you and I say that we're taking the facts as the complaint alleges them because that's how you apply the law in a bunch of these cases in a light most favorable to the

defendant or, you know, taking the facts as alleged in the complaint, which is exactly what you have to do in this case. But as Justice Alito talks about at length in his concurrence, what if you don't look at just her version of the facts? And in fact, there was surveillance video that showed that basically they were questioning her petition, whether she had gotten signatures under false pretenses, lied to people about what the petition was about,

bullied people into signing it on behalf of other people, for instance, and that when they started questioning her about this, she waits until the mayor leaves, takes the petition out of his pile, puts it in her binder. And then again, on surveillance footage, when the mayor then says, hey, where's the petition? She's like, oh, I don't know. He's like, is it in your binder? She goes, oh, no, definitely not.

And he's like, I want to see. Open your binder. So she opens it, starts flipping through right before she's going to get to the petition, says, see, it's not in here, and shuts the binder. And then he says, I can see my black paper clip holding it together. I want to see those papers. And only then does she open it and say, oh, I thought this was my extra copy, which is weird because you remember originally she said she didn't have the copy at all. And so it undermines her, I just did this accidentally problem.

And Alita's like, look, I get it, that's all irrelevant, but I definitely wanted to include these facts because otherwise this looks like a much different case than perhaps it is, which gets to perhaps Justice Kavanaugh's point that like, this is not the case you think it is. Her just saying that no one else had been arrested for accidentally removing a document is irrelevant. And maybe that's why in the end, this ended up being a per curiam opinion, that it was going to be a

very different opinion based on the oral argument. But after they start reading the facts, it was just a question of whether to dig this case as in dismiss as improvidently granted, or do this per curiam, which means, not only do we not know who wrote it, that's not the important part.

It's that it really doesn't hold presidential value for the court moving forward. Well, it struck me that this was, I'm looking at all of it, and I thought that Alito factual summary did us a real service, because in the absence of it, you feel like, where did this come from? Like, it just feels like the most purely malicious act

you can imagine, as opposed to, they just went too far in responding to somebody who was behaving in a way. I mean, they're obviously angry at her. No one looks great here. No one looks great here. And what ends up happening is that I think that when you're looking at this case in total is essentially the court was saying, yeah, we just really don't think she should be prosecuted for this. That there's really, we don't want to put, we don't want the Fifth Circuit rule to stand.

She shouldn't have been prosecuted for this and we don't want the narrowness of the Fifth Circuit rule to stand. But we're not going to go too far out on a limb for this person. I really read the Purcurium as very much of an attack on the Fifth Circuit opinion, much more than it was a defense of the petitioner here, if that makes sense. Yeah, a very, very narrow reversal of the Fifth Circuit that just said you have to find basically an exact comparator. They're like, look, no, you don't. But also, this case is a hot mess. They give the jaywalking example. We did not suggest that a vocal critic of the police charged

with jaywalking had to produce evidence that police officers knowingly refused to arrest other specific jaywalkers. And we certainly did not suggest that this jaywalker had to find others who had committed the offense under the same conditions as those in his case. For example, on a street with the same amount of traffic, traveling at the same speed with a certain distance from a crosswalk at the same time of day. So they're basically just saying like, look, it's a yes, it's a narrow exception, but it's not as

narrow as the Fifth Circuit's making it. And we're far less sympathetic to this petitioner than we were at the oral argument, now that we've dug in more. Yeah, yeah, exactly. The Alito digging in more, she's not approaching this with the cleanest of hands here, not the cleanest of hands, and that is a complicator. But yeah, the Fifth Circuit rule was just too strict. And I think overall, again, like both as a reminder to me and David, but also to listeners,

when we say we're taking the facts in the light most favorable to the defendant or the plaintiff or whomever, just bear in mind, and so the other side could have a really good response. But legally, it's not relevant to determining the question, but boy, it changes anyone's impression when you know that something that seems egregious, that actually that person didn't have clean hands, like the facts are always more complicated, but we decide the law on the most egregious set of facts often because it's a better way to decide it. So, I thought that was worth mentioning. All right, David, we got an interesting question following up on our bump stocks conversation that I thought we would read here. I was curious about what you said regarding the injustice of the bump stocks regulation

and the ability of an administration to add and subtract criminal activity through regulation. From a justice standpoint, is adding and subtracting bump stocks through regulation so different from the way that the criminal component of the material support for terrorism statute works? Under that statute, the Secretary of State can list and delist groups as foreign terrorist organizations, thereby triggering, with respect to that group, very severe penalties for a wide swath of activities, the boundaries of which are unclear and some of which arguably raise First Amendment issues.

Another similar and much more common example would be the Treasury Department's adding and subtracting groups and individuals subject to financial sanctions. Sometimes these designations are politically fraught, designating Irish Republican Organization as a foreign terrorist organization or calls to add Mexican drug cartels to that list. The designation process is less transparent and less challengeable than ATF regs. I got another version of this question that's like, well, but what if they learned

through the Las Vegas shooting, sort of like what they learned about thalidomide? And so changed the designation of thalidomide, for instance, when they learned that it was causing birth defects. Like, why are we tying the hands of these agencies? So David, you wanna take a crack at that? Yeah, it's a very, very good question. I think what you're dealing with,

there's a couple of elements here. One is when you're dealing with a foreign terrorist designation, there's two things in play. One is the underlying facts of who is or who is not a terrorist entity, those are in flux in the way that the fact of what is or is not a bump stock is not. And so in some senses, there are factual determinations and factual questions related to your thalidomide

example, for example, where we learn new things that place the thing or the entity in a legal designation that always would have fit. Okay. But then there's another element when it comes to the foreign designated terrorist organizations. And this is something that was pointed out in actually in the email, which is there's also the element of foreign policy and diplomacy. That there might be reasons why the State Department would look at two institutions and entities that have similar conduct and decide for reasons related to diplomacy and foreign policy and national security that's going to attach a designation to one and not the other. is, okay, I'm very, that is, as far as moderating, dictating government policy, I'm all about giving the government that kind of discretion. I'm less about it in criminal prosecution. So if you're going to have,

if you have two very similar organizations, very, very similar, and two Americans interact with each one. And one is designated terror organization. The other one is not for international diplomatic reasons, but not because of material differences on the facts. And you prosecute one American and not the other. I have a lot more hesitation about that.

But that necessity of flexibility in the executive branch and dealing with foreign organizations I think explains a lot of the difference. But conceptually, there was no change in what our understanding of what a bump stock was from the Obama administration to the Trump administration. There were no changes in bump stocks from the Obama administration. There was no change in the statute. There was no change in the definition. There was no change in the statute. There was no change in the definition. There was no change at all.

The only thing that changed was not that the bump stocks changed. The thing that changed was the way somebody used a bump stock changed, which is an ideal opportunity to change the law, to change the definition, to encompass the bump stock. And that is not what occurred here. So my issue isn't with discretion as in that there should be no discretion.

The issue here, what you have here is the thing itself did not change between three different administrations. Nothing was different other than the interpretation of the definition across these different administrations and that's that that is different from sort of saying, okay the international that the the Iranian IRGC is engaging in behavior that we now believe to be terrorist that's a That's a discovery or a change.

The bump stock stayed static the whole time. It's just the bump stock. Yeah, I mean, my analogy would be more that a new gun comes on the market where when you pull the trigger, a bunch of bullets come out. So we designate that a machine gun and it's banned. Right.

That's a new organization comes out of Iran and it does terrorism things. So we designated a terrorist organization. New facts, new group, new gun. But as you said, the event of the Las Vegas shooting did not change how the bump stock worked or the legal definition of a machine gun. Also, let me tell you about MoNews. Listen to the MoNews daily podcast for nonpartisan, fact-based, anxiety-free news coverage. Engage directly with their independent journalism, where they answer your questions and break

down the most important stories every day. Subscribe now to the MoNews podcast. That is M-O-News. You can also follow MoNews over on Instagram to stay informed and stay calm. Okay, next up, interesting new law in Oklahoma. So I'll read the head of the AP headline. Louisiana has become the first state to require that the 10 commandments be displayed in every public classroom under a bill signed into law by Republican Governor Jeff Landry this week. The GOP drafted legislation mandates a poster-sized display of the 10 commandments in quote, large, easily readable font be required in all public classrooms from kindergarten

to state-funded universities. Although the bill did not receive final approval from the governor, the time for gubernatorial action to sign or veto the bill had lapsed. So David, the question is, is it constitutional? So just to remind everyone about the establishment clause, Congress shall make no law respecting an establishment of religion. This, of course, has been incorporated against the states,

meaning also states can't make a law respecting an establishment of religion. It wasn't until 1962 that the court under Chief Justice Earl Warren created a, quote, wall of separation between church and state. And in 1971, we get the Lemon Test. This is the three prongs for whether a law is constitutional under the Establishment Clause. It has to have a secular purpose. The effect of the law has to be religiously

neutral, not just between different religions, but between religion and non-religion as well. And the law cannot entangle the government with religious activity. So, for any government action that was challenged on establishment clause grounds, courts were asked to decide whether a reasonable observer would consider that action an endorsement of religion. Okay, so that was used in 1982 to strike down a Kentucky law that required a copy of the Ten Commandments to be used in every public classroom. Sounds familiar. But the Lemon Test became a lemon, as we talked about on this podcast, especially in conservative circles. I mean, that was just ridiculed.

And in 1993, Justice Scalia famously compared the Lemon Test to some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried. But it lived on for another 30 years in one form or another until the majority explicitly overruled the Lemon Test in that Coach Kennedy case about prayer on the football field at a public high school. And in doing so, they applied the text history and tradition test to the establishment clause question. So, David, I'll mention one other or rather two other Ten Commandments cases. And these are the twin cases from the early aughts, McCreary and Van Orden. So in the first one, Kentucky puts up

a 10 Commandments display in its courthouse. The Supreme Court says, nope, your only reason in doing that was to sort of bring Christianity back into the courthouse. But the same day they uphold Texas's Ten Commandments display on the Capitol grounds, because that one had a long history and it was put up by a civic organization. It was both were five, four decisions. The only switch in vote was Justice Breyer. And with that, we head into what will absolutely be Ten Commandments litigation about this Louisiana

law. I'm curious what you think, but before that, I thought I would mention that they did paper this up pretty well reading McCreary and Van Orden and where Kentucky went wrong and Texas went right. So for instance, it requires a four paragraph context statement describing how the 10 Commandments were quote, a prominent part of American public education for almost three centuries. And it will only be funded through donations. State funds will not be used to

implement the mandate. So, yeah, they're clearly trying to make this historical, not religious. They're not using state funds. And of course, the Ten Commandments spans different religions. There's different versions of the Ten Commandments. What do you think, David? So they're taking direct aim at Stone v. Graham. I mean, there's just no question. This is the 1980 Kentucky case. And so the Kentucky statute required a posting of the copy of the Ten Commandments.

They were purchased with private contributions. So there was no public funding. And there was a disclaimer. There was the secular application. Now the disclaimer might be longer with Louisiana, but there was a disclaimer with the Kentucky Ten Commandments. The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western civilization and the common law of the United States.

And so essentially the way the case was decided is they said even though they avowed a secular purpose this and there are certainly elements such as do not kill and that are encoded in secular law, there are also elements of the Ten Commandments, prohibitions against idolatry, for example, that are just purely inherently religious. And so I think this is the kind of case we've seen that we're seeing post-63 court, where there's a lot of precedents from the past that conservatives are wanting to eliminate. So yeah, you want to get rid of Lemon, Lemon is gone. Well, now that Lemon is gone, what does that mean for establishment clause jurisprudence writ large? And this is, I think, one of these reach cases. It's kind of funny how the governor

said, I'm ready to be sued, and then turns around and says, you know, this is teaching the rule of law. Well, he's defying, in a way, Supreme Court president, in taking this action, which is a little ironic. But I think it will be a very interesting case to see what is the post-Lemon establishment clause analysis. And I think that Louisiana is actually pretty vulnerable here because, you know, it's not just the Ten Commandments. It's a specific version of the Ten Commandments, I believe the King James Version. It is, and the question begins, ever since the Establishment Clause was incorporated to the states in the late 1940s, the states are bound by the same prohibitions.

And prior to the 1940s, there were, and prior to the incorporation of the Establishment Clause, states had a lot more freedom because the Establishment Clause, states had a lot more freedom because Establishment Clause did not apply to them to do things like implement school prayer, to implement Bible reading, et cetera, et cetera. But now the Establishment Clause applies. And what is text history and tradition regarding the Establishment Clause applying, which remember the history and tradition will be,

it applied to the federal government, right? I don't think you can go back, and this is something that I've really thought a lot about because I've realized some of my flaws in my own establishment clause jurisprudence thinking. When you go back and you look at things like a state established churches, and that that's not relevant to the Establishment Clause analysis. The fact that there were state established churches at the founding isn't relevant to

the history of the Establishment Clause because the Establishment Clause, by its history, bound the federal government. So I think if you're going to do an analysis, then you're looking at what's the history of the federal government interaction with religion. But then that gets squirrely, Sarah, because the federal government hasn't been running public schools. Yeah, but we have all these other examples. I mean, the Supreme Court has the Ten Commandments and that was built in 1932. The Ten Commandments are prominently featured in the friezes of

the Supreme Court. You have prayers opening Congress and lots of federal government activities. Those have all been upheld as not establishment clause violations. I don't think it needs to be totally exact to the public schools. Well, but the difference is, so the Supreme Court, for example,

I think it's very clear that if Louisiana had done something where you come in and here is the state prescribed origin of the laws display, and you're gonna have Hammurabi's Code and the 10 Commandments and all of that, I think you're in good shape there, which that's what the Supreme Court display is. The Supreme Court display is this historical context

of lawgivers and laws given historically. And we have always, and the court has, in relatively recent past, upheld public prayers in situations where children might be present, such as college commencements, legislative prayer. City council meetings, yeah, yeah. Town of Greece, et cetera. But where it's been real squirrely is when you're dealing with minor children.

And when are you going to say, okay, there is one specific religious expression that all minor children in this state school are going to be exposed to? But then the question becomes more about coercion, right? And this was the question they left open in the Kennedy v. Bremerton case, because they just said there wasn't really evidence of coercion in that case.

Is a passive thing on a wall coercive? Yeah, that's a, so, you know, the, and the Kennedy case is very interesting because they did go to, and this was one of the most controversial aspects about it, something we talked a lot about was they decided the case as if our case is Kennedy praying all by himself, a distance away from everybody, clearly engaged in private conduct. The dissent was like, no, no, no, no, no, no, no, these are not the facts of the case.

The facts of the case is he prays and everyone clumps around him. And it is not in alone prayer. It is a group prayer. And I think one of the questions would be, is popping that on the Ten Commandments on the wall, how similar would that to be to a teacher beginning class by leading prayer? That would be, you know, one of the interesting questions. I'm skeptical this is going to survive. I'm very skeptical this is going to survive.

I am too, but they've made the perfect vehicle in my mind. The students aren't having to say anything, recognize it. There is no teacher using any class time for the purpose of discussing it or leading a prayer, for instance, in your example. It's so passive. They have the intro talking about its historical relevance. It's not using government money. And at the same time, of course, there's just sort of this like knee-jerk reaction that you're putting, as you say, one religion or two religions, you know, a religious text on the wall in a public school for a religious purpose. Now, I think that'll be disputed as well. And there are different versions of the Ten Commandments, by the way. Catholics and Protestants

number them differently. Like the... Oh, yeah. I remember I did a Ninth Commandment.. I said ninth commandment in the title of one of my Sunday French presses, and I got lots of Catholics saying, that's not the ninth commandment. And so, yeah, I think that if you'd had a display like the 10 commandments and Hammurabi's code,

et cetera, et cetera, that would have been the vehicle, but that would not have been what the legislature wanted. What the legislature wanted is to, because part of this behind also, also I'm thinking, what is it that we say we're doing here? Like, what is it? You know, what is it doing here? And that's a problem for them. But I think you're going to have a big break on how exactly you approach this case. Is it to look at the original understanding of the Establishment Clause, in which case I think that the Ten Commandments survived? Is it about the original purpose of the Establishment Clause, in which case I'm not so sure?

And therein you get to the split in judicial philosophy. Mm-hmm. No, I'm with you. But you know, one of the things that's happening here is part of the thing is you've got this disclaimer up and everybody knows that's not why they're putting it up. You know, this is, I cannot tell you how many times I've encountered some version of this. This country went to hell

when we got God out of public schools. We need to get God back in public schools. We need to get the Ten Commandments back on the walls. And that's going to help reform this nation. And that is, A, it's ridiculous. So I was in Kentucky. I was in elementary school in Kentucky when the Ten Commandments were on the walls. And by the way, it took a long time for them to come down after 1980. They were still up for a long time in Scott County, Kentucky. And there was no... The idea that the Ten Commandments had some sort of talismanic virtue that was leaking virtue onto everyone sitting under its passive gaze

was just almost hilariously wrong. Like, just... But you're talking about the wisdom of the law. That's not the question. That's for the political branches. No, I know. I know. We already had a legal discussion, and I clearly transitioned to, what is it we say we're doing here? Look, I think this is where the text history and tradition test, we're seeing a lot of rubber hitting the road. How many justices actually are going to do text history and tradition and how many are

going to do tears of scrutiny and how many are going to do purpose and how many are going to do original public meaning and understanding, because again, Congress, they're the states, shall make no law respecting an establishment of religion. That is hard to apply as a purely textual question in this case, you have to do some originalism here, or not. I mean, I guess if you are, if you're gonna, if text, history and tradition should be text,

history and tradition, okay. So text here, you shall not establish. And what did they do? They said, you have to have a specific religious, one specific religious version of the 10 commandments up. Like not, it's, yes, they have the disclaimer, but they narrow cast on what this is. So this is an actual, very specific version

of the Ten Commandments that is state mandated, that it goes, that's getting a lot, to me, you're going a long way towards just text right there. Just text. One specific version of the Ten Commandments posted everywhere to be seen by everyone in these public schools. And that's not the state establishing

that this version of the Ten Commandments. I mean, what are we doing here? Again, it's like, if you're talking text, and text is what we privilege, this feels much closer than just a flat. And I've actually won an establishment clause case, Sarah, a challenging a state establishment of religion in Georgia Tech. At Georgia Tech University in the early 2000s,

they actually implemented a program where they were teaching students about the, as part of like their orientation, et cetera, about the relative merits of different faiths. And so literally under like the Georgia Tech analysis, it was better to be Buddhist than Baptist. Now they were not telling you to go to temple. They were not prohibiting you from going to church. But they had clearly

privileged a number of religions over others in their course of instruction. And without even lemon test, that was establishment clause violation. Well, I think the biggest question is whether this will make it to the Supreme Court at the very end of next term or the term after, because this is going to have lawsuits seeking injunctions in the Fifth Circuit, First started district court. It'll go to a Fifth Circuit panel. And the question is whether that Fifth Circuit panel can get the decision out basically by roughly November in order for the cert petition to be pending in time to be scheduled for oral argument in March or April of 2025.

It'd be a close call, but it could happen. So really, it's just a timing question. Is this a 2025 decision or a 2026 decision? But it's coming, don't you worry. Yeah. I mean, you know, look at it this way. If you can post the Ten Commandments, you can require the posting of the five pillars of Islam. So... If you put up a historical why you're putting this up? Yeah. Islam is a faith tradition that is of deep influence.

And the five pillars of Islam are of deep influence to the legal codes of- Something about algebra, yeah. Yeah, yeah, yeah. Yeah, exactly. It'll be a math class. Mm-hmm. And yet almost every single human being who said,

we gotta post the 10 commandments, if the five pillars were mandatorily posted, they would say, get those things down. That's an establishment of the Islamic faith. Can I tell you, David, I was just rereading my law school note back now, near 20 years ago. And it was about the play and the joints between what the establishment clause forbids

and what the free exercise clause demands andlause forbids and what the Free Exercise Clause demands and looking at a specific school out in California that was a charter school where they had a large number of Somali immigrant elementary school students who were Muslim. And those students have to pray, obviously, certain times during the day. And so during recess, they were allowing the students

to go into a classroom with a teacher's aid who could just monitor them because they're elementary school students. She was also Muslim and praying alongside them. And then these students were praying during their recess. There was a huge public uproar. Bill O'Reilly called it an embryonic madrasa. And the point was that because of 1988, Section 1988, which requires attorney's fees to be paid in a 1983 lawsuit, that you end up bullying these schools into not protecting their students' rights at all, but just giving in to the loudest screaming voice because otherwise they're going to owe a lot of money. If they lose the case and the Supreme Court's jurisprudence on establishment clause had

been so all over the place, slash is so all over the place, these schools can't correctly assess their risk in actually following through with litigation. And so they just cave. And in fact, that's exactly what this school ended up doing. They just banned the children from being able to pray during recess and hoped that none of the not very well-off Somali immigrant parents would sue them for free exercise violations. And they didn't, and that's what happened.

Interesting. I find the whole play in the joints, which is what the Supreme Court has referred to that as, really interesting and hard. And there's a reason the Supreme Court doesn't have clear jurisprudence on this after all this time, even though it is the first part of the First Amendment of the Bill of Rights. Yeah.

Because our culture is so intertwined with religion and with specific religions. There is history, there is religion, there's all sorts of things baked in here. And yeah, I think this is a hard question. Yeah, I do not have confidence how it will turn out. I do not think the law should have been passed. Ha ha ha. Ah, look, if I'm actually just betting my 20 bucks,

the law falls. Yeah, that's where I am too. But I'm not, I would be nervous about my 20, and I would actually just betting my 20 bucks, the law falls. Yeah, that's that's where I am too. But I'm not I would be nervous about my 20 and I would bet more than 20. All right. So that's where we stand today. I think we'll learn a lot more about text history and tradition in the next week. So maybe we can update our twenty dollars betting on future cases. In the meantime, yes, this has been maybe one of the more boring advisory opinions, but exciting things to come as we have a lot of the big decisions, guns, abortion, immunity. January 6th, David's really mad that I call this one of our more boring episodes.

No, no, no. This is how we make boring cases exciting. That's what this podcast is an example of. Oh. Yes. I don't know that we did our best work, but. From here on out, there's basically no way for them to release decisions without there being some hit parade cases in the clump. So from here on out, they're gonna be

exciting advisory opinions episodes. Amen.