Advisory Opinions - Tariff-ic Meltdowns

Episode Date: June 3, 2025

Sarah Isgur and David French discuss the legal back and forth regarding President Donald Trump’s tariffs before turning to his attacks on the Federalist Society. The Agenda:—Court of international trade blocks Trump’s tariffs—Appeals court reinstates tariffs—Major questions, explained—Jack Goldsmith on IEEPA—Trump goes after Leonard Leo—What is the difference between a lie and criminal fraud?—Granting and revoking immigration statuses—Blue Book reform 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, ⁠⁠⁠⁠⁠⁠⁠click here⁠⁠⁠⁠⁠⁠⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I'm Sarah Isgur. That's David French. And David, we have a lot to get through. We're just going to have to jump right in. I mean, we've got tariffs, co-sys-sis, Apache stronghold, protected status, Snopes attacks on FedSoc.

I mean, we don't have time for chit chat. No time for chit chat, Sarah. Like this is gonna be the most unusual podcast. Everyone knows podcasts begin with like 23 minutes of like what's going on in their daily lives before you get into it. But no, not this one, not this one. Who cares?

Okay, so- Who cares? Let's go. We first get a unanimous opinion from the court of international trade blocking Donald Trump's reciprocal tariffs nationwide. So we're back to this conversation about what the correct remedy is, et cetera. Then within hours, we get a district judge in DC blocking Donald Trump's tariffs as applied to the two plaintiffs in his case.

Then we get the appellate court above the Court of International Trade, the Federal Circuit staying that unanimous panel's universal injunction. So the tariffs go back into effect. The result of all of this, so three decisions, the tariffs are back into effect except as to the two plaintiffs in that DC case, that will go up to the DC Circuit. All of these can go up to the Supreme Court. The problem is, when you have the Federal Circuit staying the universal injunction against the tariffs, I don't really see the Supreme Court disturbing that. You let that work out at the lower courts. So basically all eyes on the DC circuit at this point.

Now the reasoning was similar but different, David. So in the Court of International Trade, the reason that they struck down Trump's tariffs was sort of like, hey, major questions doctrine, non-delegation doctrine. We don't need to parse too finely between the two of these because whatever it is, this is definitely a no-go from us. So just to do a refresh here, non-delegation, can Congress give away its power to set tariffs? Major questions, did Congress give away its power to set tariffs? Major questions? Did Congress give away its power to set tariffs? And we've got sort of a bifurcation on exactly what major questions doctrine is. You have

Gorsuch saying that major questions doctrine is a canon of interpretation, almost like constitutional avoidance. When it comes to the big economic questions, we're going to read statutes to not give away that power without a clear statement. Then you have Justice Barrett, and hers is not a canon, canon sort of being thumbs on the scale, if you will, for statutory interpretation. Hers is more like a method of statutory interpretation that we expect when Congress is doing big things that they would make that pretty clear. So if they didn't hear that's a good sign that that's not what they meant. So it's not a thumb

on the scale for the purpose of constitutional cleanliness. It's a way of interpreting the statute. And if that doesn't make a lot of sense, if that distinction is too final one, don't worry about it. Because again, in this terrorist case, it makes not one lick of difference. Because under any version of major case, it makes not one lick of difference. Because under any version of major questions doctrine, under any version of non-delegation doctrine, you have the unanimous panel, gnawed dogging that. And let's move to the judges real quick. You had in that unanimous panel, a Reagan appointee, a Trump appointee, and an Obama appointee. But as David Latt pointed

out in his original jurisdiction, the Court of International Trade is weird in any number of respects. One of them is that there is a statute that says no more than five members of the court may be affiliated with the same political party, so that actually the Trump appointee had to be a democratic affiliated judge. It looks like he was general counsel from the office of the United States Trade Representative appointed by Obama and continued his work there for Robert Lighthizer during the first Trump administration. Okay, so David, let's just start with your overall read on the tariffs, and then let's go to exactly where that lineup of judges landed us with President Trump.

When I read this case, and also when I read the district court case, I just thought that it was something along the lines of the Supreme Court walked during the Biden administration so that the lower courts could run during the Trump administration, because it had so much resonance, at least as I was reading these opinions, with the Biden student loan decision and with the Biden, I mean, the Biden, the decision striking down the big broad Biden student loan relief, and the decision striking down the big, broad Biden student loan relief and the decision striking down

the OSHA vaccine mandate. Now, I know they're not one-to-one. I know they're not exactly the same, but very, very, very similar in the sense that, OK, look, we're interpreting broad statutes that have seemed to give the president a pretty good amount of authority, but the authority it gives him is precisely laid out, precisely laid out, precisely laid out, and then has kind of a catch-all provision attached to it.

And how do you read the catch-all provision? Do you read the catch-all provision as sort of saying, okay, everything that we precisely laid out are the problems that we're dealing with right now, and the catch-all is, well, anything else in the neighborhood? Or is it, do we read it where all of those individual statements are just examples of the way the president used the power, but the catch-all is the real power? The catch-all is the real power. The catch-all is the real thing. So is it the catch-all should be related to the precise things that came before? Or is the catch-all

the real power given and all of the precise elements are just examples of it? And what the Supreme Court seems to pretty clearly say, say in OSHA and the student loan case, is that the catch catchalls are not the real guts of the statute. The real guts of the statute are the precise ways that it is outlined to be used and the catchalls should be read in light of that. So as I'm looking at it, that's how I see these cases as down the line from that, but not exactly the same, which is why I'm not 100% sure you'll get the same outcome at the Supreme Court.

So I didn't mention, by the way, the reasoning for that DC judge, Judge Contreras, because this is my pet thing, David. I don't think you even need to get to sort of the substantive major questions doctrine, non-delegation doctrine. I think if you do, I tend to align with where the Court of International Trade came out. But that DC judge didn't get there. Why? We mentioned this when these lawsuits were being filed. Under the International Emergency Economic Powers Act, IEPA from 1977 that Donald Trump is using to base his powers, AIPA says, basically, if there's some foreign emergency going on, the president can impose sanctions, restrict financial transactions in order to address that emergency.

So these lawsuits, some of them were filed in the Court of International Trade, some of them were not, as we talked about before. The Court of International Trade only has authority over these questions of statutes that authorize tariffs. So doesn't that just answer its own question? In the DC court, they argued that IEPA does not authorize tariffs. So the only question is whether AIIPA even authorizes tariffs. In the Court of International Trade, they said, AIIPA does authorize tariffs and therefore we have jurisdiction and major questions doctrine, non-delegation doctrine. It doesn't authorize these tariffs. But the DC judge said, oh, no, no, no, I have jurisdiction because AIIPA doesn't authorize

tariffs. Right. So that's the only question going to the DC circuit at this point. And in theory, if that one went to the Supreme Court, if the DC circuit upheld his decision, though again, because it only applies to the two plaintiffs, you wonder whether the Supreme Court would see this as the kind of emergency that necessitates the short order docket. What's the actual harm to the government if they can't impose tariffs on these two plaintiffs right now?

Now one footnote here, of course, that I thought was very funny. After all of the complaining about universal injunctions done by the Department of Justice through administrations, by the way, for 15, 20 years now, you actually had the Department of Justice lawyer with a straight face in this case, argue that the judge shouldn't impose an injunction as to these two plaintiffs because it would open up a wave. It would be a magnet, they said, a magnet for litigation, for everyone to file individual claims to get themselves out of these tariffs. And it's like, so you want a universal injunction? What? I don't understand. Heads we win, tails you lose. Jared Ranere I think the secret is, Sarah,

they don't want any injunctions at all. Sarah Bruckner Oh! Jared Ranere Yeah, that's what it is. Sarah Bruckner Now, David, I think you and I both see this, well, I'm curious, actually, which do you think is the stronger argument that IEPA doesn't authorize tariffs, therefore you never could go to the Court of International Trade, or that maybe IEPA could authorize tariffs, or there were some sort of international emergency along that effect, but major questions doctrine,

non-delegation doctrine, IEPA itself doesn't work. Which of these two versions are you more sympathetic to? I'm actually more sympathetic to the AEPA doesn't authorize tariffs. And the reason why I'm more sympathetic to that is that, look, tariff authority is delegated to Congress quite explicitly in the Constitution. And then here you have AIIPA, and it doesn't even talk about tariffs. So you have an explicit constitutional authorization for Congress, and then you have Congress with – does provide in the context of these emergency situations, it does provide a lot of authority to the President, but it doesn't have an explicit tariff provision.

So the key language, let me just read it. When I say catch all and sort of, I mean, this language here is pretty broad, but you'll notice it's not unlimited and it doesn't include a key word. So it says the president, when the conditions are met and the president establishes that there's an emergency, then this gives the president certain powers. And this is really important when we're thinking about emergency powers in general. When you hear that, say, a president declares an emergency

or uses an emergency power, that does not unlock dictatorship. It unlocks only the specific powers unlocked by the statute granting the emergency authorization. So this is not like I get to declare an emergency and then all that I wanna do, I can do. So here is 1701, 1702, B the power to investigate, block during the

pendency of an investigation, regulate, direct, and compel, nullify, void, prevent, or prohibit any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation, exportation of or dealing in or exercising any right power privilege with respect to transactions involving any property in which any foreign country or national thereof has an interest by any person or with respect to any property subject to the jurisdiction of the United States. The word tariff is not in there.

It's not in there. The tariff power is a taxing power. It is not in there. And so that language, though, is very broad. If you have the Constitution granting power and authority to one branch of government, and then the branch of government writes a statute that, broad as it is, does not include that key power explicitly, then why are we saying it's there? Why are we saying it's there? And so that's why I'm

more sympathetic to the district court's opinion. So it is worth noting that Jack Goldsmith, a conservative law professor who worked during the Bush administration and has never been a fan of Donald Trump or sort of the extreme versions of executive power that Donald Trump has tried to usher in disagrees with us. Boy, does he disagree with us, David. He disagrees with both of these court decisions. And we'll put in the show notes his newsletter executive functions that walks through this. But basically, it says, you know, Congress did do its job. Congress is giving the president these emergency powers. They're very, very broad. That was up to Congress

to do so. And there's this one point, again, I'll let you guys read through it. I'm not going to walk point by point through this except to say that it's really well done. I think you will find it at least persuasive that this isn't an easy question. But David, here now quoting from Professor Goldsmith, it is an open question whether the major questions doctrine applies to congressional authorizations to the president. Every Supreme Court decision involving the major questions doctrine has involved agency action and lower courts are split on whether the major questions doctrine applies to presidential authorizations. The district court relied on the major questions

doctrine without facing this question and it is not an easy answer. He explained during a law review article, it might be that the major questions doctrine which aims to ensure that Congress has authorized agency action of wide-ranging significance has greater purchase with regard to agency authorizations than with presidential ones, since agencies normally are creatures of statute and accordingly possess only the authority that Congress has provided. Indeed, all of the Supreme Court's major questions doctrine cases thus far have involved authorizations to agencies rather than to the president. Many foreign affairs authorizations, however, are directed at the president. On the other hand, some scholars argue that the concerns

underlying the non-delegation doctrine are actually heightened when the authorization is made directly to the president since, among other things, presidential action is not subject to the process requirements of the Administrative Procedure Act. The court has provided little guidance on this question. So David, that's just one little nugget where I'm like, oh, good point, professor. Well, no, Jax makes a great point. Friend of the pod, guest of the pod, makes a great point,

which is one of the reasons why I said we need to talk about why this might be different, why this not be different. But the interesting question to me is, okay, under unitary executive, isn't there no distinction? Because under the unitary executive, the president is the executive branch, the president is the agency, the president. I mean, in a way, isn't that a distinction without a difference if you're going to be in sort of a unitary executive mindset? If you're, if you, if you're the Supreme Court, which does, I think it's safe to say majority of the Supreme Court agrees with some version of unitary executive,

not the strong, strong, strong version necessarily, but some version of unitary executive. And the unitary executive theory, I guess in a sentence, would be the president is the executive branch. So a delegation to an agency is a delegation to the president. And so I sort of see that as a distinction without a difference. I'm curious about you, Sarah. What do you think? I totally hear your point. I think that perhaps a better way to explain it is statutory, a better way to explain it is statutory, pure statutory authorization to Article II versus statutory plus with inherent Article II powers as well. So when you're dealing with an agency, it can only get power from Congress is Goldsmith's point.

Whereas if Congress is delegating power to the president, it is enhancing the president's power that already existed in Article 2. So you're exactly right that when we're dealing with an agency, it also had, if the president was doing something, inherent Article 2 authority as well from the president. So maybe it's a bad shorthand because you skip that. But, you know, when we're dealing with the vaccine mandate, for instance, we're really just talking only about OSHA's powers that could come from Congress here, perhaps, when we're talking about emergency foreign powers, we're talking about the powers that Congress gave as well as

the inherent powers that the president as well as the inherent powers that the president might have as well. All right, David, let's take a quick break. But when we come back, I want to talk about Donald Trump's reaction to these terrorist lawsuits in a minute. What's better than a well-marbled ribeye sizzling on the barbecue? A well-marbled ribeye sizzling on the barbecue that was carefully selected by an Instacart shopper and delivered to your door. A well-marbled ribeye you ordered without even leaving the kiddie pool.

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academic freedom is worth defending, FIRE, the Foundation for Individual Rights and Expression, invites you to join the fight. FIRE is a nonpartisan organization that defends free speech nationwide with a special focus on college campuses. Through their Faculty Legal Defense Fund, FIRE provides legal help to professors whose rights are threatened and right now they're expanding their network of attorneys who are ready to step up to defend faculty. If you're an attorney who cares about protecting open debate, rigorous scholarship, and the rule of law in higher education, this is your chance to make a difference. Join a national effort to protect the rights that make universities and our democracy stronger.

Learn more about the Faculty Legal Defense Fund and how you can join at thefire.org. That's thefire.org. Academic freedom is worth fighting for. And it starts with lawyers like you. Donald Trump did not love the Court of International Trade ruling against him. He took to truth social. Here's what he said. The court incredibly ruled against the United States of America on desperately needed tariffs.

But fortunately, the full 11-judge panel on the US Court of Appeals for the Federal Circuit has just stayed the order by the Manhattan-based Court of International Trade. Where do these initial three judges come from? How is it possible for them to have potentially done such damage to the United States of America? Is it purely a hatred of Trump? What other reason could it be?

I was new to Washington and it was suggested that I use the Federalist Society as a recommending source on judges. I did so openly and freely, but then realized that they were under the thumb of a real sleazebag named Leonard Leo, a bad person who, in his own way, probably hates America and obviously has his own separate ambitions. Leonard Leo openly brags how he controls judges and even justices of the United States Supreme Court. I hope that is not so and don't believe it is.

In any event, Leo left the Federalist Society to do his own thing. I am so disappointed in the Federalist Society because of the advice they gave me on numerous judicial nominations. This is something that cannot be forgotten. All right. So David, there's actually a lot there to unpack, though first and foremost, of course, it was a unanimous decision by the three-judge panel on the Court of International Trade, a Reagan appointee, an Obama appointee, and a Trump appointee. So even if the Trump appointee had ruled for Trump, it still would have been two to one. He still would have lost at the Court of International Trade. And that Trump appointee, as again, David Lapp pointed out, was actually required to be a Democrat. So probably Leonard

Leo and the Federal Society had nothing to do with it. It looks like Robert Lighthizer, the US trade rep, probably recommended him. So A, I'm not sure why the rant about Leonard Leo and the Federal Society is related to this Tara thing at all. Oh, this was building, Sarah. This has been building for a while. I mean, this goes back to 2020. I mean, you know, there have been, there's been a conversation.

It's been in the air and in the water that because Leonard Leo wouldn't jump in on the effort to steal the 2020 election that the rift was already building. There was a rift building that none of the Trump appointees at the Supreme Court helped him in 2020. You saw this in some of the primary conversation in 2024. DeSantis who in some ways was trying to outmag a Trump, there was talk that, well, I'll appoint better judges than Gorsuch, Barrett, Kavanaugh. So there was already discontent.

This has been in the water. And so when Trump did this, it was like sending out the signal flare. And you then begin to see all across Twitter, these MAGA people saying, well, these classical liberal judges and justices, what have they ever done? What if, you know, they're weak, they're soft, they're not ready for the moment. I mean, what have they ever done other than reverse row, end affirmative action, recognize an individual right

to keep and bear, and bear our, I mean, we could go on and on as to what conservative outcomes, originalist judges have achieved over the course of the last decade plus. I mean, there's been, we've been, how long has it been since there was a actual, real religious liberty loss at the Supreme Court? And it's not the charter school case

because as we talked about, the charter school case was a four to four case, had a lot of establishment clause ramifications to it. Um, what are these people talking about? And I'll tell you what they're talking about. Donald Trump is very used to the following phenomenon where he walks into a Republican party on its political branch, a Republican party that was dedicated to social conservatism, imperfectly, howeverly, limited government and a strong international system

of alliances and forward deployed military forces, said to the political branches of the Republican Party, no, I'm gonna take out your pro-life plank. I'm going to reject limited government and move towards a command economy. I'm going to pull back from, I'm going to cast even into doubt our membership in NATO. I'm going to be effectively, I'm going to be a friendlier to Russia and Russian aggression than any previous president.

And he's used to the political branches of the Republican Party that when there's a conflict between their principles and Donald Trump's demands they go well principles what principles tariffs ahoy and the federal judiciary has been very different from that the federal judiciary has been again imperfectly faithful to its originalist legal perspective and When Trump's demands conflict with their judicial philosophy, they have gone with their judicial philosophy. And this befuddles Trump because one part of his truth social was like, why is this happening? What is going on? I understand why he's befuddled because he's been

spending most of his time just absolutely subjugating political Republicans, and he hasn't been able to subjugate judicial conservatives. And so this has been building for a long time. It's exploded. And now they're going for that same old playbook, Sarah, on Twitter. It's not going to work on judges. This playbook that, oh, you're weak, you're soft, you don't know what time it is. A, 99% of the judges are not on Twitter. And B, it's just a totally different culture of people, a completely different culture of people from these members

of Congress who may have said and could pass a polygraph that, hey, I'm getting into politics for public service, but when push comes to shove and it's the end of the day, they wanna win, they just wanna win. And when principles conflict with winning, they're jettisoning principles at scale. And again, I'm saying this imperfectly, we've had instances of judges who are every bit as sycophantic to Trump as, very rare that

there have been, every bit as sycophantic to Trump as your median congressional Republican. But by and large, when the judicial philosophy of originalism conflicts and the rule of law and the text of statutes and the text of the Constitution conflicts with Trump's demands, the judges are not going with Trump's demands. This is not a hard thing to figure out here. And so, but this has been building and he lashes into Leonard Leo, which is pretty remarkable, Sarah,

considering that a lot of smart people and think that maybe Trump isn't even president without Leonard Leo and sort of the Fed Soc list of these list of judges of potential justice as he put out that were stocked with Fed Soc luminaries. So it's going to be very interesting to see how this little conflict plays out over the long term. Okay. So I have any number of little nuggets here.

One, how will this affect judges currently on the bench who were considering taking senior status? Yeah, great question. Trump basically saying that he's not going to pick Federalist Society-aligned judges. I've seen some argue that Alito and Thomas actually wouldn't want, for instance, someone in the model of Gorsuch, Barrett, Kavanaugh replacing them.

This is actually a signal to them and it'll work. Hard disagree. I think you don't understand Justices Alito and Thomas and the difference between a jurisprudence that differs. Every one of the nine justices currently on the Supreme Court has a different jurisprudence than the others. Surely, we have proven that on this podcast over time that Barrett and Gorsuch are not the same, that Gorsuch and Kavanaugh are not the same. So yeah, Alito and Thomas are not the same as Gorsuch and Kavanaugh. But that doesn't mean that they want partisan hacks replacing them either. So that's number one is how will this potentially backfire on Trump? Remember his second term was already facing far fewer judicial vacancies just because he had been president.

So recently they were looking at about 30% of the total that they had in his first administration, will that number now tick down? I wouldn't be surprised. Two, and relatedly, when judges get on the bench, even if you think that they're politicians, if you're on the judicial realist school, they get on the bench at a specific time based on the politics of a specific moment. For instance, Justice Alito, let's pick him out for a second.

He joins the court in 2005 during the Bush administration. It's now been 20 years. If you're a judicial realist, if you buy into that whole camp, the judges are basically just politicians in robes, and that's being a little unfair to judicial realists, but for our purposes right now, let's use that shorthand. Well, is he a politician from 2005? Or is he a politician from 2025? Because he was picked by the 2005 crew

because of his beliefs in 2005. Donald Trump has remade slash realigned the Republican Party around totally different belief systems. So I think this is good proof of that. And perhaps the judges that Donald Trump picks will reflect the values of this Republican Party right now and not that 2005 Republican Party, but it also means that all those judges who got on the bench beforehand, including in Trump's first term, I would argue, are going to, for their entire careers, in my view, reflect the politics of when they got on. So all of those Federalist Society judges were raised David in that three-legged stool

that you're talking about from politics. And certainly in that Borkian, Scaliaian mold. Again, I'm not saying their judicial philosophy is exactly the same. It's not for Kavanaugh, it's not for Gorsuch, it's not for Barrett. Yeah. But-

It's variations on a theme. That's right. They're branches from that trunk, if you will. And that's not going to change no matter what Donald Trump says because I think of them as these little like cavemen frozen in time from whatever they get confirmed in terms of their judicial beliefs and even their politics. Well, I think they changed to some degree like we all change to some politics. Well, I think, I mean, I think they changed to some degree, like we all changed to some degree. However, I also think that, look, if you're a justice on the Supreme Court,

again, I hate the phrase, co-equal branch of government, but you're the head of a branch of government, and you do not salute and say, sir, yes, sir, when another branch of government attacks you. And you certainly, I mean, could you imagine a clerk going in, Justice Barrett, are you sure you want to reach this conclusion? Because can you imagine what cat turd is going to say on Twitter about this?

Like, what are we even doing here? There is this new right ecosystem that sort of views like they're hashing it all out on Twitter. And once it's hashed out on Twitter, well, then everyone else has to fall in line. Well, that's news to everyone else besides, of course, elected congressional Republicans who don't just say, sir, yes, sir, to Trump. They say, sir, yes, sir, to cat turds sometimes. I mean, it's absurd. I mean, the level of sycopency is just boggles the mind. But here you're talking again about very different people who have become of age professionally

in a very different culture with a very different philosophy from Donald Trump. And again, when the philosophy conflicts with Trump's demands, and when I say philosophy, it's not just something that they concoct out of thin air. When we're talking about originalists in particular, we're talking about people who are centering the text of statutes.

And so, because again, let's go back to our trade discussion. We were focusing on texts of statutes and texts of the Constitution. The Article 1, Section A of the Constitution says, the Congress shall have power to lay and collect taxes, duties, and posts and excises. The Congress shall have power.

So if President Trump is saying, no, no, no, let's do a strike through of Congress and change it to President, okay, how many justices are going to say, Oh, sir, yes, sir. I mean, this is the text of the statute. And so there's explicitly Congress have the power to lay in collect taxes, duties, and posts and exercise exercises, you don't have the statute I IEPA does not delegate that explicit power. And so therefore, what is he wanting here?

What we know that he's wanting is he's wanting his own word and his own authority to trump text. And look, the only people who are really gonna be doing that over the long term are people who are saying things like, we need justices who will advance the MAGA agenda. That's the only people who are gonna be doing this. Even a high integrity, common good constitutionalist, with the emphasis on high integrity,

is not gonna read a statute that says yes to mean no, or a statute that says yes to mean no, or a statute that says no to mean yes. That just is a total abandonment rule of law. And so what he's doing here, I think, ultimately, will be extraordinarily counterproductive, completely ineffective. But, however, I do worry that this is just another shot across the bow as a prelude to kind of a disregard

of the judiciary. Well, let's talk about the future of the Federalist Society as my last point on this true social, because the Federalist Society has arguably been the most effective social movement in our lifetime. You know, I think you can point to other social movements that have also been very effective. I'd put federal society as tied at least. I always use mothers against drunk driving as this example of something that changed the laws and the culture of the United States unfathomably and relatively quickly as well. But you'll notice that Mothers Against Drunk

Driving never affiliated itself with one political side or another. And so when the Federalist Society became affiliated, it was always going to be conservative, I get that. But it really starts affiliating itself with the Bush administration, particularly in the second term. And then of course, when Trump comes into office, there was a real cost to that, David, because once you become part of the political binary, well, then the other side has to hate you and all of this stuff. What you're not expecting is your own side to then start to hate you. So look, Sheldon Gilbert is the new president of the Federalist Society. And he has some choices right now. One, he can publicly defend the Federalist Society

against Donald Trump, defend Leonard Leo from these attacks who I know he's certainly close to, if nothing else. Two, he can agree that the Federalist Society used to suck, but now doesn't, that Littered Leo is a scumbag or whatever and a bad person morally who hates America, in the hopes of ingratiating himself, he can ignore this, or he can instead of publicly try privately to meet with Donald Trump and make some of these points privately rather than publicly, although of course Donald Trump could always make them public later. Here's my argument, David. As you can probably guess, I'm going to be in the ignore camp because I think the Federalist Society long term is healthier and actually more influential

by removing itself from the immediate political sphere. Now, the counter-argument to what I'm about to say is the purpose of the Federalist Society is to get judges on the bench who believe in the Federalist Society's principles. And the only way you're gonna do that, or the best way you're gonna do it is through those political connections,

because that's how judges get picked. Fair enough. But again, when you become part of this political binary, and then even within that binary, there's factions on your side, you're always sort of the beach ball being punched around. And so you can end up on the outs as quickly as you were on the ends, I would argue over the course of time, you are better off simply curating lawyers and inculcating them into these values, teaching them the things they're not learning in law school about conservative methodologies, helping them form their own, again, Allah, Gorsuch, Kavanaugh, Barrett, each having their own branches off of this tree. And that over time, if you're a conservative,

you're not gonna have a choice, but to go look where the cream is and where the best and brightest are. And so it's okay to be on the outs right now, because if you've got the highest quality players, they're always going to have to come back and use your players. Or if they don't the highest quality players, they're always going to have to come back and use your players. Or if they don't want high quality players,

then there's nothing you're going to do. Or at least it totally defeats the purpose of your existence to then be the one placing judges. Because if it was always just about power, then like, fine, go chase power. There's plenty of those who are doing that right now on the legal side, even in Trump's orbit. But if the purpose is what the Federal Society says

their purpose is, then just go make the best of the best. And over time, that will work. Yeah, is the organization about advancing principles? Or is it about the career ambitions of particular set of people? If it's about advancing a certain set of principles, stick to your guns, weather the storm, continue to be the best and most persuasive articulate or a defender of your principles that you can be.

If it's about advancing people, which, by the way, we've kind of talked about this before, that the Fed Soc has become so successful that when I was in FedSoc as a 1L, 2L, nobody was joining FedSoc for personal ambition. There was like a dozen of us, I mean, that would show up. I mean, it was small. I can't remember exactly how small.

Our paper, on paper, we had more people, obviously, than ever showed up for anything, but we were very, very small and there was zero consciousness that, oh, I'm really advancing my career joining this group. Cause all that you got on law school was just a hurricane of hatred. It did not feel like you were advancing yourself

joining this group. It felt like you were maybe hurting yourself professionally given the level of hatred. But then as it got more and more and more successful, we've talked about this, it's sometimes difficult to separate who's in Fed Soc because they like the principles and who's in Fed Soc because they like the connections. And so that is part of what's going on here.

And so you've got some Fed Soc folks who don't really see Fed Soc as anything more than sort of an empty husk for the advancement of sort of whatever is the fashionable idea in Republican circles at the moment, as opposed to an articulator, a defender of a particular set of principles. And so I'm with you. Ignore and press on and be the best version of yourself that you can be. And you might have some attrition.

You might have some people join, you know, like the popular front for natural law. Let them do it. Who says there has to be only one meaningful, right leaning campus organization for law students? Have a couple, have three, whatever. But if you're the Federalist Society, there is a reason you exist, do not abandon the reason that you exist. All right, let's talk about another

Supreme Court decision, kusisis. And we didn't get to talk about it last week, so I wanted to read the opening of Justice Gorsuch's concurrence to give you an idea of what this case is about. This case touches on an old question. What is the difference between a lie and a criminal fraud? Consider an easy hypothetical.

In a phone interview, a couple asks a prospective babysitter if she has a criminal record. The babysitter says, no, but that's not right. While she has sought to turn her life around, a burglary conviction lurks in her past, one she is too embarrassed to mention. Relying on her misrepresentation, the parents hire the babysitter.

Her work proves exemplary and the couple pays her well. Later though, the parents discover the babysitter's lie. They might be upset and refuse to hire her again. But should the babysitter face federal fraud charges? Of course not. While intentional deceit for purposes of gain ought to sometimes be punished, if all misrepresentations amounted to criminal fraud, thousands of buyers and sellers would be

felons. How do courts police the line between mere lies and criminal frauds warranting the law's attention? One important tool is fraud's injury requirement. To prove a criminal fraud, a prosecutor must show that the victim did not receive what the defendant promised. It is a rule that shields people like our babysitter from the prosecutor's sights, and it is a rule that keeps judges from becoming arbiters of good morals. A fraud conviction can mean years, even decades in prison. Before a prosecutor may seek and a court may authorize that kind of punishment, the law demands more than a victimless lie." So David, that's the most like Gorsuch, I think, explanation of where he sits on criminal

justice issues right now. But let me tell you the actual facts of this case. Cuscesis and the industrial painting company he helped manage, Alpha Painting, secured two government contracts for painting projects in Philadelphia. Both contracts required the participation of a disadvantaged business. And in its bids for the project, Alpha represented to the Pennsylvania Department of Transportation that it would obtain its materials from a qualifying supplier, i.e. a business owned by a disadvantaged group or person. This promise turned out to be an empty one.

In addition to using the supplier solely as a pass-through entity, Alpha and Cocesis submitted multiple false certifications to cover up their scheme. Although Alpha's paintwork met expectations, its adherence to the disadvantaged business requirement did not. So Csys and Alpha were charged with wire fraud. And under the fraudulent inducement theory, a defendant commits federal fraud whenever he uses a material misstatement to trick a victim into a contract that requires handing

over her money or property, regardless of whether the fraudster, who often provides something in return, seeks to cause the victim net punitary loss. So? Yeah. So? So it's a unanimous decision, David. You have Gorsuch writing his own concurrence as to how he would get there. You have Sotomayor concurring in the judgment. But unanimously here, Cusces loses, As in, yes, lying about using a disadvantaged

business to get the work done was material to the contract. This was a big deal because if they had come out the other way, it would have eviscerated a whole lot of government contracting provisions and a lot of other just regular contracting provisions between companies as well. So not necessarily surprised with the outcome, but David, you know, there was a lot of people trying to make this a DEI thing. What was your take on it? Yeah, I mean, I think the outcome was absolutely correct on its terms. So if you this is I love the Gorsuch hypothetical, but the difference between the Gorsuch

hypothetical and in this case is that if you're asking say about the babysitter's criminal record, and the babysitter lies or trying to get their life back together, as he said, and then they turn out to be for this phenomenal babysitter. Is there a federal fraud claim there? No. Is there a moral problem? Yes. Well, that's because one of the reasons that would be that distinction applies is because the goal of asking about the criminal record was to protect the child. Okay.

And if the child is totally, totally fine, then the harm there, you don't see a measurable harm. However, if the goal is to provide real actual work for disadvantaged businesses, and you do not provide that real actual work to the disadvantaged business, well then you've got a measure of harm there. But I thought Thomas concurrence

was by far the most interesting because part of me in the back of my head as I was reading this whole thing was, wait a minute, is this disadvantaged business element of the, is this even constitutional? Post Harvard v. Fair, how constitutional is this? And he gets into that a bit in his concurrence. And so I do think, Sarah, that is gonna be a question that's gonna be a very live question going forward because the actual merits of this case,

the statute was very, very clear. This wasn't that close a case. As you said, it was unanimous, nine, zero. I'm actually even stumped as to how there was a circuit split on this case. So it was nine nine zero. I'm actually even stumped as to how there was a circuit split on this case. So it was nine zero, seemed obvious from the text of the statute that it was nine zero, that it would be nine zero.

But the Thomas concurrence, I would urge folks who really wanna dive into this, that Thomas concurrence raises the question of, wait a minute here. Is this something that's going to be ultimately legal? Because the, I'll read part of it. DOT defines the term socially and economically disadvantaged primarily on the basis of race and sex.

The program rebuttably presumes that any member of certain enumerated races has been subject to racial or ethnic prejudice or cultural bias within American society because of his or her identity as a member of a group and thus qualifies as socially and economically disadvantaged individual, and then goes through the different categories of individuals who, who presumptively are entitled that they are disadvantaged. And then if you're not in the group,

so if you're, let's say, a white guy, then you may attempt to prove disadvantage. So you have, by race, one group is presumptively disadvantaged, and by race, well, you can prove that you're disadvantaged, but you gotta bring forward evidence. And I'm really stumped as to how over the long term that formulation is gonna survive constitutional review,

but it was not at issue in this case. So you're right, this was not a DEI case, but lurking underneath this case is a pretty substantial DEI question. And with that, we'll take a quick break. And when we get back, we've got the Supreme Court handing Donald Trump a temporary win and a few ones to mention from what I'm going to start calling the nope docket. All right, we'll be right back.

And we right back. And we're back. So David, the Supreme Court did hand Donald Trump a big win this week. Joe Biden, during his term, granted protected status to Cubans, Haitians, Nicaraguans, and Venezuelans in 2022 and early 2023. According to Politico, his plan was aimed at reigning in politically damaging scenes of chaos at the US Mexico border by stemming the disorganized flood

of migrants into border communities. So Trump got into office and ended the protected status for those groups. and ended the protected status for those groups. The Supreme Court said, yeah, that's fine. So now the administration is allowed to begin deporting about half a million immigrants from Cuba, Haiti, Nicaragua, and Venezuela, who entered the US legally under humanitarian parole programs

created by President Biden. David, I'm just curious, any surprises here? It was a one paragraph order. We do have Justices Jackson and Sotomayor dissenting, but to me, this feels a little like the problem we've talked about over and over again with presidential power. If you thought President Biden had the power to do it

and you were cheering that on, then you can't be too mad when President Trump has the power to undo it. Instead, you should be taking power out of the executive branch. You should be asking Congress to do its job, but I can't get too worked up. This is a question about what powers presidents have.

I'm not sure that President Biden, or any president for that matter, should have the power to allow a half a million people to immigrate into the United States under relatively narrow provisions granted by Congress to create these humanitarian parole programs. But certainly, if they have the power to do it, you have to have the power to undo it. They are always meant to be temporary. Yeah, we can argue all day whether Trump,

we either Biden granting that temporary status or Trump revoking the temporary status is right, is good policy, is moral, whatever terms you want to argue. But this seems to be one that in this thoroughly broken immigration system that we have, which is just a absolute freaking disaster from top to bottom. Well, if Biden had this authority unilaterally to grant this protected status, Trump has the authority to revoke that protected status. I don't think this is a particularly, as evidenced by the fact that Justice Kagan didn't dissent here.

I'm not sure that this is even a case that's going to substantially divide the Supreme Court, an issue that will substantially divide the Supreme Court. Look, a bit of bonus-free political commentary here. This is part of the legacy and overhang of Biden's mishandling of the immigration question. He mishandled it very, very, very badly. And this is overheld. This is part of that long tail of his immigration mistakes. And so I don't actually see this

as that surprising, that controversial. It is consequential for the people involved. And I have an enormous amount of sympathy for the people involved. I really do. It's this idea that you can come in, you can feel safe and secure for a while. There's an election and suddenly you're not safe and secure anymore. Suddenly you're subject to deportation. This is terrible.

This is terrible. But this is the terrible system that we have created and so far refuse to change. So again, when I say that Trump can do this, I'm not saying it's right morally to do this. I'm not saying it's right policy to do this. But to me, it's pretty plainly correct. It is pretty plainly legal for him to do this.

Also again, this is where I feel like one side tries to claim that they're the compassionate side. It is not compassionate to allow 500,000 people into the United States and tell them that they have protected status here when you know that you in fact cannot guarantee that for any length of time after you leave the presidency. It is not compassionate to tell people to pay or rather to incentivize people to pay

coyotes $10,000 a pop to bring small children to the border where they are dropped off in the desert or put into sex trafficking or child labor rings. That's not compassionate to say that, well, we don't have an open border, but we're also not going to police it. And so if you can figure out a way here, wink, wink, come on over. That's not compassionate. It's funding these drug cartels, as I've said, over and over again. And so I do get upset when, you know, one side is the nice guy and one side is mean mommy, maybe because I am mean mommy in my house. It is ridiculous.

You know, if divorced dad gives the kid pizza and candy all weekend and then mean mommy makes them eat vegetables, who's actually the good parent here? So saying we have laws, we have a border, we have rules by which you come into this country is not morally wrong. I would argue the morally wrong thing is having a system

where you pretend people can come in, incentivize drug cartels making billions of dollars to then take down these governments, which is the whole reason people are having to flee in the first place. But that's a rant for another time, perhaps. Yeah, I think there's a really interesting difference here that you see between, let me put it like in the line

of the Reagan conservative approach to immigration, which has always been, yes, we need, we want, we love immigrants, but we really want, need, and love immigrants to come here legally. And then this sort of weird distortion effect we had in the 20 teens moving into the early 2020s where there were strong elements, very powerful elements of our society, I don't think anywhere ever close to majority element of our society that was sort of along the lines that, hey, if we're trying to enforce a border, if we're trying to create a border that is actually not easily permeable,

that that alone is a moral affront. No, no. The question to me, the really interesting question to me is how many immigrants? That's the question. It is not an interesting question to me of whether we should secure our border or not. Yes, a sovereign nation should know, to the best of its ability, who is coming in and who is not, and regulate who comes in and who does not come in. And I happen to believe that we should default towards open arms, but it's in a regulated fashion.

And I think that this that there is a series, gosh, when people look back on the 20 teens and they look at some of the ideas that gained currency in the either open borders or quasi effectively, because people say nobody's for open borders, but functionally and effectively open borders or defund the police or whatever, a lot of people are gonna look back and go,

wait, wait, wait, those were not only ideas that gained currency and powerful sectors, but it gained so much currency that people would try to destroy your profession or your reputation or your career for disagreeing with it? What? So, yeah, I agree with you, Sarah. This is an overhang from a set of policies that I think that people will look back on

and be befuddled by, just befuddled by it. And I'll say it again. This was this stuff was on Joe Biden, it was absolutely on Joe Biden. And, and people wondering why Donald Trump won. Look, everyone knows where I stand on Donald Trump, but don't make it easy for him for crying out loud. Anyway, rant over. All right, David, I want to talk more about the nope docket. I'm calling this the denials from certiorari where the court declines to take cases that

you know they're going to have to take at some point because it's really turning into its own way of looking at the Roberts court. They're taking so few cases. They're not just not taking the cases that aren't right or have some procedural problem with the vehicle. They're not taking cases that they could take. They're perfectly teed up cases. It's telling us a lot about

where those votes are to hear cases on the court. Let's talk about two of them. Let's start with Snoop v. Brown. This is one that we talked about coming out of the Fourth Circuit. Maryland passed a ban on the AR-15, a semi-automatic rifle. The Fourth Circuit upheld that ban. What's that emoji? Shrug emoji. What are we doing about that? Is that in line with

the Second Amendment? Is it in line with the Supreme Court's cases in Brahimi, as David Latt has dubbed it? Well, we don't know because the Supreme Court declined to take the case. We have a statement respecting the denial of certiorari from Justice Kavanaugh and a dissent from denial from Justice Thomas. This Kavanaugh one's pretty interesting. He basically just says, in short, under this court's precedence, the Fourth Circuit's decision is questionable. Although the court today denies certiorari, a denial of certiorari does not mean that the court agrees with a lower court decision or that the issue is not worthy of review. The AR-15 issue was recently decided by the First Circuit and is currently being considered by several other

courts of appeals. Opinions from other courts of appeals should assist this court's ultimate decision-making on the AR-15 issue. Additional petitions for certiorari will likely be before this court shortly and in my view, this court should and presumably will address the AR-15 issue soon in the next term or two. I think you can guess what Justice Thomas said. Second Amendment, what now? So David, I mean, on the one hand, I'm not shocked that they denied cert on Snopes. We've seen this before, right? They don't want to take gun cases back to back. They don't want to take any type of decision back to back. Now you

could argue that's because they want to let it percolate at the lower courts, get sort of the best smartest judges giving their thoughts, opinions, citations, research. Or you could argue a more maybe judicial realist argument here. They don't want the court waiting in to culture war, hot button issues every single term. And so our institutionalists perhaps vote no on these types of cases when they come up right after another case came up and they just want to wait a term or two and let the temperature cool down on guns for a little bit. But I don't know, this is sort of silly.

I also will note, by the way, while Justice Kavanaugh's is a statement on the denial of cert, it sure reads like a dissent-ish on the denial of cert. And if Justice Kavanaugh, who is the court's swing vote for all intents and purposes most terms right now, if he's saying or hinting, alluding to the fact that he believes that AR-15s are protected under the Second Amendment, just like any other semi-automatic weapon where it's one pull, one bullet, one trigger pull, one bullet. Boy, if I'm on the losing side of one of these,

I'm certainly not gonna try to go to the Supreme Court. And I don't even know, like, what do you do to try to avoid Supreme Court review, knowing that you're going to lose at the Supreme Court? Yeah, this is fascinating to me, Sarah. It's absolutely fascinating because, you know, Kavanaugh and his concurrence makes this interesting point that these kinds of weapons are legal in 41 out of 50 states. They're the most popular weapon rifle purchased in the United States, AR-15, and those weapons

adjacent to an AR-15. I should be very clear. I said rifle, not most popular weapon. And so from this standpoint, if you look at Supreme Court jurisprudence emerging as this text history and tradition is we don't want unusually dangerous people having weapons and we don't want unusually dangerous weapons in the streets, then the unusually dangerous element of this becomes very interesting when you have, say, 41 out of 50 states allowing this weapon.

The popularity of this weapon is extremely high. And so the question then becomes, okay, what is the constitutional standard gonna be around individual types of weapon? And I can't help but think that part of what's happening here is there are members of the court, some members of the conservative majority of the court who don't like these cases, Sarah, and would really prefer to not be

adjudicating what specific type of rifle you can own, and would really rather leave it to the political process, so long as you can own some kind of handgun, some kind of ricel, some kind of shotgun, but really want to leave that. This is what I just keep coming back to this is, is this a symbol that they want the political process to work this out? And they're gonna keep bumping these back

unless somebody says you can't own a rifle, or somebody says you can't own a shotgun, or you can't own a handgun, sort of categorical type bands. And I don't know this could be completely wrong, but part of me feels like there may be saying, we don't want to, it's not actually unusually dangerous weapons.

It might be what you might think of as extremely dangerous weapons, which is not the same thing as unusually dangerous, that there's not gonna be a constitutional right to the extremely dangerous weapon. We'll leave that to the political process. I don't know where this is all gonna come out, but after a while, when you have these assault weapons bans

coming up to the court just continually, again and again, and we still haven't had a cert grant on it. I don't know. I don't know. That's kind of where I'm leaning, and that's just total pure speculation worth nothing. But that's where I am. All right.

Let's look at another one of these. Here we have Justice Gorsuch joined by Justice Thomas, dissenting from the denial of CERT. I will read from Justice Gorsuch joined by Justice Thomas, dissenting from the denial of cert. I will read from Justice Gorsuch's dissent here. For centuries, Western Apaches have worshipped at the Oak Flat. They consider the site a sacred and direct corridor to the creator.

It is a place where tribal members conduct religious ceremonies that cannot take place elsewhere. Recognizing Oak Flat's significance, the government has long protected both the land and the Apache's access to it. No more. Now the government and a mining conglomerate want to turn oak flat into a massive hole in the ground.

To extract copper lying beneath the land, they plan to blast tunnels that will result in a crater perhaps a thousand feet deep and nearly two miles wide. It is undisputed that the government's plan will permanently destroy the Apache's historical place of worship, preventing them from ever again engaging in religious exercise at Oak Flat. Seeking to halt the destruction of the Apache's sacred site, Apache Stronghold, a nonprofit organization sued under the Religious Freedom Restoration Act of 1993.

That law prevents the federal government from substantially burdening a person's exercise of religion unless that burden represents the least restrictive means of furthering a compelling government interest. In a sharply divided en banc decision, the Ninth Circuit rejected Apache Stronghold's challenge that the government's plan will result in the destruction of an ancient sacred site.

The Ninth Circuit reasoned that the plan does not impose a substantial burden on religious exercise. David, they denied review, meaning Apache stronghold loses, RFRA loses, and Oak Flat will be destroyed unless there is political intervention at this point. On the one hand, not surprised, of course, to have Justice Gorsuch writing this as it involves a Native American tribe and their rights. But there's something more interesting about the denial to me. You would think that the court would want to find a case, especially a RFRA case, where it's not about a majority religion. It's not about the Catholic charter school, for instance. Not

that that was a refer case, but you get my point. And here you have a religious practice by a very, very, very minority religion, and they denied it. So I actually am surprised that they didn't take this case. I'm surprised there weren't four votes for this. But I was curious what your reaction was. This is your bailiwick, so to speak. Yeah, I'm a little bit surprised as well. I mean, look, if I agree with Gorsuch on this, and it's interesting, it felt like a throwback because for a long time,

when I first started getting interested in religious liberty, it was after the Employment Division B Smith case, which was not about a majority religion. It was about peyote use and Native American rituals. And so that's not a majority religion. Then you had some cases like Church of Lakumi Babla I, not about a majority religion. If you look back a lot of religious liberty jurisprudence prior to the modern culture war era,

they were not about majority religions. There's a lot about Native American religions and other things. And this is where you actually had a stronger, you had the compelling governmental interest. You had strict scrutiny applied and free exercise cases. And so this was like a throwback. And one of the interesting things about throwback religious liberty was,

even though strict scrutiny allegedly applied, religious liberty would often lose at the court, at the Supreme Court. And so, yeah, I'm surprised as well that this was not taken. I'm a little bit surprised. This wasn't taken. A little bit surprised. The assault weapons case wasn't taken. But yes, this was a throwback. And it's one of the reasons, by the way, that the religious liberty bar, say 30 years ago,

when I was first getting interested, like a convention of religious liberty lawyers could fit in a phone booth. Because the number of people who are like really concerned about say Native American religious practice or religious practice by smaller immigrant groups, et cetera, just not had very little popular resonance. It was only when religious freedom got incorporated into the big democratic versus republican partisan war that the religious liberty bar just really started to explode into these large, large, multi, multi-million dollar organizations.

But hey, the religious liberty concerns of minority and smaller sex still remain. So, like you, I'm surprised. I mean, I think that we're gonna see the continued decline of the number of cases that the Supreme Court takes. You know, we've talked about diversity on the court. You have, in some ways, more diversity than ever on the Supreme Court, if you're looking at race and gender. And in many ways, you have the least diverse court in the history of the United States,

whether you're looking at religion, what schools they attended, what jobs they had beforehand, what regions of the country they're from and or sort of what their childhood experience was like. No diversity whatsoever. I mean, we're literally having to distinguish between New Yorkers at this point, between Sotomayor and Kagan. Justice Jackson was born in DC. You have Kavanaugh and Gorsuch going to high school together. This is not a very diverse group of nine people in that sense. And so you hear complaints out there about the commercial litigation bar, that they're

just not really interested in those because they're so interested in these larger questions of law, law professor type stuff. And then even when you get to those questions, I think you have the institutionalists on the court worried about the legitimacy and controversialness of the court. And so fewer and fewer cases get taken. Fewer circuit splits get resolved. Fewer just cases that are important for sort

of the rule of law get resolved if they're on that commercial litigation side, which is the vast, vast majority of litigation in the country. Certainly when we're talking dollar value and economic impact. All right, David, we're going to end with a little piece of breaking news. The Blue Book just released its newest edition. I know that we should have put that at the top of the show, right? This is how lawyers make format all of those footnotes and citations.

The blue book is a big deal. And it will also age you depending on which blue book you have next to you right now. But this- And I'm sure all of our listeners have a blue book right next to them now. Sure they do. So the editors of the newest edition have created a new parenthetical, David. That's right. Siren, siren, new parenthetical in the blue book.

It's citation modified. So it looks like it's the same as that cleaned up parenthetical, but they didn't actually adopt cleaned up. Instead, yeah, citation modified. So I'm going to read you a piece of this. When a quotation includes material quoted from another source, the quotation may, for clarity, be stripped of internal quotation marks, brackets, ellipses, internal citations, and footnote reference numbers. The original sources of quotations within the quotation need not be cited parenthetically and capitalization may be changed without brackets.

Indicate these changes parenthetically with citation modified. Other than the changes specified, the text of the quotation after modification should match the text used in the source cited. If the quotation is altered further, indicate the changes or omissions according to those other rules.

Okay, so David, quotation modified is a little bit what I was being worried about with cleaned up where we were actually like literally changing things to clean it up. So it's giving you rules by which you can do cleaned up and making it citation modified. I don't know, David, what do you think? I think I'm okay with this.

I think I don't care. David, David, how dare you? Look, this is a big deal. Cleaned up already sort of told you what they were trying to do, but it actually was allowing you to perhaps modify the quotation. Quotation modified is actually only allowing you to perhaps modify the quotation. Quotation modified is actually only allowing you to clean up the quotation and not actually

modify it while giving you the word that, hey, this has been changed. There could be ellipses that were now taken out here. You're going to want to go look up back at the original if you have any questions about this. I think it's a big deal. I think this is an earth shattering development in brief writing. And how dare you not recognize it? Earth shattering.

I love it. This isn't nom David, there's rules. I know there are rules. There are rules. Let me just put it, there has to be, it is not a material enough change to rise to the level of me having an... Let me put it this way, this might come as shock to people who tune in to hear us opine. I don't have an opinion about

everything. And this is one of those things I don't have an opinion on. I really liked blue booking. I found it calming and like a relaxing activity. liked blue booking. I found it calming and like a relaxing activity. So there, there's my personality test for the day that proves that I am in fact a sociopath. All right. That's it for advisory opinions and our next episode of advisory opinions. Who knows David, there's plenty we've left on the table today and what new things may spring between now and then. Can only guess. And if you're looking for other podcasts, feel free to check out Jonah

Goldberg's remnant from last week. He talked to Jake Tapper and Alex Thompson about their book on Joe Biden, original sin. And can I say that was a really good pod. I listened to it. It was, it was very it. It was very good. Very, very good. Jonah asked some great questions.

The answers were, yeah, just listen.