Advisory Opinions - The Collision Is Coming

Episode Date: April 17, 2025

Sarah Isgur and David French discuss the ongoing saga of Kilmar Abrego Garcia’s illegal deportation and what’s next for the man currently in a notorious El Salvadoran prison. The Agenda: —SCOTUS order: effectuate vs. facilitate —Emergency docket scorecard —Turnover at the solicitor general's office —MAGA's legal strategies backfiring —Tariff lawsuit in California challenges executive power —Papa Musk 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

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. Sorry we didn't have an episode earlier this week. Well, some life got in the way, but don't worry. We've got plenty to talk about today. So we're going to jump right in to the Albrego Garcia emergency docket Supreme Court order that we got last week.

The difference between effectuate and facilitate. Get your thesaurus out. We've got an emergency docket scorecard from Professor Jack Goldsmith, friend of the pod. We've got an emergency docket scorecard from Professor Jack Goldsmith, friend of the pod. We'll talk about a little bit of what's going on at the Department of Justice as everyone seems to be leaving voluntarily or involuntarily. Finally, a tariff lawsuit filed by the left. And we've got to talk about our very cool episode coming next week, David. But before we jump into any of that, we're actually back on the oral argument schedule

tomorrow and there's some really interesting cases coming up. So just to remind folks of what we're waiting for, that transgender kids' health care case, does Tennessee's ban on gender-affirming medical treatments for transgender minors violate the Equal Protection Clause of the 14th Amendment. That was argued back in December. You know, we're going to start having those opinion hand down days. So we'll be watching Thursdays at 10 AM, basically,

sort of hitting refresh for that case. There was also the age verification porn case, David, that was argued in January. I'm not really expecting that one in April, but you never know. Cases that we are waiting to hear that will be now for next week and the week after. Taxpayer funded religious charter schools. Can the government fully finance a religious school? Preventative health care treatments under Obamacare. Is the government task force that decides what preventative services health insurers must cover at no cost

unconstitutional and opting out of LGBTQ stuff at schools do parents of public school children have a right to opt out Their kids from classroom discussions of books with LGBTQ themes we've also got for instance that LGBTQ themes. We've also got, for instance, that Mexico, can Mexico sue US gunmakers? But that was just argued. That's not coming out anytime soon. Can innocent victims of wrong house raid conducted by federal law enforcement sue the government for negligence? Or does it have immunity? That one's getting argued here in April. And California car emission

standards and EPA authority authority again, also getting argued. So we've got actually a lot of arguments to cover in the next two weeks, David. Buckle in. There's going to be a lot of shower phone time for me. This, I'm really looking forward to this for a couple of reasons, Sarah. One is a lot of these cases are very interesting. They are sort of in the one hand, kind of classic culture war cases. If you're talking about the relationship between religion and schools and things like that. But they have twists on them. These are more edge cases, like a religious charter school is really a very different thing from the private school cases we've been looking at because charter schools are typically considered

public schools. That's going to be one of the key issues in the case. And the other part of it is, so you've got some really interesting cases and none of them are just right in that narrow lane of Trump administration law. And there is stuff going on in the world that matters that is not in that narrow category, or shouldn't say narrow category, not in that category. And so, I think it'll be great that we're going to be breaking into the regularly scheduled legal drama that we're enduring now to pay attention to previously scheduled legal drama. That's right. And also, let's not forget, there are still cases we're waiting for on the emergency docket,

including, for instance, the birthright citizenship question that was, again, not really about the merits of birthright citizenship question that was, again, not really about the merits of birthright citizenship, but nevertheless. So David, let's hop into the drama of the Abrego Garcia case, kind of where we left off. So remember, this is the story of Kilmar Armando Abrego Garcia. He came from El Salvador illegally into the United States where he is now married and has U.S. citizen children. He received an order of protection giving him protected status so that he would not be removed to El Salvador where he claimed he could face violence from another gang.

The U.S. government introduced evidence that he, in fact himself, was a member of MS-13. The United States said that they removed him to El Salvador as the result of an administrative error, but they say he was a member of MS-13, a designated foreign terrorist organization, and that his return to the United States would pose a threat to the public.

Our Brigo Garcia responds that he is not a member of MS-13 and that he has lived safely in the United States with his family for a decade and has never been charged with a crime. This goes to the Supreme Court, David, after the district court said, you need to get this guy back, basically. So here's what the Supreme Court said in their unanimous decision. This was a 9-0 decision, although we did have a separate statement from justices Sotomayor joined by Kagan and Jackson, where basically they say, yeah, you need to facilitate the return of Mr. Obrego-Garcia. But, and I'll read this part, it says, the district court's order remains in effect,

but requires clarification on remand. The order properly requires the government to facilitate Abrego Garcia's release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term effectuate in the district court's order is, however, unclear

and may exceed the district court's authority. The district court should clarify its directive with due regard for the deference owed to the executive branch in the conduct of foreign affairs. For its part, the government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps." David, it's now been several days, about five days, since the Supreme Court issued that decision. It's not going great. This feels like the two siblings fighting in the back of the car. Dad tries to sort of issue a broad order to the back of the car of how things

are going to work out, and the siblings go back to slapping at each other. So you have the government saying that the word facilitate only means removing domestic barriers, i.e., and literally, if Abrego Garcia shows up at an airport or at the southern border, they will let him enter the country. But facilitate in the government's views does not mean that they need to call El Salvador or anything else related to that. They're really distinguishing between facilitate and effectuate. Effectuate, they agree, would mean that. But, of course, you get into this very sticky situation where he is now, as we discussed in our previous episode, this isn't like Gitmo. It's not US custody in El Salvador. It's El Salvadorian custody in El Salvador

being paid for by the U.S. And so, yes, it would involve, quote unquote, foreign affairs to call the president of El Salvador or anyone else in El Salvador for that matter and ask for the release of this guy. They're saying all of that is covered under the word effectuate, the very word that the Supreme Court highlights as exceeding the district court's authority, And that therefore, if you're having to distinguish

the word effectuate, meaning get it done from facilitate, allow it to happen, that therefore they don't really need to do anything. The district court's having none of that. And the district court now wants intense discovery into what if anything they are doing to comply with her order to facilitate his return. And we're off to the races. Yeah, a couple of things. One, I think you're exactly right to talk about it as a broad directive. And giving the district court a kind of a broad directive to clarify a previous

ruling in light of a Supreme Court decision is a normal thing that's done I've seen a couple of people try to fault the Supreme Court for not giving specific a set of specific Specific actions that the Trump administration Administration should take or specific steps that the district court should order But I'm not quite sure that the Supreme Court had before it the kind of record evidence that would allow it to make that direction. That's classic district court stuff.

This is saying yes to the broad issue of does the Trump administration have any obligation here? And I think there is, if we're gonna talk about the difference between facilitate and effectuate, I don't think that... I'm going to go out on a limb here, Sarah, and I don't think that this is a good faith interpretation of the word facilitate, especially in the context of treat him as if, you know, treat him as if the circumstances were that he was not being, you know... In other words, redo this thing.

What they're interpreting facilitate is acquiesce. In other words, acquiesce to letting him in the country. That is not what is intended here at all. Not even close. So we do have a situation where I think there is a bad faith response to a rather normal Supreme Court kind of order, but it's a rather normal order landing up against a very abnormal administration. And I agree with those people who say, look, this isn't exactly the Trump administration defying the Supreme Court. It's

the Trump administration defying, playing games with, acting in bad faith towards a district court. What it is, it's the Trump administration defying, playing games with, acting in bad faith towards a district court that's trying to effectuate, I'll use the term effectuate for this, effectuate a Supreme Court order. And so that's what's happening. And it is not the direct defiance of the Supreme Court, but it's also a bit more, Sarah, than just sort of saying in response to a district court decision with no Supreme Court order behind it at all. It's not the same as just being defined

towards a district court when the action has just been filed. It's really, really, really troubling. But I also at the same time don't think, the way I'm putting it in the first line in the newsletter I'm writing it like in the first line in the newsletter I'm writing is the collision is coming. I don't see this as the collision yet, but I see a collision coming. Yeah, I

Totally agree. This is not the collision. They are not ignoring a Supreme Court order I also think that this is trickier than what a lot of people are allowing for I also think that this is trickier than what a lot of people are allowing for. Meaning I agree with you on the word facilitate and the word effectuate. But what exactly does that then allow the district court to require the government to do? It can say you need to try, but like if we all agree that a court cannot order the government to offer El Salvador money for his return or say that they'll withhold money if they don't return him, for instance.

All things that I think we believe that a district court absolutely cannot order. I don't think the Supreme Court could order that. Do you think the Supreme Court could not order them to withhold all or part of the six million directly aimed at imprisoning those individuals. I feel like they could. And I also- In the right circumstance, actually, you're right. I agree that you could give an order. Wow. Ugh. It would have to be a unique circumstance. The point being, let's take a far worse scenario, David. There's a US citizen that's being held by a foreign government in, you know, contravention

of US law. But the only way to get them back is to negotiate with that country. The courts just cannot order the president to negotiate with that country. You can't negotiate with terrorists type thing. The courts can't change that underlying fact. And so back up from that scenario to this scenario. But I think it's a different thing than sort of saying, okay, there's a, like, let's go with, do you remember when, years and years and years ago,

oh gosh, I just might have a memory that might be so young in your childhood, Sarah, that we don't share it. That, do you remember, well, this may have been, you may have been old enough when a kid was arrested and was at Taiwan and he was going to be caned in America. Yeah, of course, for chewing gum. Yeah. I can't remember exactly what it was, but he was going to be caned.

No, he was vandalizing and stuff, vandalizing cars and graffiti, I think, or whatever. Right. But the narrative was like, it's illegal to chew gum over there and stick gum on something, I think. Right. So there's a huge difference between saying, hey, we're going to order the US government to intervene in Singapore and try to extract him from custody to prevent the caning. And if the administration had caught a person vandalizing, putting chewing gum like on the speaker's door in the US Capitol, and because you can't really do much, it's just a little light vandalism slap on the wrist. They get him on a plane, fly him to Singapore, four caning him, and then say, you can't ask

us to do anything to bring him back because that's our foreign policy. That's a different thing. I think that what we really need to think through this on is, look, we're already getting Trump saying, yeah, I want to get some of the most heinous American prisoners over there. That you know, he's openly musing about sending American citizens there. And I feel like maybe we're taking this a little, you know, that sort of the body politic might be taking this a bit too casually.

But for a couple of reasons. One, he's deportable. So people are going to think, well, he's going to be out of the country anyway. And number two, a lot of people have really imbibed this sort of administration talking point that he's a really bad guy. And so we're operating with bad man stays in jail sort

of mindset when the reality is if all the court can do is ask a president to ask another president, and how sincere would the ask be, to return somebody who's been taken out of the country in violation of due process rights and landed in a location where there is Eighth Amendment inhumane treatment issues, this is a rough moment, Sarah. Is this the moment where you say, okay, now we figured out how you can actually hack the Bill of Rights?

I know. And I'm the one who gave the wild hypothetical, but we aren't there. But I don't know what the Supreme Court could order vis-a-vis a US citizen who is now being held by a foreign government, because we give lots of foreign governments foreign aid, for instance. And I don't know that the Supreme Court could order, you know,

you're no longer allowed to give foreign aid to that country because they're holding a US citizen. I take your point that what about the complicity, if you will, here? Yeah. But you almost want to strip away everything and just ask, could the Supreme Court issue an order banning the executive branch from providing foreign aid dollars to a foreign country? And I think the answer to that is just no. That's why I say I can come up with a scenario where you can bar the money from being exchanged to El Salvador for the prison, but it's not coming up in this scenario. It's unlawful for you to pay for a foreign prison that is running

at American command, for instance, things like that, but not for the purpose of getting a foreign government to do something. I don't think the Supreme Court can issue that order. So, that brings us back to, I think, the really hard place that the district court is in and that the government is in. Take away that- The government's not in a hard place. Hold on, hold on.

Take away their sort of our presumption of bad faith that I think has been well earned at this point. And imagine that they're just wanting to protect the prerogatives of the executive, which past administrations have absolutely done. Like you know, the courts are asking for something pretty easy, but the executive branch says we're not doing that because it is an encroachment on our authority, for instance. So take away the bad faith part. And instead, you have the district court saying,

you must engage in diplomacy with a foreign government to get this guy back. I could see any presidential administration saying, actually, no, this violates the separation of powers. It encroaches on the prerogatives of the executive branch. You can't order us to do it and pound sand. I could not see any other administration doing this in this circumstance. And the way I qualify that within this circumstance is that they admitted to the court that they

did this in error. This was a mistake. In any administration, I think, that I'm aware of in American history would try to effectuate his return voluntarily. Yes, yes. Totally agree. But that's separate. I agree. Every other administration would just try to get him back on their own accord.

Right. But assume for whatever reason, like they don't think they can or it would they can, or El Salvador's asking for too much money or whatever else. I think if a district court ordered them to do it, to effectuate the return, I think lots of administrations would say, nope, violation of separation of powers. We're gonna try to do whatever we're gonna try to do on our end, but you can't dictate how that works.

I could see, let's suppose the district court had a menu of options, and one was, withhold the money that was going to be paid to hold this person, which is directly related to the specific act in question. I would think almost any administration would be okay with that. I agree with you that an administration

would not be okay. No, again, under these circumstances. Under these circumstances. No. And so, no, I totally, because again, but what we're talking about is a fantasy world, because if an administration is gross enough to take the initial act that it took, then we're already crossing a certain threshold and Rubicon of bad faith. And so the comparators are really hard to come by here.

This really is a situation that I don't know of its like, to be honest. Well, that's certainly fair. Okay, Martin, let's try one. Remember, big. You got it. The Ford It's a Big Deal event is on. How's that? A little bigger. The Ford It's a Big Deal event.

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the district judge in this case has ordered discovery from the administration, meaning you've got to answer all these questions and turn over a lot of documents to show what you have done to date. By the way, I think that is within the district court's power. You can ask what they've done so far. I just don't think you can force them to do much. And so we'll see how that discovery fight goes, whether the government complies with that. But David, this is another point that I think is worth making about the collision. For the most part, and I can think of some exceptions, but broadly speaking here, the collision can only really happen between the administration and the Supreme Court.

Because if you have a district court that orders something and the government refuses to comply, they're appealing that order. It's going through a whole process. So like, even if they were, quote unquote, ignoring a district court order, refusing to comply with a district court order, I don't know that I would even say that we're at collision territory yet, because I don't want to say it's normal or anything else, and it's all going to depend on the facts and the circumstances. But by and large, what I think of as a collision is the Supreme Court saying, do X, and the administration saying no. Here, I think you have what Professor Goldsmith refers to the

temperance and prudence of the chief justice. He is not yet willing to tell the administration to do X. Facilitate is not a term of art, right? It's just a word. Facilitate his return means I'm giving you a lot of discretion. You know what I want here? Get this guy back. Yeah. But if they don't get him back, it's gonna matter a lot as to why they couldn't get him back, what they did to try to get him back.

They're not ignoring a Supreme Court order, even if Abrego Garcia doesn't end up back here in two weeks. You know, here's an interesting conceptual question, Sarah, because one of the reasons why we say the Supreme Court can't order a president to say halt foreign aid, et cetera, is because we look at the executive power of the president. This is an Article II issue.

This is the executive power of the president, right? But Article II is not supreme over the Bill of Rights. It's not. And so, I don't think we should presume that courts would find Article II to be supreme over the Bill of Rights. That's why I emphasize the complicity element. I do not think you're going to sit here and say, well, at the end of all of this litigation,

we're going to end up with this world where I said, okay, the Bill of Rights have now been officially hacked. As long as a president is going to be able to put people on a flight and send them to a foreign prison, then he can wash his hands of it. And the only remedy, the only remedy is going to be impeachment and removal. That strikes me as an utterly intolerable outcome to the core of the American Constitution based on what is actually, the obligation to protect due process is quite explicit. The obligation to protect free speech, free exercise, religion, the Eighth Amendment,

prohibitions on cruelty and unusual punishment, quite explicit. Whatever you want to say about the executive power designation in Article 2, a lot of that is implicit. The argument around a unified executive theory, a fear that a lot of Fed Soc types and originalist types have gotten so high on their own supply about it that I think they tend to forget that they're basing all of this on a pretty vague sentence. It's a pretty vague sentence that has a lot of room for historical debate. It's a certainly more vague sentence than the explicit prohibitions against, say, for example, inflicting cruel and unusual punishment.

I'm not 100% sure that in a clash between the explicit elements of the Bill of Rights and the implicit elements of unified executive theory, that the Supreme Court's automatically going to defer dramatically to the executive. Now this Supreme Court might in part because the actual individuals in the court have had much more experience, say, in the executive branch and have a sort of a history of believing in that executive zone of autonomy. But it's just a pure constitutional matter. I'm not so sure that the implicit is going to trump the explicit, nor necessarily should it.

I disagree. We just fundamentally disagree on this case, I think, David, which is fun. I in fact, because so many of the duties and obligations of the executive are in that broad, implicit language. I think they are unencroachable. They are political questions. So it is not lawful for the president, for instance, to use this prison in El Salvador to house US criminals, for instance, US citizen criminals. You would otherwise be sent to a federal prison and instead they're sending you to El Salvador? No, guys, don't worry about that to the extent that you don't think that's protected by US law. Of course it is. There's statutory issues, due process issues, all,

there's plenty of stuff. Now, the problem, David, that we're talking about is what if he does it anyway? And at some point, you run out of law. And this has been something we've talked about, maybe not enough. At some point, the rule of law, the separation of powers, cannot prevent tyranny. Only the American people can prevent tyranny. Only the system that they handed us can prevent tyranny, not the institutions themselves.

So at the end of the day, if you're asking, President Trump willfully violates the Constitution and refuses to do anything about it, make the Supreme Court fix it. Like, they don't have an army, guys. So, no, like, it's not going to work that way. So you get to this parade of horribles and we get all these emails from people of parade of horribles. And at some point, those questions are interesting to me because the whole system broke down. There is no more rule of law. We're not following a constitutional structure. We're not just having disagreements over what the Constitution mandates.

You've elected someone who chooses to ignore the Constitution. Well, then we're done. So we don't need to deal with that, if you will. I 100% agree with you that all of this ultimately depends on the American people. Because the only question that I have is what does the Constitution permit the Supreme Court

to make an actionable ruling? The key question is not whether the Trump administration will comply. And I think my answer is no. Well, in the hypotheticals you were giving where could the Supreme Court in this case tell the US government to withhold funding? I do not think they can.

And you think they can. So I don't think it's a question of can or cannot. I think it's a question of will or will not. Because they are the decision maker. Yeah. Yeah. But I think constitutionally, they cannot. And I guess I'm completely stumped as to how the actual text of the executive power of

the United States shall be invested in a president is so encompassing, so immense, especially when the president has actually sworn enough to uphold and to protect and defend all of the elements of the Constitution. How that sentence is so related with import that it's going to mean, okay, you can't even order a stop payment on a payment that is being done to facilitate an illegal circumvention of the Bill of Rights. Well, let me jump into the specifics of this case as well, because legally, I think they're just, the administration's doing some really stupid stuff.

So for instance, one, they had the Secretary of Homeland Security at this prison in El Salvador, showing at least a certain amount of access by senior US officials to this prison. So this idea that you have to engage in foreign policy, that they are not only not custodians of the prisoners, but in fact have no access to them without engaging in foreign policy.

Like, I would not have any US officials going down there. Like, that's what you're going to try to argue in court. Second, they had the president of El Salvador come visit the White House and speak to the press, at which point he said about, uh, he said he had no intention of releasing El Rigo Garcia to the United States. He said, the question is preposterous. I don't have the power to return him to the United States,

which seemed to imply he meant, how would I return a criminal, smuggle him into the United States? Oh, that's a bad answer because that means you're not facilitating his return. I mean, making it clear to the government of El Salvador that he is allowed back in the country. So even if the court can't order them to, for instance,

pay money for his release or withhold money for his release, they absolutely can say, you must make clear to the government of El Salvador that he was sent mistakenly and that he is allowed back in the country. So what you wanted the president of El Salvador to say if you're this administration is, I won't return him unless the US government gives me something in return. Then the court's hands are tied, right? Because then the president of El Salvador is saying, you have to engage in diplomacy, you have to negotiate with me, and in the same way that I don't think the court can make the government negotiate with terrorists or pay money to some country for the return of US citizens who are being held

in many foreign countries, by the way, US citizens being wrongly detained. The courts can't order the executive to do anything about that. So if the president of El Salvador said that, then I think the administration would have the upper hand in this. But the fact that they allowed him to say, I am not allowed to do it, huge, stupid, stupid legal move for the administration. Oh, it's a farce. It's an absolute farce. You're watching that because you realize if the administration disagrees with a foreign leader

in the Oval Office, we've seen that before. They will absolutely chew them out. Like Volodymyr Zelensky. They chewed him out because Zelensky was pushing back ever so slightly on a really stupid point that JD Vance made. And so they wear him out in public. Bukele comes in and he's like, oh, I would, you know, it's preposterous. I'm not going to smuggle a terrorist back into the United States.

And if there was a point of disagreement here, Donald Trump could have said, Mr. President, we mistakenly sent him and we're asking for him to come back to the country. That's an easy ask. And look, we all know, we all know who holds the cards here. We all know that if Trump wanted him back, he comes back. I mean, this is the thing that's kind of the not funny joke behind all of this is that we all know the kind of power that Trump exercises in this relationship and how much Bukele values this relationship with Trump and how much it gives Bukele power in the region and around the world and regard, he's desperate for Trump's approval. This is not a situation like launching a trade war

with China where Xi Jinping has, or even launching trade wars with Canada and Mexico who are not even as dependent upon the largesse of Trump as this guy is. So it's just such a joke. And that's what makes the legal analysis in some ways, Sarah, kind of just tough to walk through because, yeah, we need to talk about what the law actually is or what the law may be or should be at the end of this. But at the same time, one of the parties

is like treating it as just clowning the process. Now, we'll see if that persists all the way to the Supreme Court, but they're unmistakably just clowning the process. Now, we'll see if that persists all the way to the Supreme Court, but they're unmistakably just clowning the process, right? This is where Jack Goldsmith's point on temporizing and prudence, like that's what the Chief Justice wants to steer the ship of the Supreme Court and the Article 3 courts through this time by, you know, when you fish, David, like deep sea fishing, and you throw out your line and you reel it in a little and then you let out your line and you reel it in a little, and then you let a little out, and then you reel in a little more,

and then you let a little out, it's sort of a two steps forward, one step back way of fishing. That's what I think the Chief Justice wants here. Like, let's play the long game. You know, we need to respect the executive power and make very clear that we're respecting the executive power,

and then reel in more and like demand more and I feel like here you see the Supreme Court doing that and the Chief Justice desperately hoping that the district courts will take a cue from him. And the district courts not so much taking a cue from him and instead pounding their fists on the table and kind of getting into this. and instead pounding their fists on the table and kind of getting into this, you know, spitting match with the administration that I think is a mistake. By the way, Jack Goldsmith also in this piece from his newsletter, Executive Functions, had a scorecard on the emergency docket so far. For him, it's two victories for the administration, one loss for the administration, two split decisions, and a non-decision, that special counsel case that you and I didn't really cover. So out of six cases, two wins, one loss, two split decisions.

That is exactly what I mean about this fishing metaphor, right? Like, let the reel out a little bit, now reel it in, reel it in, reel fast, reel, okay, let it out a little bit, reel it in. Like that's what the emergency docket looks like to me. And I like the temporizing and prudence headline because I think that's certainly the message you're getting from the chief. And you will notice the other justices falling in line when it comes to this. These decisions, time and again, have been 9-0. 9-0 on on process due, nine zero on the facilitate,

not effectuate, nine zero on- Due process at habeas petition and due process before deportation to El Salvador. Yeah, nine zero and you can challenge the application of alien enemies act. So on these very, very core issues, it has been 9-0. Next up, David, I wanted to talk a little bit about what's going on with the lawyers at the administration. So the Solicitor General's Office has 16 basically senior lawyers, the ones who argue before the Supreme Court. There's now reporting that eight of the 16 have left or are planning to leave in the near term. Now, they're not marching out in mass or signing some letter

about how we hate the Trump administration, that's why we're leaving. They're retiring or moving on or Ed Needler who's been there forever and ever. There's never been a DOJ that I've known without Ed Needler in the Solicitor General's office. He's leaving. But when you're losing half of your people who argue before the court, that's just going to have an effect on the workload. And, you know, I think you're seeing that across DOJ. So remember that immigration attorney that we talked about who they put on administrative leave for not being zealous enough in the hearing about this case, basically admitting the error of sending him to El Salvador but saying the court didn't have jurisdiction, for instance. That was the argument he went in with. They put him on administrative

leave. You know, my take on that David was that, yeah, he was not zealously advocating. They have since fired him. They also, for instance, this made some news, my sort of best career guy at the Department of Justice, I asked if he would take on the Mueller Special Counsel work and be the comms guy for that. They fired him last week as well. Now if you're sitting there listening and saying, how is that legal?

These are career civil servants? You're right. It's almost certainly not. And in a year or two, when they make it through the Civil Service Review Board process, they'll get back pay. But here's the thing, the administration's fine with that because it's not their money.

These are taxpayer dollars that are gonna get paid out to these people. Instead, it's having a real chilling effect. Going back to that zealous advocacy question, David, whether it's the immigration lawyer or the Solicitor General's office, I mean, you know this as well as anyone. When you go into a judge, you have a strategy.

In that immigration case, for instance, they had a meeting beforehand about what he would say. And the strategy was, hey, let's see if we can win on this jurisdictional point. We want to focus on the jurisdictional point, give away everything else, and let's just try to get it out of this court. As at least according to the folks around, there was no political appointee in that meeting. They were invited, they didn't come. So they didn't weigh in on that strategy. And maybe that wasn't a zealous enough strategy. Maybe it was a bad political strategy, even if it was a good legal strategy. But it was a strategy. And I think if you have the political

folks saying, no, everything must be advocated to the maximum argument, even if it means we lose, like we don't care so much about winning, we just want the political points. And what you saw Stephen Miller say afterwards was, the only mistake we made was sending in that lawyer into the judge, not the mistake of sending Abrego Garcia to El Salvador. But let's be clear, DOJ hasn't changed a single briefing. They have acknowledged error, because they couldn't otherwise, there was an order. They've acknowledged error in every filing. They haven't amended any filings.

Like Stephen Miller is just making claims on TV that they're not making in court. But then they're firing people for not being zealous enough. And I think you're just going to see a lot of people at DOJ who are like, you know, I want a career after this. I want credibility after this. I want credibility after this. The whole point of being in the Solicitor General's office is to maintain that credibility with the justices and sometimes the lower court judges that they argue in front of, though rarely. And if I can't do that, and if instead you're going to tell

me to basically throw my case for the press release, then it's not the same job I signed up for. So I'm, what's the point? And that just means the work is gonna pile up and pile up because there aren't gonna be attorneys there and they're gonna make mistakes. Well, you know, and this also illustrates how much MAGA has become this very online centered movement that they're trying to move all of the online tactics

into the real world. And this sort of maximum resistance, I will never apologize for anything. The truth doesn't matter. I think it's hilarious when I lie to you and I succeed at lying. Like all of these things that are just core elements of like MAGA Twitter culture, they're trying to incorporate wholesale, including into court, to this idea that, well, I'm going to have maximum resistance on all points in the case, which a first-year litigator learns can often be extremely counterproductive, just extremely counterproductive in front

of a judge. Conceding of points can build credibility. In fact, this is one thing that, as you've noticed, Sarah, that administration lawyers have been doing. So for example, in the case involving the five Venezuelans and the class action, that case, the administration lawyers did concede to some due process in court, even as the administration in public was saying,

no due process, no due process, no due process, in court they were conceding a point. You wonder about what's going to be the effect there. As soon as judges learn, for example, that if they're conceding a point in court, they may not actually be conceding the point. What the lawyers tell judges may not actually end up being the administration's position if the senior handlers of the lawyers or if the political bosses of the lawyers hear about the court argument and later decide it wasn't what they would have preferred.

This is, again, we're getting into situations that I have not seen before, but you're exactly right, this sort of mindset that says, you're gonna have to do everything to the maximum seems to be the administration's ethos and it will backfire in court outcomes. It will backfire. Now, of course, backfiring in court outcomes doesn't matter if you don't comply,

but it will backfire in court outcomes. Next up, David, there's been a lot of discussion over like, where are the lawsuits on the tariffs? Yes, there was the one case with the woman who makes day planners in Florida. And there was another case brought by a professor at George Mason University, but same thing, right? They were like sort of small ball clients.

And like, they were also both brought by conservatives. Where are all the blue states who are suing Trump, you know, every day of the week sort of small ball clients and like, they were also both brought by conservatives. Where are all the blue states who are suing Trump, you know, every day of the week during the first administration? Well, guess what? We finally have a lawsuit from California. Good old Gavin Newsom showing up here. David, they're making the arguments that you'd expect, right?

That AIPA, that Emergency Powers Act that we discussed a few episodes ago, that Congress didn't give the power to set revenue based tariffs to the president and that they couldn't give the power to set revenue based tariffs to the president. Great. Non delegation, major questions, doctrine. Whee! By the way, things that the left all said that they hated and that were bad. But oh, look, when it's a different president from a different party,

now you love reigning an executive power. I'm so pleased. Thank you for joining. But David, there is an interesting part of this. Those other cases that I mentioned were all filed in the Court of International Trade. And I bet a lot of people don't know what that is and don't know why they filed it there. And California is predictably going to file in the Northern District of California. When we've talked about nationwide injunctions and venue shopping, we always mention the left sues the Northern District of California and the right sues with a specific venue in

Texas. But David, I bet a lot of people don't know much about the Court of International Trade because unlike a district court where you file there because there's some sort of regional hook, right? The person lives in Amarillo or the company does business in Amarillo or the Northern District of California, the Court of International Trade has basically jurisdiction anywhere across the country, but only on certain subjects. And I'll just read this one section of their jurisdiction. The Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies or its officers, that arises out

of any law of the United States providing for revenues from imports or tonnage, tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue. The point is, David, those guys or other taxes on the importation of merchandise for reasons other than the raising of revenue. The point is, David, those guys who were filing in the Court of International Trade are already in some ways, maybe, giving away the game on their arguments, right? Because if the Court of International Trade has exclusive jurisdiction of any civil action arising out of a law that provides for revenue from imports and tariffs, then you just said that AIIPA must be a law that provides for tariffs.

So I've been shocked that they've been filing in the Court of International Trade. That seems like a huge strategic mistake to me. Now California filed in the Northern District of California. The first thing the government is going to do is move to say that the case is improper, this court doesn't have jurisdiction and the case must be moved to the Court of International Trade or dismissed and filed again in the Court of International Trade. But in some ways that is the fight, whether this statute provided for tariffs. If so, yes, it has to go to the Court of International Trade, but then Trump, by and large, probably wins.

If it doesn't have to go to the Court of International Trade and you can file the Northern District of California, he's definitely lost. Yeah, that is very interesting, Sarah. I had not been thinking that through. That was not on my radar screen, so I was sitting there listening and learning from you as you were describing all of this. No, that is interesting. And I do think the

tariff lawsuits are going to be fascinating because, you know, again, we're going to be getting into this situation where you're going to be looking at what is a really comprehensive economic policy enacted under vague and sweeping statutes that has not been initially enjoined on an initial and early basis in the same way that, say, the OSHA mandate was enjoined early. And so this is going to work its way through the economic system for months before it reaches a climactic clash at the Supreme Court. And this gets into one of those issues where we talked about in a previous podcast, how

much does the practical effect of the ruling come into play? How much is the Supreme Court going to want to go to the exercise of unwinding a president's entire economic program. And that's what you get when you are getting into sort of these very large scale confrontations with these sort of very large scale programs smuggled into and through these, you know, when you get the elephants into the mouse holes, when the elephant goes into the mouse hole and when it goes in fully, how hard will it be to pull the elephant back out? By the way, if you're curious how the appellate process works from the Court of International

Trade, you may hear us talk about the third circuit, fifth circuit, sixth circuit. So there's 11 numbered circuits, one first circuit through 11th circuit. Then you have the DC circuit. You've certainly heard us talk about that circuit. So 12 regional circuits. But there is a 13th circuit. It is the federal circuit. Yep, that's just the name of it, the federal circuit. And they hear these appeals from the courts of international trade. And that's all they do. They do like, you know, patentee stuff, trade stuff, the nerd, really the nerd docket, David. And so we don't end up talking about it a lot. In

fact, I think on six years of this podcast, we've never talked about the Federal Circuit. You know what? I'm sorry, Federal Circuit. I think you're right. And we apologize, judges of the Federal Circuit. We'll do better. We'll do better. We promise at least one mention in the next six years. All right. So for our next episode,

we're going to have a very special guest with a very weird advisory opinions in a lot of ways. The guest will seem very normal. It's friend of the pod, Judge Amulathapar. But we're going to talk about health and wellness, David, because Judge Thapar launched publicly a newsletter, a sub stack. We have a federal circuit judge writing a sub stack on his workout routine, his diet,

his recommendations for protein powders. So we're going to get into all of that. I will tell you, David, he texted me today and said, are you comfortable with asking me what you ate today? So we're going to get into all of that. I will tell you, David, he texted me today and said, are you comfortable with asking me what you ate today? Ha! And I was like, well, Judge, I was like, this is pretty bad, right? I'm a 42-year-old mom, so for dinner tonight, I had two bananas.

Well, I am excited about this because I cannot wait to ask Judge Depar about my own personal fitness strategy and get a ruling. I have never had a ruling from a federal judge on my own personal fitness strategy. And, you know, we'll see what he has to say and whether he'll issue an advisory opinion or make it binding. By the way, kind of amazing. We'll have to talk about a little bit what he did with the ethics, you know, officers to make sure this this was all gonna be kosher. Like obviously he wants to link to products that he's talking about,

but also wants to make sure like he's not getting any money from those products. Anyway, it's all, it's very funny. It's very judge the par. So that'll be our next episode of advisory opinions. But before we go, David, there was a piece about Elon Musk and how he manages all of

his children and the future children he wants to have. It included such details as him offering a potential mother $100,000 a month and a $15 million bank account from which to draw. And I thought to myself, this is a little odd because of his whole point is that he needs to spread his genes. At one point, you referred to it as he needed to have a legion before the apocalypse. The type of women that you're getting to have your babies with like getting sliding into their DMs and offering obscene amounts of money.

And mind you, he's not raising the kids. So not only are you getting their genes, but they're also going to raise these kids. I just don't know that that's how you want your Legion brought up, but maybe you figure that's the numbers game, right? Yeah, some of them are gonna be duds, no problem. But the good ones will sort of rise to the top

regardless of their circumstances? This is a weird one, Sarah. This is a weird one. It strikes me that a man who wants to make a legion of children, and this is the word that he used in text messages, quote, legion, isn't necessarily super concerned with the individual welfare of each one of his troops. Uh, I'm just gonna go out on a limb and say.

And yeah, that, so I think he's, I'm just going to go out on a limb and say. Yeah. So, I think this might be a numbers game for a very odd man. Now, I also think it would be interesting to see sort of what would be the reaction or not, or more specifically, non-reaction from the fundamentalist Christian wing of Twitter that absolutely leaps on every story of celebrity surrogacy, every story of like gay adoption, etc., etc. But this guy, he's their sword and shield online, right? And he's out there fathering a quote, legion out of wedlock.

By the way, for what this also surprised me, but not all of them are created the old fashion way. As in, he's not actually saying have sex with me and have my baby. Many of these women did, in fact, have their children through sex. But for one of the women, at least, he was like, I'll just drop off some sperm. Wild. Wild. I mean, wild. This is what I talk about when I was talking to someone recently and they were asking me one of these questions you get from time to time about your journey quote out of the conservative movement. And as I always do, I just ask people to define terms. What conservative movement are we talking about here? Because when the two leaders

of it, the two most important people in that quote unquote conservative movement are Donald Trump and Elon Musk, I must ask what's conservative about them really? Like, please explain it to me like I'm five years old. I acknowledge they're populist, I acknowledge that they're on what we call the right now, but they are unrecognizable from through a conservative lens of any conservative lens that I understand. And so, yeah, I think it's just another simple, Sarah, of how completely different this version of the right is and has become than anything either one of us grew up with in either of the two eras in which we grew up. Not surprisingly, many of these women

who have agreed to this arrangement are now upset because they want him as part of their lives. If their kid gets sick, if the kid wants to hang out with dad or throw the ball or whatever else. And he basically has a fixer for this. And the fixer is even more fascinating, David. Devout Mormon, father of six, I think, like by all accounts, a very good guy. And he just kind of goes in and tells these women like,

don't hire a lawyer. He doesn't like that. You're not going to get your hundred thousand dollars. It's going to go down to forty thousand dollars a month. And like, huh. And like, don't complain online and don't go public. So part of the punchline of this story is, I forget how many kids we know are on the books. I think it's like fourteen. But I think there's a lot more than fourteen, David. If the incentives are $100,000 a month and $15 million draw, if you don't ever talk to anyone

about who the father of this kid is, I think there's a lot of other babies. Oh, Sarah, yeah. Oh, my gosh. Yeah, no question about that. Including ones he may not. I mean, I guess he knows if he's paying them, but, like, really, if his fixer's paying them, like, he probably doesn't really know. I mean I guess he knows if he's paying them but like really if his fixers paying them like he probably doesn't really know. No, I don't know. I shouldn't say no question of that. I should say

I would say the odds are overwhelming. Yes, exactly, exactly. Yes. Yeah, I remember and David I don't was this a thing probably at your school, but when I was an undergrad, so like in the year 2000, in the Northwestern Student newspaper, they would have ads for how much they were willing to pay for a Northwestern student's egg. And they would have like, we want someone with an SAT score above this,

or we'd like someone with blue eyes, presumably because mom had blue eyes, things like that. But I remember thinking like, huh, that's a lot of money. And 25 years later, yeah, who knew? Oh, man. Sarah, we live in interesting times. It's true, David. Well, next time we'll be talking about our protein powder shakes with Judge Kapur. And I'll be so curious because I'm not really intentionally,

it's not like a health mantra. I just like my lifestyle is such that I'm an intermittent faster. And I feel like people have really strong opinions on intermittent fasting. So I'll be really curious what he says about my accidental intermittent fasting. Until then, next,, advice for your opinions.