Advisory Opinions - The Great and Powerful President

Episode Date: January 30, 2025

With Donald Trump’s second term in full swing, Harvard Law Professor Jack Goldsmith joins Sarah Isgur and David French to discuss the unitary executive theory. Also: We need to discuss law reviews.... The Agenda: —Unitary executive theory —President Trump’s sledgehammer —Congressional oversight no more? —The Take Care clause —Interstate tariff prohibitions —Student-led law reviews: good or bad? —Expert explains cowrie shells Show Notes: —Trump v. United States —South Dakota v. Wayfair —Professor Eric Rakowski's profile —Tuesday's Advisory Opinions episode Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Transcript
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Starting point is 00:00:43 Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And have we got an amazing episode of Experts for you today. First off, we're going to talk to Professor Jack Goldsmith, Harvard Law Professor, yes, my former professor, and the author of the new newsletter, Executive Functions. It's awesome.
Starting point is 00:01:22 You should sign up for it. But we're also going to talk pardon powers, taxing powers, law reviews, and just a little fun update on the cowrie shell necklace from the inauguration. But before we get to that, very quickly, I do have a correction from the last episode. And David, I think this whole sentence is going to really summarize what we try to do here at Advisory Opinions. In the last episode, I said that Justice Alito was joined by Justice Gorsuch in his dissent. In fact, it was Justice Thomas joined by Justice Gorsuch
Starting point is 00:01:56 in the slut puppy dissent. I'm glad we corrected that. Yeah, and if you didn't listen to the last episode and don't know what a slut puppy descent is, your life is worse off for it. On to the unitary executive and Professor Goldsmith, thank you for joining us. This is always a treat to have you.
Starting point is 00:02:15 You can call me Jack now, Sarah. You haven't been my student for a long time. Hey now, that bordered on rude. Yes. This is a podcast that observes all the forms of decorum, Professor. So just so you know. You wrote this piece that I really enjoyed on the maximum executive power and the fate
Starting point is 00:02:37 of the unitary executive. And I wanted to read just a section of it so we could talk big picture what the unitary executive theory is. Unitary executive is what you wrote. That conception has four related tenets. A, the Constitution vests all of the executive power in the president. B, all subordinate executive branch officials are removable at will by the president. C, the president's article to duty to quote, take care that the laws be faithfully executed
Starting point is 00:03:06 entails an exclusive presidential power to decide which laws to enforce or not to enforce. And D, the president can thus direct and control all subordinate executive officials. I mean, that pretty much covers the waterfront of power. Can you talk about just the history of the unitary executive and how this idea came to be? Because it feels like, boy, are we living in an era of the unitary executive, no matter who's in the White House. Sure. Thanks for having me on today. So the unitary executive in a nutshell is the idea that all of the executive power, this is Article 2 of the Constitution, all of the executive
Starting point is 00:03:45 power is vested in the President of the United States. As the Supreme Court said in Trump versus United States, the President is the only person who is a branch of government. And once you think of it that way, the idea is the President has full control hierarchically over the executive branch. Part of it is based on the history of the idea. It actually in various ways goes back to the founding, but it was really given a name and kind of high-level theorization starting in the Reagan administration. A whole bunch of people, Chief Justice Roberts, Justice Alito, I guess those two were around at the kind of founding of this and I think are kind of still in that mindset.
Starting point is 00:04:31 It got going then and it started to be theorized then in a really robust way by conservatives. But the basic idea is the president gets to control everything that happens in the executive branch. The real power driving the unitary executive is the idea of removal, that the president can remove subordinate executive officials. Under the theory, depending on how extreme the version, the president can remove any subordinate official. The Supreme Court has not gone that far.
Starting point is 00:05:00 It still recognizes that Congress, at least under current law, I mean, this has been narrowing, but it still recognizes that Congress can give for cause and various protections to lower level executive officials and ones in independent agencies. One of the big issues in the next four years, Trump's new orders are really pressing on that and pushing on that as whether the court is going to maintain those exceptions to full executive branch control over removal. But removal is really the main power because if you can remove, then you can force people below you to do things because if you order them to do something and they don't do it, you just remove them and then you find someone who can carry out the order.
Starting point is 00:05:41 So the main, that's the unitary executive in a nutshell, it's full presidential control over the executive branch in terms of being able to fire and direct action. Let me just say, and this maybe is too technical, that my third thing on the list, the take care power, the power to enforce the law, that's not often included. First of all, there's no canonical definition of unitary executive. That's my definition. But that's not often included in these lists. And Ed Whalen yesterday, my friend Ed Whalen questioned whether that should be on the list.
Starting point is 00:06:10 The reason I put it on the list is because, and this is something maybe we can talk about, Trump versus United States is a hugely important decision here. It recognized for the first time that the take care power is an exclusive presidential power to some degree and that that gave the president power to, according to the court, that Congress could not regulate the president in ordering the acting attorney general to basically commit what was otherwise a crime because of this exclusive power to have discretion over law enforcement. I think that should now be considered an element of the unitary executive. But whether it's part of the unitary executive or not, it's
Starting point is 00:06:48 a massively important power that the Trump people are going to be exploiting in litigation of all this stuff. Can I just read Article 2, Section 3 that has the take care clause in it as well? We'll do a little texting. Yep. He shall from time to time give to the Congress information of the State of the Union and recommend to their consideration such measures as he shall judge necessary and expedient. He may, on extraordinary occasions, convene
Starting point is 00:07:14 both houses or either of them. And in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. He shall receive ambassadors and other public ministers. He shall take care that the laws be faithfully executed, and he shall commission all the officers of the United States." Feels a little buried in there. Brent Durand-Reed It's a little buried, but it may be along with the executive power, which is given to the president in the first sentence of Article II, and the commander and chief power. I think it's probably the most consequential article of Article 2.
Starting point is 00:07:49 The take care clause is...let me just give a little primer on that, a 15-second primer. It's the basis for the president having to comply with the law. The reason the president has a duty to comply with the law is because of the take care clause. But, and the court's never been coherent about this, it's also the clause that gives the president the authority to interpret the law for the executive branch. So he gets to decide what the law means that he has to comply with. And it's the clause that gives the president the discretion, whether to enforce the law and how to enforce the law.
Starting point is 00:08:20 So it's this multi-purpose thing. The court has never been coherent about how you can both have discretion not to enforce the law and how you can interpret the law the way you think and at the same time you have to comply with the law. The court has never been clear about that. It's said that all of these things are entailed within the take care clause. It's massively important, even though it's buried. So when we talk about this, it sounds like as you're walking through these things, if I'm just listening to you, I'm hearing you say, okay, wait a minute, all these civil service protections that we have are unconstitutional, all of them.
Starting point is 00:08:52 Dr. Cadella, M.D. I didn't say that. Dr. F. Kennedy I know, but... Dr. Cadella On the unitary exec, on the extreme unitary exec... Yes, people in the Trump administration believe that. Dr. F. Kennedy Right, right. Dr. Cadella They believe... Yes, they believe that. I think that they're clearly setting up a test case for that. They seem to believe that. Right, right. They believe, yes, they believe that. I think that they're clearly setting up a test case for that. They seem to believe that the Supreme Court is going to go along with that because the
Starting point is 00:09:10 court has to be fair, it's full of Unitarians who've been narrowing- Unitarians. As long as they're not universalist Unitarians, okay. Congregationalist Unitarian. It's clear to me, and they basically said this, that people in the Trump administration believe what you just said. Right. That is not currently what the Supreme Court president is, but they want to have test cases
Starting point is 00:09:34 and they're generating them. By the way, side point, I think they're doing a terrible job of generating test cases. The idea that the Trump administration is being more competently lawyered, I think is false. Yes, there are a lot more executive orders, a lot more, and they clearly were organized to issue executive orders. There are so many legal problems in these things that they're going to be, it's going to be haunting them down the road. So I don't think they're setting up good test cases, but they're clearly setting up test cases. They want the Supreme Court to address these issues.
Starting point is 00:10:03 Okay, so now let's get into some of the weeds. Trump fired all but one of the inspectors general within the executive branch. It's worth spending just a second on what these inspectors general are. They were always kind of a weird creation to begin with. It was this idea that there were people within the executive branch who would report, you know, tattle on the executive branch to Congress. And so presidents throughout the ages have chafed at their inspectors general and what exactly these g'vares are doing within their own branch. We certainly have had case law that you can fire, a president can fire an Inspector General, but Congress set up the means by which you're allowed to do it.
Starting point is 00:10:50 Okay, so Trump fires all but one of them. You've said probably lawful. Why? So, clearly, just a little framing. Everything you said is right. These Inspector Generals, as you say, have always been problematic within separation of powers and they're certainly problematic within unitary executive theory. Okay. But from the beginning, Congress has recognized that and it is affirmatively authorized
Starting point is 00:11:13 the president to remove inspectors general. There's an affirmative authorization in the statute to remove them. But, and there's a very thin constraint. The president has to give a reason, just a reason, and the president has to tell Congress 30 days in advance. Trump complied with that in his last term. He did not comply with that here. He did not require with the notice requirement and the duty to give reasons. He didn't comply with the statute, but under current law, for the reasons I wrote in that post, under current law, I believe that he does have the power to remove them under current Supreme Court case law because they're inferior.
Starting point is 00:11:52 This is technical, but they're inferior officers, but they have significant power and significant policymaking discretion. So I just think that, you know, that one, I don't know if they got lucky or they knew what they were doing, but I think on that one, they're going to have a good argument if it's litigated. I didn't say an airtight argument, but a very good argument, strong argument that that thin for cause provision is unconstitutional. So it sounds like, you know, the line drawing here potentially now, again, we just talked about how Trump's theory is that if you work for the executive branch,
Starting point is 00:12:27 you're an at-will employee of the President of the United States. Sounds like the other theory that you're just referring to is this idea of, wait a minute, how significant is the person? So if it's a special agent in the FBI who's two or three years out of training, they're not at that level. They don't have that kind of independent authority or that kind of extent of authority in the federal government.
Starting point is 00:12:51 So in essence, one theory is, okay, yeah, there is one unitary executive theory would be, yeah, he does have at will sort of employment power, but only over those who rise to a certain level of authority, not over everybody. Yes. And do we have a clear theory as where that line is, or is it you know it when you see it? So the...
Starting point is 00:13:15 Good question. For the strong Unitarians, there is no line. Right. If you're in the executive branch, you can be fired by the president. For the Unitarians on the Supreme Court right now, as they've been narrowing Congress's power to regulate this stuff and expanding the president's rule power, they have most recently recognized two limitations on the president's power to remove. One is so-called independent agencies, and the other with four calls removal protections.
Starting point is 00:13:48 And the other is the kind you were talking about, which is low-level officials who can be given FES or civil service protections, and those can be enforced, and the president can't fire without, and the executive branch can't fire without complying with those protections. And that's, both of those, excuse me,
Starting point is 00:14:04 both of those Trump is trying to blow through, both of those exceptions. Two questions. You've talked about the Unitarians on the court. You mentioned that Roberts and Alito were within the Reagan administration when this was sort of coming first into existence in its current form, at least. You've also said, though, that really, if we're thinking about Unitarians on the court, at this point, you've got Roberts, Alito, Thomas Thomas Gorsuch, Kavanaugh, all kind of as Unitarians and Barrett, you don't know.
Starting point is 00:14:32 Maybe. I don't know. In part, I think because he was staff secretary to President Bush and that is the person who is moving the paperwork around It's I would argue sort of the most powerful job within the White House second only to White House chief of staff But I wonder since I took the I took two classes from you But one was on the powers of the presidency and I felt like 20 years ago We were kind of Unitarians, Professor. Who is we? You and me. The two of you.
Starting point is 00:15:12 The two of you. You bonded over Unitarianism. I mean, if it matters what my views are on this, I've never been an extreme Unitary executive. I do think the president. I think basically where the lines are drawn right now, first of all, how this ties to the text of Article 2 and the original understanding, who the hell knows? But I think as a practical matter, dealing with the history of this issue and the precedents, I think where the line is drawn now is a pretty good place to draw
Starting point is 00:15:41 it. I don't think it would be, but you know, this is not a fine grained legal argument. This is a pragmatic argument that this is where the precedents have ended up and I think it's a pretty good place. I mean, I've never been a hardcore Unitarian, but I've never been an anti-Unitarian either. I'm kind of where the court is right now. Also, 20 years ago, there wasn't a whole lot of Unitarianism going on. So to be a Unitary executive person 20 years ago was a little bit, yes, David.
Starting point is 00:16:12 So is this the only growing form of Unitarianism? Yes. Just to wear this joke out, like just completely wear it out, okay. It's literally the only form. Okay, we've done the IGs. Now I wanna do this memo coming from the Office of Management and Budget. So you have this executive order coming from Trump and it says, don't spend money on things I don't want you to
Starting point is 00:16:35 spend money on. It lists Green New Deal, DEI stuff, etc. You then have, you know, look at your own spending, figure out you have until February 10th to let us know over here at OMB. They send out this memo that says, in the meantime, between now and February 10th, as you're looking at complying with that executive order, don't spend anything, quote, to the extent permissible under applicable law that might run afoul of one or more of these orders. That's what's causing the big kerfuffle this week. So again, we've got the take care clause on the one side and I read the text from Article 2, Section 3 of that. You've got Article 1, Section 9, Clause 7, no money shall be drawn from the Treasury, but in consequence of appropriations
Starting point is 00:17:26 made by law. Okay? You have the Antideficiency Act. That's the President can't spend more. That comes from like 1884. I think everyone's kind of on board with that, right? That fits squarely within no money shall be drawn from the Treasury, but in consequence of appropriation.
Starting point is 00:17:42 Don't spend more than you got. Okay. But then you've got the Impoundment Act of 1974, where Congress says you also can't spend less. And I think it's worth noting the whole reason you have the Impoundment Act is not like Congress was like, you know, I bet 50 years from now, there'll be a president who tries to not spend money. Like, no, they passed that act because presidents were already doing that. And in fact, there is a Supreme Court case unanimously decided the next year, train versus city of New York, where Congress tells the EPA, give X amount of money to the city of
Starting point is 00:18:12 New York for cleaning up water and stuff. And Nixon says, yeah, EPA administrator, I want you to give actually like half that this year and about half of what was appropriated next year. I just don't feel like giving them the full amount. And the Supreme Court, no dogs that one. As I said, it was unanimous and it was like, nope, Congress said you have to give the money. You have to give all of the money. So here we are. Now, on the one hand, you have Democrats in Congress saying, lawmakers must be able to trust that a deal is a deal when agreement is reached on legislation. If presidents can unilaterally pick and choose which parts of a deal that get signed into law
Starting point is 00:18:49 they want to execute, that trust will be destroyed. I find that incredibly compelling as an argument. Mark Paoletta, who's going to be the general counsel of the Office of Management and Budget under Trump, has called the impoundment act a stupid law and urge the head of the OMB to, quote, impound, baby impound. So, professor, I turn to you. Is the impoundment act unlawful? How do we think about the president's power not to spend money? And does it look a little like prosecutorial discretion, right? The president doesn't have to arrest everyone who breaks every law that Congress passes. So why does he have to spend all the money that Congress passes? Okay, there's a whole lot of questions there.
Starting point is 00:19:30 I'll just try to answer some of them and you tell me if I answer the right ones or if I get too much into the weeds. Okay, the bottom line is, I think quite simple. Congress in 1974 in that statute, they put restrictions on the circumstances in which the president cannot spend appropriated money. And they did an elaborate scheme that put conditions on that. That law and not the Constitutional Appropriations Clause is the source of the president's duty to spend appropriated money. And it's the take care clause that attaches to that law that requires the president to – the president has to follow that law in spending congressional monies.
Starting point is 00:20:11 Now, before I get to the constitutional issue, that law is – there are a lot of moving parts in that law. It allows for deferral in certain circumstances of – it allows the president to defer spending monies. It allows the president, if he notifies Congress and gets their approval, to not spend certain monies. And then there are a whole bunch of practices worked out between the officer management budget and the general accounting office, general accountability office, about when the president can do something called programmatic delays of spending.
Starting point is 00:20:43 Okay, so there's a lot of play in the joints that the executive branch in Congress are always fighting about about spending money. And that's kind of a custom area practice below the kind of legal enforcement area. All right. And presidents have been basically complying with that statute since 74, with some exceptions I can talk about, including in the Biden administration. The constitutional argument that the president has the authority to disregard this statute because he has Article 2 power to not spend money, I just find to have zero basis in the law. That 1974 case didn't deal with constitutional issues, but it was a unanimous opinion, as you say, and
Starting point is 00:21:22 no one thought there was a constitutional issue. William Rehnquist, no squish about executive power when he was the head of the Office of Legal Counsel, basically reached the same conclusion that there was no constitutional authority for the president not to spend. Now, there's a long history of presidents impounding funds, going back to the founding, to Jefferson. But those impoundments are best seen and were interpretations of the various statutory authorizations. There's no practice of presidents exercising constitutional power to disregard spending constraints. Now, there's a lot of play in the joints. It's hard to make sure you spend all the money and don't spend any money you're not supposed to. So there's always a lot of play in the joints.
Starting point is 00:22:06 But in terms of a constitutional argument, I just don't see it. I think it's weak and I don't think it will prevail. Anthony Comegna It's hard to imagine how a legislative power can exist if it is subject to essential eradication by president, even when a prior president has signed the law into effect. In other words, there has been this, as Sarah talked about, contract, or even if there's been a veto override,
Starting point is 00:22:31 because obviously the founders clearly contemplated a president disagreeing with legislation, and so then to kind of give him a stealth secondary veto, unreviewable, that you can't override except by impeachment and removal. That's, that strikes me. Your veto point is well taken, David. Yeah. Well taken. And yet I find the play in the joints problem real.
Starting point is 00:23:03 And first of all, you had mentioned this went on in the Biden administration, right? There was money appropriated to build the wall on the southern border, and Biden was just like, meh, I don't really wanna do that. May I say something about that then? Of course. Biden played the game and Trump is not playing the game.
Starting point is 00:23:18 I don't know which way that cuts. Me neither. I think it, but Biden won, I think Trump cares the last about achieving policy success than he does about blowing up the system. Biden wanted to achieve a policy success for him. He wanted to not build the wall. So he didn't spend the billion dollars a year and he came up with a plausible reason for
Starting point is 00:23:39 programmatic delay, which was that, well, we've got to imply with environmental laws and we've got to work it out with the contractors. And he was able to delay for four years not spending that money. And that's playing the game. And he was able to convince people that that could work. And that technically should have been consistent with the Empowerment Control Act in the sense that he had a policy objection to spending that money and he found a way to implement it within the rules of the game.
Starting point is 00:24:06 But Trump could have done that route. And I think that's maybe what they're going to end up doing after they get their butts kicked a little bit. But their first instinct was not to achieve the policy gains of reducing spending by playing within the joints of the Empowerment Control Act. Their first instinct was to go maximum executive power and to do something extreme. And I'm not sure that that's going to work out well for them unless the whole point is just disruption. Okay. But here's why I think this might be lawful, the OMB memo.
Starting point is 00:24:38 Surely, when we speak of those play in the joints, a temporary, the temporary nature of this that we're really talking about between now and February 10th. Hey, look at all your spending and don't put anything out the door if it might fall into one of these categories until we can get our hands on everything that's moving and all the moving pieces of the executive branch, which is enormous at this point, 2.4 million employees or whatever it is now. That point 2.4 million employees or whatever it is now, that feels like they are playing the game to some extent. Like temporary pause to not spend money doesn't seem to run afoul of congressional intent
Starting point is 00:25:12 any more than Biden taking a four-year pause. I agree with different reasons and different ways to pause. But the temporary nature versus just saying, you told us to spend this money, we will not spend this money at any point, go jump off a bridge. I agree that makes it less bad, but I'm not sure it makes it lawful because there's a process for dealing with delays. It's called deferral. And you have to notify Congress that you're deferring and give one of the reasons within the statute. That's one way to deal with this. The other way to deal with this is to say no, and they didn't say this, this is a programmatic delay because we're going to make sure that do what Biden did, that the law is being complied with, that the contractors are on board, et
Starting point is 00:25:54 cetera. That's not what's going on here. What's going on here is compliance with policy changes by the president as a reason to delay spending. And that is one thing that's unacceptable in this context. And looking through the Empowerment Control Act, it does actually give the president a considerable amount of a considerable ability to delay dispensing funds. It reminds me a bit of the War Powers Resolution, which is sort of designed to limit the president, but in many ways it's been sort of like, and it has and it has ironically enough in some ways empowered the president. You have how many times once a president
Starting point is 00:26:29 launches a military action as he can under the War Powers Act, that Congress comes in and then says, nope, Yan King, all the funding of troops in combat. That is just not something that tends to happen. And impoundment control, there is, if you were willing to dot your eyes and cross your T's, there is actually some pretty considerable discretion in there for the president. There is discretion in there.
Starting point is 00:26:53 And on top of the discretion within the statute, there's discretion that's been worked out in practice. It gets them even more power to do this. And Biden, as I say, successfully did it. But they don't, this is not an administration, it seems that is interested in either working within that framework or that they have legal sophistication or resources or even interest in playing with those channels. They're more in the mood of
Starting point is 00:27:16 blowing things up and resting on executive power and seeing where things fall out. I think that's really do think that's their strategy right now. power and seeing where things fall out. I think that's, I really do think that's their strategy right now. And I was cheering it on. I will note again, blowing up those guardrails and limitations on the executive branch. Hope you like it when the other side does it. Because this has been building, like you said, Obama didn't, then Biden did, Trump has done it. Now Trump's doing it again. Like this is all moving in the same direction where the president under either party is incredibly
Starting point is 00:27:49 powerful to be able to change our laws every four years or fire 2.4 million people. Yeah, and this is the last thing I'll say. It's not just that. We've had this tit for tat spiraling decline of norms and constraints in this context, the retaliation against people who investigated Trump in response to their prior investigation to Trump. That cycle has been going on of investigating prior administration has been getting worse every time. This is a general feature of the modern presidency and I just think it's a disaster for the presidency
Starting point is 00:28:24 in the country. And at some point, half of America will call it the Gulf of America and half will be calling it the Gulf of Mexico because every president who comes into power will have something that we focus on where we just keep changing the name back and forth. Professor Jack Goldsmith. Thank you as always. Thank you very much. You all have a good day. All right, David, what do you think? I mean, I know what you think. You don't think impoundment is like prosecutorial discretion. Right.
Starting point is 00:28:51 But I think that for a lot of people out there, this seems like a really black and white question. And for me, I really want to emphasize that play in the joints problem, as in it's not like presidents write a check to the dollar amount and they've been sending out the correct amount checks this whole time. All presidents impound a little, then they've been impounding a little bit more, then they've been impounding like with Biden a lot, but doing it using the reasons that they were allowed to do, even if those weren't the real reasons. And so here we have the inevitable conclusion of the impoundment-ness. Yeah, when you watch what's happening,
Starting point is 00:29:28 what you're seeing in many ways is a blunt force sort of press, it's essentially like a sledgehammer approach, whereas previous presidents have used the nuances of the Impoundment Control Act, etc. for a scalpel approach. And we have not realized how much authority and latitude and discretion presidents have exercised, in many ways, because they've done it, Sarah, in that scalpel-y way. It's hyper-technical. It's difficult to understand. It's buried deep in a vast budget where you don't really see what's happening. And Trump walks in and he says,
Starting point is 00:30:10 nah, don't spend any of it, at least not right now. None of it. And that has an absolute test case effect. No question about it. Which I kind of appreciate. Let's do this. And I guess I hope that the, That has an absolute test case effect. No question about it. Which I kind of appreciate. Let's do this.
Starting point is 00:30:27 And I guess I hope that the Unitarians on the court that we discussed, I at least feel that as a, I've been a very strong form Unitarian, like up until this week, I think listeners will realize, right, I really do think you kind of, you want a bright line separation of powers. And part of that has to be, for instance, that inspectors general were always
Starting point is 00:30:49 very constitutionally suspect to me because they were, had a foot in both branches. Nope. Independent agencies, foot in both branches. Nope. You're in one. That's it. The end.
Starting point is 00:31:00 But you might've reached my limit here because of that reasoning on the impoundment clause. Like I said, if presidents can unilaterally pick and choose which parts of a deal that they get signed into law they want to execute, then we're not going to have any more legislation. And you'll know that the only thing I care more about than that sort of unitary executive separation of powers is Congress doing its job. So you got me here. And I wonder, now that that tension of Congress doing its job and unitary executive has really been teed up, how many of the Unitarians on the court are gonna feel the way
Starting point is 00:31:33 that I feel? I think a lot of the Unitarians are going to be drifting in the way that you feel, Sarah, because you're going to see in essence is if you really put on your Unitarian hat and you say, I'm a Unitarian fundamentalist. Now I don't know if there's any such thing in the offline world as a Unitarian fundamentalist, but let's just say you're a Unitarian fundamentalist. There's a collision with the legislative power just right there. So if Article 1 bestows all of the legislative power on Congress, then when Congress says, let's say, we're going to appropriate $25 billion to build five Virginia-class submarines,
Starting point is 00:32:13 and the president says, nah, one submarine, $5 billion, that is, you have, as I said earlier, you've vetoed that legislation. But there is a veto process that exists. And if you have not vetoed it, you're a president who follows another president who signed it, or if there's been a veto override, where, as Jack says, where's this textual basis? Where is this basis that you're going to be able to say no to an otherwise constitutional appropriation? And so that is, I'm with you, Sarah. I've been long sympathetic. I've been a mild Unitarian, but hard pass on this idea that the president just gets to decide, no, we're not spending Medicaid money anymore. Okay, I will say this though,
Starting point is 00:33:06 and we sort of divided this conversation intentionally into two parts of unitary executive theory. Part one is that removable power. That's where I'm a unitarian fundamentalist, I think. I really am. All of them? You're with Trump on like the janitor and the FBI building. Maybe. Really? Interesting. From a and maybe really interesting from a
Starting point is 00:33:27 constitutional standpoint, not from a prudential standpoint. I think it is prudentially deeply unwise. But from a constitutional standpoint, I might be that's different though than this take care impoundment issue. And I think as time goes on in the Trump 2.0 administration, we will see different chapters of the Unitarian executive hymnal and some parts I may sing along with and other parts, maybe not. Interesting, so what would be your view
Starting point is 00:33:57 of applying Title VII to federal workers then? That that infringes on the Unitarian executive or would that be the legislature saying, wait, an executive has to comply with underlying constitutional obligations, and this is how we are advancing that as the 14th Amendment allows? In my view, the chapter of the hymnal that I'm on
Starting point is 00:34:19 is removal power. So, correct. Antidiscrimination laws and stuff can be affected through the executive, though I will note I sure wish they were affected through the legislative branch as well. Congress always exempts itself from all of these laws. But again, that's a prudential issue, not a constitutional issue. All right, David, I've got another one for you. Okay.
Starting point is 00:34:42 It's about the pardon power. So now we're in the most core presidential power that there is. A David Paul Daniel, one of the January 6th guys who was pardoned by Trump, was arrested late last year after images were found on his device where he was sexually attacking at least two children. Unclear if the rape and child porn charges are also quashed, said this reporter. Oh, I don't think that's unclear. But we've gotten some questions about it and I'd like to answer it. Yeah. In the blanket pardon that President Biden issued, for instance,
Starting point is 00:35:17 to his family members for any crimes committed in the last 10 years, then obviously it would cover any and all crimes, not just those that were charged. Federal. Federal. Yes, you're right. In this case, while they were investigating this guy for his January 6 participation, they found these videos and images on his phone. So their argument goes something like, yeah, he was only pardoned for his January 6 conviction and activities related to January 6. But for that investigation, they wouldn't have found this. It's like a fruit of the poisonous tree argument. But fruit of the poisonous tree is about constitutional violations.
Starting point is 00:35:58 I think this is very clear. You're pardoned for one thing and one thing only in this case, just because they found evidence of another crime. Well, SOL, don't commit other crimes, I guess. I don't think the pardon touches this at all. I think they can proceed with charges as they see fit. And yeah, there we go. What do you think? I completely agree with you. This is not like the exclusionary rule
Starting point is 00:36:25 where you're trying to protect against Fourth Amendment violations. No, no. That he was not- Or they have to prove inevitable discovery. They would have found it no matter what. Like, no, no, no. No, no, no, no.
Starting point is 00:36:37 This is, it's apples and oranges. He was pardoned for one thing. He's now being investigated for something else entirely. Yeah, yeah. No, we're going to see a bunch of these January Sixers reoffend. We've already seen some of it. I mean, gosh, there was a horrible situation where one of them was killed in a shootout with police recently.
Starting point is 00:36:56 So some of these people are being released are horrific human beings who are going to reoffend. And some of them are going to reoffend in spectacularly violent ways. And it just really is a kind of double problem, Sarah, if you say, I'm lifting security from a number of people I've identified as my enemies, and by the way, I'm also letting out my most violent supporters. I've not been in these waters before. I've not seen it. And you know, one other thing that I I don't think enough people have drilled down on, it's not just that he has lifted the security
Starting point is 00:37:40 details. He's telling the whole world these security details are gone. I mean, could you imagine, it would be about like saying, putting out a tweet, hey David Fringe's ring camera is broken. In other words, like all of a sudden you you've got full access to his front porch with no, you know, like you're not going to smile, you're not going to be on candid camera. And so, you know, like you're not gonna be on a candid camera. And so, you know, it's broadcasting the vulnerability. Okay, what's kind of funny about that, though? Not funny, haha, I know.
Starting point is 00:38:12 But the whole purpose of Iran wanting to assassinate these guys who were involved in the assassination of Soleimani would be to, you know, send a message to Donald Trump and make him angry the way that it made them angry and to take out his people, the way that he took out their people. But Trump has also broadcast that it will not have that effect, that he doesn't care about these people at all.
Starting point is 00:38:34 So the whole purpose of Iran assassinating them has also oddly disappeared? Yeah, yeah. No, I don't think it has oddly disappeared because they want revenge just on their own terms, not just it, because there's more audiences than Trump here. There's a Middle Eastern audience. You know, this is something that really actually worries me
Starting point is 00:38:55 because Iran has been incredibly humiliated. It's suffered some serious military defeats. One of the things it's going to be looking to do is try to restore some sort of credibility in the region. So this makes me nervous. Yeah. But again, of course, like you don't get a whole lot of credit for killing someone who has no security detail. And we just told the world like it's open season on. Next up, we have a mailbag question from a listener, and I didn't know what to do.
Starting point is 00:39:27 So I turned to an expert. So I would like to read this question from our listener and then read you the answer from our expert of the day. I mean, we have two experts today. Oh, I love it. It's a great episode here at Advisory Opinions. All right. Here's the question.
Starting point is 00:39:41 When I was a poor grad student at the University of Pennsylvania, I drove down to tax-free Delaware to buy a computer. According to Pennsylvania law, I was supposed to pay Pennsylvania a use tax on that item, since it was bought in another state and being used in Pennsylvania. This has bothered me for the past decade. I'm just a simple-minded molecular biophysicist, largely ignorant of constitutional law. But isn't a use tax for goods imported from other states really just a sneaky interstate tariff?
Starting point is 00:40:09 And aren't state imposed interstate tariffs prohibited by the commerce clause? Just a caveman. Just a totally normal, like, I mean, what middle schooler hasn't had those questions like when crossing state lines? I mean, you know. All right, so I'm from Texas, not even aware of something called a use tax, but I guess it makes
Starting point is 00:40:28 sense up in like New England where you can really easily move from state to state with different tax laws. So I turned to Eric Rakowski, renowned tax professor, currently a law professor at Berkeley, and sent him this question. And I said, please help me. And he said, first off, the Commerce Clause does not explicitly bar a state from imposing a tariff on goods imported from another state. It simply says that Congress shall
Starting point is 00:40:56 have power to regulate commerce among the several states. However, beginning in the 19th century, the Supreme Court has drawn a negative inference from this grant of authority to Congress. This still controversial doctrine, known as the Dormant Commerce Clause, prohibits a state from enacting laws that discriminate against out-of-state economic actors that do business in that state. For example, if California imposed a higher tax on beer made in Colorado than it did on beer made in California, that tax would run afoul of the Commerce C commerce clause as currently understood by the Supreme Court.
Starting point is 00:41:25 David, this was our big case about growing pigs out of state and moving them into California, and I was so into this case. Okay, continuing. States that have sales tax generally impose use taxes at identical rates. If use taxes were imposed at higher rates than sales taxes, they would be unconstitutional because they would indirectly burden out-of-state sellers more than in-state sellers. But the federal courts, including the Supreme Court and its important use tax decisions, have accepted use taxes as constitutionally unobjectionable when out-of-state and in-state
Starting point is 00:41:58 sellers face identical rate schedules. Why? Consider the rationale for a sales tax. Sales taxes are imposed on sales to consumers, not on wholesale transactions. The way many sales taxes are written, the liability to pay the tax rests with the purchaser. Though for the convenience of the buyer and, of course, a state's tax collectors, retail sellers are typically obligated to collect the tax on behalf of the buyer and remit the tax to the state. The goal of a sales tax is to proportion a person's liability to provide support to
Starting point is 00:42:26 the government to the value of that person's consumption. Those who consume more are assumed to be better off and, in the crude calculus that underlies these and many other taxes, therefore better able to bear the cost of a higher tax burden or more likely to have benefited from the government's existence and expenditures. Needless to say, not everyone agrees that consumption is a morally defensible basis for taxation. So, a tax imposed at the point of sale is deemed a tax on the consumption of the purchased goods. Likewise, a use tax is a tax on consumption. They share the same rationale, and there is no question that a state has the constitutional authority to tax its residents on what they
Starting point is 00:43:00 buy or consume. In the Supreme Court's view, the only important constitutional question is when an out-of-state retailer is required to collect a use tax on behalf of an in-state consumer and to remit that tax to the state where the consumer lives. Most recently, in South Dakota v. Wayfair 2018, the court held that a seller with substantial nexus to the resident consumer's state can be required to pay a use tax on the consumer's behalf, passing that charge on to the consumer as happens with a sales tax. Even if the seller has no physical contact with the taxing state, as many internet vendors do not. States want to impose liability to pay the use tax on out-of-state retailers as often as they can. It's easier to
Starting point is 00:43:39 collect from the likes of Amazon or eBay than from individual purchasers who often neglect to pay any use tax they owe. David, I felt like that was a whole class in tax law that I never knew I needed. I'm discomprehensive stuff. I mean, between a professor weighing in on tax law, a professor weighing in on the unitary executive, I mean, this has been law school, Sarah. I know. I mean, people should be really grateful to us. That's the only conclusion I can reach. By the way, I should read to you the PS from that listener question from the caveman molecular biophysicist.
Starting point is 00:44:15 PS, this email is not an admission of tax evasion on the previously mentioned computer, nor am I admitting to skipping the use tax on bootlegged out of state alcohol for all of my Philly friends during the pandemic when all of the state-owned Pennsylvania wine and spirit shops were shuttered during the pandemic. Desperate times and all. That's great. All right, David. Next up, the age-old question. Are law reviews good or bad?
Starting point is 00:44:43 I'm glad we're having this conversation. At last. So this actually is the addendum to our conversation at Catholic University, because we talked a lot about sort of the problems in legal academia, what sort of solutions are, where things are moving in different directions, but we didn't get to law reviews.
Starting point is 00:45:00 And it's a huge part of how law professors become law professors. You have to publish, you have to get credentialed, and that happens by publishing in law reviews. Those law reviews are run by students, and they're choosing which articles to publish. And David, you're against it. Don't love it. Don't love it. Now, I'm going to say, when I say this, I know there are law review editors who listen
Starting point is 00:45:24 to this, who are going to say, when I say this, I know there are law review editors who listen to this, who are going to take great umbrage. There are law reviews that are very well run. To say that the system, to say that I have an issue with the system is not the same thing as saying I have an issue with the system in all of its applications. There are law reviews that are very well run, very professionally run. The issue that I have is you're having a situation that is different from peer review, because the way peer review should work is if I'm a scholar in a particular field
Starting point is 00:45:52 and I'm putting forward a paper supported by original research, then I should have peers, people who have an equivalent level of knowledge, who review this, take a close look at my methodology, take a close look at my data. Now, we all know that just because peer review as a concept is sound, in all of its applications,
Starting point is 00:46:15 it is not. I mean, there have been many peer review scandals, especially in the social sciences. So nothing here is foolproof, but it just strikes me as more fundamentally sound if you're going to be putting an individual's career in the hands of other individuals, that they should have sort of
Starting point is 00:46:34 a roughly equivalent level of knowledge, a roughly equivalent ability to evaluate your work. And with the law reviews, I'm sorry, that just isn't quite there. And so then what happens is it makes the system vulnerable to sort of a star system that, for example, if somebody is well known enough, has sort of the shock and awe reputation in student circles, they're gonna have some advantages than perhaps somebody who's no name. How capable are the students of recognizing something that is sort of truly innovative and interesting
Starting point is 00:47:17 and original versus just quirky and weird, which they're not the same thing. So those are some of my beefs. But again, to student law review editors who are listening, let me just stipulate, you're all great. You're all very good at your jobs. I'm talking about a systemic issue, not an individual issue. Well, I happen to have some thoughts
Starting point is 00:47:38 from two different editors at two different schools. One seems to agree with you, one maybe not. So I want to read some of their takes. This comes from a former editor on a T14 law review, David. My classmates on Law Review expressed two diametrically opposed views of the Law Review's purpose. One camp envisioned the Law Review as a neutral forum for publishing articles with rigorous legal analyses and novel contributions to the academic literature. For this group, the authors' ideological priors and methodological commitments were generally
Starting point is 00:48:09 irrelevant. Another camp envisioned the law review as an agent of progressive and social change, with articles chosen based on whether those editors perceived them as having the potential to bring about positive legal developments for individuals or groups they cared about. The division between these two camps was profound and permeated almost every debate we had as a body. With that said, it's hard for me to imagine that intellectual diversity would be improved if law reviews followed the more traditional model of academic journals, faculty-run with articles chosen after a peer review process. As I understand it, one catalyst behind the rise of the conservative legal movement in the Federalist Society in the
Starting point is 00:48:43 1980s was that elite law school faculties were overwhelmingly liberal. Many still are. YLS just hired its first two right of center professors in decades. The point is, if those professors are the ones selecting law review articles, it's unlikely that ideological diversity would improve as compared to student-led journals. Though perhaps professors would have better eye for quality and a better sense for when an article's contribution was truly novel. If anything, law students, at least some of whom recognize their inexperience and are open to allowing their views to be shaped over the course of law school, may well be more open to reading and seriously engaging with an article that espouses a position they
Starting point is 00:49:18 strongly disagree with on the merits. And then he discusses, of course, how you get onto a law review and then within the law review how that works. And it can vary by school, but for the premier law review at an institution, David, it tends to be a combination of grade on, meaning you had the highest grade in your section, and write on. There's a week-long competition where everyone gets the exact same material, has to write on the same topic, you have one week to write a law review submission,
Starting point is 00:49:46 and then the best submissions are offered positions on the law review. And of course, the best is judged by the current members of the law review. That to me has all sorts of problems, David. Set aside intellectual diversity, of which it has huge problems when it's a topic that is falls on the ideological spectrum. I also have argued at least that there's a gender issue because law reviews tend to be very heavily male and men have very different writing styles than women. Women tend to use more adjectives and adverbs in their writing for instance. That if you have predominantly men judging whether writing is good or not, they're going to pick writing that looks the most like their own.
Starting point is 00:50:32 And it's all blind, mind you, but like they're going to pick the thing that, you know, is like, oh yeah, that sounds like me, and therefore more likely to pick men, and it perpetuates the male heavy law review problem. That being said, of course, I'm strongly against affirmative action for women on the law review because if everyone knows that women sort of aren't treated the same way, it completely undermines the whole value of being on the law review. Interestingly, at Harvard Law School, by the way, David,
Starting point is 00:50:59 there was race-based affirmative action for the law review, but not gender-based affirmative action. And exactly that thing happened, where if you were black on the law review, it was like, yeah, but he's black. And if you are a woman on the law review, it was like, wow, she's one of only four women on the law review. Take E.G., Elizabeth Prelogger, who was one of the very few women on the law review my year.
Starting point is 00:51:22 Okay. But back to the issue at hand here. Within the law review, there's in the articles board and they pick which articles get published. And he says, there's a new generation of students that is automatically skeptical of elite institutions, yet simultaneously wants to be a part of them. Something I have seen happen,
Starting point is 00:51:39 and I know happens at other journals as well, is that a handful of those students, students who are originally committed to a set of progressive principles, but have nonetheless sought journal membership, will speak out in attempts to shame the rest of the journal body into agreeing with them. Students who are reasonably minded or inclined to compromise then become fearful of voicing their disagreements even with positions they find too extreme because they don't want to be branded as anti-progressive and have that label dog them for the remainder of their time in law school, etc. etc. The way
Starting point is 00:52:04 that this works at every institution. Okay, so that's one take on the Law of their time in law school, et cetera, et cetera, the way that this works in every institution. Okay, so that's one take on the law review, David, thoughts. You know, at this point about the bias that exists in the academy is very, very well taken. And, you know, again, when I was talking about the peer review process, I was talking about as a systemic idea, it's superior in its applications, there are problems.
Starting point is 00:52:26 And I think the weakness of it is the way in which the academic community can be both highly polarized politically and quite frankly, really petty. We have seen this in higher education all the time, this sort of incredible pettiness to faculty politics, the personal rivalries. So I don't think there's any perfect way of dealing with this.
Starting point is 00:52:52 And I do think, though, that increased ideological diversity in the academy, just one of the knock-on positive effects on that is I think it will be improving peer review, where there's just less groupthink, less willingness or ability to sort of go along with a fashionable idea. No, I get that. I don't think there's any real answer to the problem right now of that faculty ideological bias.
Starting point is 00:53:22 I mean, when I say there's no answer, obviously there is an answer in the sense of less bias, but as far as a programmatic answer to it, it's really hard to identify. All right, I then have input from someone who is not at a T100 law school and is not on the flagship law review, but on one of the other journals. In this case, it is a journal of law and religion.
Starting point is 00:53:47 And the student happens to also have served all three of their years on the student hiring board for new tenure track professors, which is kind of interesting because that's kind of the whole point of the law reviews, right? So like this student's kind of seeing both sides of this. And here's what's really interesting.
Starting point is 00:54:02 He basically says the law schools completely ignore the type of faculty the students want, faculty who are engaging, who seem interested in students, who can answer such questions in the interview like, why this law school? And what do you find most rewarding about teaching and the law? That when the students ranked the professors that they wanted to be given an offer, the school literally inverted it. And that's who got the offers. So his point is, in effect, article publishing is the only way that students have even a
Starting point is 00:54:36 minor say in the professors that teach at schools they pay tuition at. Furthermore, most journal boards are made up of students that will go into private practice, which at least, again, to a minor degree can serve to moderate the esoteric, uninteresting, pedantic and niche articles that seemingly get written by academics by selecting ones that seem somewhat related to practical considerations. Journal selections can also be a way that people break into academics that would not otherwise. For example, an article we published was from a lecturer with a very strong southern accent from a southern school with her degree from Appalachian State and a JD from Campbell University.
Starting point is 00:55:11 She has very little chance statistically to get a job in academia without journals publishing her work. Without the credentials of being published, collections of Ivy League professors would not offer a six-figure job to someone with an audible accent. It comes down to a question of what law schools exist to do. Is it a depository for non-practicing lawyers to work seven hours a week for six-figure salaries or is it an institution meant to provide valuable training and learning experience for future lawyers?
Starting point is 00:55:37 So that's an interesting perspective, David, that I hadn't thought of where this is how law students are part of the system. Otherwise, they are only consumers. I get that. I do get that. I mean, the question I do. It's not that there are no advantages, you know, as we as we talked about, there are disadvantages of faculty bias that may be greater than student bias. In some circumstances. There are advantages to actually participating in a process, for example.
Starting point is 00:56:09 Yes, I see that that is a value. But again, given the primacy of the law review article, and it's really tough to exaggerate the primacy of having scholarship published, and in the legal world, that means law review articles by and large to have your future placed in the hands of people who are supposed to be evaluating the quality of your work. Cause the publication is supposed to be a stamp
Starting point is 00:56:42 of approval of quality from people who are not necessarily qualified to deliver that stamp. That's my problem. All right, last up, David, as this is the episode of The Experts, we talked about Justice Katanji Brown Jackson's necklace that she wore to Trump's inauguration. And both you and I were kind of skeptical
Starting point is 00:57:00 of reading anything into her sartorial decisions. Well, we had a pastor from West Africa who's been there for the past 17 years, right in with his thoughts on what kauri necklaces actually mean in West Africa, since everyone, you know, from Vogue to Volokh conspiracy has their own thoughts on what kauri necklaces mean. He says, yes, Kauri shells are used in juju, West African witchcraft, and necklaces, bracelets, belts, anklets with them do involve warding off evil. However, so are certain types of bronze and silver bracelets
Starting point is 00:57:36 or owls or many other items. Kauri were used as currency in the past, so now you will have, you will sometimes see jewelry made of coins for the same reason. As a pastor, I would not recommend the practice, but I also would caution the thought that the necklace was directed at President Trump. That is generally not the way they are used. It really is more of a charm to ward off evil in general, not a specific evil. Yeah, that's what I was wondering is if you're, you know, you sort of have a lot of ways in which people wear good luck charms,
Starting point is 00:58:06 for example, or they wear things that traditionally, even if they don't believe in things like the evil eye or whatever, that have been traditional garb that's related to sort of these folk beliefs. You see this actually, it's interesting, in where we live in Middle Tennessee, there's even this form of blue, this color blue that is used painting, that is used in homes that was called paint blue. Have you ever heard of it? Yes, of course! It was very big in South Carolina. Yes. It's for the ceiling of your porch. Yes, and it's warding off ghosts and evil spirits. And yeah, so you wouldn't walk up to somebody's porch and say, you're warding me off.
Starting point is 00:58:51 You know, that's a traditional folkways belief. And the reason why we had it in middle Tennessee is we had, our original church was settled by members of the Continental Army from South Carolina who were given that land as part of a land grant as a reward for their service. And so they came out and they brought some of their South Carolina folkways, including Haint Blue. By the way, just go read the Wikipedia entry on Haint Blue
Starting point is 00:59:17 or anything else on Haint Blue. It's like a whole fun, a fun couple hours for you to spend. It's a great little hole to dig down in. All right, David, with that, this has been an incredibly fun episode of Experts Who Aren't Us at All, and I like it. Yeah, I love good experts. So it's always great to have Jack,
Starting point is 00:59:39 you know, Greg, always great to hear from an expert in tags because the instant I open my mouth about that, malpractice just flows. The malpractice flows. Well, with that, a special thank you to Professor Jack Goldsmith, and don't forget to sign up for executive functions. It's his newsletter.
Starting point is 01:00:00 In fact, it's the newsletter that I read, which gave me the idea to invite him on to talk about his newsletter. So definitely read that. Also, thank you to Professor Eric Brakowski over at Berkeley, tax expert extraordinaire. Thank you to our two law review editors for your thoughts. And thank you to our West African pastor for taking the time to write out your thoughts as well.

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