Advisory Opinions - The Oldest Constitutional Question | Interview: Richard Primus
Episode Date: September 18, 2025Sarah Isgur and David French invite Richard Primus, author of The Oldest Constitutional Question: Enumeration and Federal Power, to discuss his unorthodox argument that the constitutional system doe...s place limits on Congress, but those limits don’t actually come from the enumeration of powers—and never have. But first: a grab bag of legal cases and responding to Attorney General Pam Bondi’s very anti-conservative remarks. The Agenda:—Will hate speech be prosecuted?—Partisan divides on the interim docket—Listener insights on delegated powers—Elite law schools and Rehnquist v. Souter clerk hiring—Granting mootness on a SCOTUS case—The oldest constitutional question—Originalism and the 10th Amendment 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 access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices
Transcript
Discussion (0)
Ready?
I was born ready.
Welcome to advisory opinions. I'm Sarah Isger. That's David French. And we're doing a grab bag.
So we're going to start with, I can't believe we have to do this again.
hate speech is not illegal.
Attorney General Pam Bondi.
Number two, interesting stats coming out on the interim docket.
Is it partisan or is it judicial ideology?
Number three, Rehnquestian versus Sutarian clerk hiring.
What's up with all the elites hiring only elites?
And so your case gets granted by the Supreme Court and you think,
ah, dismiss it.
Is the Supreme Court going to stand for this?
We'll talk about that, too.
And we'll have our interview with Professor Richard Primus about congressional enumerated powers.
Do you only get those powers?
Or is that just telling you the powers you definitely have?
It's a total paradigm shift.
Coming up on advisory opinions.
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All right, David, let's open the grab bag and see what we've got from listeners.
I mean, it won't surprise you.
We got a lot of emails asking us to talk about Attorney General Pam Bondi's comments about
prosecuting hate speech and prosecuting businesses that won't support the message of a customer
that walks in.
I will say, just at the outset, just listening to her interview again,
as they did this morning right before we taped.
It's just like a shocking statement about the law from a lawyer.
It's like a bonker statement from a sitting United States Attorney General.
And it's like bonkers Town Infinity from a Republican attorney general after the conservative
movement has fought so long and so hard to make the point that hate speech cannot be
censured by the government and that, I mean, the 303 creative fight alone, do you want to just run
through 303 creative for listeners again? Yeah, 303 creative was a case brought by a woman who owned
a website design company and was essentially saying, look, I'm going to design websites for any
person who comes to me and asks for me to design a website, but I'm not going to design a website
that advances a message with which I disagree. And the salient message here,
that case that people were worried about was, would she design a wedding website for a gay
couple? And what the Supreme Court said was when she refuses to design a wedding website,
she's not discriminating against anyone on the basis of their sexual orientation because she
said she has customers of all sexual orientations and would be willing to serve a person of all
races, all sexes, all sexual orientations. It's just that she does not agree with same-sex marriage
and isn't going to use her company to advance that message.
And the Supreme Court 6.3 said, that's a free speech issue.
That's not a discrimination issue on the basis of status.
This is compelled speech.
You are using your resources, your talents to produce speech.
In the purest sense, a website is absolutely speech.
And so that's the background.
And this is an issue that percolated for a long time.
I mean, this was at the heart of the masterpiece cake shop case.
involving a person who would not custom design a cake for a gay wedding.
That case was decided on the basis of hostility to religion, not on the basis of free speech.
But then 303 creative was decided on the basis of free speech.
And as early as, what, five minutes ago, Sarah, it was celebrated as one of the great victories of the conservative legal movement.
To break this down, if you walk into a nail salon, they cannot refuse to serve you because you're white.
but they can refuse to paint Confederate flags on your nails. And you can't say, you're just doing that because I'm white. No, no, I just don't want to paint Confederate flags. So there's a difference between sort of the person and the message the person wants you to be a part of. And so, for instance, if you walk into a Home Depot, they can't turn you away because you're Protestant or Jewish or black or white or anything else. But they can't
refused to allow you to use their printer to make a Charlie Kirk rest in peace sign.
Now, that's indeed what happened. As a matter of fact, Home Depot fired the manager who refused
to let them print that sign. So there's also an important distinction here that just always
bears repeating. When we talk about the First Amendment in free speech and hate speech not being a
thing, we're talking about the government censoring someone, either prosecuting them,
fining them, punishing them in somehow, some way for their speech. And again, if you want the government
to prosecute people for hate speech because you think they said something that they should be
prosecuted for, just you have to be okay with your worst enemy getting to choose what the definition
of hate speech is. And I think the last 10 years, certainly the last week, has shown us that we're
not willing to agree to that deal, which is why we don't prosecute.
Hate speech. We only prosecute incitement. Now there's defamation. There's certain things that aren't
considered speech like pornography, for instance, isn't protected speech. But we talked about
incitement last time, which is probably the closest that you get here. And I think in the most
generous, totally rewriting what she said version, Attorney General Pam Bondi was trying to talk
about incitement. But I would just say that her definition of incitement is like nowhere near the
Brandenburg definition. It's people say things I don't like, which that's literally the opposite
of Brandenburg. She did backtrack. She issued a statement that said, if you want to be a hateful
person and simply say hateful things, that is your right to do so. So there was this immediate
overwhelming response that I was actually glad to see, Sarah, including from maybe some surprising
quarters. I was going to say, it was universal, left, right, conservative, MAGA. I mean,
there were, there were hardcore supporters of the president calling for her to be fired because
of what she said. But then this gets to the dichotomy of the moment, because Bondi said this,
gets a hurricane of backlash and backtracks. Then Donald Trump says stuff worse. And he's the
president. He's her boss. And now I think there is one thing that, a dynamic that I think will understand
and maybe only for years later
how much of Bondi's public statements
are being influenced by, not by
this is my considered legal opinion
versus this is what I want my boss to hear.
Because Jonathan Carl at ABC asked
Donald Trump what he thought about
Pam Bondi's statement.
And he said, well, she would probably go after people like you
speaking of Jonathan Carl from ABC.
And he says, you have a life.
lot of hate in your heart. Okay. So again, if you're thinking for half a second that a hate speech
prosecution would be a reasonably good or defensible idea and allowing the Trump administration
to define what hate speech is, just listen to the man himself. It's not some Antifa person. It's
Jonathan Carle. Okay. So we can't have hate speech laws unless you're willing to have your worst enemy
define hate speech, which no one's willing to do. But I guess I am curious, David, what your thoughts are
on social censure for hateful speech, not by the government, but, you know, somewhere in between
me telling you, I don't like what you said, you're a bad person, and the sort of online mob
getting people fired from their jobs for saying something the mob doesn't like, which we've
been doing now for five years. The left did it to the right for totally reasonable statements.
And it got out of hand, right?
And then the right, I think, is like turnabout as fair play.
And, of course, it's hard to critique the turnabout is fair play because, like, that's sort of human nature.
It is what it is.
But what do you make of social censure?
Is that a good part of how we police speech?
I wrote something in the Washington Post.
This was years ago.
After, you know, we went through the wave of cancellation.
Remember, you had the James Daymore situation at Google, where he writes this controversial, but I don't think anyone could read it and think that he was some sort of sheet-wearing white supremacists about, hey, here's how Google could increase diversity without discriminating on the basis of sex.
And it was essentially sort of the Daymore thesis.
And he was trying to explore reasons why there were disparities in programming between male and female employees.
And he gets hounded out of the place, right?
You had situations even back then where you had cancel culture on the right.
You know, you have Colin Kaepernick kneeling at football games.
The next thing, you know, he's out of the NFL.
And you had a lot of people cheering both of those cancellations.
And then you had Roseanne Barr, helpfully weighing into the chat.
Do you remember this?
Where, so she basically does this Twitter unbelievably racist rant against Valerie Jarrett.
We're talking, we're not talking like racist in the sense of like,
critical race theorist professor at Oberlin describing his racist, we're just, like, it was just
flat out, like gross racism. And ABC fires her, which she then later blames it on Ambien, leading to
one of the great tweets in history, which is Ambien tweeting that racism is not a known side
effect of Ambien. And I wrote this piece and I said, look, it is absolutely the case that
private employers have a right to fire somebody if they think that what that person says
or does is vile, even if it is not at the workplace. I said, however, my view is they should default
in favor of greater tolerance. However, we should not chain people to obviously vile bad faith
employees. That there's a good faith, bad faith distinction here, and we can't take leave of our
senses and sort of say, okay, because we want to end cancel culture, that means that we're going to
chain private employers to some of the worst people in America, no. Not just worst morally,
by the way, because there's like the thing you said that was bad, okay? There was also the fact that
you were so stupid and showed such poor judgment as to think that everyone needed to hear your thoughts
about everything all the time.
I mean, that's, I think,
part of my reaction to this current moment.
You know, you have this spectrum of people,
some of whom are legitimately
celebrating the murder of a father
in front of his children.
But it goes all the way down to they disagreed with him
and don't think that this was okay at all,
but didn't like things he said and are highlighting that.
So that's your spectrum of speech
that's being targeted.
but all of it, I have to say, didn't need to be on social media, wherever you are on that spectrum.
You don't have to tell random strangers your thoughts on current events.
Go talk to your friends in real life.
Get a little text chain going so that you can talk about these things with people who understand your background, your sense of humor,
want to explore these issues with you.
Social media is not much of a place to explore issues.
And I would suggest that there's both, David, there's the tall,
for different viewpoints and all of that that we should have in society.
And also, if you're an employer, the lack of judgment of your employees for being on social
media in the first place, frankly.
I draw a giant distinction between the kind of speech that I've seen like a white man dead.
I'm not crying.
Okay.
That is vile.
And then I don't condone that shooting, but I'm sick of the worship of Charlie Kirk's
point of view. That, to me, unless an employer has said, in advance, in writing, we are telling
all of our employees to never comment on public matters, you should not take action. If somebody
is saying, I really strongly disagreed with Charlie Kirk and I thought he was wrong about
A, B, C, D, E, F, and G, or whatever, that to me, there's a quantum difference between that
and actually celebrating a death. And I think one thing you're seeing on the right is they're taking
those two things and meshing them together as the same thing.
Much like we saw post-George Floyd, on parts of the left, there was no longer like
the spectrum of nuance.
It was, if you were wearing a white sheet, you're an absolute racist, and if you don't
put a black square in your Instagram page, there should be some horrible thing that happens
to you, too.
And so this sort of flattening of it all is, I think, really dangerous.
Okay, next in the grab bag, interesting piece from the New York Times about the stats related
to the interim docket.
Now, there was a piece earlier that basically went through and was like, oh, M.G, this Supreme
Court just rubber stamps everything Trump does on this interim docket.
And Jack Goldsmith had a great piece pushing back, but like just internally, the piece
itself didn't really hang together for me because it was comparing sort of the Supreme Court's
percentage versus the district court's percentage.
But of course, the district court has to take everything that is filed in front of them.
The Supreme Court, even on the interim docket, doesn't take everything because this administration
and the Biden administration, they are the ones choosing to appeal to the Supreme Court.
Well, guess what? They don't appeal the dumb ones. They only appeal the ones that they think
they have a good chance of winning. So they're going to win more at the Supreme Court than at
the district court. Okay. These stats are comparing.
individual justices in Trump's second term on this interim docket to Biden's term. It's still
not apples to apples because the cases were different and the topics of the cases were different.
Nevertheless, there is interesting stuff to see here. So, for instance, Justice Alito and Trump's second
term has voted on the side of the government 95% of the time, but in Biden, he only voted for
Biden, 18% of the time. Okay. Jackson has voted in favor of the government during Trump's second
term, zero percent of the time. But in Biden's term, she voted with the government 77 percent of the
time. In our three three analysis, David, our three justices in the middle probably are the most
interesting. Kavanaugh, Barrett, and Roberts have voted with the Trump administration 89, 79, and
74% of the time, respectively. So a lot, you know, those are high numbers ranging, you know,
74 to 89% of the time. And during Biden, they were 53, 53, and 41. So they are the Republican
appointees most likely to have voted for Biden, of course, and the Republican appointees
least likely to have voted with Trump. So once again, we see the 333 breaking out in this. Okay, but David,
I am far less interested in the overall administration's success rate between the two because, as I said, the Biden administration was appealing things that were executive power vis-a-vis Congress, which is areas that Trump has also lost on, whereas the Trump administration has appealed infinite numbers of these injunctions that have to do with power internal to the executive branch, whether it's been grants, firing people, independent agencies.
And so, like, yeah, of course they were going to have a higher success rate.
What is interesting, however, I think is there is a much clearer partisan divide between the justices in this interim docket than you see in the merits docket.
So when I do stat pack at the end of the term, and I'm pointing out that like actually in 90% of the cases for the last 20 years, there has been a liberal justice in the majority.
90%.
nine out of 10 times. There's at least one liberal who's in the majority. But here, it does look
really different, right? Kagan, 26 percent, Sotomayor 11 percent, and Jackson, as I said,
0 percent for Trump. So why is that? I have my own personal theory that this is like goes to the whole
problem, if you will, with the emergency docket. You don't have full briefing. You don't have full time.
You're only deciding what the status quo is going to be as the case is pending. And so you're far more
likely to sort of fall back on your policy priors than you would in the case. So, for instance,
during Biden, we're talking about 17 cases total that they took to the court. And yeah, to be clear,
these numbers, we're dealing with very small numbers here. It's 17 for Biden and 19 for Trump.
So when I'm talking about, you know, 74% of 19 and, you know, 53% for Biden, that's 53% of 17.
So anyway, of those half or so that Barrett and Roberts voted against the Biden administration,
they flipped when it got to the merits question in three of those, what a half of 17 is,
you know, eight or so cases that they had voted.
So almost half of the cases that they voted against the Biden administration, they then flipped and voted for on the merits question when they actually had full briefing.
And so when you don't have great factors for how to determine what the status quo is, where the irreparable harm is, likelihood of success, you are seeing a much more partisan outcome, at least, if nothing else.
I think the most important sort of substantive thing that I think that you said in that analysis was a lot of these cases are about a very narrow issue, which is the president's authority over the executive.
branch. And I've got news for everybody. The six justices of that were nominated by Republicans
have a different view on the executive authority than the three Democratic nominees. And so I'm just
going to, we can just go ahead and predict this, Sarah. If a case is coming up and it's about the
president's authority over the executive branch, Trump's going to win the vast majority of those
cases. He just is. If it comes up and it's about the substantive underlying policy of say,
okay, is birthright citizenship, is the change in birthright citizenship lawful,
then I think you're going to start to see those numbers shift a bit.
What's interesting to me is the tariff case is one, which is much more in the Biden mode
than the Trump emergency docket mode so far, because it's not about the executive branch's
authority over itself. It's about the executive branch's assumption of traditionally
congressional powers. Now, that's something where the court's taken historically a pretty dim
view of executive power. And so let me do an analogy that might be helpful to people. A lot of
folks, I think, thought that it was going to be that six, really five, five point five originalist
judges meant that there was going to be a lot of unanimity on sort of hard right substantive
positions, and have been a little bit surprised that 5.5 originalists don't agree with each other
on everything. But one of the reasons why people kind of got this artificial sense of originalist
unanimity was because of Roe. They were viewing originalism through the Roe prism, and there just
never was any kind of credible originalist argument that Roe was rightly decided. So imagine if you then
had a year of emergency docket litigation about Dobbs and Dobbs-related issues. You would
say, wow, that's a hard right court. No. It's just that the cases coming up have been specifically
in this particular area where originalism has spoken pretty clearly. And I think that's the case
when it comes to the power of the executive over the executive branch. There is a consensus there
that exists within a majority of the court. And I don't think that same clear consensus exists
when we get to a lot of the more substantive issues. I think that's right. And when you look again at
those Biden numbers and see that the liberal justices were far more likely to vote for
President Biden's emergency applications. Yes, but they have a different legal view of the
administrative state and the deference due to the administrative state, the expansive powers
of the administrative state. So again, one way to read this is partisan ideology, but another
way to read it is, yep, you found their judicial philosophies. And if you substitute Biden for
administrative agency lawsuits and you substitute Trump for executive, intra-executive branch unitary
executive theory, those percentages are going to line up about the same. And again, it's up to each
administration which lawsuits it's actually bringing to the Supreme Court even on the interim
docket. Now, unlike the merits docket where the Supreme Court can decline to grant cert
and not say anything, if the administration appeals to the Supreme Court, the Supreme Court is either
doing something or doing nothing. Either way, it is a choice. But people are forgetting it's still
up to the administration to even ask the Supreme Court. And in the example of Trump and definitely
in Biden, a very small percentage of their overall losses at these lower courts, they are asking
the Supreme Court to weigh in. As they said, the numbers are 17 and 19. And I think people
have this sense that it's, you know, hundreds. So you caught them. They have different judicial
philosophies about the administrative state and the executive branch. Woohoo. Yeah, I mean, if you're,
if you're saying, where are the cases upholding Biden's authority over his own administration?
Well, he never challenged the independent agencies. Like, this is, you know, one of the things,
differences between the Republican Party and the Democratic Party is the Democratic Party has long
been in support of these independent agencies. The Republican Party has had long had a position,
going back well before Trump
that these independent agencies
violate the separation of powers principles
in the Constitution.
And so, of course, you're not going to see Biden
challenging the FTC.
Biden liked the FTC.
He was good with it.
All right.
When we get back from this break,
since we did bring up the tariff case,
we have a delightful email from a listener
that taught us something.
So stick around.
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All right, David, this email is from John Endian. He is a professor of law at Brooklyn Law School,
and I can't read the whole email. I wish I could. It is so good. It is so nerdy.
it touches on everything you could ever want when it comes to the real nerd appeal of this
tariff case, you know, and IEPA.
There was this one part, David, that I think both of us were like, oh, interesting theory.
So here's a law review article coming out on this in the San Diego Law Review.
And his theory goes something like this.
When Congress delegates its power and we're looking at it through the lens, for instance,
of major questions doctrine.
It can delegate any of its enumerated powers to some extent and yada, yada.
But his point is, accept the taxing power.
Based on the history at the founding that he has done,
the taxing power had to be delegated explicitly and specifically,
unlike the other enumerated powers.
It is fundamentally different, he describes,
than the other enumerated powers.
So, to quote him, when Congress chooses to delegate its exclusive taxing authority to the
president, Congress must make clear its intent to delegate the taxing power.
It is not sufficient to simply point to a delegation of power in a statute for the president
to assert the power to tax.
Rather, Congress must have specifically delegated the taxing power to the president in order
to impose the tax.
Well, this gets to IEPA, right?
So the implication of this, of course, he says, is that IEPA tariffs are unlawful, not because of the major questions doctrine or non-delegation doctrine, though that may be true as well, but because a law that was enacted pursuant to Congress's power to regulate foreign commerce, after all, IEPA delegates power to regulate the importation of property, cannot be implicitly read to also authorize a different enumerated power, i.e. to lay and collect taxes and duties, unless Congress clearly indicated
such a delegation. Never thought about that, David. I know. I know. When I read that email, I thought,
well, man, you just put that better and more succinctly than I thought it. I thought about it.
That was very good. Yeah, and of course, he gives the example of President Ocasio-Cortez in
29 declares a climate emergency and immediately imposes a punishing tariff on all imported fossil fuels.
Under the government's view, that has to be lawful, right? And under the government's view where the
declaration of an emergency is unreviewable, the major questions doctrine is
inapplicable. And Aipa's delegation of power extraordinarily capacious. It seems that a carbon
tax levied on all fossil fuels used in the United States would also pass muster. And it's
not clear why a nationwide wealth tax to deal with, say the emergency power of rapidly
increasing inequality, wouldn't pass muster either. In other words, the implication of the
government's view seems to be that Congress, unknowingly, delegated nearly its entire
taxing power when it passed IEPA in 1977. I mean, this is actually my beef with it, and it's much
closer to major questions doctrine to me, although I really like his point about the separate
sort of historical analysis of needing to delegate the taxing authority explicitly. But like,
that is hiding an elephant in a mouse hole. You passed IEPA and you delegated all of your
taxing authority without saying so. That's major questions doctrine. That's Congress hiding
Elephants in Mouseholes, and we decide that probably they didn't, right? Congress doesn't hide
elephants in mouseholes. That would be a weird thing to do unless they had a sign that was like,
by the way, we're going to try to squeeze this elephant in this mousehole. If there's no sign that says
that, you can assume there's probably not an elephant in the mousehole. All right, well, speaking of
emails we got from listeners, this one came from Andy Smerich at the Manhattan Institute,
and it is on Rehnquistian clerk hiring and sutarian clerk hiring.
So yes, these are named after Chief Justice Rehnquist and Justice Souter.
The stats are kind of stunning, David.
So he is broken down clerk hiring by undergraduate in law school, by Ivy League plus degrees, and then by justice.
And so basically the justices who had an Ivy Plus.
degree themselves are significantly more likely to hire clerks that have an Ivy Plus degree as well.
And by the way, if you're curious, there's very few justices that don't have said Ivy League plus degree.
So at undergrad, it was Justice White, current Justice Barrett, Powell, Thomas, Berger, and Scalia.
And then for law school.
That is it for undergrad, not law school.
Yeah, now I'm on law school. So non-Ivey law degree, Rehnquist, Barrett, Powell, Berger, O'Connor, and Stevens. So of current justices, the only justice without an Ivy League law degree is Barrett. And by the way, note that I stopped saying Ivy League Plus, because we don't even need to expand to that. And you'll also see then that while for Chief Justice Roberts, more than 70% of his clerks have an Ivy League law degree,
for Justice Barrett, that number is just over 20%.
And so the point that Andy makes in this Law Review article is sort of like, hey,
the whole system has gotten biased because we have this very tried and true path to become a Supreme Court justice.
And when you have these justices that maybe come from other parts of the country,
come from other schools, that diversity carries through in the clerkships,
which then carries through to all of the doors that get open for Supreme Court.
clerks who maybe don't look like in a literal sense or in a metaphorical sense, all of their
fellow clerks. And it's a really interesting read. And I'll just read his last paragraph here.
To be a Rehnquistian, meaning to hire from a broader range of schools, does not mean discriminating
against the graduates of elite private schools. Indeed, in most Requestian states, Ivy Plus
graduates are still overrepresented in legal leadership roles. The most Rehnquestian justice, Rehnquist included,
a significantly higher percentage of IV plus college and law school grads than the IV plus
percentage of the college and law school graduate population. But being a requestian does mean
looking for and hiring talented individuals from a wide variety of schools. It is not clear
whether suitarians doubt the existence of such individuals or whether they are not interested
in looking for or hiring them. Whatever the reason, it can and should change. There is a difference
between elite higher education and elites in higher education. Okay. And there's a lot of elite
students, a lot of elite students in higher education at all levels. This is a, I use the statistic
often when I talk to people about this and it shocks them. What's the, what's the university in the
country with the most national merit scholars enrolled? Sarah, do you know? Most national merit
scholars, like if we're just doing numbers, it's got to be a big public university. I'm thinking,
Alabama, Texas. Bam, Alabama. So right now, I'm looking at the latest numbers from Alabama,
and they go back and forth between Alabama, sometimes Oklahoma, sometimes Florida. And you might
say, why, why these schools specifically? Well, they, Alabama, for example, if, unless I'm,
they've completely changed the policy, which I doubt, they used to, if you're a national merit
scholar or national merit finalist, you got a free ride, period. And so, you know, there was just
this giant incentive, and then all of a sudden, now Alabama has a community of 1,100, almost
1,200 national merit scholars on their campus. That's a lot of elite students on your campus.
And so, you know, you're going to have coming out of Alabama, just in raw numbers,
some of the most elite students in the country. And it pains me to say this, Sarah, by the way,
as a person who was born in Auburn. Auburn, I love you. You have lots of
of national merit scholars too. But, you know, Alabama really did a very smart thing. Oklahoma
did a very smart thing. These schools have done a very smart thing. And I think that the long-term
effect of those decisions is going to impact how we view higher education. That I do think the
combination of the way in which a lot of the elite universities have squandered their reputations
and their credibility combined with the fact that they are now a lot of big state schools that for a
decade or so have been pumping into the American marketplace. Some of the smartest people in
America means I think that the tail effect of this is 10, 15, 20 years from now going to be
interesting as the upper ranks, so to speak, of American society are populated by more
Auburn and Alabama and Florida grads. All right, David, I've got one more that I want to do today
because it's sort of a quick one. Do you remember that case about Deborah Loeffner, who had
filed hundreds of Americans with Disabilities Act claims against hotels across the country that
she didn't intend to visit. But like if their websites didn't tell her the information about whether
they had ADA accessible rooms, that itself violated the ADA. So she said, and she filed
all these lawsuits. She created her own circuit split in doing so. And the Supreme Court finally grants
cert on one of those cases. And everyone is going to, like, everyone thinks that the Supreme Court is
going to say she does not have standing. She does not actually have an injury because she doesn't
ever intend to visit these hotels. She's just one of those people who like surfs the internet to file
lawsuits. And it costs tons of money because most places just settle with her. And so she gets like
$10,000 a pop or whatever. And her lawyer turned out to be corrupt and blah, blah, blah. So she
moots out her case and tells the Supreme Court, don't decide this. Never mind. I won't file any more
cases like this. And I was shocked. But the Supreme Court went along with it.
it. And Justice Barrett wrote and said, like, yep, it's moot. But if this keeps happening, we reserve the
right to treat it differently, basically. Well, here we are, David. So you know that case that the
Supreme Court granted cert about transgender participation in women's sports. Well, the ACLU has filed a
petition at the court, trying to argue that the case is now moot. Respondent Lindsay Heckox
notifies the court that she has voluntarily dismissed with prejudice her claims against
petitioners in the district court. Because she has voluntarily dismissed, it terminates the proceedings,
yada, yada. She respectfully submits that this case is moot because she has no live claim
against petitioners. Because of her voluntary decision to dismiss her claim, mooted the case,
the court of appeals decision in her favor should be vacated. The court should therefore vacate the
court of appeals judgment and remand with instructions to dismiss the appeal. David,
they can't keep letting this happen because when someone like the court grants cert and then you think
you're going to lose so you then dismiss your case with prejudice but the problem is right there's
all sorts of these cases they've won some they've lost some what about all the cases where they
won are they willing to dismiss those and moot or vacate out those appellate decisions i don't think
so um so when the supreme court only takes vehicle cases that will then affect dozens of
circuit decisions, and pending cases around the country, I don't see how you can continue to
let litigants choose which vehicle you're allowed to look at.
You know what this is downstream of? It's downstream, I think, of the really tremendous
reporting that exposed sort of the hubris of the legal strategy that led to the loss in the Scrametti
case, that all of these people were saying to these, you know, the LGBT advocates,
what are you doing pushing? What are you doing? This is, you're not going to win this case. You're not going to win this case. And they pushed it and pushed it and lost. And so now they have this other case coming up where, you know, you don't like to say that any given case is a foregone conclusion. But let me just say, Sarah, if this court rules that biological men have a right to participate in female sports, I will fall out of my chair in absolute shock. Like I just totally stunned.
that's the ruling. And so they're standing there looking at these litigation strategies,
which I think quite obviously was undertaking and sort of imitation of the litigation
strategy that resulted in Obergefell, is just hitting a massive brick wall, just a massive
brick wall. And basically, anyone who knew anything about the court could have told them
this years ago, years ago, that the very, very, very aggressive legal arguments that they were
making were just not going to have fined purchase at this Supreme Court. And I think that that message
is absolutely sunk in. And so now they're trying to sort of unring the bell. And I just, A,
don't think they can, nor do I think they should be able to. You can't march an issue all the way to
the Supreme Court, not just to the doorsteps of it, into the door, and then say, oh, I think we might
lose this, our bad. That's, especially when, as you said, other cases have been out there. There have
been other court rulings, including court rulings in their favor. Are they going to go back
and vacate all of those? No. So, yeah, this is, this strikes me as gamesmanship that the court
shouldn't tolerate. All right. We'll cinch the bag for today, because
we have an amazing guest coming on the podcast next. Professor Richard Primus from the University
of Michigan has this fascinating. I mean, really like paradigm shifting idea in his book,
the oldest constitutional question. And before we get to him, though, I want to prepare listeners
with all of the text and stuff so they can feel and form before we jump into the conversation.
So first, Article 1, Section 1. All legislative powers here in granted shall be vested in a Congress
of the United States which shall consist of a Senate and House of Representatives. So a lot of what we're
going to be talking about is Congress's enumerated powers, as in the thing the Constitution lists that
Congress has the power to do. Does that mean Congress has only those powers? Or is it just like
listing them because the president doesn't have those powers? So when we talk about enumeration,
we're talking about this list and we're talking about that Section 1 language. We're also going to
talk about the 10th Amendment. Let me read that to you. The power's not delegated to the United
States, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.
Is delegated the same as enumerated? All things will discuss. And David, part of what makes this so
interesting to me, as we're growing up in this era where Congress isn't doing much, I mean,
in the generation right before this, the problem was that Congress was doing,
too much, right? It was this like crazy Congress with their commerce powers and they were just
unlimited power. And now we're like, ooh, how do we make Congress like poke Congress with a stick
and hope they're alive still? And so it's interesting because if you had brought this idea that
Congress's powers aren't limited 20 years ago to conservatives, I mean, you would have been
chased out of the room with pitchforks. I might have held one of the pitchforks. But we're
experiencing a very different separation of powers crisis right now, which is the exact opposite,
a sort of zombified coma Congress. And now the idea of like, I don't know, maybe if we tell
Congress they have all the power they want, maybe they'll try to like lift a muscle. I don't
know. Also, in which I learn that I read the Constitution like a Protestant. So all that and
more in the conversation coming up.
What are the new technologies that will change aviation?
Well, hydrogen would be one for sure if we got there.
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Today, I'm speaking with Kalin Rovinescu, the former president of Air Canada, and a trailblazer
in global aviation.
Join me, Chris Hadfield, on the on the on.
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lattes, protein without all the work at participating restaurants in Canada. Without further ado,
we will now welcome Professor Richard Primus from the University of Michigan to the podcast to discuss
his book, The Oldest Constitutional Question. All right, Professor, what are we doing here? What's the
oldest question? The oldest question is, what's the division of power and the division of responsibility
between the national government and the state governments? The Supreme Court has called that our
oldest question of constitutional law. It's probably right to call that our oldest question of
constitutional law. And this book is about the primary way in which constitutional lawyers have
traditionally understood this question, which is as a function of the enumerated powers of Congress.
Every law student learns that the federal government is a government of enumerated powers,
meaning that there is a textual list in the Constitution of things that Congress can do.
Congress can do what's on the list and not what's not on the list.
This is the opposite default rule from a state legislature, which presumptively can do anything
that isn't affirmatively prohibited.
And we are taught that the enumerated power,
system for Congress is fundamentally important for federalism. It's how we preserve the appropriate
balance of power between central and local authority, that it's a fundamental part of the framers
design, the Constitution was built to work that way, that the text of the Constitution requires
it, and therefore that it's very important that Congress only be permitted to legislate as
is specified in the textually enumerated powers, and that those textually enumerated powers
together give Congress less ability to do things than it would have if it were like a state
legislature, a legislature of general jurisdiction. This is all bedrock conlaw 101 stuff.
And this book says, most of it's wrong. I thought about calling the book everything you know
about enumerated powers is wrong, but decided that I shouldn't for a few reasons, including that
not everything you think about enumerated powers is wrong. It's just mostly wrong.
So, of course, that raises the very next question, which is, what are we wrong about specifically
in that analysis?
Okay, good.
So we're wrong about a few connected things.
The idea of enumerated powers and constitutional law isn't just one proposition.
It's a web of related ideas and attitudes and stories.
Some of them are ways that we are taught to read the constitutional law.
constitutional text, where the text might mean more than one thing. And this way of thinking about
things tells us it means this and not that. Some of them are accounts that are historical,
stories about why the framers did what they did, and indeed what they did. And some of them
are accounts of how federalism works and the role that enumerated powers play with in federalism.
And they all kind of hang together, which makes sense, right? You would expect them to make
sense. This whole way of thinking in the book I call enumerationism. And what I want to say is that
enumerationism is a lens through which we understand constitutional law. It's not a set of facts
about constitutional that must be true. The document is written in English is a fact about the
constitution. If you approach it on some other assumption, you're just doing nonsense.
Enumeration isn't like that. It's one way of looking at how all this works. And there are other
possible ways. And enumeration is a flawed way. So what are the flaws? Because you ask me what's
wrong. Here are some of them. First, the text of the constitution doesn't
say that Congress is limited to its enumerated powers. And I think it quite deliberately doesn't say
that. I think it's deliberately written to leave that question open. Historically, the enumeration
of powers was not written, or at least not primarily for the purpose of limiting Congress.
It was probably written primarily for the purpose of empowering the national government against
the states and then of empowering Congress against the president. That is, it was intended to do a lot
of separation of powers work, which we've mostly forgotten about because we mostly think it
sounds only in federalism, which leads to a common phenomenon in modern con law where they say the first
thing you learn about enumerated powers is Congress can only legislate on the basis of the
enumerated powers, and that's limiting, and that's important. But the second thing you learn by the end
of the semester is in practice, it's not very limiting, right? For a hundred years, Congress has been
able to legislate pretty much anything that isn't affirmatively prohibited and bring it
within the enumerated powers. And a lot of people think, well, that can't make sense because
then the enumeration isn't doing anything. And that's a fallacy. That's a fallacy, because you would
only think that if you think that what the enumeration is supposed to do is limit Congress.
If it's supposed to empower Congress, and if it's supposed to allocate powers to Congress as opposed
to the president, it's actually doing a lot of things. And historically, I think that's
most of why it was written. And then one more thing, really importantly, federalism
is super important. I like federalism, and I like locally autonomous decision-making. And the book is
not an argument that everything should be decided at the national level. I think that would be a really
bad idea. What I'm saying is that the enumeration of powers is not a helpful tool in federalism.
You think that when you do enumerated powers, you are limiting the scope of what Congress can do
and therefore preserving federalism. But in fact, that's not what limits Congress. Congress is limited,
but that tool is a bad tool for the job of limiting Congress.
It wasn't designed to do that.
It doesn't do that in practice.
The reason that Congress isn't limited by its numerator of powers is it's a lousy tool,
and we should stop expecting the enumeration of powers to do the work of limitation
that is really important to be done, but this is the wrong technology.
Okay, there's maybe three pieces of this book that I found the most fascinating.
One, you're not an originalist, but you make a little bit.
a lot of originalism arguments here for the benefits of people like me and David, and really
not for us, frankly, but people like us, I suppose. Second is this practical point that even if,
you know, sort of intended to be enumerated, it hasn't been. And so what do we want to do about that
now? But there's also this third point that I just don't want people to miss out on, which is,
I actually think the book is a really interesting meta read on how to make an argument
when you're the only person making an argument against a sea of, let's call it the
flat earth, you know, just sort of everyone accepts this.
And you're like, actually, I'm not saying you have to accept this, but at least one other
interpretation of this data could be.
And I just found your method of argumentation, delightful and persuasive, because of the
way you made the argument.
And I hope to keep that with me as well.
So for no other reason, if you don't care about enumeration at all,
I just think it's a really cool read on how a very smart person with receipts
nevertheless can make a pretty humble argument.
And especially because you're not an originalist.
So I want to start at the originalism point where, correct me if I'm wrong,
but like you've got this letter from Madison where Madison basically says enumeration
would be a bad way.
This is before the constitutional convention even.
Annumeration would be a bad way to limit powers, just like in a theoretical sense as he's
talking to someone about their state constitution and sort of what how you would limit a legislature's
power, how you wouldn't, what it'd be good for internal limits versus external limits.
And you sort of get to the punchline of like probably Congress didn't agree on whether
Congress's powers should be limited to their enumerated powers.
That's why it never says one way or the other.
Not that it is clearly that Congress's powers weren't limited to their enumerated
powers, but that they didn't agree, which I think is a fascinating originalist place to end.
And I think you mostly convinced me until we got to the 10th Amendment.
And so I hope you'll discuss sort of that original originalism in Madison and then try to
persuade me on why the 10th Amendment doesn't blow this up.
You make an argument about delegation versus enumeration and Constitution, big C, and little
see and I felt like, I don't know, maybe the earth is flat. I want to acknowledge and appreciate
the very high compliments that I take you to be giving me about the mode of argument. I think that
the virtues of certain kinds of scholarly craft are enormously important. I think that care is
important. I think that being candid with your audience about how your argument works and what
its limits are really important. Those are all things that I tried to do in this book.
Next, you're right, I'm not an originalist.
And I don't understand the book to be making originalist arguments.
I think it makes historical arguments, which people who are originalists might pick up and fit into their paradigms and then decide what to make of them, right?
Because it is my view that the conventional story that originalists and non-originalists tell about the origins of the enumeration, right, that it was done because there was an agreed upon plan to leave.
limit Congress to this mechanism is wrong. It's wrong not because nobody had that idea. It's wrong
because that idea wasn't sufficiently a matter of consensus, you know, to command agreement and
be written into the Constitution or be tacitly agreed upon without being written into the
Constitution. It was not a settled question. Depending on what kind, if you are an originalist,
and depending on what kind of originalist you are, that might trouble you about the status
of enumerationism, right? There are various things that you could do about it.
For me, that set of propositions about the history doesn't establish what the law is today because I'm not an originalist.
But I want to provide historical accounts that complicate the accounts that originalists and non-originalists use to undergird the conventional enumeration's paradigm.
Because to the extent that you think enumerated powers need to be limiting because you think the history requires it, because you're an original.
or otherwise, I want you to understand, yeah, your minor premise is wrong.
The history doesn't do the thing that you think it does.
And I'm not going to argue with you in this conversation about your jurisprudence.
I'm just going to tell you that if you crank the handle on your jurisprudence with the actual
history rather than the story that's told, it's going to be more complicated and you're not
going to get where you want to go.
On the 10th Amendment, let me start at the end.
Sarah, you said that you were persuaded until I got to the 10th Amendment and then you read
it and you thought, yeah, I don't know. And what I want to say is, if you come out of this book
thinking, I don't know, I'm going to count that as a win. Because my best case scenario is that
people will read my book and say, yeah, he's right. Enumerationism is not a constitution
required paradigm. And in fact, it's not a very good idea. But my second best case, which I think
is frankly good enough, is that people will stop regarding enumerationism as necessarily
obviously correct, and think of it as one contestable way of understanding what's going on.
So having said that, let's get into the substance, right, on the 10th Amendment.
The 10th Amendment is conventionally read as if it said the powers not enumerated in this
constitution as belonging to the United States government are reserved for the states,
right? Maybe exercised exclusively by the states or something like that.
what it says is, the powers not delegated to the United States by the Constitution,
nor prohibited by it to the states, are reserved to the states, respectively, or to the people.
And the book walks through these things.
There are a bunch of reasons why that's not the enumerationist dictum that people think it is.
One is the middle clause, nor prohibited by it to the states, the Constitution prohibits
the states from doing certain things.
By the terms of the amendment, those things are not covered by the 10th Amendment in any way.
They're outside the coverage of whatever this amendment does, which means nothing about the 10th Amendment says the federal government can't exercise those powers, right?
That is, say, if a power is prohibited to the states, it might be a power that the federal government can exercise whether it is textually enumerated as affirmatively belonging to the federal government or not.
The 10th Amendment is silent on this.
And this point is not original to me.
I know if it's having been made at least as early as 1890, largely submerged and forgotten, right?
Like it's not part of how we normally think about it, but it's clearly right on the text.
Right. The second thing is, it doesn't say the power is not enumerated. It says the power is not delegated.
And every good lawyer knows that there are multiple ways of delegating a power. You can do it expressly in writing. You can do it orally. You can do it implicitly. There are some sorts of agency relationships in which delegation is inherent, right? Delegation can be done a bunch of different ways. And the people who wrote the 10th Amendment knew this. We know that they knew it because when the text was pending before Congress,
there were two attempts to insert the word expressly before the word delegated.
Had they done that, the 10th Amendment, that part of the 10th Amendment would say what enumeration
thinks it says.
But Congress rejected that proposal twice, which means Congress did not, Congress,
understanding that you could re-delegated to mean something broader, chose not to make it
mean the more specific thing.
Now, they didn't choose to say the powers not delegated to the United States,
whether expressly implicitly or otherwise, comma, right? They didn't resolve the question against
enumerationism, but they quite clearly made a conscious decision to write a text that would leave
the question open, right? That's the second level. So for those reasons, it seems to me pretty
clear that on the text of the 10th Amendment, the possibility of implicit federal powers is not at all
precluded. We think the 10th Amendment precludes those powers because we understand it to be a
principle of the system for a bunch of different reasons that such powers are precluded.
And then we, this is just normal con law behavior, we staple that thought to the piece of
constitutional text that comes closest to saying that thing, right?
That happens a lot in con law.
What I just want to point out is that's what we've done.
We've stapled a non-textual thought to the text and caused ourselves to think that that's
what the text says.
Last point.
There are two alternatives to enumerationism, not whether they're actually multiple, but there are two big ones that I think have actually typified American jurisprudence, because I think enumerationsism is not really how we've done things. It's just how we've talked. One is the model of implied powers on which Congress has its enumerated powers, and it also has a set of implicit powers arising from the fact that it is the national government, more or less. That, I think, was the dominant jurisprudence of the Supreme Court through a bunch of the 19th century and through the early 20th. We repress.
that memory, but it's there, right? That's the threshold. The next level is, why can Congress
organize and operate the post office? The text of the Constitution says the Congress has the power
to establish post offices and post roads. So I know why they can establish the post office,
but why can they hire the people who deliver the mail and tell them how to deliver the mail?
That goes beyond the establishment of a post office or a post road. Nor is the operation of the post office
necessary and proper to establishing a post office or a post road. The necessary and proper relationship
is the other way around, right? But we agree that Congress can do those things, even though it's
beyond the text and necessary improper doesn't get you either. And then there's the big stuff.
There are all kinds of Supreme Court cases from the middle of the 19th century to the beginning
of the 20th in which the Supreme Court explicitly affirms congressional legislation that it is
not based on any enumerated power. The legal tender acts that give us greenbacked
currency, which is kind of a big deal in the American sociopolitical order, right? Territorial
governments, Native American affairs, election administration, foreign affairs, right, and
Curtis Wright. There's this whole basket of decisions that the Supreme Court issued from the
middle of the 19th century to the eve of the New Deal in which the court sometimes says,
yeah, Congress has this power because it's a national government. The modern court hates
these cases. It tries to repress them away, but they're there in the United States report.
And then a funny thing happened in the New Deal.
The conventional story is the Constitution was written to be enumerationist, and for a long time,
it worked the way it was supposed to.
And then the New Deal court came, and it messed everything up by giving us overly broad
constructions of some of the enumerated powers, principally commerce, taxing, maybe necessary and proper.
And since then, the enumerated powers haven't limited.
That's the conventional story.
What I want to say is, you see, it didn't work the way enumeration thinks before the New Deal either.
Because before the New Deal, there were a bunch of implied powers, not enumerated, what the New Deal actually did, the part of the conventional story that says the New Deal court adopted significantly broader constructions of the enumerated powers is correct.
And the part that says, and therefore the enumeration doesn't limit much anymore is also correct.
What the conventional story doesn't recognize is the reason that we don't do implied powers anymore is that since the new deal we haven't needed to, if you get every, if you Congress get everything you need from the enumerated powers, you never have to go to the Supreme Court and say we have this power even though it's not on our list. Everything is on our list. What could be better? And so the broad constructions of the enumerated powers preclude the need for going off list. That, I think, is the development that has actually happened. And there's nothing in the
the 10th Amendment that says you can't do that, right? There's nothing in the 10th Amendment
that says the powers that are delegated, whatever they are, are collectively less than a police
power. It just doesn't say that. We read it that way because we have the conventional picture
in our heads that says, enumerated powers are necessary for federalism, which means limiting
the federal government, and therefore that must be implicit in the 10th Amendment. But I don't find
that in the words of the text amendment, in the words of the 10th Amendment, I find that in the general
theory of enumerationism, which I think is, you know, in all of these little ways that I talk about
in the book, not quite right. You know, in looking at this and just sort of zooming back about
and just thinking about constitutional interpretation more broadly, it strikes me, and this is,
this is, you know, certainly absolutely when you're talking about the breadth of the language,
how sweeping a lot of the language is in the Constitution, but not, it's sweeping but imprecise
often. But sometimes it's quite narrow and precise, like president must be 35 years of age and
older. And it feels as if, let's suppose there was general consensus at the Constitutional
Convention that the president should be a mature adult, but they absolutely could not figure
out of precise age, that they would say something like the President of the United States should
be a mature adult and then like leave it for degeneration to figure out exactly what that
means with that intent in mind. So sometimes they do things quite precisely and many times
they do not. The executive power of what is the executive power, the legislative power.
These are not very precisely defined words. And so here we are more than two,
hundred years later, sort of trying to parse this broad language, almost like we're a bunch
of biblical scholars peering and dusting away in ancient text and trying to figure out what the
words are written in a language. We don't fully completely 100% understand. And how much of
our digging through and picking through and trying to figure out like what is the actual real
golden nugget here? What's the actual true interpretation?
How much of this is sort of downstream from the idea that this Constitution has been amended
a lot less than the founders thought it would be amended?
And so we're kind of stuck with the vagueness when we were never, that vagueness was never
necessarily intended to be permanent, if that makes sense.
Well, I think there's a lot there.
I think a lot of it is right.
I think that a great deal of how we do constitutional interpretation is a function of the fact
that the text is old.
I'm completely with you on the biblical analogy.
I come to it largely from that frame. I grew up in South Bend. My father taught theology at Notre Dame. And one of the things that I know is that there are very few moves that constitutional interpreters know that the biblical hermeneutists did not know long before them. And that's partly because it's an old text. It's partly because it's a sacred normative text. And therefore, it must be made to mean the thing that the interpreter would like it to mean. By the way, that's part of why
not an originalist. I'm not an originalist because I believe in the rule of law. I know that most
originalists have the view that the rule of law calls for originalism. And I have the view that
that's a reasonable starting idea, but that in practice, what originalism does is destabilize
the rule of law because it lets you come to a current practice that is stable and say, yeah,
but it wasn't supposed to be that way at the beginning. And that's antinomian, right? That's Luther
against the Catholic Church, essentially.
But I want to push also on one other point.
It is conventional for good reason in constitutional interpretation to say there's a division
between the specific and the general, the vague and the precise pieces of constitutional text,
and we need to treat the specific, precise ones as the rules they are, and the vague ones
we do our best with one way or another.
That's not quite true.
That's a tidier story than is real, because there are very specific texts.
in the Constitution that we don't abide by.
So, for example, the Constitution says that senators serve six-year terms.
After the first Congress, when the division was made to stagger senators, right, the Constitution
provides for two- and four-year terms to get the system going, there is no provision anywhere
in the Constitution for anything other than a six-year term.
But senators from 39 of the 50 states have been elected.
for non-six-year terms corresponding to nothing in the Constitution, because when the states
were admitted to the Union, they weren't on that day on the two, four, or six-year cycle, right?
You send your senator for the first time with 18 months to go before the next elections.
So they were elected for three and a half years, five and a half years, right?
That steady practice, going back to the 18th century, there is not a word in the Constitution that
permits that. The Constitution says the senators shall be elected by the people of each day
for six years. We could have done it that way. It could have been that when Michigan came
into the union, the senators were elected for six years from that date. And we would then just
have like a rolling Senate essentially, right? Like every month someone's getting elected from
somewhere. It'd be better in some ways. It'd be worse than others. But it would be consistent with
the text of the Constitution. We don't do that, which I bring just to make the point that it
It's not even as simple as what the text specifically says we do.
It's more complicated even than that.
Professor Richard Primus and his book, The Oldest Constitutional Question,
you know, friend of the pod, Professor Levinson, told me this was the most exciting book of the year in law.
He did not disappoint, as he never does.
And I think my biggest takeaway from this, oddly, is this idea that originalists are
the heir to Martin Luther. That makes actually a lot of sense to me. What a fascinating historical
analogy. I'm going to be chewing on that one for a while. Thank you so much for coming on
advisory opinions. The book was a treat. Okay, David, that's it for us today. If you like what we're
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even the ones that say David's right. That's going to do it for our show today. Thanks so much
for tuning in. We'll see you next time.
We're going to be.