Advisory Opinions - The Takings Clause

Episode Date: March 25, 2021

On today’s pod, Sarah and David give us an update on the goings on at the Supreme Court, with an in-depth look at a union takings case out West. “A California regulation allows union representatives to meet with farm workers at their work sites for up to three hours a day for as many as 120 days a year,” Sarah explains. “And so the question is: Is this a per se taking under the Fifth Amendment?” After Sarah and David discuss oral arguments for the case, they do a deep dive on a 9th Circuit Second Amendment case, Twitter’s lawsuit against Texas Attorney General Ken Paxton, and a Massachusetts Supreme Judicial Court case on the ministerial exception. They wrap things up with some much needed Netflix recommendations and a conversation about D.C. statehood. Show Notes: -Cedar Point Nursery v. Hassid and Supreme Court oral arguments. -New York State Rifle & Pistol Association Inc. v. Corlett and Holloway v. Garland. -Twitter, Inc. v. Ken Paxton. -Deweese-Boyd v. Gordon College. -Torres v. Madrid. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Get almost, almost anything delivered with Uber Eats. Order now. Alcohol in select markets. Product availability may vary by Regency app for details. You ready? I was born ready. Welcome to the Advisory Opinion Podcast. This is David French with Sarah Isger. And my goodness.

So, Sarah, one of the things that is awesome about this podcast is that we now are receiving almost instantaneously from people, uh, correspondence all over the country, uh, immediate interesting legal filings, immediate interesting case, uh, court decisions. And I, you know, and when I say interesting, I mean like 90% of them are actually interesting. And so what it's doing is we're not lacking for topics anymore, but my goodness. No, we have the opposite problem. Yeah. Yeah. We got to dive in. We're burning time. I know.

So here's the run. Here's how it's going to go. We're going to talk about the Supreme Court, a union oral argument, I know. So here's the run. Here's how it's going to go. We're going to talk about the Supreme Court, a union oral argument, the conference. We're going to talk about Ninth Circuit decision on the Second Amendment that was very interesting. Twitter has filed a lawsuit against the Attorney General of Texas.

The Massachusetts Supreme Judicial Court has made a boo-boo. We're going to talk about D.C. statehood. And we're also, Sarah's going to urge, going to end with a pop culture recommendation. So, my goodness. Okay, Sarah, we're going to hand the baton to you first to talk about what is going on at the Supreme Court of the United States. First up, yesterday there was another big argument. This was when the police can enter a home without a warrant when the intent is not to conduct a criminal investigation, but to check on the occupant's health or safety.

This happens a lot. It's happening more and more as police take on these sort of social welfare roles. We're going to table that and do it on Monday because we have a different argument to talk about, the argument that happened earlier in the week. So this is the case, the union case and the takings case. A California regulation allows union representatives to meet with farm workers at their work sites for up to three hours a day for as many as 120 days a year. And so the question is, is this a per se taking under the Fifth Amendment? The anti-regulation guys are not arguing that it's a regulatory taking. They are saying that if California allows the union representatives to step foot one day on the property, that is a per se taking that they need to be compensated for. Now, at the argument, they made a very

easy carve out of why this doesn't apply to health and safety inspectors, mine inspectors, food inspectors, et cetera. Basically, what he said is the government's just different. The government always under common law has had the right to do a reasonable government inspection of property without it being a private, a taking of private property. And he said, now, you may violate the Fourth Amendment because it's not reasonable, but you don't violate the Fifth Amendment when that happens. It is not a taking when the government does it. But when the government allows a third party to come on your property, that's a per se taking according to them. So how did it go? I'm going to highlight three of the

justices here, Kavanaugh, Alito, and Barrett, because they all took pretty different tacks. Top line, California's regulation is not going to last. This case will strike down that regulation. How broadly it does so is a big question. Because you have Kavanaugh saying, look, we don't even need to reach this Fifth Amendment per se taking issue, which would be a huge, broad, all regulations that allow third parties to do anything as a taking all of a sudden. He says, you'd win under this case called Babcock. It's from the 1950s. It's about the National Labor Relations Act. So this is federal law, not state law. But what Kavanaugh is saying is we could use the same standard that we used federally and we could use it at the state level. And this says, if the location of a plant or the living quarters of the employees place the

employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property. So it's sort of a, you know, if you don't make them available, then you have to allow the unions or you can make them more available and more easily accessible. But of course, the plaintiffs really want this per se taking rule.

And so they kept arguing about how, no, that's not what this is at all. And that's federal and this is state. It's totally different. And have you noticed the Fifth Amendment, Justice Kavanaugh? So Justice Kavanaugh keeps asking over and over again. And then finally he says, Justice Kavanaugh, just to be clear, I'm saying you would prevail under Babcock.

You don't want to prevail under Babcock, though? And the guy's basically like, yeah, we don't want to win under Babcock. Stop with the Babcock. All right. So then you have Barrett. Well, that's what's this phrase from the movie, the classic movie, Dodgeball. It's a bold move, Cotton. In other words, we want to win.

Sure. Well, no, we don't want to win that way. We want to win our way. I mean, in order to take that position, you have to be so confident that you're winning this thing no matter what that now you want to win by a touchdown not a field goal right okay yeah okay all right well anyway that's uh you know and dodgeball the bold move paid off so true uh yeah kavanaugh and roberts seemed quite hesitant to go all the way to the per se rule then you have barrett and she's uh restating the plaintiff's case if you will it's really not about whether property

has been taken it's about whether that's reflective of the government's intent to occupy or take, which is why that language in this other case talks about if the intent behind a single shot was to assert control over the property, then the taking would be complete. And that there's no question about the intent here because it was accomplished by regulation. The point being that whether it's one day on the property

or 120 days on the property or 120 days on the property or 365 days on the property, that goes to the amount of compensation due, not whether there was a taking. And that becomes a really interesting argument at various points in this, because you know how Kagan runs through like, what if it's this? What if it's this? That's her new argument thing. So both sides got run through the ringer on this. Like, okay, it's 120 days for three hours per day. But what if it were one hour on one day? Is that a taking? And the one side's like, yeah, definitely. Then we're just talking about basically no compensation. And then to the other side, they're like, what if it were 360 days? And the guy's like, nope,

what if it were 360 days? And the guy's like, nope, not a per se taking. So that's where we get to Alito talking to the other side. This is the California Solicitor General, who I actually thought did a really nice job in that persuasive position that I've talked about, David, where your job is as the explainer. He did a really nice explainer argument, but he had a tough road to hoe. So David, you're of course, very aware of the case Penn central. Penn central is about regulatory takings. And basically if you end up in a Penn central world, you and I've talked about this before, you lose. Penn Central says the character of the government action, they look at the character of the government action, a taking is more readily found when the government has physically invaded the property than when

interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good, which doesn't mean a whole lot to a lot of people. But Alito's question to the California Solicitor General, I just thought, Alito is done. He's just done with all of this. He is cutting through in every argument. So here's Alito's statement. Did we start out with Penn Central? If it was an easement for everybody, 365 days a year, is that a Penn Central question? Do you think everything is a Penn Central question?

Alito, not the biggest fan of Penn Central. So those are three different approaches from the conservative side. You have, per usual, Kavanaugh and Roberts saying like, look, I'm not sure we need to get to this per se taking. You have Barrett on the, okay, the taking versus the compensation is really where we need to be looking. And you have Alito saying, F this noise, I'm out.

So that was sort of the argument, David. that was sort of the argument, David. Well, that's a fantastic summary of a case that, you know, I was interested in that case and then I got less interested as more interesting stuff kept occurring over the course of the week. But I'm glad, you know, you put a period on our sentence because we had said we were going to run through this argument and run through it we did. because we had said we were going to run through this argument and run through it we did. And so what's your final, do you have a vote count prediction? I don't. It's certainly 6-3.

Kagan, you know, Kagan was there. She was actually asking real questions. I think in the end it's probably 6-3 with some concurrences. But hard to say from this argument, actually. It was not as clear because we were getting into the weeds on some of these old precedents. I like the new argument format, but it actually does make it harder to predict where people are. But last thing on the Supreme Court, and we'll get to this in our next topic, on Friday is

a conference day. That's where they look at the cert petitions, the various cases that people are asking the Supreme Court to take. And we know in advance which cases are up in conference. Now, we don't know what happens in conference. We never will find out what happens in conference. And cases will get pushed from conference to conference to conference, and we'll have no idea why. But up for the first time on Friday is a New York Second Amendment case. So this is New York State

Rifle and Pistol Association versus Corlett. These two guys named Nash and Koch applied for New York licenses to carry firearms outside the home. They were denied after the licensing officer said they had, quote, failed to show proper cause to carry a firearm in public for the purpose of self-defense because these two dudes did not demonstrate a special need for self-defense that distinguished them from the general public. There are actually quite a few second amendment cases pending right now. There's two others, Holloway v. Garland, which will come up in conference on April 16th. This is whether a lifetime firearms prohibition for felons can include nonviolent misdemeanor convictions. This person was a DUI. That's Holloway versus Garland. And then there's,

oh gosh, someone versus Barr. Sorry. I'm so sorry. I can't pronounce your name. That person made a false statement on their tax return. That case has not been scheduled for conference, but it will be April 16th probably is my guess because it's so similar to that other nonviolent misdemeanor versus nonviolent felony. Those two are going to get wrapped together if they take them. You know, so I think here's my prediction and this will roll us into the next topic, which is the Ninth Circuit en banc decision, Second Amendment, Ninth Circuit en banc decision from yesterday, which was really, really interesting. If I had to predict, I would say that the next big Supreme Court case is going to be on the

carry provision, on the ability to carry outside the home, sort of the focusing on the bare arms, part of keep and bare arms. Because if you were going to go to a person, even like say an average person who is interested in gun rights, like this is something you're interested in, maybe you own guns or maybe you're a gun control activist, and you were going to ask a question. And the question was this. What right under the Second Amendment, what is the specific parameter of the Second Amendment right that the Supreme Court of the United States has acknowledged so far? In other words, what is the Second Amendment according to the Supreme Court so far? And here it is, Sarah.

You want to hear the whole thing? The whole thing is you have an individual right to keep a firearm for your protection in your home. Yep. The nature of the firearm is not defined. I mean, there's some dicta about where the court might have gone if you press them on the nature of the firearm. They talk about weapons in common use for a lawful purpose as a sort of a guidepost of what the Second Amendment would protect. But that's dicta, that's not binding. Right now, the Second Amendment is the ability to keep a weapon of an undefined type in your home for self-defense, period. And the only expansion since Heller has been to, that applies to the states as well as the federal government. Correct. You have a right against the state and local state, federal,

local governments to keep a home, a weapon in your home for self-defense. And that is kind of surprising to people because most people think of their second amendment rights as a lot broader. And that's because those rights are defined by state governments. And federal regulation is relatively light. I mean, there are regulations regarding who can possess a weapon, or there are background check regulations and things like this. But as far as the federal, where you get your conception of gun rights is based primarily on state statutes. So you go everything from states where you have constitutional carry, which is the Second Amendment is my gun permit.

If I can lawfully possess a weapon, I can lawfully carry that weapon out in public and in any establishment that doesn't prohibit me, to states that say, no, you don't have a right to carry at all. Your ability to carry outside the home depends on us determining that, say, for example, you might be in danger, that you might face special danger. In those circumstances, and it's entirely up to government officials, that's the only time you can carry outside the home. So it varies widely in America. It varies widely. And so because this conflict deals so squarely

with the actual language of the statute, keep and bear, and because there's a circuit split on this point, it seems like this is the logical next decision to come it's a cavernous circuit split too both sides saying absolutely this is what the history of the second amendment was yeah yeah it's it's irreconcilable it's a circuit chasm yeah it is a it is there is so much conflict between the circuits that they're like the sharks and the jets at this point, West Side Story reference.

So the Ninth Circuit, however, is certainly not split amongst itself. This was a 7-4 ruling. It upheld Hawaii's limit on open carry in firearms. This guy had sued the state for denying he had twice applied to get an open carry license to carry his handgun outside the home. Hawaii twice denied him. He sued. And the judge writing for the majority. Now, remember, the Ninth Circuit has, I believe the exact number is a zillion judges on it at this point. And so when they sit en banc, they do not sit en banc.

They split, actually. So your en bancs are roughly half the Ninth Circuit. So the judge writing for these seven judges is Judge J. Bybee. He is a W nominee. Money quote, there is no right to carry arms openly in public, nor is any such right within the scope of the second amendment. Well, that's pretty clear. Now it's really important to note, however, that the ninth circuit quite recently also held that there's no right for concealed

carry in public. Correct. In a California case and that California can ban concealed carry without a license and can deny licenses basically unless you have a special need to conceal carry. So put together what the Ninth Circuit has said is there is no right to carry arms in public at all, nor is any such right within the scope of the Second Amendment to take the J. Bybee quote and make it more Ninth Circuit in total. And this Bybee opinion, I would encourage you, I mean, we say this all the time, read the whole thing, read the whole thing. Well, you don't have time to read the whole thing, but hey, nor do you necessarily, even if you had time, want to dedicate it to reading a circuit court opinion, especially one that is, Sarah, a mere 215 pages long? Yeah. I have a money quote from the dissent, which was Judge O'Scanlan. Oh, yeah. Let's hear the money quote from the dissent. I've got a couple of things I want to point out from the majority opinion. So go with O'Scanlan. Judge O'Scanlan is also a Republican appointed judge on the Ninth Circuit. He is, dare I say, the Alito of the Ninth Circuit at this point. His clerk family is well known, well regarded as some of the most conservative to come out of the Ninth Circuit,

at least pre the Trump appointees. We'll see what the Bumates and Lee clerks of the world go do with their careers. I'm excited. Okay, here's the O'Scanlan quote in the dissent. Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one's home, it provides no right whatsoever to bear, i.e. to carry, that same firearm for self-defense in any other place. So a very textualist dissent. Look, a lot of people are saying like, oh, obviously this case will go to the Supreme Court.

Like every headline I've read is like, and it'll go to the Supreme Court. The problem, David, as you know, is this New York case is in conference on Friday and it touches all of this. So the chances of this case going to the Supreme Court are actually incredibly low because if they take the New York case, they don't need to take this one. And if they don't take the New York case, there's no reason to think they would take this one. Right. Here's my theory, Sarah. I think that this case makes them more likely to take the New York case. I actually thought the exact same thing.

Because California has now done open carry and concealed carry, it makes the New York case more attractive because the circuit split chasm is getting wider. Like one of those Michael Bay movies where the earthquake has happened and the split between is just growing larger and larger as the two pieces of land separate. Exactly. Exactly. So when I saw this, I thought, okay, there's just no avoiding it. I mean, Okay. There's just no avoiding it. I mean, it's just got to be, they've got to hit it head on. And if I had to predict, if I had to predict where the Supreme Court,

A, I predict they're going to take, if not the New York case, one of these cases. If I had to predict, I'm going to predict they're going to take this case, I mean, the New York case or one of these cases. I also am going to predict that they're going to hold that there's a right to bear outside the home, that there's a right to bear. is I'm not sure that the current court is going to, if and when it hears one of these cases about an assault weapons ban or large capacity magazine bans, like we talked about in the Dispatch podcast yesterday, I'm not so sure that the current court is going to prohibit or limit state regulation of assault weapons or magazines.

I'm not convinced about that, to be honest. Oh, I'm very much just convinced the other way. Absolutely, a state can regulate magazines and the types of weapons. Yeah, I'm not as firm about that as you are, but I'm mostly in your camp on that. And I think that what you're going to end up with when all of this shakes out is there's going to be a floor level Second Amendment right that is a floor way lower than the rights protected, say, in the state of Tennessee, like way lower. It's going to be a floor level. It's going to be you've got it.

You're going to have a right to keep a weapon. you're going to have a right to keep an art a weapon you're going to have a right to bear a weapon the kind of weapon is going to be largely in the hands of state legislatures that that's my general prediction i could be completely wrong about that i think that there are some justices who would not agree with that some justices are going to take sort of the, that formulation from Heller of a, that the second amendment is protecting a sort of common weapons and use for lawful purposes. And, and maybe say that since a Glock or since an AR-15 are extremely common, um, extremely commonly used for lawful purposes and have in the common use includes these larger magazines. But I just, I don't know. I don't know, Sarah. I've had, I used to, if you had asked me three, four years ago, I would have

said, you know, I think this new generation of conservative justices would strike down an assault weapons ban. I'm just not convinced of that. I'm not convinced of that. Oh, no, absolutely not. Now, I think there's a decent chance they don't take this New York case that's up for conference on Friday because here's the backdrop. On top of the Atlanta shootings and the Boulder shootings,

overall, the murder rate in 2020 skyrocketed. Homicide rates were 30% higher in 2020 than they were in 2019. That is just so large. I can't even... Giant. What that would feel like. Now, this is an urban area, so cities over 100,000 people. The murder rate jumped 30%.

Aggravated assaults, gun assaults increased as well. Now, before everyone freaks out and goes out to buy a gun, for instance, the homicide rate in 2020 was 11.4 deaths per 100,000 in these cities over 100,000 people. But in 1995, the homicide rate was 19.4 per 100,000 people. So this is not the most dangerous America has ever been. This is not the most murdery it's ever been, but it is the most murdery it's been in a long time. And certainly the pandemic and the frustration and the economic anxieties and all of that. And I mean, in large part, David, it's young people not having things to do, whether they're not in school or not at work because they, you know, we're talking about

sort of the 16 to 25-year-old males. They are in some ways the people who were hit hardest by the pandemic. And so you combine all that together. wonder whether roberts for instance will feel like now is not the time to wade into the second amendment at all let the circuits continue to work this out for a couple more years i mean really to have this conference on friday so close to the boulder shooting at minimum i think they punt it from this conference i don't close to the Boulder shooting. At minimum, I think they punt it from this conference. I don't think we're about to hear on the orders list that this has been accepted. I could be wrong because they don't need Roberts, of course. You only need four votes. But oof. Real quick also on Boulder, as we mentioned on the Dispatch podcast yesterday,

I said that I wanted to talk to you about this case. So just days before the shooting at the grocery store in Boulder, a judge struck down the Boulder ban on assault weapons and large capacity magazines. And it's just, it's terrible timing. I feel for the judge who did that. No judge wants to feel like they were the but for cause of a shooting of that. I mean, of any shooting, but legally this judge had no choice. There is a Colorado law passed in 2003, which states, quote, a local government may not enact an ordinance, regulation or other law that prohibits the sale, purchase or possession of a firearm that a person may lawfully sell, purchase or possess under state or federal law. that Boulder's ban on certain types of assault weapons that were legal at the state and federal level and magazines that were legal at the state and federal level violated that state law. Now, Boulder argued in the hearing that the ordinance was necessary because of a lack of rules on assault weapons in large capacity magazines at the state level. But I mean, the judge quickly brushed that aside because there was a whole list of weapons that

Colorado had deemed illegal or dangerous. And the state defined large capacity magazines. They defined it as 15 rounds. Boulder tried to define it as 10 rounds. So I've noticed that that case has been mentioned in so many of the articles about the shooting. And it makes it seem like, well, Boulder tried and this judge really just undermined the whole thing. No, if you want to say someone undermined the whole thing, it's the state of Colorado. And I think this is where I get frustrated that the courts are being thrown into a position of policymaker. This was not policymaking by a judge. This was a judge with a very, very clear, well-written, all the commas are in the right place, state law from 2003. Before we move on to this, one thing that I think, if we can circle back to the Ninth Circuit, I was about to say, no, you don't need to read all 215 pages. You don't need to read all 215 pages, but if you have some spare time, they have a very helpful table of contents, and I would recommend you dive into its discussion of English and early colonial history. I mean, this is a decision that goes back to the 14th century, if not before, in its analysis. I mean, and some of the history is wild. Some of the ways in which the right to bear weapons was sort of given and taken away in England,

for example, and the Glorious revolution and the English Bill of Rights, you had a right to bear arms. If you were a Protestant, Sarah, if you were a Protestant, it turns out your right to bear arms kind of depended on whether you shared the religion of the sovereign. And then there's some wild stuff about the colonial laws, the American colonial laws, the American colonial laws, and that some colonies, they just flat outlawed carrying weapons,

and then some required it in specific circumstances. Sarah, required you to publicly carry a weapon. And when was it, Sarah, that you were required to carry a weapon? In a 1619 statute, this is Virginia, it instructed, quote, all persons whatsoever upon the Sabbath day who frequent divine services and sermons to bear arms and to bring their pieces, swords, polder, and shot. Wait, why would you need to bear arms on the Sabbath? This was a mandate in Connecticut,

Maryland, South Carolina, and Georgia for a while, everyone to carry arms at church. So clearly it made sense to them, but I can't figure out why. Well, here's one reason. This isn't like a blue law. Okay. Here's one reason. Statutes at large of South Carolina, 1840, requiring any person to do so to bear arms to places of public worship to secure against slave insurrections. Okay, then. There's the answer. There's your answer. There's your answer. Wow. Some colonies required carrying of arms to other public gatherings.

So this is now some of these. This is not related, obviously not related to slave insurrections because they're places where slavery either didn't exist or certainly wasn't widespread at that time. But so, for example, 1853, all eligible persons show in this is Massachusetts. Well, this is this is the records of the Massachusetts Bay Colony. The date of the records is 1853, but the regulation is colonial. All eligible persons shall come to the public assemblies with their muskets or other pieces fit for service. No man, and this is Rhode Island, no man shall come to any public meeting without his weapon and now these and this is rhode island maybe it was sort of to just check that you were keeping things in good order you know like don't tell us that you've got a gun and then you're not cleaning

it you're not keeping it in usable shape and so if we make you bring it once a week because of course it's not like uh church was just up to you whether whether you wanted to come, uh, you know, we have to be able to see your gun and therefore we'll see whether you're cleaning it and keeping it in good working order because we, we may need you to help us out here. And we don't want you to say like, Oh, it broke. I can't find it. Well, and the other explanation is, especially in New England, where there weren, but that those are my modern ears, I suppose, finding that to be strange. Yeah. Well, I, you know, I, I have looked at this issue and I, if, if I had been told, if someone had told me that you had to take your rifle, your musket to church, if someone told me that I forgotten that they told me that. Well, then you have, you know, the judges on the Ninth Circuit to thank, and really the law clerks on the Ninth Circuit to thank.

Thank you, law clerks, for those who are listening. But yeah, it's a really interesting, fascinating historical discussion. I would urge you to read it. And basically the point that the judge makes is whether they were mandating or prohibiting, the bearing of arms outside the home was the subject of comprehensive regulation, that this was not something historically that was left to an exercise of individual liberty. His argument is that this was subject to, at all times, very comprehensive regulation. So you got to love a good originalist argument, Sarah,

that goes all the way back to like 1328. I do. I do. I appreciate it. That is good stuff. See yourself buying a home one day? Do future you a favor. Open a Questrade first home savings account and help that future come faster. The FHSA is a tax-free account where all your investment gains are yours to keep and put towards your first home. With Questrade, you can open an FHSA online. No bank appointment needed. It's easy and only takes a few minutes. The sooner you get started, the more time your down payment has to grow. Open an account today at questrade.com. Okay. We ready to go next?

Yeah. Are we doing Twitter next? Okay. And Texas. I mean, if there's two things I love, it's Twitter and Texas. You love Twitter? That's breaking news. No, I don't. That's sarcasm. But I do love Texas. My husband was down in Texas this week. I asked for one thing and one thing only, Torchy's queso. He came back empty-handed, David. That's terrible.

That's terrible. Yeah. I mean, real marriage failure. Maybe one of our first, frankly, of a big failure. This was it. So, Sarah, if there is a iron law of politics, it is becoming something along the lines of this. The abusive tactic that I used to decry in others,

I shall exercise myself. And this is what I'm talking about. Do you remember the Obama era? I have some vague recollections of it. Okay. So let's reach way back into the Obama era. And I remember I was ticked off about something into the Obama era. And I remember I was ticked off about something in the Obama era. The ending of Lost?

Because that was egregious. I liked it. What? I liked it. Yes. You liked the ending of Lost? Yes. Guys, of all David's bad hot takes,

can we agree that this might be the worst of his pop culture takes? Oh, my. Okay, I'm stunned. Please continue. We'll have to deal with that later. I mean, it wasn't my favorite series finale. I mean, it wasn't the perfect capstone. But in the range of series finales, I preferred it to the series finale of Sopranos any day of the week.

Any day of the week. Wow. Yeah. I know, I know. It's not my favorite, but it's in the realm of good. But while I was enjoying the Lost finale, I was mad about something else.

And what I was mad about is that, do you remember when New York State Attorneys General, or there were some state AGs who began to try to force, for example, Heartland Institute or other people who are involved in climate change argument, the climate change debate, trying to force them to provide information about sort of funding sources and things like this.

Indeed, this fight continues today. And so one of the things that those of us who are keen and interested in the First Amendment are who are keen and interested in protecting the First Amendment said is, whoa, none of your business, AGs. It is none of your business where a private organization gets its support. If you want to engage in the marketplace of ideas, if you want to engage in a debate about climate change, if you have at it, but to sit there and use the power of the state to try to lay bare the funding sources of any given organization's financial support, no, that's too much. That's abusive. In other words, in many ways, it's not just a freedom of association issue. In some ways, it smacks of retaliation that they're saying something you don't like and you're going to blanket them with subpoenas as a result. And so, yeah, that was an issue that, you know, from a First Amendment standpoint, not happy about.

Fast forward to the year 2021, and there's a state AG who got really upset at a private company and decided to get a subpoena to try to subpoena that private company's internal documentation and information about its moderation decisions. So Attorney General Ken Paxton subpoenas Twitter. Twitter responds with a lawsuit directed straight at Attorney General Ken Paxton saying, in essence, what's happened in here is that the Attorney General has, and I'm going to read from segments of the complaint that Twitter filed, which is going to be a very interesting case. It says, Attorney General Paxton has long disagreed with Twitter's content moderation decisions and made that displeasure known. But this disagreement

turned to official action against the company after Twitter suspended President Trump's account on January 8th, 2021. Just five days later, on January 13th, Paxton issued a civil investigative demand to Twitter to seek volumes of highly confidential documents concerning Twitter's internal content moderation processes. Attorney General Paxton made clear that he will use the full weight of his office, including his expansive investigatory powers to retaliate against Twitter for having made editorial decisions with which he disagrees. Now, Twitter, already targeted because of its protected activity, is left with the untenable choice to turn over highly sensitive documents or face legal sanction. And so Twitter is going all First Amendment on Ken Paxton, basically filing a First Amendment retaliation lawsuit.

Very interesting. Very interesting. Very interesting. Very interesting. In 2011, I was on Team Heartland Institute saying to those people who were trying to figure out who was funding it and its arguments about climate change, none your business. I feel the same with Ken Paxton and Twitter. Twitter did something Ken Paxton doesn't like. role as AG should not give him the ability to basically harass any corporation that engages in a constitutionally protected activity that are constitutionally protected speech he doesn't like it's my thought Sarah any reaction it never occurred to me to compare it to those previous cases. And I think you're spot on. So that's a really good comparison. I think that when I was looking at this, my first thought was on sort of these declaratory judgment actions. So this is the idea that you don't wait for the government to do something against you or another party, actually. You just go ahead and sue them first. They're generally disfavored because you've got to kind of make sure that you're not just having the court run into advisory opinion issues. This is a good example where,

yeah, you can sue them first, if you will. And I think that, you know, we'll see how interesting of a lawsuit it is. How did some of those cases turn out in the Obama years? Well, Heartland secured a, has, you know, some of them were withdrawn. Some of them, you know, were, there was negotiations about them, et cetera. And one of the things that is, the Twitter lawsuit says that Twitter sought a narrowing of the information demand, so there could be some negotiated settlement to this. But for example, in 2011, a U.S. district judge quashed a subpoena against Heartland Institute. So finding the relevance of the records was outweighed by the right of association. And that the subpoena is bordered on harassment. So there are circumstances in which... So this is a different...

You don't have any of this sort of First Amendment bigfooting the other interests in this Twitter case, but you do have the harassment part. Yes, exactly. But the question, I guess, for me is, was the harassment part just sort of a, that's how we know that the First Amendment bigfoots these other interests? Because that's sort of what it sounds like, in which case Twitter has some problems.

Right. And certainly to say that, sorry to interrupt, but certainly, you know, the federal government, quote unquote, harasses people all the time. You know, think about the Department of Justice bringing cases against sort of the tallest blade of grass. You're out there. I don't know why this case comes to mind. The situation. Do you remember the situation from Jersey Shore? Yes, I do remember the situation from Jersey Shore. Yeah. So he got. That's a poll. That's a pull right there. He got into some tax problems.

So I don't think, for instance, that the situation can get rid of his tax problems by saying, look, the only reason you're going after me is because I was on Jersey Shore and so I was on this

reality television show so you noticed me more and so you can't harass me just because I'm a celebrity. Well, no, dude, that's the same as speeding, right? Like, yep. A lot of people speed and the government gets to choose who it pulls over for speeding. And as long as that's not in a protected class, um, it's not harassment of you. So I do think Twitter has some problem there, legally speaking on just the harassment part.

But we'll see. Yeah, I mean, you know, one of the elements of First Amendment retaliation usually involves a governmental action that in other circumstances would be lawful, but is engaged, is employed as a retaliatory measure, again, because of the First Amendment protected speech. So, for example, I had retaliation cases I filed all the time over things like student disciplinary proceedings or denial of promotions or things like that, where in the abstract, does a person have a right to a promotion? No. Do they have a right to engage in protected speech? Yes. Can you be denied a promotion because of the protected speech?

No. So the retaliation gets often into situations where when the government takes an action that is otherwise within the government's scope and freedom of action, but if it takes an action because of your protected speech or to deter or to punish you because of your protected speech, that's when your retaliation claim gets viable. So it's going to be very, very interesting. All right. Boy. Okay. We're zooming through. from one thing to another to another okay are you ready for the next one yeah massachusetts another place that i've lived me too all right

so the massachusetts all of my favorite restaurants in massachusetts aside from the north end i think all the ones in cambridge have shut down which is really, really sad. Anyway, David, sorry, please continue. Yes. So what we have is a case out of Massachusetts, and it is the Massachusetts Supreme Court. And the case is against Gordon College, and it's one of the first of the prominent cases that I know of after Our Lady of Guadalupe. Now, astute, loyal advisory opinions listeners of which you all are will remember Our Lady of Guadalupe as dealing with the ministerial exception to non-discrimination laws. And in this case, what you had was an employment action involving Gordon College and a professor. Now, after 2016, the university had specified that professors were ministerial employees. It said in October 2016, added this language to the handbook.

One of the distinctives of Gordon College is that each member of the faculty is expected to participate actively in the spiritual formation of our students into godly, biblically faithful ambassadors for Christ. Faculty members should seek to engage our students in meaningful ways to strengthen them in their faith walks with Christ. In the Gordon College context, faculty members are both educators and ministers to our students. So there's an adverse job action taken against a professor. Professor sues. Professor ultimately wins at the Massachusetts Supreme Court, where the Supreme Court read Our Lady of Guadalupe, applied the functional test in a way that I think was more restrictive than the Supreme

Court intended, with less deference to the institution than the Supreme Court intended. In other words, I think it was not a good analysis and ruled against the college. Now, why is a one single state Supreme Court decision interesting in this regard? Of course, it's interesting for Gordon College. I mean, it's absolutely meaningful for Gordon College. It's absolutely meaningful for the litigants involved and for schools in Massachusetts. It is not that meaningful for other cases around the country, certainly not federal court cases.

But here's what I wanted to use this case to talk about, Sarah. What do you do when you lose at, say, a state Supreme Court on a federal question and you think they just got it wrong? What are your chances of going to the Supreme Court of the United States

basically on the message that says wrong, what are your chances of going to the Supreme Court of the United States basically on the message that says this contradicts your recent precedent, not a situation where they decided the case before the precedent came out. In other words, you could imagine then if they had decided the case, if the Massachusetts court had decided the case before Our Lady of Guadalupe, you might have a good candidate for a GVR after Our Lady of Guadalupe was decided. But Our Lady of Guadalupe was decided. They analyzed the case under it. They do so in a way that I believe had flaws. Your last recourse is SCOTUS, but this is, I think, a good opportunity to talk about some of the limitations

of using SCOTUS, not so much as a court of, not as a court of sort of resolving open legal questions, but as a court of last resort resolving errors. And that is not what it typically does. Indeed.

So this reminds me a little bit of Judge Reinhart and the Ninth Circuit. Stephen Reinhart was a famous liberal judge. He passed away in 2018, but he had this line, they can't overturn them all. Right. Yeah. So some circuit judges sort of thumb their nose intentionally, but sometimes they just get it wrong in good faith. I think that this might be a case where, you know, I, I told you that I was deeply uncomfortable with our sister of Guadalupe, uh, and where the court came out in part because it wasn't going to be clear. It still left this sort of balancing test out there in a lot of ways. And here's the result. So, you know, the court does GVR in light of our decision. That means granted, vacated, and remanded. So they grant cert, vacate the

circuit court opinion, and remand it for further proceedings in light of their opinion in Guadalupe, which they do, especially right after a case has come out. They don't ever hear oral argument. They just do it on the cert petition. This is going to be, you know, more than a year by the time it comes up for cert, unlikely to just get GVR'd. So the actual answer is if you lose at a lower court because they just get it wrong on Supreme Court precedent, you lose. Right. Now, the interesting thing is now that the actual opinion deal just dives into the ministerial exception at some length. But the interesting thing is there is a case pending,

and I would need to go and look at all the overall pleadings in this case, but there is a case pending that could lead to a GVR, and that's Fulton. So this is a case we've talked about before. This was the case that was teed up as potentially overturning Employment Division v. Smith. This was the case involving the city of Philadelphia saying to Catholic charities that are taking action against Catholic charities because Catholic charities would not, for example, endorse same-sex couples for adoption or foster parenting. same-sex couples for adoption or foster parenting. And this was the case taken up by the Supreme Court of the United States with an explicit question presented of whether Employment Division v. Smith, one of my least favorite cases, was still viable. And Sarah and I read the oral argument transcript, and I don't know, it's been months and months

and months since we've talked about it, but we both agreed that pretty good chance that the Catholic Charities win, but the transcript was not exactly broadcasting Smith's demise. Not exactly. But I could easily imagine that if we're wrong, if we're wrong, Sarah, and the case does take down Smith, that you could have just a wave of GBRs in other religious liberty cases decided under the Smith standard. Now, this case looks to have been centered around the ministerial exceptions. So I don't know, we'll see. But I thought it was, one, an important case to bring up to show that courts are not necessarily just going to defer to a religious employer's characterization of its employees.

And that's what this court did, did not defer to that here. It did a very searching inquiry. And second, when does the Supreme Court get involved when you just think they got it wrong? Not enough is the answer of most litigants. Not enough. Not enough. Those are the litigants who say the Supreme Court needs to get busier. All right, David, I've got one mailbag to do today because, I mean, we do normally mailbag episodes, but this mailbag question, I got it on Monday or Sunday. I think I got it on Sunday. And then all of a sudden, it blew up on Twitter and other, other, you know, people have been talking about it. So I just want to address a little fact check. Uh, so one of our listeners emailed in David, let's call him, but his name is actually David. If Congress votes to

admit DC as a state, would any party have standing to sue on grounds that constitution created a federal district, meaning that admitting DC as a state would require a constitutional amendment, not simple legislation. Any thoughts on this matter? Would love to hear you and David discuss. I do have thoughts on this matter, David. So he is correct. Article one of the constitution, that is the legislative article, in enumerating the powers of Congress, says, to exercise exclusive legislation in all cases whatsoever over such district not exceeding 10 miles square, as may by session of particular states and the acceptance of Congress, become the seat of the government of the United States and to exercise like authority

over all places purchased by the consent of the legislature. It goes on to other things that we don't care about. So some things to point out in this one, it says that they may create a seat of government. True. But it says may. Right. Also, you'll note nowhere in what i read does it say the district of columbia or that it must be 10 square miles it says not exceeding 10 square miles so talk about floor ceiling david this is all ceiling there is no floor at least in the Constitution. And then Congress, not surprisingly, passed some laws about the matter at the very, very beginning, 1789, 1790. That is what actually creates D.C. as the seat of government. So let's go to the actual D.hood legislation, because that, of course, has existed now for several years. So part A, in general, except as provided in subsection B, the state shall consist of all of the territory of the District of Columbia as the date of the enactment of this act, subject to the results of the meets and bounds survey conducted under subsection C, subsection B.

of the Meets and Bounds survey conducted under subsection C, subsection B. The territory of the state shall not include the area described in section 112, which shall be known as the capital and shall serve as the seat of government of the United States as provided in clause 17 of section 8 of article 1 of the Constitution of the United States. And then section C says, we're going to do this Meets and Bounds survey to define the area around the Capitol for the seat of government. So long story short, David, it's entirely constitutional. The Constitution does not mandate what the seat of government looks like, where it is, how big it needs to be, only that it can't be too big. case, what D.C. statehood would look like is a state of D.C. with a little circle in the middle with, you know, the U.S. Capitol, the White House, you know, sort of running up Pennsylvania Avenue is my guess. Maybe it would include the mall and some of the monuments. Now, some people have pointed out that, yeah, OK, that's constitutional. You can do it by legislation. But it would make the new Capitol quite vulnerable.

They would not have their own power plant. They would not have their own water or sewage. And as someone said, they could be effectively laid siege to by a new state. But there is a Marine barracks close by. So I'm not all that worried about that. I'm not too worried about that. is a Marine barracks close by. So I'm not all that worried about that.

I'm not too worried about that. But, you know, basically, D.C. statehood is actually going to look a lot like what D.C. looks like now. D.C. is surrounded by Virginia and Maryland. The new D.C., by which I mean the new seat of government, would simply be surrounded by the state of the district, which would no longer be called the district, presumably.

But anyway, it's totally constitutional. Right. No, totally agree. Oh, one thing, referring back to the previous discussion, I should disclose I have in the past, years ago, advised Gordon College on legal matters, and I'm friends with the president, who's a good dude. So I uh, say I don't know as many people as Sarah, but I know a few people, but I wanted to get that, that disclosure out there. Uh, yeah. You know, when I was thinking about DC statehood and the federal district, I'd long kind of assumed that some part that, you know, the, the Capitol building itself, the white house, Supreme court, Smithsonian, the National Mall, maybe the core monuments would remain under federal authority and federal control. It would be the logical outcome of this debate.

the statehood question, which is if the filibuster is gone, a lot of these questions are going to go from academic to urgent, like with extreme speed. One of the interesting things is a lot of people forget that you remember that there was a 2016 Republican platform. There was not a 2020 Republican platform. There was a 2016 Republican platform, and it did call for statehood for a 51st state. Trivia question, which state did it call for? Ooh, I don't know. It called for Puerto Rico. There we go. You know, they are flying the flag of the United States in the Black Lives Matter Plaza right across the street

from Lafayette Park in the White House with 51 flags currently. I will admit that a lot of my objection, more than it should be, comes from the fact that I like our flag the way that it is, and I'm deeply against changing the number of stars on the flag simply from an aesthetic standpoint. It didn't look as bad as I thought it would. It was okay. Yeah. Because a lot of people are saying it's super radical to want to have another state. And forgetting, man, it's just amazing. If you have the slightest memory, Sarah, if you have the slightest memory, it puts a lot of debates in perspective. So what the 2016 platform says, we support the right of the United States citizens of Puerto Rico to be admitted to the union as a fully sovereign state. We further recognize the historic

significance of the 2012 referendum in which a 54% majority voted to end Puerto Rico's current status as a U.S. territory and 61% chose statehood over sovereign nationhood. But then it also says preserve the District of Columbia. So the 2016 Republican platform was bring in Puerto Rico, preserve D.C. So I just thought that was fascinating because there's been so many arguments, especially coming from Republicans of late, that says adding a state is a radical measure in our 2016 platform. Okay.

Do you have a recommendation? Last thing, David. So you recommended Promising Young Woman to me. I really enjoyed watching it. I enjoyed talking about it with you. So now it's my turn. And of course, David enjoys movies. I enjoy documentaries, as you may have noticed with my Britney documentary and well, just about everything I've talked about on this podcast. So David, you need to watch Operation Varsity Blues. This is the documentary about the DOJ operation on the college admissions scandal.

There were 50 indictments handed down. They still have not all gone to trial. The documentary is well done. They use all of the transcripts from the wiretaps, and then they have Matthew Modine, for instance, as one of the actors, simply as the script. So he's acting, walking around, like there's sets and everything, but all the script comes from the wiretaps. It's a really great way to do a documentary. Plus, I really want to talk about

the subject matter with you. Oh boy. Yeah, that is a rich, that is a rich topic with lots of cultural distinctives around the country. Just wait. Okay, you're going to watch it. We'll talk about it. I will watch it. I will watch it. And I just cannot end this podcast without my own... Look, this is an older series. I finished season, and I don't know if seasons two and three are good, but I finished Broadchurch season one last night.

It might be one of the most perfect single seasons of television I've ever seen. And it also has one of the most poignant and interesting and powerful depictions of a priest or the vicar in the town, in the community that I've seen in sort of a popular television, secular television show ever. And it is so good. room. I'm not admitting to a tear rolling down the face, but I am admitting to absolute misting of the eyes during the course of the last five, 10 minutes of that season. My goodness, it was so good. Have you seen it? I can't remember. Have you seen it? I started it, but I did not get all the way to the end. My favorite quote so far, something that I probably could say about seven times a day, is the lead investigator,

bloody Twitter. All right, wait, before we go, I have some real-time fact checks. So I wasn't sure what year the act creating the District of Columbia passed. July 9th, 1790 was the Residence Act, which actually creates an initial land donated by Maryland and Virginia, but that was 100 square miles. That is not what the District of Columbia ends up being. But in doing a real-time fact check of myself,

I also found out that the District of Columbia has a district, you know, like states have state birds and state flowers. It has all of that. The state bird is the wood thrush. The state flower is the American beauty rose. The tree is the scarlet oak. But it also has a state dinosaur, the Capitalsaurus. And I just love that. And I am now going to spend way too much time learning all about the

Capitol Saurus. Very exciting. And for those who aren't sure, in Texas, we take multiple years of Texas state history. I know all of the songs. I know all of the battles. But my favorite thing is that we have a Texas large mammal and a Texas small mammal in the state of Texas. David, do you want to take a guess? Large at the large mammal versus small mammal. Yeah.

They're really obvious. I mean, a bull is large, bad cattle, a cow. I don't know. A long horn. All right.

Sorry. And the Texas small mammal is the nine-banded armadillo. And I love armadillos. That almost defines a brain meltdown to not say longhorn. That's like the very definition. I'm too busy filling the limited space on my hard drive with information about Obama era subpoenas. Fair. You know what's weird? Do you have deja vu as a person? Really hardcore deja vu? I'm having the weirdest brain meltdown deja vu

right now that we've had this conversation before. So I hope we haven't. And also deja vu is the weirdest, like when it actually happens, not like, oh, this is kind of familiar, but like where you feel like you have had this exact conversation, everything you're seeing, you've seen before where your neurons are just firing a little bit off. God, what a weird experience. We now know that's a glitch in the matrix. Yeah. I have another brain neuroscience thing I want to talk to you about, synesthesia. So we'll talk about synesthesia at some point on this podcast. Synesthesia. I'll have to Google that. Okay. Fantastic. All right. Well, wow. I mean,

and we barely went over an hour and I think we covered 73 topics. So that's pretty good. I'm impressed with us. But please keep the tips coming in. We're going to talk about a religious liberty case, free speech case out of Iowa involving qualified immunity that stripped qualified immunity from university administrators. And that's going to lead to a longer argument or discussion about qualified immunity. We've also got more Supreme Court developments, as Sarah indicated. We have conferences coming up, so many things, and we're not even in the summer yet when we're going to, eventually we're going to get the Obamacare decision. We're going to get the Fulton decision. There's going to be so, we're just in a slow escalation phase right now, Sarah, in this podcast. All right. This is a marathon, not a sprint. Rest up. That's right. That's right. Thanks for hanging with us. Thanks for

sending us all of your recommended topics. Thanks for sending us court cases. And we've got other things to talk about that we've tabled for the moment. Believe me, we're keeping the list. We're keeping the list and we appreciate it so very much. And please go rate us on Apple Podcasts. Please subscribe to us on Apple Podcasts and please check out thedispatch.com and we will talk to you on Monday. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos.

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