Advisory Opinions - What's an Invasion?

Episode Date: December 5, 2024

Sarah and David break down the recent case before the Supreme Court regarding flavored vapes before finally getting to that “invasion”question and what it means for birthright citizenship. The Agenda: —“Government gangsters” —Pardon of Hunter Biden —Hunter is “rewriting history” —Narcing on your youth pastor —FDA vs. flavored vapes —Invasion at the southern border? —Birthright citizenship Show Notes: —Fifth Circuit on the FCC Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Izgur, that's David French, and like last time, I think this will be a bit of a potpourri episode, but with a lot of fun little things tossed in. And first up, David, as we wrapped our last episode, I got a text from a friend that was really cryptic, if you will. And I asked what he was talking about. And he sent me a link to a tweet from Tim Miller who basically took shots of appendix B in Cash Patel's book Government Gangsters. Tim Miller describes this list as deep state officials who need to be targeted. I'll read now from appendix B. This list only includes current and former executive branch officials and is not exhaustive.

It does not, for example, include other corrupt actors of the First Order such as Congressman Adam Schiff and Eric Swalwell, members of Fusion GPS or Perkins Cooey, Christopher Steele, Paul Ryan, the entire fake news mafia press corps, etc. Alphabetical by last name. The list has 60 names on it. Bill Barr, John Bolton, Stephen Boyd, who was the head of legislative affairs at DOJ when I was there, Joe Biden, John Brennan. I would say you see a theme, but you may not. Anyway, there I am with Mark Esper, Merrick Garland, Stephanie Grisham, Kamala Harris, Eric Holder, Robert Herr.

You're on the list, Sarah. Yeah. So look, I'll be honest, Pat Cipollone is on this, former White House counsel. Yeah, there's a lot of, he's got a, it's Festivist for Cash Patel every day and he's got a lot of problems with you people. Okay, so let me just like randomly start spouting off some issues with this list. One, if these are like the 60 most powerful

deep staters in America, I guess, wow, I'm flattered. I think I'm one of the more junior people on this list, but okay. Interestingly, like Lois Lerner, who was the director of the IRS under President Obama, made the list, but then again, like I'm on the list. Okay, so that brings up a second problem, which is this is supposed to be a deep state list, but Eric Holder, Merrick Garland, Joe Biden, Kamala Harris, I don't know how deep you can think these people are in terms of deep state. They're pretty clear about their politics. Yeah. And these are not like nameless bureaucrats hidden in a cubicle in a federal office building

undermining the president. Like these are people who are political appointees, Senate confirmed nominees. That's not Deep State. Or just, you know, elected to the presidency. And vice presidency. So, A, I think our definition of Deep State gets a little muddled because this list is about half Trump appointees and then about 25% high level elected Democrats, like the president and vice president or Senate confirmed,

like several attorneys general. And then 25%, ooh, maybe less than that actually, are actual career employees within the government, which I think would fit within the normal definition of how people think of the deep states. There's actually not many people even eligible to be deep state members. There are a few FBI agents on here,

a few people within the State Department, for instance. Then again, Hillary Clinton's on the list, but I think it's really hard, like, I would need three different lists here if we were even acknowledging this, right? The elected slash Senate confirmed high level Democratic appointees. Two, fine, former Trump administration officials

that you think were not sufficiently on board with the president or were delaying things not following his orders. Fair enough. I've called that the shallow state. I think if you're a political appointee not doing what the president says, that's not deep state. You're doing it to his face. Right. So Pat Cipollone is the White House counsel is not deep state. If President Trump asked him to do something and Pat didn't do it, fire him. Yeah. Like you see him every day. He reports to you. This is not difficult. And then that

third category, at least again, in sort of this theoretical world, actually are deep state people. They've never met the president. They simply do not like his policy agenda and are dragging their feet to try to weight him out or cause problems for him using the power that they have as sort of faceless nameless bureaucrats. Those are three different lists, but they're all just put into alphabetical order here and that's pretty weird. And then there's the problem of like, what did these people actually do or why are some people on and others not? I'll pick on Rob Her for a moment, who again, we've talked about on this podcast. Yeah, I'm stumped.

Explain this one to me, Sarah. I'm stumped. I don't know. He's the special counsel to investigate Biden. That's how Cash Patel describes him in this appendix. Right. Does Rob Her need to be targeted because he did not prosecute Biden? I guess, even though Rob Herd's report put a torpedo below the waterline of SS Biden for sure.

I don't understand the inclusion. But then, for instance, Rob was also the principal associate deputy attorney general under Rod Rosenstein. He was responsible for overseeing the Mueller investigation when he held that job. But Rob left about halfway through to go become the Trump-appointed US attorney for Maryland. He was replaced by a different pay dag. The one who actually rolled out the Mueller report is the one standing behind Bill Barr next to Rod Rosenstein. He's McBeardy face, right, from all the late night shows, if you remember that, when

they were all sort of swooning over his, admittedly, amazing beard. So he oversaw the Mueller investigation for, you know, more than half the time, actually did the rollout of it. Why isn't he on the list? You know, you're diving into the mind of Cash Patel here, Sarah, and I'm not sure that it's gonna always, that every nook and cranny is gonna be as rational as we might want. Fair enough, fair enough. Anyway, I bring all this up because when I talked about

the intent to nominate Cash Patel, I did not disclose that Cash Patel obviously thinks I should be targeted or something. I don't know what that super means. I don't quite know what I'm disclosing or what my conflict exactly is, but I felt like I should tell you guys just for the sake of transparency. But David, I will also say, you know, if this isn't that he is FBI director, it's not even that he's the nominee for FBI director. This is an intent to nominate the FBI director after firing Chris Ray, a whole bunch of things that haven't happened yet. He hasn't fired Chris Ray. He hasn't nominated Cash Patel. And then of course, there's the two ways around

nominating Cash Patel. We've talked about the recess appointments issue and the problem with that. We've talked about the Vacancies Reform Act that Cash Patel would need to be in a DOJ job for 90 days. What I failed to mention about that though, is that it's actually that he has to be at DOJ for 90 days before the vacancy arises. So he would need to decide really, do you want to fire Chris Ray and nominate Cash Patel and see how that goes? Or do you want to put Cash Patel in a GS-15 spot at the FBI or at DOJ and then wait 90 days, then fire Chris Ray and see how it goes so that way you have that vacancies reform act option.

And if you're Chris Ray, that's an interesting strategic question for you because if come February 1 you quit, Cash Patel cannot fulfill his 90 days and therefore can never be acting FBI director. Yeah, very interesting. Very interesting, Sarah. I don't know that Trump has thought it all the way through like this. Not quite sure that he has but you know, it is it is also very interesting to me to see this unfold in the context of the failure of the Gates nomination, and now the Hegseth nomination is taking on water.

And so it does seem that the senators at least are expressing, even if they're not coming out full bore publicly, they're expressing enough reservations that, again, we saw reporting that Trump was talking to Ron DeSantis about becoming Secretary of Defense, which, look, we've described some beefs with DeSantis, especially regarding the First Amendment on this podcast. But the difference between a Ron DeSantis and a Pete Hegseth for Secretary of Defense is massive. That would be a tremendous upgrade for the country to have Ron DeSantis as Secretary of Defense compared to Pete Hegseth, especially after the reporting that we've seen about Pete Hegseth having apparently, reportedly, a pretty spectacular drinking problem.

So you add all of these things together, and it looks like the Senate might have a trace of a spine, perhaps, maybe. What would that have? What impact would that have on this Cash Patel play? I don't know. I don't know. But I've actually been pleasantly surprised that there has been enough pushback to lead to at least a rethink of Gates and now a potential rethink of Hegseth. So you never know. All right. Next up, we talked extensively about Joe Biden's pardoning of Hunter Biden. We were not pleased with that decision.

Do you know who else wasn't pleased? The judge. So I wanted to read some from a filing that the judge sent out this week. On December 1, defendant Robert Hunter Biden provided notice that Joseph R. Biden, President of the United States, issued a full and unconditional pardon to Mr. Biden.

Rather than providing a true and correct copy of the pardon with the notice, Mr. Biden provided a hyperlink to a White House press release, presenting a statement by the president regarding the pardon and the purported text of the pardon. The court previously noted its disapproval of this practice.

The president's statement illustrates the reason for the court's disapproval as representations contained therein stand in tension with the case record. For example, the president asserts that Mr. Biden was, quote, treated differently from others who were late paying their taxes because of serious addictions, implying that Mr. Biden was among those individuals who untimely paid taxes due to addiction. But he is not. In his pre-trial briefings, Mr. Biden was among those individuals who untimely paid taxes due to addiction. But he is not. In his pre-trial briefings, Mr. Biden represented that, quote, he was severely addicted to alcohol and drugs through May 2019. Upon pleading guilty to the charges in this case, Mr. Biden admitted that he engaged in tax evasion after this period of addiction

by wrongfully deducting as business expenses items he knew were personal expenses, including luxury clothing, escort services, and his daughter's law school tuition. And Mr. Biden admitted that he had sufficient funds available to him to make some payments or all of his outstanding tax payments when they were due, but that he did not make payments toward his tax liabilities even, quote, well after he had regained his sobriety, instead electing to, quote, spend large sums to maintain his lifestyle. According to the president, quote, no reasonable person who looks at the facts of Mr. Biden's case can reach any other conclusion than Mr. Biden was

singled out only because he is the president's son. But two federal judges expressly rejected Mr. Biden's arguments that the government prosecuted Mr. Biden because of his familiar relation to the president, and the president's son. But two federal judges expressly rejected Mr. Biden's arguments that the government prosecuted Mr. Biden because of his familiar relation to the president. And the president's own attorney general and Department of Justice personnel oversaw the investigation leading to the charges. In the president's estimation, this legion of federal civil servants, the undersigned included, are unreasonable people. In short, a press release is not a pardon. The Constitution provides the president with broad authority to grant reprieves and pardons for offenses against the United States.

But nowhere does the Constitution give the president the authority to rewrite history. Also, and this is perhaps nitpicking, but nevertheless fun, David, Judge Scarcy notes, the clemency warrant pardons Mr. Biden for those offenses against the United States, which he has committed or may have committed or taken pardon during the period from January 1, 2014 through December 1, 2024, emphasis added. The president signed the pardon on December 1, 2024.

Because the period of pardon conduct extends through the date of execution, the warrant may be read to apply prospectively to conduct that had not yet occurred at the time of its execution, exceeding the scope of the pardon power. Under the Canada constitutional avoidance, the court declines to interpret the warrant in that manner and instead understands the warrant to pardon conduct

to the time of execution on December 1. But I do like that he just wanted to point out their stupidity as well. time of execution on December 1. But I do like that he just wanted to point out their stupidity as well. Oh, how much do I love independent branches of government, Sarah? Because this is a thing of beauty, actually. This is a thing of beauty because, you know, look, we can say all day and have said all day that, you know, the underlying prosecution of Hunter Biden, yeah, there were some elements of it that were extraordinary, but there were good reasons for the prosecution in spite of the

extraordinary nature of the prosecution. There were other things that Hunter Biden did that were extraordinary, like write about his crimes in public. Okay? That's one of them. And, but we can talk all day about how the Biden administration statement is deceptive or doesn't describe the facts of the case accurately

or the legal posture of the case accurately. It's one thing for us to do it, Sarah. It's another thing for the judge in the case to do this. This really, I believe, leaves sort of the Biden defenders on the merits without any real leg to stand on. I mean, you really are at this point having to say, OK, it's just part, you know, he just did a favor for his son. Yes, which I wish she'd said that I would actually have again, just far. I would actually have, again, just far, it would still be unseemly.

I think we could argue about norms and propriety, but it's a totally different ballgame than undermining the Department of Justice and the prosecution itself. And again, if you're concerned about the Trump administration coming in or Cash Patel's nomination, which is nowhere in the statement,

he only says that his DOJ selectively prosecuted him. He never mentions future concerns because it wouldn't make sense. And I keep seeing very smart people say, well, what he was really worried about was Trump saying that he was going to go after the Biden crime family and then nominating Cash Patel. No problem. There was absolutely a way to deal with that. You simply give your son a pardon for uncharged crimes. Right. You don't have to pardon him for the things he was already convicted of. Exactly. Not required. You could also have just commuted the sentences for those and pardoned him for any uncharged crimes. There were many options. He didn't choose any of those. And

whether you think Joe Biden is like with it enough to think of that, I assure you the lawyers around him were, gave him those options and he chose the most blanket pardon since Richard Nixon. Yeah, this is... Look, if you're concerned about a vindictive Trump prosecution, I'm with you. I'm absolutely with you. That is a real concern.

I mean, the man has dedicated, has prompt pledged vengeance. I'm with you. I'm absolutely with you. That is a real concern. I mean, the man has prompt pledged vengeance. He's quasi nominated a guy to head the FBI who has pledged vengeance, who has a enemies list. Sarah's on it. We don't, you don't have to persuade us that there is a problem with the potential of vindictive prosecution.

That's why you issue a statement that says, I do not believe my son should be exempt from the rule of law, which is why I am not pardoning him for the crimes for which he has been convicted or pled guilty. At the same time, however, there has been more than enough time to charge him with any additional crimes that has not been done. The incoming administration has pledged to target my family. I will not permit that pardon for all non-charged crimes. You're done. And yeah, there would be some kicking and screaming about it,

but reasonable people would understand this move. And I think reasonable people would appreciate the application of the rule of law where there has been a conviction or a guilty plea, and they would understand the concerns about vindictive prosecution. That was very easy, but there's just no leg to stand on on any argument other than, he just did it for his son. That's just, that's it. Let's be honest. What most people really want for the holidays is to see their favorite people more often. That's why this year, the best gift you can give,

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That's AuraFrames.com promo code advisory. This deal is exclusive to listeners, so get yours now in time for the holidays. Terms and conditions apply. code ADVISORY. This deal is exclusive to listeners, so get yours now in time for the holidays. Terms and conditions apply. And we'll take a quick break to hear from our sponsor today, Burford Capital. Support for advisory opinions comes from Burford Capital, the leading finance firm focused on law. Visit burfordcapital.com slash a-o to learn why the world's best companies and law firms use legal finance from Burford. Here's a reason.

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General Jonathan Scrametti joining us to talk about how the oral argument went, and I thought we could save it all. Excellent. But there was another argument this week that we wanted to talk about, and that was the e-cigarette argument. I mean, it's sexy because it's about vaping, but it's really about the administrative state. And in fact, there's two other cases that I want to talk about in this broader conversation that are also administrative state related questions.

But first, David, I would just like to note that I have become so much of a smoking curmudgeon as I have gotten older. So right when I was in high school, everyone smoked cigarettes, my clothes constantly reeked. I remember I was in summer school and I wasn't 16 yet. And so an older kid would pick me up and just like chain smoke on the way to our summer school class. And I don't know, it was summer in Texas. It was in those mornings, it's both like super hot,

but still dewy and like It's just like this very old factory memory that I have and there's I will admit like in my head a certain amount of nostalgia Fast forward to now and someone is smoking near me. I'm actually angry at them Is stupid and disgusting and don't get me started on the smell of marijuana, which I, it makes me nauseous and want like the smell I just find really, really gross. And like, it is so thick coming out of the district of Columbia that when you're on the freeway, the 395, it's a bridge that crosses into DC. The second you cross

the bridge, it's like six lanes. Literally the smell overwhelms your car. Is that right? Yeah, it's so disgusting. Okay, so I say all that just because this is gonna be about vaping and e-cigarettes and flavored e-cigarettes, and I need you to know how much I hate them. One thing real fast, I have a weirdly irrational triggering of joy when I smell marijuana smoke.

What? Okay, now hang with me. I feel like we're in opposite positions here. People would think I'm the libertarian on this stuff and you're the school marm and no. I know, I grew up in central Kentucky, which meant that everyone was smoking and plus there was a lot of smoking of cigarettes

and a lot of smoking of weed, but the smoking of weed was very my experience of it because I never did it. But the only time I was exposed to it was when I was going to a concert I wanted to attend. And so every time I was at a concert, that smell laughs over you. And so it reminds me of when I smell weed,

I think Springsteen, 88. You too, 87. Like, you know, it's reminding me of great times from high school. Not that I was partaking, but I was, you know, participating at a fun event. So yeah, it's just like, oh, it takes me back to good times from high school.

The cigarette smoke, man, it was omnipresent when I was growing up, just omnipresent. I didn't really even notice it. It was so constant until it was gone. And then when it was gone, it was like, oh, this is nice. This is better. But anyway.

This is that Eric Church song, the funny how a melody sounds like a memory, like a soundtrack to a Judas Saturday night, Springsteen, except it should Saturday night, Springsteen, except it should be Weed and Springsteen. Exactly. Exactly. I did go to a lot of Dave Matthews concerts,

but they were all outside. And so it was just less, less weedy, I guess. Yeah. I also, did you, have you ever smoked a cigarette? Yeah, yeah. So I have always known that I have a very addictive, obsessive personality. And so I knew better than to ever try smoking.

And like, I was a theater kid, everyone was smoking. And then of course, campaigns, everyone was smoking. And so it was just much easier for me never to try. And then for my 30th birthday, I was like, okay, I think now I'm like old enough and like aware enough to like not become addicted to this. And so I tried a cigarette for the first time on my 30th birthday and like failed.

I couldn't inhale. I like couldn't figure out how to breathe in the smoke. So I'm like Bill Clinton, except it wasn't weed. Okay, I have a moral quandary to ask you, Sarah. Weed related. Yeah. Okay, the year is 1988. I am at the Van Halen OU812 concert tour.

I refuse to believe that you're as cool as the last five minutes have made you sound, but please go ahead. No, I was there. Van Halen OU812 concert, Rupp Arena, Lexington, Kentucky. I look two rows down below me, and there is the youth pastor from my church smoking weed. Okay, now I'm no longer in the youth group.

I'm class of 87, so I'm in college now, so it's 88. So this is not my youth pastor anymore. He's down there. He looks up at me. He sees me. I see him. We lock eyes. In that moment, what do you decide to do? Are you going to narc on the youth pastor? No! No. Obviously, not unless he's with children. No, no. He's not with kids. Yeah! None of your damn business. So I did not narc on him.

We actually locked eyes and I gave him that kind of like little nod. You're cool, man. We're cool. We're okay. Now you might have wanted to ask him for a favor, maybe a recommendation for some summer program you wanted to get into. But then in hindsight, I'm like, wait a minute,

was that the right call? Because this guy's working with kids and all of this stuff. So I don't know. I don't know. But at the time it was like the code. You don't, you don't narc, right? You know what happens to the snitches? They get the youth pastor administer stitches.

Yeah, that just, I'm letting that one go. Okay, listeners, tell us, do you narc on the youth pastor? Do you not narc on the youth pastor? You deliver the verdict. Okay, anyway, back to e-cigarettes. Now we're going to get into some statutory language. So in 2009, Congress enacted the Family Smoking Prevention and Tobacco Control Act. It prohibits manufacturers from selling any, quote,

new tobacco product without authorization from the FDA. So e-cigarettes are new tobacco products for our purposes. We're not going to argue about that today. The TCA directs the FDA to review these new products to determine whether, quote, permitting such tobacco product to be marketed would be appropriate for the protection of the public health. The FDA must consider, quote,

the risks and benefits to the population as a whole. This includes considering the increased or decreased likelihood that existing users of tobacco products will stop using such products and the increased or decreased likelihood that existing users of tobacco products will stop using such products, and the increased or decreased likelihood that those who do not use tobacco products will start using such products. So perhaps you can see the problem with flavored vaping, right? On the one hand, there's going to be adults who are currently smokers who use flavored vaping as a stepping, you know, as a step down from tobacco use. They move from cigarettes

to flavored vaping and then quit. On the other hand, flavored vaping is also a step up for, you know, young kids who think cigarettes taste gross, but can, you know, do blueberry vaping and then use that as a step to start smoking cigarettes. So that's what the FDA is told to balance. Now I want to read from the Fifth Circuit's en banc opinion about what went wrong here. The short version is going to be the FDA was like, here's all the things we're going to consider to weigh those two steps. They got 300 plus applications covering more than a million products to go on

the market. It included spending, of course, good jillions of dollars by these companies to apply for this FDA approval. The FDA had asked them for very specific stuff. And then once they turned that all in, the FDA was like, Oh, yeah, no, flavored vaping's never going to meet this standard. So here's what the Fifth Circuit had to say. This is written, by the way, by Judge Oldham of our shortlist. Over several years, the Food and Drug Administration sent manufacturers of flavored e-cigarette products on a wild goose chase. First, the agency gave manufacturers detailed instructions for what information federal regulators needed to approve e-cigarette products.

Just as importantly, FDA gave manufacturer-specific instructions on what regulators did not need. The agency said manufacturer's marketing plans would be critical to the success of their application. And the agency promulgated hundreds of pages of guidance documents, hosted public meetings, and posted formal presentations to its website, all with the false promise that a

flavored product manufacturer could, at least in theory, satisfy FDA's instructions. The regulated manufacturers dutifully spent untold millions conforming their behavior and their applications to FDA's say so. Then, months after receiving hundreds of thousands of applications predicated on its instructions, FDA turned around, pretended it never gave anyone any instructions about anything, imposed new testing requirements without any notice, and denied all 1 million flavored e-cigarette applications for failing to predict the agency's volt vacce. Worse, after telling manufacturers that their marketing plans were critical to their applications, FDA candidly admitted that it did not read a single word of the 1 million plans.

Then, FDA denied that its voluminous guidance documents and years-long instructional processes meant anything. Why? Because the agency said it always reserved the implied power to ignore every instruction it ever gave and to require the very studies it said could be omitted, along with the secret power to not even read the marketing plans that previously said were critical. It was the regulatory equivalent of Romeo sending Mercutio on a wild goose chase and admitting there never was a goose while denying he even suggested the chase.

Okay, first off, David, that's not the meaning of wild goose chase in Romeo and Juliet. And I feel bad blowing up Judge Oldham on a podcast before I've had the opportunity to text him about this, but frankly now the en banc decision is so old that it would be embarrassing either way. So sorry, I'm just gonna blow you up right here. That is where the phrase wild goose chase comes from. So I had no problem with him using it

at the top of the opinion of sending them on a wild goose chase. That is clearly colloquial usage. However, in Act 2, scene 4 of Romeo and Juliet, ooh, that's not actually what Mercutio meant. So they're having this battle of the wits. Mercutio is losing to Romeo. Mercutio asks Benvolio to intervene,

but Romeo says he will declare himself the winner if Mercutio gives up. He rubs it in saying, switch and spurs, switch and spurs, or I'll cry a match. Meaning faster, faster, like use your switch and spurs, like let's go. It's a horse reference. Mercutio then says, nay, if thy wits run the wild goose chase, I have done, for thou hast more of the wild goose and one of thy wits than I am sure I have in my whole five." A wild goose chase was a type of horse race back in the 1590s.

I don't understand the rules of this, but basically there's a lead horse and the other horses are fanned out at a specific distance in the shape of how geese fly in pattern. So he's talking about how like once Romeo's in the lead as the lead horse, he's never gonna overtake him because you're required to, I guess, stay at a distance back. The point is nothing to do with geese. So unfortunately, when Judge Oldham writes, it was the regulatory equivalent of Romeo sending Mercutio

on a wild goose chase, then admitting there never was a goose there never was a goose And denying he even suggested the chase. Yeah, it just doesn't make sense It's inexcusable inexcusable Sarah. I'm just glad you're blowing him up on this So the good news is the Supreme Court took this case heard arguments this week to decide whether to overturn that line of the Fifth Circuit's en banc opinion No, just kidding. So the question here is whether FDA was arbitrary and capricious in their actions here. And we've

got a few problems, right, David? Because as I read to you before, there's statutory guidance from Congress. Okay, assume for a second that it is the case that yes, some adults will stop smoking with flavored cigarettes, but an equal number of kids will start smoking e-cigarettes. Therefore, the public health benefit, so to speak, is canceled out. So it's zero. That's the statutory requirement from Congress. The FDA then has no authority to lower that statutory requirement. So no matter what guidance documents they put out, at the end of the day, they have to deny it. Again,

just assume that my facts are right for a moment. They're contested for sure, but just go with that for our administrative law purposes. But nevertheless, it feels pretty crappy that the FDA purported to have the authority to approve these e-cigarettes, made them spend millions of dollars, put out guidance documents, told them they had to come up with this marketing plan, then didn't even read the marketing plan, and now point to the statute and are like, oh yeah, we never had any discretion when it came to this. We were always going to have to deny it. So A, don't like that from an administrative law standpoint. But also, as Justice Kavanaugh pointed out

every time he got the chance, so what's your remedy? Because if we have to deny this anyway, what are we really doing here? And in fact, the remedy is you send this back to the FDA and make them do it again. The FDA promises they will reject it again. So is that harmless error? They also can reapply just on their own, right? They don't need a court order saying they can reapply. And the next part of this that I don't like, David, is that they actually acknowledge this at the oral argument. But underlying all of this is there's

a change in administration and they think if they can keep this alive, the next administration will be much friendlier to e-cigarettes and vaping than the current administration, which is how we got to this in the first place, because of course, administrative law stuff lasts forever. So you go from Trump administration to Biden administration, now back to Trump administration, and we're just ping-ponging back and forth. End result from the oral argument. And I feel like I'm going to be saying this a lot this term, which, you know, I don't like, but it's also my job to tell y'all what I actually think.

This is a six-three-er. To them, this is a pure administrative law question and whether administrative agencies have power or don't have power. And so you're just getting six justices, which again, I think the six are gonna break down slightly differently in terms of why. They're gonna say that the FDA didn't act appropriately. You've got Kavanaugh with this harmless error problem,

but I still think he's gonna say the FDA clearly acted inappropriately. And then I think you've got the three liberals saying, nope, seems fine to us. And then I think you've got the three liberals saying, nope, seems fine to us. But yeah, I'm hearing you on that. But I just wonder about the actual outcome. Because if the statute is binding the FDA, how are the vaping companies prevailing here under that sort of Kavanaugh analysis?

So that's the question I have here. I agree with you that the three liberal justices are going to have greater, provide greater deference to the administrative agency. But at the end of the day, is this thing just coming out against the vaping companies anyway, just through different routes. And there's the rub, as Shakespeare wrote. We'll move on to Hamlet now. So before we even wrap this conversation, I want to bring in two other cases to it as well. The Supreme Court granted cert on a case that we had talked about previously. It was another Fifth Circuit en banc case, this having to do with the FCC's subdelegating its taxing power to a private corporation. This is the universal service tax that appears on cell phone bills across

the country. So basically, Congress delegates its taxing power to the FCC. The FCC delegates its taxing power to this private slash at least quasi-private agency that then sets this tax. So the Fifth Circuit en banc court held that this violated Article 1, Section 1 about legislative powers. This was a non-delegation case. Interestingly, we also just had an opinion coming out of the D.C. Circuit. It was 2-1, but it's going to sound very similar. So here's the dissent. It's actually concurring in the judgment and dissenting in part from Judge Walker on the D.C. Circuit, one of the more conservative judges on that court to be sure. Article 2 of the Constitution begins, the executive power shall be vested in a President

of the United States of America. That means private citizens cannot wield significant executive authority, nor can anyone in the government except for the President and the executive officers appointed and removable, consistent with Article 2. The Financial Industry Regulatory Authority is a nominally private corporation. It investigates, prosecutes, and adjudicates violations of federal securities law. Those laws generally forbid broker dealers from doing business unless they belong to FINRA. Today, the majority holds that the Constitution likely requires government review before FINRA may expel a company from its ranks and thereby put that company out of business. That holding is a victory for the Constitution.

But it's only a partial victory because the deeper problem with FINRA's enforcement proceedings run even deeper. FINRA wields significant executive authority when it investigates, prosecutes, and initially adjudicates allegations against a company required by law to put itself at FINRA's mercy. That type of executive power can be exercised

only by the president, accountable to the nation, and his executive officers accountable to him. A different non-delegation case, David, this is non-delegation from the president. But all three of these cases, vaping, the universal service tax, and FINRA adjudicatory punishment powers, all are these administrative law. When you read the facts, it looks really run amok. And you've got the political overlay of especially when you have the four year, four,

term switch, term switch, term switch of different parties in power, your head just gets jerked back and forth because these regulatory agencies keep bouncing around. Can I make just a side comment here for a moment? This is how you do reform, by the way. Bringing cases where you're talking about under a coherent legal theory

that is connected to the structure and text of the Constitution to restore the power of the political branches of government over administrative bureaucracy. That's how you do reform. Not by nominating skirt-chasing drunken sycophants to run massive agencies. Okay? There's different, we have to understand that there's different ways and different ways of thinking about reform here. And by supporting Donald Trump, that's not the only way to do this. That if you have problems with the status quo, there are thoughtful, intelligent approaches that you can take towards dealing with the status quo.

The sort of drunken berserker approach is not the way to do it. But the reason why I say that is because I think often what ends up happening is we have a situation where for a million reasons, the establishment status quo has been unsatisfactory and it's been unsatisfactory for a long time. And so there has arisen a populist reaction to that,

that status quo. And in manyisen a populist reaction to that status quo. And in many ways, that populist reaction is worse than the status quo. But in opposing that populist reaction, you can't just double down in support of the unsatisfactory status quo. You have to have an alternative for it. You have to have a different approach because people are deeply discouraged by the way the American government has sort of fossilized in its current form.

And so, you know, I think that it's very, very important in a populous stage where a lot of people have a lot of legitimate reasons why they are upset with the current establishment. You have to be able to offer an alternative vision for people for change that is not the one kind of the one that has arisen in the moment. And so that's why I think these cases are interesting to highlight because this is we're

talking about some structural changes here in alterations in legal doctrines that can actually have long term positive effects because they're actually rooted in the text in history of the Constitution and provide an alternative to the current administrative state in ways that are thoughtful and deliberate and provide for greater democratic input. So anyway, just just an aside. And very big picture. A, I would argue the purpose of the administrative state to provide stability across administrations has fallen apart. As we see with this vaping case, they acknowledge. Yeah.

They believe that the FDA changed its mind in the first place because of a political switch in administrations and that it'll change its mind again, which is why they want it sent back to the FDA. So there is no consistency across administrations. That's all these EPA cases as well. So one, it's not fulfilling what that was supposed to be. If that was why you were into the administrative state and sort of expertise, expertise shouldn't switch with administrations, right? Right. Right. Exactly. Expertise should just be expertise to the extent we believe in that kind of expertise, which I don't, but that should be the reason. But second, of course, the purpose of that

progressive era thought was that Congress was taking too long, too deliberative, and that in order to solve these problems, you needed faster, more responsive to the American people action. And the administrative state could do that. That also is clearly not the case. It's both not responsive to the American people, not fast, and then it keeps just getting flipped back and forth depending on the administration, whereas Congress is actually the one that is both democratically accountable, providing the kind of stability, and stability as it turns out with 100 years

to back this up, stability comes from the compromise that it takes to reach that consensus in Congress. It just can't come from the quote unquote experts as surely we have learned by now. Well, and also, one other thing about this, if expertise is being applied in a way that then the same statute should not mean two different things. That's right. Right.

And so the same words cannot have two different meanings. But this is what happens when we have this giant administrative state with huge deference paid to the executive, and they come in and just flip, flop, flip around the law without seeing any statute change at all. That's not stability. That's the opposite of stability. And that is not what expertise would imply. Expertise would imply stability.

And so that's one of the issues that I have with some of my friends who are like, well, wait a minute, aren't we undermining agency expertise? No, what Loper-Bride and reversal of Chevron did, I think is undermine the politicization of expertise because it's the politicization of expertise that is leading to these wildly different swings and policy outcome with the statute not changing. Think of the bump stock ban. The underlying statute did not change. One kind of gun would land you in prison with under one president,

same gun, no prison, another president. How does that scream anything other than politics? It's not expertise. All right. So administrative law, these cases are just, I think, going to break down more and more on the 6-3 line as they become more about theory than the sort of facts of the case. And as the right sees an opportunity to throw these questions back to Congress or back up the chain, as it it were in that FINRA case. Like, no, no, the president has to do this. You can't give it to a private corporation and then say they get to decide who gets to

be a broker dealer. Okay. Next up, David, we've promised for a couple episodes now that we were going to talk about invasion. Yes. So I will start with the Constitution as we want to do. This is Article 1, Section 10. No state shall, without the consent of Congress,

lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state or with a foreign power, or engage in war, unless actually invaded or in such eminent danger as will not admit a delay. So the question here is going to be, what is an invasion and who gets to decide? So this was the Fifth Circuit case on the buoys, David, that Texas Governor Greg Abbott put along

a thousand-foot stretch of the Rio Grande at the sort of busiest part where people were swimming across the river. It's a dangerous thing to do. There were drownings. These buoys were meant to deter people from crossing, but of course they could also increase the likelihood that if you tried to cross that you wouldn't make it. I'm trying to describe them. When you think buoys, you're thinking like the small little things in the water that bob up and down. These are huge, big buoys that touch one another that you could not swim around. Maybe you could swim under them? Don't know.

But so the Fifth Circuit was just looking at a preliminary injunction issue. None of that really matters for our purposes, David, because we talked about that at the time, that the buoys were allowed to go back up. But this was Judge Ho's separate writing in that case. It was a concurring in the judgment and dissenting in part. A sovereign isn't a sovereign if it can't defend itself against invasion. Presidents throughout history have vigorously defended their right to protect the nation. And the states did not forfeit this sovereign prerogative when they joined the Union. Indeed, the Constitution is even more explicit when it comes to states. Presidents routinely insist that their power to repel invasion is implied by certain clauses. But Article 1, Section 10 is explicit that

states have the right to engage in war if actually invaded without the consent of Congress. Texas Governor Greg Abbott has invoked Article 1, Section 10 in response to the ongoing illegal immigration crisis. A majority of the nation's governors have endorsed this decision. Former senior FBI officials have advised Congress that the illegal immigration crisis constitutes, quote, an invasion of the homeland. In response, the US House of Representatives has formally recognized illegal immigration as a national security crisis and a similar

resolution is pending in the United States Senate. So there's ample support, both among the states and at the national level, that this is a good faith invocation of Article 1, Section 10. And he says, two established legal principles should compel the conclusion that federal courts lack jurisdiction to review Governor Abbott's invocation of Article 1, Section 10, i.e. this is a political question, not about the buoys. In other words, that the court cannot weigh in on what the definition of innovation is. That is for the political branches only. That's his argument.

Right. So basically, if Governor Abbott says his state is being invaded, the courts have to accept that as true for the purposes of this or any other case. But I thought some of his examples were interesting. Consider, for example, how Texas responded to foreign incursions during the 19th century. For decades, bands of criminals from Mexico crossed the border into Texas to kill Americans and steal cattle. These were private, non-sovereign acts unauthorized by the Mexican government. Texas sought assistance to stop the attacks, but both Mexico and the United States refused. So, a succession of Texas governors concluded that they had no choice but to take matters into their own hands. They ordered state

troops to defend the border and, when necessary, to pursue the criminals across the Mexican border. All right. So, David, we have a few questions here, I think. There's one, is this an invasion? Two, do courts have the ability to weigh in on that question or is it a political question? And three, and this is why we brought it up in the context of the birthright citizenship debate, if it's an invasion and if we all agree that, for instance, the ex parte Kieran Nazis, if they brought pregnant wifey in the submarine and she had a baby upon landing on shore and they're in uniform, you know, taking off their uniforms, burying them in the sand before saboteuring, as one does, or the 9-11 hijackers, if you are an invader, surely birthright citizen doesn't apply.

I think that is accurate. No, I agree that. Yeah. The Nazis or the 9-11 folks don't get to claim that they are under the jurisdiction of the United States for 14th Amendment purposes. So it becomes really important whether illegal aliens are invaders, because if they are, birthright citizenship does not apply to their children.

But this gets really messy. So let's take it one at a time, David. I don't think it's messy at all, Sarah, but anyway, go ahead. Okay, question one, is this an invasion? Obviously, I think there's a huge difference between bands of criminals from Mexico that had a singular and shared purpose, anti to the United States. That cannot be said of the current moment at all. There's no singular purpose.

These people all come from different countries. They don't, they're not coming to attack the United States or do anything negative to the United States. They're coming because they want to join the United States. And so our definition of invasion gets pretty muddy. At the same time, in the sort of colloquial use of a term, invade, germs invade your body. They don't have any mind of their own. They're invading, meaning they're coming in uninvited and unwanted.

Does that count as an invasion? No, no, no, no, no, no, no. Because, all right, let's just get real about this for a second. This comes up in the context, basically three contexts in the Constitution, one involving a circumstance where states just place buoys, engage in war. So if the governor of Texas's reasoning held, he could literally deploy the Texas Air National Guard, the 149th Fighter Wing, F-16s, and bomb a convoy of asylum seekers. Literally, he could do that under that reading. That's absurd. That is utterly absurd.

Now, if you had cartel strike teams where you had groups of, let's say, 20, 25 trained cartel members who are going into Texas towns, killing people, stealing property, and taking back across the border, the Pancho Villa circumstance, and the federal government wasn't doing anything about it, yeah, then he could act. But this circumstance where you're talking about, again, this is a provision of the Constitution

that allows the states to engage in war. Now, another provision is where it allows the president to suspend the writ of habeas corpus, okay? So are you going to, is somebody gonna tell me that Donald Trump can sort of say, we're under an invasion right now? I'm suspending habeas corpus. Okay.

Because we're getting economic migrants and asylum seekers. And by the way, we actually have some words of, I don't know, a guy pretty relevant, James Madison, who wrote in 1800 that the term invasion is used in the Constitution, and he was using it in the context of the federal government's obligation to protect against invasion, refers to, quote, an operation of war. And to protect against invasion is an exercise of the power of war. And so we have to be really, really careful about this, Sarah, because in context, invasion authorizes war, not just buoys, but war. And so that's, I think when we put it like this,

it's utterly absurd to call economic migrants or asylum seekers invaders. Okay, I'm gonna come to that in a sec. First of all though, in terms of Madison, I just finished the words that made us by Professor Akhil Amar, America's Constitutional Conversations, 1760 to 1840. We talked about this. We had him on the podcast to talk about this. It's incredible. It's a tour de force, David. It's fantastic.

Oh, I'm sure. Yeah. But it is, Madison is not really a good guy in this book. And I came in pretty skeptical of that, but I think he's radicalized me at least most of the way. Madison is a Jefferson acolyte. I don't like Jefferson, therefore, I don't like Madison. And he's not nearly as responsible for the Constitution as we all give him credit for. So all of my Federalist society, Madison head pins, I have a hoodie, all of that, I probably need to burn in a bonfire. Anyway, it's a great book. Yeah, there's a lot about the personal side of Madison. Right?

Oh yeah, yeah, yeah, yeah, yeah, absolutely. We think of this as like the gray haired statesman and like actually shady dude. Hamilton is the hero of the book, by the way. So it's sort of, it's a very musical 700 pages that you can read. Anyway, to the point. So David, what I'm hearing you say though,

is that if Texas believed that there were a sufficient number of cartel members or terrorists crossing the border, A, those would absolutely count as invaders. B, if they thought it was more effective to put up buoys than to drop bombs on them, that would be fine too. Just because they're mixed in with a civilian population of non-invaders, let's say,

doesn't mean that there aren't invaders. And doesn't mean that you can't repel them. It is an actual invasion, even if they're mixed in with this other population. And then three, it would also mean for birthright citizenship purposes that cartel member families or potential terrorist families would not get birthright citizenship.

Again, even if all of the other non-invaders then would get birthright citizenship. And the problem would be keeping track of who's who and sort of litigating that, I suppose. But do you at least agree with that distinction? Like cartel members don't have birthright citizenship and can be repelled by force by Texas. Okay, what I would say is in theory, yes, the practicality of this gets really difficult because the reality- Absolutely,

there's a hard practicality. For sure. Yeah. But just go with my legal theory here. Yeah. I would say that if you were going to say, okay, what we are trying to do is repel, prevent cartel members from coming in. Now, there's a very interesting element to this, which is also there's a federal responsibility, constitutional responsibility. constitutional responsibility. In Texas, this isn't the late 19th century any longer. And this sort of idea that Texas can say, even when the federal government is participating

in efforts to repel the invasion, that we don't think that's sufficient, and we're going to engage in our independent war-making activity. Because again, it's engage in war. This is this is the phrase from the from the Constitution. 10 doesn't say it says no state shall engage in war unless actually invaded. So it doesn't say or if the president, you know, if the federal government's doing some things, but not everything, I don't know if I buy that.

But I hear you. Well, you've got a supremacy issue. You've got a supremacy issue. But here, the, again, I just keep getting hung up on this. Everyone thinks, okay, all he's doing, David, is placing buoys. Fine. I got it. And he's allowed to because remember the Fifth Circuit said there is no conflict between placing buoys and the federal authority over navigable waters, that as a practical matter, the placing of the

buoys did not interfere with the navigable waters. So they're getting the buoys as of right now. So they have that capability. And they certainly have that capability and they certainly have the capability to use law enforcement in Texas. But there's a gajillion pounds of fentanyl crossing the border. We know therefore that cartels, cartel members are going over. So clearly that would constitute invaders. I don't know whether it constitutes an invasion. I think birthright citizenship would not apply if you could prove that they were a cartel member. But David, this takes me to question number three.

Who gets to decide? But crossing the border for crime isn't an invasion. It's an act, an invasion is an act of war. Oh, oh, but I think a cartel is incredibly similar to the bands of criminals from Mexico that counted as an invasion in the 1870s etc. If they're doing what they were doing in the 1870s, yes. But if you're talking about just drug smuggling, if you're talking about bringing drugs into the country, that's not an active war. They're coming into the country and killing a bunch of people too, not just with drugs,

I mean, but with guns. Yeah, but that's drug smuggling into the country is not an act of war. It's under, I mean, it's just not. It's just... Okay. Okay. I'm not agreeing with you, but I'm agreeing to disagree with you. But this gets to my question, David, who gets to decide that? Is it a political question, as Judge Ho said it was, something that has to be left to the politically accountable branches, or is this a legally cognizable question in front of an Article III court? I think it has to be legally cognizable

for an Article III court. Otherwise, you have the ability of the governor of Texas to order airstrikes into Mexico on his own authority under his own whim, based on his own definition of what an invasion is. And that cannot. That's wild to think about. That is wild. My answer is a little nuanced from yours. I don't know that we end up in a different place. I believe that courts determine the standard by which an invasion is defined, for instance. An invasion has these qualities or an invasion requires this and this and this. But whether those qualities have been

met and that standard has been met doesn't strike me as particularly different than any other national security question that the courts don't adjudicate and leave to the president. Like, it's not up to the courts to decide whether the national security threat is sufficiently serious, for instance, but I do think it's up to the courts to be able to say the national security threat must be sufficiently serious, if that makes sense. Yeah, that makes sense. That makes sense. We did get a question from Adam about the opium wars when I was talking about bringing in drugs in active war. Well, the opium wars were interesting because the British and the French wanted the opium. China was trying

to restrict the opium trade, and these guys wanted the opium trade. And so a little bit different and also a massive violation of Chinese sovereignty in context of the opium wars. So, yeah, a little bit different kind of scenario there. All right. A couple of things. One, as I mentioned, we'll have Attorney General Jonathan Scrametti talking to us about the oral argument in that Tennessee gender medical treatment case.

Also, David, I want to talk about debanking, operation choke point, cryptocurrency debanking, individual debanking, and how this maybe fits into our larger stuff we've talked about on third party settlements, sue and settle, sort of the weaponization of the executive branch against disfavored groups. This goes into Vulo, right? That Supreme Court case about the NRA and the governor trying to prevent insurance companies from working with a disfavored group because of their political views. So we'll talk a little bit about the legalities around

debanking, though I should just add in a huge malpractice alert on this one because neither the world's foremost expert on crypto, nor am I the world's foremost expert on how our banking system works. Aside from just having read Alexander Hamilton's take on it, I do think a few things have changed since then. Yeah, we're gonna have a big malpractice alert about debanking, but it's still a fun conversation. Yeah, it's gonna be more theory than practice,

I'll tell you that. Last up, I wanted to read a bench slap. It's just, I don't know, this bench slap warmed my heart. A expert witness was called to the stand to talk about misinformation and the dangers of AI-created content. He's a professor at Stanford. He billed the state of Minnesota $600 an hour to prepare his expert declaration as a misinformation expert

on the dangers of AI generated content. That included swearing under penalty of perjury that everything stated in his declaration was true and correct. But then he had to file this, David. The two citation errors, popularly referred to as hallucinations, likely occurred in my use of GPT-4,

which is web-based and widely used by academics and students as a research and drafting tool. Hallucinated citations are references to articles that do not exist. In the drafting phase, I sometimes cut and pasted the bullet points I had written into MS Word into ChatGPT. I thereby created prompts for ChatGPT to assist with my drafting process.

Specifically for these two paragraphs, I cannot remember exactly what I wrote, but as I want to try to recall the best of my abilities, I would have written something like this as a prompt. For paragraph 19, draft a short paragraph based on the following points. Deepfake videos are more likely to be believed. They draw on multiple senses. Public figures depicted as doing saying things they did not would exploit cognitive biases to believe video.

And for paragraph 21, draft a short paragraph based on the following points. New technology can create realistic reproductions of human appearance and behavior. Recent studies show that people have difficulty determining real or fake even after deep fake is revealed. Deep fakes are especially problematic on social media. So just to be clear, David, in his declaration as an expert witness on the dangers of AI-created content, he used AI. It provided him false content that he did not check. After, I will note, asking Chad GPT to draft a paragraph, so the very thing he's saying

can result in misinformation. He just cut and pasted that paragraph into his declaration at $600 an hour. It's too much, David. It's so much. It is so much. It is so much. It is so much. By the way, you know,

one day we should have a conversation about what is the best way to deal with chat chibit if you're a teacher and you're assigning essays. Do we bring back the blue book? Sarah, do we bring back the little blue book where they bring in pins and they sit there and they write out an essay in front of you. Is that how we do it now? Because I grade papers now and I put my essay prompts into chat GPT and, you know, and to try to sort of sniff it out, put different

permutations of it into chat GPT. Well, I'll just tell you not as a teacher, but as a writer, I get the benefits of saying draft a short paragraph, but that's not how I use it for this exact reason. I use it as sort of a sophisticated Google search. So for instance, I was recently searching examples of judges who announced their retirements and then rescinded their retirements upon election of a new president.

That's too complicated for Google. But chat gbt gave me three examples immediately. I then went and googled those examples. Tick and firm. Tick and firm. Yep. Like I don't understand. I mean, so Jonah Goldberg wrote us a great text on this, uh, Situation. He said, I mean, it's the layers. Don't use AI to write a legal doc. Don't use AI to write a legal doc that claims you shouldn't use AI. If you use AI to write such a legal doc, make sure to check the content,

especially if to sign it on penalty of law. It's true, David, the layers are fun in this one. There's so many good layers, so many. But I wanna say this for my students. I've not seen a hint of GPT-ness in their work. So kudos to you students. And the other thing is- Or negative kudos to you for being able to catch it,

but sure. I'm just gonna trust that I can do it. And the other thing is I've got to do a, you kids get off my lawn moment because I'm just upset because right at the moment when my Google foo has reached like PhD levels now I've got to learn a whole new way of finding information. Yep. What? But although by the way there's something really fascinating. Google is losing market share in search which is not surprising. I mean, this level of monopoly is going to be hard to sustain through technological developments.

This happens frequently in big tech. Right when you think something is an unbeatable monopoly, there's a new technological development and they go the way of MySpace or market blockbuster, market dominance fades, et cetera. But Google is losing quite a bit of market share on its search to Amazon. As people are going to Amazon to search for products. Yeah. Not Google, fascinating. Like I would not have had that on my bingo card

as to what is Google losing market share to? I would have said chat GPT just instantly. Yeah, sure, maybe more down the line. But as of right now, one thing that's really eating into the Google market share is actually Amazon, which I did not expect. But then once it was explained to me, it made all the sense in the world.

All right, and with that, we've got that oral argument to talk about next time, debanking, and a few circuit cases that have been percolating in our world that we thought were interesting. So come back for more advisory opinions next time. Bye. Yeah!