Advisory Opinions - You’re Fired

Episode Date: February 4, 2025

Sarah Isgur and David French are joined by Erin Hawley, senior counsel to the appellate team at the Alliance Defending Freedom, to discuss the latest, er, kerfuffle that sent federal employees scrambling. Who is in control of executive agencies? The Agenda: —Tariffs, funding freeze, and firings —Congress has the power to collect —Trump’s workaround —Barrett vs. Gorsuchian doctrines —Elon Musk’s power grab —Where does the fire-at-will power end for the president? —The Founders say we’re all untrustworthy Show Notes: —Justice Brett Kavanaugh’s 2013 D.C. Circuit decision —Humphrey’s Excecutor 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

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and even a McD's food prize. Say yes to McDonald's new game. What prize with that? And get ready for your chance to win. No purchase required. Codes available until March 3rd. Intercodes by March 24th. Chances of winning based on code entry time, rules, and app. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and David, I think this is going to be a good pot because what we're going to do is break down some of what's been going on in executive branch

land. I want to talk about tariffs, funding freezing, including what's going on at USAID, and firings. And we'll have a special guest for one of those. And think of this sort of as a Rumsfeldian conversation. We don't have all the answers here. We don't have all the facts at this point in a lot of cases, but we have the known unknowns and the unknown unknowns and the known knowns. And well, it's a great book if you haven't had a chance

to read Rumsfeld's book also, by the way. It's on my shelf just behind me there. It's a good book even, and I'm not the biggest Rumsfeld fan by far, by the way. It's on my shelf, just behind me there. It's a good book even, and I'm not the biggest Rumsfeld fan by far, but it's a good book. So David, let's start this conversation with what I think are the three biggest

Rumsfeldian topics for us. And that is the tariffs, the funding freeze, and the firings. I wish I had a word for tariffs that started with an F, cause that would be really alliterative Yeah, do you think those are the three big buckets? I would say so and then you know, we can maybe say a little bit about USAID Which is a bit more complicated that I think then then folks may realize

Let's put that in the firing bucket, but I agree it is It is different than firing individuals. Okay. Yeah, yeah. Let's start with tariffs. Yeah. Because the US Constitution has the word tariffs in it. That is literally why I'm starting with tariffs. Let me read you the relevant section. Article one, section eight,

the very famous part of the legislative powers, starts with, "'The Congress shall have power to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defense and general welfare of the United States, but all duties, imposts and excises shall be uniform throughout the United States. So this pretty clearly puts the tariff power with Congress. Now what's happened here is that Congress then has statutes

where it has given the president the ability to like, you know, determine whether certain factors have been met to determine tariffs. And I guess the first question we have to start with, is that an unconstitutional delegation? Remember we've talked about non-delegation and major questions. Normally, we just go with major questions

because Congress didn't say it clearly enough. If they meant to give the president all this power, they would have been clear about it. And we don't spend a lot of time on non-delegation, which is not, did Congress give the president the power? Can Congress give the president this power? So can Congress simply say, the president decides duties any more than they can say, the president declares war or the president decides taxes?

Can they give away section eight clause one power? No, they cannot, but they did. They did. Now, the interesting thing is whether, and, but let me put it this way. They did and I don't think they thought they did, would be one way of describing it. So if you're- Which maybe gets us more into major questions territory. Right.

Okay. So there is, when you're talking about the thing, the act that Trump is using to really go wilding on tariffs is the International Emergency Economic Powers Act of 1977. This is giving the president really broad discretion to regulate various transactions when declaring a national emergency. And the law says to deal with any unusual or extraordinary threat which has its source in whole or substantial part outside the United States

to the national security, foreign policy, or economy of the country. This unlocks, it's like a key that unlocks a lot of powers. Like a lot of these emergency declarations, they don't think of them as they make the president a king, look at it as they unlock king-like powers to some extent. And so the interesting history, and the reason why I say they did this maybe and didn't know they were doing it, is that this is actually one of the laws that came about sort of in the aftermath of Watergate.

And it was actually enacted in an attempt to restrict emergency economic powers granted to the president. It doesn't do that very well, Sarah. And I think one of the reasons why it doesn't do that very well is for. And I think one of the reasons why it doesn't do that very well is for a long time, we have said, okay, here's our normal state of being where everything happens according to regular order. But then we have a myriad of federal statutes that say, except

in cases of national emergency. Okay, well, what's a national emergency? Well, then here's where it gets tricky. Well, that essentially basically becomes up to the president. And so, you know, if you're saying words like unusual or extraordinary, then Congress, those words are not self-defining words. Unusual. Well, we have an unusual amount of fentanyl, right? For example, and this was the motivation for the Mexico and Canada tariff, you know, the tariffs on Mexico and Canada. Is that an emergency as defined by Congress? Or are they thinking something much more like an actual war in the middle of a shooting war? middle of a shooting war. And so what you have are delegations in the case of emergencies, and yet the definition

of the emergency is almost entirely up to the entity that you're delegating to. So in that circumstance, the delegation, and as a practical matter, almost becomes like a total abdication at the will of the president. And to me, that's where the system breaks down. I could imagine a very carefully designed statute that says in the circumstance of say a declared war, that there are powers given to the president for say a 30 day or a 60 day period

that then Congress has to, you know, that before it has to come back to Congress. I could imagine limited circumstances like this, but sort of saying we're going to create a category called emergencies, that the definition of emergency is almost entirely up to the president. And then once the president declares the emergency, we don't have the authority vested in us by the constitution anymore, strikes me as really rough, really bad constitutionally. Okay, so here's my take. I think this is a non-delegation problem. I do not think you

can give away a piece of your core duty as the legislative branch. But I think the major questions doctrine part of this, which they would of course wanna get to first in sort of a constitutional avoidance sense. So if you can resolve it on major questions doctrine, you're gonna do that before you say Congress violated the separation of powers and they were not allowed to delegate this power. When you get to major questions doctrine,

there are now so many different versions of major questions doctrine. I just wanna like explain a few of them. So, right, I've made this my little catch thing of like, non-delegation is can they delegate it? Major questions is did they delegate it? Right. But you have a great explanation of the different types

of major questions doctrine from Justice Barrett last term in which she basically says there's a version that's like a textual Analysis version right when you're reading the text the same way that you um, you know A seriatim list needs to be related to one another they'll like catch all at the end And other things like oh you look at the rest of the list. If it's dogs, cats, and rabbits, and other animals, they're probably talking about domestic animals. If it's dogs, cats, iguanas, eels, and other animals, maybe they're talking about all animals. And so her version of major questions doctrine is

just a way to read the text. Does it look like Congress gave this power based on where this is in the statute or how they describe it, what words they use? But another version is this thumb on the scale, meaning whenever you're dealing with something that's important economically of some national interest, Congress has to be very clear if it's going to try to do something like this. And that's where the Gorsuchian version of major questions doctrine. What's funny here is that oftentimes it won't make a difference for major questions doctrine. Either way, you're going to get to the same place. This is an example where that distinction really matters, David, because under the Gorsuchian

clear statement thumb on the scale version of major questions doctrine, I think there's a great argument based on your explanation that this fails. But under the Barrett doctrine, major questions doctrine that I myself thought I very much subscribed to that it is simply a way of reading the text, maybe Congress actually did delegate this power and you end up in having to decide the non delegation issuelegation issue, that big constitutional question of, can Congress give away this power? Well, you know, and it's interesting if you're gonna go with sort of that major questions analysis here, Sarah,

and let me bring up a blast from the past, shout out to the husband of the pod, Woohoo! OSHA, OSHA vaccine mandate. An OG major questions doctrine. Right. Himnal. And so you had OSHA that mandate. An OG major questions doctrine. Right. Himnal. And so you had OSHA that had broad language

about workplace safety that is then manifested in a lot of specific language that's about things like, do you have a hard hat? Do you have the right kind of protective fluorescent vest or whatever, if you're gonna be working at night on the road? And then they say, well, if you're sick, then that's a workplace issue as well.

And then you have all this broad language to kind of try to jam that in. And they said, no, no, no, no, no, no. The broad language, no. The idea that you're gonna smuggle a vaccine mandate into a workplace safety statute. Yikes. And so I think one of the things that you're talking about,

if you'd had 20, 25 years of things like under OSHA mandating all childhood vaccines or something along those lines, you might've had maybe a better argument. But what's interesting here, Sarah, is under the IEEPA, which the reason why I'm focusing in on the IEEPA is that the International Emergency Economic Powers Act is what Trump has invoked to impose these tariffs on Canada

and Mexico. Now, here's what's interesting. According to a change, a 2024 Controversial Research Service document, no president has used the IEEPA to place tariffs on imported products from a specific country or on products imported to the United States in general. So that might tell you that this could be

an OSHA type situation where the president is using some of the broad sort of statutory language in a way that no president before him has and in a way that circumvents the clear meaning and intent of the act. So that's, I think that's a score one for your major questions if this has not been what any president since 1977 has done. intent of the act. So that's, I think that's a score one for your major questions. If this has not been what any president since 1977 has done.

By the way, good news though, for those who were fearing the price of avocados was about to go through the roof, the Mexican president has announced that the tariffs are on hold for a month and that she has agreed to put 10,000 Mexican National Guard troops on Mexico's northern border to prevent fentanyl trafficking across the border. So maybe this was all just a game of chicken, David, and we'll see if our maple syrup will be coming as well with a pause. I have to say, just from a policy perspective, I actually feel kind of mixed about this. Set aside actual trade policy, tar I actually feel kind of mixed about this. Set aside actual

trade policy, tariff policy, all of that. I'm obviously no economic expert. But culturally, David, I feel like when we opened up to free trade agreements and allowed really our manufacturing jobs to be shipped overseas, which is just sort of a factual analysis of what happened, it changed American culture in such a fundamental way. I don't think we're getting the manufacturing jobs back. But what I wouldn't mind is maybe a slight curtailing of the over consumerism. Think about if you bought a house from 100 years ago, the two things you're going to immediately renovate are one, the kitchen. Fine, we have a lot more foods and refrigerators and appliances for the food, all of that. Okay, fair enough.

But the second thing, your master bedroom isn't going to have closet space. It may not have any closets at all, and you're going to need massive closets. Why? Because textiles have gotten so cheap that we buy endless amounts of clothes and toys for our children because they're so cheap. Like, maybe it's not the worst thing in the world if we all had to be a little more thoughtful about having fewer clothes, fewer toys.

And if nobody, you know, some of it's like this hedonic treadmill and your neighbor problem, like, well, my neighbor has five shirts, so I need the five shirts and the 27 toys. So if everyone had less crap in their house, maybe we would all be happier. So it's interesting you raise that because this is a fascinating cultural question. And I think if you, you know, Sarah, I'm going to go back to my old manism. When you look back, one of the interesting realities about the loss of manufacturing in the United States, it wasn't just a we want cheaper stuff issue. It was a we want

better stuff issue. Because if you remember back into the 1970s, when we sort of were at the tail end of the sort of the dream economy that a lot of people look, the dream economy when we sort of were at the tail end of the sort of the dream economy that a lot of people look the dream economy that a lot of people look back on is like the 1950s. America was a manufacturing super giant, lots of union jobs, etc. Also, by the way, all of our trading competitors were in ruins. So Japan was literally rebuilding all of its cities. Germany was rebuilding all of its cities. Great Britain was unwinding its empire. The Soviet Union was a Soviet Union recovering from losses in World War II that are at a scale humans can barely comprehend. And so that 1950s economy was an artificial consequence of a catastrophic world event.

was an artificial consequence of a catastrophic world event. And then as you moved into the heavy union sector, industrial heavy economy of the 1960s and 1970s, in many ways it began to fail. American cars were poorly manufactured. A lot of American products were poorly manufactured. So you were paying high prices due to union labor for bad products. And so one of the things that initially began

to change the American landscape was the fact that say, for example, in the late 1970s, early 1980s, when these little, and especially in the 1980s, when these Honda and Toyota cars arrived, they worked, Sarah. They ran. And they last forever.

And they lasted. And so, you know, a lot of people were like, don't buy those Hondas. And I remember having this kind of nationalist moment until we had this like Dodge Dart, 1977 Dodge Dart, that literally, no, Dodge Aspen station wagon, that every time it rained, the engine would shut off at red lights. Like every rain, it would, and then my dad buys a Toyota because he's like, this is dangerous and the thing ran.

And so the next thing you know, Ford by the 1980s says quality is job one. And all of a sudden this international competition began to increase the quality of the products by the 1980s says quality is job one. And all of a sudden this international competition began to increase the quality of the products that we were receiving because we had actual competition. And so this is not a story of just greedy capitalists shipping jobs overseas.

All that is so freaking simplistic. A lot of our economy in that time was absolutely in a state of call. There's a phenomenal PBS series about the years and years ago in the 1980s, Toyota came in and did a joint venture with GM in a plant in California. And there's this really phenomenal and this is PBS. So it's not conservative, anti-union stuff, talking about the union plant in California at that time and how, for example, they were running a brothel out of it. And the amount of corruption and union graft and the poor quality of the cars that were

being produced, this was a very real thing. So an enormous amount of the story we tell ourselves about, well, you know, these greedy capitalists just open things to overseas and didn't care about Americans. No, in many ways, Americans were demanding better things. And the closed market, the access to only to American vehicles was resulting in very poor quality, often dangerous stuff. And I know people hate, like some people are, how dare you, how dare?

I guarantee you, if you talk to somebody around my age who remembers what it was like to go car shopping, and that's just one example, but I'm with you on things like the super cheap goods, but I also remember pre Walmart small town life. And in pre Walmart small town life, there was just, you were cut off from an enormous amount of consumer goods just in general.

And the things that you did have access to were of much higher prices. Like milk would cost more in your local dollar general, you know, not dollar general, local general store before, you know, the mom and pop general store. And so a lot of these things happened in response to actual felt consumer need,

specifically from middle-class and working-class families for whom this wasn't working out so great, things weren't working out so well. And so I think one of the things that's ended up happening is from top to bottom in the United States to wax philosophical for a moment. In many ways, our actual standard of living has increased quite a bit.

The median American lives in a much bigger house. The median American drives a much nicer car. The median American- Again, look at the closet. Just look at the closet. The median American has many more clothes, right? But what's happened is we've gotten a lot of the things that we wanted, but having stuff doesn't make our hearts happy.

And so I think a lot of what's happening is government and economics have delivered a level of prosperity that even two to three generation ago, Americans would be gobsmacked at what we have. And yet what we have is not enough to fill the holes in our hearts. And this is a bunch of the tension that we have in the present moment. Now, that being said, if you're going to have a tariff policy to get to that, you may want to make it a little more targeted than based on countries. But whatever.

All right, we're going on. A 25% tariff on Canada is not going to solve our existential crisis. Or will it? Yeah. All right, on to the funding freeze. And David, I want to read you a paragraph from a 2013 DC Circuit decision. Like the commission here, a president sometimes has policy reasons, as distinct from constitutional reasons,

for wanting to spend less than the full amount appropriated by Congress for a particular project or program. But in those circumstances, even the president does not have unilateral authority to refuse to spend the funds. Instead, the president must propose the rescission of funds and Congress then may decide whether to approve a rescission bill. That sentence uses the citations for train versus city of New York, which we talked about with Professor Goldsmith. Also a memorandum from, at that time, William H. Rehnquist, the assistant attorney general

of the Office of Legal Counsel, a position also held by Professor Goldsmith, by the way. In that memo, by the way, that OLC memo by Rehnquist, it says, it's from 1971, with respect to the suggestion that the president has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent." Right. Right. Okay. So that's all in this DC Circuit opinion, David. And do you know who wrote that DC Circuit opinion? Oh, Sarah, please tell me. That would be one Justice Brett Kavanaugh. So the spending freeze has been put on hold by a district judge at this point who was citing this Kavanaugh opinion. David, what are our known unknowns or our unknown unknowns

at this point? We talked obviously about impoundment for quite a while with Professor Goldsmith, but is there anything new in the past week that is worth emphasizing here? Yeah, there are a few things that are new that are worth emphasizing. One is, and I wanna be very clear about this, there's a lot of sort of fog of war about that. I know we're not in a war, but bear with me. Fog of war is in shifting, confusing moments,

in emerging events, it's often very hard to tell what's true and what's not true. So there's a lot of sort of fog of war about things like, okay, are Elon Musk employees as opposed to federal employees now going into the federal government and sort of unilaterally firing people, chopping off access to funds, things like that. That would raise a host of issues. We don't know the status of these individuals. There's just so much we don't know.

But as a general matter, a private individual cannot come into a federal agency, gain access to enormous amounts of personally identifying information of taxpayers, for example, and start slashing spending. That is not something that is, we don't have a lawful construct for that. However, there are some things that are more

complicated than they appear at first glance. So, for example, USAID is an agency that oversees a lot of US international development funds. So here you have appropriated funds for international development, which, Sarah, I do not believe the president has the power to withhold. You can't if congress said ten billion dollars in assistance is going to go to poland to increase their ability to purchase. No euro fighters or your fighter typhoon or m1 abrams tanks whatever. Yes i have the thirties i know we're not allowing that. However what's interesting about USAID is USAID was created by an executive order. So this is not a statutorily created agency.

If you go and look at a archived USAID page, it says, in 1961, President Kennedy signed the Foreign Assistance Act into law and created USAID by executive order. So on the one hand, could he unwind USAID? Yeah. But would he still have to spend the money? Yeah.

So it's a very interesting conundrum here. On the one hand, you've got an agency created by executive order and that which is created by executive order can be undone by executive order unless there's some statutory reason superseding it. But at the same time, he can't not spend money that Congress has told him to spend. And so this is, you know, that's why some of this gets very excited. I mean, very excited, very complicated, and people are very excited in both positive and negative ways. All right. Last up is the firing question.

And actually for this, I thought we would bring in our expert. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit superstore.ca to get started. TD Direct Investing offers live support. So whether you're a newbie or a seasoned pro, you can make your investing steps count. And if you're like me and think a TFSA stands for Total Fund Savings Adventure, maybe reach out to TD Direct Investing.

for a total fun savings adventure, maybe reach out to TD Direct Investing. Erin Hawley, our special guest today. Erin has done all of the things. She has been a law professor. She has worked in the Department of Justice as Counselor to the Attorney General. She clerked for the Chief Justice and she currently works at Alliance Defending Freedom. Erin, thanks for coming. Thanks so much for having me. Great to be here. So obviously last week we had Professor Goldsmith on to sort of give the lay of the land

on the unitary executive and unitarians. And you are here as a strong unitarian. And to maybe channel for us Unitarians and you are here as a strong Unitarian and And to maybe Channel for us a little bit of your former boss the chief justice When it comes to a few of these cases that we'll be talking about Humphrey's executor Celia law why don't you just I mean put on your law professor hat for us and Walk us through what's an independent agency, all of it.

Just start, go. Sure, sure. So I think the question is, if you're not a Unitarian, and I don't know that I'm a full-fledged Unitarian executive person, but if you're not a Unitarian, do you believe in the fourth branch, a headless fourth branch of government? And their question really is, if the president is not in control of executive agencies, who is? And what's clear is that the people are not.

So to take sort of a giant step back and to think about what independent agencies are, we know that of course the framers split the atom of sovereignty, they split it twice. You've got the federal government, you've got the state governments, and then you've got the three branches of the federal government. You've got the legislative branch, the executive branch, and the judicial branch. So where do administrative agencies fit within that constitutional structure?

And the reality is that they don't fit anywhere very well. Oftentimes, they exercise all three functions of the federal governments. They interpret statutes. They write regulations with the force of law. They adjudicate disputes, sometimes binding. They can issue binding decisions that have real effects on real people and real businesses. And they also help the president enforce the law. So through case law, through sort of working the system out, the Supreme Court has primarily situated these intermittent agencies in the executive branch. And that means that there's some sort of political accountability. If you don't like something the Environmental Protection Agency has done, then you can take it up with the president because the president appoints the head of the EPA.

Now fast forward to independent agencies. Independent agencies are by design insulated from political pressure. That means that the president cannot remove them for a policy disagreement. Again, this is by design, and that means there's really not a lot of political accountability or any political accountability with these agencies. And I think that's quite problematic. Okay, the Supreme Court addressed this in 1925 in a case called Humphrey's Executor, which is a fun little backstory

about Mr. Humphrey and his fight with FDR and poor Mr. Humphrey dies before the Supreme Court is able to rule on his case, which is why the case is called Humphrey's Executor for those who are curious. But in that case, they uphold the Federal Trade Commission. And it's sort of a fun little historical note, but FDR, not a big fan of Humphrey's Executor as a case and Robert Jackson, the attorney general, you know, Hague prosecutor turned Supreme Court justice would later say that FDR believed and maybe Aaron believes that the Supreme Court did it to spite FDR.

I'm not sure about that, but that certainly was a time of upheaval on the Supreme Court. You had a lot going on. The Supreme Court was certainly feeling threatened by the plan to pack the court and other things. So I wouldn't put it past them. But what happened in Humphrey's executor is the court took a sort of interesting view of the powers of the FTC. They described the FTC as it was at that time period as a quasi-judicial or quasi-legislative agency

that did not exercise, quote, any of the executive power. Now, fast forward to C. Lala and the Supreme Court in an opinion written by Chief Justice Roberts really sort of scoffed at that. I think it's footnote too, but in a footnote in the opinion, he says, you know, that simply has not stood this test of time. There's no doubt that the FTC today exercises executive power. It probably did back then, if you read between the lines of the Chief Justice's opinion. And he goes on to say that, you know, if it's not an executive agency, then what is it? And suggest that it would be unconstitutional by citing a case called Arlington Heights. So, so I think when you look at CELA law through, or excuse me, Humphreys executor through the

lens of CELA law, we really get a unique situation in which the Supreme Court found that on the facts, this was not an executive agency, but a legislative one. Okay. I think we just need to real quick say what we're talking about when we're talking about independent agencies, because if you were to go Google independent agencies, depending on the definition, it might sound like we're saying no CIA, no EPA, Central Intelligence Agency,

Environmental Protection Agency. No, no, no, we're talking about where you're having like multi-member leadership or you're talking about leadership not easily removable by the president. So that's FTC, Federal Trade Commission, SEC, Southeastern Conference, no, I'm sorry, Securities and Exchange Commission.

The SEC is totally independent from the president for a million good reasons, the real SEC. The Federal Election Commission, CFPB, Consumer Financial, wait, CFPB, Consumer Financial. Is it CFPB? No, I got it. I just, I typed it wrong for you. Because of course I did. Like I said, I don't know what this agency is financial protection board see a PB and Federal Reserve, so

That's what we're talking about very important agencies very important agencies, but we have to define what we're talking about. Otherwise Some people might be thinking The CI the advisory opinions is actually having a podcast over the existence of the CIA. And that is not what's happening here. So yeah, just some level setting. And on that too, I think it's important to distinguish between two types of independent agencies. As you mentioned, David, there are an independent agency is an agency in which the head of that agency is not removable at will by the president.

And there are really good reasons you would want that at will by the president. And there are really good reasons you would want that head removable by the president. As the Supreme Court case said in a case called Bowser is the buck stops with the president. So you have someone to complain to if you don't like what an agency does. And then there are two types of these. One of them is the multi-member boards. That's what the Supreme Court upheld in Humphrey's executor back in the 1920s. And then in Selah law, in contrast, you had a single director that was heading up this enormous vast apparatus in charge of 19 different consumer protection and financial laws. And the court was really skeptical of a single director who was not removable as well by the president having

this much power. Okay, but that makes so much sense to me. Like, Celia Law to me, like, yeah, chipped away at Humphrey's executor, but it's because it was looking, CFPB looked like a regular agency. They just called it independent and like, no, no, no, the reasons to have the independent agency and the reasons Congress would want to create these protections, in Humphrey's executor, I thought the court did a nice job laying that out. So for instance, in Humphrey's executor,

they explained that the multi-member board was supposed to have partisan balance. So ex-members of the board would be Democrats, and ex-members would be Republican. So if you then have the president removing people at will, all of a sudden, they're all Republican or they're all Democrats undermining the sort of purpose that Congress had in creating such an agency in the first place, very different than CFPB, for instance. If you're going to have a single head of it, like, why would

you shield that person from at will removal? Okay, so take out CFPB that's handled by Celia Law. Now do the Fed, Aaron. How is the Federal Reserve supposed to work if we have the FTC on one side, the multi-member partisan mixed board, and you've got CFPB on the other side? So I think the Fed is a hard case, but I don't think it's actually a problem for those who are skeptical of independent agencies. And for the reason is, is the court's opinion in Humphrey's executor. If you look at that opinion, the court is clear that if you have, you can have something called a legislative agency. We typically think of agencies being housed in the executive branch because they help the president enforce the law. But there are such things as bodies that report

to Congress on policy. And I think that describes more of what the Federal Reserve does. It's also composed of a board rather than a single member. So it fits more within sort of the traditional agency apparatus than does the CFPB. But I agree that that's sort of the hardest case if you're going to talk about these sorts of agencies, but I would categorize it as a legislative agency rather than a executive agency. So, you know, in thinking this through, I have a lot of fun because I have an undergrad class

called the Legal Philosophies of the American Founding. So one of the things that I did at the very start of the class is I talked about how, what is the founder's sort of view of human nature, good or bad, good or evil? And I said, you could definitely boil it down to, they saw us as untrustworthy. Everyone is untrustworthy. You can't trust a monarch, you can't trust the people, mob rule, you can't trust anybody fully. And it seems to me that if you're going to explain kind of in layman's terms, what is wrong with the independent agency is they created agencies

that were vested with more trust and more insulation from the democratic process and democratic accountability than really is envisioned in the structure of the government would be one way that I would explain it if I was going to talk about the critique of this. And what, so as a bottom line, how independent are these independent agencies? How much are they sort of departing from that structure that says, everybody gets checked? Everybody has pretty immediate checks, quite frankly. So I think that is putting your finger on the issue here. And the answer is that independent agencies are by design not checked by

the president or by anyone else. If you look to the New Deal in the 1930s and the vision of agencies they were supposed to be experts that were insulated from political pressure and there's really good reasons to want experts but there's also really good reasons to want political accountability. If you take the EEOC for example, President Trump fired two commissioners from the EEOC. Equal Opportunity Commission. Yes, yes. Equal Employment Opportunity Commission.

And if you look at what the commission did under the Biden administration, they required employers above a certain threshold of employees to allow access to women's bathrooms to men who identified as women. You have to do that if you're regulated by the EEOC. Now it's no surprise that President Trump takes a different view of that and that he might want that agency to change the guidance. He can't force them to do so if that agency is independent. He can't enforce or implement his policy priorities. The same for a

Democratic president who's left over with the commission that's been appointed over time in staggered terms precisely to insulate them from that sort of political control. So one of my other questions. So I'm with you on this. I have been on, I think Sarah and I have been on this to some greater or lesser degree for a really long time,, I think Sarah and I have been on this to some greater or lesser degree for a really long time, but I don't think we've ever actually tried to sit down and explain it the way that we're explaining it now. And so, but one question I have is a practical matter. So, if you're talking about agencies that have been around for a very, very long time, how much of the discussion that we're having right now, because of the sheer tenure

of these agencies and how much they've kind of become part of the fabric of American governance, how much can this be unwound as a practical matter? I think you could probably unwind the leadership element. You could probably do something about the leadership element. But would probably do something about the leadership element. But would that, just changing the leadership element, does that fix it, Erin? So it definitely helps. I'm not sure it fixes it entirely.

But if you look at the opinion in SILA law, the Supreme Court, with the Chief Justice in writing that opinion for the majority, did something really interesting. They found the lack of removal unconstitutional, but they severed that provision from the rest of the CFPB, the Consumer Financial Protection Bureau. So they kept in place this broad statute that has enormous power that's administered by an executive agency. But they said, if you're going to have this power, you at least

have to have that sort of constitutional check that you were talking about, David. So I would anticipate something like that. Even if the court looks at some of these agencies, says they don't fit within the separation of powers framework, I don't think the court's going to gut them, but it's going to say they need to have some political accountability. Okay. So part of the sarin is about firing people. And we have another sort of case about that, if you will, which is Morrison v. Olson so part of the sarin is about firing people and we have another sort of case about that, if you will, which is Morrison v. Olson. This is the independent council that was alive and well during the Clinton administration is when people will remember it most. But this was a congressionally authorized independent council statute that

then lapsed, which is why we have special councils now and not independent councils. And David, back in the day when we were at the beginning of special council land, we talked about this distinction. But Erin, there's actually a Supreme Court case about the Independent Council Act that touches now on this issue. There is. And again, you identified it, Morrison versus Olson. And in that case, the Supreme Court considered whether independent councils fit within this constitutional structure, the separation of powers framework that we have been talking about.

And that case gave us the sort of second exception to the general principle that agencies need to have their heads be removable by the president in order to have that sort of political accountability. So one exception we have is for these multi-member boards who were designed for sort of partisan balance. I'm not sure that's still good law after SILA, but that's one exception. The second exception is this Morrison versus Olson exception for tenure protections, but this is really key. Tenure protections for inferior officers who do not exercise policymaking authority.

So again, you can sort of query whether the Supreme Court got the facts right in Morrison versus Olson. Is it true that an independent counsel doesn't exercise significant policymaking authority? I'm not sure. Maybe that's not true. Yes, you are. Yes, you're sure. I have a guess. But again, to harken back to the Chief Justice's opinion in SILA law, he describes that case

as tenure protections to certain inferior officers with narrowly defined duties. And so I think we're talking here about federal employees who are ones that do not exercise significant policymaking authority. Okay, but what's also interesting about Morrison v. Olson, I think at least, is that perhaps the most famous opinion in Morrison v. Olson is not the majority opinion, it's the dissent by Scalia and it's, I don't want to compare it to other famous dissents, but there

are some cases where over time it's sort of acknowledged that the case itself is the majority is kind of just wrong and so we almost start citing the dissent as if it were the accepted majority now and Scalia's dissent in Morrison v. Olson might be example number one of something like that. Do you think the court is still in its Morrison v. Olson era in a Taylor Swift sense? And what would be that costume for the tour? That would be the question. Yeah.

Well, you know, Justice Scalia was a famous dissenter for good reasons, such a good writer and so incisive. And I agree that I think the Supreme Court is probably more in the Scalia dissent camp than the majority camp. And if you read just the first line of that dissent, he says, Justice Scalia says, "'It is the proud boast of our democracy

that we have a government of laws and not of men. And he's making the point here that if we're talking about agencies or in that case, the independent council, they need to be accountable to the people. He was so consistent on this. He didn't want sort of unchecked power residing in the judiciary, nor did he want it residing in an independent council or presumably an agency that's not accountable to the president. And it has one of the most famous Scalia dissent lines. There's many and there's, you know, you can find lists, especially when he passed away of sort of famous lines.

But let me read you the one from Morrison v. Olsen that many of you listeners will know the line, but maybe not know what he was talking about. Frequently, an issue of this sort will come before the court clad, so to speak, in sheep's clothing. The potential of the asserted principle to affect important change in the equilibrium of power is not immediately evident and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf." So he was talking about the dangers of putting this kind of massive and traditional executive power, the power to prosecute outside of the executive.

I don't know, that seems really, really right to me. And I think you see even with a special counsel, how corrupting that can be when the president disclaims authority over the special counsel, even though, of course, the special counsel reports directly to the attorney general and the attorney general reports directly to the president. And yet we have this vibe across the country that somehow the special counsels are out there going like pew, pew, pew, shooting off their little prosecutor guns all by themselves. I think we'd be in big trouble if we still had the independent council act like Scalia set. Okay, so Erin, so we've gone through the multi-member boards. We've gone through the Fed, which maybe that's just a legislative thing. Maybe

that exists anyway. I don't think anyone here is dismantling the Fed under this theory right now. But the multi-member boards that aren't removable, problematic. Definitely the single member boards that look like an agency in every other respect, like done. That's already gone. Like the CFPB problem. We don't have an independent council act right now, but something like that, I think we all agree, Justice Scalia's dissent is somehow the law of the land, even though it's never been revisited.

He was a single dissenter in that. Kennedy wasn't in it, so it was a seven-to-one opinion. But you've got Rehnquist and O'Connor and Blackman, all these guys. Okay. But whatever. Morrison v. Olsen has been reversed without anyone knowing. Okay, but I wanna now talk about the things that Congress can do to insulate or whatever else we think they might be able to do. So I'll go first, because I'm gonna take the easy one. It is unquestionable to me that Congress can make the president give a reason for removing someone.

Different than like their Tenure Act advice and consent Congress can make the president give a reason for removing someone. Different than like their Tenure Act, advise and consent before you can remove someone. But in the same way they can haul up anyone from the executive branch to testify before Congress, I think they can require short of that, you have to give a reason. It doesn't have to be, it can be, I felt like it. That might be the reason that the president gives. But that allows Congress to continue its oversight power. So I think there's no problem

with having a statutorily mandated, you can remove this person, but you have to publicly or provide to us the reason that you remove them. Thoughts and feelings from the gallery. Oh, goodness. I'm not sure. Because it does seem like, you know, to talk about what Professor Goldsmith

was talking about, you've got Article 2 that messes all of the executive power in the president. The Supreme Court's been clear that, you know, the president is his own branch and gets to oversee the executive branch. And as we've been talking about, that's a good thing because you want political accountability in agencies. But if you have Article 1 telling Article 2, you have to give us a reason. I don't know. It doesn't seem very onerous, but I'm also not sure the president has to do that. David, come on. You're with me here. Oversight power. Oh, for sure. I mean, to me,

if you can be hauled in front of the Congress and be made to verbally state it, And right in the writing can be simply, I did not have confidence that Sarah was going to carry out my policies and I have confidence that Erin is. But can the president be hauled before Congress? Well, you can't haul the president before Congress, but you could certainly, I think, haul in everyone inferior to the president. You could haul you could haul the chief of staff in front of Congress I would think and Say why was this person fired and maybe the chief of staff says? Well, the president didn't tell me

All right. I don't have any clue at all and that that might be an honest answer but I think that a You can set you saying here is the reason is in no way infringing upon the decision making authority itself. So I don't know, I don't find that kind of transparency requirement to be an inhibition on the exercise of the power. Let's get to the next one. 30 day pause.

So you can fire the person, but it's 30 days until it takes effect. Ooh, no. No, no, no, no, no, no, no, no, no, no, no, no, no, no. No, no. Now to me, the much more interesting question. Okay, fine, it's 30 days until it takes effect unless there's like an emergency

and then you have to state the emergency to Congress. So basically in this theory, right, it would give Congress 30 days to impeach the president, I guess, for removing someone they don't think should be removed or using some other legislative power to check the president. He can remove them if it's an emergency, but if it's not an emergency, you have to wait 30 days until they're gone, maybe so that they can testify before Congress. No, everyone's shaking their heads.

I can't, I'm not sure. I'm just trying to give the strongman version. Okay, so this is the more interesting question to me, and much more directly relevant to the moment, is how far down should the at-will removal authority go? And that's to me where you're talking about the difference between a, say, a fundamentalist Unitarian versus a strong Unitarian versus you

know uh so that that to me is the very very interesting question and I just had a fascinating conversation with a friend of the pod who's had a lot of direct experience in this and their position was in essence the top at the policy making level the clear policy making level, the clear policy-making level, that you should have presidential removal authority, but then you can have merit systems protection going down the line with the following caveat that it has to be very clear that the executive power means that you have to do what I say if it's lawful.

And that one definition of sort of, you know, one very clear grounds for termination would be obstructing the execution of lawful policy directives from a president. But otherwise, you can protect them against political retaliation, nondiscriminate, you know, all of the normal suite of protections, but that the unitary executive, I don't know what level we're going to call this, in our ideological unitary executive spectrum, would just say, when I control, if I'm the president and I control the executive branch, I control the policies.

And if people below the policymaking level, you know, in the vast government bureaucracy are obstructing the carrying out of my policies, then that is grounds for removal. And, but not, not political affiliation, race, gender, sex, et cetera. Is the Civil Service Protection Act unconstitutional. I think if you look at the Supreme Court's precedent on there, I think David's example here is incorporating the Supreme Court's test. He's saying that if you can be fired for a policy disagreement, not implementing a policy disagreement, then you can have tenure protections. But I think that's, I think another way of saying that is you can be fired for a policy disagreement. And that means

you're making policy determinations. So if you look at the Supreme Court precedent on this, they're pretty clear in CELA law that Morrison versus Olson is a narrow exception for lower level officials who are not engaged in policymaking. And if you think about the array of powers exercised by administrative agencies, I think we want to extend that. I think policymaking decisions flow much further down than just the head of the agency. I mean, this gets to maybe terms like malicious compliance, so that even if you're not someone who gets to decide policy, you can basically decide to be very difficult in implementing the policy.

So is there anyone who works in the federal government who doesn't have any discretion over their job? Maybe some in the military, David. No, everybody. So this is where it gets really tricky because if you have evidence, like let's say someone is doing a work slowdown, then, you know, in one sense, I understand that that's them saying, I don't like this policy, therefore I'm not going to implement it. But that's a little bit different from someone being vested with discretion to choose between A and B. I agree. But I think what Erin and potentially I am saying is that

A and B are a problem, even if they're distinct problems, which I grant you. So I think the, so here's the difference. Let's say you have an order that says within 90, let's just make it super plain vanilla. Within 90 days, you have to transfer this subcommittee from Apple to Mac. Great.

I mean, from Apple to Windows. All right. And you have a whole bunch of people in there who are just like Apple maniacs and zealots and they never want any Windows computers at all. And they go through a series of things where all of a sudden, it's very, the purchase orders don't come through. And so you can literally trace a, where they're just not doing their job in a competent way. And the reason why they're not doing their job in

a competent way may be motivated by politics, or let's say they're lazy or they don't show up for work. Any of those, all of those things, whatever the motivation for the failure to do the job, it's the failure to do the job that is the reason for the termination or the adverse action. Whereas as opposed to someone saying, okay, I'm a Windows guy, this subcommittee is all Apple people, and I think that they don't like my new Windows policy, I'm going to fire them all before they have an opportunity to execute on the job. Those are two different situations.

And so I think if you're saying, so for example, you guys, I need 5,000 border patrol agents at the border. And then you look at the composition of the 5,000, you find out that 480 donated to Harris, they're all fired, right? That would be different than saying, okay, I found 500 of these agents and they're just showing up late for work. They're not, you know, they're- They just don't seem enthusiastic.

They're just not doing the job. Those are two different things. What about they're doing the job? They just don't seem enthusiastic. They're just not doing the job. Those are two different things. What about they're doing the job? They just don't seem happy doing it. That's... Aaron, let's get you in here. What level of protection is there based on the Civil Service Reform Act and the Pendleton Service Reform Act and these other things that, I mean, remember, come into effect because

a president got shot over this? Now, I was saying he was going to get, he got killed and he did die, but he died because of totally negligent medical care. He would have lived just fine with that bullet. James Garfield, may you rest in peace. Yes. So I think there is, if you're looking at Supreme Court's

case law, I think that there would need to be an element of at least discretion and probably some policymaking authority in order for the president to need at-will removal authority. Just not doing your job, even just not doing your job enthusiastically, maybe that's another grounds for firing. Sometimes some of the things we're talking about seem like cause to fire someone even with the civil service protections. But I think if you're talking about protections. But I think if you're talking about the president being the whole goal of sort of Article 2 from the pre-eminent perspective is to make sure that there is, that the president faithfully execute the laws. And so to be able to do that, as the report has explained,

he needs to be able to control the administrative agencies, but probably some level of individuals aren't necessary for removal. So I would think discretion, policymaking authority, you need to think carefully whether the president needs removal authority. But if those don't exist, then I think the Civil Reform Act is okay in those instances. All right. With that, just to recap our amazing conversation here with Aaron, you've got independent agencies. Some are multi-member, some are single director. You've got, let's call it the horizontal versus the vertical. I always like putting things

in physical terms. I have synesthesia, which is basically like my senses are a little confused. And so for me, there are ideas that are physical instead of what I understand to be mental. I've tried to get husband of the pod to explain to me how he knows what time is if he doesn't physically experience what time feels like and looks like. And he looks at me like he married an actual alien. Anyway, so for me, how I'm thinking of this is the horizontal is like on the independent

agency at this very top level. Is it a multi-member? Are they an independent council type exception where they're not actually exercising that type of thing? Are they a single director at the top of it? So those are all the questions we can ask along that horizontal axis. And then on the vertical axis, it's like, okay, we've talked about the senior people and sort of built that out. But now when we get down to the middle level, what about

the lowest level? And what type of power or discretion must you have for Congress to be able to put limitations on the president's power? And I think we end this conversation with a little bit of Rumsfeldian known unknowns. But if you want to have your own analysis, you go read, I'd say just really Humphrey's executor, Morrison v. Olsen and Celia Law, and you'll be good to go. Aaron, how do you feel? I agree with all that. And in Celia Law, I think it's really interesting to see how the chief justice describes those prior opinions. I think that indicates where at least, you know, five justices think this is heading in the future. But but it's something the Supreme Court will likely be called upon to say more about before long. Aaron Hawley, thank you so much for joining us. It's been a treat.

Yes, thank you so much. Thanks for having me. much for joining us. It's been a treat. Yes, thank you so much. Thanks for having me. David reflections. Yeah, I think that's a fascinating conversation. And as I said, you know, on the independent agency point, I'm completely with Aaron. And this is by the way, you know, what I would say very, very don't think that for a moment, this is radical

conservative thought. This is mainstream, you know, basically across the whole spectrum of right leaning conservative legal thinking, this idea of the multi-member commissions, the having heads of agencies that the president cannot fire at will. This is something that's sort of like originalism 101, I would say, where it gets a lot more interesting. And by the way, just a lot more consequential is that question of how far down the chain can that fire at will, how far down the chain does that fire at will authority, constitutionally the authority of the president extend?

And you know, I think the answer is going to essentially be that the present merit systems protection system by and large is going to be upheld by the court, which is going to mean that some of these firings that Trump has already made, I mean, they've been clearly in violation of merit systems principles. I mean, not all of the firings, but some of the firings have been clearly in violation of Civil Service Reform Act. And so I do think that the Civil Service Reform Act is going to be broadly upheld. The only question to me, Sarah, is there is a,

there are, it doesn't, it's not a black and white progression. So there are some people for whom they have It's not a black and white progression. So there are some people for whom they have absolute policymaking authority, they're the head of an agency, absolutely, positively, 100%, they serve at the president's pleasure. And then there are a whole bunch of people, the vast majority, who are executing, that they are executing plans, they are executing policies of the president, and they have the merit systems protection. They can only be fired for specific causes, but they still have to carry out lawful policies. I said lawful, lawful. They have

to carry out lawful policies. But there is, it's not the bright line demarcation. And this is where some of the Schedule F stuff comes in, or I guess it's called Schedule Policy slash Career Now, which that's not a very catchy title, but that's where the rubber is going to meet the road. Because it is very hard for me to say that the Supreme Court is going to ratify blanket firings of civil servants in violations of the civil service reforms. But I do think it is an open question as to how far down that fire at will authority extends. By the way, David, you know, sometimes when we talk about originalism and we one of the core criticisms of originalism is that the constitution wasn't meant to be interpreted originally, if you will. So like, if the point of originalism is what did the,

you know, people understand they were ratifying at the time, but the people understood that what they were ratifying at the time wouldn't be subjected to interpretation based on what they thought they were ratifying and the whole thing kind of falls apart. Similar to my point that originalism that requires modern technology and searchable databases feels not very originalist in some ways. So along those lines anyway, I want to read to you a section from Marbury versus Madison. The conclusion from this reasoning is that where the heads of departments are the political or confidential agents

of the executive merely to execute the will of the president or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. So what we've been talking about, David, right? Like unitary executive, very removable if you're at the senior level, exercising lots of policy discretion, all of that.

So Chief Justice Marshall is like, thumbs up, that's very removable at will. Next sentence. But where a specific duty is assigned by law, meaning by Congress. And individual rights depend upon the performance of that duty, like an independent agency perhaps. It seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy. So David, it's kind of interesting because it sure sounds like Chief Justice Marshall

doesn't believe in the unitary executive. Yeah, yeah. Yeah, yeah. Yeah, absolutely. And look, when I say, you know, I have broad agreement with unitary executive, what I'm gonna say, as we talked about with Aaron, there are degrees here, you know, from fundamentalist unitary executives

to strong unitary executive. When I think of unitary executive, I really am thinking along the lines we talked about between hiring and firing agency heads and giving the president the authority to implement his lawful policies through the agencies that have been set up for that purpose. And one thing that's really important to note, Sarah, is that a lot of these agencies, we talked about USAID being created by an executive order, a lot of these other agencies are created by statute with specifically statutorily defined purposes and statutorily defined scopes and limits on power.

The president has to operate within all of that. The EPA is not the president's decisions on what environmental protection should look like. So I don't want people to think that when I say carrying out the president's policies, carrying out the president's policies, carrying out the president's policies consistent with the statutory purpose and requirements of the agency. That's what I mean by lawful policies. But so Congress does have the authority to create agencies,

to give the agencies a specific purpose, to give the agencies specific powers, to put limits on those agencies. And then the president's discretion within those agencies is defined by Congress. And if they're exercising it lawfully, well, then the employees of that agency have to carry it out. If he's not exercising it lawfully, there's two remedies. One, Congress can step in, ha ha, hilarious, funny, I'm rolling on the floor laughing,

or you go to court. And I think that one thing that's very important in this moment is we've got a lot of people who are very alarmed. And I will tell you in some ways I'm one of them about a lot of the things that are happening right now. But there are also, and we haven't had time to cover it, a, there is a shotgun blast of lawsuits

being filed right now. So right now we're in a moment where a lot of people are saying, where's the opposition to Trump? Where's the opposition to Trump? In many ways, it's happening exactly where it's most effective. There are legal challenges being made right now. There's already been injunctions issued

against some of the more egregiously unlawful orders. And so that resistance to unlawful actions is happening. I think a lot of people are wondering, where's the mass protest or where is Congress? Well, guys, it's a Republican controlled Congress that is absolutely dominated by MAGA. The court system is where the action is right now, which is why, by the way, this is the podcast to listen to. Also, I got a couple questions on like, okay, but what happens if they ignore the court's opinion, etc. I mean, look, the

extreme version of this, if you keep just asking me like, yeah, but what if they ignore that? But what if they ignore that? Like, yes, okay, the rule of law has fallen apart, and the Constitution ceases to exist at some point. But if you keep just asking me like, yeah, but what if they ignore that? But what if they ignore that? Like, yes, okay, the rule of law has fallen apart and the Constitution ceases to exist at some point. But if you're asking how the system works, if an executive branch official does not do the thing that a court has ordered them to do, you can get then mandamus order, which is basically like do the thing. And if you don't follow the mandamus order, then you get held in contempt. And you know, the person is basically like, do the thing. And if you don't follow the mandamus order, then you get held in contempt. And you know, the person asked back like, but who holds

them in contempt? Is it the marshals who work for the Department of Justice? Yes, again, at some point, we cease having the rule of law. But within the rule of law, we actually have plenty of examples of executive branch officials trying to not do the thing that a court has ordered them to do. And we have so many Latin orders for that. Like, don't y'all worry, you're pretty little heads over it. Yeah, I mean, the bottom, again, I'm with you, Sarah. The bottom line is, if the executive wants

to just blow through everything to, or say, let's say there's a contempt order issued and the subject of the contempt order just refuses to comply and the president orders like Marines to protect him from arrest. There are scenarios and at the bottom line for something like that, all we would have is impeachment and removal. So at some level, we do have safeguard after safeguard after safeguard. At some level, if a president just has the will combined with the loyalty, he can blow through all of it. There is a final bottom line that this nation does depend at least on some

degree of an honor system, probably less than most countries in the world. But we've got more safeguards than most countries. But if you want to blow through them all, and the political branches of government decide to just be prostate before you, I said prostate, prostrate, prostrate before you. We got a giant, giant crisis. We're not there, we're not there. So let's not act like we are there, we're not there. All right, last thing, David,

I got this question from a listener. Imagine I have a bucket list item to get my name on a Supreme Court case so I could potentially hear my name in legal conversations like Dobbs or Tinker. What would you recommend? Disclaimer, this is all meant to be in fun and I don't plan to act on any advice. Well, that's good, Chris, because most of my advice is going to be be a criminal. Look, there's a few ways of looking at this, David. You can look at the sheer number of cases the Supreme Court

hears. Now, the number one way, if you're just looking at number, is be an elected official, i.e. be the attorney general or be the secretary of HHS or agriculture or the president of the United States. Those are all very high percentage ways to get your name on a Supreme Court case, but let's assume

he didn't mean that. So the next up would be that you're the target of the government, meaning a civil or criminal, your stuff was taken, they told you you had to do X, or you're literally in jail. That's the bulk of Supreme Court cases is that you've been targeted by the government somehow. I'll read you some of the examples from last term. You ended up on the no fly list. You think you were maliciously prosecuted. You're receiving the death penalty. You

want to get fish of a different size and they're making you take this like monitor and pay for the monitor. That's low for bright. You got blocked on social media by a local official. You are being assessed a traffic impact fee. You're worried you're not getting all your GI benefits. You want IP copyright for Trump too small and they said no to you. You want a copyright. What was this? It was a copyright case about Flo Rida. I don't even remember that one. Okay. Anyway, you see the point, right? Like the government has wronged you in some way. Now, David, there is another section where you brought the lawsuit. And so it's your name on the case. It was your choice to bring the

lawsuit. You're not a criminal. Like you didn't have to give up something pretty bad about your, you know, rights that were wronged in some way, at least in your own mind. But a lot of those are at all cases, David. So let me, there were six of these cases total. Four of them are at alls, meaning there's a whole lot of people and it's kind of going to be some luck over whose name goes first. So Cantaro sued the Bank of America, but with a whole bunch of other people. Sussky, that was user arbitration. Smith, employment arbitration. Bissonnette, employment arbitration. All at all cases.

So that's not a good way to do it. Now, there were two cases where the person is the one who brought the lawsuit, they're not the target of the government in any way, and their names are on the case, David. That is Deborah Leffner, who, remember, was suing all of those hotels for not being EVA compliant. And maybe there was some fraud involved in all of that and she wanted her case dismissed. And Trevor Murray, who was a

whistleblower who got fired. I don't think that there's like a great avenue there of like how to get your name on a Supreme Court case. So the other way I looked at it was the percentage. Cause like, okay, even if you're like, I'm gonna go become a criminal so that I can get my name on a Supreme Court case, you've got a percentage problem there. So let me read you these percentages. So, successful writs for Sir Sherrari.

Criminal in 2017, 1.8% were granted. Civil 1.9%, that was US civil, private civil 3.4%, and administrative, 11.5%. So, again, you're looking pretty good if you can get an administrative law case where the government has targeted you in some way that maybe isn't going to ruin your life. That's going to be your best avenue, David, to getting your name on a Supreme Court case aside from being appointed to the cabinet. Yep. And I guess another sort of thinking this through, you got gotta be in shape because you gotta sprint to the courthouse and be the first to file on some of these. So, well, have your keyboard be in shape.

You used to have to actually go to the courthouse to file. So here's another one. I got some ideas, Sarah. Find a super controversial issue that you know is heading to the Supreme Court and run to be first, birthright citizenship, and hope your judge issues the first injunction. Right.

Right. Or if you have a super controversial restriction, say, on a constitutional liberty, there's sort of facial challenges are becoming less, the courts are less excited about them. So if you can be like, if you see a ban on a drag queen story hour and you grab your feather boa and you run and do it and get punished and you're the first one punished, so you have as applied.

Yeah. Or anti-CRT law is passed and you start running to your classroom with the Ibram X. Kendi in hand that like that might, you know, can think of easily other That might, you know, can think of easily other examples where, you know, if you have an as applied challenge that is a superior vehicle than a facial challenge, but that involves a little personal risk now, doesn't it?

Indeed. Exactly. Yeah. So like administrative law is your best avenue percentage wise. And then those government targeting cases are sort of your best avenue in terms of the actual chunk of what the cert grants really look like. Which is all to say you're not getting your name on a Supreme Court case, Chris. Sorry. Yeah, sorry. All right, David. Next episode, we have a couple really interesting circuit cases that I wanna make sure we talk about. One is on whether you can sue your church for using your tithing funds in a way you don't like, or maybe in a way they said they wouldn't. And the other one is, what if I'm 18 years old

and wanna buy a gun and federal law says I have to wait till I'm 21? What does the second amendment say about that? Big case. So we'll talk about those on the next episode of Advisory.