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Sarah Isgur

Na ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. We got five cases from the Supreme Court on Tuesday morning and we're going to start by not talking about them. We will start with the war in Iran and the legality and the separation of powers and Congress and all of that. But don't worry, we are going to get to all five cases. Landor came down. That's our religious liberty case. Or actually it's not about religious liberty at all. And then we've got three cases that are all six. Three about causes of action and clear statement rules. But they don't all come out the same way. And you're all going to tune out. But I'm telling you, it's actually kind of interesting when we get to take out the culture war and just see the pure unadulterated statutory interpretation questions. So come on, stick around. Try to, try to hang on that.

David French

Oh, and also, just as extra bonus to stick around to the very end, you get to hear the most celebratory these hosts have been about Justice Thomas in a long time.

Sarah Isgur

That's right. That would be pung. When it comes to takings, David and I are full libertarian and then a little immigration as a, you know, amuse bouche at the end of your delicious and meaty separation of powers clear statement rule meal. Enjoy. So, David, on the one hand we got five opinions from the Supreme Court this morning and delayed our whole recording, assuming that they would be, you know, big, chunky cases. And on the other hand, we need to talk about Iran and some of the legal issues surrounding it. And the Senate in fact, voted today with four Republicans defecting to not authorize the President's continued hostilities in Iran. So I say we start with Iran for just a few minutes.

David French

Yes, I'm about it.

Sarah Isgur

So, David, two pieces of this to me are important. One, high philosophy and second, low statutory authority. So let's start with high philosophy. Professor Jack Goldsmith, friend of the pod, has written on both of these issues recently over at executive functions. High philosophy. Wise boy. Does all this Iran stuff feel exactly like the complaints that we've had and talked about all the time about Congress, do your job. And government by executive order. And the pendulum swinging caused by government by executive order in the domestic sphere, tariffs, student loan forgiveness, climate change, immigration, you name it. Now do it on the foreign stage and see if it goes any better. And specifically with Iran, we've had a pendulum swinging back and forth since Obama, specifically on Iran's nuclear program. Obama does one thing, Trump repeals it, Biden tries another thing. Trump now does this whole thing. And where is Congress? Congress, where, where are you? I play a lot of hide and go seek in my family, except we do find the children in the end and we have yet to really find Congress. Find Congress here.

David French

There's a lot of people there, Sarah, and their staffs and everything, and you

Sarah Isgur

just can't find them, find him anywhere but like big picture, right, in 230 years of this Constitution. And I'm, I'm thinking here, I mean, everything. But most recently, I was just reading the Jackson biography on steel seizures, for instance, and Jackson's concurrence on, you know, the President's at the zenith of his power when he acts within statutory authority and, and he is at his least powerful when he acts on his own without congressional authorization. And actually, the steel seizure case, this is Youngstown, I'm talking about during the Korean War, has at least a few parallels here. In that case, Congress had refused to act several times as Truman had wanted them to, about the strike of the steelworkers. And then Truman just seizes the steel mills. Now that was domestic, but it involved foreign policy because of the Korean War, and that's how Truman justified it. Here we have the House and now the Senate voting no on this. And it doesn't seem to matter because the President now does all domestic and foreign policy.

David French

Yeah, Sarah, this is I feel like in an interesting way, we are watching in real time the Founders concerns be vindicated in the Founder's framework be vindicated and their concerns are vindicated, and the framework is vindicated by all of the absence of their influence in this process. Because if you look at the constitutional framework, one of the most, if not the most consequential thing a democracy can do is go to war. So what they did was they ins, they did, they created a process by which the people's elected representatives speak going in and going out. So going in, Congress has to approve, Congress declares war going out, Senate ratifies treaties. And so what you're doing here is you're removing from the President the all of the royal prerogatives that kings used to enjoy of starting and ending wars and leaving in his hands only one thing, and that was the commanding of the armies, the commanding of the military in the congressionally declared war. But they did not give him the authority to end war on whatever terms they wanted or to start a war on whatever terms he wanted. And now I know for all of you listeners who are like, but that hasn't been the case for a long time. Well, it's been the case more than a lot of people tend to think. I mean, look, we had congressional authorization for Afghanistan, we congressional authorization for Iraq, we had Congress congressional authorization for Desert Storm, we had congressional authorization for Vietnam. We at the very least have had Security Council authorizations and other conflicts. And that was a Senate ratified treaty, the un, the you that bringing us into the UN was Senate ratified. So at least you had in a lot of other prior conflicts, some degree of congressional, some congressional fingerprints on it. Not here, not in the going in and not in the going out. And are we better for it? Absolutely not. Absolutely not. We're weaker going in and we're actually weaker going out because we have, we have, there is a lack of public support, a lack of public buy in. And so we're watching right now, Sarah, and just sort of putting aside the legal enforceability of this framework, which we know to be nil, or almost so close to nil as to be functionally nil. But that doesn't mean that what we're saying isn't constitutionally valid, right, appropriate and being vindicated by events. It's just that there does not exist the will in the missing Congress to impose and imply the constitutional restraints on the executive.

Sarah Isgur

Okay, David. Well, this brings us directly to bucket number two, the very specific problem legally of what's going on in Iran, which is that Congress did say something back during Obama. So this is the Iran Nuclear Agreement Review act of 2015, aka INARA. And INARA says a lot of things. This was when Obama was doing his, you know, Iran nuclear deal that the right hated and the left loved. And it's very, I get everyone pointing out the differences with this Iran deal, mostly that there's no deal yet. I get that. But like the rough framework is pretty identical and yet everyone switched sides. So cool beans. But anyway, Anara is passed to limit the President's ability to make these unilateral deals with Iran. And one of those is that a president cannot waive sanctions against Iran without 30 days for Congress to review it and act one way or the other to approve or disapprove that. So what's Trump doing? And is it unlawful? And does anyone have standing? And oftentimes we've said, David, that like, well, Trump, though I don't think this is intentional, has found all these laws to break where it's really hard to say who has standing. Like renaming the Kennedy center, whatever.

David French

Right.

Sarah Isgur

The Reflecting Pool, I don't know, the ballroom. This actually isn't one of those cases. To me, like any company that competes with another company that is, you know, limited by the sanctions and therefore would be helped by the removing of the sanctions, has standing to sue that the President can't lift the sanctions. So I actually think there's a lot of places and people and companies that would have standing to prevent this. But this whole thing is such a legal mess because it's very unclear what this MOU is actually doing. I mean, is the straight open or closed today? It's hard to keep track.

David French

Yeah. So this is interesting and I really strongly recommend Jack Goldsmith's post on this. So essentially it's very difficult, I think, for the administration to make a straight faced argument that they're not in violation because we, we have seen that there has already been some licenses granted, the export of oil. There are millions of gal. Build millions of gallons or barrels of oil that are going to be sold by the Iranians for billions of dollars. All of this is unfolding before our eyes. And look, if cash is going into the regime, it gets very difficult to argue that sanctions haven't been waived. But I suppose the best argument that the administration has, as Jack laid out, was, well, wait, this is really just a term sheet. This is like an agreement to agree. It is not an actual, it is not an actual agreement. And okay, I get that as an argument against the notion that what you should Take this to the Senate to ratify, because you have a term sheet, not an actual treaty agreement. You just have an MOU. You're supposed to, within 60 days reach the actual agreement, send it to the Senate, et cetera. But here you have real world money exchanging hands. It's really hard to argue that something has not been waived when cash is flowing. Right. So for sure, yeah. But again, who's going to stop them?

Sarah Isgur

Somebody?

David French

Congress? Somebody? Somebody do it. Sarah, I'm deputizing you.

Sarah Isgur

Oh, good. Well, with that, once again, as you said, we definitely recommend following executive functions. And Jack Goldsmith and Bob Bauer over there for the latest on all of this, because it's changing so quickly. And David, let's go back to our core competency, which are the five Supreme Court cases that we got this morning. Okay. One is Landor, which was in Pong. We talked about those during the oral argument. The rest we hadn't. But I have to say, David, when it comes to statutory interpretation and understanding the fault lines for these Supreme Court justices, maybe this was a barn burner of a day. Right? Four of the five cases are 6:3 along ideological lines, and exactly zero of them are traditional culture war topics. So the, the question to think about as we talk about all of these cases, dear listeners, is why are these coming down 63 1? What are the animating liberal and conservative principles that are actually being debated here that would cause these to be 6:3, even though they're, they're not traditional 6:3 cases? But, David, with that, should we start with Landor? This was our highest ranked decision that we were waiting for that came out today. And it, it did surprise me a little bit. So Landor, if you remember, is the Rastafarian who had, you know, three weeks left of a sentence, presented them, presented the prison, you know, guards and the warden, by the way, with the 5th Circuit opinion holding specifically that Rastafarian's hair was covered as a religious liberty issue while in prison. They threw it in the trash, restrained him and shaved his head. Nobody denies that this was a violation of his rights. The question is, what can he do about it? Can he get damages from the individuals that he sued in their personal capacity? And this gets to a statute called RUPA and a previous statute called RFRA that we'll talk about in just a sec. But the lineup is 6:3. Gorsuch delivers the opinion, which is surprising based on your bully theory, David, but not surprising if you listen to the oral argument. Gorsuch was very active in that oral argument about what's going to be the issue here, which is the spending clause. And then Justice Jackson writes the dissenting opinion with Sotomayor and Kagan joining. So pitting my two lowest institutionalists, Gorsuch and Jackson, against each other. And the reason that this one is going to be 6, 3 again, it's going to be the spending clause. And we're going to talk about why the spending clause is actually going to be more of a culture war issue than you think. But, David, just initial reactions. These six conservative justices holding that, no, Landor cannot sue these guys in their individual capacity, he cannot get damages. So sad. Too bad. We were expecting maybe a concurrence from a conservative. This is the outcome we expected, but we were expecting a concurrence about how bad this was, how important religious liberty was. No, there were no apologies here in the majority.

David French

No, no, no, no, no. So this is so fascinating, Sarah, because it just really, one thing it does fit in with is the culture war be changing now, because here you have a case where it's six, three. The six conservative justices are saying no to a religious liberty claim. The three liberal justices are saying yes to the religious liberty claim. And it raises the question, is this the first serious religious liberty loss at the Supreme Court in a long time? Do we put that in the category? No, you. You do not. Okay.

Sarah Isgur

Because as it turns out, and we kind of knew this, this was never a religious liberty case. So, no, I don't think this is a religious liberty case. Therefore, I don't think it's a religious liberty loss, though the effect is a loss for people who want to sue about religious liberty.

David French

Yes, but it's, I think it's pretty easy to articulate why you had the six, three split here.

Sarah Isgur

Okay, go for it.

David French

Because this is my best theory as to why this broke down. Six, three. This wasn't a religious liberty case. This was a cause of action case. And the six more conservative justices are looking. It's a cause of action case and a congressional power case. And so they. One of the enterprises of this court is to jam each branch of government into its box. And they saw RLUPA as breaking out of the box in an important way, and it's granting, for example, of causes of action. And so that Congress really, if it's going to use its spending power, is going to be limited in what conditions it can attach to its spending power to execute its will. And, and so here I think you have a difference between the more conservative and the more liberal justices, really, on the extent of Con the congressional spending power. The conditions that can be attached to the spending power with there being greater flexibility that the in particular because of this, a cause of action vindication of individual rights claim that has traditionally been more of a progressive legal position. The expansion of the causes of action, the greater ability to walk into court to challenge the government for its allegedly unlawful acts. So that's how I see this is the conservative majority is doing its jam the branches into their boxes thing and the progressive, more progressive minority is doing its. Wait a minute, vindication of rights causes of action, more expansive vindication of rights causes of action, more expansive view of the power of the spending clause thing. That's how I see it. But I look from your face, Sarah, that I'm not convincing you I'm going

Sarah Isgur

to do my best John McLaughlin impression. Wrong.

David French

Okay.

Sarah Isgur

You know, you're not wholly wrong, but I do think we, there's distinctions between how we're thinking about this case now. Okay, okay, so let's go back in history a little bit. The Supreme Court decides the Smith case. You hate the Smith case. Congress in response to this, you know, total screw up by the Supreme Court when it comes to religious liberty, passes the Religious Freedom and Restoration act of 1993. That says the federal government and the states, you know, must have a compelling, narrowly tailored, basically holding them to strict scrutiny when infringing on religious liberty. And it goes up to the Supreme Court. And the Supreme Court's like with you and what power Congress? You can do that for the feds, but not for the states. So this is City of Bernie. And they strike down RFRA as it applies to states and state officers, et cetera. So RFRA from that point forward only applies to the federal government. That's how you get renupa, the Religious Land Use and Institutionalized Persons Act. Because now Congress is like, oh, you want us to actually have a specific enumerated authority? Cool, cool, cool, Fine. Here's something that we do. Land and prisons. And so if you estate take money from us, the federal government, you are agreeing to respect religious liberty and have this strict scrutiny, compelling interest, narrowly tailored, you know, before you can infringe on someone's religious liberty. And all the states of course are like, yeah, well we do want your money. And so they agree to this. And that's important because RFRA and RLUIPA have the same language in terms of whether you can sue people. And they've held that RFRA in fact does allow you to sue individuals for damages. And here they're going to hold that. RLUPA doesn't. But it's the exact same language. Why? Because one is through Congress's, you know, powers over the federal government and one is over the states. So first thing, state power, right? Just this general notion that conservatives like federalism and liberals not so much into the federalism. So that's number one thing that I think you can see a 6, 3 divide on. Number two thing. And this gets into the spending clause because really, Gorsuch's whole opinion. Opinion is because this is justified on Congress's spending clause powers. It's a contract. The feds give you money, and in exchange, you will hold yourselves to strict scrutiny when it comes to infringing on religious liberty. And so this is a contract, is what Gorsuch says. And these individuals, like the state or the county that took the money from the federal government to run the prison, they agreed to this contract. But the individual employees who work there who are being sued in their personal capacity here, they were not parties to this contract, even if some little piece of their salary might come from those federal grants. Spending clause. Why do conservatives not love the spending clause? Because this is sort of a big agency power thing, right? The agencies give this grant money. You can have all these strings attached to the grants. They. This is, you know, the general sense that the federal government does too much. Agencies in particular are unaccountable bureaucrats running amok. And the spending power gives them a lot of power. So anytime we can, like, rein in the spending power, it is all to the good. Third thing on this, and this is a little bit, a little bit weird, actually, David, because I think this undermines my theory, but I do see this happening here. Congress doesn't do anything through its normal powers anymore because you'd have to overcome the filibuster in the Senate. So they're doing everything through reconciliation, a term you guys have probably heard plenty. Reconciliation means that you're using the spending power, basically, and therefore, you don't need to go through the Senate's filibuster. You only need 50 or 51 votes to go through reconciliation. If you're using spending power, you need 60, 60 votes if it's like a substantive bill. So, David, if you're trying to get Congress to do its job, then this is a really dumb opinion because everything is spending power right now. And so Congress, almost like you are tying Congress's hands even more than, like, the president, you know, already running around doing government by executive power. And now you're saying, like, yeah, and your powers through the spending clause are even more limited. So, okay, practical picture, Congress can't directly regulate many things. That's the Commerce clause problem. Congress can't commandeer states to enforce federal law. Commandeering Prince. Congress can't easily pass non spending legislation because of the filibuster in the Senate. And while Congress can do all of this through spending deals, through these contracts, everyone has to be a party to the contract before you can actually hold them to the deal. This is not part of making Congress do its job again, I guess is my point. So to put it in other terms, David, the spending clause is both a workaround to federalism because you can do what you couldn't do through the Commerce Clause or through commandeering. And it's also filibuster free. Kind of a weird. It's. There's tension here.

David French

Yeah. And as I was articulating my theory, I was realizing we have been talking about the Supreme Court wants a enhanced control over a, the President to have enhanced control over a diminished executive branch and seems to have wanted Congress to do its job, but then is now saying this is not your job.

Venmo Advertiser

Right.

David French

So. So it's a Congress do your job, which then immediately raises the question, what is the job? And is the job using the spending clauses to engage in additional regulation beyond strictly the grant of dollars? Well, yes, but only to a very limited extent. It's messy. It is messy. So yeah, on the one hand, this is kind of a federalism sort of decision in a way. Although what we're dealing with are the individuals. Like the contractual theory here is that, well, the states, when they took the money, agreed to be bound by rupa, but the individual worker, the individual prison guards, they didn't enter into this contract at all. So it's, it's a little interesting in that way. And so is it, is. It is also true that if you're looking at the conservative majority or you're looking at sort of conservative jurisprudence, it has smacked back Congress more than once and we're going to see it do it again with slaughter, in all likelihood by overruling Humphrey's executor. We've seen it with. Oh, gosh, I. The case just escaped me. But we, we have seen it before with other cases. Oh, perfect example. Going back, you know, many years, the legislative veto. So Congress tries to give itself some extra power through the legislative veto. Supreme Court says no, Congress tries to.

Sarah Isgur

Going back many years. I was in preschool, but sure, yeah,

David French

I remember like it was yesterday.

Sarah Isgur

I think I was in kindergarten, technically.

David French

I mean, I That's one of those where were you when moments when insv Chattas decided it's so. But going way back, you know, to Sarah's infancy. Again, that's your, where your job is not a veto. That's not part of your job. And so it, yes, it's absolutely smacking back Congress a bit at the very moment when there's a lot of energy and effort being created towards can Congress do something but not this something, apparently. And so yeah, it is, it is a, it's a messy scenario.

Sarah Isgur

Okay, let's stay with this theme and when we get back, we're going to talk about falun Gong. Another 63 decision where the liberals are on the losing end. But well, once again, we're not creating a cause of action. Aren't we all drawn to brands that care about how something is made, not just how it's marketed? And that's one of the reasons I'm impressed with Brooklyn Bedding. We just got a Sedona Elite from Brooklyn Bedding for our guest room and it's been quite the upgrade for our guests. It feels sturdy and supportive, the kind of mattress that's clearly built to last. Every Brooklyn Bedding mattress is carefully designed and assembled in Arizona, cutting out the middleman while focused on craftsmanship at a fair price. With cooling features, a 120 night comfort, trial and award winning designs recognized by CNET and Wirecutter, Brooklyn Bedding is an easy choice for better sleep. Go to BrooklynBedding.com and use promo code ADVISORY at checkout to get 30% off site wide. This offer is not available anywhere else. That's brooklynbetting.com and promo code advisory for 30% off site wide. Support our show and let them know we sent you after checkout. BrooklynBetting.com, promo code ADVISORY. Okay, so David, this is the Cisco case. We didn't talk about it at oral argument, but actually when it comes to the business docket, economic impact, corporate law, whatever you want to, you know, call that portion that we don't spend a lot of time on, but that's, you know, actually really important to the country's GDP and stuff. This is the case that came out Tuesday and it actually pretty big. So this is. Well, I'll just read you the facts. Plaintiffs in today's case are practitioners of Falun Gong, a religious movement that originated in China in the 1990s. They contend that the Chinese government persecuted them because of their religious beliefs and that Cisco Systems enabled that persecution by developing surveillance technology that allowed China to identify and apprehend them. By engaging in this conduct, plaintiffs say Cisco and its executives aided and abetted violations of international law, namely torture, cruel, inhuman or degrading treatment, forced labor, prolonged and arbitrary detention, crimes against humanity, extrajudicial killing, and forced disappearance. And David, at various points, the opinions do go into great detail about what the plaintiffs have alleged that Cisco did. And it not good if that list didn't give you some indication. But the question, as the question was in Landor, do they get to sue? So the Alien Tort statute grants federal courts jurisdiction to hear cases involving violations of the law of nations. This, by the way, David, goes back to the Judiciary act of 1789, and the Alien Tort Statute, 1789, grants federal district court jurisdiction over, quote, any civil action by an alien for a tort only committed in violation of the law of nations or of a treaty of the United States. So if you're not a lawyer listening to this, you're like, well, that covers it. It just says the district courts can hear cases if you violated the law of nations. Right, we're done. ATS was not used basically at all until 1980, at which point, fun times. The Second Circuit permitted an ATS suit by Foreign plaintiffs against a foreign offender for engaging in torture and violations of international law. The court identified no express cause of action. Instead, it held that the ATS opens the federal courts for adjudication of the rights already recognized by international law. Then all of a sudden, we have a flood of cases trying to enforce international law norms in American courts. That leads to the Sosa case. And in Sosa, what the Supreme Court says is the Alien Tort statute is jurisdictional. There is no cause of action in it. But Congress in 1789 wouldn't have passed this if they didn't mean for it to include, like, at least the international norms at the time. So, like, many implied cause of action, but, like, super tiny. And we don't know what it is because we're definitely not seeing the cause of action in Sosa, but, like, maybe down the road. So what the court in this case decided, David, was to basically overturn that part of Sosa. There is no mini implied cause of action. Yes, federal courts have jurisdiction to hear those cases, but it is up to Congress to actually create what the causes of action are. And I. This is the part that I found pretty persuasive, David, which is the idea that if we allowed federal district courts to, for instance, rule in this case, they would basically be conducting foreign policy on the United States and declaring Whether China's actions toward Falun Gong members are a violation of international law, whether they've committed crimes against humanity, all sorts of things that we really don't want the courts doing. And that, frankly, is not their core competency. The dissent here, you know, ain't crazy, though. This dissenting opinion. Well, this one's a little bit messy because it's really not a pure 6 3. Jackson and Kagan concur in part and dissent in part, and then Sotomayor dissents, and Jackson and Kagan join part of her dissent. But for the, for the money shot, if you will, David, it is 6:3. David knows what that means. I'm shocked. I can tell by the blush on his face. Huh? That was a test you passed or you failed, depending on what test it was. Okay, so their point is sort of the Sosa point. Like, I thought you guys were text, history and tradition, right? So, like, when the alien torch statute is passed, you don't think they had in mind what the international norms were at the time. Why not just keep this there? And why are we overturning Sosa? And you guys hate precedent and we hate you because of that.

David French

Man, this is messy. I, I think at the bottom line, if you're talking about under what standards can a district court impose liability for violations of international law, I think it is absolutely sound to say that, that there are massive foreign policy implications there, just large scale and into a point where in, in essence, you could almost be saying that under certain circumstances, this would be the federal judiciary imposing sanctions on foreign countries. And so in that circumstance, is this something the federal judiciary can do? Do you need much. Something much more explicit from Congress? And I take the three as essentially saying, well, yeah, it requires something explicit from Congress, and this is it. It's already explicit enough. I tend to think that the majority has the better part of this argument. But this is once again an interesting element where if you're on the congressional side of the House and you've been told, do your job, do your job, do your job, do your job. And then you go, well, wait, we're years and years ago, we passed this statute. That's not good enough. And then we had this other statute, rupa, that's not good enough. So it's, you know, do your job, do your job, but maybe tell us what the job is that you're going to allow us to do. And so I, I can absolutely get the frustration. I also see in this individual case, in the absence of very clear congressional grants of authority, I mean, wow. Because, look, as somebody who. On. I'm the only person in this podcast who believes that international law is real.

Sarah Isgur

You are.

David French

But I, I also know that international law, especially when you're in the. Or in the arena of customary international law, as opposed to treaty law, customary international law is not exactly cut and dry. I mean, if you're, if you're basing an international legal system on customary practice rather than sort of codification, you're introducing an enormous amount of ambiguity in, into the equation. And so while I acknowledge that customary international law is a thing that it exists, I would also acknowledge that having a federal district court decide when customary international law has been violated to such an extent that it's going to impose financial obligations on foreign entities. Yeah, that's. That's difficult.

Sarah Isgur

Okay, so now let's talk about the Six3 lineup here and why this happened. As you can guess, one of them is already just cause of action. Right? There's no explicit cause of action. It's very clear that the alien Tort statute is jurisdictional. The only question is whether this is like the OG Implied cause of action. Conservatives don't like implied cause of actions. Liberals more okay with it. So right there off the bat, you could answer that. But there's a second layer here, David, and that's why I said this was the biggest business docket case maybe of the term so far. If you're a multinational corporation or an American corporation that does a lot of business internationally since 1980, when the Second Circuit kind of opened the floodgates, all of a sudden you were being sort of surrounded by these, like, you violated an international custom lawsuits and being dragged into court. So if you once again think of the conservatives as being more corporate business friendly and the liberals being less so, this fits that stereotype as well, because international corporations are going to be super pumped about this decision because it again, like the Sosa decision itself was kind of a mess. This, like, there are some causes of action, but they're not many and they're implied. And, and we're not going to say what they are, and we'll figure it out later. It left a lot of ambiguity. It allowed a whole lot of these lawsuits to like, flim. Flam around and shutting the door on that. Not only is that what they wanted, but also just the setting the game, the rules of the game, which again is really what large corporations really want in the law is like consistency and stability. Sosa introduced instability, and this makes it more stable, but also in the direction that they liked.

David French

Yeah, yeah, I mean, what an interesting. Both of these are very interesting cases in their own right. And also almost like designed in a lab to be difficult to talk about in public.

Sarah Isgur

Yeah, well, wait till you get to this next one. Now, everyone switch hats.

Podcast Host (Ad)

Okay.

Sarah Isgur

Okay. You switched your hat. Great. This is the Exxon case out of Cuba. So we are now going to once again have a 6, 3 decision. Kagan is writing this time for the dissent. We have Kavanaugh writing the majority opinion. I will read to you from Justice Kavanaugh right now. In 1960, a year after assuming power in Cuba, Fidel Castro declared that the new Communist government would seize all, quote, Yankee property in Cuba. Castro made good on that promise. The Cuban government confiscated a variety of American businesses then operating in Cuba, including Exxon's oil refinery and service stations. Cuba transferred Exxon's property to Cuban government owned companies. In 1996, to afford victims of Castro's wrongful seizures a judicial remedy in the courts of the United States, Congress passed and President Clinton signed the Helms Burton act, formally known as the Cuban Liberty and Democratic Solidarity Act. That act created a private right of action for US Nationals whose property was unlawfully confiscated. They may sue Cuban agencies and instrumentalities that possess, use or otherwise traffic in that confiscated property. Footnote to this, by the way. It included an ability for presidents to put this ability on hold for like six months at a time. And every president since then did that, hoping that they could use that as some sort of carrot to get Cuba to do something. And then in 2019, President Trump was like, f your carrot. And this is what allowed these lawsuits to actually move forward. So that's why this law passes in 1996. But you don't see the lawsuits until today because you weren't actually allowed to sue until 2019. Okay, so we have the cause of action, David. So check that box. But the problem is now sovereign immunity, because, right. In the previous case, we were suing an American company that had done bad, bad things, allegedly in China. Here, Exxon actually wants to sue Cuba and get money back from Cuba. Well, you can't sue a foreign government in the United States unless they, the foreigners have waived sovereign immunity. And according to the Foreign Sovereign Immunity act, there are certain exceptions that you would have to meet for that waiver to apply and for you to drag a foreign, you know, so and so into American courts. Let's just. For the sake of this conversation, David, none of those have been met.

David French

Right.

Sarah Isgur

So the Foreign Sovereign Immunities act is first. None of those exceptions are met. So you can't sue Cuba then they passed the Helms Burton act in 1996. Did it have an implied waiver of sovereign immunity in the cause of action in the Helms Burton Act? I. We've lost everyone who listens to this podcast.

David French

I know, it's over. The podcast ended on June 23rd when we're recording.

Sarah Isgur

But do you see why? These are actually very, very similar questions, but, like, flipped on its head. Because now we have the six justices saying, yeah, yeah, implied waiver of sovereign immunity and the three liberal justices. I'll just read you from Justice Kagan's dissent. To waive sovereign immunity, Congress must make its intent to abrogate unmistakably clear in the language of the statute. That does not mean Congress must use magic words saying that immunity is abrogated. Nor does it mean, as to a foreign defendant, that Congress must amend the Foreign Sovereign Immunity act directly. But an abrogation of immunity must be, quote, clearly discernible from the sum total of Congress's work. Knock, knock. It's major questions doctrine. I'd like my standard back. And causes of action. Like, what is happening here? Why are these cases in such tension with each other?

David French

It is something else, Sarah. I mean, I, you know, I guess it's just going to go back to

Sarah Isgur

your tattoo that other cases presenting different allegations and different records may lead to different conclusions.

David French

So I guess you harmonize ATS and Helms Burton by saying, well, Helms Burton was precise enough and ATS is not precise enough. So that's your. That's your distinction, right?

Sarah Isgur

Or is this just about communists do. Are we. Is this a Cold War era court where the conservatives are just willing to do anything against communists and the liberals are like, wait a second, I don't,

David French

I, I can't imagine that that would be it. But it is just a wild. It's a wild flip.

Sarah Isgur

I mean, really, Congress has to be clear in its intention of granting power. Really? Justice Kagan, come on. I mean, I agree, actually, like, welcome to the team is more what I mean. I just. Like what.

David French

Yeah, it's. These two are very interesting to try to harmonize, and the only way to really harmonize them is to just say, I guess Helms Burton was precise enough. And that Justice Kagan is like, where. What?

Sarah Isgur

You know what? I would buy that. I would buy the different cases presenting, like, my tattoo, but for the pure ideological lineup. Yeah, right. If it's purely different cases with different facts, it should just, you know, we should be able to put everyone into a little, you know, Jack o' Lantern, shake it up and pull their names out randomly, basically. You know, maybe there's justices who are more into strict, you know, interpretation and less. But. But like, for it to fall exactly along ideological lines in these cases, but flip them. There's something more going on.

David French

Yes, I'm with you on that. Because I would think if you're talking about consistency, then ATS would have been 6:3 and Cuba would have been 9:0.

Sarah Isgur

Right, sure.

David French

Yeah.

Sarah Isgur

Or at least 6:3 the other way. You know, we just like, shift one over on my three, three, three. By the way, my three hundred and thirty three statistically is actually doing very well. If you don't care who the three conservative justices are. But my three, three, three. If you think it needs to be Gorsuch, Thomas, and Alito is at. Everyone can. You know how many cases have been six, three. With those three in dissent. Zero.

David French

Wow. Wow. Okay.

Sarah Isgur

It's like they read my book and hate me. Okay, David, when we get back, we have two more cases to talk about. And actually, these are my favorite cases that came out today. In terms of most interesting cases, we have the Pung case on takings, right? You take their property, it's worth all this money, and then you only give them back, like, a little bit of money because you sold it at auction and you didn't get much money. And also, the whole taking in the first place was really, really unfair. And then another immigration case, 6:3. But it's not really a culture war immigration case. I mean, maybe it kind of is, but not really. Right after this. This episode is brought to you by Starbucks.

David French

That is fire.

Sarah Isgur

Whoa. That's good.

David French

This might be the drink of the summer.

Sarah Isgur

Okay, I like this one, too.

David French

I'm rocking with it.

Sarah Isgur

Okay, try it for yourself. Starbucks for freshers. Concentrates are coming home. Find them in the coffee aisle and make it yours. Okay, David, I want to start with Pong, because Remember, I said one of these cases is not 6:3, and it's very much this one. Alito delivered the opinion of the court. Roberts, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett and Jackson joined. Thomas joined, except as to parts 2B. Sotomayor filed a concurring opinion in which Gorsuch and Jackson joined. Thomas filed an opinion concurring in part and concurring in the judgment in which Gorsuch joined, except as to footnote one. You know, David, what's your justice name? Neil Coney Bersich.

David French

Neil Coney Bersich. Yes. Yes. Yeah. Ncb.

Sarah Isgur

That's great. The point being that normally neither of us identify as Justice Thomas, but in this case, I am waving my Justice Thomas freak flag all over the schoolyard. This concurrence is just a delight. Can I. I don't want to read the whole thing. It's quite, it's way too long. But like, I do wanna read the whole thing. So I'm. I'm gonna read for too long. But just bear with me.

David French

Go. Go. It's good. It's good. Read it.

Sarah Isgur

In 1991, Scott Pung bought a three bedroom ranch style home for himself and his wife and their two children. The home sat on a little over an acre of land in a suburban neighborhood in Union Township. Union Township is a small town in Michigan's Isabella County. Peng purchased the property for $125,000. Now, we're going to skip ahead. Both of the Pung parents die. They leave the house in like a, you know, an estate with their two children as the beneficiaries, who are now adult children. One of them is living in the house. It is their house, right? It's where they live. In 2010, after the home had been the Pung's primary residence for 19 years, the union Township tax assessor decided that the Pungs were subject to the additional property tax for second homes. Now, to be clear, the Pungs don't have a second home, right? This is their home. Okay? She, the tax assessor denied the Peng's exemption for tax years 2007 through 2011. The assessor incorrectly believed that the Pengs were required by state law to file an updated affidavit establishing that the home was their primary residence, which they had not done. So she taxed them as if the home was their second home, which again, it was not. The Pengs challenged the tax assessor's decision and won. So they did not owe the taxes from the extra taxes from 2007 to 2011. The tax assessor, however, chose not to respect the court's decision. Quote, I don't care what he says, she said of the judge who ruled for the Pungs in that 2007-2011 tax case. Although nothing had changed after the tax tribunal's decision, the tax assessor purported to tax the Pungs in 2012 what would eventually amount to $2,242 for the same additional second home property taxes, plus penalties and interest. But here's what's kind of amazing. The tax assessor imposed the additional tax in a manner that would make it more likely that the Pengs would become delinquent. How the original tax bill sent to The Pengs for 2012 did not include this additional tax. Instead, the tax assessor imposed the additional tax only after sending out the original tax bill. So when Michael Peng goes into the township office with a check to pay the full tax amount printed on his bill, the clerk informed him that an additional tax had been imposed on the estate. Michael explained that the additional tax was not due, brought Mark in with his driver's license to demonstrate to the clerk that the home was his primary residence and paid the proper amount. The additional improper amount demanded by the township is apparently the only unpaid tax in the Pung's entire tax history. Then they started sending the foreclosure notices. The Pungs say they never got them, but of course the county is like, yeah, we sent them. And then when the Pungs are like, oh my God, we just got these. Please don't foreclose on our house. The county's like, oh, you're past the deadline. Foreclose on the house. Which, mind you, they had actually gotten a fair market value assessment on for $194,000. They sold it at auction for $76,000 and then didn't give them back any of that money. David. Zero. Until after, of course, the Supreme Court's most recent decision on this, where it's like, no, you can't just keep the windfall. So then they're like, fine, so they give them back the 76,000 minus the 2,000. And so the Pungs, right, they sue, arguing that this is ridiculous. Now, unanimously, the Supreme Court says, sorry, we cannot hold governments to only do fair market value. It has to be the value that the property actually sells at. But it does have to be a fair process. And the Justice Thomas concurrence is like, and this clap ain't clap. It clap. I'm not actually going to clap in your ears because that hurts.

David French

I wouldn't mind because I emphatically agree with Justice Thomas here.

Sarah Isgur

And of course, Justice Gorsuch joins it. So, David, when I started this podcast, I said his landor opinion from Justice Gorsuch kind of undermined your bully theory. But this pun concurrence is like straight on brand.

David French

Yeah. Oh, yeah, absolutely. And you know, this is one of those cases where I. I'm completely with you on this. Justice Thomas concurrence. What happened to this family is unbelievable. But on the very narrow question of what is the value, I think the unit, you. The court is correct. I mean, and the court, I think, does a Good job of describing why it is correct. Because the value you get at auction is an actual value if the auction was done correctly, which is why the process point matters a great deal. So if this was done in a way that is appropriate, rigorous, in good faith, then the auction value is a concrete value. The notional value, like of a property assessment or appraisal is a theoretical value. And the idea that I should. That the state is required to do everything that a homeowner would normally do to maximize the value of the sale of their home, including leave it on the market for a long time. Refurbishing the house.

Sarah Isgur

Oh, staging, landscaping. Not that I'm familiar with that right now or anything.

David French

Oh, the amount of money we spent to sell our house.

Sarah Isgur

Yeah.

David French

Oh, gosh. I mean, and it's the kind of thing where you get it in such great shape to sell it. You're like, do I want to move?

Sarah Isgur

Well, so this is where. So, yes, that's what the majority holds. But just as Thomas's concurrence is like, hey, we're sending this back to the 8th Circuit, and they get to decide whether this was a fair process. And let me tell you some things that might be required for it to be a fair process. It's not just that the auction itself needs to be fair or that the notice for foreclosure needs to be fair, but maybe it's only a fair process, historically speaking, because this is Justice Thomas, of course, if you take real property first, like a car or a chair, and he's pointing out that, like, what, they can always just take your home first, no matter how small the bill is. And he read this footnote. And once again, David, I must read the footnote in full. According to the amicus brief submitted in this case, local governments engage in such practices with some regularity. For example, a West Virginia owner's $65,000 property was sold for $2,700 to satisfy an $80 tax lien. A Baltimore owner's $140,000 property was sold for $5,000 to satisfy a $2,500 tax lien. And a Nebraska owner's $59,000 property was sold for $588 to satisfy his $588 tax lien. So, yeah, maybe a fair process does require you to look at what else you can take. Now, look, if there's nothing else that's worth the amount of money you need for the tax lien, then, yeah, I think you can foreclose on the property. But Justice Thomas's point is you didn't take their car first. This is a $2,000 tax bill. There's probably other stuff they own that you could take first. Or maybe you just take a piece of their property. Maybe it's not the whole thing. Right. Is the property, you know, seizable in increments or whatever? He's like, I am interested to see what you may find on this 8th Circuit. And here's how it ends. The government exists to protect property. Property does not exist to support the government. One of the most certain tests of the character and value of the government is the fullness and sufficiency of the securities which surround the individual in the use and enjoyment of his property. What Isabella county did to the pungs was wrong and, and on my initial view, likely unconstitutional.

David French

I feel like an old lady in church waving her hanky in, in like the amen. Hallelujah. Justice Thomas. I mean this strikes me as so plainly correct. If you, if you've got a, if you have a two thousand dollar tax lien and you've got a 2004 Jeep Cherokee in the draw in the parking lot or your freaking home, why is the government going for the home?

Sarah Isgur

It looks to be also very vindictive. The. I don't care what the judge said. Like everything about this reeks.

David French

Oh, it reeks of vindictiveness. And can I just throw on my libertarian hat for a minute and get.

Sarah Isgur

Love it.

David French

Okay, here we go. The extent to which local governments loot their citizens for revenue is a national scandal. So asset forfeiture, we have not talked about that a ton, but there have been years in which local government sees more total amount of goods in asset and civil asset forfeiture and value than thieves steal from Americans. So if you remember one of the really, you know, one of the really unjust elements back going all the way back to 2015 in Ferguson and the. And the, you know, hands up, don't shoot controversy, the Justice Department, the Obama Justice Department came out with two reports. One that said, look, he did not. It was not hands up, don't shoot. There is no indication that he had something a posture of surrender. And it really undermined a lot of. That's one of the reasons why I think hands up, don't shoot was the PolitiFact, the Politico lie of the year for that year. But it also said that the local government, the revenue starred local government stopped using its police force primarily for public protection and instead it became primarily a revenue generation agency. And so when you have these state and local governments just very vigorously using law enforcement, using individual civil actions for revenue raising, then you're beginning to get into the. And you're beginning to get into some of these circumstances where things tip over from law enforcement into vindictiveness, into greediness. More money, more money, more money. And often aimed at very vulnerable citizens who don't have the kinds of resources. That was one. You know, it's, it's. I remember when there was very briefly a speed trap, Sarah, outside my very nice neighborhood in Franklin, Tennessee, and that speed trap was gone pronto when lots of the where well off and well connected citizens, you know, called the sheriff. What are you doing, bud? And so connected people get relief. People who don't have connections, the law comes after them with great aggression. And a lot of this is colored by money. A lot of this is colored by the desire to fill the coffers. And so one of the ways you keep, you keep wealthy citizens happy by keeping their tax burden down. And how do you fund services? By looting other citizens, often through unfair processes. End of rant. I shall now receive my accolades from Cato and David.

Sarah Isgur

Speaking of speed traps, so I've gotten three speeding tickets in the last six years. One of which was totally fair, my bad. But one of which I got while literally having contractions. The speed trap is next to the hospital and it's the main hospital for maternity delivery, BTW, in D.C. which is crazy. So I contested the ticket and was like, hi, I was on my way to deliver my first child. I was having contractions. I'm sorry. I was going 36 in a 25. So I contested it to be clear. Nope, they did not let me out of the ticket. And part of me was like, I want to go to court and like really have them on trial tell me that they're going to hold me responsible when I have medical paper paperwork to show I was having contractions. And then I was like, no, I have a newborn baby. It's Covid. I literally don't have the time or capacity for this or the risk to like go get Covid because I'm contesting a ticket. My second one was last month. I had a family member with a medical emergency and yeah, got a speeding ticket to go do that. And I was like, you know what? Fine, you're right, I was speeding. But like two out of three of mine are basically like good deeds being punished. And it makes me mad. David. Our last case is immigration. Another six, three year. This one I don't Know, I might be a little bit with the dissent on this one. Okay, so this is about lawful permanent residents, green card holders. And in full disclosure, my grandparents were not citizens of the United States. They were green card holders from Ireland. That side, my other side were citizens, though great grandparents weren't. Anyway, doesn't matter. So if you are a lawful permanent resident. Let me give you the facts of this one, David. So lawful permanent resident is here and is charged with a crime, counterfeit, you know, IP stuff, counterfeiting intellectual property. He in between, this is like a three week period, he gets charged with the crime and then leaves the country. And when he's coming back in like a week later, they see he's been charged with a crime. And under the law, you don't have to let someone back in even if they're a lawful permanent resident, if they've been charged with certain crimes of moral turpitude. And so the immigration officer is like, I'm going to let you back in but not admit you to the country, basically, as in, like I'm paroling you in as we decide whether to admit you back into the country. He then gets convicted or, sorry, he pleads guilty, but so he's convicted of the crime of moral turpitude. And then immigration starts removal proceedings saying you were never admitted to the country lawfully, that next time you came in and you've committed this crime of moral turpitude. And so we can remove you. If as a lawful permanent resident, he had not left the country, he would not have been subject to removal, first of all. Second, the question, the legal question here is when he came back in and he hadn't been convicted of anything yet, did the immigration officer need more than he had been charged with a crime, did they need some sort of certainty that he had actually committed the crime? Because the statute says that you've committed the crime, then you don't have to be let in. But it doesn't say charged. Does it matter that before they made the final determination that he had pled guilty and been convicted? Kind of a mess, David. But I guess, you know, it's 6:3, the majority. Justice Thomas, writing for the conservative justices, says no, he was allowed, the immigration officer was allowed to not make that decision at the time. And then when he did make the decision, he could make it after the conviction and therefore the guy can be removed. And the dissent is like, what the what? No, we're not just having indefinite. You know, maybe we're letting you back in. Maybe you're not just because you'd been charged with a crime when you left the country. The statute is quite clear here. Committed a crime of moral turpitude. And yeah, sort of an interesting statutory question. David. I don't think this is like a super immigration culture war question. In particular, the. The issue was in 2012, for what it's worth. So, like, this was Obama administration time. So don't think that this is Trump era immigration enforcement, though. Obviously the Trump administration looms large over this. But I think it's kind of interesting and I guess I think that generally speaking, lawful permanent resident, like, means something and that you need to, like, be pretty exact. If you're the government and you're trying to remove someone who's a lawful permanent resident, tie goes to the permanent resident.

David French

Right, yeah, I'm with you on this. Especially because of the word committed. Now, in some metaphysical way, he's either committed it or not.

Sarah Isgur

The Schrodinger's hat of crime, criminals, it's.

David French

It's happened or not happened. So in that, in that sense. But how do we know it's happened? We only know it's happened after a conviction and as a matter of sort of constitutional reality, until that moment, he is innocent. So until that moment, he has not committed it. He's committed it only when we, a jury or a plea bargain or whatever says he has committed it. That's when we know with metaphysical certainty that it has been committed. But we maintain a legal fiction that is supposed to really matter, that until that moment of conviction, he has not committed it. And so he. We live in a world where we have answered the. That like sort of the Schrodinger's cat equation with no cat until the jury declares a cat, the cat is alive.

Sarah Isgur

I think cat is alive. What you're going for.

David French

Yeah, yeah, cat is alive. When the jury declares the cat is alive. And that is the only. That is the moment when the cat takes its first breath. And, and so, yeah, I, I tend to think I'm with the dissent on this one.

Sarah Isgur

Yeah. On the other hand, like, this actual dude, I have no sympathy for, like, you left the country, did he. Was he trying to flee the country? It's not totally clear. And anyway, don't leave the country when you've been charged with a crime is maybe a good rule of thumb just in general, and especially if you're a lawful permanent resident, you are not a citizen, you do not have the full rights of citizenship. So be on alert for that one. David, we know that they're releasing more opinions on Thursday. We do not know which opinion days will be after that. Friday, Monday and Tuesday are the main options. They could take all three of them. I'm really hoping they just take two of them, though. I don't have a strong preference as to which two. And just so everyone's fully aware, I think our plan is to record on the days they drop opinions. Right, David? Like that's the hope.

David French

At least that's the hope.

Sarah Isgur

So we're going to like ditch our schedule at this point. Like everything's an emergency pod and nothing's an emergency pod and we'll just see how that goes. And don't send me, you know, where's my podcast tweets. This is one week, guys, that we're going to be off schedule and it's gonna make cause.

David French

It's a very good cause. It's gonna be chaos. It's gonna be a mess.

Sarah Isgur

But we don't wanna get behind, you know, because in the past terms we get behind, then we don't get to talk about them all. So we're gonna try to stay on top of our homework. That's our goal this term.

David French

Absolutely.

Sarah Isgur

All right, David. Well, that does it. We covered five opinions. I. I don't.

David French

And a war.

Sarah Isgur

And a war. Good on us, you know.

David French

Yeah, that's a full pod right there.

Sarah Isgur

Okay, I'm going to make a wild prediction. Birthright citizenship is not coming out on the last day of the term, but temporary protected status is.

David French

I'm at this point saying basically everything we're interested in is coming out in one day.

Sarah Isgur

So Federal Reserve ftc, birthright citizenship, the gun case, Wolford. Wolford has to be coming out next. That's the Hawaii. You know, what's the presumption for private property? Yeah, all of it.

David French

I'm just gonna go ahead and prepare myself for like seven amazing cases in one day.

Sarah Isgur

They're gonna release one on Thursday. Yeah, come on, Justices, come on, think of us.

David French

Spread think of us, please. Yeah.

Sarah Isgur

All right. You can always tune in for the live blog on SCOTUS. Blog. Uh, we start at 9:30 Eastern Time on the mornings and we live blog through all the opinions as they're handed down. I would say like, oh, I'm there guys, but that's not why you should come. You should come because Amy Howe is at the court. She is. I mean she finds out right before any of us doing rage refresh on our supreme court.gov even can see the opinions. So hashtag waiting for Amy Thursday. You can join that at 9:30am on SCOTUS blog. We'll see you there. Bye, guys.