Advisory Opinions - The Gobsmacking Guns Case

Episode Date: November 15, 2022

Things get visceral as David and Sarah discuss Haaland v. Brackeen, the Supreme Court case that may determine who gets to adopt a Native American child. Then, having picked up their dropped jaws, they parse a federal court's ruling that deemed it unconstitutional to prohibit gun ownership based on a history of domestic violence. Plus: Sarah provides some FedSoc gala gossip. Show Notes: -Haaland v. Brackeen -Gabriel Malor, no snark Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. And Sarah, today's podcast, we've got a really fascinating Supreme Court case to talk about. We're going to give a FedSoc update, a very quick hit on some Supreme Court cases that we're really going to pay more attention to when the opinion comes out. And oh my, oh my, a gun case out of Texas. I don't even want to say any more than that because... I'm making David put this at the end because it is his dessert. And if we put it at the beginning,

he would only eat dessert at this meal. It's, oh my, that's all I'm going to say. That's all I'm going to say. But let's start. Let's start with FedSoc. Sarah, you were at the FedSoc dinner. Thoughts, observations, any comments on it? And I've got one, I've got something to say in defense of Amy Coney Barrett after. So this was the national conference, the yearly national conference held just after the election this year, which is unusual. Normally, it's kind of the week after and high attendance. Not surprising at the dinner on Thursday night, which is held at Union Station.

There were four justices, Justices Alito, Gorsuch, Kavanaugh and Barrett all in attendance. The actual program was a little dot, dot, dot strange. May I just suggest that having like David Latt MC, the dinner might make some sense in future years. It was sort of a hodgepodge. It was the 40th anniversary of the Federalist Society, which is fun, David, because the Federalist Society and I are the same age and our birthdays are the same time. The Federalist Society is younger than me?

1982, my friend. Oh my goodness. So they did some like history, some reminiscing, and then Justice Alito stood up and did sort of an impromptu story about a time he remembered running into Charles Freed, the Harvard professor, at one of the sort of original FedSoc meetings used to be at Tony Chang's in D.C. And it was this happened for decades. And so everyone kind of remembers back in the day going to Tony Chang's, whatever it was, monthly or so. back in the day, going to Tony Chang's, whatever it was, monthly or so. And I guess Charles Freed and his, if you can just imagine, a very patrician New England accent that I cannot do very well, ran into then just Sam Alito and said, running into you here is like seeing a friend in a bordello and justice alito then said

and i think that's really accurate and so the room is just like melting in laughter and then he pauses and says i think you all are taking something different from this than what i intend and then that the room erupted in laughter about. So everyone enjoyed that. Justice Barrett gave a rousing tribute to her judge, Lawrence Silberman, who she had clerked for, that we've talked about here, who passed away recently. And then another person talked about Lino Graglia and some of the famous quotes from

the University of Texas professor. This was my favorite. Giving equity jurisdiction to judges is like giving steak knives to the Manson family. We don't have enough equity jurisdiction jokes. Exactly. Yeah. And there were, you know, just many a circuit judge there to run into. Everyone was in their black tie finest. So, yes, David, it was a successful Federalist Society National Convention as best. I didn't actually get to go to any of the panels. So, spoiler alert, this Christmas, you will not be getting your dozen judges on AO. Sorry. Maybe next year. That was a lot of work. It was an enormous.

That was a lot of work. So just to let people peek behind the scenes, getting a dozen judges to talk and then editing. That was a lot of work. But David, one of the jokes that, so when Justice Barrett got up to speak, it was a surprise. There was no program really. And so the applause and the standing ovation lasted a really long time. And upon taking the stage, she said,

wow, that's a lot of noise or something better than the protesters outside my house or a nice change from the protesters outside my house. Something like that. I thought nothing of it. But you're telling me this actually caused a kerfuffle? And here's the actual quote. It's really nice to have a lot of noise made not by protesters outside my house.

And people erupted on Twitter that she's mocking protesters, that she's mocking pro-choice movement, that she is... Wait, why can't that just be a true statement? That it is nicer to have a standing ovation than it is to have protesters outside your home? What if there's just nothing more intended? Yes. Not mocking, not derision, just, yep, I would rather people cheering for me than booing me. At my home. Booing me at my home. And you know, you're familiar with the term soccer flop, right? Yes. Okay. For those who are not familiar with the soccer-

Oh my God. This is like the law student who explained, what was it? Match to us? Upset. Upset. Upset. Yes, yes. But I use the term all the time. I will say like in casual life, that's a soccer flop. Come on. And people don't know what I'm talking about. Okay, then explain it. I'll explain it very briefly. If you watch any soccer, not so much MLS, but around the world at all. You're familiar with this concept of the soccer flop where someone is barely touched, sometimes not touched at all, and flops on the ground, often writhing in pain, grabbing their knee, banging their fist on the turf. And then when they don't get the call,

or maybe they do get the call, they'll hop right up and keep on playing. Now we've seen this flopping in basketball, but it's got nothing on soccer. You can, in fact, if you're on Twitter and you want to Jeff, you can even just put in the term soccer flop in the search bar

and it will come up with some spectacular examples. It's just fake pain, fake outrage. And you just see it once you recognize it, it's all over the place in politics. It's all over the place online. And as soon as I saw that, and as soon as I saw our joke, I thought, soccer flop, please get over it, move on. It's totally fine for Justice Barrett to say it's better to be cheered than screamed at outside my home. I think that's true.

Totally fine. All right, Supreme Court time? Supreme Court time, Sarah. All right, one quick thing I learned at the FedSoc dinner about the Supreme Court, because we've talked a lot about the public lines and what time people are having to get there. And I've tried to pass along, you know,

the times that people have arrived and whether they've gotten it or not. But what we haven't done, David, is talk a lot about the lawyer line. So if you are a member of the Supreme Court bar, you get to stand in a different line and a much shorter line, obviously. And generally, we sort of all assume those people all get in.

But heard from a lawyer that, in fact, he got in line at 830 for the case we're about to talk about and did not get in. Miguel Estrada was actually behind him and also did not get in, the famous Supreme Court advocate and erstwhile circuit court nominee. However, one elder statesman lawyer just simply walked to the front of the line and said, I have a reserved seat in the Supreme Court bar section. They were like, well, which is it? Do you have a reserved seat or are you going to be in the Supreme Court bar section? And he just repeated, I have a reserved seat in the Supreme Court bar section. And they let him through, which is maybe just the benefit of being quite old. Yeah. At some point you're like, you just go ahead. Whatever, dude.

All these youngins can wait. Okay. So 8.30 for the Supreme Court line, not early enough for a not hit parade case. Very interesting to us. But I was surprised. Yeah, interesting. Okay, so the case we're going to talk about is very interesting because it is both in and not in for reasons we're going to talk about. We've talked about this concept of this term of the court in many ways being the race term.

It's also turning into, say, the tech term as well. But the race term, and one of the reasons why this is the race term, is this case, Holland versus Brackeen, which is about Indian Native American adoption. And how much of a preference can be given to tribal families in the adoption process. And Sarah, this was quite an argument and quite complicated and not entirely neatly race-based for reasons that are interesting. So what were your overall impressions? Well, let's do some table setting. Okay.

So first of all, Article 1, Section 8 of the U.S. Constitution. And this is, David, of course, where Congress gets most of, a lot of its powers that we talk about. But one of those is to regulate commerce with foreign nations and among the several states. The Commerce Clause, right? But there's another part to it. It actually says to regulate commerce with foreign nations and among the several states and with the Indian tribes. And so this entire case, to some extent, is going to turn on whether that is a plenary power,

which the Supreme Court has previously held that it is, what the word plenary means, and whether this Indian Child Welfare Act falls within that plenary means and whether this uh indian child welfare act falls within that plenary power i also think it's worth just discussing the facts here because they were heartbreaking to me david yes yes yes i i was more like you know my stomach was involved in reading this brief more than most i don't know if that makes sense to people, other people's stomachs can sense like emotional reactions. Makes total sense to me. No. Oh, totally. Yeah, absolutely. When I say my stomach was involved. That's the term,

the origin of the term gut punch. Yeah. Yeah. Good. Okay. Um, ALM and YRJ are siblings whose biological mother is a member of the Navajo Nation. When ALM was 10 months old, Texas officials removed him from his biological mother and placed him in the Brickin's care. After ALM's biological parents voluntarily terminated their parental rights, the Brickin sought to adopt ALM with the support of both biological parents, the child's guardian ad litem as well, meaning a state-appointed person who looks after the child's best interests. Even though ALM was not a member of any tribe and was never domiciled on a reservation, the Navajo Nation unilaterally designated Navajo as ALM's tribe in the adoption proceedings. And this is from the record. The only reason ALM is considered Navajo is that

representatives of the Cherokee and Navajo Nations reached an agreement in the hallway outside the hearing room that ALM would be a member of the Navajo Nation. Woof. After ALM had lived with the Brakeens for more than a year, the Navajo Nation. Woof. After ALM had lived with the Bratkeens for more than a year, the Navajo Nation identified an alternative placement for him with tribal members who were not related to him and in a different state.

Although placement with the Bratkeens would have kept ALM with the only parents he knew and close to his biological parents and cousins who also lived in Texas, the state court concluded that the Indian Child Welfare Act required denial of the Bratkeens adoption petition. By the way, after this lawsuit was filed, the Navajo Nation withdrew their placement request and the Bratkeens have been

able to adopt ALM, but then ALM's biological parents had another child. Sorry, his mother had another child. It does not specify the father. Because YRJ, the siblings' mother, was not able to take care of her, the Brackeens sought to adopt YRJ so that the siblings would grow up in the same house. Once again, YRJ's mother supported the Brackeens' effort,

but the Navajo Nation opposed it, sought to send YRJ's mother supported the Brackeens' effort, but the Navajo Nation opposed it, sought to send YRJ to live in another state hundreds of miles away with either a great aunt or an unrelated Navajo couple rather than with her brother. Because YRJ was also designated as an Indian child under the Indian Child Welfare Act, certifying that she has one half Navajo Indian blood, unilaterally enrolling her as a tribal member. It has been four years, David, and this is ongoing, as in she is not guaranteed to get to grow up with her sibling at this point, even though the mother wants that, and even though that would keep her close to her mother. And even though these people obviously

are caring for and loving, and she's four. At this point, she can have a preference, which is also deeply upsetting. These are not the only plaintiffs in this case. You have Child P, very similar background. Child P was placed with the cliffords where she flourished minnesota officials supported chasing child p with the cliffords they even advised against any contact with child p's maternal grandmother uh because rb's foster license had been previously

revoked by the state on account of a prior conviction. But the tribe intervened and Child P was removed from the Cliffords, placed with that grandmother, notwithstanding the fact that the grandmother had been previously declared unfit to serve as a foster parent. Child P was only given 20 minutes to say goodbye, cried uncontrollably the entire time Minnesota officials instructed that child P is not allowed to contact the Cliffords. The state court concluded that the Cliffords had failed to establish good cause to deviate from the Indian Child Welfare Act's placement preference to, um, a, we'll go through the three factors, the three orders of preference. Um, but in this case, the preference to a family member, not in the best interest of the child. And then there's Baby-O. Same thing, Baby-O's biological father is descended

from members of a tribe and has visited Baby-O once. When Baby-O was born, he was not a member of the tribe. The tribe nevertheless intervened in Baby-O's custody proceedings to block the adoption. Unilaterally enrolled Baby-O as a member of the tribe. The tribe then intervened in Baby O's custody proceedings to block the adoption. Unilaterally enrolled Baby O as a member of the tribe. The tribe then identified more than 40 potential parents to take and move Baby O from the only state she'd ever lived in. The mother strongly opposed the efforts. She visited the baby often and lived near the adoptive parents who wanted her. And this baby had significant medical needs that it was not clear that any of these other 40 placement families had any experience with. This was delayed for a very long time. Let's see just how long. So it doesn't

say, but the Nevada officials were forced to diligently search for an Indian Child Welfare Act preferred placement and do a methodical study. After this lawsuit was filed, the tribe once again backed down and that baby was allowed to be adopted. So, David, I just you read this and it just screams out at you that obviously the number one standard should be the best interest of the child. But that is explicitly what the Indian Child Welfare Act is meant to counter. Right. Because, in fairness, there is a long, horrible history of Indian children being taken from their parents, taken out of tribal lands and out of the tribal community, quote unquote, out of that child's best interest. Right. Yeah, this is an example. the tribal community, quote unquote, out of that child's best interest.

Right. Yeah, this is an example. Another example, and we've talked about examples before in other contexts where some of the worst elements of American history have created massive ongoing problems. And one of the worst elements of American history was the way in which the United States government and various state governments and territories treated Native American populations for a really, really, really long time with absolutely devastating consequences that persist to this day. So there's no question that the history here is really gruesome. The question is, what do you do now? What do you do now? And I think that's where it gets really important to sort of go through the preferences here, because this is where, so you have in essence three preferences. So preference number one is that a Native American child be placed with members of his or her extended family.

That's preference one. Members of the same tribe, that's preference two. Or placed with members of another tribe, preference three. And preference three, to be clear, that means if you're, say, Navajo, there's still a preference that a Cherokee, a member of the Cherokee tribe could have, even if you're Navajo. And regardless of the state. And regardless of the state.

If you're a Navajo child born in Maine and there's a Cherokee family in Alaska, according to Preference 3, you would be shipped to Alaska. Now, they do note in the oral argument, there's nothing in the record and the government has not been able to find an example of that actually ever happening in terms of a thousand mile, totally unrelated tribal placement. But that's what Pre three certainly preference three certainly says. Yeah. And then under those three preferences, you can rebut that. But now the, the burden falls to you,

the non-native non-preferenced adoptive parents, potential adoptive parents with a good cause. And a lot of the argument turned on like, okay, but like, shouldn't the good cause just be the interest of the child? No, is the answer. That is not enough to rebut the presumption of those three preferences. It has to be far more than that. And as we saw in the second plaintiff that I described, in fact, a grandmother who had had her foster license revoked for a conviction, that was not good cause enough to overcome the presumption under preference one. And again, to be clear, if in any other state, in any other entity, it's best interest of the

child. And I've told this to friends of mine who are getting divorced and they're like, yeah, but X, Y, and Z. And I'm like, nope, it's all going to come down to the kid and what's in the best interest of that child. Now, the government made the case that some of that good cause rebuttal can be if the child is old enough to express a preference, But even that alone will not be enough. The preference of the mother is taken into account. But as we've seen, even that will not be enough in some cases. The government was, you know, if we didn't have the backstory of these plaintiffs, which is why I read all of that extensively. The government's oral argument would make you think

that this is all fine because that good cause encompasses all the things you would need it to encompass. And if you can just show those things, then we actually kind of ditch the preferences. But the stories of these children certainly makes me feel like that is not an accurate description of what that good cause rebuttal entails.

Now, in the arguments I would put into sort of the key legal issues in the argument, I put into three buckets. I love your bucket. I love how you've pioneered the bucket analogy. It's good, right? Bucket one, plenary authority. In other words, Congress just constitutionally has the power to say this, too bad, so sad. If you don't like it, change law at Congress. Bucket two, separate sovereign. So there's a complication with Indian tribes and Indian law that there is a complicated separate sovereignty issue here and that Indian tribes have their own sovereignty. And that's a complicator in the legal analysis. And then bucket three, equal protection. To what extent, even with plenary authority and separate sovereignty,

does equal protection, 14th Amendment equal protection come into play and prevent this purely sort of race or ethnicity-based preference and prevent that from taking hold? And it seemed to me that Justice Gorsuch, who has been in many ways sort of the great champion of the tribes at the Supreme Court of the United States and also somebody who, quite frankly, really, really understands the history here in a way that is quite clear from his opinions. My reading of the tea leaves is that Justice Gorsuch was more on the camp of plenary authority, separate sovereignty, than he was maybe on equal protection. But Sarah, I'd love to see how you read the tea leaves here,

because the alignments were not, the alignments here in this argument were not the 6-3. This did not break down the way a lot of cases, you expect a lot of cases to break down in this argument were not the 6-3. This did not break down the way a lot of cases, you expect a lot of cases to break down in this era. So I really like the order that you put the buckets because I was stunned going into this case and then listening to the oral argument, how little the equal protection bucket is really going to matter here. Yeah. Because of those other two buckets, frankly, every justice that we really heard from seemed to accept that this is a political designation and not a racial designation.

And while I certainly find it moving that these children, that we do not act in the best interest of these children because of their ancestry. And we do act in the best interest of all these other children. That does seem to me to be an equal protection violation. I don't think that's how this case is going to get decided. I think you're right. I think you're right. I think you're right.

And so on that plenary question, we can break up that bucket. We'll partition the bucket. Does Congress have plenary power? And does this fit within a plenary power if they do? So Justice Alito kept saying like, okay okay but like plenary is that everything yeah and the government and the tribes tried to kind of say like no no it's not everything it's just everything it's just plenary because it seems like the tribes wouldn't necessarily want plenary to be everything yeah hard to say i will say the most effective argument that I heard on this

was the idea that, of course, the United States bestows automatic birthright citizenship on children. And that, in fact, when it comes to foreign nations, we absolutely have child custody treaties with those nations. If you abscond with an American child to another country or vice versa, you take one of those children into our country. The other parent just goes into court and can, if you can prove that that's a citizen of a different country, like the United States, again, it's a little more complicated than this, but for the most part sends that child back

yeah to be dealt with in the custody hearings in that country not necessarily back to that parent so to the extent you think of the tribes as separate sovereigns david there's a lot of precedent frankly around the federal government having the authority to set law around child custody arrangements. Now, are the Indian tribe separate sovereigns? Is this under the plenary power, under that Article 1, Section 8 that I read to regulate commerce? Is this a regulation of commerce to do state child custody disputes? Right. This all was where most of the argument centered.

And by the way, we're not talking about the anti-commandeering part about whether, in fact, this is the federal government forcing the states to enforce federal law, which is a no-no under constitution and separate whether the states have standing. Texas is one of the parties here, Texas arguing that they do have standing because if they don't enforce this, they'll lose a whole bunch of money. And also, and this was interesting that Texas violating the equal protection clause is a violation of Texas's sovereignty, forcing them to violate a constitutional provision that, um, that is put on them by the 14th Amendment, and then the federal government telling them to violate it. So that's fascinating.

But David, it looked to me like there's a majority, if not a super majority of justices looking for a fairly either narrow ruling here, maybe narrowing the Indian Child Welfare Act, ruling here, maybe narrowing the Indian Child Welfare Act, or just upholding it, not because they think it is wise policy, but because they think it is within Congress's power. And there's not much they can do about it. And that while I certainly wish that Congress had, you know, fine, preference one, two, and three, and the rebuttable presumption is good cause, which, and then be really clear that any of those will overcome, that it's a very easy presumption to overcome or vice versa. And this is of course what I really want, which is to actually write it the same way

as most of these state court proceedings would go otherwise, but to say the best interest of the child. And in the case of a child who has been enrolled in an Indian tribe, that that will have some weight in what is in the best interest of the child when it comes to their community, spiritual practices, et cetera, which will be very different than for a two day old baby who's never lived on a tribe, who was unilaterally enrolled versus, let's say, a four year old who has been living on the tribe. Both parents are members of the tribal nation. And so the best interest of that child may look different because of their tribal membership. But it should still all be wrapped into that best interest of the child. Unfortunately, that's not really up to the Supreme Court to decide. Yeah, you know, on the plenary power prong of this. So here's Article 1, Section 8. Congress shall have the power to dot, dot, dot, regulate commerce with

foreign nations and among the several states and with the Indian tribes. I'm with you, Sarah. That says regulate commerce. It doesn't say exercise dictatorial control over. Now that's a, that's. But it's the commerce clause, David. Yeah, I know. I know. Dives into deeper issues with the commerce clause, but plenary power strikes me as an unpersuasive argument. Separate sovereignty, which you just outlined, strikes me as a more persuasive argument. And this is where the very complicated nature of the relationship between American Indian tribes and the federal government comes into play.

And my goodness, as we've said many times on this podcast, the category of American law called Indian law or Native American law is so incredibly complicated. But that separate sovereignty argument to me is the one that is most interesting in defense of the tribe's position. And then the equal protection argument, let's just be super clear about this. If you had, in the absence of the complicated relationship between Indian tribes and the federal government, if you just had, for example, to take a controversial issue, one that was more controversial in the past than it is now. But you take a controversial issue more from the past than it is now in transracial adoption. So if you had a state like say, Tennessee said, well,

our first preference when for any child is that they place be placed with extended family. That's not going to implicate the Equal Protection Clause. That's going to be lawful. But then they say, next preference is same race in state. Well, nope, that's going to violate the Equal Protection Clause. And then if you had a third preference of same race, different state, that would be dunked on by the Equal Protection Clause. different state that would be dunked on by the Equal Protection Clause. So this is something,

this is a regime that would not pass muster under the Equal Protection Clause at all outside of this context. And so my thought, Sarah, is that of the three preference framework, that separate sovereignty really does come into play on, of course, extended family. I don't think that's really controversial. Separate sovereignty comes into play with second preference, preference for within the tribe. But I think that third preference is toast. I think that third preference. Here's the problem, though. The third preference is poorly written, if you will, though the third preference is poorly written if you will because it is so all-encompassing that it doesn't exclude the idea of a main navajo child being sent to an alaska you know cherokee family and i'm not saying that's where the tribal lands are i'm saying that in this case that's just where the parents happen to be yeah um but practice at oral argument, what they were saying was,

yeah, but what you end up is that tribes share land sometimes, or a family will live on another tribe's land, or one parent will be Cherokee and one parent will be Navajo. Well, the child is only enrolled in one tribe. So the child is enrolled as a Navajo, but they're half Cherokee as well. They just weren't enrolled as a Cherokee. And so what number three is supposed to capture is that idea that they're going to live with a Cherokee family on a Navajo reservation, or they're going to live with a Cherokee family because mom was Cherokee, even though they are enrolled in the Navajo nation. The problem is number three, isn't that narrow. I agree with you that either this whole thing gets upheld, which again, I feel it in my stomach or they just cut number three, which makes my stomach feel a little bit

better, but frankly doesn't fix most of the problems for these plaintiff families, which is what made my stomach turn in the first place, because the so difficult to rebut presumption on these preferences where the best interest of the child is never really factored in. That's what's hurting here is you just feel for these kids, the four year old who's being ripped away from the only family they've ever known. Oh, yeah. No, I know. I know. It's just awful. four-year-old who's being ripped away from the only family they've ever known oh yeah no i know i know it's just awful it's absolutely awful and like i said in any other context it would be if you had a racial preference that was causing that ripping um that would be struck down it would be struck down post-haste like there there's just no support for it. But it's that separate sovereignty element here

that Justice Gorsuch was highlighting that to me makes this much more complicated. I'm much less persuaded by the plenary authority. I'm much less persuaded by that concept. By the way, on SCOTUS blog, when they wrote up this, they had as the main picture, the drawing from the courtroom that had Chad and Jennifer Brackeen. And like, you want to feel this case in your stomach.

This is just a artist rendering of these two parents and just the expression on their face as they're watching their children's future fate be sort of bandied about for three and a half hours um i don't know i really felt that and of course remember in that in the bracken situation the navajo mother wants both the first child and the second child with the bracken so that they can be raised with their siblings both children were unilaterally enrolled into the Navajo Nation. The mother did not ask for that. And that to me gets to be quite bewildering, except for the fact that frankly, that's the sovereign nation point, right? Sovereign nations can do that and we don't think anything of it. This feels different because they're Americans to me. And I don't understand how we can possibly do this to American children. Right. It, everything screams, this is unjust. Yes. What is happening. And then the question is, is it also unlawful? Because something can

be profoundly unjust and still be lawful as we've talked about quite a bit. And yeah, that, that's going to be the question. And it was really interesting to me in oral argument that, that I do not have a clear picture that a majority of the court is going to intervene here for the Burkines. And yeah, it just makes me, it, it makes me feel physically ill, especially as an adoptive father. It makes me this, this kind of thing. Let me, let me go on a side, a side, not really a side rant, um, but a side observation. Um, one of the reasons why I in particular feel for the Brookings is when you start an adoption process and we adopted internationally, but you become a part of a community

of adoptive families when you are an adoptive family and adoptive families, some adopt internationally, some adopt domestically, some adopt, you know, a child from birth with a private adoption that's arranged, you know, beforehand. But a lot of people come through the foster adopt process and it is treacherous, even under the best of circumstances. You can have, you can raise a child as your own and love that child unconditionally, love that child more than your own life, and then you're, but as a foster parent, you really have no rights as a parent of that child

until that adoption happens. And I can tell you harrowing stories, harrowing about how the law really does try for a lot of good reasons to keep biological families together if at all possible, but also sometimes errs badly on the side of keeping biological families. And I have, I, we have walked, we have walked as friends together with people who are in the foster adult process, who the biological parents sort of at the very last moment reach out, try to grab that child back, abuse the child again,

which is what caused the adoption, the foster process to begin with, abuse the child again, and only after the second massive round of abuse were parental rights finally severed. But could you imagine, Sarah, you're raising a child as your own, the state comes and takes the child and look, you walk in as a foster parent, eyes open, you know you don't have rights, but you also know that the parents are completely unfit.

Here comes the state, takes the kids back, every molecule of your body is screaming something terrible is gonna happen. Something terrible happens and the kids come back, but re-traumatized, you know, this is the foster adopt. And, and look, I have so much respect for foster families. My gosh. Um, the, the service that they perform and the love that they have to do what they do and the peril that they, especially when they're going through that foster-adopt process, that peril that they experience with these kids is, now, these horror stories don't always happen. They're not, you know, they don't happen most of the time.

But man, that's why, you know, knowing this and sort of walking through with families who've been through this makes this case just that much more impactful. Frankly, I think our foster system is horribly broken in any state that I have witnessed it in. And our guardian, I mean, the whole thing, it's a hot mess. And more people should volunteer to be guardian ad litems. It would be a wonderful

pro bono thing to do for those lawyers, young lawyers starting out looking for something to do in your community that can really make a difference. Become a guardian ad litem for these kids and advocate for them the best you can and guard your heart a little because it's going to be really hard. Yeah. Oh, absolutely. Absolutely. All right, David, we had, uh, this podcast has been accused of ignoring the commercial litigation docket. And we are frankly just very guilty of that. And there's not really, we are, we're very guilty of it, but to make up for it just a little bit, tiny, tiny bit. of it. But to make up for it just a little bit, tiny, tiny bit, I just want to mention this case that was argued for this calendar month. But I think we'll visit it again when the opinion comes

out, if it comes out, and potentially the big way that actually post-argument, it really might. So this is the FTC case and the SEC case that were also combined. How, you wonder, does an FTC case and an SEC case get combined because those are very different things? Well, because both cases involved more or less identical statutes that govern challenges to final orders from those administrative agencies. The statute says that the only way you can challenge those final orders is a petition for review in the court of appeals. But that's not what these two cases are about. They're not about the final orders at all. And there wouldn't even be these final orders in these cases. Instead, plaintiffs in these cases were targeting the agency's, basically the due process clause,

saying that the agencies were so biased that the proceedings offended the due process clause and that the rules for removal of the administrative law judges who would potentially hear their claims violated the Constitution's appointment clause so the question for the supreme court is can you still go to the district court with any of this or do you have to exhaust at the ftc and sec administrative law you know part of this before you can ever get into federal district court. 28 U.S.C. 1331, everyone sing along with me. District courts have jurisdiction. This is, by the way, Justice Gorsuch explaining 1331. District courts have jurisdiction over these claims absent any other consideration. Then we have the FTC Act that says cease and desist orders can be reviewed in the Court of Appeals rather than the district courts.

Those are the two statutes we have. We don't have a cease and desist order here. I would have thought that might be the end of the game. Again, what am I missing? You could get a way out of administrative law jail, administrative agency jail, I should say, that the Supreme Court may in fact hold that, look, if you're heading down that cease and desist, that's what you're seeking. Then maybe you do need to exhaust the administrative agency process and then you go straight to the Court of Appeals. you go straight to the Court of Appeals. But if you're challenging some constitutional infirmity with the administrative agency itself, it makes no sense to have to exhaust at the administrative agency stage because A, obviously they are going to be biased in reviewing whether they themselves are unconstitutional. And B, it's not even clear they have jurisdiction to decide that question to begin with because they're ALJs. And so that's where 1331 comes in where it's like, yes, then obviously

you just go to a district court like you would with any other constitutional claim. This would change the administrative agency balance, certainly, David, and is of great interest to our commercial, our business litigation friends. And so we will keep an eye on it. We're sorry we didn't cover it earlier. Your voices have been heard. And it's particularly my fault, Sarah, because I'm a former commercial litigator. That was the first almost 10 years of my career was commercial litigation with a hobby, a First Amendment hobby. Can I tell you that, though, this case, the only thing I actually love about this case is that it's going to give us an excuse to not only on this podcast, but on the podcast where the opinion comes out, talk extensively about the Thunder Basin factors. I like that. I mean, the Thunder Basin factors. So this is about how you determine when Congress is stripping jurisdiction and the Thunder Basin factors. And I'm going to say it as many times as I can. Ask one, whether Congress's intent

to preclude district court jurisdiction was fairly discernible in the statutory scheme. And two, whether the dispute at issue is of the kind meant to be first reviewed within an agency's statutory scheme. So under number one, it's relatively clear that for that cease and desist order, they wanted it to go to the court of appeals rather than the district court. Although frankly, that was in a little bit of contention in the argument. But on number two, whether the disputed issue, again, here, whether the administrative law judge's removability is unconstitutional, is of the kind meant to be first reviewed within an agency's statutory scheme? Obviously not. So this fails the Thunder Basin factors, which was brought up many times during the oral arguments.

The chief justice just kept asking like, but the Thunder Basin factors. Asking the government, by the way, I note that you don't even reference Thunder Basin until page 51 of your brief. Am I to assume then that you think you lose under the Thunder Basin factors? I think this could be a 9-0, David.

So can I just make an observation? If you're going to have a test named the Thunder Basin test, don't be so boring. No, the fun part is getting to say it. The test itself is not interesting. No, the test is not, but it's got so much buildup. The Thunder Basin factors. It's like seeing thor ragnarok and it's like a black and white woody allen movie like i mean and we'll take a quick break to hear from our sponsor today aura ready to win mother's day and cement your reputation

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All right, David, you finally get it. It's dessert time. Oh my goodness. So this is... Oh man. Okay. David, can I just tell you before you even start i saw this case on twitter first and it was one of those tweets even though it was by gabriel malore who i think is like brilliant and the best legal follow on twitter frankly i was like oh he's being snarky about this this is clearly when i go read this case i'm gonna find that it's not what it what the tweet says it is this is sensationalist clicky um once again gabriel not only were you not sensationalist you underplayed it friend the tweet by the way federal judge holds that because state intervention for domestic violence did not occur when the second amendment was created

the federal prohibition on gun possession for those subject to protective orders has no historical analog and is unconstitutional. I mean, you can see right off the bat just with that language, David, why I thought it was sensationalist and clickbait. Yes. Yes. Yes. Okay. Let's set the table for this. New York State Rifle and Pistol Association v. Bruin is the case in which Justice Clarence Thomas, writing for the majority, holds that the right to keep and bear arms means not just a right to keep a gun in the home, but also a right to bear a gun outside the home subject to reasonable regulation, okay? But the most important part for purposes of this case

was what is the test that is applied when you are adjudicating gun restrictions? And rather than putting something like strict scrutiny in place or intermediate scrutiny or the two-step process that existed in much of Second Amendment jurisprudence prior to Bruin, what Thomas says is essentially you've got text history and tradition. to Bruin, what Thomas says is essentially you've got text history and tradition. You're going to be looking at the text and then you're going to be answering questions related to the text by looking at history and tradition. What's the legal history surrounding and the tradition surrounding regulation of firearm usage in the United States historically. Okay. So here are the facts of the case, which are super, super simple. The defendant was driving an 18 wheeler near the Mexico United States border in Presidio,

Texas. When he entered a border patrol checkpoint after defendant was directed to a secondary inspection area, he was asked whether he was armed. He said, yes, he had a pistol with him. The defendant consented to a search. Border Patrol agents found the pistol in defendant's backpack. Agents also found a Kentucky state court order in defendant's wallet. The court order outlined defendant's conditions of release stemming from his May 2022 arrest for assault. The government later discovered a separate restraining order against defendant from a Kentucky family court. Defendant was indicted in June 2022 for one count under 18 U.S.C. Section 922 G8, which makes it a crime to possess a firearm while subject to a court order.

move to dismiss the indictment claiming that this section 19 922 g8 which prevents you from uh possessing a firearm when and i'll read some of the language uh you're subject to a court order that a was issued after hearing of which such person received actual notice at which such person had an opportunity to participate restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child. So this is normal stuff here, that when you're subjected to a domestic violence restraining order, you can't have a gun. And then the court says, and, and Sarah, tell me if I'm being unfair to the court. I was wondering which one of us was

going to have to steel man this opinion. And I feel like it's going to fall to me and I'm not going to enjoy this. It's going to be hard and I'm not going to do a very good job, but I will do my best. No, no, no. I, I don't think I'm being unfair here. Okay. The court said, okay, look, under Bruin, I have to look at the history and tradition of whether or not, is there history, is there legal history of removing firearms from people who have been accused or committed acts of domestic violence.

But there's so much wrong with that. Like that is actually not what you're supposed to do first. But it is what he did. But it is what he did. It is what he did. So I'm saying what he did. I'm not saying what he should have done. Okay. Because there's a whole album side there, Sarah. Okay. And what he did is he walks through this really gruesome history,

quite frankly, about how American law for a long time. Didn't give a shit about women or men beating them or killing them. Yeah. Correct. Correct. And then that's the reason for striking this down. Yep. And then he says, he acknowledges, he acknowledges that there isn't a lot of history here about preventing men from beating women and punishing men for beating women. There's just not much history here at all, that that was left to religious bodies to punish or sanction. That was part of it. And quotes, I believe in North Carolina Supreme Court case, it says, you know, we need to close the veil on what happens in the walls of the home or close the curtain on what happens in the walls of the home. And then he says, and OK, even if you don't really credit that history, which essentially says we didn't really take seriously domestic violence until like the 1970s.

Remember, raping your spouse wasn't a crime until actually just after that, in some states at least. Right. So we didn't take this seriously until the 1970s. But we'll, you know, we'll, we'll analyze it under the concept of sort of general threat to public safety. And, and in general threats to public safety, you can engage in firearm regulation and restriction. And he said, well, this isn't really a general threat to public safety, you can engage in firearm regulation and restriction. And he said, well, this isn't really a general threat to public safety. Can I read the paragraph, David? I need to read it. Yes.

Yes, yes, please. I just want to set the stage for poor husband of the pod last night as we were laying in bed and I was reading this opinion and he was doing God knows what. And somehow I will just say like my rage seemed to have spilled over and he was like, please was reading this opinion and he was doing God knows what. And somehow I will just say like my rage seemed to have spilled over and he was like, please stop reading this opinion. At the same time, Justice Barrett did state that founding era legislatures categorically disarmed groups whom they judged to be a threat to the public safety. And the government is correct to quote it. This court's leap of faith, however, is not that the colonies wish to keep the public safe from those seen as dangerous.

History supports that proposition. I kid you not, this is the next sentence. Rather, the leap of faith is whether the colonies consider domestic abusers a threat to public safety. The government and the court's historical inquiries above don't support that conclusion. Okay, David, can we break apart everything that went wrong in this opinion? Oh, yeah. Can we start at the beginning that he jumps straight to the constitutional

question? Instead of simply here in this case, it appears that the first two factors of 922 G8 weren't met, that this restraining order that we're talking about was not put in place after a hearing in which the defendant had the opportunity to participate or was present. That's mentioned in like two sentences at the top. Maybe there's some other stuff going on in the record that I'm not aware of. I acknowledge that possibility, but you never reach, it's called constitutional avoidance canon for a reason, David. First of all, go to the facts. Second, go to the statute. And then lastly, you go to this big constitutional question. That's not what happened here.

We just went straight into a historical analysis under Bruin. And by the way, I feel like I can already hear many of you listening, wondering about the judge. Can we take a quick cul-de-sac, aha, this must be some activist, gun-happy, woman-hating, conservative, Trump-crazy, grab-em-by-the-whatever person. Nope. No. So he was first appointed by Obama, then appointed by Trump. He was first appointed by Obama, then appointed by Trump. He has no real history of political involvement one way or the other that anyone could discern in that nomination and confirmation process.

He has a very long and decorated history in the United States Army, of which he is currently ranked as a colonel, I believe, David. Yeah, he was originally nominated by obama his with his nomination was withdrawn with the change from trump obama to trump trump put his nomination back out he was confirmed 96 to 0 yeah 96 because i looked into all this too i was like now okay a couple can i can i do a one thing not one one let me pinpoint one thing that is uh puzzling to me about the opinion just from a pure precedent uh from from the standpoint not of everything uh that is wrong with it about analyzing history but from the standpoint of just reading Bruin. Okay. Bruin says constantly, is constantly quoting this phrase, the right of law abiding responsible citizens

to use arms for self-defense. Oh, he takes that on, doesn't he? He takes that on, but he takes it on as if he's saying that can't really be right. Yep, that's right. He takes that out. That you wouldn't put that on the First Amendment rights

or on Fourth Amendment rights to only law-abiding, responsible citizens. Therefore, you can't impute it to the Second Amendment either. Honestly, David, can I just say, like this read to me, remember how much you mocked me for saying that Adrian Vermeule's

initial common good constitutionalism, I said, was maybe a Jeremy Bentham-esque example to be made of how the right would be going if they, you know, were following the path they were currently on. And it was a warning more than anything. Honestly, that's what this opinion read to me as like, see, this is how dumb Bruin is. Let me show you how it could be like, this could have been written as satire in a law review. And I would have said it was stupid. Yeah. Yeah.

Like, I had the same thought because it was sort of saying, here is how the history analysis is absurd. That's the way it read to me because it does expose, it does quite, it honestly does expose some weaknesses in the history analysis. Because if you're talking about-

Absolutely, which of course, Justice Thomas said, you know, when it was brought up that perhaps district courts might have a problem with this and you're asking a whole lot of them to now become historians. It was kind of like,

it's no worse than what they're currently doing. That, you know, is a lot of work too. Okay, but here we go. Now you're seeing it. Here we go. But David, isn't the biggest problem with this that it was way too specific, that this was about domestic violence,

which hadn't been a crime until the 1970s? Yeah, neither were like computer crimes, but we don't then look to the founding and ask whether they had computer crimes we ask about trespass uh and in this case seems very clear to me that you simply ask about assault which is why the threat to public safety uh and the uh you were able to confiscate guns from people who were seen as, quote, dangerous to the public safety, all things he acknowledges. And then he says, yes, but domestic violence wasn't seen as dangerous to the public safety. It's like, yes, but it was assault. It was just not assault that they

recognize. It is assault. Right. I'm bewildered that that never really was treated in the opinion as like, why don't we just look at the history of assault versus the very specific history of assault against an intimate partner or the child of that partner. Congress basically just included the more narrow instead of the broader, but the broader, we all agree they would have the right to do just not the more narrow. And again, we don't say, well, you know what? In 1801, they didn't have the internet. No, that's, we say trespass. And it's okay that technology has changed or that mores have changed about certain types of assault, for instance, against certain types of people who were not protected under the law because of their race or gender and were not allowed to vote for their own public safety.

Hmm. Yeah. I mean, this is an assault case. It's about assault. And what happened over the course of American history is finally, after a really long time, we extended the actual logic of the law to cover women in the home okay which the law always in

theory did right it always in theory the elements of assault were not uh you know striking someone outside the home who's not related to you right i mean so yeah, this was crazy. This was, and under Bruin, when it says responsible law-abiding citizens, many, many times, it's a super simple analysis. You say, the court has said responsible law-abiding citizens, somebody who, and Congress has indicated that someone who's subject

to domestic violence restraining order does not meet the definition of responsible and law abiding. Therefore, therefore, this is constitutional. Now, that doesn't mean that Congress can then say anything is not responsible and law abiding, but restraining somebody from assault absolutely does fit. Absolutely does. It's wild. It is wild. And I got to say, this wasn't a short opinion.

It was 32 pages. He did do a lot of the historical work and lifting. I don't know why he went to that first. I don't know why we didn't deal with the larger versus narrower. But my God, the conclusion that because we didn't punish a certain type of assault means that now Congress can't recognize that. It's honestly, David, maybe the most bewildering opinion I've ever read. It could have been written, as I said, as a satire of the Bruin

opinion in a law review article. And I would have said that that was such a silly nonsense way to read Bruin. I'm just stunned that he thought this was acceptable to say that women weren't protected at the founding and therefore Congress can't protect them now. It's literally unconstitutional to do so. If this had been written by an angry law professor trying to satirize Bruin or demonstrate that Bruin is dangerous, I would have been angry reading it as a law review article because I would have said it's straw manning Bruin.

That's right. We would have rolled our eyes. We would have mocked them, said that that was a total misunderstanding of conservative legal jurisprudence of the history and tradition analysis that obviously you would always use assault, not domestic violence. It was dealt with in the Bruin oral arguments. It was dealt with to a large extent, as they quoted with Amy Coney Barrett. Yeah, it was very upsetting to me, David. Also, because this is a podcast where I pretend that no one listens to it, I have stood there next to a friend

getting one of these restraining orders, and they don't work. Part of his solution was you don't need to have 922G8 because the state can simply enforce the restraining order. Give me a break. Have you ever had a restraining order against someone? I will tell you the person showed up not 48 hours later at the door

and it was just me and a telephone standing between him and her. And that is scary, terrifying. And, you know, this was a Northwestern student who had spent his summer paralegaling at a major law firm. And so the major law firm represented him. He had every benefit and she had me, which I know many of you listening are like, haha, so you won. But

this stuff is really scary. He kept her. She had not had sex before. He got drunk one night, violently attacked her, said if she tried to leave, he would rape her, and then held her there through the night. He finally passed out, and she very, very wisely ran away without, you know, a lot of her stuff. You know, she was bruised all over. We called 911. They got pictures of it, and none of that, you know,

we got the restraining order but none of that helped so the idea i don't know this felt like it was just taken so lightly well my god we didn't even recognize this until the 1970s it'll be handled by what social groups and religious organizations authorities right what we were in college what are you talking about yeah yeah no it was yeah and gabriel when you actually read the opinion gabriel's tweet undersells mild undersells undersells it's one of the more remarkable opinions i've ever read in my entire life it might be a top it might be a it's in the top three for just gobsmacking i think the fifth circuit three zero and it doesn't matter which judges you get agree completely

oh boy wow and that's the fifth circuit by the way that's a very pro-second amendment so the most pro-second amendment circuit in the country is going to 3-0 this stuff, I think, and I hope. Yes. Whew, okay. Well, I don't think we hit enough hot button topics today for advisory opinions. Racial-based adoptions, domestic violence, guns. It's a lot. History of oppression of Native Americans. I mean-

But we got the Thunder Basin factors. We did get the Thunder Basin factors, which are boring. You're boring, David. Not the Thunder Basin factors. No, Sarah, not even you can make the Thunder Basin factors interesting. I'm hurt. The Thunder Basin

factors are hurt. Alright, thank you everybody for listening. Please rate us, please subscribe, please check out the dispatch.com and we will be back Thursday morning.