Advisory Opinions - The Sun Shines on in Kentucky

Episode Date: March 9, 2023

David and Sarah are coming to you from live from the University of Kentucky answering the most pressing legal questions: -Is wokeism a religion? -Can an employer only hire like-minded people? -Will Biden push ESG investment practices? -What does Gruyere cheese have to do with the law? -When should schools outsource discipline to the criminal system? -What was one NYT author thinking? Or smoking? -And will David possibly reveal his darkest secret yet? Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. We are live here at the University of Kentucky Law School, where just moments ago, Chick-fil-A sandwiches were being handed out, country music was playing in the classroom, and I have never felt more at home. David, welcome to the University of Kentucky. You think you feel at home. This is like my home, actually, almost. I went to church like 300 yards away from where we're sitting for my entire childhood, where I was taught that we were the only Christians in central Kentucky. I actually had some beef with that, Sarah. This was this is the place of my very first protest of my life, which occurred because I believed my Sunday school teacher was teaching heresy.

life, which occurred because I believed my Sunday school teacher was teaching heresy. And I told my dad, who was an elder at the church, that I refused to go to Sunday school until my teacher issued a written apology. How old were you? I was in sixth grade. Yeah. Yeah. And I won. I got my apology.

Wow. Wait, what was the heresy? The heresy is that he was teaching that only members of the Church of Christ were going to go to heaven. Got it. And I was like, dude only members of the Church of Christ were going to go to heaven. Got it. And I was like, dude, I read the book of Romans. I may only be 12, but I've got reading comprehension skills. And so, yeah, that was my first protest.

Well, I feel super at home because one of my bestest friends is a professor here, Christopher Bradley. He teaches bankruptcy, which, as you know from the last last episode is the sexiest of all of the law topics. And he and his wife both clerked on the Fifth Circuit at the same year that I did. And it's just super fun to get to see them and this campus. And on the way in, ran into Judge Van Tatenhove, who is here today. He went here and you may actually, he was the U.S. attorney in Kentucky. And you know who took over for him? Who? As U.S. attorney?

Judge The Par, friend of the pod. Oh, right. He is friend of the pod actually through my father. They're like text buddies. Yes. And so that was really fun to run into him. So, yeah, between the Chick-fil-A, the the Wayland playlist, it was my boss at what was then Greenbaum, Dahl, and McDonald. And he's not here in the room, so I'm not going to say he's a friend of the pod, but he's a friend of one of the podcasters. And my claim to fame is I helped him get ready for his confirmation hearing, which I believe, if I'm not wrong, actually he spent months preparing for and he received one question. Just one question. It was always thus.

Yeah, yeah. Was it, what's a motion in limine? Or what's article two of the Constitution? No, nothing like that. So I'm going to do a favor to all the law students here and perhaps some of those listening. So I asked Judge Van Tatenhove, what's his go-to clerkship interviewing question? And I'm going to share it because I thought it was pretty good. And I kind of wanted to ask you the same question, which is, what is the most recent non-law book that you've

read? The most recent non-law book that I've read? Yeah. Oh, I mean, that's all of the books that I read is non-law. So right now I'm in the middle of the Napoleonic Wars, a global history. So, and I've, I'm about to the edge of where he's making the decision to invade Russia and spoiler alert, it doesn't work out for him. How do you know if you haven't gotten there? Because I've read other books about the same thing. But yeah, yeah. We've got an action-packed pod today. We're going to talk a little bit of wokeism as an identifiable religion,

Biden's veto threat on the ESG law, Fourth Circuit school discipline, a little Gruyere cheese, maybe some Fifth Circuit domestic violence revisited, and major questions doctrine in the New York Times. It's a lot. And you keep forgetting Second Circuit. No, we're going to do that. We're going to do that today.

We're going to do it. Yep. Done. Second Circuit had a major expressive association decision. Yep. Yeah, we're doing it. Okay. But first question, David, we got some of this question from the last pod,

and I know we've talked about it before, but I wanted to at least touch on it again, because it's been like six months and maybe everyone doesn't listen to every single podcast and commit it to memory. It's possible. Why, when we talk about the establishment clause, for instance, do we not think about certain political ideologies as being their own form of religion? In particular, let's say that I started my event each time with a land acknowledgement, and then I went on to say the principles of equity that I believed in, etc., at a government function. Why wouldn't that be an establishment clause violation? Yeah, this is a really good question to ask. And it's one we get, believe it or not, all the time. We get emailed on this all the time. And it usually isn't wokeism a religion or isn't critical race theory a religion? And interestingly enough, there's actually kind of a legal answer to this question. And it's a legal answer to the question that goes back to previous iterations of the very

same culture war that we've been kind of fighting for decades now. And when I was a law student, there were a number of cases filed regarding the religion of secular humanism. So in other words, the argument and the allegation was that if you replace a theistic world review with a secular worldview, then the secular worldview occupies the same place as the theistic worldview and therefore is the equivalent of a religion. And if public high schools are going to teach from this secular, non-theistic perspective, then essentially what they're doing is establishing a non-theistic religion. And this was actually fought in federal district courts over textbooks, for example, that textbooks

that contained evolutionary biology were establishing a non-theistic religion. There was a really long and famous trial back when you guys were like four or five years old in Pennsylvania over a teach the controversy policy by a local school board by teaching both intelligent design and evolution. There's a long trial in front of a Bush-appointed judge who ultimately ruled against the school board and saying that their teach the controversy approach was a violation. That was a violation of the Establishment Clause. There's a Ninth Circuit case about this very issue from the 1990s about a multicultural curriculum where people were taught Wiccan religious rituals and were invited to participate in them. And there was no establishment clause violation there. Who amongst us in the late 90s watching the movie Craft, et cetera, didn't dabble in some Wiccan? Yeah. I mean, me among us did not.

So anyway, the kind of the long and the short of it is that the positions that are attached to, say, wokeism, whether you're going to talk about, say, a land acknowledgement or whether you're going to talk about various aspects of critical race theory, et cetera, also have both secular and religious adherence. So they're not actually exclusively secular at all. So you can go to, my son goes to UC Santa Cruz and, uh, you know, they might begin a religious gathering with a land acknowledgement and they might begin a secular gathering with a land acknowledgement. But isn't that just sort of a tautology if you're just saying that one is secular and one is religious? And the question is whether the land acknowledgement itself is a religious practice? But the question is, so if you're talking about the establishment clause would be about establishing a religion or establishing religion more generally. I'm establishing a faith-based belief system.

And part of that belief system involves the recitation of certain beliefs like land acknowledgements and a belief that gender is not immutable. I mean, yada, yada. You can go down. And so why can't you just say that's a religious belief at some point? But the problem you have, if you're talking about a, if you're talking about from an establishment clause perspective, is which religion? Because you might have a Muslim who offers a land acknowledgement. You might have a Christian who offers a land acknowledgement. You might have a atheist who offers a land acknowledgement. You might have an atheist who offers a land acknowledgement. You might have the land acknowledgement, and we're just using this as a stand-in.

The land acknowledgement is a position, but it is not a position that is tied to any particular religious faith. And so— You see why that's unsatisfying? Because the faith is—and again, I hate this term, so we're just using this for argument. The religion is wokeism. And so, yeah, there's plenty of Jews for Jesus. So just because a Jewish person says something about Jesus doesn't mean that Christianity isn't a religion. The problem then becomes is because, you know, we use the term wokeism as a stand in for a set of beliefs that are

vitally important to any given individual. Sure. But the problem is all Christians don't believe all the same things. All wokeists don't believe all the same things. But nevertheless, we acknowledge that Christianity is a religion. So why can't wokeism be a religion? Why can't being a Republican be a religion? Why can't being a Democrat be a religion? I think that's a big problem. The issue then becomes if a religion is a set of positions, it's just a set of positions, then any advocacy of a set of positions would be then a violation of the establishment clause. And we're beginning to run way afield of anything that you might want to tie to original intent. Here is, there is no intention to end the advocacy, say, of positions. The intention the intention around the Establishment Clause is about establishing an actual church.

And that's not what's happening here. Although I would asterisk that. The Establishment Clause was about establishing a government religion. But the reason for that was the belief that then there would be discrimination against those who did not belong to that religion. And I think that's part of what is driving why we get all the questions, because there is a sense that there is then discrimination against people who do not ascribe to the religion of wokeism. Again, a term that I really dislike. I really dislike it, too. I hate the word in general, but it's still somewhat helpful as a shorthand.

But I think that's why this is coming to a head or coming to a head again now is the sense that there is discrimination against people who do not subscribe to the government's preferred ideology, religion, fill in the blank term. And so that's why the question is, is this an establishment clause violation? Yeah. And I think that the way you hit that problem is actually from the standpoint of not not from the standpoint of free exercise. Yeah. It's much more free speech and free exercise. If I'm actually being discriminated against by a government entity on the basis of my viewpoint, I'm actually facing discrimination on the basis of my viewpoint, whether it's a religious viewpoint or a political viewpoint. In many, many circumstances, I'm going to have a cause of action. But at the same time, we also know that the government has an ability to put forth a point of view. So I think what we come around to actually the same answer that we had from the last pod, which is the Establish the establishment clause does not have the teeth that you think it has. No. And the teeth are in free exercise. They're in speech. They're in press petition assembly expression, which is not actually in the text. Um, but we're going to get to an expression case. Uh, and yeah, the establishment

clause just doesn't do a whole lot of work. I mean, this is the play in the joints that I think is largely being disfavored now. It's not really play in the joints between establishment and free exercise. It's free exercise to prevent establishment. world case that I had involving an associate professor who was denied a promotion to full professor. And one of the arguments for the reason why he was denied promotion is that he was an evangelical Christian. He had received tenure when he was an atheist. He became an evangelical conservative and was denied a promotion to full professor in spite of the best publishing record or one of the best in the department. In spite of winning service awards, in spite of the best publishing record or one of the best in the department, in spite of winning service awards, in spite of winning teaching awards, he was denied promotion. You're going to have a wide superhighway path argument of viewpoint discrimination, violation of free exercise. You have not even an overgrown walking trail of, well, this is an establishment of religion, of secular religion that victimized

him. So even though, even though in many ways the secular outlook of the department had assumed essentially exclusive religious significance, the actual cause of action still was under free exercise and free expression. I think that's your answer right there. Okay. Let's do that second circuit case. Cause I think it ties in really nicely. All right. So this case, this is case, this case is interesting. This is Slattery versus Kathleen Hochul. Slattery is a New York resident and it's the Evergreen Association, which is a crisis pregnancy center. For those listeners who don't know what a crisis pregnancy center is, it's a nonprofit that's pro-life that generally crisis pregnancy centers don't, they're not engaged in trying to

pass laws to, although they might, you know, their representatives might lobby at the state legislature. Their core function is not a legal function. Their core function is a service function. In other words, if you're a mom and you're pregnant, you have an unplanned pregnancy, crisis pregnancy centers will sometimes give you ultrasounds. They will provide you with resources to, if you want to raise the child, with help raising the child as far as financial or other kinds of resources. They'll connect you with adoptive parents if you want that. They're just designed to intervene in the lives of young moms who face unplanned, unexpected pregnancies with the aim of saving unborn life. That's the whole goal of a crisis pregnancy center. So New York decides, and anyone who thinks just for a moment

that the only people passing performative unconstitutional legislation are those red state legislatures, I would like to introduce you to the legislature of the state of New York, which passed something that it calls the Boss Bill. I didn't really understand the name, the nickname of the Boss Bill, but yeah, that was the name. That's the name. And the relevant part says, an employer shall not discriminate nor take any retaliatory personnel action against an employee with respect to compensation, terms, conditions, or privileges of employment because of or on the basis of the employee's or dependent's reproductive health decision-making. So the question was, does a crisis pregnancy

center have to hire and retain a person who's had an abortion? Or does that interfere with their rights to, their freedom of expressive association, their rights to free speech and their rights to free exercise? for consideration that this was a violation of their rights of expressive association, but not actually a violation of their free exercise rights and not actually a violation of their free speech rights. This was expressive association only, that there is an element of the right of freedom of association, a subcategory called expressive association, that organizations that are formed around a particular expressive purpose have a right to associate only with those who share the expressive purpose of the organization, and that can include speech or conduct.

So, you know, if you had an abstinence only educational program, you could not hire a porn star, even if the porn star said, I'm going to advocate abstinence, that there is an expressive association element here. And that's where the court ruled for Evergreen. It did not rule for Evergreen on free speech or free exercise grounds. So some fun notes. One, this is largely turning on that Boy Scouts case. This is Boy Scouts of America versus Dale. That's a Supreme Court opinion from 2000 that was on that associational expression about the Boy Scouts hiring gay Boy Scout leaders. What are they called? Scoutmasters. Scoutmasters. Yeah. Okay, great. Not a Boy Scout,

in case anyone wasn't sure. You can be now. Great. And so just reading through the three prongs in Dale, whether the group making the claim engage in expressive association found here that they were, right? That by being a crisis pregnancy center and the sort of the purpose behind the

crisis pregnancy center, definitely an expressive organization. Second, whether the state action significantly affected the group's ability to advocate its viewpoint. Interestingly, that's where the district court and the circuit court split. The district court thought that it burdened it, but not significantly. And so intermediate scrutiny would apply. The second circuit panel here was like, nah, dog, that was highly, highly affected the group's ability. If you're hiring someone who, um, and it wasn't just abortion, that's the law, but this group also says that they won't hire someone who engages

in extramarital sex. Right. Um, or maybe birth control. Honestly, their birth control position was a little bit, it said any birth control that they believe has abortifacient. Yeah. So plan B or something like that. Well, maybe, maybe Lots of, I've talked to people who think that any birth control has some abortifacient possibilities. So it's possible that the group is also saying that you can't be on birth control if you work at the group. I don't know. Certainly would not apply to condoms, for instance. Right. Okay, so third prong is whether the state's interest implicated in its action against the burden imposed on the

associational expression is justified. So it's actually just its own form of strict scrutiny, sort of as its own prong as well. You know, is it compelling, et cetera. So a couple of things here. One, this oddly reminded me of the social media bill cases because in some ways it's going to turn on the same idea like do you have a right to associate yourself with who you want on your platform and that mall case about the students coming into the mall from the 80s and all of that um you know if twitter says we don't want to associate with nazis can they, can they make that decision or not? And I mentioned that because there's just so many of these cases coming up these days about this freedom to associate and expressive association. That being said, David, I noted that the three people on this

Second Circuit panel are all Trump appointees. And, you know, we talked about the transgender athlete case that the second circuit took on Bonk. And I was like, why would you try to take this on Bonk if you're either side instead of going straight to the Supreme Court? Well, not either side, the athlete side who lost. And so we were kind of spitballing that. Well, it turns out that the second circuit sua sponte took it en banc, meaning that they and each circuit has this, but it's pretty unusual that even without the losing side asking for the circuit to consider it sitting as a whole, that a single judge can ask for a poll of the judges to see if there's enough votes and that that's in fact how that transgender case went up. I will be very curious if this panel of three Trump judges doesn't have a similar en banc vote. Very curious. I'm going to say no. You don't think so? You think this stands? I think this stands because it's pretty, this is pretty squarely within existing Supreme Court precedent. If you're talking about Boy Scouts of America, if you're talking about Hurley, if you're talking

about an organization that is centered around a particular mission and message. Hurley, by the way, is the Irish pride parade where they exclude the LGBT float from the parade, also considered expressive. They are allowed to not have floats in their parade that they don't want to have in their parade. And, you know, if you're talking about expressive association and what Evergreen talks about is how does it hurt us if we have employees who have obtained an abortion or are engaging in sexual activity that's contrary to our mission, even if they're not going to advocate for that. Here's the thing, David.

I think that third prong, the state's interests, I think an en banc court might have a different view of the state having an interest in people not being discriminated against based on their reproductive health choices, and different judges are going to come down differently on that compelling state interest. I would agree with you if you're talking about working... Very different than a parade for St. Patrick's Day. There's no compelling state interest in the parade, but there is in hiring and discrimination. I'm going to agree with you if they're working for Verizon, if they're working for a pro-life organization, because that's the reason why it's

the expressive association element of this. Yeah, you're telling me why these three judges agreed with you, but you're saying you don't think there's other judges on the second circuit? Oh, sure. But I think they know they would, if they took this en banc, the current Supreme Court would say na-dog to them. You know, there's that Judge Reinhart. Judge Reinhart was a famous Ninth Circuit judge, super liberal,

and he would just constantly flout Supreme Court precedent. And then he would get reversed all the time. He was a big reason why the Ninth Circuit had that super high reversal rate. And someone asked him at an event, you know, why do you keep doing that if the Supreme Court's just going to keep reversing you? And his answer was, they can't catch them all. Yeah. No, I, I agree with you that the circuit is what, about eight, six between Democratic appointees and Republican appointees. More Republican than you'd think at this moment. But the relevant Supreme Court precedent to actually go to the extent of taking it on your own en banc, to essentially flip the bird to the Supreme Court, strikes me as futile. Not to say they won't do it, but I would be at least a little bit surprised. And we'll take a quick break to hear from our sponsor today, Aura.

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$30 off plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code advisory at checkout to save. Terms and conditions apply. All right, moving on. We have talked a ton on this podcast about the need for Congress to do more flex and particularly against the executive branch who has just wildly encroached on Congress's prerogatives in legislating. Hence the rise of things like the major question doctrine and non-delegation doctrine and yada yada and I blame the presidency and album side, album side, sing, sing, sing. factors, environment, social governance factors, which is largely seen as climate change and, I mean, social factors considered around sustainability, equity, discrimination, etc. So they pass this rule. Now, on the one hand, this rule just says that these managers are allowed to take those things into account. However, without that rule, the only thing that retirement plan managers can do is fiduciary responsibility, right? What will make your retirement plan money? By allowing them to consider these other factors, it's saying,

even if you know that it will not make the most money for your retirement plan to invest in Exxon, sorry, to not invest in Exxon, then you can choose not to and your retirement plan will not make as much money for your retirees. It's your choice. Do whatever you want, retirement managers. Okay. So you see the two arguments, right? On the one hand, it's just giving them options. And on the other hand, those options hurt the retirees who don't get to choose what their retirement plan is invested in, especially for some of these large, you know, really super large retirement plans. So Congress actually passes a law repealing, so to speak, superseding through legislation that Labor Department rule. Oh my God, Congress did something pushing back on the administrative state. There was a regulation

they didn't like and they took an actual vote. And Joe Biden has said he's going to veto it. And my head is falling off my shoulders, David. Why? I don't look, I actually do have opinions about this rule, but this is has nothing to do with my opinions about this rule. This is entirely about the executive choosing to crush Congress in a moment where they're actually doing something against an administrative state that didn't, in my view, have the ability to do this in the first place. Yeah, I mean, I'm going to agree with you. I'm going to agree with you 10,000% that I'm utterly opposed to this veto. I'm so mad about this veto. I'm utterly opposed. I mean, on the merits, this idea that, okay, retirement plan managers can now decide that they care more about what Citibank is doing to combat climate change than they care about the returns that will sustain my family after I retire

is a very troubling rule. It's a very troubling rule on its merits. Yeah, yeah, on the merits, blah, blah, blah. But also I'm with you on the reality that, look, we've been banging the drum about Congress. Congress actually does something. Bipartisan vote. Joe Manchin and John Tester, Democrats, joined with Republicans.

But this also demonstrates just as a practical legal matter, just thinking through the legal process at issue, how difficult it truly is to rein in the administrative state. Because here you have a new rule. It's promulgated by the president. Now, the next president can. And no doubt will and will like Trump and whoever it is, the next president can roll that back. Absolutely. But this idea that you can just go ahead and expand the power of the administration unilaterally. And then Congress would have to have a super majority to override the president's choice here. That's outrageous. Well, and it actually raises an interesting conversation that we talked about at the National Constitution Center retreat, which was,

what are some useful constitutional amendments? And one of the more interesting and useful constitutional amendments would be restoring the concept of the legislative veto or constitutionalizing the concept of the legislative veto, which is the legislature has the ability by majority vote to nullify an administrative regulation. And that would require, under current precedent, a change to the Constitution. Yeah, I don't like calling it a legislative veto, but I want to come up with a different name. Because just to be clear, this is the administrative state, you know, the Department of Labor passes a new regulation, not only do they have to follow the Administrative Procedures Act and it's vulnerable to potential challenge under

that, you know, the public comment and notice and rulemaking provisions, but that Congress itself would have a role in that almost APA style review. Yeah, I'm all for that. Yeah, I am too. But watch this. It will happen. It will be vetoed. And we're further entrenching the decline of the legislative branch. I'm mad. I'm mad. Okay. Fourth Circuit, moving on. This is a case that you highlighted, Judge Niemeyer, Harris, and Heitens on the panel. Heitens is going to write it. We've talked about Toby Heitens before. He was the Solicitor General for the state of Virginia and is really, I think, seen as a leading intellectual light on the left for the Biden judges, certainly, but even outside of just Biden appointed judges. His opinions are getting a lot of attention. I would compare him to

a Newsom on the right down in Florida. So he writes this opinion, Niemeyer, who is a Bush appointee, is going to be dissenting. would you like to talk about school discipline? I would love to talk about school discipline. Because I think you and I are going to disagree on this case. Oh, really? Yeah. You think we're going to disagree on this case? You mean you're going to be wrong?

I'm not used to that. All right, here we go. So this is Toby Heighton's Circuit Judge. South Carolina law makes it a crime for elementary and secondary school students to act disorderly or in a boisterous manner using obscene or profane language or interfere with, loiter about, or act in an obnoxious manner in or sometimes near a school. The primary question is whether the challenge laws give students fair warning about what expressive behaviors may expose them to criminal penalties and contain sufficient guardrails to prevent arbitrary or discriminatory enforcement. Now, a little bit of background before you make the decision about how right I am and how wrong Sarah is. For those who are listening and for those who have not yet in law school been exposed to doctrines such as

overbreadth or void for vagueness, criminal laws are supposed to give a person of ordinary intelligence the guidance that they need to understand how to comply with the law. In other words, it's got to be clear enough to where if I'm just an ordinary person, I can read the law and know what's prohibited and what's not prohibited. So put that in your back pocket while you're thinking about this. And also, there is another aspect of this case is this is not, we've had many cases that we've talked about in the evergreen cases, one where what's happened is people have engaged in pre-enforcement challenges. In other words, the law has not actually been inflicted upon you yet, but before it's, it's clause attached before it's clause get into you, you can file a lawsuit, you can get it blocked, and you're free of it. This is not that. Here's a phrase from the opinion. Neither law represents

an empty threat. Indeed, the enthusiasm with which one South Carolina school district referred its students for criminal charges prompted the local prosecutor to plead for more disciplinary issues to be resolved internally. The raw numbers tell a similar story. During a six-year period ending July 2020, there were 3,735 referrals of people between the ages of 8 and 18 for prosecution under the disorderly conduct law for school-related incidents. So that's six years, 3,000 over the state. 3,375, yes. The disturbing schools law was even more widely deployed. The disturbing schools law was more widely deployed during a period of less than six years ending March 2016. More than 9,500 students referred for prosecution, including children as young as seven years old. There's about 800,000 students in South Carolina, right?

Roughly? 800,000 students in South Carolina. I don't know the student population of South Carolina. I think it's in the opinion. Yep. And so the question is, the question is, is, does that statute appropriately describe or appropriately and with sufficient precision describe prohibited conduct? And Sarah, you say yes? No, I say that that's not the only question. All right. So keep going. So the question is whether any of these plaintiffs have standing to challenge, All right. So keep going. saying that, here I'm quoting from The Dissent, the majority opinion blurs its analysis of the two statutes and who has standing with respect to each form of requested relief. And in doing so, it dismisses the importance of any distinction between facial challenges and as applied challenges, describing the quarrel about the two as, quote, much ado about little. Well, that's a

nice way to not have to deal with it, isn't it? I totally agree that I think these statutes have a real problem on vagueness and a real problem on notice. But you do have to actually dot your I's and cross your T's to get into court. And here we have a majority opinion that's so eager to deal with a problem, which again, I agree there's a problem, that they're skipping over some pretty important things like standing, class certification, and most important, the difference between facial challenges and as-applied challenges. So an as-applied challenge is this law applied to me was vague, but a facial challenge is this law applied to anyone is vague. Well, here's the problem. You can't bring a facial challenge if your behavior fits so squarely within the heart of what would not be vague as to be a problem.

So let me read you with the three plaintiffs in this case, their deal. A 17-year-old female student engaged in a physical fight in the hallway of her school. She didn't initiate the fight, but she fully engaged in it, and the fight was broken up by teachers. Hard to say that that's not in the core of what this law can prevent. 2017, eighth grade male student confronted by school officials with information received from another student that he was going to, quote, shoot up a school. Multiple students claimed that they heard him talking, shoot up a school. Multiple students claimed that they heard him talking about shooting up the school the previous day. He denied the allegations. Nonetheless, the school called law enforcement. Do you want them not to call law

enforcement on that? By the way, another interesting case where this is we're going to go on a little cul-de-sac here, a little tangent. I believe this was in Texas. A student hears another student, female student hears a male student say, don't come to school tomorrow to another student. He's having a private conversation. She overhears it. Doesn't think much of it. Later in the day, she starts kind of replaying it in her head. She gets nervous. She texts her friends about what he said. replaying it in her head. She gets nervous. She texts her friends about what he said. And then she goes home and tells her mom. By this time, of course, she's Snapchatted her friends about it. It's gone around the whole school. There's now a panic going on. The mom calls the school after she tells her mom. It turns out, I guess, that the kid was,

don't come to school tomorrow because there's a test that's going to be hard. Who knows, right? It was a totally not threatening thing that he was talking about. She didn't know that. She gets suspended for the rest of the year. She might have even I think she was charged criminally, but I don't want to get the details wrong. And look, the whole question is, don't we want kids to see something, say something? And they were saying that she caused a panic by telling other students before telling her mother or the school. And it's like, OK, look, a 15-year-old, really? Like, she didn't go through the right process in reporting a potential school shooting the

next day? So the idea that schools are taking, I'm going to shoot up the school tomorrow, like, that's not don't come to school tomorrow. That's a pretty clear threat that, again, multiple students heard. Okay. Last one I think is a closer call. Female student has an altercation with a classmate in the school library. She then refused directives to leave the library while speaking profanity. A classmate had been making fun of her, bullying her, calling her fat and all sorts of other things, manly, I guess, throughout the morning. Student loudly tells her to stop talking about her.

Fair. After the library summoned the school principal and the principal told her that she needed to leave, she refused again. The principal then called the school resource officer to the library, who also directed her to leave. She again refused. Then she does decide to leave on her own. She announced that she would rather be home than in this hell and said to classmates, f*** you. Students in the library began clapping as she was leaving. And then she said to all of her classmates, f*** all of you. She was suspended from school for four days and later

charged with violating the disorderly conduct statute. Here's where I think she might have an interesting standing case. Was she charged for saying, you all, or was she charged because she refused to leave the library after three different people, the librarian, the principal, and the school resource officer told her to leave? Then I don't think she has standing. And that's just going to, like, there's going to be some, I hope, written discussion of why she was charged. You can't bring facial challenges if you're these three folks for things that are core, obvious crimes that aren't speech-related, aren't expression, aren't burdening their, you know, expressive conduct. On the other hand, if, for instance, she's expelled

for telling, you know, an officer, fuck you, and that's seen as disruptive. Yes, that is not, first of all, I think she has a First Amendment right to do that, probably. But second of all, I don't know that that falls into this statute to begin with or gives fair notice of what would be considered boisterous. And I will say that the majority opinion, this is the best sentence from the majority, based solely on the dictionary definitions of the statutory terms, particularly disorderly and boisterous, it is hard to escape the conclusion that any person passing a schoolyard during recess is likely witnessing a large scale crime scene. That's a great line.

That's a great line. So true. Yeah. But to bring a facial challenge, to have standing to do so. I mean, this is the problem we've talked about with standing before. See, I'm just not picking up what Judge Niemeyer is laying down. And I appreciate him. I've argued in front of him more than once.

He's super sharp. But I can't even imagine the number of complaints I filed that contain both as applied and facial challenges coming through the same plaintiff. But they're different. And the majority even says that he's just going to conflate the two. I mean, that standing section of the majority is a hot mess. Yeah. But I think Niemeyer's dissent is a mess.

The fact that I may not have a valid as applied claim does not mean that I don't have a valid facial challenge claim. So that's what feels strange to me about this is that you filing, simultaneously filing an as-applied and a facial challenge, often what you're going for when you do that is you really want the facial challenge. That's what you want. And the as applied is the fallback. You cannot bring an as applied challenge if you lack standing. Sorry, because the laws were not vague as applied, you cannot bring a facial challenge. You don't have standing. The laws were not vague as applied to you. So you then can't speak on behalf of all the people where it might be vague because it wasn't vague as to you. That's why you were bringing as applied and facial challenges because the two can match there. But if you can't get the

as applied, then you can't get the facial. Square rectangle. Because, look, if I'm saying that I'm going to try that, if I'm saying that I am still a student at this school who is going to be engaging in expressive activity, even if previously I had walked out of the library dropping F-bombs as liberally as you just did on our family podcast, the as applied portion in that circumstance, The as applied portion in that circumstance, certainly, you know, certainly it's problematic. But if I'm still a student at the school and I'm still going to be participating in this community and subject to this statute, then the vagueness of it is still directly relevant to me. And this is where the majority tries to make that argument that it's not about their past conduct, but rather they're saying that they don't want to get dinged again

and they don't know about their future conduct. That's just very messy to me. Here's the thing. I absolutely know and understand why the majority wants to get to the conclusion they want to get to. And it's not, you know, oh, they're liberal legal reasoning. No, it's because there's an actual problem of kids who otherwise should be suspended or put in detention being put in the criminal justice system instead. majority says. Evidence submitted to the district court shows that between 2015 and 2020, black youth were charged with disorderly conduct for incidents in schools at roughly seven times the rate of their white peers. That's what this is about. I'm very sympathetic to the problem, but you got to actually tee this up right. This case started in 2018. That's where we first get

the district court opinion. It's going to go back up and back down and back up. It's 2023 now. There's a reason, and it's because it's not teed up correctly. It's not a good vehicle to do this. All I know is you just undermined my entire law practice. All right. Another Fourth Circuit case that was just worth a quick mention, David. Chief Judge Gregory writing for the court. I'll just read the first sentence. This case is about Gruyere cheese, widely considered among the greatest of all cheeses, according to the Oxford Companion to Cheese. And under what circumstances cheese can be labeled as such. Appellants are a Swiss consortium. I will not try to read the French.

And a French consortium, also in French, who believe that Gruyere should only be used to label cheese that is produced in the Gruyere region of Switzerland and France. Seeking to enforce this limitation in the United States, the consortium's filed an application with the United States Patent and Trademark Office to register the word Gruyere as a certification mark. Spoiler alert, Gruyere is not champagne and Wisconsin can still name their cheeses Gruyeres. Well, you know, that's a very interesting question,

but much less important to whether anyone outside of Kentucky can label their whiskey bourbon, which is the critical question. You're just playing to the home game. I am playing to the home crowd. I am playing to the home crowd. And I just have to, I have to confess though something because, so I grew up in a teetotaling family. I grew up like just a few miles from the bourbon trail and never tasted bourbon till after law school, not once. And then it was, do y'all remember the movie Old School? Will Ferrell's in there. He's Frank the Tank and he's trying not to drink. And then

he has a beer and he goes, it feels so good when it hits the lips. That was the sensation. So. All right. Do we want to answer questions or did you? I think, why don't we take questions? Let's table. We have two things left. One, the Fifth Circuit revised their Rahimi opinion. That was that domestic violence case. I do want to talk about, in particular, Judge Ho's concurrence was very revised or at least added to is maybe a better way to put it. And I'm coming around a little bit, David. Are you? A little bit. So I want to talk about that next time. And second, Adam Liptak at the New York Times wrote a piece about the major questions doctrine, basically saying that it didn't exist before 2017.

The piece is titled The Curious Rise of a Supreme Court's Doctrine That Threatens Biden's Agenda, which kind of tells you everything you need to know. The sub-headline, the major questions doctrine promoted, and it's in quote, the quote major questions doctrine

promoted by conservative commentators is of recent vintage but has enormous power and may doom student loan relief and other programs uh he basically says that like kavanaugh created this it's the most bizarre thing i've ever seen justice stevens wrote about it in 1980 justice briar justice even an opinion justice briar wrote a law review article about it in 1980. Justice Breyer, Justice Stevens' opinion. Justice Breyer wrote a law review article about it in 1986. Justice Scalia has the famous Congress doesn't hide elephants in mouse holes. That's from 2001.

I am baffled by this New York Times article. And I just wanted to get my bafflement on the record with all the baffling. I unfortunately have to confess that I've not yet read the article. Oh, my. I know. So, you know, I have like some real beef with how the Supreme Court is applying major questions, doctor. And I think the factors are pretty muddy.

It's like significant economic question. And like, what does that mean? So it's not that I'm all for the current application, but let's not pretend that it just got created. I learned about it in law school, you know, a zillion years ago. And it wasn't like I had a bunch of conservative fed courts, profs or anything. I'm actually much more interested in your, the domestic violence, how you're warming up. That's, that's a whole, we're going to have to. All right. The table for next time. Now we are going to take questions from our amazing University of Kentucky law students. And since they don't have microphones and we do, they're going to ask the questions and we'll repeat it. Yes.

Would it be appropriate to try to import some of the legal tests that currently exist to determine if something is religion into, you know, the moral discussion about whether these things can be a religion, say, a free exercise perspective, right, where even atheism can be a religion, say, from a free exercise perspective? Can we take tests that have been used to define religion when you're positively asserting a right to religious expression or free exercise and apply that to testing whether or not something is a religion from an establishment clause perspective. That's a really good question. And I think that from a non, let me put it this way, from a non-originalist perspective, that could make a lot of sense. That's sort of taking the notion of establishing a religion and sort of saying, okay, does this mean that the state can't establish or advance a worldview, which I think is extending the text just too far. I think that that makes some real sense, I think, but what you're running into is that the text here really is about, and clear from context,

clear from text, it really is about establishing a religious faith. And we, we know what that means. You know, we, we know from history what that means. That's not one of the things that's one of the, that's not one of the more mysterious parts of the bill of rights because we know exactly what the colonies were leaving. They were leaving a situation where, I don't know if you guys, did you, did y'all watch the, what the, the coronation of King Charles? Did that already happen? He's king. Well, he's king, but I don't think he's been coronated.

No, that's not a word. Coronated is not a word. Court, no. They've not had the formal coronation, but he's still the king. It's not like the presidency where the inauguration is how you become president. You get to become king and we have a ceremony later. So he's king. But one of the things that the king is or the queen of England, you know, of the United Kingdom is they're the defender of the faith.

And so this is something that when we're talking about an establishment of religion and for a very long time, this sort of the conservative argument about the establishment clause is, whoa, Supreme Court, you have really expanded what the establishment clause means. You've really expanded it to include that it's an establishment clause violation if I observe, and it's an injury to me if I observe a religious display on public land, or it's a violation of establishment clause if you're even hearing a prayer performed by a public individual. And so the kind of the conservative argument for a long time was the establishment clause is not really this big catch-all provision that says, hey, state, don't be involved in religion at all. It's really much narrower than that. It's, hey, state, don't establish a state church. That's what the establishment clause is. And then the argument about sort of saying that secular progressivism is a religion or that wokeism is a religion is sort of

turning the old school conservative argument about establishment clause on its head and saying the establishment clause is actually more much more bulked up than we've traditionally argued that the establishment clause really is much more about not just about can the state establish a church, but can the state have a point of view? And this is where it's interesting. This issue actually is really, really, really relevant that can the state have a point of view is actually really relevant to the social media conversation. Because what we've seen is FBI or a member of Congress saying, you know, FBI or a member of Congress saying, hey, we don't want this content on Twitter. And they don't engage in no enforcement action. They're just asking. They're just asking for Twitter to take action. And that has been so far upheld by the courts as well that

the state can have its point of view. Also, I have good news. Coronation is correct. It's that you can't verbify coronation. You get crowned, you don't get coronated. So, phew. I knew that there was something about that that is tricky, and I didn't want to run afoul. That's good. That's good. That's good knowledge. He has not been crowned. His coronation has not occurred. Other questions? Yes. Given how divided Congress is right now, and I know that the administrative state, some people have issues with it, of course, it's overreaching in some aspects, but, and how quickly technology is developing, we have to have more regulations on things just as technology grows. So do you think that there is a balance to be struck between having those necessary regulations

and people close to the situation watching and Congress doing their jobs? Because a lot of the holdup for Congress is that they're not close to it and that they're so divided on these issues. So the question is, is there some sort of balance to strike between Congress laying out broad frameworks and the administrative state filling in some of those details as the world changes quickly for two reasons. Congress ain't experts, and there's basically too much that Congress could possibly speak to every iteration that could happen between pieces of legislation. I'm very sympathetic to pieces of those,

and I'm very unsympathetic to other pieces. So, or sorry, and your other part of your question was because Congress is also super divided. So they're just not going to be able to pass tons of legislation. I'm unsympathetic to the divided Congress point because we know that Congress can pass bipartisan legislation if both sides think that there's a big problem. There's political pressure to do something about that problem. And that political pressure is enough to force them to compromise to actually get something done. The reason Congress, I think, is seen as so divided is not because the numbers are more divided than they've been, about the same as it ever was, right? Generally speaking, this country has always been roughly divided. Maybe the House

of Representatives for a long time was Democratic, etc. But the Senate in particular, what's changed is neither side's willing to compromise, I think, in part because the executive branch has been willing to step in and take the political heat and fix the problems. And so it feels divided because why should they compromise and get whacked from either side in a primary when they can just sit there and say, nope, I'm standing my ground. I'll never compromise on X issue. And that actually helps them in their reelection. And there's none of that political pressure because the executive branch will handle it. And even if it gets struck down a few years later by the courts, blame the courts, right? Not the executive or Congress for refusing to compromise. So that's the piece I am wholly unsympathetic to, and in fact, think is part of

the problem. However, you raise, of course, very good points about why the administrative state was created in the first place. This idea that like these yahoos in Congress have no clue how any of this works. And so they can set broad parameters. But you need experts, quote unquote, to fill in those gaps and create that regulatory framework. I'm sympathetic to some of that. I don't see a world in which we simply get rid of the administrative state. It's like the libertarians who are like, yeah, but you could hire a private fire department. Okay, law student. That's not how the world works. No disrespect intended. No disrespect. Honestly, it's mostly undergrads. I teach undergrads, so I can mock them.

but i do think that the era of trust the experts is also coming to a violent end uh and it's not just covid but boy did covid highlight the problem and that in fact you don't want government by expert and this is you know another song that i sing pretty often which is the hundred-year experiment of the progressive movement, not progressive as we use it today politically. I mean, progressives that Teddy Roosevelt and Woodrow Wilson belong to. The progressive movement idea, at least in part, was if only we had the smart people running the government, we could tell the dum-dums what to do. And it's very tempting, I think, in theory, when you're one of the smart people. But, spoiler alert, it's how you get eugenics and throwing people in jail for having political opinions that you don't like because they're criticizing the smart people. I don't know that we're that far off of that these days when you look at California's bill about doctors being punished

for having opinions about COVID that the government doesn't like, because the smart people said what the correct opinions on COVID are, and these doctors aren't the experts, even though they're literally doctors. And you've just seen a lot more of that. So I'm very wary of the Congress isn't expert so they can't pass laws. We did just fine for many, many years without the administrative state expert part. That's different than the filling in the interstitial gaps. I see the point of an administrative state is filling in the gaps from congressional legislation. And that's how you get over to major questions doctrine is that you should be filling in the gaps, not creating gaps to fill with your preferences.

And I think that's where major questions doctrine can do some work. And then you just have to be careful about that. And I think you raise something really important. Two things that I think that you raise are really important. One is we've actually seen relatively recently when Congress has nowhere else to go, it will do something. So when COVID hit, for example, we passed some of the largest fiscal bills ever passed in the whole history of the republic to deal with the PPP program and to deal with. And there was compromising and there was bipartisanship and all the things

because there was enormous political pressure. And there was no constitutional, Joe Biden couldn't say here's three, or Trump at the time, couldn't say here's $3 trillion. Just no way to do that. And so also another one, Ukraine aid, Ukraine aid. We have now seen multiple congressional iterations

of Ukraine aid. That can now seen multiple congressional iterations of Ukraine aid. That can't be kicked to the president. Congress has kicked almost all of war declaring to the president. But one thing it cannot kick to the president is appropriation. And so, and we can go- Unless it's student debt relief. Well, that's about to- I say to a crowd full of students and hope that they don't pitchfork me after. Yeah, and that's about to be a big nope. But yeah, so I think that we have seen that when Congress has to do something, it actually does something. And so this is one of the reasons why I'm not as convinced by the doom argument that says, well, look how dysfunctional Congress is.

If you make them, they're just not going to do it. Maybe not, but we've seen some evidence that they actually sometimes will. And the other thing that you said that when you're talking about expertise, even when experts are right, they are narrow focused. Right. As we saw in COVID, someone has to weigh the trade-offs of a given policy. Anthony Fauci, I think, has been unfairly maligned in any number of ways. It wasn't his job to know or think about the economic trade-offs. His only job was the best public health course. That's it. It was the president's job. It was the chief of staff's job. It was all of the political folks job and Congress, by the way, to consider the options for which the course is obvious when there's always trade-offs. There's always going to have to be generalists to make these trade-off decisions.

Because if you say to the CDC, decide about how to stop the spread of this disease and we'll do whatever you want. Well, then what about the economy, which also matters? What about schools? Well, they're going to pursue a zero death plan. Exactly. We don't have a zero death plan in any other part. Right. Like we wouldn't have cars or if we did, we'd all drive at one mile an hour. We don't do that because of the tradeoff. And, you know, there's an interesting, there's this really fascinating podcast that brought out this expert versus generalist distinction in the context of the Ukraine war. And there was this interesting conversation between two Russia experts and two

military strategy generalists. And what was fascinating is the Russia experts got the early course of the Ukraine war wrong, and the generalists got the early course of the Ukraine war wrong, and the generalists got the early course of the Ukraine war right. So the Russia experts were extremely well-versed in the modernization of the Russian military and the technical capabilities of Russian arms. And if you just look at, say, an Su-35 fighter in isolation, it's a very capable platform. If you look at the various Russian cruise missiles, they're very capable platforms. If you look at the modernization, the Russian military has been heavily modernized. And then the generalists, though, said, wait a minute, you've got 180,000 troops advancing into a country that's the largest country that's entirely in Europe on five separate lines of advance, that's not the way you do this. And that was just totally divorced from what is the capability of this Russian fighter? How well trained is this Russian army? They were able to

look at a big picture and say, that's not how you invade. It's like taking elephants over the Alps. Right. Exactly. That's not how, that's not how you do this. And, and so the generalists actually turned out to be more correct in that instance than the experts. And it's not that the experts were useless. They know a lot about the individual capability of any given Russian weapon, but this is the Fox and the hedgehog man. Right. all right maybe one more question yeah our host hostess our host scott county high school class of 2016 2016 man they went to high school together we practically went we practically went to high school together yes in my middle school building in your middle school that's right uh well thank you first for not wearing a UT orange.

Can I just say something about the University of Tennessee? No. No. You want to hear this. I loathe that institution. Okay. So my kids are. What?

Did you just say that on a podcast? My kids are out of it. My daughter has graduated. My son has transferred. And he transferred. Not that he would do this. not that he would do this, but if he would do this, he transferred giving it the bird as he flew the coop. And I'm reverting. I magnanimously with much physical pain wore orange when my kids were in school, but now that they're done, open war has resumed. Yes. Wait a second. Yes. Wait a second.

Wait a second. You on this podcast have so many times claimed your University of Tennessee bullshit, since we're going to bleep half this podcast anyway, as the true orange, as the true UT, as the colonizer, which is a weird thing to claim. Well, it's more true UT than your UT, but that doesn't mean I like it. My God. An amazing movie that I watched on the plane here, by the way, called Vengeance with BJ Novak, who wrote and directed it and stars in it, and Ashton Kutcher. If you haven't watched this movie, it's incredible. I maybe have some quibbles with the ending or like whatever. Nope.

Nope. It's about it. It's about the making of a true crime podcast. It's like funny, but serious. Anyway, it takes place near Marfa. Like I don't know how to describe where that is in Texas.

Not near anything. It's like six hours from Midland, five hours from Abilene. Just keep going. The McDonald Observatory is out there. Anyway, they go to the local rodeo and the announcer says, who here's a fan of the University of Texas? And BJ Novak stands up and is like, yeah. Like everyone else is staring at him he goes and now who here is a fan of texas tech and the whole crowd stands up and freaks out uh and he gets beat up for that so yeah no i'm i'm just glad to restore balance to the force now that my kids are out of ut but anyway with your question nope that was it that was the question since we were talking about um administrative law and

delegating to expert authorities kind of as the original progressive uh idea was to do for the state have y'all talked at all about the private non-delegation docker, the Fifth Circuit, Sixth Circuit cases surrounding the Horse Racing Integrity and Safety Act. Very relevant here to, you know, our university, Senator McConnell, Congressman Barr kind of got it through. Well, anyway. Yeah, I'm blanking on that one. Well, I think that we've had actually quite a few events on. I think folks here are quite familiar with the piece of legislation that directly affects our state and really the nation as a whole. Because what happened was Congress passed a bill. They've been trying to pass it for a number of years, four or five years, finally in 2019, part of the big coronavirus

omnibus bill. Yeah. They essentially delegated to the FTC authority to govern horse racing. However, under that, they created what was called the Horse Racing Integrity and Safety Authority. Okay. Which is a, I'll say, private, again, that's what the argument is. It's a private, quasi-private board to regulate horse racing across the country. So anyways, all that being said, since you don't know about it, I won't ask.

I'm reading about it now. General thoughts about private non I won't ask. I'm reading about it now. General thoughts about private non-delegation, non-delegation maybe more generally, but private non-delegation playing a more, just a stronger role in, let's say, conservative jurisprudence at the high court and then even amongst the circuits. David, I think we're talking about this opinion on the next podcast. It came out just a few months ago, December of 2022. There's two. There's a fifth circuit and a sixth circuit. Obviously, I'm only looking at the fifth circuit. What is that other circuit? What is that? All right. So for pod purposes, why don't you repeat the question?

So the question is about the relevance of the private non-delegation doctrine as with the most recent example, horse racing integrity, which involved the creation of a private quasi public private board that is under the independent FTC. So it's like doubly shielded. So you have the independent FTC and then you have an independent board that is also private, but public functions have been delegated to it. Interesting. We're going to read these two opinions. We'll read them. They came out recently and this sounds like a great next pod topic. Yeah. Yeah. Because I'm just not even going to open my mouth anymore about this.

Here's the problem. I mean, I'm going to I know how I'm going to feel about it if it were anything other than animal welfare and cruelty. Right. Yeah. This is going to really your constitutional country, your constitutional philosophy versus your love for animals. Yeah. I mean, there was a guy at the Department of Justice. His name's Steve. I won't tell you his last name, but those who were at DOJ or know anyone at DOJ might know Steve. And Steve and I would fantasize about how we were going to deputize ourselves after these jobs and just go help local prosecutors bring federal cases against animal abusers. And we had plans, David.

We had big plans. They involved long guns. Oh, did they? Thankfully, they were all derailed by this podcast. That's right. Yeah. All right. With that, thank you all so much.

University of Kentucky, University of Kentucky Federalist Society, the University of Kentucky law students who are here. And thank you, Professor Chris Bradley, for putting us all together in this wonderful room. The country music can continue playing overhead. And what an amazing place to go to law school. This is fun. Yes, thank Thank you guys.