Divided Argument

It's the last opinion day of the term, and the big one landed: Trump v. Barbara, the birthright-citizenship case. We read the majority as the rare easy case and spend most of the episode on why the four dissents each end up somewhere different — and trying to figure out exactly where they actually land. Along the way: a bogus Nina Totenberg story, a Landor GVR that might quietly unsettle a chunk of Spending Clause criminal law, and whether the professors who defended the order deserve the "legal scholarship police."
Highlights
[00:00:27] The bogus Nina Totenberg wire story that Justice Alito was retiring — "Fake news, Dan."

[00:02:03] The Justice Alito / Justice Sotomayor bench-dissent dust-up from the immigration hand-downs

[00:03:11] Last opinion day — 3 opinions, 4 cases; NRSC v. FEC and West Virginia v. B.P.J. / Little v. Hecox flagged for later

[00:05:27] A significant new grant teed up on possession of semi-automatic rifles (AR-15s)

[00:06:43] A GVR in light of Landor in a federal arson case, and the narrow-vs-broad theory of what a GVR means

[00:09:34] Whether Landor's narrowing of Sabri could upend a swath of Spending Clause federal criminal law

[00:10:58] Why RLUIPA reaches prisoners — Chuck Colson's post-Watergate lobbying (courtesy of a listener, Emma Kaufman)

[00:12:55] Trump v. Barbara — Trump loses, but closer than predicted: "Trump beats the spread"

[00:15:25] Should professors who defended the order be punished? — "we don't need legal scholarship police"

[00:19:58] The majority's walk: common law → Dred Scott → the 14th Amendment → Wong Kim Ark

[00:26:21] Wong Kim Ark as linchpin, and whether its "domiciled here" language was doing any work

[00:36:48] Justice Kavanaugh concurs in the judgment on the statute, then dispatches the constitutional question breezily

[00:42:05] New states, Hawaii, and Living Originalism — when may you add new exceptions? "Weird islands you can't drive to"

[00:48:33] The 91-page Justice Thomas dissent, the facial-challenge pivot, and the reserved domicile question

[00:56:40] Justice Alito's Civil Rights Act / "not subject to any foreign power" reading, and the statelessness caveat

[01:00:11] Justice Gorsuch's 3-page solo dissent: if not domiciled here, then where? — a jab Thomas may not share

[01:05:33] Justice Jackson's anti-subordination concurrence, and whether it lands against Thomas

[01:10:24] "I feel proud to be an American, Dan" — hail to the Chief, and to Justice Barrett; sign-off

Relevant links
Cases
Trump v. Barbara — slip opinion

Landor v. Louisiana Dept. of Corrections — slip opinion

Sabri v. United States (2004)

United States v. Wong Kim Ark (1898)

NRSC v. FEC — slip opinion

West Virginia v. B.P.J. / Little v. Hecox — slip opinion

Commentary & articles
SCOTUSblog opinion recap: "Supreme Court strikes down Trump's order ending birthright citizenship"

Ilan Wurman & Randy Barnett's NYT essay defending the order (Minnesota Law summary)

The big opinions are coming fast and furious as the Term ends. This episode, we take on two related cases from the penultimate opinion drop day: Trump v. Slaughter, which overrules Humphrey's Executor and clears away for-cause protection for the independent agencies, alongside its interim-docket companion Trump v. Cook, where the very same logic somehow spares the Federal Reserve. The big question: if the President can fire an FTC commissioner at will, what actually makes the Fed different — is "history" doing the work, or is the Court just saving the bond markets? Along the way: Heidegger's "always already," whether the metaphor of a living tree is consistent with originalism, a Goldilocks definition of "cause," the Chief leaning on his own unworkable precedents, the Ex parte Young mystery that keeps escaping the Court's grasp, and the first appearance of "the interim docket" in the U.S. Reports.
Highlights
[00:00:18] The penultimate opinion day — four down, four to go

[00:00:50] The last-day pileup, and the McCain-Feingold campaign-finance case still pending

[00:03:25] A confession: staircase wit, and the metaphor Will wishes he'd used

[00:04:27] The living tree as an originalist — and the petrified-tree rejoinder

[00:06:01] The new custom-cover workflow, and what Claude still isn't allowed to write

[00:07:00] The day's four opinions: Cook, Slaughter, Chatrie, and Watson v. RNC

[00:09:50] Is the Court strategic about opinion timing? A walk back through OT21's last days

[00:13:55] Slaughter before Cook: the general rule before the exception

[00:15:08] "Humphrey's Executor has always already been overruled" — by way of continental philosophy

[00:17:36] Slaughter: the question, Humphrey's Executor, and the road from Morrison v. Olson through Seila Law

[00:22:12] Why presidents mostly haven't tested removal — and whether this shifts the equilibrium

[00:25:29] Walking the opinion: Roberts for the Court, the Thomas non-join, a Sotomayor (not Kagan) dissent

[00:27:30] The Decision of 1789, the history fight, and the "good arguments on both sides" that made Will a "witless hack"

[00:33:19] Part III-B's reserved questions and the Gorsuch concurrence's non-delegation wish list

[00:43:06] Cook: procedurally on the interim docket, and why it comes out the other way

[00:46:00] The Chief's history tour — the Bank of North America, Hamilton, and an accomplished yachtsman

[00:49:00] The Fed as the "third bank"; Bamzai & Nielson and the monetary-vs-regulatory problem

[00:50:25] The chain of moves: reviewability, a Goldilocks "cause," and the equity remedy

[00:53:11] Footnote 2 and the Ex parte Young mystery — Armstrong, CASA, and Bivens

[00:58:41] Process not received: a Truth Social post isn't enough, and what Cook gets next

[01:00:54] "The interim docket" enters the U.S. Reports

[01:01:52] The separate writings: Kavanaugh (save the economy), Jackson (equities), Thomas's solo dissent

[01:04:45] Alito-Gorsuch and Barrett: hard questions, and skepticism of a carve-out defended "for secret reasons"

[01:11:26] Sign-off: if there's a long delay before the next episode, it's because we've lost removal protection

Relevant links
Cases
Trump v. Slaughter — slip opinion · SCOTUSblog analysis

Trump v. Cook — slip opinion · SCOTUSblog analysis

Chatrie v. United States — slip opinion · SCOTUSblog analysis

Watson v. Republican National Committee — slip opinion · SCOTUSblog analysis

Commentary & articles
Aditya Bamzai & Aaron L. Nielson, "Article II and the Federal Reserve" — the leading qualified defense of Fed independence (Cornell L. Rev.)

Samuel L. Bray, "Remedies in the Officer Removal Cases" — relied on by the Cook majority on the equity-remedy question (Journal of Legal Analysis); draft/announcement on the Divided Argument blog

William Baude, "How To Save The Federal Reserve" — Will's prior take on preserving Fed independence under the removal cases

We're in triage mode as the Court clears its end-of-term backlog. We run through the week's opinion dump before focusing on two cases that look unrelated but turn on the same question: when may a state rewrite background property law to limit a constitutional right? In Wolford v. Lopez, the Court strikes down Hawaii's rule requiring a property owner's express consent before a firearm may be carried onto otherwise-public premises. Then to Pung v. Isabella County, a takings case asking whether a homeowner whose property is sold for back taxes is owed only the sale proceeds or full fair-market value. Along the way: a theory about a Landor v. Louisiana flip, the week's run of 6-3 conservative wins, and a short detour into the perils of teaching Federal Courts.
Key Topics
[00:00:00] - Triage mode: recording June 25 amid the end-of-term opinion dump
[00:01:29] - What's still outstanding — and the campaign-finance case's standing problem
[00:03:56] - The Landor "flip" theory: did Justice Jackson lose the majority to Justice Gorsuch?
[00:06:40] - Thursday's decisions: Monsanto v. Durnell (FIFRA), two immigration wins, Wolford v. Lopez
[00:08:58] - Counting the week's seven 6-3 conservative wins; the Hemani surprise
[00:12:57] - The throughline: when may a state redefine property to evade a constitutional right?
[00:18:35] - Wolford v. Lopez: Hawaii's "express consent" gun rule after Bruen
[00:20:42] - The Bruen framework — step one vs. step two, and the free-speech analogy
[00:26:57] - The change vs. the outlier: uniformity and Hawaii's sensitive-places list
[00:30:49] - Alito's historical analogues: poaching laws and the Black Codes
[00:33:34] - Jackson's dissent: race, Equal Protection, and how non-mechanical Bruen really is
[00:38:59] - Caetano, the Ramos v. Louisiana callback, and Alito on racist origins
[00:41:21] - Barrett's concurrence, Kagan's narrower path, and the rejected "spirit of aloha"
[00:48:23] - Pung v. Isabella County: tax sales, takings, and "just compensation"
[00:51:45] - Thomas's historical turn on tax-sale rules, and the fairness backstop
[00:55:45] - Sign-off
Relevant Links
Supreme Court of the United States: https://www.supremecourt.gov/

Divided Argument podcast: https://www.dividedargument.com/

Transcripts: https://www.dividedargument.com/transcripts

Commentary blog: https://blog.dividedargument.com/

Merchandise: https://store.dividedargument.com/

New York State Rifle & Pistol Ass’n v. Bruen: https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf

Tyler v. Hennepin County: https://www.supremecourt.gov/opinions/22pdf/22-166_q86b.pdf

Ramos v. Louisiana: https://www.supremecourt.gov/opinions/19pdf/18-5924_j4el.pdf

The big opinions are starting to drop, and we're doing our best to keep pace. We first discuss Landor v. Louisiana Department of Corrections, which concerns religious liberty, the scope of Congress's power to create remedies against individuals under the Spending Clause, and whether there's any redress if government officials literally throw your rights into a trash can. We then turn to United States v. Hemani, where the Court found that a federal law barring gun possession by unlawful drug users violated the Second Amendment and revealed that some of the Justices are surprisingly open-minded about marijuana's role in American society.
Key Topics
[00:07:07] - Landor v. Louisiana Department of Corrections
[00:08:02] - The facts of Landor’s case and the prison’s decision to ignore prior religious-hair protections
[00:10:52] - RFRA, RLUIPA, and the path from Employment Division v. Smith to modern religious-liberty litigation
[00:14:54] - The Spending Clause theory behind federal funding conditions and why the remedy question matters
[00:19:54] - The majority’s reasoning: why money-damages suits against officials were held unconstitutional here
[00:21:33] - Sabri, the Necessary and Proper Clause, and the debate over third-party liability
[00:26:04] - The parade of horribles: transgender sports, vaccines, and other funding-condition hypotheticals
[00:33:03] - The constitutional background: “general welfare,” the spending clause, and the comma-versus-semicolon debate
[00:38:49] - Why the Court granted the case and whether the facts pushed the legal outcome
[00:42:13] - Hemani and the federal statute banning gun possession by unlawful drug users
[00:44:05] - Historical analogies, habitual drunkards, and how Bruen and Rahimi are functioning together
[00:47:17] - Discussion of the Court’s analogical method and its practical limits in lower courts
[00:54:26] - Justice Thomas’s concurrence on jurisdictional hooks after Lopez
[00:55:31] - Justice Jackson’s concurrence on Bruen and Justice Alito’s surprising marijuana comparison
[00:57:51] - The real-world use of marijuana versus alcohol at the founding, and why the analogy is controversial
Relevant Links
Divided Argument: https://www.dividedargument.com/

Podcast merchandise: https://store.dividedargument.com/

Podcast commentary and blog: https://blog.dividedargument.com/

RLUIPA overview (Cornell LII): https://www.law.cornell.edu/wex/rluipa

RFRA overview (Cornell LII): https://www.law.cornell.edu/wex/religious_freedom_restoration_act

District of Columbia v. Heller (Cornell LII): https://www.law.cornell.edu/supremecourt/text/554/570

New York State Rifle & Pistol Association v. Bruen (Cornell LII): https://www.law.cornell.edu/supremecourt/text/597/1

United States v. Rahimi (Cornell LII): https://www.law.cornell.edu/supremecourt/text/602/230

South Dakota v. Dole (Cornell LII): https://www.law.cornell.edu/supremecourt/text/483/203

Sabri v. United States (Cornell LII): https://www.law.cornell.edu/supremecourt/text/541/600

We open with the usual grab bag—the "foot fault" pun buried in a Justice Thomas opinion, reading Justice Alito's clerk-hiring tea leaves, and a detour into the metaphysics of conditional resignations and whether you can be confirmed to a vacancy that doesn't exist yet. Then to the merits: Keathley v. Buddy Ayers Construction, a 9-0 judicial-estoppel case that lets us ask where the doctrine even came from (Tennessee, 1857, apparently), and Abouammo v. United States, the venue case about a former Twitter employee who fabricated a document while the FBI sat downstairs. The venue talk wanders, happily, into the Yellowstone "zone of death," a C.J. Box thriller, Jim Comey's second career as a novelist, and an extended appraisal of watch brands.
Highlights
[00:00:53] - Podcast update, SCOTUSblog partnership, and listener reviews
[00:01:49] - Justice Thomas's "foot fault" joke
[00:03:48] - Sam Bray citation discussion (Aldridge v. Regions Bank)
[00:05:02] - Justice Alito retirement speculation and clerk rumors
[00:17:23] - Vacation schedule and the upcoming opinion gap
[00:21:03] - June 11 merits decisions overview
[00:23:17] - Landor and the still-outstanding big case of the term
[00:27:49] - Justice Sotomayor's statement respecting denial of cert on ineffective assistance
[00:29:53] - Keathley v. Buddy Ayers Construction: bankruptcy and judicial estoppel
[00:36:10] - The Fifth Circuit's rule on inadvertence and mistake
[00:38:47] - Justice Jackson's majority opinion
[00:40:29] - Justice Thomas's concurrence and the history of judicial estoppel
[00:48:42] - Justice Sotomayor's concurrence and totality-of-the-circumstances approach
[00:52:11] - Abouammo v. United States: Article III venue and criminal prosecution location
[00:55:09] - Yellowstone's "zone of death" and vicinage problems
[00:59:21] - The fake invoice, FBI investigation, and venue dispute
[01:06:33] - Venue, personal jurisdiction, and extraterritorial conduct
[01:10:22] - Statutory venue rules and unresolved constitutional questions
[01:12:30] - Reprosecution after a venue reversal and double jeopardy