David Responds to Trolls

Who needs enemies when you got friends like these?

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David takes the first ten minutes to respond to Twitter trolls over his latest New York Times article before he and Sarah revisit their arguments over the Supreme Court’s per curium ruling on the Trump-Colorado case.

The Agenda:
—Defending the Supreme Court
—Erasing the Constitution
—Confusion over the Trump ruling
—Consequentialism vs. originalism
—Judicial restraint and originalism
—Erasing Chevron
—SCOTUS hears bump stock case
—Explaining the string cheese factors

Show Notes:
-Kevin Williamson: Slate Publishes Gun-Control Fiction

–Advisory Opinions Episode with Professor Amanda Tyler

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Comments (111)
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  1. Deleted Comment

    This comment has been deleted

  2. Philip Sutherland

    Lawfare just shared a good article aimed at the legal lay person written by Ilya Somin that channels what David French said about how it's the Supreme Court's JOB to to settle disputes when there are different legal rulings in different states. [https://www.lawfaremedia.org/article/what-the-supreme-court-got-wrong-in-the-trump-section-3-case] And it's logically incoherent to me why SCOTUS' latest ruling in Trump v. Anderson wouldn't also make the patchwork of state rules to get on the ballot unconstitutional for federal offices. So I agree with David and I was left confused at how Sarah justified her disagreement other than saying she wanted to the Supreme Court to settle this question for the states regardless of the actual text of the Constitution.

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      Witt Case

      Thanks for sharing. As a legal layperson it was nice to get another perspective.

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      1. Philip Sutherland

        I thought the article was very well written and hit on a lot of rebuttals I was thinking about as well. My first thought when I read that the Supreme Court didn't want a "patchwork" of rulings was that they already have that patchwork in relationship to elections!

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  3. Blainebrockman

    When you eventually discuss the demise of Chevron (along with, maybe, Skidmore and its progeny), I think you should also consider the effect on agency behavior. Without an expectation of deference, agencies will make less creative, more safe decisions. Bold policy initiatives will eventually go away. Whither any desire for government to act more like a business.

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  4. Sjrubert

    ATF wasn't mute about bumpstocks prior to the new rule. The ATF's Firearms Technology Branch actually issued approval letters affirmatively stating that bumpstocks were not regulated:

    https://vpc.org/wp-content/uploads/2017/10/ATF-bump-fire-letter-2010.pdf

    I can't believe that even Chevron deference would extend to a literal 180 from an agency.

    Something else to consider around this issue is that what can be characterized as a "workaround" or a "loophole" can just as easily be characterized as "strict compliance". If the statute says "it is unlawful to do A", and someone does B, it gets really weird if an Executive can say "well, B isn't technically A, but we're going to treat it the same as A".

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  5. Chipwatkins

    Even if states cannot disqualify candidates for President, can they disqualify candidates for the Senate or House, who are candidates in only one state?

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  6. Dist1995

    Just wanted to second Sarah's comment on the negative aspects of FOIA. I work as a historian in the Department of Defense. A lot of decisions are not recorded to ensure they are not possibly FOIA'd. And FOIA has imposed a massive burden on DoD - hundreds of thousands on man hours required to review documents for release. A lot of people ascribe malign motives and conspiracy to simple incompetence and bureaucracy - often the requested documents can't be found (about half of the Army records from OIF were not retained, nit due to FOIA, but because units just deleted records because they did not want to risk bringing classified documents back from Iraq), and when they are found the bureaucratic "easy" button is to limit release. Release info by mistake could get you in trouble; there is no bureaucratic penalty for not releasing info. Pretty sure more legislation would not fix this. Congress needs to start holding senior people accountable for complying with existing legislation, and resource agencies to respond to FIOA requests.

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  7. Shawncrawford13

    Well, I've never been to Greenland and I've never been to Denver, and
    I've never buried treasure in St. Louis or St. Paul, and I've never been to Moscow and I've never been to Tampa, and I've never been to Boston in the fall

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  8. Davidlskeen

    A brief note in defense of my Twitter/X brethren in response to David's complaint: The NY Times is somewhat expensive, so there are plenty of folks who do not subscribe. Years ago, we could access some NY Times columns free each month, but they no longer offer that. I won't defend Twitter vitriol, which is often excessive, but I will defend the low readership from Twitter posters who disagree with David's arguments (which we get for free from AO). Thanks for your consistently excellent podcast.

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      Kmregan7

      They should try going to their library- many libraries have subscriptions that patrons can use with their card.

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      1. Davidlskeen

        Good suggestion, I'll have to explore that option.

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    Mlockekelly

    "The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is good for them not to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

    - The Ralph M. Brown Act, California Government Code § 54950

    I take to heart concerns of "too much" transparency, but I'd rather attend to the problems of too much transparency than too little.

    I hope David and Sarah balance out concerns of too much transparency (C-SPAN cameras in Congress, etc.) in a future podcast with practical ideas and suggestions where government can get things done and citizens retain control over the instruments they have created and the electeds that voters have granted temporary, limited power to.

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  10. Adam

    RE FOIA,

    I am not a huge fan of FOIA and open meeting requirements, etc. But I think they are inevitable because of past misconduct. Yes there are unintended consequences that could be changed. But on the whole, we have FOIA, open meeting requirements and other transparency laws because we have a long history of bad behavior.

    I agree that there should be spaces for people to speak openly and off the record to advice elected officials. But abuse of power is real, and these are ways that have been devised to address those power abuses.

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