Yeah,

we've been going, it's been, it's been a brutal pace. I mean, it's not just the podcast pace because we do other things other than the podcast and between, well, gosh, for the last six months, it's been a unbelievable sprint for all of us. So we're going to do a one podcast week and we're going to feel okay about it.

That for us is a vacation.

That's exactly right. That's exactly right. And, and

David, listeners need to know that you are suffering today on this podcast from a brutal, brutal man cold. Yeah.

It's a man cold, Sarah. It's, it's, it's

like nothing I've ever experienced. Nothing.

You can't, you can't conceive of what I'm going through.

David got on the pod and he's like, I have a cold. My voice is raspy. I may cough a little. And I was like, are you describing a cold to me? Yes, I am a little sluggish. I don't feel great.

But I'm also a man at the same time. And they just, it's so hard. It's so hard. It's so hard. Yeah, I know. There's a lot of people nodding along with me right now, remembering their own past trauma.

All right. I wanted to revisit just a little piece of our conversation from the emergency pod about some of Donald Trump's picks. And in particular, Matt Gaetz for attorney general. We talked about the recess appointments power. I hope the big takeaway was the goose and gander point that if Republicans cheer on and, you know, through acquiescence, allow Donald Trump to make recess appointments, that the advise and consent power is really dead. And Democrats, of course, will use the same power and they will be in power sooner than you think. But we also talked about the Supreme Court's role in a recess appointments situation and the 2014 case, Noel Canning, in which five justices of the Supreme Court said, no, President Obama can't use a three-day recess to appoint members of the National Labor Relations Board, but they suggested that maybe 10 days would be enough. Fun whole conversation, David, on what dicta is at the Supreme Court. Dicta is in the eye of the beholder. But, you know, the Supreme Court doesn't answer cases. It answers questions. So if it answers a case, then it's just the question of, you know, can President Obama appoint someone in a three-day recess to the NRLB? But if it's a question, then it's like, what is the president's recess appointments power, in which case maybe that 10-day thing isn't dicta? Well, this all gets relevant because four justices said, in short, the appointment would have to arise during the recess, first of all. And second, we don't think this is even a real power anymore. The recess appointments power is an anachronism. We don't have the type of recesses that was the subject of the recess appointments power that the constitution is referring to because we don't have courses. We have internet. And, you know, David, what we didn't talk about is like, okay, if there were some sort of nuclear attack on Washington, DC, maybe that would be a recess a la the constitutional recess appointments power, for instance. Congress is unable to convene. Right. But the whole like, we're taking a 10 day vacation for Christmas. Yeah. Intra session. Yeah.

Hard

to see how that's a recess. I made the point that there was this sticky thing going on where you would end up having, let's say, Donald Trump make recess appointments. It would go up on the emergency docket. But under Noel Canning, it does look like, you know, assume it's 14 days and it sort of meets what the five justices were talking about. Would they really sort of stay his appointments pending the merits decision, more or less overturning a 2014 precedent from this court before they ever heard the case? Or with under Noel Canning, they sort of on the emergency docket have to let it go, then use the normal process a year later to overturn Noel Canning. And I was racking my brain trying to think of an example where the Supreme Court had ever leaned into overturning a precedent on the emergency docket. But David, there is one, kind of. Okay.

It's

not a perfect example. Obergefell. The Obergefell case gets accepted in January 2015. Arguments are April 2015. It's decided June 2015. But before that, in October of 2014, okay, so three months before they grant cert on what will become Obergefell, on the emergency docket, they just let stand rulings that allowed same-sex marriage in Virginia, Utah, Oklahoma, Indiana, and Wisconsin. Now, there was no explanation. There was no writing. It was just they didn't accept cert, et etc. On the emergency docket, they didn't stop it. But that to me actually does look pretty similar. Now, it's not as pure and overturning, if you will, as Noel Canning. in Noel Canning, and it's really the five justices disagreeing with the four justices on what could be considered dicta. Maybe you have the chief justice saying, we're not overturning precedent. Noel Canning says the president couldn't do a recess appointment. We're continuing to say the president can't do a recess appointment under these circumstances. So I might take back what I think the Supreme Court would do on the emergency docket side of the recess appointments. Yeah,

you know, it's interesting because if you look at the decision, you know, there's a concurrence that Scalia writes joined by three other justices. And the concurrence, he says, as you said earlier, Sarah, that their recess appointments clause was only meant to cover breaks between sessions rather than breaks within sessions, which would then undermine the whole argument about the well, if the two parts of the Congress disagree, the president can order the recess. But that would still be within a session, not between sessions. And so if you look at the list of who joined him, Sarah, Justice Clarence Thomas, still on the court, Justice Samuel Alito still on the court, Justice John Roberts still on the court. So my guess is that the court is probably, the current court is probably much more in line right now with the Scalia position on this than the majority's position. And that would be very bad news for an effort to engineer a bunch of recess appointments artificially. So I do think, I think you might be right, Sarah, that you could be looking at Supreme Court intervention sooner rather than later on this subject. Because if you look at that Noel Cannon concurrence, look at who was on it, look at the court. Is the current court more dominated by Scalia-type thinkers? Yeah. Yeah, absolutely. And

I'll just, again, read the text of the Constitution, because I think it's pretty darn clear on when the vacancies have to arise. The president shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session. Again, David, I think you're exactly right that that A means the vacancies have to happen during the recess. I mean, it literally says that. And when it says which shall expire at the end of the next session, that to me implies these are intercession vacancies, not intra-session vacancies. But there is this weird interaction where, you know, in the next section, it talks about his power to adjourn the houses. It says, on extraordinary occasions, convene both houses or either of them. And in cases of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. So, I mean, in the next section, they gave him power to adjourn the houses, but then they also gave him the power to appoint, like to skip the advise and consent power, that seems odd that you'd give him the power to skip advise and consent during a recess, but also the power to create the recess.

Yeah, yeah. That, I mean, obviously we're not dealing with original intent here. So, which of course, originalism is not original intent. It's original public meaning. But the idea that a original public meaning of those words was that a president could engineer a recess and then appoint his own cabinet. I don't think that. That

makes no sense. Why have the advice and consent requirement then? Yeah, it's so easy to get around.

Yeah, it's insane. All

right. I also thought it was worth emphasizing, lest anyone misunderstood me, our disagreement over Matt Gates, I think, is a relatively small one. I understand not everyone thinks it's a small one, but basically, none of us believe that Matt Gaetz is the best pick for attorney general. Matt Gaetz isn't on my top 10,000 lawyers for attorney general that I would pick if I were president. But the question is not who should Donald Trump have picked. The question is, okay, now you're a Republican member of the U.S. Senate. Should you vote to confirm Matt Gaetz? And that's really where the disagreement occurred, which I think is a relatively small one, not some grand question of moral authority.

Yeah. Let me say something about that, because I went and looked at some of the comments here. And can I just say, people, get a grip, please. Now, I know the vast majority of AO listeners are not people who go on a comment and send nasty grams in Sarah's direction. But guys, okay, press pause for a second. What was she saying? She was saying, I don't like Matt Gaetz. But one of the things she said was, well, guess what? If you shoot him down, who else will Trump get? Maybe it's somebody worse than Matt Gaetz because there are such figures in this world. And she also wasn't even advocating for senators to vote for him. She said, the ethics report could change my mind. There are other things that could change my mind. No fair minded person could listen to this podcast and think Sarah wants Matt Gaetz to be attorney general of the United States. It was much more, this is a crap tastic situation. What do you do with it? Okay. That's a, that's a different thing. And so I would really urge y'all, and it's a small number of people, this is one of those things where like, do you remember when you were in elementary school and the teacher would say, I'm not talking to everybody, but you know who you are. So I'm not talking to everybody, but some of you listeners, you know who you are, chill out in the comments. I mean, taking on Sarah's marriage, taking on her moral structure of her life, because she's like, I don't, you know, this is a tough situation. I really hate, I really hate this guy was appointed. But what we do is not a reason to pass profound moral judgment on her life. So please chill out. This is how comment sections get closed, y'all. This is how, this is a comment section is a, is a, a little extra treat for super dedicated people. And it's not a constitutional right. And so you have to exercise, exercise your privilege responsibly. And seriously, just absolutely chill out on this. I know a lot of emotions are raw, but we're not going to get through the next four years if this is the kind of thing where you're going to say, well, I'm out on Sarah Isger now. I mean, come on, please just take take a back, take a breath, please. And and, you know, we can talk about Matt Gaetz and the difficult situation Trump has put Republican senators in without stampeding into Sarah's Sarah needs to shut up about her marriage. Why? Anyway, sorry. I

also think there's in some ways, right, it was a theoretical conversation about what you should do about a Matt Gaetz. Again, we don't have the ethics report. I'm not the world's foremost expert on Matt Gaetz. A lot of people very upset that I didn't know more about Matt Gaetz. Okay. But there's also, again, this like more theoretical conversation that bumps up into the very practical, you know, real politic hypothetical as well on the who he would get next. OK, so let's say that, you know, he nominates Matt Gaetz first. And then we know with our magic eight ball that it's Ken Paxton next and the John Eastman, John Eastman after that, Jeff Clark after that. Yeah. Okay. So, and

by the way, a guy who wouldn't nominate Matt Gaetz would absolutely nominate a John Eastman or Jeff Clark. I mean, let's just move out of this idea that you're going to reject Matt Gaetz and Donald Trump's going to go, well, now I'm going to be responsible.

So what I hear and what I think is a tough question is like, OK, then you reject them to the the Senate has a moral responsibility to just keep rejecting them. Yeah. From a theoretical standpoint, I think that's obviously true. If you believe they're all not qualified to be attorney general under your understanding of your powers under the advise and consent clause. But that bumps up against some real politics as well. Do you have the votes to keep rejecting them? At what point, you know, we don't have an attorney general, we have an acting attorney general, maybe the acting attorney general isn't so great either. You know, I talked about who would be in those first few weeks, the acting attorney general. But what I didn't get into was basically you could put someone in, you know, from the landing team, the transition team, I believe, once they've served 90 days, they can be acting attorney general, as long as they're a GS 15 or higher. So also now, you've got an acting attorney general problem. So the theoretical meets the reality very quickly in this case. And I don't think I did the best job explaining the tension between those two.

Well, you know, Sarah, honestly, you should not have to respond with Talmudic precision and still receive the goodwill of our listeners. We have a history here, you know, like there's there's a long track record. So my I'll

also say from a real politics standpoint, for those who think that I'm angling for a job in this administration, generally when you don't vote for the president and say that the attorney general pick is a bad one, they don't come and knock on your door and beg you to come in. That's not really what happens next.