Lawless or Just Unwise?
3Digest
The podcast begins with an anecdote about sourdough bread, then delves into significant legal issues. It examines the Department of Justice's decision to drop charges against Mayor Adams, prompting a discussion on the distinction between "lawless" presidential actions and those that are merely unwise or immoral. The discussion then shifts to an analysis of Justice Kavanaugh's law review articles on executive power, separation of powers, prosecutorial discretion, and the Constitution's structure. A listener question challenges the unitary executive theory in light of the 25th Amendment's provisions for presidential disability. The podcast further explores the ongoing constitutional crisis in the Arkansas Supreme Court, focusing on the Chief Justice's actions and the process for removal. Finally, the hosts brainstorm potential t-shirt slogans for the podcast, drawing inspiration from previous cases and listener suggestions.
Outlines
Introduction and Legal Debates
The podcast opens with a humorous anecdote, then transitions to discussions on the DOJ's actions regarding Mayor Adams, defining "lawless" presidential behavior, and exploring Justice Kavanaugh's views on executive power and the Constitution.
Executive Power and the 25th Amendment
Analysis of Justice Kavanaugh's writings on executive power and the separation of powers, followed by a listener question challenging the unitary executive theory in the context of the 25th Amendment.
Arkansas Supreme Court Crisis and Podcast Merchandise
Discussion of the constitutional crisis within the Arkansas Supreme Court, focusing on the Chief Justice's actions and the process for removal, concluding with a brainstorming session for podcast t-shirt slogans.
Keywords
Prosecutorial Discretion
The power of a prosecutor to decide whether to pursue criminal charges; its limits and potential for abuse are debated.
Unitary Executive Theory
The theory that the President has complete control over the executive branch; a contested theory with significant implications for the separation of powers.
Lawlessness
Actions violating or disregarding the law, distinguished from unwise or immoral actions.
25th Amendment
US constitutional amendment addressing presidential succession and disability; its implications for the unitary executive theory are discussed.
Arkansas Supreme Court
The subject of an ongoing constitutional crisis due to the Chief Justice's actions.
Justice Kavanaugh
His law review articles on executive power and separation of powers are analyzed.
Executive Power
The extent of the President's authority within the executive branch.
Separation of Powers
The constitutional principle of dividing governmental power among different branches.
Q&A
What is the key difference between a president acting "lawlessly" and acting in a way that is merely unwise or immoral?
Lawlessness involves a direct violation of the law, while unwise or immoral actions may not be illegal but could be ethically questionable or politically damaging.
How does Justice Kavanaugh's view of the Constitution's structure inform his perspective on executive power?
Kavanaugh views the Constitution as designed to protect liberty through checks and balances, and he is concerned about excessive executive power.
Does the 25th Amendment challenge the unitary executive theory?
The 25th Amendment's provisions for removing a disabled president create a potential conflict with the unitary executive theory.
What is the central issue in the Arkansas Supreme Court's constitutional crisis?
The Chief Justice's assertion of sole authority to interpret and enforce the Arkansas Constitution.
What are some of the proposed t-shirt slogans for the podcast?
Suggestions include "Nah, Dog," "Marbury v. Madison," "Congress, Do Your Job," "Major Questions Doctrine," and "Tears of Scrutiny."
Show Notes
Is President Donald Trump breaking the Justice Department or simply reshaping its priorities? As federal prosecutors resign, Sarah Isgur and David French debate whether we’re looking at another Saturday Night Massacre—and whether that’s how the justice system should work.
The Agenda:
—What is (and isn’t) lawless?
—More on the independence on federal agencies
—One magnificent speech away
—Justice Brett Kavanaugh on fiduciary discretion
—“F— cheerleading”
Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, click here.
Learn more about your ad choices. Visit megaphone.fm/adchoices
Table of contents
United States
