Dan Epps

You think that it's always the government's burden to show that this person is not in that small sliver of people.

But in your view, isn't the point that Congress actually had to make a statute –

But in your view, isn't the point that Congress actually had to make a statute –

The point is that the problem is that the statute is beyond Congress's power because Congress has tried to regulate something. It doesn't have authority over that. Maybe there's other statutes that would be appropriate. Like it seems like you have to look at the law and say, is this law a valid regulation of commerce?

The point is that the problem is that the statute is beyond Congress's power because Congress has tried to regulate something. It doesn't have authority over that. Maybe there's other statutes that would be appropriate. Like it seems like you have to look at the law and say, is this law a valid regulation of commerce?

Yeah, although it's kind of weird, though, to say that if the law is just possession of a gun, even if you could imagine some hypothetical different law that was like possession of a gun within 3,000 feet of a federal building, right? And you're like, well, the person was within 3,000 feet of a federal building, and so Congress maybe could have regulated that.

Yeah, although it's kind of weird, though, to say that if the law is just possession of a gun, even if you could imagine some hypothetical different law that was like possession of a gun within 3,000 feet of a federal building, right? And you're like, well, the person was within 3,000 feet of a federal building, and so Congress maybe could have regulated that.

That shouldn't save the prosecution, right?

That shouldn't save the prosecution, right?

I still think it's a little weird to just say prosecutors can choose to make up elements that would make a regulation of commerce by Congress constitutional rather than having Congress have to do it in the statute. I don't know.

I still think it's a little weird to just say prosecutors can choose to make up elements that would make a regulation of commerce by Congress constitutional rather than having Congress have to do it in the statute. I don't know.

Okay. Well, we were going to talk some about Glossop. I had prepped that one a long time ago to talk about. It will remain prepped-ish, maybe to talk about on a future episode, because my expiration date is arriving soon.

Okay. Well, we were going to talk some about Glossop. I had prepped that one a long time ago to talk about. It will remain prepped-ish, maybe to talk about on a future episode, because my expiration date is arriving soon.

No, no. I actually forgotten. I didn't even mention it before because I forgot we were going to talk about it. I will say it is the first real merits opinion by Justice Jackson. Case argued in October. So it got out very, very quickly. Unanimous. It's a ruling against the petitioner who is an immigrant who is trying to

No, no. I actually forgotten. I didn't even mention it before because I forgot we were going to talk about it. I will say it is the first real merits opinion by Justice Jackson. Case argued in October. So it got out very, very quickly. Unanimous. It's a ruling against the petitioner who is an immigrant who is trying to

to challenge a determination that he is not going to get a visa because he was found to have previously been involved in a sham marriage for immigration reasons. And it's just a debate about, is this the kind of discretionary decision that the Secretary of Homeland Security gets to make that is not reviewable? Or is it the kind of decision that's non-discretionary that is reviewable?

to challenge a determination that he is not going to get a visa because he was found to have previously been involved in a sham marriage for immigration reasons. And it's just a debate about, is this the kind of discretionary decision that the Secretary of Homeland Security gets to make that is not reviewable? Or is it the kind of decision that's non-discretionary that is reviewable?

Now, everybody seems to agree that This decision could be reviewable. The substance of the decision could be reviewable later if he files a different petition. And so it's sort of a question about whether it's reviewable now. It was one of these cases, listening to the argument and reading the opinion, where sometimes you kind of just think, is this the best way to do things?

Now, everybody seems to agree that This decision could be reviewable. The substance of the decision could be reviewable later if he files a different petition. And so it's sort of a question about whether it's reviewable now. It was one of these cases, listening to the argument and reading the opinion, where sometimes you kind of just think, is this the best way to do things?

Couldn't we just have someone... A lot of energy has been put into deciding this question of... Yeah.