Appointments Clause – Opening Arguments

April 16, 2020April 17, 2020

OA378: Trump’s Stupid Threat to “Adjourn” the Senate (A Primer on Appointments)

Today’s episode breaks down the latest threat by Donald Trump to “adjourn” the House and Senate, and explains why a) you shouldn’t be scared and b) he’s unlikely to do it. This is a stunt designed to distract us from how badly Trump has handled COVID-19; we recognize we’re sort of falling for it, so we’re bringing you a deep dive on appointments and good news as well!

We begin, however, with that good news, including an update on the HUGE VICTORY for the forces of democracy in Wisconsin in the aftermath of the Supreme Court’s shameful decision that we discussed in Episode 376. And, to pile on, we talk about good news in all of the abortion cases, even those in Texas!

After that, it’s time for the main segment breaking down whether Trump can adjourn the House and Senate (probably), whether he will (almost certainly not), and why not (because there’s not much to be gained and a ton to risk). Along the way, we’ll do a deep dive into NLRB v. Noel Canning, a 2014 Supreme Court decision that constrains Presidential “recess appointments” — which is what Trump would presumably adjourn the Senate to do.

Then it’s time for a brand new #T3BE about an aunt who changes her mind about selling her business to her niece. Can she be sued? Listen and find out! And, as always, if you want to play along on social media just share out this episode along with your answer!

Appearances

None! If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com.

Show Notes & Links

Here’s Trump’s threat to adjourn Congress.
We begin with an analysis of the Senate’s rules on advice-and-consent in approving Presidential appointments.
You’ll want to read NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).
Finally, here’s the Tweet by Steve Vladeck with which Andrew disagrees.

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November 26, 2018November 27, 2018

OA230: TOO MUCH MEAT!

Today’s deep-dive Tuesday tackles that viral case caption you’ve probably seen floating around Twitter: “United States v. 1,855.6 pounds of American Paddlefish Meat.” Is the sack of fish meat really going to have to show up in court? Will it have a lawyer??!? Listen and find out!

We begin, however, with a roundup of all the lawsuits filed against Matthew Whitaker, including the most recent one brought by Senators Blumenthal and Hirono. Oh, and we check with an op-ed written by… the Torture Guy? What’s going on here??

The main segment delves into in rem jurisdiction in order to explain the “paddlefish meat” caption. If you like legal minutiae — and let’s be honest, you’re listening to this podcast — you’ll love this segment.

Then, it’s time for a truly great listener question holding Andrew’s feet to the fire on Net Neutrality and the Munsingwear doctrine. It’s not an Andrew Was Wrong, but it is an… Andrew Could Have Explained That Better? Either way, you won’t want to miss it.

Finally, we end with the answer to Thomas Takes The Bar Exam #102 on hearsay. Find out if Thomas’s coin can pass the bar exam! And as always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

Click here to check out Lawfareblog’s clearing house for Whitaker complaints, and click here to read John Yoo’s (surprising) op-ed arguing that Whitaker’s appointment was illegal.
If you want to read the actual meat filing, click here.
Special shout-out to law professor Brian L. Frye for tipping us off to United States v. 43 1/2 Gross Rubber Prophylactics!

Support us on Patreon at: patreon.com/law

Facebook: https://www.facebook.com/openargs/

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com

Download Link

November 21, 2018November 22, 2018

OA229: Andrew Miller & the Appointments Clause

Today’s Thanksgiving Special / Rapid Response episode takes a look at the single most important Yodel Mountain case pending right now: Andrew Miller’s lawsuit before the Court of Appeals for the District of Columbia Circuit. Find out what it all means!

We begin, however, with a brief Andrew Was Right and roundup on the status of the Jim Acosta lawsuit, which has been mooted thanks to the injunctive relief won by CNN (and the White House’s decision to restore Acosta’s credentials).

Then, it’s time for the deep dive into Andrew Miller and his Don Quixote-esque foray into our legal system to challenge Robert Mueller’s authority. Along the way you’ll find out who Andrew’s Shattered Glass doppelganger is, and learn more than you ever thought possible about the U.S. Constitution’s “Appointments Clause.”

Finally, we end with an all new Thomas Takes The Bar Exam #102 on evidence and the admissibility of hearsay. Find out how Thomas outsources the decision and more. And, of course, if you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links