OA266: Auer Deference & Florida Felons

Today’s classic, deep-dive Tuesday takes an in-depth look at two critical issues in the news:  first, the recent effort by the Republican governor and state legislature in Florida to undo the broadly popular Constitutional Amendment passed during the 2018 midterms to restore voting rights to felons who have completed their sentences, and second, the Supreme Court’s next assault on the “administrative state,” this time, by likely ending the doctrine of Auer deference.

We begin with an update about pending oral arguments before the Supreme Court, as well as a notice that this episode was bumped from last Tuesday to make way for our emergency Barr Summary episode.

Then, it’s time for a deep-dive into Florida, the process of citizen-driven ballot initiatives, and exactly what the state legislature intends to do to undermine the will of the public.

After that, it’s time for yet another deep dive, this time into Kisor v. Schulkin, which is currently pending before the Supreme Court, in which the petitioners have asked the Court to flat-out overrule yet another well-established conservative doctrine simply on the grounds that the Federalist Society doesn’t like it.

Then, as always, it’s time for the answer to Thomas Takes The Bar Exam #120 regarding a light touch on the bus.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances
Andrew was recently a guest on Episode 19 of the Glass Box podcast discussing this same subject (but with respect to Utah).  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

  1.  In the pre-show, we discuss gerrymandering, which we last talked about in depth in Episode 251.
  2. We mentioned the Washington Post story about the DC City council overturning the $15/hr minimum wage initiative.
  3. This is the text of PCB CRJ 19-03, the Florida bill under consideration.  And here, by the way, is the link to Andrew Gillum’s voter registration initiative, Bring It Home Florida.
  4. We’ve never talked about Auer deference before, but we have discussed Chevron deference at great length, most recently in Episode 136.
  5. You can click here to read Auer v. Robbins, that 9-0 liberal decision authored by noted socialist Antonin Scalia.
  6. Finally, click here to read the underlying CAFC-Opinion in Kisor v. Schulkin.

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OA184: Families at the Border

Today’s Rapid Response Friday helps separate fact from fiction when it comes to the heartwrenching issue of families being separated at the border.  Is the Trump administration to blame?  Did the recent Executive Order fix the problem?  Listen and find out.

First, though, we bring back (almost) everyone’s favorite segment:  Andrew Was Wrong!  Specifically, Andrew was wrong when he predicted back in Episode 83 that Maajid Nawaz didn’t have much of a defamation case against the Southern Poverty Law center, and in Episode 84 that he didn’t have much leverage, either.  Well, both of those predictions looked foolish now that the SPLC has agreed to pay Nawaz $3,375,000 and issue an unconditional apology.

In the main segment, we break down Trump’s EO regarding separating families at the border and requesting a modification to the Flores v. Reno settlement.  It’s bad.  And if it weren’t bad enough, we also discuss the administration’s change in asylum policy.

After that, we discuss the Supreme Court’s recent opinion in Pereira v. Sessions.  Surely that can’t be bad news, too?  (Don’t call us Shirley.)

Finally, we end with an all new Thomas Takes The Bar Exam #81 involving the constitutionality of a state legislature retaliating against two professors for pushing campus speech codes.  Have we piqued your interest yet?  Listen and find out!  And if you’d like to play along , 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!

Recent Appearances

Andrew was recently a guest on the David Pakman Show, with a two-part appearance discussing whether President Trump can be indicted and if so, whether he can pardon himself.  You can watch the video on YouTube.

Show Notes & Links

  1. We first discussed Maajid Nawaz’s legal threats in Episode 83 and Episode 84.  You can read the final Settlement Agreement for yourself as well as check out the SPLC’s apology to Nawaz.
  2. Click here to read the Snopes article conclusively debunking the political claim that this policy was put into place “by Democrats.”
  3. You can read Trump’s recent Executive Order and also check out the original 1997 Flores v. Reno settlement.
  4. The operative laws discussed during the main segment were:  8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1325 (“improper entry by alien”); and, of course, 18 U.S.C. § 46 (“transportation of water hyacinths”).  You can also read the Attorney General’s Interim Decision #3929 on refugees for yourself.
  5. As promised, this is the full list of Class B federal misdemeanors.
  6. We also discussed this Washington Post article on refugees being turned away at the border.
  7. This is the Supreme Court’s recent opinion in Pereira v. Sessions.
  8. Finally, a secret Yodel for you folks who read the show notes:  here’s the link to the news that Michael Cohen’s fired his old lawyers (McDermott, Will & Emery) and hired a new one (Guy Petrillo).  What does this mean?  Only time will tell.

Support us on Patreon at:  patreon.com/law

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Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com



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