This is the transcript of OA307: Apportionment – The Census Fight Is Not Over, which you can listen to here. Special thanks to Heather Loveridge, our transcriptionist!
[Show Introduction]
Thomas: Hello and welcome to Opening Arguments,
this is Episode 307 and I am – apparently, should be terrified, so I’ll
terrified-edly ask, how are you doing, Andrew?
Andrew: I am fantastic, Thomas! But I’m gonna scare the hell out of all of
our listeners, so-
Thomas: Hmm.
Cool. Well, at least we have a
nice fun segment planned for later that I can’t wait to get to.
Andrew: [Laughing]
Me too!
Thomas: It’ll cheer us all up, that’ll be fun,
so we-
Andrew: Hey!
Thomas: -You know, a spoon full of sugar, I
guess. [Laughing]
We are going to be talking about
the census fight – that was definitely all over and done with and we solved it,
so I don’t know why Andrew’s gonna just do some post-mortem, maybe, I
dunno. So, yeah, we’ll see! [Laughing] We’re also gonna talk a little
yodeling! A little bit of yodel on a
Tuesday for ya! Yodeling on a Tuesday afternoon. The McGahn
Suit – I saw this – it was like they tried to get it with one judge and it
didn’t and – I know a lot of right-wing sources are reporting that like it’s
some victory for – who knows? We’ll see,
maybe there’ll be some good news in there.
And then, finally we’ve got a fun little segment planned for later,
Optimist Prime v. Negatron! That’ll be
fun, you’re gonna wanna hear that one!
Okay, are we ready to go? Any announcements?
Andrew: Nope, let’s get to it!
Thomas: Let’s do it!
[Segment Intro – Yodel Mountain]
Thomas: Alright, we’re here for weird Tuesday
yodels, off season! Off season yodeling!
Andrew: [Laughing]
Thomas: There’s not as many cars in Yodel
Mountain Valley, you know it’s easy to get up there, so it’s good, that was
smart of us. Why are we yodeling on this
particular Tuesday?
Andrew: Yeah!
So, as you alluded to in the intro segment, the House Judiciary
Committee lost a motion in the U.S. District Court for the District of Columbia
and I’m here to tell you that – you know, they didn’t lose that, and what it
means. So, here’s that!
The House Judiciary Committee has
filed a number of lawsuits, as we’ve mentioned, and one of the lawsuits that is
currently pending before Chief Judge Barrett Howell, whom we have discussed in
the past, is a lawsuit to unseal the Mueller Grand Jury materials. And just last week when the Judiciary
Committee also sued for Declaratory and Injunctive Relief requiring Don McGhan
to testify, which we’ve covered at some length on the show, they filed that as
a “Related Case” in the U.S. District Court for the District of Columbia, so
they said, “hey look, this is related, and Judge Howell you should take this
case as well.” The counsel for Don
McGhan objected to that, and so Judge Howell had to decide whether she was
going to continue to keep those cases together or whether she was gonna throw
it back into the total – the overall Judge pool, right? And that ruling came out, and there are some
portions of the ruling that right-wing sources have tried to seize on, in
particular Judge Howell said that “the connection between these two cases are
too superficial and too attenuated to address them together” and then she also
points out that Don McGhan is a crucial witness who has a, quote, “unique
position as Whitehouse Counsel, that then raises potential questions of
privilege and immunity.”
I am here to tell you, this is not
a setback and that any source that is saying “ha ha, Jerry Nadler lost in
Court,” is just somebody who is either willfully misrepresenting this or
doesn’t know how to read a Court document.
I think this is almost certainly the correct result.
Thomas: Hmm.
Andrew: And what it does is it bulletproofs
the consideration on appeal. This case,
the McGhan and Hope Hicks requests, arise out of the same transaction, but
other than this all arises out of a generalized impeachment inquiry – and, by
the way, that is the justification that was offered by the House Judiciary
Committee, right? We need this to
ascertain whether we want to impeach the President. That is, under the legal standard, more attenuated, and they probably
should be addressed separately. Now the
question is, to whom is this case going?
And, look, there are Trump appointments on the U.S. Court of Appeals for
the District of Columbia, so, you know, is it going to go to somebody who’s a
Trump-Supporting-Hack? Well, the answer
is: yesterday it was assigned to Judge Ketanji Brown Jackson, a 2013 Obama
appointee.
Thomas: Hmm.
Andrew: Somebody who was a semi-finalist for
the Supreme Court nomination that went to Merrick Garland. She is 48, she is an African-American woman,
she is double-barreled Harvard, she was a year ahead of me at Harvard Law
School and on Law Review, so – I didn’t know her personally. In any sane universe she would be on the D.C.
Circuit by now, she’s incredibly bright, incredibly ambitious, and I have no
doubts whatsoever that she’s gonna rule fairly on the question of whether
McGhan can be compelled to testify. And,
by the way, it is correct – I mean, we said this on the show – the fact that
McGhan was Whitehouse Counsel does indeed put him in a different position with
respect to being able to assert certain kinds of privilege, than Hope Hicks,
who was just communications director. So
that’s all correct, and I’m not troubled by this at all, and there you go.
Thomas: So, when Fox News is reporting it as
“the latest impeachment gambit backfires for the Democrats” that’s… not
accurate.
Andrew: Yeah.
That is not.
Thomas: Would it be fair to say there’s some
“spin” in the “no spin zone” happening?
Andrew: [Laughing]
Thomas: Perhaps?
Andrew: [Laughing]
I mean – if you think that McGhan’s got a better shot with a 48-year-old
solidly liberal African-American woman than he does with the 70-year-old white
Chief Justice? You know, who knows? But-
Thomas: But, to be fair, they did try to make
this happen and it didn’t, so-
Andrew: Right.
Thomas: Yeah, so did they?
Andrew: Yeah, well, look, because “bird in the
hand” right? Judge Barrett Howell is a
very, very well respected judge, not a Trump hack, somebody you knew was gonna
be fair.
Thomas: Okay, so they just didn’t want to roll
the dice?
Andrew: Right.
Thomas: They’re like, “look, we’re fine with
where we are, let’s not risk it” and then we, for once! [Laughs] The universe smiled on us! And was like –
Andrew: [Laughs]
Yeah!
Thomas: We rolled a better – I was gonna say
“hand” but you don’t really roll a hand…
Andrew: Yeah, we rolled a 7!
Thomas: [Laughs]
Yeah!
Andrew: That’s the way it goes.
Thomas: Okay!
Well, good stuff! Alright, we’re
setting us up for the fall later. [Laughs]
[Segment Intro]
Thomas: Now that we took just a little hike up
Yodel Mountain – just a brief one – Andrew… [Deep Sigh] give us the bad news.
Why should we be terrified? I
thought this census thing was over? You
promised me. And, actually, for the
record, was this any of our predictions?
Did I predict that this would somehow keep going? If so I wanna – at least – be right. That’s my one… condolence, I guess, I dunno
what you would say. Tell us what’s going
on.
Andrew: So here’s what’s going on with the
census and what you need to know, what I believe is being planned. First, a little bit of background. Just, in a fair counting on the census – we
know Republicans want an unfair counting – in a fair counting on the census,
I’m just taking this from Wikipedia, multiple forecasters have kinda looked at
the demographic shifts and have estimated where seats are going to change as a
result of the 2020 census. Those
estimations, the way I break them down, involve a shift of Blue states losing
five seats, Blue-leaning battleground states (and by that I mean Michigan and
Pennsylvania) losing two seats. So
that’s seven (7) seats that will then be transferred away – five to Red-leaning
battleground states and two to deep red states.
So, that’s the map. It’s a
fourteen (14) point swing in the electoral college in favor, in a rightward
direction. That’s what we’re looking at
just as a result of a fair count in the census.
And, by the way, that
comes from retirees moving south, right?
Florida’s likely to gain two seats, Texas three seats. So, that’s a lot right there. Of course, just taking advantage of
demographic trends is not enough for Republicans. They would also like to alter the count so
that they can take even more advantage.
So, for example (and we’re gonna come back to this) Alabama is one of
the states that’s projected to lose a seat because population growth in Alabama
has lagged behind the rest of the nation over the last 10 years, for reasons we
don’t’ have to speculate on, on this show.
So, I thought it might be useful to take a look at – and this is really
how this started out – I looked at the last time we had a significant
battle over states losing congressional districts as a result of the census and
it takes us back to the House eon days of 1992 and a case called Franklin
v. Massachusetts and that case was kind of a microcosm of where we are
now. We had Republicans in power in the
1990 census who were looking for a partisan advantage in how the population was
counted and in that case they found it in the personage of “Federal employees
including those who were serving in the military who were serving overseas at
the time of the census”, right? So, for
most of the 20th century, if you weren’t in the Country at the time
of the census you just didn’t count.
Thomas: Hmm.
Andrew: But, in 1970, thanks to friend of the
show Richard Nixon –
Thomas: Yeah!
Andrew: Yeah!
Thomas: Is he a Patron, or, I think he is …
Andrew: Yeah! [Laughing] Richard Nixon’s head is a Patron!
Thomas: [Laughing]
[Nixon Impersonation: I love your
show!] Yeah, no, that’s not good, I gotta work on it!
Andrew: [Laughing]
That wasn’t terrible!
Thomas: [Nixon
Impersonation: Raawr] you gotta do,
like, the … [Nixon Impersonation: I
love your show!]
Andrew: [Laughing]
Thomas: Yeah! That’s better!
Andrew: Yeah, the jowl-ey–
Thomas: [Nixon
Impersonation: I’m gonna catch Konrad Michaels!]
Andrew: [Hearty
Laughter] Nice!! So, but seriously,
in 1970 at the height of the Vietnam War the idea that, oh well you don’t count
as being in this country ‘cuz you’re dying in Vietnam-
Thomas: Yeah.
Andrew: That was bridge too far for Richard
Nixon, right? So he ordered that the
Commerce Department, that the department of the census, count soldiers by their
home state of record.
Thomas: Huh, seems fair to me, right? I mean-
Andrew: Totally seems fair!
Thomas: I agree with Richard Nixon, everybody!
Andrew: [Laughs]
As it turns out, that was a complete and total scam!
Thomas: Oh.
Andrew: Because-
Thomas: I don’t agree with– [Laughs]
Andrew: [Laughing]
I can’t tell-
Thomas: Let me retract my previous-
Andrew: I can’t tell from the previous record
whether it was an intentional scam or just turned out this way, but here’s what
happened. So the person – when you
entered into the military you get to declare your “home state of record” and
you just pick it, right? And so what
they determined, after allocating this back to the states in 1970, was that
military personnel were disproportionately – because they got shuffled all
around – it was an institutional preference in the military to pick and
designate as your home state of record a state that had no income tax.
Thomas: Ooh.
Okay.
Andrew: Right?
Because then the government wouldn’t withhold state income tax,
accruing, while you were in the military.
Even though that didn’t – as it turns out – your actual tax liability
was not a function of your home state of record, but this is one of those urban
legends that just permeated throughout-
Thomas: Oh yeah! So they still ended up having to pay the
taxes?
Andrew: Yes.
Thomas: Okay – this happened – when I was
payroll manager this kind of crap, all the time, would be like, “Ooh I heard
you can change your exemptions to like 20 million and I wanna do that” and I’d
have to go along with it be, like “you’re just gonna pay this back, man… sooo…
okay, fine, I’ll change your exemptions to 11 on your whatever, W – I don’t
remember anymore, okay, fine.”
Andrew: [Laughs]
Yeah!
Thomas: So it’s like that, where people are
trying to game it but it doesn’t work.
Andrew: That’s exactly right.
Thomas: Okay.
Andrew: But as a result that means that
everybody realized that the counts were sort of wildly inaccurate and so on the
1980 census they took that back off, and they were like, “okay, that was
stupid, our bad, let’s not do that again.”
The 1980 census, of course, the administration of which was under the
Democratic president, Jimmy Carter. Just
in case you’re looking to allocate political blame.
Thomas: Sure.
Andrew: You could say that. Right?
It would surprise me if the Carter administration was not aware of the
fact that taking that off would have a potential benefit to Blue states,
although the map was very different back then, too. But, in any event, by 1990 the political map looks
a lot closer to what it does now, and Republicans decided to revisit the motion
of counting soldiers by their home state of record because, Republicans,
right? And, in fact, they did that. They changed the rules back, they counted
U.S. federal government employees serving overseas including servicemembers and
as a result Massachusetts lost a seat.
Thomas: Hmm.
Andrew: They went down from eleven to ten.
Thomas: You know, I’ll be honest though, it
seams reasonable to me. It doesn’t seem
like Constitutional Hardball to be counting people who do live there, am I
wrong? What do you think?
Andrew: I don’t think you’re wrong! So, Massachusetts sued to get their seat back
and they lost in the Supreme Court on a fractured, but 9-0 decision. So this is one of these that has a bunch of
concurrences –
Thomas: Right.
Andrew: But no dissents. So, put a pin in that for now. And let me talk about the current lawsuit
which is pending in the U.S. District Court for the Northern District Court of
Alabama, and has been brought by Republican Congressman Mo Brooks (Morris
Brooks Jr.) against the Department of Commerce Wilbur Ross in his official
capacity as Secretary of Commerce and the bureau of the census and the director
of the census. Alabama and Mo have sued
the Department of Commerce and the census to say that including illegal aliens
in the census count will cost Alabama a congressional seat, and therefore an
electoral vote, and their argument is that the framers did not intend for
aliens to be part of the enumeration and so counting aliens as, quote, “persons
in each state violates the administrative procedures act and the constitution.”
Thomas: But they so clearly did intend, to,
right?
Andrew: Yeah!! This argument is crazy! This is bananas in pajamas level insane. But we just had a motion – well, we had two
weird developments. First, the
government moved to dismiss on the lack of standing and, secondly, groups moved
to intervene on behalf of the Defendants in this case, specifically two groups
– one, a group of voters in California, Florida, Arizona, and Texas along with
a Latino Voting Rights group, and the second bucket of intervenor defendants
were the City of San Jose, California, and the counties of Santa Clara,
California and King County, Washington.
The individuals are there as members of states that stand to gain
electoral votes and congressional districts as a result of the census and the
municipalities are in there as representatives as municipalities with large
populations of undocumented persons. So,
on face, I don’t know if, objectively, you need to allow these folks to
intervene in the case. In the
governments position, and Mo Brooks – the government’s position is “we take no
positon.”
Thomas: Hmm.
Andrew: But the State of Alabama, and Mo
Brooks’ position was, let them be amicus, right? Let them submit amicus briefs-
Thomas: Is that like “let them eat cake?” Is that? [Laughs]
Andrew: [Laughing]
Thomas: Let them be Amicus!
Andrew: Remember the difference, right?
Thomas: Yeah, you’re not actually part of the
thing.
Andrew: Yeah.
Thomas: But it is kinda like “let them eat
cake!” [Laughs]
Andrew: [Laughs]
Yeah, wait, I guess! [Laughs]
Thomas: Yeah!
Andrew: He says, look, if they have an
interesting position they can raise it in Amicus Briefs, but, you know, the government
can adequately defend their interests.
And the government said, “yeah, well, it’s up to you.” And I want to explain that I have never seen
this before, okay, I’ve only been practicing law for 22 & ½ years, but
literally I have never seen this, I’m going to link it in the show notes.
Thomas: Let’s cliffhanger that and take a
quick beak.
[Advertisement Break: brooklinen.com get 10%
off and free shipping when you use promo code OA]
Thomas: Alright, we’re all on edge, Andrew,
what have you never seen before that Mr. Court did?
Andrew: So!
In the Court’s adjudication of the Motion to Intervene, this is Judge R.
David Proctor, U.S. District Judge for the Northern District of Alabama, he
says, you know, “I think that the Court is going to benefit from having these
voices. The defenses that the proposed
Defendant intervenors intend to submit share identical questions of fact and
law with the main action, and so they are entitled to a secondary voice in the
action in order to protect their specific interests.” Okay!
I’ve seen language like that before.
The footnote supporting that says, and I’m gonna read this directly,
“the decision to permit intervention in this case is particularly significant
in light of Defendants” (that’s the government, that’s the Commerce Department
and the Department of the Cencus) “rather halfhearted motion to dismiss for
lack of jurisdiction. This Court is
concerned that Defendants have overlooked a key argument as to why plaintiffs
lack Article 3 Standing, allowing intervention or increase the prospect that
the Court will be more fully informed of the best arguments that support
Defendants position.”
Thomas: Hmm?
Andrew: I don’t think I gave enough of how
shocking that is.
Thomas: I don’t really understand that.
Andrew: [Laughing]
Yeah.
Thomas: Break it down for me?
Andrew: Yean, so that is the Court saying “you
know, maybe I shouldn’t allow these parties to intervene here because their
interests overlap 100% with the interests of the government.” But the government has done the worst job-
Thomas: Oh!
Andrew: -in this case that I could possibly
imagine!
Thomas: Wow!
Andrew: They have, quote, “rather
half-heartedly” (endquote)
Thomas: [Laughing]
Wow!
Andrew: “Moved to dismiss their motion to
dismiss” and, again, omits the best argument you could make, and, by the
way, it’s this argument right here, and then-
Thomas: And so! … Go ahead, sorry-
Andrew: it says, “if I allow these parties to
intervene” and, again, let me read the exact words, “ the court will be more
fully informed of the best arguments that support Defendants position” (end of
quote).
Thomas: Is it the job of Mr. Court to, like,
help the government? In this way? This is … This is like the WWE (or whatever
it is nowadays, is it “F”? “E”? I can’t remember)
Andrew: [Laughs]
It is “E”!
Thomas: And then, it’s like the tag team
thing, where they’re like “well, Mr. Undertaker, you were just gonna be an
amicus” (whatever) “wrestler, but the current wrestler in there is terrible.”
The government’s like… or the referee is like helping them tag in! He’s like, “you need to tag in, no stop
everything, let’s bring the undertaker in”
Was that all … good? I don’t
watch wrestling, was that all accurate?
Andrew: [Laughs]
Thomas: -a good comparison?
Andrew: Well, there are two ways to read
this. You can read this as sort of
dogpiling in favor of the government, but remember that the underlying supposition
that’s being made here is one that we have dismissed as crazy conspiracy theory
in other cases, right? So you remember
the dual-severance doctrine case, right?
Where everybody was saying, “oh we’re gonna get Brett Kavanaugh”-
Thomas: -This?
Yeah, yeah.
Andrew: Yeah, and the reason is because
they’re gonna overturn dual sovereigns and then Donald Trump will be safe and
we pointed out, the Government was arguing the other side of the dual
sovereigns case, right?
Thomas: Mm-Hmm (agreement)
Andrew: Here, Alabama is arguing that the
census department needs to not count illegal aliens. The supposition that this judge has made is,
the government isn’t really fighting that that hard. The government’s kinda like “oh no, we should
. count . everyone . there . are . lots . of . good reasons.” And that they’re,
to continue your wrestling analogy, that they’re getting ready to, you know,
theatrically take a dive and, you know, recoil in horror when the guy lands
five feet away from them on the springy mat.
Thomas: [Laughs]
Andrew: And so, to ensure that there’s
somebody in this case that actually cares about conducting an actual
enumeration of the census – ‘cuz we can’t trust the Department of the Census to
do that –
Thomas: [Laughing]
Oh, wow!
Andrew: We’re going to bring in these
additional municipalities and outside interests. That’s why I say I have never seen a Court
say, in a case in which – I mean, right, because the lawyers here – this is why
the Court threw that inference, right? – I have seen courts when you have
people who are represented pro se, Courts all the time will step in and go,
“Okay, Mr. Smith, wouldn’t you really” – and they’re kind of nodding up and
down at you, “wouldn’t you really rather move to dismiss right here?” Right?! [Laughing]
and the Court will guide you if it thinks you don’t’ know the law. And in cases where the lawyer is bad,
sometimes the Court will jump in and go, “are you sure that’s the objection you
want, counselor?”
Thomas: [Laughing]
Andrew: And I’ve heard that! But I’ve never seen a Court say, “well, these
are career Department of Justice attorneys, these are smart lawyers who know
what they’re doing, their failure to include the best argument for their brief
suggests that they don’t care about winning this case.”
Thomas: Mm-hmm.
Andrew: “- and we’re gonna get somebody in who
does care about winning the case.”
Thomas: By the way!
Andrew: Yeah!
Thomas: How must they feel right now? Where they’re so bad that the judge is, like, trying to help them out? Just – you know, like – what if they actually
think they are giving the best argument?
Andrew: [Laughs]
Thomas: Why wouldn’t they?
Andrew: Well, they wouldn’t be if what they
want is to lose and to be ordered to exclude.
Thomas: Oh!
So they actually, ‘cuz this is a whole mess that really you shouldn’t
do, so you think there’s some conscience there?
Andrew: I dunno. I don’t know on that. But I do know, that’s what the Court did in
terms of permitting intervention and just a few weeks ago the Court ruled on
the Motion to Dismiss and held, very clearly, that without addressing the
merits that if the allegations are what Alabama says, that they can sue the
Department of Commerce, so they denied the Motion to Dismiss, they allowed
Alabama’s Moe Brookes’ lawsuit to go forward.
Here’s what we know since then,
and I’m gonna bring together a couple of different things and then we’re gonna
go back to that Franklin case. So, on
the day on which we did an “Andrew Was Wrong” that was, “Donald Trump and Bill
Barr headed to the Rose Garden to Talk About The Citizenship Questions” and I said,
well obviously they’re gonna try and do some kind of appeal or new lawsuit or
new executive order, or something, right!
And instead, they wen to the Rose Garden and said, “okay, we give up,
the census will be printed without the citizenship question on it” but Trump
promulgated an Executive Order that same day ordering other governmental
departments to collect data on illegal immigration and, when asked at that
White House press conference, Trump said the very phrase “we need to know
citizenship for a lot of things,” and the very first word that left his lips
was “apportionment.”
Thomas: Hmm.
Andrew: Setting out the congressional
districts. Bill Barr agreed and, here, I
have a direct quote (I couldn’t get a direct quote from Donald Trump because
[insert your own reason here]
) but, Bill Barr said, for example, “there is a
current dispute over whether illegal aliens can be included for apportionment
purposes. Depending on the resolution of
that dispute, this data may be relevant to those considerations, we will be
studying this issue.” (End of quote).
That is referring to this lawsuit.
Now, add to that, last month representative Ayanna Pressley, Democrat
from Massachusetts, pressured the Deputy Director of the Census about the
executive order, and what Pressley said was, “can you confirm for us today that
the citizenship data collected pursuant to the executive order will not be used
in the bureaus apportionment counts?”
and the witness said “I don’t have any answer, I don’t’ have any belief,
I just need to know the mechanics.”
Which is not answer t to the question.
He said “I will give you a written answer within ten (10) days”. Sixteen days latter [Laughs]
Thomas: [Laughs]
Andrew: -the census bureau provided a reply
that said, “ the issue you’ve asked about is currently in litigation and we do
not comment on ongoing litigation, but the census bureau will fulfill its constitutional
mandate to conduct a complete and
accurate 2020 census and enumerate all persons living in the United State of
American.”
Now, that is a
non-answer because this lawsuit says “persons living in the United States of
American should not include illegal aliens.”
It absolutely preserves the right to take that position. So, you may be thinking, we’re going to fight
about the Department of Commerce artificially reducing the census in order to
produce its numbers after it tallies. I
don’t think that we’re going to have that fight. I think we’re going to have a way worse
fight.
Thomas: Oh, cool!
Andrew: Yeah.
And for that … Some people have already – the Pressley thing has gotten
some press, there have been some articles, there’s an NPR article I’m gonna
link in the show notes, nobody has gone back to the Franklin case to
kind of put this together and so I did!
So here’s what happens when there are two relevant laws with respect to
apportionment. One is 13 U.S.C. §
141. That, by the way, is what the
lawsuit that went all the way up to the Supreme Court that resulted in our
narrow victory was over, how the Department of Commerce is to conduct the
census, and we got relief, we can continue to get relief, the Department of the
Census will not be ordered to weight the census data so as to exclude illegal
aliens, they won’t. That position is
“Bananas in Pajamas” level crazy, it has zero chance of this judge ordering it
as a matter of law. So the Department of
Commerce is going to prepare, subject to whatever bad actors are there, and
accurate count reflecting the census, but then there’s what happens next, and
this is a question no one has asked. The
laws is 2 U.S.C. § 2 and, as you might think about from – it’s book number two.
Thomas: Hmm.
Andrew: This law goes back to the 18th
century. It’s been amended a couple of
times. And it says, subsection “a” says
“on the first day, or within one week thereafter of the first regular session
of …” and then there’s the, you know, “the 82nd Congress and each
5th Congress thereafter,” and all of that is just a way of saying we
do the census every ten years.
Thomas: Right, yeah.
Andrew: So the calculation will be the 117th
Congress, so we can just insert that in brackets. So, within one week of the first regular
session of the 117th Congress, the president shall transmit to the
Congress a statement showing the whole number of persons in each state
excluding Indians not taxed as ascertained under the 17th and each
subsequent decennial census of the population, and the number of representatives
to which each state would be entitled to under an apportionment of the then
existing number of representatives by the method known as the method of equal
proportions, no state to receive less than one member. Let’s parse that out. The 117th Congress will convene on
January 3rd, 2021. Donald
Trump will not leave office until January 20th, 2021-
Thomas: Ah.
Andrew: -even if he loses. So even if Elizabeth Warren is president
elect, right? Even if Trump loses in
2020 it is Donald Trump who, quote, “shall transmit to the Congress” (end of
quote) the results of the census, which are directed to then be, quote, “as
ascertained under the census.”
Thomas: Oh.
Andrew: So then the question is, what does
that mean? And what it means is – this
is subsection “b” – as soon as the President transmits the statement each state
shall then be entitled to the number of representatives shown on that
statement, and then there are provisions within b and c that says, “well if
they have more they apportion more this way, if they have fewer they apportion
fewer in this way” according, basically, to state law. So now I wanna talk about the kind of
nightmare scenario that I would have Laughed about in 2017.
Thomas: [Groans]
Andrew: I think you know where I’m going. Suppose the census transmits an accurate
count to the Whitehouse and then Donald Trump on January 3rd, 2021
decides as an “F You” on his way out to base the calculations on citizenship
data and not actual data, what can we do?
Thomas: Well, the first thing that comes to my
mind is, if he can do that why stop there?
Can’t he just get rid of all the representatives from Blue States? [Chuckles]
Andrew: That is the right answer. So, you’ve actually seized upon the correct
answer because at the extremes, we know there are things the President can’t do,
he couldn’t come out and say–
Thomas: [Laughing]
Hold on! Do we? Do we know that?!
Andrew: [Laughs]
Thomas: How do we know that?!
Andrew: I feel very confident that the Supreme
Court would strike down, for reasons that I’m about to explain, if the
President came out and said, “as a result of the next census, Alabama has 400
congressional-
Thomas: Yeah.
Andrew: -or 387 congressional districts, and
every other state gets 1.” If he were to say that I think that that would rise
to the level that I’m about to explain from the Franklin case. So our task –
we have a bunch of different tasks here – but our task is to know and to
demonstrate that when the President comes out with an alternative calculation
on January 3rd, 2021, that it is the equivalent of doing that.
Thomas: Yeah.
Andrew: That it is an equal violation of
constitutional rights, and we need to start laying the groundwork and building
the record now. And keep in mind that
the results of the apportionment do not take effect until the 2022
Congressional elections, right?
Thomas: Hmm.
Andrew: And they’re subject to state laws, so
one of the things right now that a state can do, that I really think we need to
do is to have, to pass state level laws that say “what we’re gonna do is get a
confirmation of the Presidential statement within 30 days after it is
transmitted to Congress.”
Thomas: [Laughs]
Yeah, smart.
Andrew: And, literally build in and be like,
“We’re not gonna do anything until a grownup takes office.” I think that law would be perfectly
Constitutional.
Thomas: Interesting.
Andrew: It would absolutely pass muster under
rational basis, you’d be like “look, all we just wanna do is – historically the
census has sometimes had errors or double counting or, you know, has revisited
results and we just wanna give him a thirty-day cooling off period to check the
numbers and make sure it’s fine.” I
would encourage us to begin getting those laws on the books in various
states. We could also get that kind of
injunctive relief in the sanctions cases related to the Department of Commerce
that are still pending before the courts in Maryland and in New York and that
relief would then basically prevent the Department of Commerce from
transmitting any citizenship data over to the Whitehouse so that then – because
here’s where the game is gonna be, I’m gonna weave this in with the discussion
of the Franklin case – here’s what the Court said in Franklin – so now we go
back to the case that you said, “seems okay that Massachusetts lost.” As is
often the case, what’s important is not the result but why. So, the Court said “unlike other statutes
that expressly require the President to transmit an agencies report directly to
Congress, this law – 2 U.S.C. § 2(a) – does not.” And then it lists – there are bunch that say
“the President shall transmit a report directly” but this doesn’t do that,
instead it does not expressly require the President to use the data in the
secretaries report, but rather the data from the decennial census. There is no statute forbidding amendment of
the decennial census itself after the secretary submits the report to the
President. Do you need me to read that
again?
Thomas: I – I’m not totally sure – I was
trying to puzzle it out.
Andrew: Yeah.
Thomas: But I don’t know.
Andrew: It says “the President’s transmittal
to the Congress of the number of seats to be apportioned in Congress is not
expressly required to be based upon the Secretary of Commerce’s report.”
Thomas: Okay, that’s what I thought you
said. Why would it be that way?
Andrew: Yeah.
Because 1793-
Thomas: So did the Constitution want … ?
Yeah.
Andrew: Seriously, because no one ever thought
that we would have a criminally insane gameshow host as President who would
take the census numbers and then manipulate them to –
Thomas: I don’t know, is that so hard to
believe even back then, though? I mean,
that’s weird.
Andrew: All I know is that is a fair reading
of the wording of the statute. This is
not a hack writing a memo.
Thomas: Yeah.
Andrew: This is a unanimous opinion of the
Supreme Court of the United States.
There is no statute that prevents amending the census itself even after
the Secretary transmits his report.
Thomas: Hmm.
Andrew: So what that means is – and again, I’m
gonna read more from the opinion – “it is not until the President submits the
information to Congress that the target stops moving because only then are the states entitled by that
second section to a particular number of representatives.” Then there’s a little bit of legislative
history, apparently Congress originally considered as part of this requiring
the Secretary to report the apportionment calculation directly to Congress and
instead they said, “no no no no, we want Commerce to go to the President to
then go to Congress.” So, again,
legislative history very, very clear that this is the right reading of the
statute. Here’s the truly terrifying
part. As enacted, section 2(a) provides
that the Secretary cannot act alone, she sends her results to the President who
makes the calculation, sends the final apportionment to Congress, that the
final act is that of the President is important to the integrity of the process
and bolsters our conclusion that his duties – that is the President’s duties –
are not merely ceremonial or ministerial.
That sentence does not seem ominous to a non-lawyer.
Thomas: No, I get it. So it’s not just that he’s like presenting –
he’s wrapping up the census report and putting a li’l bow on it and delivering
it, it’s that he substantively can affect it and change what’s going in.
Andrew: Right!
And even though presidents never have, saying that it is not ministerial
has two important – it means exactly what you’ve said it does – and it has two
important implications for the law.
Number one, it means that the Administrative Procedure Act does not
apply to the President, so the standard that was articulated in the Ross Decision with respect to the use of
the citizenship question, does not apply to the President. There is no requirement that he engage in
reasonable fact finding. And, second,
because it is not ministerial, because there is the use of some discretion
involved, that means you can’t get mandamus.
You can’t require – right?
Thomas: Hmm.
Andrew: Like, when the President “shall” do a
thing-
Thomas: Yeah.
Andrew: -over which he has no discretion, then
you can say you could get a writ of mandamus.
You could say, “look, you’ve got the numbers, you must report these
numbers on the basis of the numbers and not change or add them” and the Supreme
Court, twenty-seven years ago, said “no that lawsuit is going to fail.” It gets worse.
Thomas: Alright, well I think we should pause
here and then you can tell us how worse-er it gets worse.
[Advertisement – forhims.com/oa to get a
trial month for $5.00]
Thomas: Alright, once again we’re waiting to
hear the disappointment. How does it get
worse, Andrew?
Andrew: So although the President – so we just
ascertained in the last segment that if the President manipulates the census
findings that is not subject to an
APA challenge. Now, the Supreme Court
notes “it may still be reviewed for Constitutionality.” So, in other words, what stops the President
from doing the “Alabama gets 390 Congressional seats” is the fact that that
would be blatantly non-constitutional.
The question is, A, whether this Supreme Court would hold that making
the apportionment decision on the basis of citizenship is unconstitutional and
(we’ll talk about that in a minute) and B, whether there’s anything we can do
about it.
Thomas: [Sighs]
Andrew: Let me explain, this is the question
of reviewability. I’m gonna read a
little bit more from the Franklin
decision. That Supreme Court overturned
the District Court’s opinion, and the District Court awarded Massachusetts the
relief, right? It said, “yeah, you know
what? They definitely shouldn’t have
done this thing with the soldiers, Massachusetts should have an additional
Congressional seat and we enjoin the President to re-issue his transmittal to
Congress based on the actual numbers and give Massachusetts back its
Congressional seat.” Here’s what the Supreme
Court said to that: “the District Court’s
grant of injunctive relief against the President himself is extraordinary and
should have raised judicial eyebrows” [Chuckles]
Thomas: [Laughs]
You got a pair of judicial eyebrows, Andrew?
You put ‘em on when you’re-
Andrew: [Laughs]
Bill Barr has some impressively bushy eyebrows, but-
Thomas: But are they judicial?
Andrew: Yeah, no! [Laughs] They’re criminal!
Thomas: [Laughs]
Andrew: We’ve left open the question of
whether the President might be subject to a judicial injunction requiring the
performance of a purely ministerial duty.
So, okay, maybe if this were just a ministerial thing you could get an
injunction, right? “And we have held
that a President may be subject to a subpoena to provide information relevant
to an ongoing criminal prosecution” and this was before Clinton v. Jones but if this case were to come up today they would
add “and we’ve held that a President may be compelled to sit for a civil
deposition for conduct unrelated to the performance of his office” so you could
bracket and insert that, that’s all true.
But, this is also true, “this Court has no jurisdiction of a bill to
enjoin the President in the performance of his official duties. At the threshold, the District Court should
have evaluated whether injunctive relief against the President was available
and, if not, whether appellees injuries were nonetheless redressable.” So here’s what that means. I think it will be very, very difficult-to-impossible
to get injunctive relief preventing the President from altering the results of
the census in his apportionment statement.
Now, this does not mean that we should not do that, right? We absolutely
should wage that fight, but I think it is very, very likely that we will not be
able to stop it, that any lawsuit to enjoin the President from doing so – and
there are none right now – I’m going to talk to lawyers when this episode is
over, I’m going to talk to some public interest groups because I think we need
to bring this lawsuit – but I think, ultimately, it is a doomed lawsuit based
on the language from Franklin. I think the President will be able to convey his apportionment to the Congress in the last
week and a half of his Presidency, and then we will be stuck in litigation
for years trying to undo that damage and the standard will be “did that
transmittal violate the Constitution?”
Not “was it not based on appropriate evidence.” Did it violate constitutional rights? And this past Supreme Court has not been
super keen on your individual rights to a vote.
Thomas: Obviously. But I guess I don’t understand – how in the
world would you find the line between “well, clearly giving Alabama every
single seat violates the Constitution” but doing this other thing that’s based
on nothing doesn’t violate?
Andrew: So that’s why – that’s the exact right
question and here’s the answer: Section
2(a), 2 U.S.C. § 2(a) says that the President –
Thomas: You can do a certain amount of crime
and it’s fine.
Andrew: [Laughs]
Thomas: Just not too much.
Andrew: Not quite! It says “the President shall transmit a
statement showing the whole number of persons in each state as ascertained under the census.” That’s the relevant language. So the question is, what counts as “as
ascertained under the census.”
Thomas: Well, I would think it would be
whatever was ascertained under the census but that’s just my non-lawyer brain.
Andrew: But what Trump’s lawyers are going to
say is “well if it’s just the number than this is a ministerial exercise” the
Supreme Court precedent is very, very clear that there is play in the joints
and that you can ascertain – that you can know something – but the statement
that you put together, as long as it is rationally based on those numbers, and
this is rationally based on those numbers, it’s just those numbers with an
adjustment.
Thomas: Well, yeah, also my Alabama plan is,
too! See, it’s rationally based on those
numbers but we rationally subtract all the representatives from every state
that’s not Alabama.
Andrew: [Chuckles]
Thomas: No, I’m not – seriously! Like, what’s the difference in logic
there? Just because it’s a “little
bit”? Like, you’re allowed to screw
people a little.
Andrew: So the answer is, there is no case law
as to what “ascertained” under 2 U.S.C. § 2(a) means, right? Because the last time this came up the
controlling law on this point involved, not a correction to the Presidential
statement, involved a President who accurately transmitted the data that was
transmitted to him by the Department of Commerce and by the census. So what the Supreme Court was looking at was,
is a statement against – is injunctive relief against the Department of
Commerce sufficient to provide the kind of relief that you need? And the pending lawsuit in Alabama isonly
against the Department of Commerce. It
all avoided the Trump problem because nobody thought about there being a
disconnect between the information transmitted to the President and the
President’s transmission back to the Congress.
Thomas: I didn’t understand that. All I heard was “you can get away with a
little bit of crime and it’s fine.” I
seriously don’t understand it.
Andrew: So it’s a question of to whom the relief is awarded. So the Supreme Court has said “you can get an
injunction against the Department of Commerce” but they have effectively said “you can’t get that injunction” or,
at least –
Thomas: Against the President?
Andrew: – it raises judicial eyebrows, against
the President. So the problem is that
there is nothing on that disconnect between handing over the data from Commerce
to the President and the President turning around and making the statement to
Congress.
Thomas: [Sighs]
Yup!
Andrew: There’s no law! It’s a black box!
Thomas: I get it. And I don’t mean to take out my ire on you, I
think – yeah, what you’re saying and how you’re presenting it seems like the
right analysis, I’m just frustrated that that would – honestly it should just
be ministerial! Like, it sounds like
that’s what it should be. What else would be the point of the whole
thing, you know?
Andrew: It absolutely should be ministerial.
Thomas: Or if you weren’t going to make that
be ministerial, as in if you were going to intend for the President to have
some hand in it, you better make explicit what that is and what the limits of
it are! That seems like something our
“genius founding fathers who knew everything” should have done? Right?
Or maybe people in the 18th Century who, uh, owned humans as
slaves maybe didn’t know every single possible correct thing to put in our
founding documents is that, it could maybe be?
Andrew: Yeah!
And, again, this is not in our founding documents but –
Thomas: But I thought it was based off of the
– so where is that original thing? So
it’s from the law that was written in 17- something, that’s what you’re saying?
Andrew: Yup.
Thomas: Okay, I thought it was from the census
in the consti –
Andrew: 2 U.S.C. § 2
Thomas: Okay.
Andrew: And by the way, we should go back – I
can’t go back and correct the whole thing – I looked down and I guess this is
just because of the way in which tabulation – 2 U.S.C. § 2 was enacted in
1929. So I’ve been saying 17 –
Thomas: Well, so this whole thing.
Andrew: Yeah.
Thomas: Whoops!
Andrew: Well, nevertheless it’s still a
hundred years old.
Thomas: Okay, so that does change some of what
I just said, but that’s –
Andrew: It changes some of what you said and
I’ll buy the – I misled you, I was wrong.
Thomas: Andrew was wrong everybody! Augh, I’m tired of this! You’re so wrong!
Andrew: [Chuckles]
Thomas: Well, this is scary and I predict a
doomsday scenario, what about you?
Andrew: I think it is – I think we need to predict the doomsday
scenario. It is very – look, if I have
figured this out, Bill Barr has figured this out, right?
Thomas: Yeah.
Andrew: We know that they went and they
researched and they came up with stuff and, you know, Franklin is the leading case on this. There are a couple of other cases that I’ve
read that I’m parsing through, we’re gonna continue to talk about this, I am
95% confident that Bill Barr knows about this.
Thomas: Well, and because Bill Barr is a
perfect evil walrus he won’t try to go too far.
Because we would be saved by someone trying to go too far and taking all
of the seats from, you know, Blue states, but just doing it enough might
survive and therefore that’s the way he’ll do it because he’s good at –
Andrew: Because it has to rise to the level of
a Constitutional violation, not just a violation of the APA, that’s what I keep
going back to.
Thomas: Hmm.
Andrew: Remember, we won on the Ross case with respect to the census, we
did not win on the constitutional claim on that, we won on the Administrative
Procedure Act claim, we won that there were insufficient and pretextual reasons
being offered for including the citizenship question on the census, but that in
the abstract it’s perfectly fine to do that.
That will not be the inquiry with respect to what Trump does in January
of 2021. So to put it all together,
here’s what we need to do. Obviously
there’s nothing that we can do if Trump is re-elected.
Thomas: Yeah.
Andrew: That is the highest priority. At the same time, we need to move forward
with legal action challenging, seeking relief that prevents the various
governmental agencies from transmitting data to the President in connection with
apportionment, okay? That won’t stop the
President from doing stuff, right? But
if you can shut off the pipeline that then gives strong evidence to the idea
that what the President will do will not be based on the census data. Remember that’s the key word, is it
“ascertained under the census” right?
And if he doesn’t have additional data then it’s hard to say that it’s
“ascertained under the census.”
Thomas: Hmm.
Andrew: So we need to get relief in that way,
and we need to be talking about this. We
need to be asking questions, we need to be following up on the notion of – what
are you doing with this? You said
“apportionment,” are you planning to use citizenship data to apportion
congressional seats? And build that
record. We have had, again, mixed
success but not zero in terms of building the record where the President – and
the Commerce Clause case is a good example of this. It was, in many ways, the President’s, the
Department of Commerce’s, own words that came back to bite them in the ass in that
case. So we need to be building that
record. And Donald Trump is more than
happy to talk about it!
Thomas: [Sighs]
Andrew: So that’s what’s coming. I, again, hey! This would be the happiest “Andrew Was Wrong”
ever! We get there and it’s just – it’s
a fair calculation by the Department of Commerce and a fair transmittal to
Congress –
Thomas: We’ll see, it could be.
Andrew: – by the outgoing President. It could be!
But, you know…
Thomas: Well, now that we’re all suitably
scared and angered and depressed, it’s time to go to a nice fun segment! Let’s have some fun, everybody! Optimist Prime v. Negatron!
[Segment Intro]
Thomas: Alright, time to have a little fun
because we all know how badly we need it these days! It’s time for Optimist Prime versus
Negatron. Alright, what’s our topic for
debate here today!
Andrew: We could do it as a formal debate
topic, resolved, “The United States Congress Will Impeach Donald Trump”
Thomas: Oooh!
Well, okay! Optimist Prime, you
have the floor!
Andrew: Alright, so, Thomas –
Thomas: Negatron.
Andrew: [Laughs]
Oh, Negatron! [Optimist Prime Voice: It is I, Optimist Prime!] Defender of Freedom and the Rights of All
Sentient Beings and I’m here to tell you that the United States Congress is
moving towards impeachment. Everything
we said in our episode related to the Mueller, to Robert Mueller’s testimony
before the House Judiciary Committee and the House Intelligence Committee, I
think has turned out exactly the way we said it did, right? Which is, okay, this did not necessarily
provide a “gotcha” moment, it didn’t provide a great soundbite, in fact the
only marginally good soundbite was the answer to Ted Lieu’s question, which
Robert Mueller walked back right before his House Intelligence testimony. That being said, I told you at the time,
focus on the underlying dynamics. Focus
on the fact that the House of Representatives got together, they read the
report, they got the testimony from Robert Mueller that enabled them to put
together the specifics of very clear obstruction by this President, so two
weeks ago there were only 107 House Democrats on the record as being
pro-impeachment, and as of this record, I’ll link it in the show notes because
I bet by the time you listen to this it’ll be even more! There are 123 House Democrats that support
impeachment! That is more than half,
that is significant momentum in the right direction. And, let’s be clear, the fact that there are
112 remaining House Democrats who have not signed on, that doesn’t mean that
they oppose impeachment, right? That just means that they’re Nancy Pelosi
levels of non-committal, right? So the
breakdown on that, this is from two weeks ago because nobody else has continued
to move, this is from a Washington Post article, when there were only 107
pro-impeachment that was 121 continue existing investigations and 7 under the
category of “haven’t said/unclear” so that is 0 Democrats who’ve said, “oh,
yeah, well obviously Donald Trump is an upstanding individual and fine human
being and impeachment’s ridiculous.”
Zero are on that! Very few have
said “no comment.” Almost all of those
who are not there yet have said, “I’m not there yet. I want us to continue to gather information,”
and I believe, as we talked about in the introductory segment on this episode,
that the House is going to continue to get information, crucial information,
from folks like Don McGhan and Hope Hicks and I think we’re moving to
impeachment, so, there you go.
Thomas: [Evil
Robot Voice: Is it my turn?]
Andrew: It’s your turn, Mr. Negatron.
Thomas: [Evil
Robot Voice: Evil Laugh That was
so rich! It is I, Negatron, from the
planet – I wanna say … Krypton?]
Andrew: Oh come on! You know it’s Cybertron, it is– [Sighs]
Thomas: [Evil
Robot Voice: Nerd! Nerd alert!! Nerd
alert!! Anyway, Optimist wants to
convince you that we’re going to impeach my personal friend and golf partner,
Donald Trump. This, coming from the
autobot who tried to tell you Bill Barr had “principle” and “dignity”! Ha ha ha
ha ha ha! That’s rich. So, a hundred or so Democrats support
impeachment and therefore it will happen, huh?
You know what else a hundred Democrats support? Universal healthcare and a living wage! You think we’re getting those anytime
soon? Ha ha ha ha ha! You fool! Oh, you absolute fool! Ha ha ha ha!
No, this is all going exactly according to my plan! You see, it was I who made the Mueller report
so long, Bob Mueller was going to make it ten, easy-to-read,
straight-to-the-point, pages! But I
said, “No! Make it at least 400 pages!”
Tell me, Optimist, do you really think any American has read your
precious Mueller report? Americans don’t
read! Ha ha ha ha! Sure, you’ve got a few superstars, your
“Elizabeth Warrens’,” your “Andrew Torrez’s” but no one else really knows what
is in the report. They are perfectly
content to accept what Fox News feeds them.
No obstruction, no collusion, no impeachment. Sure, some Democrats might get there but let
me remind you of another promise your foolish Optimist Prime made to you
rubes! Remember when we thought the
Mueller report was going to sway Republican leaders? Oh ha ha ha!
I can’t even finish, it’s too funny!
It’s too funny! There was exactly
one Republican who dared have a spine!
You know his name? Justin Amash. You know where he is now? He was blasted out of the Republican party in
one of those space rectangles from Superman II!
He and General Zod are caucusing for the independent party now. There’s no resisting Trump as a Republican,
it can’t be done! Ha ha ha ha! Side note, though, those space rectangles are
terrifying for someone like me. A lot of
my friends have gone that way it’s, uh, a recurring nightmare of mine. But anyway, I think you all know impeachment
is never going to happen and that evil will always triumph over good, and above
all else Americans don’t read! Evil Laughter]
Andrew: I think we’re gonna get universal
healthcare and a living wage in 2021 with President Elizabeth Warren! So there you go.
Thomas: [Evil
Robot Voice: Oh, well maybe that’s
when you can impeach Trump. Evil Laughter]
Andrew: So, if we’re done on the debate
segment, Negatron, you guys really play golf together?
Thomas: [Evil
Robot Voice: Yeah, all the
time. Well, I mean, he makes me be the
golf cart but it still counts.]
Andrew: Wait, you mean, he’s sitting on his
large sweaty [clownhorn] on you for 18 holes?
Isn’t that, uh, disgusting?
Thomas: [Evil
Robot Voice: Yeah, well, I mean … Oh I know, it is! Oh, god!
Oh god it’s so gross! What have I
become?! Cut the mics, turn it off!]
[Segment Outro]
Thomas: Alright, well now it is time to thank
our new patrons on patreon.com/law!
[Patron shout outs]
Thomas: Alright, now T3BE, can I get back on
the saddle, get going in a good direction?
Let’s find out what happened!
[Segment Intro]
Andrew: Alright, so this was the dreaded real
property question, but I have to tell you, I think this is the kind of property
question – and maybe it makes it harder that you can sort of piece your way
through-
Thomas: Hmm.
Andrew: -just from common sense –
Thomas: And I still got it wrong, awesome! [Laughs]
Andrew: -trying to do what’s right.
Thomas: Okay, we’ll see.
Andrew: Alright, well, let’s look at it! So what happens? You’ve got the uncle who owns a piece of
property, he tells his nephew, “hey, when I die you get the property.” The nephew, then, is the bad guy in this,
right?
Thomas: Yeah.
Andrew: So, before the uncle’s death he goes
out and finds a woman and says “I own this piece of property and I’ll sell it
to you for $10,000.” The woman, maybe
incautiously, does not conduct a title search of the land, that’s a thing – by
the way, that’s just a thing you pay a third party to do, to go down to the
Court records to see if there are any encumbrances on the property, I guess to
see, apparently, if there’s –
Thomas: If maybe someone else owns… ?
Andrew: -a hobbyist industry of people selling
stuff they don’t own.
Thomas: Yeah.
Andrew: But she didn’t do that. She says, “okay, here’s my ten grand, I get
the deed” and then she went down to the recordation office and recorded the
deed. And, again, you can do that, a
title search would then show that you don’t have good title, but the
recordation office, they’re not gonna stop you.
Thomas: How?
I don’t understand, yeah I just-
Andrew: ‘Cuz they don’t do a search, right?
Thomas: [Sighs]
So then what do they do? [Laughing] They just record anything
anyone wants to do and then later on you’re like “yeah, turns out Thomas
doesn’t own Trump Tower, weird!”
Andrew: [Laughing]
Thomas: “Well, he recorded it, though, so if
there’s any bar questions where you need that, we’re here for you!”
Andrew: [Laughs] I mean, we could go down that rabbit trail,
but I’m not going there now.
Thomas: Okay.
Andrew: So, she goes down, records the deed,
then the uncle finally does die and-
Thomas: Finally!
Andrew: -he does, in fact, do what he’s
promised.
Thomas: [Laughing]
Jeeze! Needless cruelty to the uncle
there, Andrew! He finally died already,
jeeze!
Andrew: And now the question is, who owns the
land? You eliminated B and D, which I
will tell you are two good eliminations.
Thomas: Yeah!
I bet! I bet those are great!
Andrew: Yeah, so B, “the nephew because the
woman did not conduct a title search” um, no, that’s not the requirement here
because what the title search would have shown was that the uncle was the owner
of the property, but his ownership is only relevant to a dispute between the
woman and the uncle, right? It’s not
relevant to the dispute with the nephew.
So her failure to conduct a title search, not relevant here, “the woman,
because she recorded her deed prior to the uncle’s death,” you eliminated that,
that’s, you know, the “you own Trump Tower.”
The woman may be an innocent victim here, but you don’t get a piece of
property just because you’re the innocent victim. So then the question is, you left A and C,
and, again – and you know this, right?
Obviously the answer is C.
Thomas: Of course! Yeah, that’s why I chose A!
Andrew: [Laughing]
Right!
Thomas: [Chuckles]
Andrew: But the reason is, again just sort of
think about it on a merit basis, right?
The nephew’s the guy who’s been the jerk in all this, right?
Thomas: Yeah, but the law doesn’t – isn’t
just, “who’s the jerk they lose,” that’s not how these bar questions –
Andrew: It’s not always! But it is in this case! And when you see-
Thomas: But I – okay, but what I figured was
you would do a separate suit to get back the $10,000 plus, you know, damages or
something. The law could still allow for
that, but I just didn’t think the law would allow for, “someone can sell you
something they don’t own and then if later on they accidentally own it then you
get it” or something. I don’t know.
Andrew: So let’s kind of go through all of this,
right? Whenever you see the word
“estoppel,” although it’s a goofball legal word, it actual – it’s a “true”
cognate. It means “to stop you”! [Laughs] And estoppel typically comes up as
an equitable doctrine, right? So it’s to
stop you from doing a thing that you otherwise legally might be able to
do. Estoppel by deed in this case
applies that when you have a deed that was executed, delivered by a grantor who
had no title to the land at that time but represented that they had title and
thereafter acquired the title, which is precisely the scenario here.
Thomas: That’s what happened, yeah.
Andrew: Now, this scenario is not the scenario
whereby that – that gave rise to this doctrine.
This doctrine came about because – not for, like, scumbags like this nephew
– but came about because for a very, very long time in an era before computers
and in an era before the simplification of U.S. laws, there was genuine
confusion as to who owned a piece of property or what. There would be these complex reversionary interests,
and somebody would say “oh, you know, this is supposed to go back to me on the
anniversary of the seventh year after the death of my third nephew” and they
would think that they owned a piece of property.
Thomas: Mm-hmm.
Andrew: But they really didn’t and they would,
in good faith, sell it and then at some point in between they would acquire
Title to the property and basically all of estoppel by deed is just a “no
takesies backsies,” right?
Thomas: Yeah.
Andrew: It’s like if you thought you conveyed
it, and you didn’t have Title, and then you get Title-
Thomas: [Sighs]
Andrew: -we’re just gonna bridge that
over. You conveyed it, too bad! And that’s what applies here, so…
Thomas: Yeah, no, that makes sense.
Andrew: Sorry!
Thomas: I’m flirtin’ with 50%, I gotta
be. I’m on a bad streak.
Andrew: 54.8%, but only because you were penalized
for the-
Thomas: Impossible question on the live
show!
Andrew: Yeah.
Thomas: That one was really hard!
Andrew: It was not only difficult, but also,
you know, the bright lights?
Thomas: No, look, I gotta be able to perform!
Andrew: I think you should have a mulligan
there.
Thomas: I need to be able to perform my craft
in any circumstances!
Andrew: Well-
Thomas: I’ll take it, I’m just-
Andrew: The biggest stars shine brightly on
the brightest stage, right?
Thomas: Yeah, I thought I nailed that one, I
really did. I was pretty excited about
it because I was like, “Ah! I got this!”
and then you’re like, “no, there’s some stupid weird subpoint to a thing that
says you’re wrong just ‘cuz we don’t like Thomas”
Andrew: [Chuckles]
Thomas: And I was like, “okay.”
Andrew: I will point out, we had an audience
of a hundred people and literally not one person-
Thomas: Got the right answer, yeah!
Andrew: -counting the lawyers and law students
in the audience –
Thomas: Yeah!
Yup, yup!
Andrew: So.
Thomas: Thank you for making me feel better, I
appreciate it.
[Segment Intro]
Andrew: Alright Thomas, this week’s winner has
a strategic tip for you, and that winner is @gangxisiyu who writes “Going with
answer C, it has the most real property nonsense nouns in it so must be
right.” Well, @gangxisiyu,
congratulations, that is correct and maybe it’s good advice for Thomas to take
going forward! So congratulations for
winning this week’s T3BE!
[Segment Outro]
Thomas: Well, I suck at the bar but, who
knows? Maybe it’ll get back to it. Thanks for listening, thanks for pledging
everybody, and I hope you enjoyed a little good cheer in the Optimist Prime
versus Negatron, that was a lot of fun. Thanks
to Negatron for stopping by, I appreciate it, from the planet Krypton.
Andrew: [Chuckles] It’s Cybertron!
Thomas: [Laughs]
And we’ll see you – Andrew will we see them “next” Friday? Or is it?
Andrew: [Laughs]
Thomas: It’ll be this Friday, I guess! We’ll see you this Friday!
Andrew: It’s the same week, it should be this
Friday –
Thomas: Oh, okay.
Andrew: But it’s “next” Tuesday.
Thomas: [Laughing]
Okay, we’ll see you then!
[Show Closing]
