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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OA221: Elections Have Consequences, Florida Edition

Today’s Rapid Response Friday takes us back to a well-worn trope here at OA that we can’t emphasize enough in late October:  elections have consequences!  Specifically, we take a look at the importance of past and future elections in the pivotal swing state of Florida.

We begin, however, with a quick statement on the Trump administration’s apparently-leaked policy regarding trans people and some new developments.

After that, it’s time for the ever-popular Andrew Was Wrong segment, with two things that.. well, Andrew got wrong:  Whitewater and Paul Manafort (!)

Then it’s time for a deep dive into the Florida Judicial Nominating Commission and various constitutional amendments that are on the ballot this November, including one that takes a swipe at our favorite doctrine.

But that’s not all!  We move on to discuss 202 Democratic Presidential Candidate Michael Avenatti.  It’s not pretty.

Finally, we end with an all new Thomas Takes The Bar Exam #99 regarding criminal procedures.  After getting it wrong last week, Thomas needs to go 2-for-2 to get to the coveted “60% at the half” — can he do it?!??  You’ll have to listen and find out!  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

  1. For more on the history  of jury sentencing at the state level, check out this 2011 law review article by Melissa Carrington that’s well worth a read.
  2. Click here to read the Tampa Bay Times article suggesting that the next court nominee is going to be a conservative regardless of the election; here for the official Florida government website describing how the JNC is selected; and here for an in-depth discussion of the history of the changes to that process.
  3. This is Detzner v. Anstead, the Florida Supreme Court decision we discussed regarding bundled amendments, and you can click here to read the text of the proposed Florida amendments.
  4. Click here to read the Grassley referral of Avenatti and Sweatnick to the DOJ.  And we broke down the Avenatti-Frank lawsuit first in OA Episode 181.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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



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OA217: Can Ethics Complaints Take Down Kavanaugh?

Today’s Rapid Response Friday follows up on the State of Florida and… sadly… returns one last time to the story of Brett Kavanaugh and the ethics complaints lodged against him and referred to the Tenth Circuit.  Oh, and we give you real stuff you can do to make a positive difference!  You have to listen!

We begin with a follow-up to Tuesday’s episode where we break some news regarding the Democratic Party’s lawsuit in Florida to extend registration for voting in the 2018 midterms before checking in on the Common Cause/League of Women Voters lawsuit we first discussed on Episode 216.

Then it’s time to tackle the ethics complaints filed against Brett Kavanaugh and referred out by Supreme Court Chief Justice John Roberts to the Court of Appeals for the Tenth Circuit.

Finally, we end with an all new Thomas Takes The Bar Exam #97 regarding the tort of negligent misrepresentation.  Thomas needs to go 4-for-4… can he do it?  You’ll have to listen and find out!  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

Thomas will be at QED in Manchester, UK on Oct. 13 and 14.

Show Notes & Links

This episode is sponsored by Audible!  Go to audible.com/lawpod or text lawpod to 500500 for the 30-day trial and free audiobook!

  1. Click here to read the court’s denial of the TRO filed by the Democratic Party’s in Florida to extend registration for voting in the 2018 midterms.
  2. And click here to read the newly-filed Common Cause/League of Women Voters lawsuit we first discussed on Episode 216.
  3. We first discussed the Code of Judicial Ethics on Episode 193.
  4. This is the Roberts letter referring the Kavanaugh complaints to the Court of Appeals for the Tenth Circuit.
  5. Click here to read the Rules of Judicial Conduct and Judicial Disability, with proposed changes.
  6. The law we discussed is 28 U.S.C. § 351 et seq.
  7. WHAT YOU CAN DO!  Click here to comment on the proposed changes to the Rules of Judicial Conduct and Judicial Disability.
  8. And if you want to apply to work for Fix The Court, check out their notice here.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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



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