OA292: The End of Democracy

Today’s rapid response episode breaks down the latest decisions from the Roberts court, including the ostensible “win” in Dep’t of Commerce v. Ross (the citizenship question case), and the crushing loss in Rucho v. Common Cause (the gerrymandering cases). Oh, and along the way we’ll also discuss the opioid crisis and the news that Robert Mueller will testify before the House Judiciary Committee. It’s going to be a long and wild ride, so strap in!

We begin by taking a quick trip to Yodel Mountain to discuss the significance and substance of the Congressional subpoena issued to Robert Mueller. What does it all mean? Listen and find out!

Then, it’s time to break down the theory and developments in State of Oklahoma v. Purdue Pharma, et al., CJ-2017-816, the case that’s at the forefront of the efforts to hold pharmaceutical companies responsible for their role in causing the opioid crisis in this country. Find out what a “public nuisance” is, whether manufacturing and selling opioids is one, why this case is important, and much, much more!

After all that, it’s time for the main event: breaking down the Supreme Court’s decisions in Ross and Rucho. Find out why Andrew thinks that John Roberts wrote the Ross opinion going the other way until the evidence broke regarding Thomas Hofeller, and how that means the entirety of the new game is: Shame Justice Roberts. (Oh, and also you’ll learn along the way that our democracy is screwed.)

After all that, it’s time for an all-new, all-awesome Thomas Takes The Bar Exam about strict liability and de-fanged venomous snakes. What madness transpires? Listen and find out, and then play along with #TTTBE on social media!

Appearances

Andrew will be a guest at the Mueller She Wrote live show in Philadelphia, PA on July 17, 2019; click that link to buy tickets, and come up and say hi! And remember: if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. You can read the Court’s opinion in Dep’t of Commerce v. Ross (the citizenship question case) as well as Rucho v. Common Cause (the gerrymandering case).
  2. Click here to read the Complaint in State of Oklahoma v. Purdue Pharma, et al., CJ-2017-816.
  3. Finally, you can check out the Los Angeles Times article on Purdue Pharma we referenced on the show as well as click here for more information on the MDL litigation pending before U.S. District Judge Dan Polster.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!





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OA287: Down the Hatch (Act)?

Today’s Rapid Response Friday covers all of the breaking developments this week, including a ruling from the Wisconsin Supreme Court, the latest news out of the House of Representatives, and the Office of Special Counsel’s latest request that Donald Trump should fire Kellyanne Conway for “flagrant” serial violations of the Hatch Act. What does all that mean? Listen and find out!

We begin by revisiting the state of Wisconsin, where Republicans in gerrymandered-safe seats in the state legislature stripped power away from the incoming Democratic Governor and Attorney General. A trial court issued an injunction preventing that law from going into effect, and just two days ago, the state Supreme Court finally ruled on that injunction. How did that go? (You know the drill.)

Then, we move into the main segment, in which we discuss all of the developments related to the census question we last discussed in Episode 286. Learn about one respondent’s petition for limited remand, the White House’s assertion of executive privilege, and then what’s next from the Democratic House.

After all that, it’s time to climb Yodel Mountain. Learn exactly who Lt. Gen. Michael Flynn hired once he fired Covington & Burlington Coat Factory, and what that (probably) means. And then, it’s time to learn allllll about the Hatch Act, and why a loyal Trump supporter thinks it means it’s time to fire Kellyanne Conway.

Then, it’s time for Thomas Takes the Bar Exam. This time, Thomas tackles a tricky question about a government agency that hires a private collector to purchase antiques. Can the state charge sales tax? Listen and find out!

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. We last discussed the census in Episode 286.
2. Click here to read the NYIC petition for limited remand.
3. This is HR 430, which is the full House vote to allow the Judiciary Committee to sue to enforce the McGahn and Barr subpoenas.
4. And here is the roll call vote.
5. The Hatch Act is 5 U.S.C. § 7323.
6. The Hatch Act was upheld in United States Civil Service Comm’n et al. v. Nat’l Ass’n of Letter Carriers, AFL-CIO, et al., 413 U.S. 548 (1973).
7. Finally, click here to read the OSC Conway letter.

-Support us on Patreon at:  patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!





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OA286: The Census and Disenfranchisement

Today’s episode takes a deep dive into recent developments following the death of Republican operative Thomas Hofeller — the architect of the REDMAP — that may impact the census question case currently pending before the Supreme Court, Department of Commerce v. New York.

First, however, we begin with an Andrew Was Wrong about the 2006 midterm elections and the Pension Protection Act. That was, in fact, a Democratic wave year — but the PPA was passed in August, nearly five months before that new Democratic congress was seated. Oops.

Then it’s time to delve into the strange files of Thomas Hofeller, the architect of REDMAP — you know, the gerrymandering strategy and software that turned Republican minorities into majorities in states like Wisconsin and tiny Republican majorities into one-sided dominance in states like North Carolina. Want to know his plan for helping “Non-Hispanic Whites?” Of course you do!

We break down exactly how this development may affect Dep’t of Commerce v. New York, which has already been briefed and argued before the Supreme Court, and the interesting strategy that the respondents used to make SCOTUS aware of what Hofeller was up to.

After all that, it’s time for the answer to Thomas (and the Entire Puzzle in a Thunderstorm Crew) Takes the Bar Exam #129 involving comparative negligence, joint and several liability, and intra-family liability in connection with a car accident. Did you get it right? Remember you can play along every Friday by sharing our show on social media using the hashtag #TTTBE.

Appearances

Andrew was just a guest on Episode 98 of the Skepticrat breaking down everyone’s second-favorite Democratic 2020 Presidential contenders; you won’t want to miss it! And 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. We first covered the citizenship question on Episode 232
  2. You can access the briefs filed in Department of Commerce v. New York: Here
  3. This is the letter filed by respondents and copied to the Supreme Court setting forth the new evidence relating to Hofeller.
  4. And, in the interests of balance, here’s the response filed by the government.
  5. And finally, here’s the ruling and scheduling order from Judge Furman in the District Court case (No. 18-2921) setting forth the time to brief and seek discovery regarding potential sanctions on the government witnesses.

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!





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OA283: Mueller Speaks! (& Clarence Thomas Pens a Nonsensical Concurrence)

Today’s episode breaks down the statement made this week by Robert Mueller in connection with his report and investigation. Is it a good sign? Is it a bad sign? Is it both? Listen and find out!

We begin, however, with a bit of housekeeping, including a recommendation that you check out Episode 194 of Serious Inquiries Only (featuring Eli Bosnick!) for the official OA answer to all things milkshaking. We also preview a bit of next week’s show, which involves revisiting Eddie Lampert, Steve Mnuchin, and the alleged looting of Sears. Is it worse than you think? (It’s always worse than you think.)

Next, we check in on four Supreme Court orders that relate to gerrymandering. Is that worse than you think? (It’s always worse than you think.)

After all that, we’re not even halfway done! Our main segment breaks down the Supreme Court’s brief, two-page per curiam order in Box v. Planned Parenthood… and the sprawling, nonsensical 20-page concurrence written by Clarence Thomas that literally repeats David Barton-level falsehoods. You’ll be angry, but you won’t want to miss it.

Then, it’s time to Yodel! We carefully break down Robert Mueller’s statement regarding his investigation and what it means for the future. In so doing, we also analyze Mueller’s claims regarding the now-infamous 2000 OLC memo as to whether a sitting president can be indicted.

After all that, it’s time for an all-new Thomas Takes The Bar Exam #128 involving a crazy criminal effort to steal money from a fast-food drive-through by pretending to have a sniper… look, you’ll just have to listen and play along, okay?!?

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 the correct take on milkshaking, check out Serious Inquiries Only Episode 194 with Eli Bosnick.
  2. We first covered the alleged looting of Sears by Eddie Lampert and Steve Mnuchin in Episode 273 and that was picked up by our friends Elizabeth Warren and AOC.
  3. These are the four orders the Supreme Court granted in gerrymandering cases:
    A. HOUSEHOLDER, LARRY, ET AL. V. A. PHILIP RANDOLPH INST., ET AL.
    B. CHABOT, STEVE, ET AL. V. A. PHILIP RANDOLPH INST., ET AL
    C. MICHIGAN SENATE, ET AL. V. LEAGUE OF WOMEN VOTERS, ET AL.
    D. CHATFIELD, LEE, ET AL. V. LEAGUE OF WOMEN VOTERS, ET AL.
  4. Click here to read the Supreme Court’s Opinion in Box v. Planned Parenthood
  5. Click here for the peer-reviewed research showing that Sanger was not a eugenicist; and here for the article showing she wasn’t a racist.
  6. This is a transcript of Robert Mueller’s testimony and this is the 2000 OLC Memo.

Support us on Patreon at:  patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!





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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.

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, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com

 

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OA251: Gerrymandering in Maryland Heads Back to SCOTUS

Today’s episode returns to one of the most critical political issues of our time:  gerrymandering of congressional districts, and in particular, the state of MD-6, which pits the Democrats as villains and Republican voters as the plaintiffs alleging disenfranchisement.  Will that role reversal be enough to win approval from SCOTUS?  Listen and find out!

We begin, however, with an update on the June Medical Services v. Gee lawsuit we first discussed in Episode 249.

After that, it’s time for the deep dive into gerrymandering, which takes a look at the U.S. District Court for the District of Maryland’s 3-judge panel decision invalidating Maryland’s 6th district; the motion to stay before the Supreme Court filed by the Plaintiffs; the opposition by the State of Maryland; and an amicus brief filed on behalf of the incumbent, Democrat David Trone.

Then, we quickly clear up the status of Stormy Daniels’ lawsuits.  Did the recent dismissal with prejudice have anything to do with Donald Trump?  (No.)

We end, as always, with a brand new Thomas Takes the Bar Exam Question #113 that’s coincidentally about the constitutionality of abortion restrictions.  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

1. Episode OA: 249 “Overturning Roe v. Wade Starts Today” for reference to our past discussion on the abortion cases. 
2. Supreme Court’s docket in June Medical Services v. Gee
3. If you’re curious, this is what MD-6 looks like today, and this is what it looked like before the 2011 redistricting.
4. We last discussed gerrymandering in Episode OA: 185
5. We also did a deep dive into the Wisconsin case in Episode OA: 80
6. Here is the Maryland district court’s ruling court’s ruling
7. You can read the Plaintiffs’ brief
8. The state’s opposition, filed by Brian Frosh
9. And the Trone amicus brief filed by Andrew’s friends at Zuckerman

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, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com

 

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OA223: A Victory for Voting Rights in Pennsylvania!

Today’s Rapid Response Friday revisits some cases we’ve previously discussed with recent positive developments:  the Summer Zervos lawsuit and the future of political gerrymandering in Pennsylvania.

We begin with the Zervos lawsuit we first covered in Episode 176, in which a state trial court judge has ordered Donald Trump to respond to discovery served by Zervos’s attorney.  What’s next for the President and why does it have Yodel Mountain implications?  You’ll have to listen and find out!

After that, we revisit our discussion from Episodes 146 and 148 regarding the Pennsylvania Supreme Court’s opinion redrawing congressional maps in that state.  The U.S. Supreme Court — and yes, that’s the Brett Kavanaugh-and-Neil-Gorsuch-laden Supreme Court! — just declined to intervene to protect the Republicans.  Why is that, and how is that a map forward?  We tell all!

Then, we return to the Gary Hart story we discussed last episode.  Was Hart really set up?  Listen and find out!

Finally, we end with an all new Thomas Takes The Bar Exam #100 that is the dreaded real property question Thomas needs to get right in order to hit “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. Click here to read the cert petition in Turzai v. Brandt and here to read the opposition.
  2. This is the James Savage response on Gary Hart.

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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OA188: Three Cases About Voting Rights

Today’s episode takes a look at three recent decisions from this Supreme Court and how each one will affect voting in the midterm elections:  Husted v. Randolph Institute, Abbott v. Perez, and (surprisingly) Janus v. AFSCME.

First, though, we begin by addressing a conspiracy theory that’s making the rounds suggesting some nefarious relationship between Anthony Kennedy’s son, Justin, and Donald Trump.  Does this story hold water?  Listen and find out!

Then, we break down each of the three cases:  Husted, involving Ohio’s efforts to purge voters from its rolls; Abbott, involving Texas’s efforts to racially gerrymander Congressional districts; and Janus, which will result in drastically weaker public sector unions.  What does this mean for the midterms?  (Hint: it’s not good.)

Finally, we end the answer to Thomas Takes The Bar Exam #82 regarding the search and seizure of heroin from plain sight.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Thomas was just a guest on Episode 421 of the Cognitive Dissonance Podcast.  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. If you missed last year’s Fourth of July Spectacular, that was Episode 83.
  2. You can read the Liptak & Haberman New York Times article about Trump and Kennedy by clicking here.
  3. The Ohio case is Husted v. Randolph Institute, and the Texas cdase is Abbott v. Perez.
  4. Before you read Janus v. AFSCMEyou may want to check out our extensive coverage of the case back in Episode 150.
  5. The statute the 5-4 majority blatantly ignores in Abbott is 28 U.S.C. § 1253.
  6. Finally, this is the research Andrew mentioned regarding the correlation between right-to-work states and lower voter turnout and lower Democratic share of the vote.

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!

And email us at openarguments@gmail.com

 

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OA185: Gerrymandering & Other Good (?) News

Today’s episode tries to put a positive spin on some recent developments, including the Supreme Court’s gerrymandering decisions, the Department of Justice OIG report on the 2016 election, and the triumphant return of Everyone’s Favorite Segment (TM):  “Are You A Cop?”

We begin with the Office of the Inspector General’s 2016 Election Final Report, which we modestly point out validates literally everything we said in one of our favorite Episodes, OA 13, “Hillary Clinton’s Damned Emails.”  There’s so much more to learn, so you’ll want to listen up!

After that, we tackle the main segment, looking for some good news out of the Supreme Court’s recent “decisions” on gerrymandering in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland).  These 9-0 decisions are widely viewed as having punted on gerrymandering; is that right, and if so, what does the future hold?

After that, we tackle a trope that “everyone knows” in fan-favorite segment “Are You A Cop?”  This week, it’s that “everyone knows” cops can’t have sex with people in their custody, right?  RIGHT?  Well, thanks to one Democratic legislator in a deep red state, it’s now true in Kansas, at least.

Finally, we end the answer to Thomas Takes The Bar Exam #81 regarding a law designed to target two college professors who crafted campus hate speech codes.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent 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. We first discussed Hillary Clinton’s emails and the Comey investigation way back in Episode 13, and if you haven’t listened, you should check it out!  Then, compare what we said then to the just-released Office of the Inspector General’s 2016 Election Final Report.
  2. Our explainer on Gerrymandering is Episode 54; we then talk about the Wisconsin case in Episode 80 and the Maryland case in Episode 148.
  3. Of course, you can (and should!) read the Supreme Court’s recent decisions on gerrymandering in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland).
  4. Here is the text of Kansas HB2621, which amends KSA Supp. 21-5512(a), defining “unlawful sexual relations.”  A “Severity Level 5 Person felony” is subject to 50-55 months in prison as per the Kansas Sentencing Guidelines.

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!

And email us at openarguments@gmail.com

 

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OA161: Gun Control & the Constitution

Today’s episode takes an in-depth look at gun control.  First, we answer two listener questions about originalism and the Second Amendment, including a provocative one about whether DC v. Heller deserves stare decisis respect under Andrew’s model of jurisprudence.  The answer may surprise you!

In the main segment, we examine HR 5087, the most recent gun control bill to be introduced in Congress.  What’s in it?  What kinds of laws are Democrats looking to pass in light of the Parkland massacre?

After that, we check in on the state of Pennsylvania’s efforts to combat gerrymandering.  Could there actually be good news in this episode?  Listen and find out.

Finally, we end with the answer to Thomas Takes the Bar Exam Question #69 about the firefighter’s rule.  Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Andrew was recently a guest on Episode 255 of the Phil Ferguson Show and Episode 96 of the Naked Mormonism Podcast.  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. This episode builds on our two-part masterclass in the Second Amendment:  Episode 21 (Part 1) and Episode 2 (Part 2).
  2. The two primary cases discussed are DC v. Heller and McDonald v. City of Chicago.
  3. This is the text of HR 5087, the proposed gun control legislation, which amends 18 U.S.C. § 921 and 922.
  4. We discussed the Parkland massacre in Episode 148.  You can read Chief Justice Thomas Saylor’s statement 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!

And email us at openarguments@gmail.com

 

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