Transcript of Episode 310 – Citizenship and the Military and…


Citizenship and the Military and…

[Show Introduction]

Thomas:           Hello and welcome to Opening Arguments this is episode 310, I’m your host Thomas Smith, that over there is Andrew Torrez.  How you doin’ Andrew?

Andrew:          I am fantastic Thomas, how are you?

Thomas:           I am doing great!  We got so much to talk about, oof!

Andrew:          [Laughs]

Thomas:           Big news week!  There is so much to cover we are surely not going to be able to accomplish it, but some announcements first, probably mostly related to what we can’t do, [Chuckles] or don’t have time to do.  So I have a note here that we’re doing opioids on Tuesday?  So I guess the news cycle’s gotten that we’re just out with it?

Andrew:          [Laughs] Yeah!  That’s right!

Thomas:           Alright!

Andrew:          You and I are gonna sit in a room and take as much Oxy and – no.  We’re going to discuss the landmark opioid trial-

Thomas:           Can’t hear you, I’m doing opioids!  What?  We’re discus- Oh shoot!

Andrew:          [Laughs]

Thomas:           Dangit.

Andrew:          Yeah, and it’s really, really important.  People are gonna wonder why we didn’t cover it this week.  We didn’t cover it this week because of the crucial stories-

Thomas:           Everything.

Andrew:          -we are covering.

Thomas:           [Laughs]

Andrew:          We don’t even get to – in the next two episodes, counting this one, we can’t even cover an amazing ruling about Michael Cohen, the Trump Organization and legal fees.  I had to bump that off the whiteboard and I had some really, really good Cohen jokes!  I mean, it was gonna be awesome.

Thomas:           [Laughs]

Andrew:          So this week exploded!  So opioids are coming. [Laughing] We’ll be doing opioids on Tuesday.

Thomas:           [Laughs] It’s about time!  And also, little note, yes we were a bit late with Law’d Awful Movies this month, people noticed and we apologize, it was the live show it was all that stuff, but we’re going to make it up to you.  We’re gonna do the Law’d Awful Movies, that’ll be coming to you within a few days here.  Also we are going to publish a free Law’d Awful Movies, by popular demand, the Alex Jones Deposition was an incredible episode of Law’d Awful Movies, very educational, it was funny, it was fun, and I learned a ton.  We are going to publish that on the main feed for everybody just to give you a taste of maybe what you’re missing if you’re not a Patron and that’s on us, we’ll publish that for free on Saturday and also, speaking of Saturday, we’ve got the Q&A coming up!  I’m excited!

Andrew:          Oh, me too!

Thomas:           Live Q&A!

Andrew:          I love those.

Thomas:           This Saturday hop onto YouTube, if you’re a patron you get to ask questions on the Patron thread, that’s already up, so go do that, go ask questions, go vote on the questions you like, but even if you’re not a patron you’re absolutely invited to hop on YouTube, this’ll be Saturday, this coming Saturday, the 31st, at 11:00 am Pacific, 2:00 pm Eastern.  And that’ll be a lot of fun, like I said only Patrons get to ask questions so that’s a perk, but, you know, we’ll interact with the chat a little bit and we’ll have a good time, it’s really fun if you haven’t been able to make it to a live Q&A video it’s a lot of fun.  So go hop on the YouTube channel or keep an eye out on the social media links, we will push those out there for you.  Okay, how we doing on all those announcements?  Did I cover it?  I think I did.

Andrew:          I think that covers the administrative stuff.

Thomas:           So let’s talk about one more thing that we don’t get to talk about because listeners you might have heard, you might have seen a couple days ago there was maybe a big breaking story that Trump’s documents, like loan documents, were released or leaked and wouldn’t you know it?  Some Russians guaranteed his loan, co-signed a loan.  And I saw that and I thought, uh, either this is not real or if it is real I’m sure we’ll hear more about it and I asked Andrew about it and sure enough! [Laughs] I think it’s been retracted, is that right?

Andrew:          Yeah, this was a Lawrence O’Donnell report that was based off of a single source and there were no documents to corroborate, so a lot of folks asked us about it on Twitter and as soon as it came out, right?  The answer that we gave was, he look, we can’t cover stories when, A, there aren’t underlying documents, and B, we don’t have multiple source confirmation.  Because otherwise we’re just repeating what the news says, we’re not helping you analyze the news. [Chuckles]  So that looks like a pretty good decision now?

Thomas:           Yeah.

Andrew:          I mean, I don’t wanna strain our arms patting ourselves on the back here.  This morning Lawrence O’Donnell has retracted that story.  Lawyers for the pr-

Thomas:           Which like, [Sighs]

Andrew:          -President, yes, issued a cease and desist and said “we’re gonna sue you for defamation.”  This is an illustration of how defamation law continues to operate.  We’ve talked about the New York Times v. Sullivan standard.  We’ve talked about Bat Boy, we’ve talked about knowing falsity or reckless disregard for the truth.  Going forward with a lack of journalistic standards when somebody says “hey this isn’t true” is one of the few ways in which you can actually run afoul of the New York Times v. Sullivan standard.  So, in other words, there is zero chance that the President could win a defamation lawsuit against Lawrence O’Donnell for that initial story, but failing to retract the story when you know or strongly suspect that it is either false or not up to journalistic standards is when you can.  And so as a result, Lawrence O’Donnell and MSNBC have retracted the story.  Look, that doesn’t mean that Russians haven’t co-signed some of Trump’s loans, right?  [Chuckles] But the way this initial story came out was one those that should have set off your “BS” detectors.  The story said that the Deutsche Bank documents confirmed that all of Trump’s loans were co-signed by Russians, and I [Sighs] ya know?  It… So. 

Thomas:           Yeah.

Andrew:          Be careful and be skeptical.

Thomas:           This is just really frustrating.  Like stop making Glenn Greenwald have a point, people! [Laughs] Why are we doing this to ourselves?  It’s really one of those things, I don’t watch cable news ‘cuz I just, to me it’s just – I can’t stand it.  So maybe that’s why I tend to not be on the side of “oh, Democrats have gone nuts with all of the conspiracy theories about Russia” but then I see this and I’m like, “well gosh, maybe someone has a point if they’re thinking the left got a little to carried away with Russia.”  But at the same time, there was some “there” there, there still is some “there” there, and I just want to say that I for one am a big fan of what Andrew does in making sure that we can back up what we say and, you know, you’re never gonna bat a thousand, but doing our absolute best and then doing an Andrew Was Wrong segment and blaming it on him if anything is wrong is [Laughs] is the way we do it!  And it is important to – this isn’t a “both sides” thing, there isn’t any sort of equivalence between what’s happening on Fox News and what’s happening on MSNBSC.  Don’t for a minute think that I think that’s in any way equal, but it still is important to practice some good journalism and not get carried away with a story that you can’t back up.  And I think that it’s frustrating that this happened, I’d love to be able to count on, when I see a headline like that from a source like that to be able to count on that it’s backed up and it wasn’t, so… [Sighs]

Andrew:          And I just wanna add one more thing to the false equivalence.  Yes, Lawrence O’Donnell was overly exuberant in going forward with a story that was very, very critical of the President, that’s a bad thing.  He did that on an opinion show, not on – on a mixed opinion and news show, and the important thing here is it got retracted the next day.

Thomas:           Right.

Andrew:          Like he went on air, on MSNBC, and said, and here’s the quote, “I repeated statements that a single source told me about the President’s finances, I gave it” – he then says “I gave it the qualifier, saying if true as I discussed the information was not good enough.  I did not go through the rigorous verification and standards process here at MSNBC before repeating what I heard from my source.  Had it gone through that process I would not have been permitted to report it.  I should not have said it on the air or posted on Twitter, I was wrong to do so, today we are retracting – tonight we are retracting the story.  We don’t know whether the information is accurate, but the fact is we do know it wasn’t ready for broadcast and for that I apologize.”  Look, you’d rather the event not happen but this further goes to show the disparity, right?

Thomas:           Yeah.

Andrew:          This is journalistic standards and ethics still in effect, right?  This is someone going “yeah, you know what, you called us out and even though I would love to bring down the President” and, again, it’s an opinion show, there’s nothing wrong with – everybody knows where Lawrence O’Donnell stands politically – to say, “yeah we shouldn’t have gone forward with that story.”  I cannot recall – I mean, you know, Democrats have even stopped asking Fox News to retract libelous unsourced nonsense statements.

Thomas:           Well they had to do a retraction for Seth Rich, right?  But then they, like, kept doing it?  Right?

Andrew:          Yeah, yeah!

Thomas:           They did a retraction but then they’re still talking about it.  It’s weird.

Andrew:          Yes, and people died, right?

Thomas:           Yeah.

Andrew:          I mean, yeah, so there is – I mean it continues.  You know, if you have family members that you’re talking to that, you know, they’re not in the Trump camp but they’re in the “well I don’t listen to MSNBC and I don’t listen to Fox” you know, that’s a false equivalence.  MSNBC, their opinion shows have a strong liberal bias, MSNBC was not during the Obama administration a coordinated mouthpiece-

Thomas:           Yeah.

Andrew:          -and propaganda arm of the administration, right?  I mean, Rachel Maddow was as critical of Obama as, you know, any mainstream liberal.

Thomas:           Yeah, maybe we need to revisit that, by the way.

Andrew:          Yeah.

Thomas:           [Laughs] Maybe we’re going about this all wrong, apparently!

Andrew:          Alright, I wanna get off my soap box but-

Thomas:           Yeah, yeah, yeah.

Andrew:          But that’s one of those things that does bother me, when people suggest that MSNBC and Fox News are equivalent but opposite.  They are not.

Thomas:           Totally agree, and it doesn’t take away from the fact, so many people try to use things like this, mistakes like this, to say “the whole Russia thing was a hoax and there’s not even a case for impeaching the President!”  Oh, no!  There’s very much-

Andrew:          [Laughs] Yeah, yeah/

Thomas:           -still a case for impeaching the President, it’s not even-

Andrew:          Absolutely.

Thomas:           Not even close, so!

Andrew:          Absolutely!

Thomas:           Alright, well that said, let’s get to our actual show, what we are going to talk about, which is – we’ve got questions on apportionment [Chuckles] that was fun, we’re gonna keep going with that!  And then this awful – I can’t – this is one of those things that I hoped wasn’t going to be real and now it’s sounding like it is.  The citizenship for servicemembers overseas? [Sighs] I don’t even know what to say about that, I’ll just let Andrew tackle it in the main segment.  And then we’ve got a brief Andrew Was Wrong segment.  There you go!  [Chuckles] We’re just like Lawrence O’Donnell.

Andrew:          [Laughs]

Thomas:           That’s right.

Andrew:          I should have not gone forward with this story. 

Thomas:           [Laughs]

Andrew:          You’ll hear about that in the “C” segment.

Thomas:           Okay, well all that said, let’s finally get to our first segment and we’ve got some really good listener questions.

[Segment Intro]

Thomas:           Andrew, Emily says, “Census data is given directly to states, it does seem that states cannot independently verify the information, but the lawyer I spoke with indicated that the President’s role is functionally ceremonial and since the states get the data direct from the Census Bureau, it would be extremely difficult for lies to be told about the numbers.”  And let me just, just in case we’ve got any new listeners, people didn’t hear the episode, this is, what, the third time we’re talking about [Laughs] this?  The apportionment episode, go back and listen because it was very scary what Andrew had stumbled onto, what President Trump might be able to do on his way out.  Assuming we, uh, win in 2020.  Really messing with how apportionment is done and how the census is done.  So this question is related to that, listeners have been trying to poke holes in Andrew’s theory and we’re all rooting for the listeners because we would like this not to be true, so this particular question is asking, it sounds like the census data just goes straight to the states and that the President’s role is ceremonial and that he won’t be able to put his finger on the scale or whatever with regard to any of these numbers.  How does that sit with you, Andrew?

Andrew:          Yeah, so I wanna give a shout-out to Emily who wrote us and said, “hey, I listened to your episode and then I went to a local town hall with my State Representative and I spoke to that person and I spoke to a lawyer on the staff” and, look, that’s awesome

Thomas:           Yeah!

Andrew:          That’s precisely the kind of activism that we’re trying to engender to get the story out, here.  I want to address what happened, which is – and again, I’m not suggesting that there was malice on the part of the State legislature or the legislator or the lawyer or anything like that or miscommunication or whatever, but I think that it’s important to clarify the distinction here.  So the answer that you got, Emily, was with respect to the census data itself.  That is transmitted to the states and we won the Department of Commerce case, right?  So the census data itself, I feel like with some caveats that we’ll discuss in the second question, is relatively free form tampering.  I am not suggesting that Donald Trump can change the numbers.

Thomas:           Hmm.

Andrew:          What I’m suggesting is that Trump can apply a filter to the numbers in his apportionment calculus.  So, in other words, you can have good data and then if you take the data – I mean, take an obvious example, right?  Suppose the census data comes back and says there are 30 million residents in the State of California and then Donald Trump goes, “yeah, but, you know, half of those are illegals so I’m gonna transmit that for apportionment purposes California only gets 15 million residents.”  I don’t think that would likely [Laughing] survive Constitutional scrutiny?  But Bill Barr is not going to let Trump do something that stupid.  Bill Barr is an evil genius.  What Bill Barr is going to do is craft for Trump a statement that says, “here is all of the data that we have been collecting since 2019 by Executive Order from the various other departments that show, that give us a rational basis to believe that the percentage of undocumented immigrants living in California is “X” percent, therefore we’re going to apply that “X” percent filter and therefore California will be apportioned on a “Y” basis.  That’s the concern.  And with respect to that, I want to address the lawyer’s statement, because that statement is something I can understand a lawyer saying off the cuff, right?  That the President’s role in transmitting the census data for apportionment purposes to the Congress is essentially is, quote from your letter, “functionally ceremonial” (end quote) I get why you would think that.  In the 20th and 21st Centuries the Presidential role has been functionally ceremonial.  But-

Thomas:           Hmm.

Andrew:          -if you look at the underlying case, right?  That is the Franklin v. Massachusetts decision that we’ve been taking, it’s 505 U.S. at page 800, quote, “that the final act” (in apportionment) “is that of the President is important to the integrity of the process and bolsters our conclusion” this is the Supreme Court’s conclusion “that his duties are not merely ceremonial or ministerial.”  So, in other words, what the lawyer said is incorrect.

Thomas:           Hmm.

Andrew:          The governing law from the Supreme Court, binding precedent directly on point, says that what the President does is more than just “take a piece of paper from the Department of Commerce to the Congress” and that’s what I’m worried about.  So, plus one [Laughs] for getting out there and being active!

Thomas:           Yeah!

Andrew:          But I wanna make sure that everybody listening understands the distinction between the generation of the numbers.  We have fought and we have won thanks to Thomas Hofeller dying and-

Thomas:           Oh, I thought you were gonna say thanks to me! [Laughs]

Andrew:          [Laughs]

Thomas:           I mean, I did a lot!

Andrew:          Thanks to Thomas Smith!  Uh, thanks to Thomas Hofeller writing a document that says “how to advantage Republicans and non-Hispanic whites”

Thomas:           Yeah.

Andrew:          Thanks to his estranged daughter for making that public, and thanks, begrudgingly, to the tiny particle of conscious of conscience in the back of John Roberts’ brain that said, “alright I can’t sign onto that.” We have, by the skin of our teeth, just barely managed to hang on to the integrity of the data.  That does not mean that the President cannot apply his non-ceremonial, non-ministerial whatever it is he does, as a filter to the data.  So that’s what I’m worried about.

Thomas:           [Sighs] Okay, so no go on that one.  Alright, we tried on that one.  Well, let’s try again, I think this is still Emily asking, “I think the real fallout from this administration is going to be an increase in the fear and suspicion.  In 2010 my city hit 80% participation in the census, that was up from 2000 but still 1/5th of us were never counted.”

Andrew:          Yup, I agree 100% with this second comment.  That is part of the game, in addition to the apportionment, this administration is trying to depress compliance with the citizenship – with the census by trying to promote the notion that there will be a citizenship question and that you will be deported, and, look we’re gonna get to that in the B segment, that is the theme of the Trump administration, so I agree 100% and that is the other half of, you know, I just finished saying to Emily’s first question, we can trust the data.  You can trust the data with an asterisk, which is we know, historically, that these communities go underreported and there is a full-court press to try and further underreport them.  So 100% agree on that. 

Thomas:           Alright, well, final question here.  Last round in the street fighter, can you take on this horrible idea that we wish Andrew hadn’t thought of. [Laughs] So several people, including Brian Babcock, Daniel Limb, Mark Byfield and some others have asked, “what if” okay, here we go!  Last attempt, everybody! [Laughs]  Hail Mary time!  “What if the new Democratic congress increased the number of congressional seats for 2022?  That would necessitate a new presidential calculation and more House districts will dilute the electoral college advantage of the small population States.”  Well I guess – that’s not really true for the Presidency, right?  But, well anyway.  Brian ads that it will make gerrymandering harder.  So, yeah, great question there!  Have we found it?  Do we win?

Andrew:          So, we have found an answer!  If Congress passes a law that amends the apportionment act of 1929, that’s 2 U.S.C. § 2a. that’s the law we’re talking about, they can absolutely pass that after the census.  It doesn’t mean we take a new count, but we’ve already said that the count is gonna be, you know, subject to the caveat from the last segment, as accurate as we can get it, and that would require the transmission of a new statement from President Elizabeth Warren that would moot the Trump statement.  So, yes, that will fix the problem.

Thomas:           Alright!

Andrew:          Let me address the other components of this because I’m not sure that that will be [Laughs] right?  I am not confident that the incoming Congress will do this, but – and the biggest reason is doubling or tripling the size of the Congress diminishes the power each individual member of the House of Representatives has.

Thomas:           Hmm.

Andrew:          So they have a very, very strong interest – personal interest – in not doing that.  When you’re one of 435 that’s better than being one of 1300.  Let me address the subcomponents.  Will it dilute the electoral college advantage of small population States?  Yes it will!  Right now, small States have fewer representatives, have a lower population to congressional district threshold than larger States, because no matter how small your State is you still get one representative at minimum.  So if we lower the threshold for what it takes to get a representative then we can reduce that – it’s basically a rounding error, right?  So the average congressional district is 700,000 persons making up one seat, some States are as much as 900,000, some States are as few as 500,000 and those are States like Idaho.

Thomas:           Hm.

Andrew:          It has like 500,000 people in it.  So if you lower the ratio then you reduce the number of rounding errors.  So it does indeed affect the-

Thomas:           So stupid Civics 101 question, so this also changes the electoral college voting?

Andrew:          Correct.

Thomas:           Not just the-

Andrew:          Yes.

Thomas:           House?  Okay, so those are linked.

Andrew:          Yeah.

Thomas:           Yeah, okay, sorry, I forgot about that.

Andrew:          Because a State’s electoral votes are its number of House seats plus-

Thomas:           I see, gotcha.

Andrew:          -its number of Senators which is two, so that also dilutes the two Senators per State, right?  So in the current system where you have 538 total electoral votes, the fact that no State can have fewer than 3-

Thomas:           Yeah.

Andrew:          Also gives additional power.  You triple the number of congressional seats and now all of a sudden no State will have fewer than 3, they will have a small percentage of the total-

Thomas:           Right.

Andrew:          -electoral vote pie because you’re adding a constant plus a fraction.  And I keep saying “tripling” that’s because at the time of the Apportionment Act of 1929 the average size of a congressional district was 200,000, so-

Thomas:           Yeah.

Andrew:          -we’ve gone to more than triple, closing in on quadruple, and tripling sort of feels right in terms of what would keep pace.

Thomas:           Yeah.  Okay, this is my new plan!  I don’t know why it took so long for this to reach my brain, it’s probably my fault, you know I actually heard someone talk about this, like the fact that we haven’t done this for a very long time, we used to do it more regularly, and now I’m thinking this is maybe the best way to solve what I’m the most worried about going forward, which is this enormous discrepancy between the population and where we’re centered versus who decides the Presidency and who gets two Senate seats, which I guess that we can’t fix, that we’re stuck with, but I just think it’s gonna get worse and worse, where more and more people are located in these blue cities who get then less and less of a say in our political system and therefore things will continue to regress in a Republican direction despite the fact that most of the country, increasingly, might, you know, if this demographic trend continues and this population trend continues, want something completely different, and what would we ever do about that?  Because a Constitutional amendment would also require us to have presence in all of these different States, right?  But this sounds like maybe a way to mitigate that, and yes it sucks for the people in the House, ya know, like House members won’t wanna dilute their power?  But I think they should suck it up because A, you don’t keep your House seat forever, there’s a lot of turnover in the House, and B, if we can’t ever have the Senate, or if we’re worried about ever having the Senate or ever having the Presidency because of this electoral college disadvantage, the House becomes useless anyway.  So, we should really do this.  Like we should just increase the number by a lot so that we mitigate that electoral college disadvantage that we have.  What do you think?  That’s my pitch.

Andrew:          So now, I’m on board with 90% of that.

Thomas:           Okay.

Andrew:          Let me throw a tiny bit of cold water on it, which responds to Brian’s question, which is it will make gerrymandering harder.  I whipped up a quick-

Thomas:           Harder, oh.

Andrew:          -excel spreadsheet, which I call the [Laughing] Gerrymandotron!  Which I will upload for patrons, you can play around with my spreadsheet.

Thomas:           It probably makes gerrymandering easier, doesn’t it?

Andrew:          It, as far as I can tell, it has no effect on gerrymandering.  So what I did was-

Thomas:           What?

Andrew:          I took a State, let’s call it North Carolina.

Thomas:           [Laughs]

Andrew:          You can call fit-

Thomas:           Let’s call this hypothetical State [Laughs]

Andrew:          Hypothetical State, you call it North Carolina.

Thomas:           What a weird name!  I’ve never heard of that, okay.

Andrew:          I know, it’s crazy!

Thomas:           Where’d you come up with it?

Andrew:          And you can plug in the number of residents.  So I started with-

Thomas:           So you pulled up Red Map?  [Laughs] You got the-

Andrew:          Well, right, this is basically like the lowest tech Red Map you can do, right?  And I said, look, let’s assume 10 million residents split 50/50 between Democrats and Republicans, start off with 10 districts and it’s super easy to create 8 safe 60/40 Republican districts and 2 totally packed inner-city Democratic districts-

Thomas:           Mm-hmm (affirmative)

Andrew:          That are 90/10.  That’s the current strategy.  I then expanded that out to 25 districts, and you can keep the exact same ratio.

Thomas:           Hmm.

Andrew:          I can make it 20 Republican, 20 safe Republican seats and 5 safe Democratic – overwhelmingly packed Democratic seats.  Which is the same 80%, you know turning a 50/50 State into an 80/20 landslide which is exactly what North Carolina has done.  So the argument that it would make gerrymandering harder is one that is not viable in light of the Supreme Court’s Rucho decision.  Because I think what Brian is thinking is, well, you know, that just – geographic realities, it’s harder to find people, but after Rucho those are nonjusticiable questions. 

Thomas:           Hmm.

Andrew:          So you can have a district that is like a street wide that, you know-

Thomas:           Yeah.

Andrew:          Goes through the wilderness for 300 miles to pick up part of the city in order to do that.  So I was envisioning what this might look like and I haven’t come up with a clever name for it but instead of the, like, gerrymander it looks like a salamander because it kinda winds around but it’s not – you could have districts that look like a bowl of pasta, right? 

Thomas:           Mmm, delicious.

Andrew:          It literally like – crazy tendrils everywhere, and like I said, I have come full circle to “it’s time to crash the system and embarrass John Roberts.”

Thomas:           Yeah.

Andrew:          Let’s create, let’s start in New York and California, let’s create some Pasta Districts.

Thomas:           [Laughs]

Andrew:          But until we do that, until we seize control in a totally unfair way of the redistricting process in blue states with blue legislatures I would be concerned in adding a whole bunch of legislators given the structural advantage that Republicans have with gerrymandering right now.  And again, its’ not gonna make it worse, right?  But it may make it harder to make it better. 

Thomas:           Yeah.

Andrew:          So that’s the only kind of bit of cold water but the solution works to the 2 U.S.C. § 2a problem, so congratulations on our listeners!  And I guess we need to start-

Thomas:           Yeah, we cracked it!  We took down M. Bison! 

Andrew:          Yeah! [Laughs]

Thomas:           He’s down!  We got ‘im!

Andrew:          Well no Blanca Balls on this one!

Thomas:           [Laughs] What?

Andrew:          [Laughs]

Thomas:           Okay, that’s interesting.  My first just intuition right away trying to think of it was, well if you have two districts that’s really hard to gerrymander so therefore maybe if you have a million it’s easier, but when you lay that out that probably wasn’t sound.  Once you reach a certain amount, or certain number of districts then I guess it kinda makes sense that it would even out in the way that it sounds like you’re describing.  But anyway, regardless of that, another thing-

Andrew:          Well the one – You’re mathematical intuition is correct there, but that’s where geographical reality comes up, right?  Like, you can’t gerrymander Idaho right now because they only have one congressional district.

Thomas:           Yeah, there’s not a lot of “Gerry” to “Mander”

Andrew:          But Idaho doesn’t have any cities in it anyway, so-

Thomas:           Yeah.

Andrew:          Right?  There’s nothing to gerrymander. 

Thomas:           Yeah, gotcha. 

Andrew:          You are correct though that moving from very, very small numbers of congressional seats to larger seats increases that opportunity.  Once you’re already at the, like –

Thomas:           Yeah it’s some sort of threshold.

Andrew:          -reasonable State level then the tripling – and this is, I only did two and a half because I just wanted the numbers to stay round, but once you do that then it becomes functionally equivalent.  But yeah, so-

Thomas:           So this is my new plan, the only thing I would add is if the House doesn’t wanna give up power could they just add like one seat in order to – like let’s imagine Trump and Barr do their master plan of depriving some blue states of some number of seats through their tampering, would Congress be able to do like, “well we’re gonna add one seat” and then be able to reconfigure the whole thing?

Andrew:          So that’s a really interesting question.  The way they would have to do that is to have a multiplicand of like 1.03 or – you know what I mean?  Something that – the House of Representatives could not, by fiat, say okay – because the method is prescribed by the Reapportionment Act, so they have to use the same methodology, but they absolutely could say “we’re gonna increase the overall size of Congress from 435 to, you know, 438” or something like that.

Thomas:           Yeah.

Andrew:          And-

Thomas:           Just to mess with Nate Silver!

Andrew:          Yeah! [Laughs]

Thomas:           Just to make Nate Silver have to like get-

Andrew:          Which I am a huge fan of as long time listeners of the show know, so!

Thomas:           [Laughs] Yeah!  Yeah,  Actually, we should!  Business idea!

Andrew:          [Laughs]

Thomas:           Let’s buy up all the [Laughs] websites!

Andrew:          There ya go!  Alright!  Our listeners are out there right now buying,, good for them!

Thomas:           [Laughs] Okay, well this is cool!  Kinda crowdsourced it and cracked it maybe, so – but this is seriously my new plan.  Let’s redo all this and it’ll solve – well, it’ll help go towards solving a lot of problems.  And to anyone who wants to whine about their House seat being less valuable, it’s useless now.  It’s approximately useless currently, so assuming – the only problem is once we – if we are able to take all three branches then obviously the House no longer is useless?  So maybe it’ll be tough to get them to want to give that up, but just for the future, like it would be so much better for Democrats to do this, I think. 

Andrew:          I agree.

Thomas:           Alright, well-

Andrew:          Ad break?

Thomas:           -take a little break and then we are going to talk about this awful news about the citizenship stuff with service members so, cool! [Laughs] Let’s take a break!

[Commercial –]

Thomas:           Okay Andrew I don’t even know what to make of this.  Like I don’t even know what the – even putting on my [Laughs] I was gonna say putting on my “Trump hat” which is a klan hood, so putting on my klan hood I don’t even know what the logic behind this is.  Like is there really a constituency for wanting to take away citizenship from people who are serving but like, are born?  Alright, why don’t you explain this, I’m really having a hard time.

Andrew:          Yeah, and this is really, really legally complicated and almost everybody is – they are accurately reporting what the rulemaking does but not understanding the implications.  So I’m gonna break it down for you.  It’s terrifying and it’s way worse than it seems.  And it seems really, really super bad.  It’s way worse than that.  So this is a memorandum dated yesterday, August 28th, 2019 from the U.S. Citizenship and Immigration Services and it is meant as clarifying the internal agencies interpretation of various rules and statutes with respect to citizenship.  In order to understand why it does what it does we need to break down the different ways in which you can be a citizen of the United States.  So in the second half of this segment we’re gonna talk briefly, because this document does not really discuss birthright citizenship, but obviously under the 14th Amendment, if you are born in this country you are a citizen.  Notwithstanding the fact that Donald Trump has said, [Trump Impersonation] “I’m gonna end birthright citizenship,” notwithstanding the fact that some very right wing hacks have been calling for that, that that is part of the game plan and the energy in the racist Trump base.  And I should add, if we’re trying to – and god it’s hard to “steel man” Donald Trump.  Very few countries have birthright citizenship, right?

Thomas:           Yeah.

Andrew:          So there is a non-racist argument to be made, I don’t know that that’s being made by the folks who are in favor of ending it, but doesn’t matter, it would require a Constitutional Amendment to end birthright citizenship in the United States, notwithstanding what Donald Trump and Trump supporting racists have said.  But put a pin in birthright citizenship because the other way in which you can be a U.S. citizen is you can be born outside the United States, but nevertheless qualify for citizenship and that’s where this comes in because there’s essentially a two-track process.  And all of this comes from the fact that this language is inferred from the 14th Amendment.  So there is a tremendous amount of legislative freedom to decide what counts as being born in the United States or not.  So the first place we start is 8 U.S.C. § 1401, that is the Immigration and Naturalization Act, and subsection (a) says if you’re born in the United States (again, we’re gonna get to that), subsections (c) through (e), there are others, but (c) through (e) govern people who are born outside the United States.  And they say, so subsection (c) for example says if you’re born outside of the United States and you have parents, both of whom are citizens, and one of whom has a residence in the United States then you’re automatically a citizen.  Subsection (d) says if you’re born outside the United States and one of your parents is a citizen and that person has been (quote) “physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States” then you’re automatically a citizen.  And subsection (e) says if one of your parents is a citizen, been physically present in the U.S. for a year at any time prior to the birth then you automatically become a citizen.  If you fall into any other category, so let’s say you have one parent is a citizen but they’ve only been physically present in the United States for eleven months prior to the birth of the child, then instead of that person automatically becoming a citizen they get funneled in to § 1433 which basically says “you can apply to have that child naturalized.”  Okay?  So in other words the difference in this criteria is the difference between automatic and application. 

Thomas:           Right.

Andrew:          Makes sense so far?

Thomas:           I think so. 

Andrew:          Yup.  So the automatic standards has only three requirements, this document tries to change them.  This is § 1431, so it says a child born outside the United States automatically becomes a citizen when all of the following conditions have been fulfilled:  one, at least one parent is a citizen; two, the child is under the age of 18 years, and; three, the child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.  This document adds, and you can see it, and this is the reason why this document will be challenged in Court and enjoined from going into effect, because you can look directly on page 4 [Chuckles] and it says, of this document, a child born outside the United States automatically becomes a U.S. citizen when all of the following conditions have been met, and it lists those three things, and then it adds as a bullet, the child is a lawful permanent resident.

Thomas:           Huh.

Andrew:          That’s not true!  That is not in the law and they can’t just add that criterium by fiat, the Department of Citizenship is not the legislature, that exceeds the delegation of congressional authority under the INA, that part at minimum will be enjoined in this act.  Nobody is talking about the fact that this tries to add that bullet and that bullet will not stand.

Thomas:           Oh.  Okay.  Problem solved, huh?!

Andrew:          No.

Thomas:           Oh.

Andrew:          Because the top line of what this document does is say that the USCIS no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as residing in the United States for purposes of acquiring the automatic citizenship that I just talked about.  So what that means is all of those children are now funneled from § 1431 automatic process into § 1433, which is the process where you have to apply for naturalization.  So you’d no longer get it automatically, you now have to apply.  There are three bad things about that:  one, you have to apply so that’s work, it’s costly, you have to hire an immigration lawyer, that’s bad; number two there is discretion.  The Attorney General issues a Certificate of Citizenship to the applicant upon proof of meeting the qualifications in the statute, so Bill Barr gets to decide [Laughing] whether you count or not; and third, and this is the real game.  § 1433 adds as a requirement, it’s subsection (a)(5) that says the child is temporarily present in the United States pursuant to a lawful admission and is maintaining such lawful status.  So in other words, you now get to argue that the child is not here legally in order to deny immigration status.  That’s what they want to do in shifting thousands of people – which again, this is a major, major percentage of children born outside the Untied States every year who are nevertheless eligible for U.S. citizenship.  I mean, they’re members of the armed forces and U.S. government employees living abroad, that’s, right?  You know, there’s a small number of people on vacation, but like this is the biggest category of people who fall into this particular section of code.

Thomas:           It doesn’t make sense, people probably don’t often take a vacation when they’re like 9 months pregnant.  [Laughs]

Andrew:          Yeah, right.  So what this will do is, this shifts them from an automatic citizenship into a discretionary citizenship and the Attorney General can deny that discretionary naturalization under the subsection (5) by saying that that child has not maintained lawful status in the United States.  That’s why they’re doing that.  And believe me, they will use that.  I mean, we know how the – I don’t need to say it.  We know how this administration will use that discretion.

Thomas:           Well but like [Sighs] I still don’t understand why?  Like, why? This seems so unnecessary on so many levels.  I mean even for Trump, I don’t get it!  It’s people in the armed forces and it-

Andrew:          It is to appease-

Thomas:           -it can’t be that many kids is it?

Andrew:          It’s because, look, I can’t come up with a better explanation than fascist leadership principle to appease your rabid base that cares about demonizing immigrants.  And I realize that sounds super extreme.

Thomas:           But it’s not even – it’s not even immigrants, though! 

Andrew:          Demonizing brown people.

Thomas:           Okay, this is – sorry if I’m just really dumb.  This doesn’t even seem like it would necessarily be anyone of a certain race.  Isn’t it just if you are a servicemember? Like, you’re a servicemember, right?  So why – where’s the racial component come to?

Andrew:          The servicemembers particularly in – and we have a lot of members of the armed forces who listen – way more racially diverse than the population at all, as a whole.  So our on-the-ground members of the army, navy, those folks tend – are overrepresented in minority groups.  And we’re talking about people stationed abroad, so they’re stationed overseas and they meet non-U.S. citizens, that’s how you wind up with one parent being a U.S. citizen by virtue of being-

Thomas:           Yeah.

Andrew:          -a U.S. citizen and serving in the military, being overseas, and meeting a foreigner and having a child with that foreigner.  This is racial purity.  I mean again-

Thomas:           Yeah.

Andrew:          -I’d love for there to be some-

Thomas:           I can’t think of any way that it’s not.

Andrew:          -other explanation. 

Thomas:           Yeah.

Andrew:          I can’t.

Thomas:           I guess that’s why I’m confused ‘cuz it’s – there’s no other possible justification and this seems like a lot of work for not that much return.  Like do you have any figures as to how many people this could possibly be?

Andrew:          It’s several thousand potentially.

Thomas:           Yeah, but like-

Andrew:          I agree, I agree!  It is symbolic.  Do you wanna know the worst part that I haven’t talked about yet?

Thomas:           Oh we haven’t gotten to the worst part?  [Sighs] Aw, jeeze.

Andrew:          Yeah, there’s a worse part.

Thomas:           Great.

Andrew:          And this is a part that no one is talking about except us!  We talked about this a year and a half ago, episode 143.  On top of all of the criteria that we just described is section 1409.  This applies to the automatic provision, so this is another sorting provision.  And it says, the provisions of (c), (d), (e), and (g), (those are the ones that I read to you) shall apply as of the date of birth to a person born out of wedlock if – and then then there’s a whole bunch of stuff.  And, again, that’s ‘cuz the law was passed in the 1920’s and amended in the 1950’s and we cared about, you know, children being born out of wedlock and nonsense, right?  That provision “out of wedlock” has been used and will continue to be used as an overt club deliberately discriminatorily against LGBT couples.

Thomas:           Right.

Andrew:          And just as a reminder, you remember when we covered this we covered Allison Blixt’s lawsuit – by the way, I checked in, that lawsuit survived a Motion to Dismiss, so it’s in the discovery stage.  I think ultimately she’s likely to win that lawsuit.  We are overdue, so there will be a small victory when she does, it will be pyrrhic because the U.S. government is trying to deny a U.S. citizen that her child is a U.S. citizen and no one should have to litigate that.  She’s gonna win.  The Trump administration has taken the position that if you use assisted reproductive technology, that’s their word, that is what they call the combined categories of artificial insemination, surrogacy, invitro fertilization, all of those things.  If you have a lesbian couple obviously you need to use assisted reproductive technology.  If you have a, particularly if you have a gay couple, right?  A gay male couple, you probably have to use assisted reproductive technology unless, you know, one of the partners is a trans male.  But in the overwhelming percentage of those relationships, and therefore the overwhelming percentage of parents who use assisted reproductive technology, skews heavily in the LGBT community.  And this, page 6 to 7 is what this document says about the “out of wedlock” criterium.  It says, “out of wedlock an assistive reproductive technology means that the child’s gestational mother is the person who triggers all of these provisions of section 1409.”

Thomas:           Hmm.

Andrew:          Let me break down what that means.  That means if a lesbian couple has a child artificially – it’s their child – artificially inseminated it depends on in who’s womb that child is implanted for whether that child will automatically become a citizen under § 1401.  And to give you a very, very real world example, this was a lesbian couple that had twins, had one twin implanted in one parent and one twin implanted in the other.

Thomas:           Oh, jeeze.

Andrew:          I think that’s pretty beautiful, the U.S. government took the position that, because it’s the gestational mother, one was a citizen and one was not.  That’s what we covered in 143.  That is reinforced in this document from USCIS and that is the second half of this.  So it is not only demonizing brown people, it is also demonizing LGBTQ individuals.

Thomas:           Look, yeah. [Sighs]

Andrew:          I put it out there, look, let’s make our call!  We have people who say, “I’m conservative and I listen.” Not a lot, but we do, if you can give me a justification for this that is not-

Thomas:           Evil?

Andrew:          -racism and bigotry I’ll air it.  But, uh-

Thomas:           No, it absolutely is and as much as we already knew that this administration was capable of very great evils and pointless bigotry I just still find myself taken aback at the amount of work they’re willing to do for something that is so miniscule in the grand scheme of things.  It’s actually breathtaking!  There’s a new level of evil to that?  You know, you can’t even [Sighs] I don’t even know what to say!  A couple thousand kids?  Ya know?  Like is that gonna make a difference in your white nationalist policy?  That a couple thousand out of 250 million, 300 million people?  You’re going to go to this length to try to screw over a few thousand?

Andrew:          Yeah, and again that’s because it’s a statement to your base, right?  You are absolutely correct that if you look at it from a utilitarian policy making perspective it makes no sense.

Thomas:           I don’t even know that that’s true!  I don’t even know that it works as a statement to your base!  Like, it’s too hard to understand.  I don’t even think people – you yourself are saying that like we’re not even getting the reporting on half of this.  I have to say, my guess – and I could be wrong – I feel like it’s more about the individual evils of the people in charge than it is about making a statement to the base.

Andrew:          I don’t – that’s not a headspace in which I live, so.

Thomas:           Yeah, it’s speculation either way.

Andrew:          Yeah.  I have no basis to say, but yeah.  So it is, yes.  This is targeting the U.S. military, which seems like a weird thing for a Republican to do, right?

Thomas:           Yeah.

Andrew:          The Republicans are supposed to be the “ra ra military”

Thomas:           It seems like they don’t really care about the troops, yeah.

Andrew:          Yeah!  They absolutely are not supporting the troops here.  Because it’s such a small number it’s unlikely to make a real difference, it’s unlikely to have an actual backlash against servicemembers who overwhelmingly vote Republican, guys it’s time to stop doing that!  Gals, it’s time to stop doing that.  But yeah.  And hidden – well not hidden, hidden in plain sight – but because of the overt evil the more difficult to decipher evil involving the selective use of the out of wedlock provisions is something that this administration has doubled down on and I don’t want us to lose that.

Thomas:           Wow.  Well that’s horrifying on every level.  Ummm.

Andrew:          You want uh-

Thomas:           Is there more?!  I was gonna tap out and get to the Andrew Was Wrong segment!

Andrew:          Yeah, tap out, but let me – before we get the Andrew Was Wrong segment-

Thomas:           No, we gotta know.  We gotta know everything.

Andrew:          Yeah.  Well, let’s talk about the birthright citizenship provision.  Because this is safe.

Thomas:           Yeah, you’d need an amendment, right?

Andrew:          Yeah.  And I got a question – I got two separate questions regarding birthright citizenship, so let me see if I can’t lightning round.  Birthright citizenship, protected by the 14th Amendment, codified by section (a) of 1401 that says “a person, the following, shall be citizens of the United States at birth:  a person born in the United States and subject to the jurisdiction thereof” and if you’re thinking “does subject to the jurisdiction thereof mean not counting illegal aliens?”  No, if you’re an illegal alien and, again, that term is a meaningless term.  If you are a person of undocumented status, if you are here illegally and you commit a crime in the State of Texas you are subject to the jurisdiction of the State of Texas and the U.S. government, so that does not mean having lawful status, and you can tell that because other sections of the INA have the phrase “lawful status” so we know that’s not what that means.  Indeed, what it means is set out in a bunch of 19th century cases, including the one that a whole bunch of racists think means it doesn’t mean what it says it means.  And that case is called United States v. Wong Kim Ark, it’s an 1898 Supreme Court case, and it is interpreting birthright citizenship and the 14th Amendment, and here’s what the Supreme Court, it says “all children born here are citizens, including children of resident aliens with the exceptions or qualifications as old as the rule itself of,” and here’s the list, “children of foreign sovereigns or their ministers” okay, well that makes sense, right?  If you know, you have Italians at the Italian embassy that’s considered Italian soil, a child is born at the Italian embassy or they’re born at the hospital, then that child is not an American citizen, that child is an Italian citizen.  Okay!  Makes total sense.  “Or born on foreign public ships” alright, that also makes sense, right?  You have again these people vacationing on a luxury liner while 9 months pregnant, they give birth in Boston harbor, but you know they’re Paraguayan, the child is not an American citizen even though they were born in Boston.  “Or of enemies within and during a hostile occupation of part of our territory.”

Thomas:           Ooh, that’s the Americans, that TV show! 

Andrew:          [Laughs]

Thomas:           I guess their kids aren’t – shouldn’t be citizens.

Andrew:          Right!  [Laughing] Right!  And – and this is the, yeah – “and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes,” and that’s where you can probably anticipate the argument that racists have made and that the Supreme Court entertained in this Wong Kim Ark case.  Obviously that was made because that was not quite – you couldn’t put Native Americans in the category of, you know, a “hostile occupation of part of our territory,” this was their territory!  [Laughs] So, you know, they created another class.  Again, because our race relations aren’t great today but they really sucked in 1898, and so the Supreme Court said, okay, so foreign soldiers on our soil as an occupying foreign power, obviously those kids aren’t citizens and also if you have, you know, sort of openly declared your allegiance to a tribe that is hostile to the United States government then the children of those Indians don’t count.  And then in the same case there is dicta – because this case was about Chinese immigrants who were born in the United States, the Wong Kim Ark case.  And it says, “Chinese persons … remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are ‘subject to the jurisdiction thereof’ in the same sense as all other aliens residing in the United States.”  So this involved two Chinese nationals living in the United States, had a child, and the Supreme Court is like “yeah, obviously, that child is a U.S. citizen.”  And so racists have attempted to argue that the Wong Kim Ark decision means that there is this implicit criterium of “do you owe allegiance to the United States or to some other country” to then argue by analogy and extension that if you are outside of documented status in the United States you don’t owe allegiance to the Untied States, you owe allegiance to the country you came from and therefore under that you don’t count and citizenship doesn’t extend to you.  I want to – since this has been a pretty depressing segment – I want to tell you that argument is nonsense.  Is weapons-grade nonsense so bad that even the Trump administration is not making it.  It’s not so bad that it hasn’t gotten featured in the pages of the National Review-

Thomas:           [Laughs]

Andrew:          -so the next time somebody tells you that that’s a respectable – I’ll link that in the show notes.  2015 article, by the way, it’s a “Go Trump” article when he was – the next time somebody tells you that that is a respectable intellectual magazine, you know, link ‘em to this one.  They’re too racist for Donald Trump.  But that argument, no case has ever stood for that proposition, no case has followed that dicta from Wong Kim Ark, it has not been cited since 1898, and even this Supreme Court is not going to take the racist attitudes of 1898-

Thomas:           Famous last words, Torrez!

Andrew:          Well, I think this would be-

Thomas:           Until Amy Coney Barrett gets in there!

Andrew:          I think this would be a 9-0.  Amy Coney Barrett, this would be an 8-1.

Thomas:           [Laughs]

Andrew:          But I think Neil Gorsuch, maybe it’s already – I don’t know what Clarence Thomas is gonna do.

Thomas:           Yeah.

Andrew:          I can never predict that guy, but this is an 8-1 at minimum.

Thomas:           Alright.

Andrew:          So there is not way to take birthright citizenship away from people who are here outside of documented status. 

Thomas:           I feel so much better!  So we’re not going back to the 1890’s just the 1920’s or something?  [Laughs]

Andrew:          Well, to the 1890’s we’re not going back to 1830’s.

Thomas:           Oh, yeah, okay!  [Laughs]

Andrew:          Pages 3 and 4 of this reflect birthright citizenship and somebody asked “is this an effort to rescind birthright citizenship?” It is not.  I wanna read it carefully.  It says, “A U.S. citizen may have automatically acquired U.S. citizenship based on birth in the United States” and then this is a footnote, “but never actually resided in the United States.  This U.S. citizen will not have established residence in the United States and may be unable to transmit U.S. citizenship to his or her own children.”  That, as far as I can tell, that is an accurate statement of the law.  In terms of, what that’s saying is if you have birthright citizenship because you were born in the United States but then you leave the country and you reside your entire life outside of the United States then your children do not qualify, or may not qualify for the automatic provisions of § 1431, will be forced under the discretionary provisions of § 1433.  I think that’s a correct reading of the law, and so I want – this does not attempt to modify birthright citizenship even though I can understand why, when, you know, you’re reading this from bad actors why it would look that way.  So there you go.  The Trump administration is sacrificing active service members and couples having invitro fertilization, and I would sure love it if those folks went from being, you know, in the military, from being on average Trump supporters and upper class white people who, a distressing number of them voted for Donald Trump in 2016, those are people being targeted right now.  If you’re a rich white couple and you travel abroad a lot and you’re child is currently being hosted by a surrogate mother – again, this is rich white behavior, that’s the Republican base, you may be sacrificed for whatever purpose this is supposed to do.  So, you know.

Thomas:           Alright, I’m tapping out!  We gotta get to the next [Laughs]

Andrew:          It’s a good time to tap out.

Thomas:           [Laughs] [Sarcastically] I feel so much better after that brief good news about 1898.

[Segment Intro]

Thomas:           Alright let’s quickly do this Andrew Was Wrong.  What were you wrong about, sir?

Andrew:          I said Sonia Sotomayor was Solicitor General of the United States and that was an idiotic thing to say!  Elena Kagan was Solicitor General of the United States.

Thomas:           Duh, dummy!

Andrew:          Yup.

Thomas:           Everyone knows that!

Andrew:          So she was the Supreme Court justice-

Thomas:           The one who had to recuse herself.

Andrew:          -who had the most recusals from 2007 to 2018, so mea culpa.

Thomas:           [Laughs] Well that was fast.  Okay.  Nice correction.  Now it is time, the only thing that can cheer us up is thanking our Hall of Famers, our all time greats over at

[Patron Shout Outs]

Thomas:          Alright and now it’s time for T3BE, which stands for “Thomas Can’t Answer a Question Right” I think?  That’s some sort of abbreviation for that.  Okay, here we go!

[Segment Intro]

Andrew:          Alright, this is – and I am not making this – you just had banana law, this is [Laughing] “Don’t Take Legal Advice from a Podcast” law!

Thomas:           Woah.

Andrew:          I’m 100% serious.  So, Thomas, a law student rented a furnished apartment, his landlord began to solicit his advice about her legal affairs, but he refused to provide it.  Good on him! 

Thomas:           [Laughs]

Andrew:          The landlord then demanded that he vacate the apartment immediately.  The landlord also began engaging in a pattern of harassment, calling the student at home every evening and entering his apartment without his consent during times when he was at school.  During these unauthorized visits, she removed the handles from the [Laughing] bathroom and kitchen faucets, making the faucets unusable.

Thomas:           What in the world?

Andrew:          But she did not touch any personal property belonging to the student.

Thomas:           Is she the wet bandit?

Andrew:          [Laughs] The lease has a year to run and the student is still living in the apartment ‘cuz, you know, assuming that this is Harvard Law School I can get why, because it’s really, really hard to find an apartment in Boston.  The student has sued the landlord for trespass.  Is he likely to prevail?

Thomas:           Ah, great.

Andrew:          So A) No, because he has no standing to sue for trespass.  B) No, because the landlord caused no damage to his property.  C) Yes, for compensatory damages only, or D) Yes, for injunctive relief, compensatory damages, and punitive damages.

Thomas:           Ah, man, I don’t know!  Gosh, when am I gonna get one that I can get?  It’s tough.  I don’t know – alright, let’s use my instincts here.  I don’t know what the point of the legal advice stuff is, uh soliciting advice but he doesn’t give it, I guess that’s just what started this whole [Laughing] harassment campaign.  The landlord then demanded he vacate.  Demanded he vacate immediately, that’s interesting.  So tries to just evict him, which I don’t – that doesn’t sound cool.  The landlord also began engaging in a pattern of harassment, calling the student at home every evening, entering his apartment without his consent during times he was at school.  So I’m pretty sure, and this could be one of those things where I’m spoiled by like California law or something, but I’m pretty sure that’s not cool.  Like even if you’re the landlord you can’t just enter a tenants place, which I would logically and rationally would hope is the case, that you can’t do that.  During the unauthorized visits removed handles from the bathroom.  So is this the kind of thing where like trespass is specifically, does that involve damaging anything or not?  Is trespass gonna be like the letter of the law means you have to damage his property too or something and not just the sink handles which are technically not the student’s property, the question makes clear that the landlord didn’t do anything to the personal property belonging to the student.  Alright, likely to prevail.  No because he has no standing to sue for trespass.  No because the landlord caused no damage to his property.  So if I was going for a “no” answer it would probably be B, I can’t imaging that the – no standing.  So does trespass mean you have to own the property?  Maybe that’s what it’s going for?  If you don’t own the apartment would it be some other kind of tort if the landlord came into your place unauthorized?  I dunno, I’m not sure if that’s true.  ‘Cuz what if it’s not even the landlord?  Like if you’re renting an apartment and a criminal just like breaks in, would that be trespass or would that be something else?  Some other tort would cover that, but it seems like you should be covered by something for having a place you live be invaded in that way.  So now I don’t know that I would eliminate A necessarily.  Yeah, I would lean toward B, if I was picking a “no” answer, no, because the landlord caused no damage to the property.  Kinda that technicality of not having damaged anything.  C, yes for compensatory damages only, which seems weird.  D, yes for injunctive relief, compensatory damages, and punitive damages.  Ugh, I don’t know, Andrew.  It’s almost like I’m not a lawyer.  I don’t know, I really could see an argument for almost every answer.  It might be that there’s some other tort that covers this so therefore A is correct and you don’t have standing to sue for trespass if it’s not your property, but I feel like this question would be a lot of work then for nothing, but maybe that’s what the Bar wants to do.  I’m gonna lean against, I’m gonna go away from A so I’ll eliminate A.  B, no because the landlord caused no damage to his property.  Trespass.  Gosh, I know we had a question that touched on that, like whether or not you actually damage something versus just being on the property, and there was some distinction there and I can’t remember what it was.  C, yes for compensatory damages.  So C seems weird to me because if anything there aren’t really compensatory damages ‘cuz none of the student’s personal property was touched, so that I don’t get.  D, yes for injunctive relief, I could see the injunctive relief, like stop doing this, and the punitive damages of, like, you’re harassing the person so stop, damages for that.  And then maybe compensatory if there’s any – you know, alright, I’ve been getting these wrong so much, I’m gonna zig instead of zag.  I’m going to say “A” no standing to sue for trespass, it’s going against my instincts but my instincts have been killing me every time so I’m trying to zag or zig or whatever.  I’m predictable, this Bar Exam has been predicting my behavior.  [Laughs] I’m gonna go with A and think that maybe there’s some other tort that would cover this that’s not trespass because it is the landlord’s property so therefore you wouldn’t have standing to sue for trespass.   Psh, I don’t know, I think it’s wrong, but I’m going for it because I’m tired of getting these wrong.  A is my final answer.

Andrew:          Alright, and if you’d like to play along with Thomas you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your guess, your reasons therefore and we will pick a winner and shower that person with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:           Alright thanks so much for listening to our depressing show about how evil the Trump administration is, ‘cuz that’s honestly, it is reality.  So we’re forced to be in this reality.  But, you know, we can always vote, we can always organize and try to do something about it.  Keep energized, because we’re up against it.  Alright, thanks for listening we will see you on Saturday for that Q&A, come join us!  See you then!

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