Transcript of OA343: The End of the ACA? (Also: Some Stuff About Impeachment)

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to impeachmeeeeeent!!! [Celebratory clownhorns]  Put those sound effects in-

Andrew:         [Laughs]  I like how you did a little Michael Buffer, there!

Thomas:         [Laughs]  Yeah!  [Announcer voice] Let’s get ready to impeach in the Senaaate!  Hello everybody, it’s Opening Arguments episode 343, I’m Thomas, that over there is Andrew and that over there is impeach President Trump. 

[Trump – “So true!”]

Andrew:         Yeah, yeah!

Thomas:         It’s done.  Happened.

Andrew:         How’re you doing Thomas?

Thomas:         Oh I’m great.  I am doing great.  I said this on my rapid response Serious Inquiries Only with Jamie last night, check it out in fine podcast stores everywhere, that why don’t we take a second, just a minute before we go “well what about this and the articles should have been different” and just realize that we voted people into office in 2018 that made this happen.  It was crucial that we did that in the House and when you vote good things happen and this is a good thing! 

Andrew:         Yeah, yeah!

Thomas:         So let’s all just [Deep inhale] Ah! Just [Exhale], we’ll all breath through our stuffed noses from this winter’s infinite colds that we all have – that’s everybody, right?

Andrew:         [Exhale] Yeah, no that’s definitely me.  Yeah, I’m going out today – here it’s easier to get the Washington Post – but gonna get a hard copy of the New York Times I’m gonna save.

Thomas:         Oh, that’s a good idea!

Andrew:         Yeah, save that 87,000-point font “Trump Impeached” because you are living through a historic moment.  I wanna amplify what you said, I’m sure you said this on the SIO, it isn’t just that the vote wouldn’t have happened, literally this information would not have come out.

Thomas:         Yeah.

Andrew:         There would have been no public hearings, there would have been no investigations, there would have been no incentive for the whistleblower to come forward if the whistleblower knew that they were transmitting a top secret complaint to a Republican-controlled howler-monkey loyal Trump-

Thomas:         Yeah, I’m sure Jim Jordan would’ve been really … effective with that information.

Andrew:         Yeah, and the President wouldn’t had to have declassified the phone call, so literally all of this would’ve just been wrapped up under national security-

Thomas:         Mmm.

Andrew:         -and it would’ve been Jim Jordan saying “oh, look, the minority Democrats are railing on about these conspiracy theories but those of us who were authorized top secret clearance listened to the phone call, it was perfect, it was totally appropriate, nothing to see here.”  So it’s not just the impeachment, it is also the investigatory process, it is also the information.

Thomas:         Well that is scary to think about. 

Andrew:         Yeah.

Thomas:         Ugh, I’m so glad we won in 2018, that was crucial.  Good job everybody.  Alright, well we’ve got impeachment talk today of course, but also I saw this news flash and I was very curious to get Andrew’s take on it.  The end of the ACA, question mark?  [Laughs]  I’m nervous about this, it sounds like there was a ruling about the ACA.  Why has it taken this long?  Anyway, I’m sure Andrew will give us all the details but it seems weird that we’re still doing this.  I guess the wheels of justice – or injustice – turn slowly?  [Laughs]  Do the wheels of injustice churn as slowly as the justice ones?  I guess so.

Andrew:         Yeah, weirdly the wheels of injustice grind to a fine powder really quickly.

Thomas:         [Laughs]  

Andrew:         But yeah, a lot of folks wanna know the significance of the ruling, wanna know how is it that the 5th Circuit can overrule the Supreme Court which seems kinda weird, so yeah.

Thomas:         Yeah.

Andrew:         We’re gonna definitely break that down.

Thomas:         [Sighs] Oh fun, I’m excited.  We’ll see how that goes.  You wanted to tell people about Tuesday’s episode I think?

Andrew:         Oh I am super excited about this.  You have probably seen the reporting in the Washington Post and elsewhere that alleges that the Mormon church has hid a hundred-billion – that’s billion with a “b”-

Thomas:         Wow.

Andrew:         A hundred billion dollars in taxable assets.  Churches aren’t required to report much of anything so it’s difficult to know how wealthy that makes the Mormon church relative to other organizations.  I mean, you know, Catholicism, you’ve got the guy who lives in a gold house that I went to visit.

Thomas:         [Laughs]  God that’s so absurd.

Andrew:         Yeah.  They probably have over a hundred-billion dollars, but when you think about how small Mormonism is relative to the population-

Thomas:         Yeah, true.

Andrew:         Realizing that they’re a corporation as large as the top half of the Fortune 500 is kind of interesting so we’re gonna have our buddy, Bryce Blankenagel on next week who has inside information-

Thomas:         Hopefully he got his hands on some of that cash!

Andrew:         [Laughs]  

Thomas:         Oh no, probably not.

Andrew:         And, by the way, apropos of nothing, stay tuned for our latest top hall of fame patrons who somehow managed to dethrone Conrad Michaels.

Thomas:         By the way, Mormon church, we’ll take it all back if you just cut us in.  No!

Andrew:         [Laughs]  

Thomas:         I think we should measure the money that these churches horde just in terms of how many kids they could be saving, how many starving kids?  That’ll be the official measurement.  It’ll be like the Catholic church could be saving, I dunno, 100 million starving people and the Mormon church, we’ll see, could be 200 million, I don’t even know.

Andrew:         Yeah, so we’re gonna – this to me seems to be the perfect kind of Deep Dive Tuesday plus we get to talk tax law, which-

Thomas:         Ooh!

Andrew:         I mean, I dunno about you, there’s nothing I like at the holidays more than a deep dive segment on the minutia of tax-exempt organizations, but you like curling up with us at the holidays you’re gonna love next Tuesday’s episode.

Thomas:         Alright, good stuff, can’t wait!  We better get to it, though, however impeachment is later in the show we’ve gotta talk about some other things first and one of those is an Andrew Was Wrong.

Andrew Was Wrong – Irrelevant Syed Procedure

[Segment Intro]

Andrew:         Yup!  I was 100% wrong in describing an aspect of the procedural history in our episode 340 on Serial, very important for me to own up to mistakes, I wanna try – I’m doing my best here because I feel as though Collin Miller and the Undisclosed crew really have not interacted with this show in good faith, I know we have fans of that show among our listening audience, I’ll just leave it to you to address that.  It’s very, very difficult to call out yourself for errors and there is one, I’m gonna describe it, when the underlying – I responded back, the criticism was phrased as (quote) “you either haven’t read the opinion or you don’t understand it,” (end of quote) which, you know, whatever, I’ll let our listeners decide for that.

Thomas:         Yes, I kind of doubt that, personally.

Andrew:         Yeah… anyway.  I responded that the error that I made which, again, I’m gonna explain, was a result – I’m gonna explain how it got there.  It basically is a result of the format of this show because it’s something procedural that happened in 2015 that I was trying to condense and alight over because I’m already stuck on rabbit trails and we have a mostly non-legal audience, but look it’s important to be factually correct.  So I challenged Collin, I said how does this effect the analysis in the show at all?  He was silent on that, my view is that it doesn’t, I’ll let you listen. 

In order to explain this you need to understand that there are basically [Laughing] five layers that we talked about on episode 340 and this – the point of the show was to talk about the fifth layer, was to talk about what the Supreme Court did.  This occurred much earlier in the process, doesn’t affect the discussion but again, we wanna be correct.  So here are the layers: 

Layer number one is the Syed trial and its appeals, that’s the guilt or innocence, that’s what began in 2000 and then was affirmed on appeal to the Maryland Court of Special Appeals in 2003, that’s what the Serial podcast and the Undisclosed podcast were about.  We signaled that this was not – and we talked about it in episode 107.  We signaled that this was not remotely about that layer and it was why I began the discussion by saying no no no, we’re not gonna talk about blood lividity or, you know, the thumping on the table or Jay Wilds’ whereabouts or any of that stuff because all of that has to do with something that was done, closed, over, 2003, we covered it in episode 107, you can absolutely believe that Syed was innocent, that doesn’t affect our episode at all.  That’s layer number one.

So the second layer is the post-conviction relief.  That was filed in May and then supplemented in June of 2010, that was with the Circuit Court of Maryland which was the trial court, that was an allegation of ineffective assistance of counsel and there were, as we said on the show, nine bases for the alleged ineffective assistance of counsel.  Error occurred between that level two and level three, which was an appeal of that decision to the Maryland Court of Special Appeals, which is the intermediate appellate court in Maryland. 

Layer four was the appeal of that decision to the Maryland Court of Appeals, which is our State Supreme Court where we discussed that opinion rather thoroughly, and then layer number five was the effort to get the Supreme Court to review that layer number four which was denied and which was the subject of our show. 

So what happened?  That layer number two that we talked about, the first ineffective assistance of counsel, was filed in 2010.  There was a hearing in 2012 and then the Court of Appeals denied post-conviction relief entirely in January of 2014.  When that happened, Syed filed a petition for review in the Maryland Court of Special Appeals. 

Now, while that petition was pending, in January of 2015 Asia McClain produced a new affidavit.  In that affidavit she said, number one, she recalled seeing Syed at the library at 2:30 on the day of the murder.  Two, that no one from the defense team, from Syed’s defense team, had contacted her even though she would’ve been willing to tell her story.  And number three, that the reason she’s producing an affidavit in 2015 about a trial that occurred in 2000 was that she did an interview with NPR a year previously, in January of 2014, which then made her feel like she should produce the affidavit.

Now I didn’t go into this in our episode for two reasons, number one because it’s starting to get back into the facts and I was trying to present the case without re-litigating some of those issues.  I would point out that some of the problems with the affidavit are discussed, not only in the majority opinion, but also in Judge Watts’ concurrence.  But didn’t wanna get into that in our initial discussion ‘cuz it’s not remotely relevant and also because I didn’t wanna be accused of any well-poisoning, although it’s not hard to raise the questions that were raised in court about the affidavit showing up in 2015.

Nevertheless, on the basis of that affidavit, Syed then supplemented his application for leave to appeal the denial of his ineffective assistance of counsel and asked that the Court of Special Appeals reopen, redirect those proceedings then remand the case back down to the Circuit Court to say hey, in light of this affidavit we want you to reconsider your prior ruling.  The Court of Special Appeals did that.  Then the trial court made the following holdings – so in other words, the Court of Special Appeals says yup, you’ve got a new affidavit, you get to go back to the trial court, you get to reopen and you get to make additional allegations regarding ineffective assistance of counsel in light of this new affidavit.

Now I’m gonna read directly from page 4 of the Court of Appeals opinion describing the procedural history.  Summarized it last time, I’m gonna read directly from the opinion this time. 

“The post-conviction court first denied relief to Mr. Syed on the issue of his counsel’s failure to investigate Ms. McClain’s claim as an alibi witness for the reasons,” and I just wanna say parenthetically, that’s for the reasons that we described in the show.

Thomas:         Right.

Andrew:         That it was deficient but not prejudicial.

Thomas:         Okay.

Andrew:         So the trial court denied on Asia McClain.  Number two, held that Syed waived his right to allege a Brady violation with respect to the cell tower evidence because he had not raised that around the first time, and the affidavit didn’t affect that at all.  But three, with respect to “Syed’s claim of ineffective assistance of counsel concerning his trial counsel’s failure to challenge the cell tower location evidence,” the court ruled (quote) that “Mr. Syed’s trial counsel’s failure to challenge the cell tower information was both deficient and prejudicial.”  So that was the grounds upon which the trial court said yes, you had ineffective assistance of counsel.  As a result, that post-conviction court vacated the convictions, granted Syed a new trial. 

The Court of Special Appeals reversed on both of those holdings.  So in other words, the Court of Special Appeals said no, you don’t get a new trial on the basis of the cell tower stuff, that’s waived along with the failure to challenge the Brady violation.  You could’ve raised that back in 2010 and you didn’t, but we do think that the Asia McClain stuff was both deficient and prejudicial.  So in other words, the same result, you get a new trial on the basis of ineffective assistance of counsel, but reversing the reasons of the trial court.

Then, as we correctly said on the show, the Court of Appeals reversed on the Asia McClain issue and said no no no no no, guess what, the Asia McClain stuff – effectively reinstated the trial court opinion and said that the Asia McClain stuff was deficient but not prejudicial, which we correctly described on the show.

So the error was in saying – again, the way we said it, I could explain why I did it that way, but it was an error on my part that the Court of Special Appeals affirmed on Asia McClain and was then reversed by the Court of Appeals.  Not true, the Court of Special Appeals reversed on Asia McClain and was then reversed by the Court of Appeals.  Now we accurately described the Court of Special Appeals hearing and the Court of Appeals hearing as well as the cert petition.  So as I said, I don’t think it affects our analysis at all and if anything it makes the factual discussion stronger. 

If you are still interested in the minutia I would encourage anybody to go, not just read the Court of Appeals opinion, but specifically read the Watts concurrence because the Watts concurrence suggests that it was not even deficient.  So if you wanna pick a fight with somebody, go pick a fight with Judge Watts of the Maryland Court of Appeals.  We have now accurately described the procedural history of the case, like I said, don’t think it affects our discussion at all but it’s important to call out.  Some of our listeners did, I think, engage in good faith on this and it’s important to be accurate, that’s balancing the needs of mass communication with accuracy.  Wanna have full disclosure, there you go.

Thomas:         Alright, let’s get onto our … other stuff.

Andrew:         [Laughs]  

The Gutting of the Affordable Care Act

[Segment Intro]

Thomas:         Let’s talk about this ACA ruling.

Andrew:         Yeah.

Thomas:         Why now? 

Andrew:         Here’s why now.  You ask exactly the right question, which is we had NFIB v. Sebelius in 2012 that upheld the Affordable Care Act’s individual mandate, why are we here?  What is going on? 

We’re here because we elected Donald Trump in 2016, and to understand exactly the damage that Trump has done we have to go back to that NFIB ruling from 2012, in which you may recall the Supreme Court very narrowly, 5-4, Justice Roberts flashing his moderate credentials, held inexplicably that a directive that requires Americans to purchase health insurance is not part of the commerce clause power of the U.S. Congress.  That is a broadly-sweeping and ahistorical view of the commerce clause.  The rational was, well, Congress can regulate commerce but they can’t require you to participate in commerce – which is a distinction that is utterly unmoored from any historical precedent and greatly confines the power of the federal government in ways that are frankly shocking. 

That, of course, Roberts was joined by the howler-monkey contingent.  But where he broke was to say that nevertheless, the Obamacare individual mandate was constitutional as a tax.  Everybody said, well, doesn’t really matter how we got here, the good part, yay, let’s celebrate, we got here, at least it’s constitutional.  This is one of the reasons why I do the show and why it does matter how you get there, because you may recall what happened in 2017, which is the Trump tax cuts reduced the-

Thomas:         Oh, yeah.

Andrew:         -ACA penalty down to zero.  We talked about this on the show.  So the way in which the tax was allocated was, there was what was called in the law a “shared responsibility payment,” that’s the penalty for failing to comply with the individual mandate.  So the 2017 tax bill reduced that down to zero, and not only does that gut the economic incentives behind Obamacare as part of the conservative effort to undermine the effectiveness of Obamacare because, look, [Gritted teeth] the only way you can have healthcare in a country like this is by grouping together high risk individuals with low risk individuals.  That’s the only way the economics of this thing work.  So, fine, let people out of the penalties of requiring them to buy insurance, then it’s harder to spread risks, premiums go up and you get to say “look how bad the ACA is.”

But there was a second [Sighs] front in this war, and that was the second that the tax bill passed, 18 conservative States – it was originally 19, it was joined by Wisconsin but then Wisconsin elected a Democratic governor and they declined to join in the litigation – they petitioned to withdraw from the litigation.  18 conservative States went to court for a declaratory judgment and an injunction that now the Obamacare mandate was no longer constitutional, and here’s what they argued.

They said look, this was justified by NFIB v. Sebelius as a tax, but it can’t be a tax anymore because it isn’t generating any revenue.

Thomas:         [Sighs]

Andrew:         So then they argued, and the individual mandate was essential to – and here’s the legal term – “inseverable from” (end of quote) the rest of the ACA, so that means once the individual mandate goes the entirety of the ACA has to go with it.  So they said “we want a declaration-

Thomas:         Okay. 

Andrew:         -that all of the ACA is unconstitutional and should therefore be enjoined and declared null and void.  Go ahead.

Thomas:         If that little tax thingy was inseverable from the ACA, how was it that Trump’s congress was able to just target that one part and change it?

Andrew:         Super great question!  And in fact that is – spoiler alert – this decision that just came out from the 5th Circuit – in the procedural history we’re still talking about what happened at the State Court level, but the decision that came out two days ago was a 2-1 decision and [Laughing] that is essentially what the dissent says.  So exactly-

Thomas:         You get a lot of that in this era.  Oh yeah, that great point is exactly what the dissent said because we [Mumbling] lo – the world is over.  But the dissent made a really great point when they said no, you shouldn’t take away everyone’s human rights or something.

Andrew:         Yeah.  So first let’s talk about the practical consequences of this.  The individual mandate of the ACA has been gutted.  That has made the exchanges in most states less competitive, ‘cuz that’s the point, but other provisions of the ACA remain in effect.  Those provisions are saving lives.  Those provisions include the prohibition on insurance companies from disqualifying individuals with pre-existing conditions-

Thomas:         Yeah, that by the way the most popular thing in politics.

Andrew:         Yup.

Thomas:         I’m pretty sure that issue polls higher than most anything, bipartisan. 

Andrew:         Yeah, that polls higher than “should we give out puppies to everybody who wants them.” 

Thomas:         Yeah.

Andrew:         Absolutely.  Also what is called the guaranteed issue requirement, which prevents insurers from declining customers because of their health; the community rating requirement which prevents insurers from charging more because of pre-existing health issues.  So you’ve covered, you’ve said you can’t deny, you can’t discriminate on the basis of health, you also can’t stick them in a super high-risk pool and require them to pay more for things that aren’t their fault.  Also the law requiring coverage for certain types of care including children’s preventative medicine, the law requiring that insurance companies allow parents to maintain children on their insurance until age 26, and of course, the provisions of the law setting up State exchanges.  If this decision is upheld it would invalidate all of that. 

That is the game, that is the desire.  Insurance companies, in collaboration with the right wing of the Republican party want to be able to deny coverage to individuals for pre-existing conditions.  That’s what they want because it cuts into their profit margins. 

So the lawsuit was filed and [Sighs] because it was filed at the end of 2017, beginning of 2018, the Department of Health and Human Services was the Trump Department of Health and Human Services, so they didn’t exactly mount the most spirited defense.

Thomas:         Right.

Andrew:         They said, yeah, we totally agree!  Yeah these are all- the individual mandate’s not constitutional, it couldn’t be severed, so a bunch of States were permitted to join as intervenors.  This case, by the way, was brought in the Northern District of Texas because of course it was. 

So what the District Court was doing was ruling on the questions of constitutionality and severability.  The constitutionality portion really doesn’t matter under Trump because the penalty’s been reduced to zero, so the question of is that penalty constitutional or not?  [Laughs]

Thomas:         Yeah.

Andrew:         You know, it makes zero – no pun intended – practical difference whether you keep a law that – you declare that the law can’t be enforced because it’s unconstitutional or you say oh, we’re gonna keep this law on the book and fine you zero dollars.

Thomas:         Yeah, in fact, double it!  Nay, triple it!

Andrew:         [Laughs]

Thomas:         Doesn’t matter.

Andrew:         Yeah, exactly.  But then the question is the severability question.  You could easily imagine – I’m gonna give you the legal test, but before we get into the mechanics of the law it’s not hard to imagine why you have this severability test.  If you just take your red pencil and strike out the provisions of the law that are unconstitutional you could very easily wind up with Supreme Court results that totally change the content of the underlying legislation, where you say okay, this tax is unconstitutional but the thing the tax funds is constitutional so we’re gonna strike out the tax but you still have to build the thing.

Thomas:         Hmm.

Andrew:         You could easily imagine results that make no sense.  Now it is preposterously obvious that all of the regulatory provisions of the ACA are severable from the tax portion, but that is not what the Northern District of Texas found.  The Northern District of Texas found, nope, sorry, everything that we just talked about, all the regulations about pre-existing conditions, keeping kids on ‘til 26, you can’t sever that out from the individual mandate.  The individual mandate’s unconstitutional so the whole thing has to go away. 

When that decision came out I had put it on the white board and actually bumped it off because it was like, look, I can’t cover every week stupid district court decisions that invalidate laws that have no chance of being upheld.

Thomas:         Not until we start our spinoff podcast, that is!

Andrew:         [Laughs] And especially not with Trump filling up the federal judiciary with people rated unanimously not qualified by the American Bar Association.

Thomas:         Hmm.

Andrew:         So, yeah, I was gonna talk about it and then I’m like you know what?  There’s a lot of horrible stuff going on, I’m just gonna rile people up.  This decision – the effect is gonna be stayed pending appeal and it’s not like the 5th Circuit is gonna affirm this nutball court.  [Sighs] In fairness to me?

Thomas:         [Laughs]

Andrew:         Question mark?  The 5th Circuit didn’t entirely affirm this nutball court. 

Thomas:         [Laughs]

Andrew:         Here’s what they did…

Thomas:         I like to imagine that’s the language.  “We don’t entirely affirm this nutball court!”

Andrew:         [Laughs]

Thomas:         Hey why don’t we leave a little cliffhanger on what they did while we hear from the sponsor.

Andrew:         I like it!

[Commercial – promo code “OA”]

Thomas:         Alright, what’d they do with this nutball court?

Andrew:         So two issues.  First, constitutionality.  They were like well obviously the individual mandate is unconstitutional. 

Thomas:         [Laughs]

Andrew:         This is from page 44 of the opinion.  (Quote) “The individual mandate—most naturally read as a command to purchase insurance—was saved from unconstitutionality because it could be read together with the shared responsibility payment as an option to purchase insurance or pay a tax. It could be read this way because the shared responsibility payment produced revenue. It no longer does so. Therefore, the most straightforward reading applies: the mandate is a command. Using that meaning, the individual mandate is unconstitutional.”

Now without going into it, I think there are very strong arguments to the contrary, but I have to say, this reading on constitutionality is not an indefensible reading.  It goes back to the core problem.  We weren’t doing the show in 2012 but if we had I would have said, when NFIB v. Sebelius came out, celebrate at half-mast.  Give a quiet “woo” into the microphone but not a huge one because this ruling contains an awful lot of bad stuff that’s kind of a poison pill in it.  Characterizing it as a tax in order to save it leads to this as a defensible application of the law.

Again, I am, I think, persuaded the other way, but I want to – in contrast to part two of the Court’s ruling – I want to say that this is not – the 5th Circuit’s job is to interpret the law under binding Supreme Court precedent and in light of NFIB v. Sebelius this is not an unjust or inappropriate reading of the law.

Then we get to severability, and I’m gonna read you the test.  So we’ve talked about, practically, you don’t wanna create a hodgepodge mishmash of the law by striking out the unconstitutional stuff and leaving stuff behind that makes no sense.  But remember, striking a law as unconstitutional is a pretty serious thing for the Supreme Court to do, so in our nation’s history the default principle is if the law can be saved it should be saved.

Thomas:         Hmm.

Andrew:         Because Congress passed it! There are other canons that go along with that, which is if it’s possible to interpret a law in such a way as to render it constitutional then you should interpret it that way.  If the law is otherwise ambiguous and you could either interpret it in such a way as to make it constitutional or you could interpret it in an unconstitutional way and strike it down, liberal courts, conservative courts, juris across the spectrum are like yeah, obviously you do that first one.  We wanna preserve the legislative independence insofar as is possible.

So the severability test is a two-step process.  The first asks whether the constitutional provisions standing on their own with the unconstitutional stuff crossed out are (quote) “fully operative as a law.” (End of quote).  Not whether they would simply operate in some coherent way that was not designed by Congress.  What that means is, literally when you cross off the words does the sentence make sense?

Thomas:         [Laughs]

Andrew:         Can you still do it?  Now there is no argument here, and there is no argument at the trial court level, no argument in the 5th Circuit.  Obviously the provisions regulating the insurance industry make sense as standalone legislation.  In fact, Congress regulates the insurance industry all the clownhorning time!  That’s core interstate commerce, so yes, it’s fully operative as a law.

Then if it is, if it passes that first test, you ask the second test which is even if the remaining provisions can operate as Congress intended them to, the Court must determine if Congress would have enacted the remaining provisions without the unconstitutional portion.  If Congress would not have done so then those provisions must be deemed inseverable.  That comes from a case called Alaska Airlines

Here I want you to think back, for example, when we talked about the 1994 crime bill that had gun control legislation in it but it also had some relief for the gun industry, it also had conservative positions in it.  This was the (quote) “super predators bill,” we’ve discussed this on the show.  But it was a classic example of sausage-making legislation during the Clinton years.  It had higher mandatory minimums and all sorts of other things that were designed to get varying legislators to the table. 

The Alaska Airlines case stands for the proposition that if the Court strikes out all of one side’s goodies from a piece of sausage legislation then you look at it and you’re like “yeah, okay.”  So again, imagine now sort of time travel the D.C. v. Heller Court back to 1995 and say the Supreme Court strikes down the assault weapons ban in the crime bill but leaves everything else intact.  Well now all you have is you have a harsher mandatory minimum sentences bill and the question would be would Congress have passed that thing-

Thomas:         Really?  They really ask that? 

Andrew:         Yeah, they really do.

Thomas:         That’s very interesting.  I never would have thought… so that was supposed to be how the Supreme Court judges this?

Andrew:         Yeah, yeah.

Thomas:         I really would have thought, as a layperson I would have thought as long as – I thought you were gonna say if it’s kind of dependent on the part that they struck down then you would strike down the whole thing but you really go back into they have to evaluate the strategy of the tradeoffs of the bill and say this thing wouldn’t have happened here if this other thing didn’t?

Andrew:         Yeah.  Let me read you the line.  I wasn’t gonna get into the Alaska Airlines case but let me read you the holding of that case.  It’s framed in the negative, but it makes the point.  It says, “the unconstitutional provision must be severed” that is, taken out and let the rest of the law stand, (quote) “unless the statute created in its absence is legislation that Congress would not have enacted,” (end of quote).

Thomas:         Huh.

Andrew:         So absolutely you can go to Court and go yeah, no if you strike down this provision you’ve got to get rid of the whole law because what you would leave us with is something Congress would not write.

Thomas:         Huh.

Andrew:         Yeah!  So that’s right, it’s part of why I wanted to go through this.  So the severability test, I agree with you, on face you would say if something is inseverable you think of it as you pull the keystone out of an arch and the entire arch collapses, but this is more like well if you were to take off the decoration then you wouldn’t have built the arch in the first place.

Thomas:         Huh.

Andrew:         The metaphor’s gonna break down, but yes, you do that sort of reverse inquiry into what Congress would have done.  Is this legislation that Congress would have enacted? 

The 5th Circuit didn’t say that the provision was severable.  What they said was that the District Court didn’t do the hard work of going through all of the provisions of the ACA to figure out which, if any, were severable. 

In other words they said you just concluded too quickly.  You were right, District Court, that this is unconstitutional, but you didn’t go through line by line to figure out which provisions – whether they were severable or not, whether they would have survived scrutiny or not – so we’re gonna remand this back down to the trial court and we want you to do the hard work of figuring out which provisions, if any – and the decision very clearly says “we are not prejudging that there are any provisions that are severable, but we’re saying you’ve gotta do a better job than you did in your initial trial court decision.”

As I mentioned, this drew a dissent that basically says that’s bananas in pajamas.  Page 63, I’m just gonna read from it because I think it’s eerily how prescient you were, Thomas. 

Thomas:         Hmm.

Andrew:         “But again, the majority disagrees. It feels bound to ask whether Congress would want the Affordable Care Act to remain in force now that the coverage requirement is unenforceable. Answering that question should be easy, since Congress removed the coverage requirement’s only enforcement mechanism but left the rest of the ACA in place”

Thomas:         Yeah.  No kidding!

Andrew:         “It is difficult to imagine a plainer indication that Congress considered the coverage requirement entirely dispensable and, hence, severable. And yet, the majority is unwilling to resolve the severability issue. Instead, it merely identifies serious flaws in the district court’s analysis and remands for a do over, which will unnecessarily prolong this litigation and the concomitant uncertainty over the future of the healthcare sector.” (End of quote). 

That is a dissenting judge in the 5th Circuit, that is not just my editorial gloss.  You can see the palpable unrest at what, in my mind, is a completely untenable decision.  Here’s what’s gonna happen next.  The State intervenors are very likely to petition for an en banc re-hearing before the entire 5th Circuit.  If they lose on that they will then petition to the Supreme Court.

Thomas:         And that’ll go great.

Andrew:         The Supreme Court – well, remember, the lineup from NFIB has not changed since 2012.  Kennedy was with the minority-

Thomas:         Oh, okay.

Andrew:         -that would have struck down, and Scalia – so replacing Kennedy and Scalia has not changed the lineup that produced a 5-4 victory in 2012.  There is some cause for optimism at the Supreme Court level.  But I wanna describe what’s really, really gonna happen here.  Even if the Supreme Court affirms this opinion, what that would do is send back down to the District Court to figure out which provisions of the Affordable Care Act can remain.  All of that is going to happen long after we have a new President in 2021.

Thomas:         Huh.

Andrew:         So I want to give a shoutout to both wings of the party here as we go through the primaries.  We’re recording this before the Democratic debate, if this is not a major issue in the debate tonight-

Thomas:         Oh yeah.

Andrew:         I will be disappointed.  First, shoutout to our Bernie-bro contingent, and this time I mean that with love, I said I’m trying to make sure I don’t use that as derision there, I’m using it to poke fun at myself.  100% seriously, the contingent, the furthest left Bernie Sanders supporters from our audience who are saying that the centrist style candidates – now that’s pretty – Pete Buttigieg is sort of all over the place, but certainly when Joe Biden says we’re gonna build on the ACA-

Thomas:         Yeah, what ACA?

Andrew:         Yeah, that is no longer a tenable position to say.  Far lefties, you are correct, you win on that one.

Thomas:         Well if I know Joe Biden that means he’ll adjust his talking points in 20-30 years probably.

Andrew:         [Laughs] Right!  But now, let’s hit the entire diversity of our audience from the far-left to the left.

Thomas:         Yeah, let’s lose all our fans!  Here we go!

Andrew:         But the flip side is also correct, which is if you don’t – look, I’m not a huge fan of the more rightward proposals coming out of the primary, but if you don’t look at all of that and go, ranking from continuing to tinker with the ACA to Medicare for all who want it to Medicare for all on a phase in to Medicare for all immediately – if you don’t see that the distance between those proposals is a universe away from Thunderdome, which is what the Republican party wants. 

The Republican party wants nothing, they want not only no new provisions but they want to undo the basic provisions of fairness in the ACA and are actively working to do that through the courts.  If you can’t see that you have more in common with Pete Buttigieg then you have in common with the Thunderdome proposal, I don’t know how to illustrate this any more sincerely than that. 

So yeah, pick the healthcare plan coming out of the Democratic primary that you like the best, pick the candidate that best blah blah blah blah blah.  Everything we’ve already said.  But don’t lose sight of the fact that if your version doesn’t come through then the alternative is let people die, particularly sick people, particularly sick kids.  That is literally the proposal coming off of the other side.  So just hitting that message again, [Sighs] but maybe the fact that I put a teaspoon full of sugar up front will, uh, help sell it to the whole audience?  You hope?

Thomas:         Look, either way we just need a Democrat in there. 

Andrew:         Exactly.

Thomas:         That’s the point.  But yeah.  Alright, we’re – [Sighs] we’re like 50 minutes in here.  Can we talk about the fact that the President was impeached, Andrew?  Do you mind?

Andrew:         Well…. Okay.

Thomas:         [Laughs]

Andrew:         [Laughs]

Thomas:         Alright, Brian!  Hit the yodeling!

Yodel Mountain – Trump Impeached!

[Segment Intro]

Thomas:         Yeah, we gotta yodel.  I mean if not now then when do we yodel, really?

Andrew:         [Laughs] If not now, when?

Thomas:         A, always.  B, why yodeling?

Andrew:         [Laughs] Oh man!  At some point we need a Patreon goal to reprise that scene from Glengarry Glen Ross-

Thomas:         [Laughs]

Andrew:         And get Alex Baldwin in – I’ll be Alec Baldwin – I said Alex, but-

Thomas:         Hmm.

Andrew:         I bet Alec Baldwin would do an Always Be Yodeling for us, right?

Thomas:         Sure.  Alright, enough filibustering-

Andrew:         Coffee is for yodelers! 

Thomas:         [Laughs]

Andrew:         Alright.  Anyway, yeah, so historic vote on impeachment.  By the way, I’m a little annoyed that mainstream media outlets are reporting it as two Democratic defections, zero Republican defection.  Justin Amash is a Republican.

Thomas:         Yeah.

Andrew:         The fact that he signaled his defection and they kicked him out of the party is a bad thing!

Thomas:         Yeah.

Andrew:         Yeah, you kicked the guy out of the party who was gonna support the other way, and 50% of the Democrats that voted against it – Article 1 anyway – are planning to re-register as a Republican anyway, so a little misleading on that, but in any event, party line vote, no surprise, the big thing-

Thomas:         We don’t have time but if you wanna hear about the bravery that is Tulsi Gabbard in voting “Present” check out my show.

Andrew:         Oh god.  [Sighs]

Thomas:         What a stand.

Andrew:         I can only – I feel like, I guess if we’re gonna do a little bit of a sidebar, you did the fabulous episode on the Hillary Clinton interview as someone referring to Tulsi Gabbard as a potential unwitting Russian asset.  I’m kind of amazed that that, as far as I can tell, that really worked. 

Thomas:         Ha.

Andrew:         In the Democratic-

Thomas:         In that, you mean Hillary said “a Russian asset says what?” and then Tulsi went “what what what what what what?!” and hasn’t stopped doing that for the whole time?

Andrew:         Yeah, and has imploded!

Thomas:         Yeah.

Andrew:         And Tulsi Gabbard is basically the, whatever stealth campaign she was running is gone, it’s evaporated.  I don’t view her – I didn’t view Jill Stein as any danger either, so let me hold off on my prognostication skills, but great political work by Hillary Clinton, seriously.

Thomas:         [Laughs]

Andrew:         So in any event, I haven’t heard that yet because I was still prepping for the show all morning but I can’t wait to toon in tonight and like I said, you’ve done such a great job covering-

Thomas:         Ah, thanks, but enough of that!  People wanna hear your take Andrew! Get to it.

Andrew:         So the biggest question that folks have been asking me since last night has to do with the procedure of what happens next.  Let me cut to the punchline, I don’t know. 

Thomas:         Oooh.

Andrew:         So here’s what happened.  The House voted out the articles of impeachment, Mitch McConnell immediately said “this unprecedented blah blah something!” and then went on and had a 30 minute screed that was really hard to watch, this one.

Thomas:         [Impersonation] Ohho, the Democrats don’t respect norms [Mumbling] It was something like that for an hour.

Andrew:         Right.  The reason – look this is one of these, I have this on our white board as “McConnell gonna McConnell,” but we knew last night that the reason McConnell said “this is an unprecedented impeachment,” as if a data point of one in the past 130 years is something from which you could draw-

Thomas:         Yeah, as opposed to one of those totally routine impeachments that happens the third time in our history.

Andrew:         [Laughs] Right, and the twice in even Mitch McConnell’s lifetime.

Thomas:         Right.

Andrew:         But the reason you use the word unprecedented is so that you can then justify breaking precedent.

Thomas:         Yeah.

Andrew:         There was no need for McConnell to do this!  It’s like he doesn’t even listen to the show.

Thomas:         [Laughs]

Andrew:         Seriously!  He could go back and play our old episode and just say – this is what I would do if I were Mitch McConnell, I’d be like okay, great, we’re gonna use the exact same rules that the Democrats in the Senate used for the Clinton impeachment in 1998, 1999 by the time it was referred to the Senate.  Those rules permit initial motions and had serious constraints on the testimony of witnesses. 

You would’ve been able to do all of the McConnelling that he wants to do while still saying, yeah, okay, great, we’ll play by the rules.  We’ll play by the established rules set in the precedent by the Clinton impeachment and he would have totally outfoxed everyone, but Mitch McConnell just can’t help himself.  Apparently he wants to craft rules such that there isn’t really even a trial at all?  Who knows what’s going on in the demented mind of Mitch McConnell?

As a result – the discussion came out as a result of, I believe, an op-ed written by our friend, my former professor Laurence Tribe.

Thomas:         Yeah.

Andrew:         This was written in the Washington Post a couple of days earlier, and we’ll link it in the show notes that basically said if it’s going to be a sham impeachment then the House should decline to refer over the articles of impeachment until they can be guaranteed that the trial will not be a sham.

Thomas:         Yeah.

Andrew:         Obviously never been done in our nation’s history, there is zero case law, there is zero historical understanding of this.  Here’s where it comes from.  Article 1 Section 2 of the constitution says this, says “the House of Representatives shall chuse their speaker” – by they way, chuse is spelled C-H-U-S-E because it’s old timey English, we’re only a few centuries removed from Saxony.  “Shall chuse their speaker and other officers and shall have the sole power of impeachment.”  That’s it.

Thomas:         Hmm.

Andrew:         That’s all it says.  It then says in Section 3, the Senate shall have the sole power to trial impeachments then describes when sitting and then the penalties for judgment which we’re gonna talk about in the next mini segment, but if the House has the sole power I certainly read that as the House can vote out articles and then establish conditions and say no, we’re not gonna refer this over for a trial yet until we have a firm agreement on policy.

By the way, that’s what happened during the Clinton impeachment.  The Senate crafted rules and they voted 100 to nothing to send those rules to the House of Representatives which then appointed – the House of Representatives that sat on the Judiciary Committee as managers to try the impeachment.  There was no prior delay because everybody agreed to the ground rules.  So this is a way of saying hey, we voted out impeachment, that’s happened, but we’re not gonna start until we’re clear on the ground rules. 

And that baseball metaphor, it’s actually a better metaphor than I thought.  [Laughs] I’m coming up with it sort of off the cuff here, but I was involved in a baseball, a 12 U playoff game in which it started at 4:30 and we were the visiting team, and the sun, based on where the field sat, the sun was just right over the trees and if you stood in at the batter’s box it was pretty much impossible to see the ball.

Thomas:         [Laughs]

Andrew:         Seriously, we were taking warmups and our kids were up there and we were soft tossing underhand and they were like, well I’m staring into the sun, I can’t see anything.  So when the umpire showed up we were like, yeah, look at the sun, we’re the visiting team, that sun’s gonna be down under the trees in five minutes, we’re not starting this game at 4:30, going up, our top three hitters strike out, then the sun goes down below the trees and the opposing team gets to bat.  We sat and we debated the ground rules.  The umps were like nope, game’s gotta start at 4:30 so I- [Laughs] this is why you should always have a lawyer as one of your assistant coaches on your child’s sports teams!  So our coach was screaming mad, I just pulled him aside and I’m like have the umps go over the ground rules with you.

Thomas:         Yeah.  Okay, define a baseball!

Andrew:         We did not go define baseball, but we were like, okay, we understand, now we need to make sure we go over all the ground rules.  The umps were like what do you mean the ground rules?  And we’re like okay, where’s foul territory?

Thomas:         [Laughs]

Andrew:         We did this and we filibustered-

Thomas:         Filibuster baby!

Andrew:         -for like three minutes and finally the umps were like alright, fine, we’ll just start as soon as the sun goes below the trees.

Thomas:         That’s awesome.

Andrew:         And it did and we started and we won.

Thomas:         What kind of A-hole designed that field, by the way?

Andrew:         Yeah, well… [Sighs]

Thomas:         Bad idea.

Andrew:         It was a terrible idea!  So that’s what Nancy Pelosi is doing.

Thomas:         Huh.

Andrew:         Nancy Pelosi is holding up the process until there is an agreement-

Thomas:         Now [Sighs] this is interesting though-

Andrew:         We don’t know.

Thomas:         If this is all unprecedented, as you’re saying, what would then stop McConnell from just saying [Impersonation, Muttering]  I just wanna do – it’s fun to do that voice.  [Impersonation, Muttering]  We’re holding the trial.  Like can he just start the thing and just say it doesn’t matter that you didn’t … whatever?

Andrew:         Nope, because the House has the power of impeachment.

Thomas:         Yeah, which they did that, they impeached.

Andrew:         Right.  The Senate has the power to try them.

Thomas:         Yeah, so he can just be like you impeached, I’m trying them.

Andrew:         [Laughs]

Thomas:         Seriously, we’re talking about what’s written in the constitution, does it say that a dog can’t play basketball and that they have to send over a note or something?

Andrew:         So it does not say. 

Thomas:         That’s what I’m saying, so he can match the unprecedented nature of what Pelosi is doing by just saying well, we’re interpreting this as once you’ve voted it then it’s our turn?

Andrew:         So the only thing [Laughs]

Thomas:         I’m just trying to think like a turtle, Andrew.

Andrew:         Yeah, yeah.  [Laughs] It’s a really, really good question.  I would say there are two things that operate here.  The first is at the end of the day the Supreme Court is not going to get involved.

Thomas:         Mm-hmm.

Andrew:         There is no adjudication as between the bodies so it seems like that lack of agreement favors the Pelosi position.  If Pelosi says “we haven’t transmitted the impeachment to you, you don’t have jurisdiction over this yet,” and they say “yes we do,” you can’t stop Mitch McConnell from gaveling in on Monday and being like okay, well, we’re gonna start this thing anyway.

Thomas:         Yeah.

Andrew:         But the question is, what looks like more of a sham?  Boy, I don’t know.  That’s why I’m saying, that’s why I began the segment with we don’t ultimately know what’s going to happen, but it strikes me that certainly in the short term that probably the House has the better of the argument, not just from a historical perspective, I read you the text, I’m sure Alan Dershowitz can come up with some kind of convoluted argument as to – well once impeachment happens then it’s automatically referred over even though that’s not the way prior Presidential or judicial impeachments have been handled. 

Thomas:         Right, but you’re saying this isn’t – this is all unprecedented so I think it’s fair-

Andrew:         It is – right, because there was no agreement on the underlying rules that were then communicated back to the House.  But I will say this, here’s the position that if you’re Pelosi and Mitch McConnell attempts to convene the impeachment trial on Monday, you would say you can’t convene until we choose our managers, until we pick-

Thomas:         Hmm.

Andrew:         -who it is that’s going to prosecute the case.  And every impeachment has operated on that basis.

Thomas:         Yeah.

Andrew:         In other words, it’s not the sending of a piece of paper that is the trigger, it is we haven’t finished the thing that we have to do in order for this to be a trial and in order for your Senate jurisdiction to take over.  I think that’s the strongest argument, hey, every impeachment we’ve ever had of judges of Presidents, the House – which as the constitution points out has the sole power of impeachment, gets to pick who prosecutes the case and we haven’t picked that yet so you can’t start it.  I think that’s the better part of the argument. 

Again, all of this is gonna be fought in the court of public opinion, there’s zero chance that the Supreme Court is going to intervene and rule on one side or the other, so we’re gonna watch this play out and that’s why there’s a huge question mark on our white board as to the President’s been impeached, what does that mean?  Could the stalemate go on for over the holidays?  It could, none of us know.

Thomas:         Then I mean [Sighs] this is kinda weird though, because if the whole point was like let’s get this impeachment done for the holidays but it’s not gonna go to the Senate – I don’t really understand.  I guess Pelosi didn’t want the House to be messing around with it in the election year I guess?  But I don’t know, it seems like you could just … Doesn’t this mean, if they’re going to do this couldn’t they have just done the thing where they wait while they battle it out in the courts to get Trump’s witnesses that he’s not allowing to show up?  They could have done that-

Andrew:         They sure could have.

Thomas:         They could’ve also just had more hearings, had more witnesses.

Andrew:         Look, I don’t think… But again, noting that the question now is court of public opinion not legal court, I think there is a difference between it being the Democrat’s fault for political considerations or other considerations for not bringing impeachment charges, for delay on their side, versus the Democrats going hey look, we did our job, we moved expeditiously, we invited the President to participate at every stage and now all we’re saying is you have to tell us what the rules are so we can start the trial and you won’t let us do that.  That strikes me as a different position politically than the first one.

It also strikes me as, in a position where previously – look, the alternative is for Nancy Pelosi to name House managers who are gonna prosecute the case – Adam Schiff and most of the rest, probably a handful of folks from Judiciary, but most of the rest of the Intelligence Committee, those are who the managers are gonna be, to name it, transmit it over, and then you’re done, then Mitch McConnell gets to run roughshod over the process.  This at least gives you some skin in the game.

Thomas:         Hmm.

Andrew:         It could backfire, but it certainly shows, I think, that Democrats have learned something from 2016 where Mitch McConnell hijacked a Supreme Court seat and said you know what?  We’re not gonna let him do it, we’re not gonna let Mitch McConnell hijack this thing, we’re gonna make sure we know – McConnell’s gonna McConnell, but we’re gonna make sure we can do everything we can to try and stop or at least mitigate the damage of what he’s gonna do.  So that’s the game plan and it’s gonna be really fascinating, I can’t wait for next week’s show!

Thomas:         Hmm!  I always can’t wait for next week’s show!  Wait, isn’t it like Christmas?

Andrew:         It is!  We will be recording the day after Christmas, so-

Thomas:         Hmm, ‘twas the day after Christmas and all through the yodel mountain-

Andrew:         -and all through the House of Representatives.

Thomas:         [Laughs] Yeah!

Andrew:         Not a creature was stirring, not even a sedative.  Now wait, nothing rhymes with representative, dammit!

Thomas:         Yeah… tentative…

Andrew:         Ooh I like it!

Thomas:         They were very tentative. 

Andrew:         [Laughs]

Thomas:         Uh, okay.  Well that’s – yeah, I guess more later.  More on this later, everybody, but the President was impeached and yay. 

Andrew:         Yes!

Thomas:         That’s all I have to say right now.

Andrew:         And I do wanna hit, I know we’re running late, I wanna hit the last question on our white board.

Thomas:         Okay, yeah, quick rapid fire here.  People have asked, the President, can he pardon himself for crimes of impeachment?  Article 2 Section 2 of the constitution seems to mean that Trump could be impeached and charged with specific crimes when no longer President, if he is found guilty the President could not pardon him for any crime for which he was impeached?  What?  I don’t understand the language there, but what are they getting at?

Andrew:         Yeah, so I think somebody in the Occupy Democrats fray must have written an article or something that says the President can’t pardon himself or anyone else for any crime which is the subject of impeachment.

Thomas:         Can’t imagine why that would be.

Andrew:         It is – this is what we need to say.  That is 100% false.  It’s not the case.

Thomas:         Okay, I got that bar question right, no need to do T3BE, count it Teresa, one for one.

Andrew:         [Laughs] It is based on a superficial misreading of Article 2 Section 2 of the constitution.  So Article 2 Section 2 says “the President shall have the power to grant reprieves and pardons for offenses against the United States (comma), except in cases of impeachment.” 

Thomas:         Hmm/

Andrew:         So you would look at that and go okay, so he can’t pardon you for something for which you’ve been impeached.  That’s not what it means.  What it means is that – remember, the constitution was drafted before the U.S. criminal code, so it says the President has the power to pardon you for offenses against the United States.  Offenses are broader than crimes, so what the provision has been interpreted to mean over history is that you don’t have to be indicted for the President to pardon you, and we’ve talked about this before. 

Gerald Ford pardoned Richard Nixon as Nixon was leaving office, and pardoned him for everything having to do with Watergate even though nobody had indicted Nixon yet.  Jimmy Carter issued a blanket pardon to all Vietnam draft dodgers, even those who-

Thomas:         Hmm.

Andrew:         George H.W. Bush pardoned Casper Weinberger, don’t need to get into that, and Donald Trump pardoned good ol’ Sherriff Joe Arpaio after he was charged and convicted but prior to his sentencing.  So in other words, the word “offense” in that provision is interpreted very, very broadly.  The founders looked at it and said wait wait wait, okay, the President has broad powers to pardon people for federal offenses, but let’s make this clear, you can’t pardon somebody out of an impeachment. 

So, yes, as we talked about in episode 90, the President can pardon himself for crimes but he can’t pardon himself from his own impeachment and he can’t pardon anyone else who’s being impeached either.  If Brett Kavanaugh, for example, were to be impeached for perjury Donald Trump could pardon Brett Kavanaugh, that would mean that the Department of Justice could not indict Kavanaugh for perjury and impose whatever criminal penalties if he were convicted, but he couldn’t pardon Kavanaugh from the impeachment process, he couldn’t stop that proceeding.  He couldn’t stop Kavanaugh from being removed from the bench.  That’s all that provision means.

It’s not a sovereign citizen level misreading of the clause, I totally get how somebody could have read it that way and go, oh, it says has the power to pardon (comma), except in cases of impeachment.  But historically this is what the clause means, once you understand the context you understand that it is meant to say the President can’t pardon you out of an impeachment but he absolutely still can pardon others and himself for the underlying crimes that are at issue in the impeachment.  So Trump is impeached or not impeached over allegations of bribery, he remains free or his successor remains free to pardon him for bribery.

I imagine that if Donald Trump leaves office he will either pardon himself on the way out or that President Pence will pardon him.

Thomas:         [Sighs] State crimes, though, we gotta nail him on State crimes.

Andrew:         Absolutely!  Can’t pardon himself for State crimes.

Thomas:         Ack, it’s so infuriating though.  Alright, we’ve gone long.

Andrew:         It does not protect you. 

Thomas:         Good, asked and answered, glad we clarified that and just goes to show we correct when lefties get stuff totally wrong too.  Now it’s time to thank our new patrons at  

By the way, a fantastic Law’d Awful Movies, Christmas themed Law’d Awful Movies with Sam from Comedy Shoeshine, my comedy podcast I do with my brother where we talk about our families, we talk about stuff that’s funny to us.  Also by the way I’ve gotta give a shoutout because Sam told the funniest story ever on that show recently, so go check out the hot lunch episode of Comedy Shoeshine, it was unbelievable it was so funny, and check out that Law’d Awful Movies., I hope you’re enjoying it, it was a horrendous Christmas movie that Andrew inflicted on us.  I’m gonna blame Andrew, I’m calling you out.

Andrew:         I’m gonna blame Heather Loveridge!

Thomas:         [Sighs]  

Andrew:         [Laughing]  As we did in the-

Thomas:         Sure, I happened to open the Panterra’s Box, as I quote from Mystery Men, but you were like no, don’t close that box Thomas!  Let’s watch this horror!

Andrew:         That’s true, yeah.

Thomas:         And I said [Sighs] please, anything else.  It was horrible so listen to that.

Andrew:         We watched The Christmas Clause – not The Santa Clause-

Thomas:         No.

Andrew:         -not the Tim Allen vehicle.  [Laughs] This was a Lea Thompson vehicle, or … question mark?

Thomas:         Yeah, Lea Thompson now though.  Well, 2008, not Lea Thompson circa 1990 or whatever.

Andrew:         Yeah, no … there is legitimate debate on the episode as to whether it’s worse than Jury Duty.  

Thomas:         [Groans]  That’s hard.

Andrew:         It’s clearly worse than every other thing we’ve ever watched.

Thomas:         I think – I don’t know that anything’s ever gonna be worse than Jury Duty.  That is bad.  It’s close, though.

Andrew:         It’s worse than the Silvester Stallone Judge Dred.  I think we’re clear on that.

Thomas:         Of course, if someone gives me the choice of which of those are you gonna watch, a million percent Judge Dred, not even.  I don’t even have to think about it, yeah.  Alright, we’re late, but check that out and let’s thank our new patrons who hopefully are enjoying that Law’d Awful Movies right now. 

[Patron Shout Outs]

Thomas:         Alright well it’s time for T3BE!

T3BE – Question

[Segment Intro]

Thomas:         Thomas Takes the Bar Exam, this has been a mixed bag but let’s see how this one goes!

Andrew:         Yeah.  Thomas, a defendant is being tried for the murder of a woman who disappeared-

Thomas:         Hmm.

Andrew:         -10 years ago and has not been heard from since.  Her body has never been found.  The prosecutor has presented strong circumstantial-

Thomas:         Kay.

Andrew:         -evidence that she was murdered by the defendant.

Thomas:         Adnan did it!  Oh, sorry.  [Laughs

Andrew:         [Laughs]  Send those to…

To help establish the fact of her death, the prosecutor has requested that the judge give the following instruction, based on a recognized presumption in the jurisdiction-

Thomas:         Hmm.

Andrew:         (Quote) “A person missing and not heard from in the last seven years shall be presumed to be deceased.”

Thomas:         Interesting.

Andrew:         Is this instruction proper?  A) No, because the fact that someone has not been heard from in seven years does not necessarily lead to the conclusion that the person is dead.  B) No, because mandatory presumptions are not allowed against a criminal defendant on an element of the charged crime. 

Thomas:         [Groans]

Andrew:         C) Yes, because it expresses a rational conclusion that the jury should be required to accept.  D) Yes, because the defendant has a chance to rebut the presumption by offering evidence that the woman is alive or has been heard from in the last seven years.

Thomas:         Ooooh.  Wow, that’s tough.  That’s interesting because this has got to be one of, like sneakily this is one of the hardest categories of questions.  Now we all know about the land questions, clownhorning real property questions, hearsay is the other one that’s really hard.  I will say, this very sneakily – because it doesn’t come up all that often, at least as much as those broad categories.  The jury instruction questions are so hard for a layperson ‘cuz it’s like augh! I dunno.  It’s very hard to have a strong instinct as to what the judge can instruct the jury on.  Oof.  So all of these seem somewhat plausible. 

But okay, interesting.  A woman’s disappeared, body never been found, the prosecutor has presented strong circumstantial evidence that she was murdered, to help establish the fact of her death- so it’s saying the prosecutor has requested that the judge give the following instruction based on – let’s see if this is key – based on a recognized presumption in the jurisdiction.  A recognized presumption in the jurisdiction.  Recognized by whom?  I don’t know, does that mean- [Sighs] I’m not sure. 

That is a person missing and not heard from in the last seven years shall be presumed to be deceased, Is this instruction proper?  [Sighs] A recognized presumption.  So I’m trying really hard to just, what’s my instinct on this?  I would say … [Groans]  I don’t know, I kind of am leaning toward no, I don’t know that you would have the judge – ‘cuz it seems like it should be a pretty high bar for having the judge instruct the jury on something.  I feel like that should be a high bar to clear because that’s gonna be very prejudicial if you’re having the judge say something.  I’m sure that’s very prejudicial on way or the other, so a high bar to what you can do. 

Okay so let’s go through our answers, maybe that’ll help.  A, no because the fact that someone has not been heard from in seven years does not necessarily lead to the conclusion that the person is dead.  That’s gonna be a contender just ‘cuz I would take that to mean that, you know, under the theory that the judge should only instruct on stuff that’s like solidly factual maybe I could see that being the right answer.

B, no, because mandatory presumptions are not allowed against a criminal defendant on an element of the charged crime.  That certainly could be?  Okay, I have two thoughts on this.  B I like better than A in some respects in that if it’s a no then that seems like a stronger no.  On the other hand, mandatory presumptions are not allowed against a criminal on an element of the charged crime. 

Now I’m skeptical of that part because it’s not necessarily an element of the charged crime to say that the person’s dead because you would just say but my guy didn’t do it.  The defendant didn’t do it.  It’s not as though the judge is mandating okay by the way jury you also – it’s a presumption that this person did it.  That would be what I would think would be a mandatory presumption on an element of the charged crime, but it does say element of the charged crime, so eh, maybe.  Maybe that’s right actually. So B, I guess overall I’m leaning toward B over A for a no answer, but it’s very uncertain.

C yes because it expresses a rational conclusion that the jury should be required to accept. Ah, I don’t like that language.  It’s not impossible that that’s true, I could see basic facts being stuff that the judge can be like here, you all have to accept this ‘cuz it’s rational, but a rational conclusion is a little too broad to me and saying the jury should be required to accept – I feel like that’s stepping into what the jury’s job is.  So I’m not in love with C.

D yes because the defendant has a chance to rebut the presumption by offering evidence that the woman is alive or has been heard from in the last seven years.  So that makes me wonder – like I don’t know when this is happening.  Is this happening during the trial?  In my mind, maybe this is because I’m not a lawyer, I was imagining that this is like as the jury’s gonna go do whatever the thing’s called, they’re gonna adjourn or whatever, that the judge is like alright jury it’s up to you and here’s just so you know, a person missing and not heard from in the last seven years shall be presumed to be deceased. 

So in my mind that wasn’t giving the defendant a chance to rebut anything really, but that could be me imagining that so maybe I’ll assume for the sake of this question that this happened sometime during the trial and the other side can say well look, they are alive or they’ve been heard from.  And, you know, if they had any evidence of that [Laughing] I would assume they’d already be doing that.  Hey this woman’s actually alive.  I don’t even think the trial would be happening, so I dunno, I’m not loving the answer because of all that goes into that.  That seems like a lot of that is kinda weird.

Um, rebut the …. Ah man, I dunno.  I guess I’m kind of leaning toward B or D I would say, and this is very dif- You know, I’m gonna go with B.  I don’t have much confidence in this but it does strike me as the most likely.  To my mind it sounds like the most likely reasonable thing, but I have no idea if there’s gonna be some special rule or something that tells me this is totally wrong, but I like it.  It makes sense to say we’re not gonna allow a judge to just tell the jury here’s a presumption and it’s instrumental to a charge of the crime that the person’s charged with.  So I’m gonna go with B, zero confidence in this but that’s my answer.

Andrew:         Alright and if you wanna play along with Thomas you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your answer, your reasons therefore, we will pick a winner and shower that person with never ending fame and fortune!   A couple of days right before Christmas-

Thomas:         Oooh!

Andrew:         That’s the best time to have never ending fame and fortune.

Thomas:         Maybe you can re-gift that fame and fortune in time for the holidays!

Andrew:         [Laughs]  Yeah, yeah.  Ugly sweater and fame and fortune party.

Thomas:         This is gonna be like a Homer Simpson situation where he’s blown all the money for Christmas and he has nothing, he’s gonna be counting on the OA fame and fortune to regift it to his family.  That’s the scenario I’ve built in my head.

Andrew:         [Impersonation] Mr. Simpson, I’m confused!

Thomas:         [Laughs]  Ah, alright, thanks so much for listening, thanks so much for playing all you T3BE-ers, and thanks most of all to our patrons!  Go check out that Law’d Awful Movies, it’s so much fun. 

Andrew:         I have to jump in, if you go to the patreon page under the post for Law’d Awful Movies number 37 – uh, 36.  Patron windycityliveshowwithscotch has found a youtube clip of the ring scene and-

Thomas:         Oh my gosh.

Andrew:         -has posted it for everyone to watch, so yeah-

Thomas:         [Sighs]

Andrew:         If you don’t know what we’re talkin’ about you need to be a patron.  If you are a patron and you listen to our 11 minute discussion about this ring scene, you can now watch it without having to sign up for the Dove channel.

Thomas:         You have to.

Andrew:         It’s glorious, you have to do this, thank you windycity-

Thomas:         It’s the worst thing ever invented, I couldn’t- alright, I don’t wanna give it, this is like telling everybody that Rosebud was the name of the sled before watching the-

Andrew:         Hey, hey!  Spoilers! [Laughs

Thomas:         [Laughs

Andrew:         Citizen Kane was only 78 years ago, come on!

Thomas:         Yeah, great movie by the way.  Okay, thanks for listening, we’ll see you next week!

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