Transcript of OA372: The CARES Act, COVID-19, and Your $1,200 Check

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 372!  I’m Thomas Smith, that’s Andrew Torrez.  How’re you doing, Andrew?

Andrew:         Well I am doing coronavirus-infested fantastic, Thomas, how are you?

Thomas:         Yeah, I mean we were all very concerned that you were infected with said coronavirus, are you feeling … better?  Recovering?

Andrew:         I honestly think that it was sort of a combination of crappy seasonal cold and then that first day it went from like 35 to 75 here and I think the pollen went nuts.  So in any event, I have been feeling lousy for about a week but following the protocols and I am on the upswing.

Thomas:         Oh good.

Andrew:         Don’t know if that was coronavirus, treating it like it was, obviously not doing any testing because I’m saving the testing.  Tests are in in drastically small supply.

Thomas:         For Rand Paul.  Oh, no.  Sorry.

Andrew:         Yeah, exactly.  We’ve gotta make sure he can go licking people’s palms or whatever.

Thomas:         [Laughs]

Andrew:         Yeah, I’m just self-quarantined and hopefully fingers crossed we’re out of it.

Thomas:         Well that’s good.  There was a lot, people couldn’t hear after the edit, there was a lot of coughing last week! [Laughs]

Andrew:         Oh my gosh, yeah.  [Laughs] We promised the episode early to folks and that was 100% on me for every other syllable was a cough, so.

Thomas:         [Laughs] Not only that we had an internet – the internet was terrible that day, I think it might be something to do with maybe everybody staying home and watching, you know, streaming high definition movies and whatever, so we also had those problems.  It was a little slower than we promised, but we still got it to patrons way early.  Hope you enjoyed that perk, patrons, as well as Andrew’s talk! 

Andrew:         Yeah.

Thomas:         That was called “The End of the World” and it had nothing to do with coronavirus, so I hope you enjoyed that!

Andrew:         Yeah!  We are looking for ways to get more content to patrons and non-patrons alike, we know lots of you – well almost all of you – are stuck home, locked in and could use some extra content, we are working on that.  Soooo Thomas, you wanna plug some of the things that we’re gonna do? [Laughs]

Thomas:         Oooh, great segue!  We’re doing a livestream tomorrow, or maybe today depending on when you catch this.  That’s Friday the 27th, we’re gonna do a fun games livestream, we’re gonna play one of our favorite games, it’s called Code Names and if you don’t know what it is don’t worry about it, we’ll explain it, but we’re gonna play it and it’s going to just be a hang out, interact with the chat, play a game, laugh, and we’ve got some amazing special guests.  I am super excited for this line up.

It is you and I so, eh, okay.  And also! [Laughs] Teresa Gomez-

Andrew:         Woo!

Thomas:         Heather Loveridge-

Andrew:         Oh ho ho!

Thomas:         So that’s a little bit of the extended OA family, and we’re bringing in Eli Bosnick and Heath Enwright of the GAM crew, the Puzzle In a Thunderstorm crew.  It’s gonna be so much fun, that’s just such a cool group of people I can’t wait.

Andrew:         Yeah, it’s gonna be great because Heath always cheats.

Thomas:         Heath always cheats.

Andrew:         And Eli is going to -we’re predicting it right now.  Eli is going to explode when whoever’s team he’s on, either mine or Thomas’ fails to get like some 1960s Batman The Riddler chain of inferences.  I don’t know if you remember the good ol’ Adam West-

Thomas:         Oh I don’t, but I just know it from you referencing it every time.

Andrew:         Yeah.

Thomas:         It’s funny every time.

Andrew:         [Laughs]

Thomas:         Because it’s such a dumb thing.  Yeah, a chain of references, each more referential than the last.

Andrew:         [Laughs] Exactly right!

Thomas:         Oh, no I’m blending stuff together.

Andrew:         So, yeah.

Thomas:         That’ll be awesome.  This is gonna have to be an honor system game, so maybe … I almost wonder-

Andrew:         I call Heath on my team!

Thomas:         [Laughs] I was thinking like maybe it’ll take the fun out of cheating for Heath when it’s too easy to cheat?  Maybe he only cheats when it’s a little harder.  So we’ll see.  Anyway, that’s gonna be tomorrow, again Friday at 8:00pm Eastern Time, 5:00pm Pacific Time on YouTube.  I’ve already made the event so if you go to our YouTube channel, that’s

Andrew:         It is openargs.

Thomas:         The link should be in the show notes, or if you go with the Facebook group, anywhere you’ll see that it’s already scheduled and if you say you’re attending or whatever it’ll automatically give you a notification.  If you subscribe to the channel it’ll tell you every time we schedule anything, so you should do that.  Speaking of, it’ll also tell you if you subscribe that we are doing our regular Q&A stream.  It’s already somehow the end of the month so we had to schedule that as well, which is next Tuesday the 31st at same time.  5pm Pacific, 8pm Eastern time.  That’ll be our regular Q&A and I’m sure you have a lot of Qs for Andrew to A.

Andrew:         [Laughs] That’s right!  Remember, all of our listeners can attend the livestream of the Q&A.  You can attend the livestream of us playing Code Names, goofing off, there are special perks if you’re a patron.  One of the ones I love is that you get to nominate the questions, you get to vote on the questions.  That’s a ton of fun, but this is content we’re getting out to everybody so we’re really happy about that.

Thomas:         Awesome.  And also in the future we’ll probably try to include our patrons in the games.  We wanted to test it out first and make sure it works, but that should be able to be a patron perk later on to get you guys on the stream with us playing some fun games.  All that aside I think you had one more announcement before we get started?

Andrew:         Yeah, so one of the things we’re really trying to do in this episode, in next  Tuesday’s episode, I totally get it right now.  As I talk to folks who are bummed out over politics and bummed out over COVID-19 and the state of the world, we are really trying to get you what you need to know to navigate through things, but also to try and bring you some happy and some uplifting stories.  There’s a lot that we’re covering this week that I think is really, really positive.  Next Tuesday is going to be all happy stories, including – and Thomas, I know you’re with me on this one – my take as I look at things on the potential return of baseball!

Thomas:         What?

Andrew:         Yeah.

Thomas:         But it’s good news?  Oh wow.

Andrew:         [Laughs] This Friday, this show here is gonna be pretty uplifting, if you know folks who have sort of put us on the backburner ‘cuz … I get it.  Definitely, I’m gonna use a big happy face unless Thomas picks something else for the show notes for next Tuesday because we’ve got crazy sovereign citizen level lawsuits, we’ve got the return of baseball, we’ve got good news all the way around.  I think you’re not gonna wanna miss that.

Thomas:         There you go!  Good stuff.  I think any crazy sovereign citizen nonsense counts as good news for this show.

Andrew:         [Laughs]

Thomas:         I mean, it’s not really good news but it’s just a happy topic.

Andrew:         It’s not good news that people think that, but-

Thomas:         [Laughs] It’s our happy place.

Andrew:         We will have fun.  It’s ours, yeah!

Thomas:         Alrighty, well that said, let’s get on to our first segment.

Yodel Mountain on Mark Meadows White House and House Member Positions

[Segment Intro]

Thomas:         Hoo!  Did I hear, off in the distance, a brief yodel?  Still a little bit of yodeling going on in these coronavirus adjusted times.  What are we yodeling about, slightly?

Andrew:         I am wondering if Brian can cook up, maybe you just heard that intro, the yodel-eh-he-hoo but with coronavirus in it? 

Thomas:         Oh geez.  Stop giving him assignments.

Andrew:         The vowel sounds would work out.

Thomas:         [Laughs]

Andrew:         But, no.

Thomas:         I had to do the last one!

Andrew:         [Laughs] That’s true!  This is already good news from when I started covering it, which is a bunch of people wanted to know.  Donald Trump has tapped Ohio congress-idiot Mark Meadows to be the next Chief of Staff-

Thomas:         You know what’s good about the term congress-idiot?  It’s agender.

Andrew:         Yeah!

Thomas:         It’s a nice – it solves the congresswoman/congressman nonsense, it’s just congressidiot.  It’s perfect, love it!

Andrew:         Yeah!  And believe me, Mark Meadows applies! [Laughs]

Thomas:         [Laughs]

Andrew:         Lots of folks were asking, is Mark Meadows eligible to be a member of Congress and also White House Chief of Staff and the answer is no! Absolutely not! 

Thomas:         Clear as Kushner, you might say.

Andrew:         It is hashtag Clear as Kushner, it is clearer than Kushner! [Laughs]

Thomas:         [Laughs]

Andrew:         Because this does not violate a law, this violates the Constitution of the United States of America.  We discuss this briefly in episode 366, but the ineligibility clause, which is Article 1 Section 6, that’s the same provision that would prevent the President of the United States from being Speaker of the House in a crazy line of succession, says among other things that “no person holding any office under the United States shall be a member of either House during his continuance in office.”

That is as clear as it can possibly get.  White House Chief of Staff is an office under the United States, Mark Meadows cannot be a representative and White House Chief of Staff at the same time.  I am going to go through the law, because you know, I posted that and good Opening Arguments listeners – it’s nice to have a healthy dose of cynicism – said right, but you know, the law also prevents Jared Kushner from working on-

Thomas:         Yeah.  The whole thing about Clear as Kushner is it’s a double-edged sword.

Andrew:         [Laughs]

Thomas:         A, it’s clear that he absolutely should not be doing what he’s doing, but B, he’s also still doing it and it hasn’t seemed to matter that it’s clear as Kushner!

Andrew:         Yup.  This will matter and I am going to cut ahead to the punchline, already has mattered because in just the day of my researching this question and putting it on the whiteboard, Mark Meadows, Chief of Staff, [Laughing] his House spokesperson has said that he’s going to resign his House seat in April. 

As you know from our presidential succession, resigning your House seat you may not appoint an interim member of the House of Representatives, you may only appoint an interim Senator because of the strange history of how Senators got to be elected in this Country, so he will be out of the House of Representatives.  That seat will be up for election this fall and will provide the Democrats – It’s North Carolina’s 11th District – an opportunity to replace a Trump-loving moron with somebody who’s not a Trump-loving moron.

Thomas:         Oooh!

Andrew:         And all of this happened because of the pushback.

Thomas:         Because of us.

Andrew:         Because I put it down on our whiteboard.

Thomas:         Yeah.

Andrew:         No, so I’m still gonna walk through.

Thomas:         Were they gonna try to get away with this nonsense?

Andrew:         They might have.

Thomas:         They were really gonna try to just do something blatantly unconstitutional, hope nobody noticed that one guy was like also being a representative and also being Chief of Staff and just like “oh, oh we forgot!  Oh, there’s a rule… yeah, yeah, constitution.”  Were they really gonna try to get away with this?

Andrew:         I’m sure Trump was not, it was just an oversight until someone pointed it out.

Thomas:         [Laughs]

Andrew:         But no, these are – so to answer the two questions-

Thomas:         No, I’m genuinely asking, do you think they were trying to get away with it?

Andrew:         I absolutely do think.  I’m sorry that that sarcasm didn’t come through.

Thomas:         Wow.  [Laughs]

Andrew:         Yeah, I think they were just gonna do it and then the pushback was “um yeah, not even Donald Trump can do this” because it is prohibited by the Constitution and unlike – when the President directly violates the law you have a standing problem and you have a justiciability problem.

Thomas:         And a Barr problem, right?

Andrew:         [Laughing] Yeah, and a Bill Barr problem.  Here it is equally clear that individuals – and we’re gonna talk about the standing problem in a second – that this is a justiciable question.  There are a number of cases – the one I like the best is U.S. v. Lane which was a military tribunal ruling from 2006. 

What happened in that case was the judge advocate general of the Air Force gets to assign people to serve as judges on the Air Force Court of Criminal Appeals and the JAG picked, in 2006 somebody who was not nearly as grotesque and detestable as they are right now – one Lindsey Graham, Senator from North Carolina – to serve on the Court of Appeals for the Armed Forces. 

He upheld the conviction and Court Marshall of an airman, who then filed a lawsuit to say “uh, that conviction is no good ‘cuz Lindsey Graham is ineligible to serve as an appellate court judge on the Air Force Court of Criminal Appeals and also in the Senate.  The court said “yeah, you’re damn right he’s prohibited!”

Thomas:         Wow!

Andrew:         And they overturned that conviction.  The courts are not gonna punt on this, they have ruled on ineligibility.  In that case it was pretty easy to see who had standing, in the Mark Meadows case, to sort of short cut, I think two classes of individuals would have standing.  Number one would be citizens in Mark Meadows’ district, because he’s supposed to represent you!  He’s not supposed to represent the President.

Thomas:         Right.

Andrew:         And number two would be watchdog groups.  I did look, my initial take was you might get either taxpayer standing, like I’m paying his dual salaries, or general citizen standing.  I am persuaded by a case called Schlesinger v. Reservists Committee to Stop the War from 1974, which restrained both of those classes in an ineligibility clause lawsuit. 

I was wrong on that one, but nobody even knew about that because that was an internal monologue in my head.

Thomas:         [Chuckles]

Andrew:         [Laughs] But I was right, there is a recent case I’m gonna link in the show notes called Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, which was a Supreme Court case from 1991 involving a citizens group, the Citizens for the Abatement of Aircraft Noise-

Thomas:         [Chuckles]

Andrew:         That filed an ineligibility clause lawsuit about a group called the Metropolitan Washington Airports Authority, which was designed to handle how traffic should be allocated between Washington’s two airports.  As somebody that commutes out of Washington fairly frequently, here’s the situation.  National Airport – sorry, it’s now called Reagan National Airport, but I choose not to call it that.

Thomas:         [Chuckles]

Andrew:         [Chuckles]  National Airport is located downtown.  It’s super convenient to get to, you can get there on the subway, but it’s in downtown Washington D.C. so the flightpaths go over poor people’s houses and airplanes are super noisy.  So for years they have been trying to shunt traffic, for decades they’ve been trying to shunt traffic, and figure out the balance between National and Dulles Airport, which is way out in the sticks in Virginia and has less flightpath problems but is harder to get to.

Congress came up, they authorized an interstate compact, which long time listeners will know is when multiple States get together to try and work on interstate commerce so therefore it requires authorization by the Congress because that’s a federal government thing.  Easiest example of an interstate commerce is like the Port Authority of New York/New Jersey, right?  The GW Bridge crosses New Jersey into New York, the two States wanted to get together to cooperate to run it, that had to get approval by Congress.

Same thing here.  So Congress surrendered control over this airport commission to this board that was created among Virginia, Maryland, and the District of Columbia via interstate compact, but Congress wasn’t going to … totally surrender control because it’s full of members of Congress who like flying out of National Airport! [Laughs] So they also created a board of review, which was basically a separate body that had veto-power over any decision made by that Metropolitan Washington Airports Authority.  They staffed it with sitting members of Congress!

They essentially said “yeah yeah yeah, but we get to veto anything that this agency can do.”  The watchdog group, which also enlisted people who lived in the flightpath, sued and got the Board of Review struck down under the ineligibility clause. 

Thomas:         Hmm.

Andrew:         Said hey, you can’t serve as a member of Congress and also on this new board that they created, and the Supreme Court said “yup, you have standing, yup you can challenge this, and yup, that board gives an additional federal government office to people who are members of Congress, it’s no good,” struck it down. 

Because of all that, I think had Mark Meadows not resigned- I had actually tagged one of our listeners who got in touch with us who lives in the 11th District in North Carolina and I was trying to put him in touch with our buddies over at CREW, the Citizens for Responsibility and Ethics in Washington (that’s the Eisen, Tribe, Painter group that is a watchdog group).  They would absolutely have standing to challenge, they could bring a lawsuit and so just yesterday Mark Meadows announced that he was gonna resign.  So one for one, good news!

Thomas:         And this is good because the way Trump churns through Chiefs of Staff-

Andrew:         Yeah!

Thomas:         This is essentially just knocking out a Republican from Congress.  Then he’ll be (quote unquote) “fired” by Trump I’m sure soon.

Andrew:         Nothing turns a Trump loyalist into somebody collecting unemployment faster than actually-

Thomas:         I was gonna say, or into all of a sudden a member of the (quote unquote) “Democratic Deep State.”

Andrew:         [Laughs] Yeah.

Thomas:         Working for Trump.

Andrew:         Oh my gosh, I cannot wait.  Let’s fast forward 6 months for the Q Anon theories about Mark Meadows.  I gotta tell you, of all the people who deserve it, if you lined them up from most deserving to least deserving, you could stand at the front of the line and wave to Mark Meadows from there.

Thomas:         [Laughs]

Andrew:         So good riddance!  Goodbye, and he will not hold both offices simultaneously.

Thomas:         This was not a good career for him, I’d say. [Laughs]

Andrew:         No, no it was not.

Thomas:         It must’ve been hard to find somebody to volun- hey, do you wanna jump on this sinking ship during a pandemic?  Give up your House seat?  Well I guess maybe you’d be up for reelection, I dunno.  They probably had to find somebody who didn’t like their chances of reelection, right?  Or something, because I dunno why else you would do that unless you just think that Trump’s gonna turn it all around and be amazing.

But anyway, okay, we need to – I’m guessing – move on to our sort of, okay it hasn’t replaced Yodel Mountain, but for now it’s our [Laughing] main music that we get to play so Brian, why don’t you go ahead and punch it.

Coronavirus Relief Bill

[Segment Intro]

Thomas:         Alright, so what’s our COVID-19 news, Andrew?  Other than the 19 lbs. I am gaining as a result of sitting in place and not being able to-

Andrew:         Yeah. [Sighs] No, I am the same way.

Thomas:         Drinking my feelings.

Andrew:         I’m ordering pizza for dinner tonight, so…

Thomas:         We’re doing pizza on Friday, when I was talking to Lydia about – she has to watch the kids for our livestream, which by the way another reason you should come check out our livestream, the sacrifice of my wife having to watch our two kids by herself!

Andrew:         [Laughs]

Thomas:         And I was like, well it’s around dinner time so it’s gonna be kinda tough and she’s like “I’m ordering a pizza.” [Laughs]

Andrew:         [Laughs]

Thomas:         I was like, that is a great idea, I agree.

Andrew:         As the person who does the cooking in the family, yeah, Thursdays when we record back to back there have to be alternative measures taken to get people fed around here.

So I’m gonna break down everything that is in this which is – no, I’m not.  It’s 880 pages long.  [Laughs] I’m gonna hit the highlights, I have read … eh, half of it?  Because the full text came out this morning.  I’m gonna hit the three main provisions.  In terms of how to feel about this, I think it is very complicated but what I wanna share in the background is a proposal from friend of the show, independent congressman Justin Amash-

Thomas:         [Laughs] Friend.  Quote, unquote, yeah.

Andrew:         Friend of the show, yeah.  Who points out that for $2 trillion, which is the CBO score on this package which may be very, very low, we’re gonna talk about that in a second.

Thomas:         Yeah, it was for the tax bill.  Anyway, sorry.

Andrew:         Yeah.  You could pass a 3 month bill that would give every taxpayer $2,500 and every dependent $1,000 for the next 3 months.  That would be family of four like yours, Thomas, would get $7,000 a month.

Thomas:         Plus my cats!

Andrew:         [Laughs]

Thomas:         I’m gonna just absolutely rack up the-

Andrew:         No separate cat provisions.  You know that’s kind of a UBI on steroids.

Thomas:         Yeah.

Andrew:         I just wanna say, I’m no economist.  As we get through the provisions I think I would rather have cut a $7,000 check to every household then what we have, which is not to say that there aren’t good provisions in this bill.

Thomas:         Yeah.

Andrew:         And things that surprised me.  So let’s break down, I’m gonna link the entire thing in the show notes.  We’re gonna go over, there are lots of provisions for things like specifics about the airline industry.  There are line-item allocations to individuals that are gonna get ripped out of context. 

One delightfully stupid example of that is our favorite whipping boy Matt Gaetz, who decided to point out that Howard University gets a $13 million allocation in this bill and to say “oh, gosh, well you should not just be throwing money at Howard University as part of a COVID-19 bill.”  Except, of course, that that is going because Howard University is located in the District of Columbia, so they get their funding directly from D.C., and their hospital is a COVID-19 treatment center 2 and half miles away from Matt Gaetz Congressional office.

I will leave it to you to decided whether that hate-Tweet, the fact that it just happened to be directed at a historically black college? 

Thomas:         Yeah, purely coincidence.

Andrew:         Yeah, sure it’s a coincidence.  Look, there’s a ton of stuff like that in an 880-page bill that I can assure you, very few chiefs of staff had read and know members of Congress haven’t.  It’s just not possible to digest 880-pages of legislation in three days.

Thomas:         We do need Brian to grab the Arrested Development quote though I always wanna use.

Andrew:         [Laughs]

Thomas:         Where the Fonz as their lawyer is like “actually, Your Honor, I haven’t read the proposal yet, it’s very long, it’s very long.  I’ll get on it right now” and he just starts reading [Laughing] in the courthouse.  God it’s so funny.

Andrew:         [Laughs] But there are three main provisions.  I’m going to point you to each one so you guys can read along with us.  The first relates to unemployment insurance.  This is Title II-A and it begins at page 87. 

So, little bit of background about what unemployment insurance is and also in light of the fact – you and I were talking about this before hitting record – 3.3 million new unemployment claims filed this week.  That is not just a record, it is 5 times higher than the previous weekly maximum.

Thomas:         If you look at the graph for it-

Andrew:         Yup.

Thomas:         Going back through 2008, which was not a good time, it is staggering to see just how big of a spike this is.  I don’t even know.  When are we gonna know the true fallout of all this?  We’ll see.

Andrew:         Yeah.  This is – I mean, I will tell you I have had conversations with my clients this week, and the number one conversation that we have is “hey, how do I avoid shutting down?  If I shut down how do I do best by my employees?  Give me some structure and guidance for how to get through this time period.” 

What I am saying is a lot of layoffs are yet to come.  The fact that we’re already at 3 and a half, almost 3 and half million new claims, that number could spike in ways that are truly scary. 

Here’s how unemployment insurance works.  It is a joint federal/state program.  Your employer pays premiums for unemployment insurance.  Those premiums do not go up or down based on whether they terminate employees and whether those employees collect benefits, so it is a true loss-spreading program and the federal government reimburses the states for administering parts of the program. 

Prior to this bill, the way it works is you have to be laid off or fired not for cause.  The language in the case law surrounding unemployment compensation is you must be unemployed (quote) “through no fault of your own,” (end of quote).  I’m going to jump ahead and point out that one of the very good things about this bill, it’s on page 87, it is sub definition (qq) and-

Thomas:         Wow.

Andrew:         It says that covered individuals include those who have quit their jobs (quote) “as a direct result of COVID-19” (end of quote).

Thomas:         Oh good!  I was already worried about that.

Andrew:         Yup.

Thomas:         So if their – that’s like their boss tries to make them work and they’re like “I don’t wanna die.”  That kind of thing?

Andrew:         Exactly right. 

Thomas:         Okay, good.

Andrew:         And a lot of people that I have talked to have had those concerns.  My employer does not have a safe policy, what happens if I quit?  The answer yesterday was yeah, if you quit you’re in trouble.  If you get fired and it’s not for cause then you’re probably fine.  The answer as of today is if you quit (quote) “As a direct result of COVID-19” then you are also fine, you are also covered. 

Now the question of what States are gonna construe “as a direct result,” there may be hearings with respect to that, but it expands that definition.  That’s one of the first really positive things about this bill.

There are two other really positive things about this bill.  States, when they administer unemployment insurance compensation, calculate your benefits.  This is a super complex procedure and it varies state by state, and shockingly the bluer the state is the higher the percentage of the benefit tends to be and vice-versa.  In Maryland, for example, your computed weekly benefit is roughly 50% of your salary, but it’s capped at $430 a week, which is $22,400 a year.  So it’s about 50% of your salary up until about $44,000 at which point it drops off because of the cap.

Different states also have different periods of time for which they will extend unemployment compensation.  In Maryland that’s 26 weeks (so half a year).  Other states it’s as short as 13 weeks.  Again, bluer the state longer the period tends to be.  Just something to think about.

This bill extends the period by which states can compensate individuals through unemployment compensation and be recompensed 100 cents on the dollar, so no incentive not to do this, through 39 weeks.  That’s a really, really big change.  That’s a 50% improvement in a supermajority of states including Maryland.

Then finally, the third thing – and I didn’t expect it to work this way.  This is a provision of the bill that surprised me.  The bill provides and additional $600 after the state computes your benefits.

Thomas:         Hmm.

Andrew:         Let me explain the significance of that.  You’ve instantly grasped this, but for the audience let me explain the significance of that.

Thomas:         Sure, I’ll pretend.  Yes, definitely!

Andrew:         [Laughs]

Thomas:         Why don’t you explain it?

Andrew:         I thought what that would do is raise the cap.  In other words, you would use the same formula but instead of capping at, like Maryland, $430, you would now cap at $1,030.  That’s not how this works.  The way this works is the state figures out your benefit and then they add $600 to it.  Period.

Thomas:         Hmm.

Andrew:         Let me explain why that is crucial, and really hats off to the person who drafted this provision.  I’m gonna talk about the potentially perverse incentive in a second.  Lots of people who are waitstaff are paid way below minimum wage.  The Maryland benefits cap out at $430 a week?  Start at $50 a week. 

Thomas:         Wow.  Because of the [Clownhorn] sorry, but the tipping nonsense?

Andrew:         Yup, yup.

Thomas:         So they’re paid way too low and then when they go to file unemployment it’s treated as though they only made their hourly wage and not the tips?

Andrew:         [Sighs] [Laughs] I don’t wanna say that because the calculation varies state by state and is complicated.

Thomas:         Okay.

Andrew:         You can apply and list your tips, but you have to provide documentation.  That would go down a huge rabbit trail in terms of how tipped employees are taxed, declare, have records, that sort of thing.  My point is is that if you were underemployed or working below minimum wage when this hit, this hit you hard, right?  The last two weeks prior to lockdown you probably weren’t earning a lot in tips, for example.

Thomas:         Hmm.

Andrew:         So that could adversely affect your application.  This says nope, we are giving a $600 benefit on top of your computed benefit, not computed as part of the cap, not varying in accordance with your salary.  That has the highest benefit to the lowest income earners.  To go from, in Maryland for example somebody saying okay, well-

Thomas:         Well, doesn’t it just have an equal benefit?  I mean, obviously more money for people who have less money-

Andrew:         Higher percentage, right.  Yeah, yeah.

Thomas:         Percentage-wise, but still for the highest amount that someone would get to this you’re still adding $600, right?

Andrew:         Yeah, exactly.  It’s a flat $600 added onto your computed benefit and like I said in Maryland that’s 150% of your base benefit.  Now we go from maybe being able to scrape by to maybe being able to actually pay your bills, get your medication, and not have to go into crippling debt over the next couple of months.

So those are all unambiguously good things.  I now wanna tackle, because you’re probably seen we teased Lindsey Graham earlier, but the Senators who tried to hold up passage of this bill on the idea that it would incentivize people to quit.  I don’t think that that even needs to be discussed because that’s such a gross and stupid argument.

[Commercial –]

Andrew:         But here’s what this does do.  This incentivizes small businesses to feel better about laying people off. 

Thomas:         Yeah.

Andrew:         That’s a double-edged sword.  Look, I represent a lot of small businesses and there are some – if you own your own hair salon or you own your own personal house cleaning, maid company, these are really clients that I really have, you do not have a huge operating-  your margins were not great to begin with.  Your business, a hair salon doesn’t have hundreds of thousands of dollars in savings because it’s not a capital-intensive business.  Same thing for cleaners, maids that come to your house. 

Your revenues are zero right now so, you know, if you employ six hairdressers, if you employ ten housecleaners you have no choice really but to lay those people off.  I know, because I’ve had-

Thomas:         Is there a way to structure the benefits where they can instead say “hey, if you keep your employees rather than lay them off the government will pay X percentage of that wage for the time being” to try to keep people technically employed?

Andrew:         Yeah, let me speak to that but only obliquely because that is in Section I, which again I have read but I have not line-by-lined.  There are provisions, both in this act and at the State level – I happen to know the Maryland provisions really well, thanks again to crack research from my associate Morgan Stringer – that provide for either grants or loans to small businesses that are targeted towards maintaining payroll.  I do not mean to suggest that the only thing – and to the extent that I said that in the last bit, I rescind that, that’s an insta Andrew Was Wrong. 

I do not mean to suggest that the only thing you can do is lay people off.  There are provisions to either be granted money or to borrow money at 0% with the interest deferred to be able to take care of your employees over that time period.  But nevertheless part of what this bill is intended to do is to say if you have reached that provision where you’re going to lay employees off, don’t feel too bad about it because they’re gonna be okay in the short term.

Again, that’s a double-edged sword.  That’s really the kind of thing people should be pointing out and I haven’t seen anybody really take that political point.  Of course you have Clownhorns like Lindsey Graham going “oh gosh!  This is just gonna be welfare queens driving Cadillacs” and all of the standard racist and classist tropes that the hard-right martials against any kind of government program.  Which again is just stupid. 

Thomas:         The biggest welfare queens seem to be the airlines and the other companies that all of a sudden we’re gonna bail out again.  We’ll get to that, I’m sure.

Andrew:         We are gonna get to that, but yes.  This is designed to make it easier to lay people off.  That is a good thing and a bad thing.  That’s Title II-A.  Any other questions on that or do you want me to move to the “it’s not a $1200 check” section?

Thomas:         Uhhh, let’s move on.  I have questions at the end but I’ll see if we have time!

Andrew:         [Laughs]

Thomas:         We’re already … almost 40 minutes in.

Andrew:         Yup.  Alright, next, Title II-B.  This is what was being reported as the $1200 checks, which I don’t know if you recall in the 2000s, post-9/11-

Thomas:         Oh, when Bush gave everybody like $500 or something?

Andrew:         Yeah, it was like $300 bucks I think.

Thomas:         Yeah, I do remember that.

Andrew:         And Bush sent around, those were actual checks.  This will not be a check

Okay, in terms of whether this is gonna come to you as a check, here’s how it’s possible.  I have to tell you, this bill is incredibly confusing.  Everything I read suggests that the intent is for the IRS to mail you a check, and I think I’ve figured out how they can do that under this bill, even though this bill is not written to make that likely.  Now I read you subsection A which defines the tax credit against your 2020 taxable year, then I read you subsection C which contains the restrictions.

Now, how does this get to you right now?  It gets to you right now through a combination of two specific provisions.  One of them begins on page 147, it is subsection F, “Advanced Refunds and Credits.”  It says that the advanced refund amount is the amount that would have been allowed as a credit under this section for such taxable year.  That’s the $1200.

Then the next section, that’s subsection (F)(3) says that the Treasury Secretary shall refund any overpayment attributable to this section as rapidly as possible, and then it goes on to require that notice be mailed to you at your last address and there’s even a safe harbor provision for people who haven’t filed a 2019 return because they’re late, they’ve only filed a 2018 return.  Look, that’s possible and I think likely how this will be implemented. 

Now you’re probably asking the question “is this going to be offset against any taxes that you owe?” and here is the crucial provision.  I wanna give a shoutout to Skeptical Belgrath on Twitter who helped me find it.  It’s page 154, it’s lines 9-22 which says “EXCEPTION FROM REDUCTION OR OFFSET. – Any credit or refund under this section shall not be subject to reduction or offset” by various provisions of the code or by other taxes that are due.

Here’s the bottom line, this is a tax credit on your 2020 income for taxes that come due in 2021, but that tax credit will be advanced to you immediately and it cannot be offset or reduced based on any tax liability that you have now.  So even if you owe zero taxes in this year, you will get that tax credit issued to you and it looks like the IRS can then use the mail to send that to you under the provisions of subsection F. 

Now I will tell you if you wanna think that maybe it won’t happen that way [Laughs] all you have to do is go back to the immediately previous section, page 154, lines 3-8 which says that the payments will be treated in the same manner as a refund due from the credit provision referred to under section 1324 of title 31 of the U.S. Code and when you turn to 31 U.S.C. § 1324 this is about disbursements made pursuant to the Internal Revenue Code of 1986, the Taxpayer Relief Act of 1997, and the Housing Assistance Tax Act of 2008, none of which mailed you a check.

So, the bottom line: this is an incredibly confusingly-written 880 page bill.  There’s a lot of stuff slammed together in here.  Much of it is contradictory, a lot of this portion makes no sense.  This is not how I would go about writing a stimulus check to each American taxpayer, but I think the purpose is to do that and I think there are enough mechanisms in there that the Treasury Secretary can make this happen under this Act and that seems to be where everyone wants it to be.

That’s my final summary on this section of the act.  You will get a tax credit against your 2020 income and you will get that refunded to you in advance as soon as practicable, in any event – and the only limit that the bill sets is before December 31st of 2020, before the end of the year.

Now it also says “as soon as practicable,” so that’s how I think this is gonna be implemented?  But you have every right to be confused, I certainly am.  We’re gonna continue to comb through this, but that’s how they can use this as a tax credit as the basis for issuing you an advance check.

I’m gonna read directly from Title II-B, subsection (a) and it says “in the case of an eligible individual, there shall be allowed, as a credit against the tax imposed by subtitle A of the Internal Revenue Code, for the first taxable year beginning in 2020, an amount equal to the sum of (1) $1200, or $2400 in the case of individuals filing jointly; plus (2) an amount equal to the product of $500 multiplied by the number of qualifying children within the meaning in section 24(c) of the Internal Revenue Code.”

Again, you know this if you’re a family that has four or more kids, all of your kids are eligible but there are changes to how they’re computed, I’m not gonna get into that right now.  Basically this is a tax credit for the 2020 tax year.  It is not a check that will be written to you, it is an amount that you can deduct from your taxes.

Thomas:         So this does nothing for a lot of people, right?

Andrew:         It absolutely does nothing for a lot of people, it is also capped.  This reporting has been correct, the credit gets reduced by 5% for every dollar over $75,000 per individual, $150,000 for joint, or $112,500 if you file as head of household.  What that means is if your joint household income exceeds $198,000 you will get nothing.  If your individual income exceeds $99,000 you will get-

Thomas:         That part seems good.

Andrew:         I think that’s totally fine.

Thomas:         The part where – well I guess hypothetically it will be a check to people in that a lot of people who don’t make a whole lot often, it depends on how they have their deductions and all that but often they’re getting money back from the government come tax time, so assuming we have a functioning IRS and all that, I guess once they file and this credit is added in then maybe they do get a check from the government?

Andrew:         If they have – because think about – the reason in which low income taxpayers get a check at tax time is because their employer withholds employment taxes and then when the balance is computed they get refunded the amount that was over-withheld.

Thomas:         Again, it also has to do with your withholdings, if you do your withholdings correctly.

Andrew:         Yup.

Thomas:         Because a lot of people try to game that and then end up owing money or vice versa.

Andrew:         Yeah, exactly right.  So yes, this will be an additional credit of $1200, and assuming that there is sufficient headroom.

Thomas:         Assume a hypothetical taxpayer did everything perfectly so that when they file they owed nothing and they owe nothing, it would’ve been $0, now they all of a sudden have a $1200 or whatever credit, right?

Andrew:         That’s exactly right, yes.

Thomas:         So then at that point they will get a check but it’s a little bit moved.

Andrew:         That’s right. 

Thomas:         Okay.

Andrew:         It is a lot removed.

Thomas:         Yeah!  Especially in these trying times, who knows how backed up… are they gonna be able to – is the IRS gonna be able to do this on a timely manner?

Andrew:         [Sighs] I don’t know, because the IRS has already suspended your tax payment deadlines in connection with COVID-19.  Here’s what I suspect is gonna happen.  There is a secondary market right now that takes advantage of individuals-

Thomas:         Ooh.

Andrew:         Where certain large, yeah you know where I’m going.

Thomas:         They’ll do like a high interest loan?

Andrew:         Will do a high interest loan against your potential refund and I suspect that those folks are going to be salivating and get a cut of hey, would you like $800 right now?  What you have to do is sign over the balance to them, so they’re gonna take a huge chunk out of it, and it’s gonna go to scumbag organizations.

So the UI stuff I thought was good, the Title II-B stuff is… in my view less good.  I would much rather – I don’t understand why it’s structured this way, I would much rather have the Justin Amash, I would be willing to give up the means testing, send out a $1200 check to everybody, that would be better than the structure that we have right now.

Thomas:         Yeah, and you can always figure it out later in taxes, you know.

Andrew:         Yup.

Thomas:         If you wanted to try to get a little bit of that money back from people who make more come tax time, get the money out right away in the form of a check.  Yeah, it really sucks they’re not doing that.

Andrew:         Yup.  [Sighs] So now let’s go to the third and final major section.  Again, there’s lots more, but these are the highlights.  This is the slushfund.

Thomas:         Hmm.

Andrew:         Starts on page 512.

Thomas:         How do we get some of that slush?  Sounds nice!

Andrew:         Well I’m gonna tell you.  It is Section 4003-

Thomas:         Geez.

Andrew:         And it authorizes the Secretary of the Treasury to provide liquidity to eligible businesses, states, and municipalities, related to losses incurred as a result of coronavirus.  The Secretary is authorized to make loans, loan guarantees and other investments in support of eligible businesses, states, and municipalities that do not, in the aggregate, exceed $500 billion and provide the subsidy amounts necessary for such loans, loan-guarantees, and other investments in accordance with the provision of the Federal Credit Reform Act of 1990.

That just has to do, I have a big long rabbit trail on it but we’re gonna skip it.  That has to do with how the money is accounted for, it doesn’t impose any more substantive requirements on disbursements.  Pretty huge discretion to Steve Mnuchin, whom our listeners will know as the person who engineered the demise of two beloved American institutions to line his pockets.

We heard from Democratic members of the House and Senate that they were holding up this bill until it had some kind of teeth, some kind of accountability that would prevent Mnuchin and Trump from hoarding and profiting off of the slush fund.  Why don’t I throw this out there, Thomas?  How do you think we did in terms of getting actual oversight that will prevent Steve Mnuchin from directing these payments to himself and Jared Kushner?

Thomas:         Man, I don’t freakin’ know.  I’ve got kids climbing all over me, I haven’t read this 8,000 page document.  I hope that we … Democrats held stuff up for a while and I saw that and I’m glad they did and it seems that the headlines say there’s been oversight so that the Trump family can’t get their hands on this money?  But I dunno.  That’s why I listen to this show!

Andrew:         [Laughs]

Thomas:         Tell me how we did.

Andrew:         I wanna tell you and I wanna end this segment on a happy note.  In my view the oversight protections are very, very robust!  This is Section 4,019 on page 556.  I need to tell you, that $500 billion in loans gets reduced to $454 billion after specific earmarks to the airlines and the defense industry, which means Boeing.  We go from $500 billion to $454 billion in loan guarantees.

Thomas:         Yeah, are they going to be able to do the stock buyback nonsense?  Will we get that protection?

Andrew:         The airlines will not be able to engage in stock buybacks, so we got that protection in.  Then, in terms of the slush fund here’s the protection, and this is really, really good.  Like I said, section 4019 beginning on 556, first it defines what a “covered entity” is and it says that means an entity in which a covered individual directly or indirectly holds a controlling interest.

You’re like alright, what the hell is a covered individual?  Well, covered individual means the President, Vice-President, head of an executive department, member of Congress, and spouse, child, son-in-law-

Thomas:         [Laughs]

Andrew:         Or daughter-in-law of said individuals.  Then it specifically says – then equity interest, by the way means share in an entity regardless as to whether the share is transferrable, classified as stock, or a capital or profit interest in a limited liability company or partnership, or warrant or right to share in the interest.  It’s defined as broadly as possible.  The prohibition is, this is subsection (b), no covered entity may be eligible for any transaction described in section 4003.

That’s all of it.  No crazy exceptions, no other than this or that or thing.  Unpacking all of that, any company in which Donald Trump or Jared Kushner or Steve Mnuchin or any of the villains owns or controls a majority, 50.1%, is ineligible to receive any grants in this.

Now what you’re thinking is what if a whole bunch of them get together?  Donald and Eric and Ivanka all get togeth- nope!  It’s also prohibited if its held by two or more individuals who are prohibited.  And it applies however that interest is described, we’ve talked about how the Trump companies are organized as limited liability companies, so they get around certain restrictions on stock ‘cuz LLCs don’t issue stock, they have membership interests.

This is as broadly written as anything I have seen and it says directly or indirectly.  It’s robust.  It’s really, really good!

Now, having given you the rosy scenario, if you’re bailing out … travel, and airlines and cruise ships, are Trump’s hotels and golf courses going to benefit incidentally?  Of course they are!  I am not suggesting that you can stop Donald Trump from grifting.  I am saying that if people are asking was it worth it for the Democrats to hold this bill up by two days?  100%.  If you were gonna vote for this bill, it was worth it to hold it up by two days because this provision and some of the others are robust, they do protect against direct stealing money out of the kitty, and maybe that’s a super low bar to set for the Trump administration and Steve Mnuchin, but they manage to crawl over it, so good for them and good for this bill.

Thomas:         Yeah.  [Sighs] There’s so many – we’re out of time, but there’s so much to talk about comparing this to 2008 and all that.  I guess one thing I wanna ask, though, is are we jumping the gun a little bit?  Because remind us the basics of how this works.  The House is set to look at this tomorrow, so how much is gonna change?  How much do you expect to change?  Or is that they kind of agreed to a deal in principle so it’s more a formality and they’re going to pretty much leave the bill as written?

Andrew:         Yeah, so here’s what I expect.  If I were a Democratic member of the House of Representatives, what I would do is pass the exact version that passed the Senate.  The reason you do that is-

Thomas:         It doesn’t have to go to reconciliation?

Andrew:         It doesn’t, exactly right.  If you pass the exact same version there is no reconciliation and this becomes law.

Thomas:         But that puts you in a tight spot if you’re – the House tends to be the place with more howler monkeys who might have problems with this.  What if you see something in there in the 9 zillion pages that only Andrew has read that you’re like “wait a minute, this is unconscionable,” that’s gonna be a tough decision.

Andrew:         It is.  But if you are inclined to vote for the structure of this to begin with, given the way that we just broke down those three major provisions, then I would not want to put that at risk because it would be super easy in reconciliation to gut.  If you strike out that one line, if you strike out the word “son-in-law” from section 4019 subsection (a)(2)(B)-

Thomas:         All the sons-in-law, take all my money!

Andrew:         It would apply to any son-in-law, no!  Then that means Jared Kushner gets to keep $500 billion, $454 billion.  It will be a field day.  Striking one word in an 800-page bill, 880-page bill, would gut the crucial protection that was hard fought and I suspect that Nancy Pelosi knows that.  So unless you’re willing to say “we’re voting this down,” I would not send it to reconciliation. 

Thomas:         Wow.

Andrew:         We’ll find out what they do, but that is my assumption and Nancy Pelosi is certainly, with respect to the intricacies of politics, probably in general smarter than I am so I do not think she will run that risk.

Thomas:         Well there you have it!  So you suspect this’ll pass pretty quickly then?

Andrew:         I expect this will pass the House today or tomorrow by the time folks are listening to this, and it passed the Senate 96 to nothing, so Trump will sign it and take credit, but even if he didn’t want to there’s more than enough to override a Trump veto, which will not happen.

There is one more thing.  I’m going to do a deep dive on this, not next Tuesday but maybe a week from Tuesday.  Nevertheless I’m still gonna provide this link in the show notes.  This bill, the $1,200 tax credit explicitly excludes – this is page 145-146 – defines “eligible individual” as excluding, and this is pretty much the only exclusion, (quote) “any non-resident alien individual” (end of quote). 

The other two exclusions are just to prevent double-dipping, they prevent you from recouping as an individual and also filing jointly and they prevent estates or trusts from receiving the benefit.

I guess I shouldn’t be surprised that that’s what came out of this congress, I was hoping it would be to the contrary. I want to say this, if you are in a household where you are part of a family and you have eligible spouse or dependents you may still be eligible to be counted.  Please talk to an immigration lawyer.  If you cannot afford one there are a great many State organizations.  I happen to know, for example, Casa de Maryland helps individuals who are nonresident aliens fill out their taxes and I wanna just speak to that really, really briefly.

If you are an alien, not in documented status.  You are an undocumented alien, you have to pay your taxes on income earned just like anybody else.  Lots and lots of aliens are afraid to do that for the obvious reasons.  For the same reason that they’re afraid to fill out census forms. 

But I want to tell you that the IRS is prohibited from sharing that information with ICE.  They cannot use that as the basis for beginning deportation proceedings or any other proceedings against you, they have created in 1996 regulations, something called a taxpayer identification number.  Individual taxpayer identification number, or ITIN.  It looks like a social security number, it’s a 9-digit number, it starts with a 9, that’s how you tell what an ITIN is.  It can’t be used against you and in order to file your taxes you need either a social security number, which if you’re an undocumented alien you don’t have, or an ITIN, which you can get by filling out form W-7.

I’m going to link form W-7 in the show notes and again, this isn’t legal advice, but I want to tell you that complying with paying your taxes is … a prerequisite to get the benefit if you have a mixed family that may otherwise be eligible, and has been used and will be used in the future as basis.  Once we have this xenophobic racist monster nightmare out of office to grant applications for green cards and for citizenships.  It’s really, really important and prior to Trump this was something that was a bipartisan issue. 

ITIN filers, I’m gonna provide the link, pay over $10.5 billion dollars in payroll taxes.  That was as of 2013, that’s the most recent numbers that I can fine.  That means basically half of all immigrants who lack legal status pay their taxes.  I want to encourage you, talk to an advocacy group like Casa and figure out how to pay your taxes so you can be in that group of those who are otherwise complying with the laws and potentially be able to provide benefits if not for you directly, for your family.  It’s really, really important. 

If you talk to a private lawyer, I’ve said this before but there are scumbags who work in immigration law who will charge you for an initial consultation or will try.  Get up and walk out!  You do not have to pay for that initial consultation, you do not have to pay until you sign a retainer agreement and an engagement with the lawyer, until you have formally hired them.  Do not let them bill you for that, do not pay them, threaten with a bar complaint if they do. 

If you’re at the margins and you can’t afford to talk to a lawyer, which I know is the reality for most, talk to an organization like Casa, get some help.  But it is not – the fact that this is targeted to taxpayers and the fact that this specifically excludes nonresident aliens does not mean that there is nothing that you can do.  I think that’s as much as I can say within the confines of the mantra of this show that we’re not-

Thomas:         This is not, yeah.

Andrew:         [Laughs] Don’t take legal advice from a podcast!  This is not providing, but I really did, I’m gonna do a deeper dive on this, this is critically important to me and something that I want to get out to our listeners.  You can, aliens without documentation do pay their taxes, they do get on the right side of the law, and I want to encourage you to be there and to know that cannot be used against you.

Thomas:         Alright, good information, thanks for that Andrew, and spread the word, folks.  If you know anyone, that they should check this out or use those resources that Andrew mentioned.  Of course we’re doing a deeper dive later on that, so stay tuned for that as well.

Okay, we are out of time for today, so I guess we better do the thing we do every week, which is thank our new patrons, it’s first timer Friday, that’s right, on  They’re enjoying the perks, they’re enjoying the Q&A thread that’s open right now as we speak, you can ask questions, you can heart the questions you wanna hear answered.  We do use that as an indicator, by the way, so make sure to do that if you see someone else’s question that you really like, and we go ahead and begin.  I’ll start us off.

[Patron Shout Outs]

Andrew:         Thank you so much!  Hey, look, we understand right now lots of folks have said hey they’d like to support, these are tough and trying times.  We appreciate it more than ever those of you who can support the show and we’re trying to do everything we can to make sure we express our appreciation, give back, and Thomas and I really, really mean it.  Thank you from the bottom of our hearts for helping to keep this show going.  And now-

Thomas:         And I guess we see the triumphant return of T3BE, despite the fact that I think in the wake of now being a forced stay at home parent, I think my IQ has suffered lately. 

Andrew:         [Laughs]

Thomas:         It’s a tough job, I’m tired all the time.  So I’m making excuses, but the bar is the bar, so I need to get back at it.

T3BE – Question

[Segment Intro]

Thomas:         Alright, here we go.  T3BE, oof.  I’m out of practice, it’s been two weeks!

Andrew:         Yeah! [Laughs] Time to get back in the saddle again here.  Alright, Thomas, An experienced rancher contracted to harvest his neighbor’s wheat crop for $1,000 (quote) “when the crop [was] ripe.” 

Thomas:         Okay.

Andrew:         And weirdly, the question has “was” in brackets in it, which-

Thomas:         Yeah.

Andrew:         You’re writing the question, dude.  [Laughs] It’s not like you’re quoting from an actual document!

Thomas:         Yeah, I like that we’re pretending there was a real contract that they’re like naw, I like it, it’s realism!  Also, yeah, I love nice ripe wheat.  Mmm.

Andrew:         Yup.

Thomas:         I’m gonna squeeze it, is this ripe yet?

Andrew:         Yeah!  In early September, the neighbor told the rancher that the crop was ripe.  The rancher delayed [Laughing] because he had other customers to attend to.  The neighbor was concerned that the delay might cause the crop to be lost, for hailstorms were common in that part of the country in the fall.  In fact, in early October, before the crop was harvested, it was destroyed by a hailstorm

Thomas:         Oh, wow.

Andrew:         Is the rancher liable for the loss?  A) No, because no time for performance was established in the contract; B) No, because the neighbor failed to tell the rancher that the crop might be destroyed by a hailstorm;

Thomas:         Huh.

Andrew:         C) Yes, because at the time the contract as made, the rancher had reasons to foresee the loss as a probable result of his breach; or D) Yes, because a party who undertakes a contractual obligation is liable for all the consequences that flow from his breach.

Thomas:         Hmm.  This is interesting.  Okay, so the contract seems to say – and again, the brackets are kinda weird, I dunno if that’ll come into play, probably not, but you need to harvest the wheat crop when the crop is or was ripe, I guess.  [Laughs] I guess the brackets is that we’re talking in the past tense but the contract is saying when the crop is ripe or something?  What a weird detail. 

In early September, the neighbor told the rancher that the crop was ripe.  The rancher delayed because he had other customers to attend to?  So here’s what I’m confused by… Um, the ripeness doesn’t seem related to the hailstorm.  Like a breach of this, to me, would seem like hey, the crop was ripe, you delayed and then all of a sudden it’s rotten.  Whatever, it sits there, it’s too long and you know, whatever happens, animal bugs, something eats it.  That strikes me as-

Andrew:         … Animal bugs?  [Laughs]

Thomas:         Animals, bugs, whatever it is.  You can’t just let something be ripe, whatever it is, I don’t know how wheat works.  Say it’s fruit or something, you can’t just let it sit there ripe forever because that’s gonna not work, but this doesn’t really say that, it says that the neighbors worry that the delay would cause a hailstorm?  Well, it’s not cause a hailstorm, but in the delay process a hailstorm would come and destroy it. 

That seems like two separate things is what I’m trying to say.  You know, the hailstorm could’ve come just before it was ripe and then there would’ve been no discussion of whether or not the experienced rancher was to blame for that because there was nothing they could do.  I guess I’m unclear in the question.  Could the experienced rancher in question have delayed and then still gotten to it and everything would have been fine but for this hailstorm that I don’t think is part of the – that’s my confusion.

Let’s see here.  Before the crop was harvested… in early September.  This is a month though, so that seems like a long time.  It says in early September the crop’s ripe, and then in early October it’s destroyed by a hailstorm.  A month seems like a long time so that’s leaning me toward breach, but I dunno.  Is the rancher liable for the loss?  So here we go.

A, no because no time for performance was established in the contract.  Now I look at that and I see “when the crop was ripe” to be pretty solid time for performance, but maybe there’s gonna be some weird one legal trick that says no, you didn’t actually do all the components to establish time for performance?  I dunno, I don’t think A is right.

B, no because the neighbor failed to tell the rancher that the crop might be destroyed by a hailstorm.  Okay… that could be.  That’s plausible.  That could be – first off an experienced rancher should know about the hailstorms in that part of the country.  [Laughs] But if the guy was just thinking, if the experienced rancher was thinking hey, wheat can sit there ripe for a month and it doesn’t matter, I’ll still get to it when I get to it, versus there’s a bunch of hailstorms, maybe.  So B seems plausible, still not my favorite answer.

C, yes because at the time the contract as made, the rancher had reasons to foresee the loss as a probable result of his breach.  That’s interesting.  I like that one the best so far because it’s kind of not specific as to what the loss is a result of, so that leaves open the idea that, like, you foresee the loss as a result of anything as a probably result.  Yeah, okay, so I like C.

And D, yes because a party who undertakes a contractual obligation is liable for all the consequences that flow from his breach.  I think that’s just plain not true.  I’m pretty sure we’ve covered stuff in the past.  You’re not really liable for all the consequences, you’re liable for the very direct ones.  If the hail destroys the crop and the farmer doesn’t get to sell the crop and then he loses his house because he didn’t have the money for that, they’re not liable for everything that flows from that.  I think D is just plain not true.

So I would narrow it down to B and C, and I’m gonna go with C, yes because at the time the contract as made, the rancher had reasons to foresee the loss as a probable result of his breach.  Final answer.  We’ll find out next week if the kids have ruined my bar taking abilities.

Andrew:         [Laughs] Alright!  And I wanna remind you and all of our listeners, Thomas was on a 3 question win streak before we paused last week.

Thomas:         Ooh, notice the use of “was.”  Oh, okay! [Laughs]

Andrew:         Well, before we- I’m not done-

Thomas:         I thought you were hinting that I blew this one.

Andrew:         In no way, I’m saying our listeners can choose either to let it ride or to say, well you know [Laughs] All good things come to an end!

Thomas:         Thomas is due for a, yeah.  For a loss.

Andrew:         But you know how to play along, just share out this episode on social media, include the hashtag #T3BE, include your guess, your reasons therefore, we will pick a winner and shower that person with never ending and COVID-19-free fame and fortune!  Fame and fortune not guaranteed.

Thomas:         Alright, thanks so much for listening everybody, we’ll see you on the livestream, the Code Names livestream!  Friday, 5:00 Pacific, 8:00 Eastern, it’s gonna be so much fun.  I’m seriously excited for this, what a fun group of people.  Come join us and also we’ll see you on Tuesday for the episode and for the Q&A livestream!  So much content, we hope that – by the way we wish absolutely the best to anyone who is essential and is having to work and put themselves in danger and all that.

Thank you for what you’re doing, we wish you the best, but for everybody else who has been deemed nonessential, [Laughs] weird terms, we hope the extra content will help get you through these trying times.  Thanks so much everybody, and we will see you then!

[Show Outro]

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