Transcript of OA474: FBI “Faked” Kavanaugh Investigation?!

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 474.  I’m Thomas, that’s Andrew, how’re you doing, sir?

Andrew:         I’m fantastic, Thomas, how are you?

Thomas:         I’m fantastic that you’re fantastic.

Andrew:         [Laughs]  

Thomas:         We’ve got – I mean, not only do we have a great show, I just can’t hold it in a moment longer, Andrew.  Cop Rock, with Eli Bosnick.

Andrew:         [Laughs]  

Thomas:         Coming to a Law’d Awful Movies near you this weekend.

Andrew:         Oh, gosh.  Yeah.

Thomas:         Eli Bosnick, for anyone who doesn’t know, is one of the funniest people on the planet, and Cop Rock is one of the most ridiculous things that you wouldn’t believe exists.

Andrew:         [Laughs]  

Thomas:         We’re gonna do Cop Rock episode 1.  Now, I had to get Cop Rock from, like, a guy in a parking garage.  You know, the methods that I had to use-

Andrew:         It will be a challenge, if you’re one of the people that like to follow along and watch the shows before we do a Law’d Awful Movies, you may find it challenging to find episode 1, or episode anything of Cop Rock!

Thomas:         [Laughs]  Yeah, it’ll tell you online “oh, watch it on iTunes,” but that’s actually mislabeled, it’s not the right show.  [Laughs]  It tells you yeah, you can rent it on iTunes, no you can’t.

Andrew:         This is humanity trying to help you not have to watch this show.

Thomas:         No, some executive or somebody wanted to bury it, I’m telling you.  This was buried.  This show, we’re gonna blow the lid off this thing.  Cop Rock, you may have seen it first on John Oliver, but we’re doing the deeper dive, as we always do.

Andrew:         Always, and I have done research into the background, I’m super excited about this.

Thomas:         Gonna be so fun.  So, uh, hop onto that Patreon everybody, or if you’re already there just keep refreshing every 60 seconds until-

Andrew:         [Laughs]  

Thomas:         [Laughs]  Alright, hey, what’s going on over on Aisle 45?

Andrew:         Oh, we had a DOJ-heavy episode on Wednesday.  It was a lot of fun.  We had a really, really good interview with Adam Fernandez about Vanita Gupta, who, you know, not somebody I knew a lot about in terms of Biden’s nominee to be Assistant Attorney General, and I came away from that interview very, very excited, not only about her but about what that meant as a nomination.  Putting somebody who’s expertise is voting rights law is a pretty strong indication that the Biden administration gets it. 

Thomas:         Yeah.

Andrew:         They understand that these are not just battles over process, but this is really the full on Republican strategy for maintaining relevance and power despite being a minority party.  Again, I couldn’t be more proud to be a member of the political party that is trying to expand political participation rather than restrict it.  That was that episode.  What about the latest SIO?

Thomas:         Ooh, science lovers-

Andrew:         [Laughs]  

Thomas:         I had, so Lindsey is always on the show, starting a new podcast of her own with a physicist so I had them on to talk about quantum physics.  We were gonna talk about the “what the bleep do we know” just for fun.

Andrew:         Oh my gosh!

Thomas:         To dive into some quantum woo?  But it’s so – trying to set everything up it turned into a quantum physics kinda 101 sort of thing, which is just my favorite thing.  [Laughs]  I probably listened to the same quantum physics lecture and going through all those things a million times and it never gets old to me, it’s one of my favorite subjects because it’s so weird and so complicated that I can’t really retain it each time.  [Laughs]  Anyway-

Andrew:         [Laughs]  

Thomas:         If you’re into quantum physics and want to hear about some amount of quantum woo and why it’s BS, check out Serious Inquiries Only.

Andrew:         I am very, very excited to listen to that episode because every time I think I have a good handle on, like, you know, the basics of quantum physics-

Thomas:         The slit thing.

Andrew:         Yeah.  Exactly.

Thomas:         [Laughs]  Double slit experiment, you’re like-

Andrew:         To be able to talk about it intelligently as a layperson.

Thomas:         Yeah.  Same with you when you ask me any legal term, the definition.  I’m like, oh, I know what that – ooh, I can’t put it into words.  [Laughs]  

Andrew:         [Laughs]  

Thomas:         Every time, I’m like well, I think I – nope, I don’t know it enough to be able to rephrase it in a way that sounds smart.  It’s like that.

Andrew:         [Laughs]  Yeah.  And I know, I have no hope of ever understanding the mathematics.

Thomas:         Mm-hmm.

Andrew:         That’s beyond this lifetime for me, but to be able to conceptualize it on a level of like, oh, when they make this reference on Star Trek should I be angry or happy?

Thomas:         [Laughs]  

Andrew:         That’s what I should-

Thomas:         Well, according to the physicist I had always angry.  [Laughs]  

Andrew:         Oh, nice.

Thomas:         I asked him, he’s like “I can’t watch anything.”

Andrew:         [Laughs]  

Thomas:         Some people – I would think some people would be able to just, like, “ah, I’m not gonna think about it,” but he’s like nah, I don’t really watch any sci-fi, I can’t handle it.

Andrew:         Oh, ah!

Thomas:         I see where he’s coming from.  Anyway, we’ve got so much to talk about today.

Andrew:         Yup.

Thomas:         Let’s get into it.

Kavanaugh Investigation

[6:34.9] [Segment Intro]

Thomas:         This is something I’ve missed, and I can’t wait to hear you tell me what this is.  An investigation into Kavanaugh?  How did I miss this?  What’s happening?

Andrew:         Oh, yeah!  So, yesterday Sheldon Whitehouse, the Senator from Rhode Island and author of the single most amicus brief-

Thomas:         Oh yeah!

Andrew:         -of the past decade, sent a letter to Merrick Garland, to Attorney General Merrick Garland raising five issues.  All five of these are really, really important issues.  I’m gonna talk to you about 1, 3, 4 and 5 first, then the second one was Kavanaugh, that’s where we want to do the deep dive.  First, and again, each one of these we could do a segment on, requesting that the DOJ continue its tobacco-like investigation into the fossil fuel industry.

Thomas:         Ah.

Andrew:         Here, there are points of dis-analogy, but the common thread is the allegations of fraud against the major manufacturers.  That’s what blew open the cigarette case was, oh yeah, the cigarette companies knew in like 1907, oh yeah, we’re killing people by the millions.

Thomas:         Mm-hmm.

Andrew:         And hid that research, buried it, failed to disclose.  The question is, did the fossil fuel industry do the same thing with respect to the toxic effects of producing fossil fuels?

Thomas:         Wow.

Andrew:         And using fossil fuels.  It’s a huge, huge inquiry.  It was opened in the Obama administration and then, you know… [Laughs]  

Thomas:         What’d Trump do with it?  [Laughs]  

Andrew:         Shockingly, not pursued and so that was point one in the letter.  We’ll link the letter in the show notes, you can go read more on it if you want.  Point three was an antitrust investigation into separate agreements that various auto manufacturers made with the State of California regarding the fuel standards, which are supposed to be an average of 51 miles per gallon by 2026. 

Thomas:         Wow.

Andrew:         Whitehouse wants to know what’s up with that.  Item number 4 are IRS referrals for unlawful political activity by nonprofits, that is a huge issue in light of Citizens United where you can funnel unlimited dark money into campaigns.  501(c)(4)’s that engage in political advertising are required, if you engaged in any political activity of any kind it’s not prohibited, but you have to check the box that says “yes” on the IRS form.

Thomas:         Mm-hmm.

Andrew:         We’ve talked about this before.  Lots and lots of dark money outfits that are supporting candidates, supporting awful causes, and probably some that are supporting good causes – this is for sunshine, this is for disinfectant – have answered “no” on the IRS forms, “no, we’re not engaged in any political activity,” when they’re very clearly engaged in political activity.  The DOJ’s policy up until now has been to await referrals from the IRS for criminal tax fraud and what Senator Whitehouse wants the DOJ to do is initiate investigations on its own if the IRS isn’t gonna refer out any cases, because if you wanted to guess the number of criminal referrals involving 501(c)(4)’s that fraudulently answered “no” on their applications while conducting political activities, what number that starts and ends in zero do you think the IRS referred out over the past four years?

Thomas:         [Laughs]  Zero … one zero?

Andrew:         Zero, yeah.

Thomas:         Okay, yeah.

Andrew:         Yeah, it never happens.

Thomas:         I wasn’t sure if that was a porked bar exam question or a you question.

Andrew:         [Laughs]  

Thomas:         You know.

Andrew:         Then, finally, and I like this because this is almost – my heart goes out to Senator Whitehouse as he wrote this – about the Office of Legal Counsel.  I’m gonna read a sentence.  “I am not sure what should be done about the Office of Legal Counsel,” he writes, but we all know Trump turned it into an office of hackery.  Under the best of circumstances it provided cover for Presidents who, you know, wanted John Yoo to write a memo that said, “yeah, yeah, yeah, torture is fine.”

Thomas:         Yeah.

Andrew:         OLC has always been, oh, my boss wants me to write a memo that says the thing my boss wants to do is permissible.  Wonder where I’m gonna turn out on that?  But first, let me impartially evaluate the evidence.  No!

Thomas:         Mm-hmm.

Andrew:         It’s always been crap, but it became, you know, a double-crap sundae with whipped crap on top of it during the Trump administration.

Thomas:         [Laughs]  

Andrew:         Those were the four other points, like I said we could drill down on every one of them.  The Kavanaugh point has gotten a lot of attention and rightfully so.  The language that Senator Whitehouse uses here is … not mincing words.  He says, (quote) “the second matter of concern is what appears to have been a politically constrained and perhaps fake FBI investigation into alleged misconduct by now Supreme Court Justice Brett Kavanaugh, rather than what FBI director Chris Wray promised:  a background investigation (quote) ‘consistent with [the FBI’s] long-standing policies, practices, and procedures.’”  He points out that the FBI failed to interview Christine Blasey Ford, they failed to interview Max Stier, the widely respected president of the Partnership for Public Service, and a college classmate of Brett Kavanaugh’s who offered specific corroborating evidence.  The FBI just refused to interview them. 

The FBI set up a tip line, but – [Laughs] here I can’t do this any better than Senator Whitehouse has already expressed it.  (Quote) “This tip line appears to have operated more like a garbage chute-

Thomas:         Wow.

Andrew:         – with everything that came down the chute consigned without review to the figurative dumpster.”  It’s a strong, strong statement made in public by a very prominent person who, again, Sheldon Whitehouse – if we said this on our show you would be like “okay, fine, whatever.”

Thomas:         Yeah.

Andrew:         Sheldon Whitehouse, not a bomb thrower.  I’m gonna be keeping an eye on this as to how it’s received, what Merrick Garland says in response to that request that the FBI re-open the investigation, that they provide an explanation for the stonewall of questions related to Christine Blasey Ford.  Again, from Senator Whitehouse, “if the investigation was conducted with drawbridges up and a fake ‘tip line’ and that was somehow ‘by the book,’ … that would raise serious questions about the ‘book’ itself.” 

Thomas:         [Laughs]  Yeah, yeah. 

Andrew:         “It cannot and should not be the policy of the FBI not to follow up on serious allegations of misconduct during background check investigations.”  I would expect to see some action taken here, and then go ahead and ask the question that I know you’re getting ready to ask.

Thomas:         No.  Well, maybe I’ve been trained out of asking such questions.  But I’m sure people are wondering, “so does that mean we could get rid of Kavanaugh somehow?”

Andrew:         The answer is we could.  It is very, very unlikely.  The remedy, Article 3 judges serve for good behavior, it’s a slightly different standard.

Thomas:         Yeah, so it’s impeachment, right?

Andrew:         It’s impeachment.  But, look, a dozen judges, Article 3 judges, have been impeached in our history.  Certainly lying to Congress in your impeachment hearings is grounds for being impeached and removed from the bench.  Again, the standard isn’t even a crime.  It’s not like what counts as high crimes and misdemeanors or whatever, no, it’s just for good behavior.  Obviously, you know, it falls short of good behavior when you lie to get onto the bench.  Again, is that gonna persuade 10 Republicans?

Thomas:         What do you mean 10?  Isn’t it like 17?

Andrew:         You are correct, we need to get to 67, not 60.  I was thinking in the back of my head, you know.  [Laughs]  

Thomas:         Yeah.

Andrew:         You know what I was thinking of in the back of my head.  To do anything we need to persuade 10 Republicans, yeah.  Persuading 17 Republicans is almost certainly impossible, but let’s see-

Thomas:         I mean, it’s worth saying here’s how things should work.  If the world was fair you would be like oh my god, what a miscarriage of justice this thing was, and then Republicans would be like yeah, you’re right, this guy shouldn’t be on the bench, then you could impeach him, but that’s not gonna happen.  I guess it’s worth showing the process of what should happen and maybe going through the motions, but we all know it’s not going to happen.

Andrew:         That’s right, although, you know, look, you could reach an accommodation with Mitch McConnell if –

Thomas:         Yeah, like tell him we’d give him another Trump justice or something?  [Laughs]  

Andrew:         No, no, no!  For example you could certainly say “here’s the political cover I will give you.  I, Joe Biden, will nominate 85 year old Laurence Tribe to the bench in place of Brett Kavanaugh.”  On the one hand, yes, you’ll be replacing a right wing activist with a liberal justice.  On the other hand, it’s the person who is the smartest person on earth about constitutional law, there’s no question of fitness, and it’s not like we’re finding our own Justin or Cory here who’s 37.

Thomas:         You’re living in a fantasy land, Andrew.  I mean, come on.

Andrew:         Yeah, probably.  [Laughs]  

Thomas:         If you’ve been listening to this show for four or five years, this is not happening.  What will happen is what the – this is a Democrat hoax!  Investigation, he was fine, cleared, I’m not gonna listen.  That’s what’ll happen.  Not even Mitt Romney would vote for this, I don’t think.  But don’t mistake that for, like-

Andrew:         It’s highly optimistic.  No, no. Yeah, okay.

Thomas:         Let’s get into the investigation, let’s do all that.  Let’s air those wrongs and make sure if we need reform there, or people need to be fired, by the way, yeah.  I want a full accounting.  I’m not saying do nothing.

Andrew:         Yeah!

Thomas:         I’m just, you know, just saying we’re not getting an impeachment of a justice. 

Andrew:         You’re-

Thomas:         I would bet any amount of money on that.

Andrew:         You’re probably correct.  But you’re harshing on my Optimist Prime buzz, here.

Thomas:         Well, you know.  [Laughs]  There’s optimism and then there’s optimism, Andrew. 

Andrew:         [Laughs]  Fair enough.


Breakin’ Down the Law – Lawsuit Against The Recovery Act

[18:54.0] [Segment Intro]

Thomas:         Alright, well, let’s talk about the latest lawsuit against The Recovery Act.  What’s going on?

Andrew:         This, by the way, is an Andrew Was Wrong from last night.

Thomas:         Ooh.

Andrew:         If you were one of the couple hundred folks who listened to our Q&A.  I was just getting the pleadings and I had, you know, skimmed very briefly over them, and my answer was incorrect.  Apologies if you heard that speculation last night.

Thomas:         Jeez.  You should’ve just left it to only the Stereo folks know you were wrong.  Everybody else, he’s always right! 

Andrew:         [Laughs]  

Thomas:         He wasn’t wrong.

Andrew:         You know, that’s what the Q&As are for, I’m much more willing to go out on a limb and say “I think it’s X.”  Turns out, not at all.  Here’s what you need to know.  Topline, Ohio is suing to block only one tiny provision of the American Rescue Plan Act, and they’re not going to succeed for the reasons that I’m about to tell you, but it was super interesting figuring out what their complaint was.  It reveals, I think, so much about the American Rescue Plan, about the hypocrisy of Republicans, and about a little known and infrequently discussed legal doctrine on this show called The Anti Commandeering Doctrine. 

Thomas:         Ooh!

Andrew:         We’re gonna do a deep dive on this right now, starting out at the top.  Episode 472 is when we broke down the American Rescue Plan Act.  One of the things we said in the overview was that it gives a lot of money to the States.

Thomas:         Mm-hmm.

Andrew:         And to the District of Columbia.  I cut, for time, the discussion of Section 9901, but if you have your American Rescue Plan Act up, and, you know, if you don’t what are you doing listening to the show without having the documents up?  I’m a little disappointed in you.

Thomas:         Yeah, I sleep with mine.

Andrew:         Yeah, you should.  Turn to page 220, that is Section 9901, and that allocates $195 billion dollars to the States, just direct aid from the federal government to the states.  Subsection (c)(1) tells the States what they can do with it.  They can do one of four things:  A, they can respond to the negative economic impacts of COVID-19 with direct aid to households, small businesses, nonprofits, or impacted industries (like tourism);  B, they can provide premium pay to essential workers; C, they can use it to provide government services that benefit people that have suffered as a result of COVID-19; or D, they can invest in water, sewer or broadband infrastructure.

Thomas:         Huh.

Andrew:         That’s it, no other things.  Again, because this is a great bill, because this is a Democratic bill from start to finish, Democrats realized what a big giveaway of a huge chunk of money to red States might cause to have happen.  Go ahead, Negatron.  Imagine, you’re Governor Kristi Noem and you get $2 billion dollars as a result of this direct aid package.  What do you think Kristi Noem is gonna do with that $2 billion dollars?

Thomas:         Oh, well there’s so many possibilities, because I know on one – I’m not sure what you’re going for, but there’s a lot of possibilities.  A, they could just take credit for it as you just said last show.

Andrew:         Yup.

Thomas:         Or, two shows ago.  Just be like “hey, I’m doing this.  Republican, hey, look at this.”

Andrew:         And the bill is fine with that, by the way.  As long as people get benefits, it decentralizes the credit.

Thomas:         But the other thing, I know with Obamacare they turned down a bunch of free money!  Just to spite the first Black President.  They could have expanded, what is it, Medicare, Medicaid, whatever the thing is?

Andrew:         Yup.

Thomas:         They could have expanded their healthcare with free money, basically, refused to do it.  I’m not sure if that’s what you’re going for?  Your tone sounded a little different than that.  It sounded like you were suggesting they would use them for some other nefarious purpose, even though-

Andrew:         Exactly right.

Thomas:         Yeah, but it seems to be pretty spelled out in the bill, there, what they can use it for, right?

Andrew:         Here’s what Democrats were rightly concerned that red State governors would do.  Take the money, squander it on stupid tax cuts-

Thomas:         Oh.

Andrew:         -and then say “oh, well look, this tax cut is meant to stimulate small business.”

Thomas:         [Sighs] Ah, man!

Andrew:         “That counts as subsection (c)(1)(a) and ha ha ha.”  So, they wrote in – subsection (c)(1) has those four things you can do.  They wrote in subsection (c)(2).

Thomas:         Ooh!

Andrew:         Which basically says, “no, you can’t do that.”  It says (quote) “a State shall not use the funds provided under this section to either directly or indirectly offset a reduction in the net tax revenue of such State-

Thomas:         Hmm.

Andrew:         -resulting from a change in law, regulation, or administrative interpretation during the covered period that reduces any tax by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise, or delays the imposition of any tax or any tax increase.”  So, pretty smart!

Thomas:         Case closed!

Andrew:         Yeah!  Absolutely!  Case closed, you can take the money, but if you take the money you have to actually spend it on your people, not do stupid Republican stuff with it.  So, Ohio’s pretty mad.  [Laughs]  Because Ohio wants to take the money and use it for tax cuts!

Thomas:         Ugh.

Andrew:         Because of course they do.  So, they have filed this lawsuit.  They are suing for an injunction to block only (c)(2).

Thomas:         Oooh!

Andrew:         That’s the no tax cut portion that I just read to you.  In other words, they want the money.  [Laughs]  

Thomas:         Yeah.

Andrew:         This is not like the Obamacare “oh no we’re definitely not gonna.”  They want the money, but they want it no strings attached and they want to be able to use it to give tax cuts and then take credit for being a tax cut governor. 

Thomas:         [Sighs]

Andrew:         Get that to drum up votes against the Democrats in their State, even though zero Republicans voted for this bill.  That’s the lawsuit that they filed.  It is based on the Anti-Commandeering Doctrine, which we have discussed exactly once in 474 episodes of the show, way back in OA episode 175.  This is a little bit of a memory question, but it’s also totally unfair.

Thomas:         Oh, I fail.  I already failed.  [Laughs]  

Andrew:         You’re allowed to get it wrong.  Counting English common law-

Thomas:         Hmm.

Andrew:         -when do you think the first anti-commandeering case was?

Thomas:         Oooh.  So, we’re like commandeering a chariot or something?  A horse?

Andrew:         [Laughs]  Exactly, yeah.

Thomas:         Oooh.  Mmm.  Hmmm.  The Sherriff of Nottingham maybe?  Comes in.  I would say, uhhh, 1580.

Andrew:         Yeah, 1992.

Thomas:         Oh, okay.  [Laughs]  

Andrew:         Right, that’s why I set you up that way!

Thomas:         That’s less fun.

Andrew:         Because anti-commandeering sounds like crazy old timey Sherriff of Nottingham language.  It’s a thing that was invented by Antonin Scalia.  The idea is that the federal government cannot commandeer the State legislature and tell them what to do.  In the entirety of our nation’s history we have had three cases at the Supreme Court that have involved the anti-commandeering doctrine.  One in 1992 called New York v. United States, which invented it, which involved the Low Level Radioactive Waste Policy Amendments Act of 1985 about where you could store toxic waste.  Basically it was like you can’t tell the New York State legislature that they have to store the toxic waste in New York. 

Then, 1997, Scalia case, which held that the Brady Bill provision requiring States to conduct a background check using the best technology available in each State was in violation of this imaginary made up doctrine.  Again, this was particularly galling because, again, that provision of the Brady Bill that said “have localities conduct the background checks,” that was a compromise to Republicans and conservatives.  It was okay, we won’t have a big intrusive federal government, the bill will just say “in your State, your State should conduct a background check.”  Then they immediately sued to say “oh, well you can’t tell the States what to do under the Anti-Commandeering Doctrine that’s existed for all of a minute and a half as of right now.”

Thomas:         Wow.

Andrew:         Then, anti-commandeering sat dormant for 20 years.  Never went anywhere, no cases applied it, until the one we discussed on our show, Murphy v. NCAA

Thomas:         Hmm.

Andrew:         [Laughing] That was overturning a particular federal law about gambling on college athletics.  You can go back to OA episode 175, you can hear our breakdown of that case.  We try to be fair, sort of on both sides.  The basis for the anti-commandeering doctrine is the 10th Amendment.  The 10th Amendment says the powers not delegated to the United States by the Constitution-

Thomas:         Right.

Andrew:         -nor prohibited to it by the States are reserved to the States respectively, or to the people.  This is a way of reading the 10th Amendment as constraining what the federal government can do under the Commerce Clause.  It’s kind of weird when it morphs from a direct instruction to the State to incentives.

Thomas:         Hmm, yeah.

Andrew:         Because incentives, we’re gonna give you federal dollars so long as you do X, we’ve been doing that for 200 years.  You were nodding along, but, like, you probably remember that the nationwide adoption of a 21-year-old drinking age was passed during the Reagan administration and was tied to specific federal highway funds.  This was the National Minimum Drinking Age Act of 1984, signed into law by President Ronald Reagan July 17th, 1984.  It said that any State that allowed individuals under 21 to purchase alcoholic beverages – that was targeted at Louisiana and the French Quarter, which allowed 18 year olds to drink at the time – would have their federal highway budget-

Thomas:         Jeez.

Andrew:         -reduced by 10%. 

Thomas:         Oh, so it just made States do it?  States could hypothetically still not do that?

Andrew:         Correct!  Yeah.

Thomas:         Oh, wow!  I didn’t know that.

Andrew:         Look, States could hypothetically still give tax cuts!  You’ve got two different options here in this particular bill.  You could not take the money.

Thomas:         Mm-hmm.

Andrew:         [Laughs]  Which Ohio really, really wants to take the money.  Or, read that (c)(2).  It just says you can’t use that money to fund the tax cuts.  If you want to fund the tax cuts from somewhere else?  That’s totally fine!  This doesn’t say if you’re a State and you take the money you can’t cut taxes.  Yeah, you can say okay, we’re gonna eliminate this statewide program, that’s gonna save $300 million dollars, and we’re gonna fund these $300 million dollars in tax cuts over here.  All it prohibits you from doing is using the federal money, which is earmarked for a particular spending purpose, to use it for some other purpose.  The Supreme Court has never held that that constitutes commandeering a State legislature.

Thomas:         Yeah, that’s silly.

Andrew:         Never, ever, ever.  Now, let’s go the other way.  This Supreme Court very easily could just invent something new out of whole cloth.

Thomas:         Yup, yup.

Andrew:         [Laughs]  But, in order to get there, remember that what’s happening here is this is a lawsuit brought by the State of Ohio seeking injunctive relief.  As we know, Thomas, in order to get injunctive relief, what do you need?

Thomas:         Probability of success on the merits, harm, and a something… irreparable harm!

Andrew:         Yup.

Thomas:         Sorry, yeah.  That’s what I was going for.

Andrew:         Let’s say we concede that.  I don’t know that their irreparable harm argument is fantastic here?  It’s a really, really short section.  It is page 17 of their brief.  They say courts presume irreparable harm in cases involving constitutional violations.  A constitutional violation for even minimal periods of time unquestionably constitutes irreparable injury.  Because this is unconstitutional, because it allegedly violates the anti-commandeering doctrine, it causes irreparable harm to the States.

Thomas:         Is that true?  [Laughs]  

Andrew:         Well, look … [Laughs] The citations for “courts presume irreparable harm in cases involving constitutional violations” are things like restrictions on free speech.

Thomas:         Mm-hmm.

Andrew:         Things that prevent individuals from exercising their constitutional rights.  I have never seen that applied in the context of, oh, this is an unconstitutional thing to do to a State, and that seems a little tenuous to me in the sense that, like, a State is not an entity that can feel pain.

Thomas:         Yeah.

Andrew:         That can have its particular rights violated.  It’s just a question of is this permissible or not?  That seems like not a great argument.  Their fallback argument is this:  even without that presumption the Court would have to conclude that the tax mandate – that’s section (c)(2) – causes irreparable harm.  Why?  [Laughs] Sidebar, if you’re an aspiring young lawyer, don’t put rhetorical questions in your briefs.

Thomas:         [Laughs]

Andrew:         Anyway, because the mandate causes precisely the same harm that occurs every time the federal government intrudes upon the sovereign interests of the States.  All States have an interest as sovereigns in exercising the power to create and enforce a legal code, that is why States have standing to challenge federal laws that purport to constrain that power and that is why the federal government always causes a form of irreparable harm when it improperly interferes with the State’s freedom to govern itself.  The State’s mandate causes precisely that form of harm.  It constrains the State’s taxing power, interfering with its sovereignty and thus causing irreparable harm.  Again, this does not seem to me to be a great argument, particularly if you’re a textualist on the Supreme Court.  The way in which we figure out if a harm is “irreparable” or “reparable” –

Thomas:         Yeah.

Andrew:         -is to ask-

Thomas:         Can you repair it?

Andrew:         -what would happen- Yeah!  [Laughs]

Thomas:         [Laughs]

Andrew:         That’s right!  What would happen if we’re wrong and we have to go back and revisit this?  The answer to “what would happen if we’re wrong and we would have to go revisit this” is-

Thomas:         Move some money around?

Andrew:         Yeah, turns out you can spend some money in a different way after all.

Thomas:         Yeah.

Andrew:         That does not seem-

Thomas:         Sounds pretty reparable to me.

Andrew:         Yeah!  Right!  The reparation is within the declaration itself.

Thomas:         Mm-hmm.

Andrew:         Yeah, we told you you couldn’t spend your money this way, turns out you can.  Go nuts.

Thomas:         [Laughs]

Andrew:         The last argument is one that has a single citation, and it’s very weird and I started to research it and just sort of ran out of time on today’s episode.  I want to read it, flag it, maybe we can crowdsource this.  It says, “The final way in which the tax mandate causes irreparable harm:” (this is page 18 of the Ohio motion) “Subjecting Ohio to unknown penalties if it reduces taxes.  The mandate causes an interference with the State’s orderly management of its fiscal affairs.”  The citation is to a case called Barnes v. E-Systems, 501 US 1301, 1304.  Then there is a citation I have never seen.  I’ve only been practicing law for 20-[Mumble] years, but-

Thomas:         [Laughs]

Andrew:         It says “Scalia J., in Chambers.”

Thomas:         What?

Andrew:         Yeah!  What does that mean?

Thomas:         I think it means the ghost of Scalia visited one of them.

Andrew:         [Laughs]

Thomas:         In their chambers and told them something.

Andrew:         It’s a weird – it’s a very weird citation.  Anyway, “that injury cannot be remediated later, there is no mechanism for holding the United States responsible for the unquantifiable injuries Ohio will sustain if made to craft its tax policy in the mandate’s shadow.”  That’s the end of the stated argument, and if you’re saying “I’m not sure I understand what that means” that’s because it’s deliberately written in an obtuse way.  Here’s what I think it is saying.  I think it is saying the American Recovery Plan Act says you get the money, and then it says you cannot use the money on tax cuts.  But it doesn’t specifically say what the penalty is if the States do it anyway. 

Thomas:         Hmm.

Andrew:         The implied penalty is you’d have to disgorge the money, but there seems to be an argument here that that uncertainty would potentially change the balance of power vis-a-vie the State of Ohio and the federal government.  So, the key thing, really, is to check out that Barnes v. E-Systems case.  You can tell from all of this, I ran a lot of things to ground, but that was still an open question as of the time that we record this.  You know, this lawsuit was filed yesterday.

Thomas:         [Laughs]

Andrew:         You know, cut me a little bit of a break, let’s put a pin in that as a question for-

Thomas:         Oooh!  A pin for everybody, it’s not just for me!

Andrew:         Yeah!  Future follow-up, is this really a good argument on irreparable harm?

Thomas:         Just because the listeners aren’t used to having pins put in them like I do all the time-

Andrew:         [Laughs]

Thomas:         Get ready for Andrew to say “take that pin out,” and then you have to remember what even the pin was.  You’re like “oh, yeah, got one right here!”  I actually keep spare pins, just in case, so it’s like yup, here it is!

Andrew:         [Laughs]

Thomas:         That one!

Andrew:         [Sighs]

Thomas:         Then he tells you what it was.  [Laughs]

Andrew:         Yup.

Thomas:         Andrew, you didn’t listen to any of that, did you?

Andrew:         [Laughs] I did not.

Thomas:         Okay, good.  It was just me and the audience for a second.

Andrew:         Yeah, I was paging back to – because here’s the thing.  Even if you concede irreparable harm, as you correctly noted the first criterium for-

Thomas:         Likelihood of success on the merits.

Andrew:         Right, demonstrating a likelihood of success on the merits.  I don’t see how they can do that.

Thomas:         So, this’ll be a big signal.  If this goes the wrong way that probably means the Court wants to just develop a stupid thing to let them do this?

Andrew:         Well, and look.  Yes, but again, think about this procedurally.  This is filed in the Southern District of Ohio right now.

Thomas:         Right, I mean if it got up to the Supreme Court I guess, is what I was saying, yeah.

Andrew:         Right.  That’s what we’re looking for, does this Court issue an injunction blocking C2 from going into effect?  Then if so, it strikes me as very, very unlikely.  Even if you do want to expand the anti-commandeering doctrine at the Supreme Court level, if you’re a lower court you kind of have to look at this and say this does not seem to fit the facts of our three narrow anti-commandeering cases.  There is no direct instruction to the legislature to do something.  You have the difference between an affirmative command versus a negative.  Think about this, if I were briefing this on behalf of the administration, the first point that I would make here is by analogy to writs of Matt Damon.

Thomas:         [Laughs] It’s writs of mandamus, everybody.

Andrew:         [Laughing] Thank you.  You cannot get a writ of mandamus to tell an elected official not to do a thing, because there are an infinite number of ways not to do a thing.

Thomas:         Hmm.

Andrew:         Now, you can get a negative injunction to say “hey, don’t violate the civil rights of so and so,” but you can’t get a writ of mandamus to do that because there’s not a thing you’re asking it to do.

Thomas:         Interesting.  Okay.

Andrew:         You would get a negative injunction; it would be a different standard.  I think, by comparison, if the anti-commandeering doctrine is to have any force it is to say the justification is a separation of powers justification.  It does not violate the separation of powers to tell a State not to do a thing, because again, there are lots of different ways they can not do that thing.  That’s perfectly obvious in the case of tax cuts to say okay, you can’t use these dollars to offset a tax cut, but you could literally use anything else in your State’s tax code to offset a tax cut.  You have a literally infinite amount of options available to you as the State of Ohio to figure out how you want to tax and spend.  There is no good argument that this impermissibly tramples the system of federalism that allows States to remain sovereign. 

The Ohio argument talks about the magnitude of the money, says oh look, our previously cases that have held no commandeering when it’s been a smaller amount of money, the highway funds and the drinking age, this could be up to – what is it on page 12?  Yeah, equals roughly 7.4% of Ohio’s total budget for 2020.  They’re like “that feels really, really coercive” because it’s a lot of money. 

But that’s the wrong inquiry.  The question is not “how coercive is money?”  I can concede that money can be coercive to a State, and it is.  There are a lot of doctrines that say –

Thomas:         Right, but it’s still federal money.

Andrew:         Yeah!  Right!  You are not demanding that they do a thing, you are saying if you want this money you have to use your discretion to allocate this money subject to these kinds of constraints.  If that’s impermissible, our entire federal government is impermissible.

Thomas:         Yeah.

[42:39.5] [Commercial]


Thomas:         If I were to Thomas summarize this-

Andrew:         Yeah.

Thomas:         It sounds like this is a totally stupid, dumb, thing, but we really need to pay attention to it because if the Supreme Court decides then it’ll just be a stupid, dumb thing that becomes law.  I don’t know how they would do that, though.  It seems like it would render a lot of what the government does, as you’re saying, as unconstitutional.  That would be a big hammer blow.  But with this Supreme Court you just never know.

Andrew:         You don’t.  But let me add, it would also neuter most of the Republican alternatives that have been proposed over the last 30 years.  For example – and many of which have been adopted.  The idea is oh, rather than have the federal government administer a program, we have the federal government give block grants to States.

Thomas:         Right, the block grant stuff.  That was Paul Ryan’s big thing that he loved.

Andrew:         Yeah!  Right.

Thomas:         So much.  [Laughs]

Andrew:         Block grants would be unconstitu- if this violates the anti-commandeering doctrine, then I fail to see how block grants don’t violate the anti-commandeering act.

Thomas:         But I – But the block grant thing, I think, is a Republican compromise.  I think they would be fine with this, though.  Because they’d be like “oh, we’ll still do the block grants,” then the States just do whatever because we don’t care.  I don’t know, I kind of feel like Republicans would take that bargain, is all I’m saying. 

Andrew:         Well, my point is just that it would have – the most immediate effects would be to undo Republican programs-

Thomas:         Hmm.

Andrew:         -rather than Democratic programs.  For example-

Thomas:         Right.

Andrew:         -it doesn’t violate the anti-commandeering doctrine to have federal social security payments.  The classic liberalism falls outside of this doctrine.

Thomas:         That’s a good point.  It would encourage Democrats to not do the thing you said they did in this bill.  It would be like, oh, okay, I guess we can’t, you know, give money to the States, I guess we’ll just have to have the federal government be a big brother and do everything.

Andrew:         Yup.

Thomas:         Yeah.  I guess that would cut against Republican interests, probably.  [Laughs]

Andrew:         Right.

Thomas:         To push Democrats that way, that makes sense. 

Andrew:         There’s one more thing that I think will protect the American Rescue Plan, here, and we don’t have time to dwell all the way into it, but that is the severability doctrine.  The questions is, when you go to enjoin or strike down a provision of the bill, a Court has to determine whether that provision is severable from the provisions around it and from the rest of the legislation.  Now, here, § 9901 is very clearly severable.  The money is allocated separately.  This bill is described as a $1.9 trillion dollar bill, but in each section, it adds up the specific amount that are allocated in that section.  9901 begins on page 220 with “okay, we’re gonna set aside $235 billion dollars here for every thing that follows, and of that $235 billion dollars, $195 billion dollars is going to the States under this particular formula.”  9901 is definitely severable from the rest of the bill, which is good, because, for example, the direct payments have already gone out.

Thomas:         Yeah.

Andrew:         Some people have them in their bank accounts as we’re speaking.

Thomas:         Got them right away.

Andrew:         Yeah, so it’s not going to enjoin the whole act, you can keep it separate, but the idea that you could keep (c)(1), which specifies the money, that that would be severable from (c)(2), which is how the money is spent?

Thomas:         Yeah.

Andrew:         That seems like super hard argument.  Again, if I were briefing this on behalf of the United States, would be very, very simple to say, you know, in the alternative you have to enjoin all of sections 9901.  You can’t take the money and then say ha ha, but I’m gonna spend it however the hell I want.

Thomas:         Yeah.

Andrew:         And that, by the way, you then would very easily be able to demonstrate irreparable harm, because Ohio, I suspect, has a Balanced Budget Amendment.  In other words, if the money is not there from the federal government, it becomes fungible.  The federal government can and does borrow money all the time.  But if Ohio gets the money and spends it, squanders it on stupid tax cuts, and then an appellate court says “oh, turns out you couldn’t do that,” Ohio could just shrug its shoulders and be like “yeah, well, we don’t have that money anymore.”

Thomas:         Yeah.

Andrew:         You know, tough.  Yeah, I think all the equities run the other way and I feel like things are going to be safe, but totally thought it was worth figuring out what Ohio is doing so we can keep our eyes on Ohio and the courts, and maybe understand a little bit more about the anti-commandeering doctrine of 1992.

[48:49.9] [Patron Shout Outs]

T3BE Question

[51:04.3] [Segment Intro]

Thomas:         And now it’s time for T3BE, I’m on an improbable streak, Andrew.  One in a row.  [Laughs]

Andrew:         [Laughs]

Thomas:         I dunno if I’ve ever had better than one in a row on this new test.  No, I feel like I got two in a row, but that was the previous high.  Let’s see how fluky my last getting it right was on this week’s T3BE.  [Chanting] Don’t pork the streak!  Don’t pork the streak!

Andrew:         Alright, Thomas.

Thomas:         Oh my god.  The test found out I got one right and now we have a nine-paragraph question.

Andrew:         [Laughs]

Thomas:         Okay, cool.

Andrew:         But this is a con-law question.

Thomas:         Mm-hmm.

Andrew:         So, I think you’ve got a punchers chance here. 

Thomas:         That’s a good word for it, yeah. 

Andrew:         Yeah.  A man owned a house where he lived with his family. The man was convicted of selling large quantities of an illegal drug from his house. Acting under a state law authorizing the destruction of buildings that are used for illegal activity-

Thomas:         Wow!

Andrew:         Yeah.  The city destroyed the man’s house.

Thomas:         [Laughing] Oh my god!

Andrew:         The man’s family then rented an apartment and demanded that the city pay the rent for that temporary residence. The family relied on a state law providing that any person who was dispossessed of his or her place of residence because of the actions of city officials was entitled to replacement housing at the city’s expense until permanent substitute housing could be found. When the city refused to pay the rent for the apartment-

Thomas:         Jeez.

Andrew:         -the man’s family sued the city in a state trial court claiming a right to such payment under both the state law and the due process clause of the Fourteenth Amendment to the United States Constitution.

Thomas:         Hmm.

Andrew:         The state’s highest court ruled for the family. Although the state decided that the family had no right to payment under the state law, it held that the Fourteenth Amendment-

Thomas:         Ooh.

Andrew:         – entitled the family to payment of the rent for the temporary apartment. In its opinion, the highest state court indicated that in several of its decisions it had found cities liable for compensation in similar situations on the basis of the due process clause of the state constitution. But the highest state court (the State Supreme Court) declined to base its holding on the state constitution because that issue had not been properly raised in the case.

Thomas:         Oh, jeez!  Come on!

Andrew:         The city then filed a petition for a writ of certiorari in the United States Supreme Court. 

Thomas:         Okay,

Andrew:         Does the Court have jurisdiction to review the merits of this case?

Thomas:         [Laughs] Okay, yeah.

Andrew:         Okay.  Answers:  (A) Yes, because the highest state court based its decision wholly on federal law grounds; (B) Yes, because the federal and state law issues in this case are so intertwined that a resolution of the federal law issues is necessary to facilitate a proper determination of the state law issues-

Thomas:         Oooh.  [Sighs] Yikes.

Andrew:         (C) No, because the decision of the highest state court renders the case moot;  or (D) No, because independent state law grounds could have been used to justify the result in this case.

Thomas:         Oh, man.  [Groans]  Ohhh, man, this is – god.  So, we’ve had something related to this.  This is a – so, look, I know we’ve had something related to this and, you know, there is the idea, this was the one weird trick with some of these abortion thingies that we were talking about under Trump, where it’s like the way to get around some of this stuff is do it entirely based on State law because then the Supreme Court can’t touch it.  [Humming] That was the whole plan.

Andrew:         [Laughs]

Thomas:         This kind of loosely relates to that, but it tries to make this weird tortured construction of, like, well, it has based this on the State version of the equal protection thingy in the past, but in this case, it said it’s only on the 14th Amendment.  It’s incredibly weird construction, here.  Alright, let’s look at what the ruling actually was.  “The highest state court ruled for the family. Although the court decided that the family had no right to payment under the state law, it held that the Fourteenth Amendment entitled the family to payment of the rent for the temporary apartment. In its opinion, the highest state court indicated that in several of its decisions it had found cities liable for compensation in similar situations on the basis of the due process clause of the state constitution. But the highest state court declined to base its holding on the state constitution because that issue had not been properly raised in the case.”

Okay.  I have a few impulses, here.  For one, that strikes me as this was based on federal law, so yes.  A was obvious, A is yes because the highest state court based its decision wholly on federal law grounds.  Then when you read B I was like oh, is this gonna be the way the test porks me?  Let’s see how the test porks me.

B, yes because the federal and state law issues in this case are so intertwined that a resolution of the federal law issues is necessary to facilitate a proper determination of the state law issues.  That sounds plausible, but it honestly kinda doesn’t sound like it applies to this.  [Sighs] That sounds like it would be if it – okay.  Here’s my impulse.  I feel like there’s a lot of dicta here.  I feel like this – what actually happened and what’s important to the question is State court says 14th Amendment gives them the thingy.  I feel like that’s what goes into Lexus Nexus and that’s what matters.  The State court said 14th Amendment gives you the thingy.  Yes, in the dicta, in the opinion they’re like, “well, it’s because of the State blahty blahty blah.”  I feel like that maybe isn’t as important?  I think the bottom line is what matters, maybe?  Is kind of my inclination.  Yeah, there’s this State law stuff and the explanation for what they’re doing, but at the end of the day what you’re gonna see when you Lexus Nexus this is State court says federal law gives thingy.  Whatever, 14th Amendment.  I think B is an attractive distractor, maybe?  Although who knows?  But I think not B. 

A is where I’m solidly leaning toward, and then they threw C at us, which I think is total crap.  C is if it’s absolutely porkaged to the extreme, it would be C, which is no because the decision of the highest state court renders the case moot.  Psh, I don’t think that could be true, but you know.  Subject to porkage later.

D, no because independent state law grounds could have been used to justify the result in this case.  That’s … that’s the one where just based on my experience of being porked over and over … and over, and over, I feel like D is gonna be the stupid answer that’s right.  No because state law could have been used.  It’s like – that is really screaming out to me as that’s gonna be the dumb way that this question is tricky.  Otherwise it seems like yes, because the highest State court based its decision wholly on federal law grounds.  I cannot describe, and it’s gonna be funny if I’m totally full of crap, but I cannot tell you how much my intuition is telling me that D is gonna be the way that this porked test tells me is the answer.  I absolutely logically want to say A.  Because, look, the court said 14th Amendment, absolutely you can appeal that. 

It says “does the court have jurisdiction.”  I feel … [Groans] oh, man.  That’s gotta be an even wider latitude.  For a second I was answering this as though morel like “would they grant the writ of certiorari?”  I feel like you could decline on the grounds that like “ah, no, because state law-” that could have been a good justification to decline.  But I think it would be really tough to say the Supreme Court can’t look at this.  That feels impossible.  Could that possibly be right?  It’s gotta be a yes answer.

Alright, here’s what I’m gonna do.  I’m gonna guess A.  Just from, again, my intuition on this test, having gotten just screwed 100 times – well, I exaggerate.  Ten or fifteen times by this porked test.  Porkage wise I think it could be D in a weird way, and I think it would be like “yeah, we just don’t want to mess with it.”  If there’s a state law that would justify it, we don’t want to bother overturning it on the federal level so that you then would have to redo it on the state grounds, and it was just pleaded incorrectly.  God, I really want to pick D!  [Laughs] I really … [Groans] oh man!  Here’s the thing.  I’ve had enough of this porked test.  This is gonna be the time that it’s not a porked answer, and I’m gonna get it wrong?  I don’t care.  I’m gonna guess D.  I don’t know why, it’s screaming at me, I feel like it’s gotta be D.  Probably should be A.  I’m going with D, Andrew.  Final answer.

Andrew:         Alright, 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 guess, your reasons therefore.  We will pick a winner and shower that winner with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         And that’s our show.  Andrew, reminder, get that Stereo app and check us out every Wednesday at 5 pm Pacific, 8 pm Eastern.  Uh, we had a lot of fun last night.  It’s so much fun, we got to hear a lot of important questions, by the way.  Lot of questions about, just, current events, stuff that’s important to people, and we get to hear it in their voices, so that’s a great reason why you should jump on that Stereo app.  Get it on your phone, follow @Torrez or @SeriousPod and each and every Wednesday you can ask us questions and participate with the show.

Andrew:         Absolutely.

Thomas:         Alright, we’ll see you next time!

[Show Outro]

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.