Listen to the episode and read the show notes
Topics of Discussion:
- Joe Manchin’s Alternative For the People Act
- Fulton v. Pennsylvania Supreme Court Decision
- California v. Texas Supreme Court Decision
Thomas: Hello and welcome to Opening Arguments, don’t touch that dial, everyone!
Thomas: It’s a bonus episode!
Thomas: That’s another thing, it’s like when you, you know, maybe your first gift you got for your wife for Mother’s Day wasn’t quite enough. Oh, but there’s another thing. Hold on, it’s coming, delivery… Going furiously on your phone trying to order something. It’s like that, but for our fine listeners.
Andrew: Are you saying that our long-anticipated episode 500 on eminent domain-
Andrew: -was like a crappy gift? Okay, good to know.
Thomas: It wasn’t, it’s just you feel like maybe we should’ve done more, that’s all. I’m so grateful to our listeners for getting us through 500 episodes that I’m like was it enough? Should we have bought them a diamond or something? Is 500 the diamond anniversary? Should we have decked them out? So, we’re doing a bonus episode-
Thomas: -and there’s so much good stuff. I made all that up, the truth is just a bunch of news that happened.
Andrew: Yeah. [Laughs]
Thomas: [Laughs] And we’re recording again. Either way, wow, SCOTUS decisions galore and we’ve got some Manchin updates as well. How’re you doing, though, Andrew?
Andrew: I am fantastic. I am very, very excited to do the bonus episode because I just don’t think we could go a full week without giving folks an explanation, I know we’ve already been – I don’t wanna say calming people down – riling them up on social media, but if you’re not a participant on social media, and there are lots of good reasons not to do that, you probably are sitting there thinking boy, I’m reading a lot about Fulton v. City of Philadelphia, I’m reading a lot about the Supreme Court 7-2 saving Obamacare. What’s going on with that?
Thomas: Yeah, yeah.
Andrew: We’re here to explain what’s going on with that. Spoiler alert, these are not good decisions regardless of what you’ve heard.
Thomas: Yeah. It’s – you know, they’ve kind of ruined the suspense there by being just so awful that you’re like whatever it is, it’s bad. [Laughs] This is not gonna be a good one, whatever it is. But the 7-2 thing was intriguing, we’ve got some interesting alignments going on.
Joe Manchin’s Alternative For the People Act
Thomas: But anyway, let’s get to first this Manchin news. Since this is a bonus episode-
Thomas: -I guess we don’t need any formalities. Go ahead. [Laughs]
Andrew: Yeah, so look, we criticized Joe Manchin here, I criticized him on Cleanup on Aisle 45 when he came out and said “well, I’m pretty sure I can get Republicans to support voter reform so that’s why I’m voting against the For the People Act.” You know, just ridiculous.
Andrew: Two days ago, Manchin came out with his list of conditions, and I’m back to – I mean, I don’t think there’s sort of more of a sign wave, you know-
Andrew: Oscillating back and forth than how I feel about Joe Manchin because he will just say the most infuriating things and then he will turn around, and the things that he puts into place you’re like okay, well, I totally get that. Here were the 13 points that he articulated that he thinks [Laughing] now mind you, this is not gonna get even one Republican vote.
Andrew: But that he thinks are gonna get 10 Republican votes. Spoiler alert, of the 13, 11 are word for word from the For the People Act. One is a new bad thing, and we’ll talk about it; and one is a new sort of less good thing, but you know, when the guy whom the President of the United States says “he votes more often against me than with me,” comes out and his, the extreme right wing of the Democratic party is now “well how about 11 and a half for us and one and a half for you?” Okay. I would 100% introduce all of these on Monday.
Andrew: And say okay, lets’ see Joe. You said that, let’s introduce it and do your magic. Get us our 10 Republican- oh, zero.
Thomas: [Laughs] Yeah.
Andrew: Can we block the filibuster now?
Thomas: The problem is the schedule with everything. It takes so long to do any of this garbage because the Senate rules.
Andrew: Yeah, yeah.
Thomas: It’s like every time they do the football with Manchin and Lucy – no he’s, who is he? He’s not the ball.
Andrew: Charlie Brown. [Laughs]
Thomas: Yeah. It’s been a few decades. Anyway, yeah, they do that and we all have a good laugh about how dumb Manchin is about this, but then meanwhile months have gone by.
Andrew: That is certainly true. This is why I would fast track this and see what we can do. Here are Manchin’s 13 points, the 95 theses or whatever. Number 1, make election day a public holiday. Okay.
Andrew: That comes directly from Title I, Subtitle N, Part 1 of the For the People Act. Number 2, mandate at least 15 consecutive days of early voting for federal elections (including 2 weekends). Again, exact same thing with one more day. [Laughs] The For the People Act has two weeks. This is actually the For the People Act, Title I, Subtitle H, plus one more day. So far Manchin is more left than the For the People Act.
Number 3, and this will continue, this is actually pretty clever. Ban partisan gerrymandering and use computer models.
Andrew: He had to be asked what was meant by that.
Andrew: And what is meant is-
Thomas: He’s like “look at my face. Do you think I know what that means?”
Thomas: Just the computers. Internet. Just do it. Computer it.
Andrew: The idea is sort of to engineer a reverse red map. If you can feed in “how do we maximize the partisan advantage?” you can also feed in-
Andrew: How do we-
Thomas: Make it as neutral as possible.
Andrew: Yeah, the geographic constraints here. The rest of the language is from Title II, Subtitle E.
Thomas: [Laughs] Does that involve the government asking, “hey, evil Republicans can we have your formulas for how you ruined our planet?” Yeah, sure.
Andrew: I feel really good that someone with Thomas Smith level-
Thomas: Someone else’ll crack it, no I know. [Laughs]
Andrew: -excel skills-
Thomas: I just think it’s funny. Hey, could we borrow? You know how you did this but for evil? Could we just flip around the things there?
Andrew: [Laughs] Oh, we just reverse the polarities!
Thomas: Yeah! Cross the streams!
Andrew: Alright. Number 4, this is the bad one. Require voter ID with allowable alternatives such as a utility bill to prove identity to vote. I’m not gonna go through that, it is stupid and oppressive. But I will say this, that if you can minimize, if you can give a cover to Republicans to say look, we’re gonna fight fraud too, there’s gonna have to be a form of voter ID, this is sort of the best way to do that and it’s way better than letting them ram through 300+ voter suppression laws that are waiting to be enacted at the State level in 46 different States right now. I’m not gonna defend it, it’s a bad thing. It’s the only unambiguously bad thing in this package.
Number 5, automatic registration through the DMV, with option to opt out. That comes directly from Title I, Subtitle A, Part 2 of the For the People Act.
Andrew: Number 6, require states to promote access to voter registration and voting for persons with disabilities and older individuals. That comes straight from Title I, Subtitle B. Number 7, prohibit providing false information about elections to hinder or discourage voting and increases penalties for voter intimidation. It’s a really, really important thing. Again, Title I, Subtitle D.
Number 8, require states to send absentee by mail ballots to eligible voters before an election if the voter is not able to vote in person during early voting or election day due to eligible circumstance and allow a civil penalty for failure of States to do that. In other words, if they don’t send you your ballot you can sue the State.
Andrew: That provides you with pretty good incentive. I’m actually calling this a half point away. The reason that it’s a half point away is this is actually a reasonably good proposal, except that the For the People Act has no excuse absentee voting, which is clearly what we should have.
Andrew: But, yeah.
Thomas: We definitely should have that. [Laughs]
Andrew: If you need to walk back from that, this at least requires that the State affirmatively mail you the ballot, and that’s a step forward. It’s not as far as the For the People Act, so I’ve dinged him for it.
Thomas: I just love this idea that we need our parents to sign off on us voting absentee or something.
Andrew: I know. [Laughs]
Thomas: Like a doctor’s note. The thing you need from us is our opinion about the election. That’s the thing the State needs from us. Do you want this guy or this dude? Woman or this man? This policy, this bill or this thing or whatever? That’s the information you want from us, but we’re being treated like schoolchildren. No, you need to show up on time, bring your thing.
Thomas: It’s like no, I’m here to give you the opinion that by the constitution says that you have to collect from me.
Andrew: Yeah. No argument there.
Thomas: What difference does it make [Laughing] if I mail it in or [Laughs] weird.
Andrew: Because, again-
Thomas: Yeah, it’s all a decades old effort-
Thomas: -to try to stop certain people from voting.
Andrew: Right. And that effort has moved from the backburner to the forefront because Republicans know, and we know they know because we have Thomas Hofeller’s documents, thanks to his daughter, that says Republicans are about to become a permanent minority unless they “do something,” (quote, unquote) to change the voter pool. Yeah, the need is dire, it is why nobody is gonna sign onto this, and you know, hopefully then a stone-faced Joe Manchin will say well, you know, I tried.
Andrew: I dragged my party as far as I could and, you know, you guys wouldn’t even meet us halfway, so maybe we can use that as a basis for him revisiting his stance about blowing up the filibuster.
The rest of this, require the Election Assistance Commission to develop model training programs and award grants for training. That is, again, from the For the People Act. The EAC is an independent, bipartisan commission that was created under 2002’s Help America Vote Act to serve as a national clearinghouse of information about election administration. The EAC’s original budget authorization expired like 12 years ago, but Congress sort of continues to fund it on an ad hoc basis to communicate certain voter information out. The For the People Act would do that, and so would Manchin.
Number 10, require States to notify an individual, not later than 7 seven days before election, if his/her polling place has changed. Absentee ballots shall be carried expeditiously and free of postage and require the Attorney General to develop a state-based response system and hotline that provides information on voting. That all is from Title I, Subtitle N, Part 1 of the For the People Act.
Allow for maintenance of voter rolls by utilizing information derived from state and federal documents. That sounds a little ominous, but that comes directly, that is word for word from Title I, Subtitle C of the For the People Act and it has to do with eliminating the Republican practice of voter caging. What we do is compare your signatures across 15 different documents and if any one has changed in the last 30 years, then, you know, we throw your application out and strike you from the voter rolls and all of that stuff. Caging, the idea is you make them electronically, you flag them as electronically ineligible to vote, they stop getting notices, you push them out of the system. The information process is designed to standardize and combat that and to say no, no. Just because somebody didn’t return a postcard 8 years ago, you’re not gonna kick them off the voting rolls, so it’s actually a good thing.
[Laughing] This one I really laughed at because it is also in the For the People Act, but establish standards for election vendors based on cybersecurity concerns.
Andrew: [Laughs] Um, I guess that’s so they can respond to the – I don’t know. To me, I mean I dunno. I dunno how you could be in the House of Representatives and, like, every time Marjorie Taylor Greene would get up to speak my questions would just be like “do you really think Hugo Chavez stole our elections?” and then she would say something and I would get up again-
Thomas: Well, but is that the kind of thing where there’s a weird overlap because people on the left think Russia could do- is that the deal there?
Andrew: It could be. I mean, the language in the For the People Act says that the requirements on vendors whose products are purchased with grant money, including that the vendor: number 1, be owned and controlled by citizens or permanent residents of the United States.
Thomas: [Laughs] Yeah.
Andrew: [Laughs] Number 2-
Thomas: [Laughing] Not Hugo Chavez.
Andrew: Can’t be Hugo Chavez. Number three, disclose any election infrastructure parts sourced from outside the United States and the identities of any entity or individual with an ownership interest above five percent in the vendor to the EAC, the Department of Homeland Security, and the chief election official of any state with which the vendor does business; comply with technical guidelines for election infrastructure promulgated by the EAC; report cybersecurity incidents to the EAC; permit the EAC and DHS to conduct independent cybersecurity testing on the goods and services that the vendor provides.
Andrew: Yeah. I mean, to me-
Thomas: I think we oughta throw a whole bunch of stuff to the Republican just for f- or Manchin should, just for fun.
Thomas: Be like we’re gonna exhume Chavez’s casket-
Thomas: -and make sure he’s still in there. [Laughs] Wherever that-
Andrew: Then we’re gonna light him on fire. [Laughs] Right. Then the 13th thing on his list is allow provisional ballots to count for all eligible races regardless of precinct. Again, we’ve talked about that. That’s another disenfranchising technique. If you show up to the wrong polling place and you cast a provisional ballot you could imagine that – so for example your local races for county counsel, you might have accidentally crossed over a line because the districts are so gerrymandered, then they have to give you a provisional ballot. But in many States if you cast an improper vote, they can just throw out the whole ballot. You get in, you’re like oh, man, I don’t recognize either of these two candidates for, you know, Lt. Sheriff of-
Andrew: -Great Argenval County whatever, and so you’re just like alright, but I’m gonna vote for the Democrat and then it turns out the reason you don’t recognize that is ‘cuz you were in the wrong precinct, so many States just eliminate the improper vote, but many red States just throw out the ballot entirely. This would say yeah, no. [Laughs] If you also voted for Joe Biden, guess what, the fact that you crossed over that boundary has nothing to do with your validity-
Andrew: Your right to vote for Joe Biden, your right to vote for Senator, your right to vote for member of Congress. It protects against that. Again, that language, 100% directly taken from the For the People Act. That’s the Manchin compromise, and I gotta tell you, if I were looking – I love the For the People Act, we did a whole episode on it; I talked about-
Thomas: Yeah. Off the top of your head or from your notes and research, the point that you’re making I think is like look how much of this stuff is already in the For the People Act, but how much is in the For the People Act that we’re not getting if this were a compromise? How much is he leaving out?
Andrew: What he’s leaving out – this is kind of like Manchin’s approach on infrastructure as well. What he’s leaving out are things that are more tangentially related to voting.
Andrew: He’s leaving out the Title IV on campaign transparency and countering foreign interference; Title V on empowering small donors; Title VI on enforcing campaign finance laws; Title VII on Supreme Court ethics reform, which is kind of important. I do not mean to suggest that there aren’t very, very important things in the For the People Act that should be passed. What I mean to suggest is that if the original For the People Act had just been these 13 points, this is how I would have reacted to them. I would have been like oh, okay, this is 11 good things, one meh, and one not great thing. On balance, let’s do that-
Thomas: Yeah, we’ve had far worse bills than that.
Andrew: Of course we have! And look, anything – remember that the primary purpose of the For the People Act is Joe Manchin’s point number 3. Don’t ask me why he-
Thomas: He wanted to hide it in the middle. Oh, just another minor thing here.
Andrew: [Muttering] It is via the Supremacy Clause to supersede any State effort to draw Congressional voter districts in a way that is partisan gerrymandering. That’s the game.
Andrew: All the rest of this is really important, and I don’t mean to undermine that, but we have those efforts organized at the grassroots level for voter turnout. Yes, we need to do more, I’m a fan of doing more. Getting rid of gerrymandering would be such a huge adva- it’s a three-and-a-half-point advantage to the Republicans right now in Congress and it is – that single change would be such a benefit that if that were his only point this would be worth defending. The fact that it adds on 10 additional really, really good things makes this worth trying, and again makes Joe Manchin-
Thomas: Obviously it makes every reason that Republicans aren’t going to vote for it.
Andrew: Yeah, of course not.
Thomas: They know the game; this is all pretend.
Andrew: Yes, that’s right. That’s part of what I don’t understand about Joe Manchin.
Andrew: If he’s really naïve? Or if he’s playing 4-dimensional chess. With many elected political officials you can tell, and I can’t tell which one it is for Joe Manchin, but I would certainly say okay. If I were Chuck Schumer, I’d be like “alright, here we go.” We’ll even call it the “Joe Manchin for The People Act,” here you go.
Andrew: And I’d put it up on Monday.
Thomas: I mean, hell, call it the Ted Cruz for The- I don’t care.
Andrew: [Laughing] Right!
Thomas: I don’t care what you call it.
Thomas: Donald Trump-
Andrew: The “Donald Trump Is Still President Act of 2021.”
Thomas: As long as it gets rid of gerrymandering, yeah! Go nuts!
Andrew: There you go, absolutely.
Thomas: Whatever you want.
Thomas: As far as Manchin goes, I was more in the category of like he’s playing, you know, I’m not gonna say 4-dimensional chess because again, my note on this is 3-dimensional chess is already hard enough. And, again, it’s kind of a 2-dimensional game, really, when you think about it.
Thomas: It’s just 2-dimensions, so 3-dimensions, I already don’t know where that would go. 4-dimension, what, are you going through time? How is anyone playing that? Anyway.
Thomas: Why stop at 4? Why are we not playing 7-dimensional- anyway.
Andrew: If you’re playing 4-dimensional chess, why not like kill Hitler while you’re on the way? [Laughs]
Thomas: Yeah! [Laughs] Every 4-dimensional chess game should do that. First move, opening move, ah, you’re going with the “Kill Hitler Gambit.” I see, yes.
Thomas: I’ll need to strengthen my queen side if you’re doing that. Anyway, what the heck was I saying? This is a bonus episode, it’s all free-flowing stuff. Yeah, I was more in the camp of, like, he’s playing some sort of long game, here, but I don’t know. After letting the January 6 commission die, what do you make of that? We didn’t really talk about that, I don’t think. I thought that was going to be the thing where it’s like well, if you’re not gonna stick up for that then where’s the point where you’re gonna be like “this is too far, sorry. I tried to work with them, they won’t do it.” You know?
Andrew: I honestly don’t know how you can square that with Manchin’s statements, which were essentially drawing on the Republicans who voted either to – his major argument is look, we’ve got a handful of Republicans who voted to convict Trump in connection with 1/6, you’re saying that now they’re a danger to democracy? I don’t buy that; I think we have to invite them into the process. Now, leaving aside, as you point out, I think the best response to that is well, yeah, but they unanimously went out and filibustered the 1/6 commission, so maybe they don’t care that much about democracy. And number two which is even under the most optimistic of circumstances that doesn’t get you to 60 votes. You know, it gets you a handful of additional Republicans, gets you Cassidy from Louisiana in addition to the usual suspects of Susan Collins and Lisa Murkowski and Mitt Romney, but I do not – I will say it this way. If you asked me what I thought the most likely Manchin motivation is it’s that, you know, he’s 100 years old and I think a part of him thinks it’s still 1987.
Andrew: And that you can-
Thomas: [Laughs] His haircut still thinks it’s …
Andrew: But both of these, on both infrastructure and now on voting rights, he has come up with this sort of classic Clintonian horse trading. Oh yeah, we’ll give you some of what you want, you give us some of what we want.
Andrew: We’ll meet in the middle and we’ll get this thing done, you know, we’ll knock it out by noon. When you have Republicans openly saying, Mitch McConnell saying “our goal is to make Barrack Obama a one-term President,” and then followed up recently with “our goal is to make Joe Biden a half-term President.”
Thomas: He’s also locked in whatever time period, I dunno if this is a time period. Now that we have 4 dimensions maybe it’s a dimension, but he’s also locked in wherever the filibuster had some purpose other than racism. I dunno where, what dimension that’s in. 7th heaven? Stargate dimension?
Andrew: You know, put a pin in that and we will talk about that on Tuesday’s episode-
Andrew: -on Critical Race Theory.
Andrew: How about that?
Thomas: Oh my gosh! Spillin’ the beans on the critical race theory episode.
Thomas: That’s so cool. Well, that’s a teaser everybody, can’t wait for that. Why don’t we – but we’ve got SCOTUS decisions to talk about.
Andrew: We do.
Thomas: I suppose we’d better move on even though I could rage about Manchin- look, sorry, I just want to say this. I still stand by, again, if anybody is really frustrated at Manchin I am too and I agree. There’s two separate brains here, there’s the like historical as they say 30,000-foot view, where it’s like yes, it is better – if you’re writing a history book, if they still have books in 10 years [Laughs] of this period you’d be like well, the Democrats got a ton for having a person who called themself a Democrat who was in West Virginia. They got a ton. Look at all the things they got for that; they got judges, you know, there’s a ton of stuff. And it is unambiguously better that we have Joe Manchin than if that was a Republican.
Thomas: It’s not even close, it’s far and away whatever. But, separately from that – and that’s inarguable. If you argue that we’re not better with Manchin than we would be with a Republican you’re just totally ignorant of what’s going on. That’s whatever. But, separate from that, I’m incredibly angry that Manchin is still doing this schtick. I thought it was more schtick than anything, and it seems like maybe it’s not schtick, it’s genuinely, as you say, he’s locked in 1987 or something. Gotta get him out of whatever time portal he’s stuck in, because he – the stakes seem so high. When he won’t even blow up the filibuster to investigate the coup attempt that happen- to investigate it! That’s a partisan bill, is to have-
Andrew: In a bipartisan way.
Andrew: [Laughing] The bill that would have passed with only partisan Democratic support would nevertheless have put Republicans on the committee. Yeah.
Thomas: It’s unbelievable. I’ve been pretty bummed out the last few weeks about the state of things. I really thought he was – I gave him maybe a little too much credit, I thought he was playing that long game and just gonna say “I tried, and look at this.” You could write a really good speech about how [Laughs] you made every effort to be bipartisan and you believe in the institutions or whatever, but when – I was gonna say armed, I guess sort of armed men, people with zip ties, all that stuff, came for the Capitol and you can’t get Republicans to agree to a bipartisan investigation of that, that’s where he should have done his big thing. Big reveal, okay, I’m gonna nuke the filibuster, or at least do something special for this one case, I dunno.
Thomas: But the fact that he didn’t do that, I’ve been really – I’ve been really lost since then. I dunno what he’s doing, you know? [Laughs] And I have no idea if it’s gonna turn out, but again it’s unequivocally better than if he weren’t there. It still sucks and I’m mad at him.
Andrew: Yup, I think that’s exactly how-
Thomas: End of rant. [Laughs]
Andrew: That’s exactly how I would summarize.
Fulton v. Pennsylvania Supreme Court Decision
Thomas: Okay, let’s get to these SCOTUS decisions.
Thomas: Again, I’ve been commuting and Disneyland-ing, I haven’t even looked at any of this.
Thomas: I’m a listener now. As a listener, Andrew, what’s happening? Break the news to me.
Andrew: Yeah, Thomas, so as we were recording our landmark episode 500, and I don’t think we would have changed that episode-
Andrew: -for any-
Thomas: Wouldn’t change it for the world, it was beautiful. Perfect.
Andrew: Two major Supreme Court decisions came down; Fulton v. Pennsylvania and California v. Texas. It’s really important that we talk about both of these. Let’s start with the Fulton v. Pennsylvania decision. This is a 9-nothing opinion. It, as I explained, to me this is where it has truly become the Roberts Court, because as I explain what the majority holding, written by Chief Justice Roberts is, you will ask yourself why on earth would what remains of the Court’s liberal wing (Breyer, Sotomayor, and Kegan), why would they join onto this opinion? The answers I give you are going to be essentially John Roberts strong-arming at least Sotomayor and Kegan.
Here’s the case. This is the Philadelphia adoptions case. We previewed, we talked about this the last time we had Andrew Seidel on. We’re gonna have him back on for a deep dive. We will go through all of the intricacies of this case. It’s a 15-page opinion, Samuel Alito wrote a 77-page concurrence, so, you know, tons of fun that way. Essentially here was the issue. The City of Philadelphia cooperates with nonprofit foster care agencies in order to fulfill the state function within the City of Philadelphia.
Thomas: Let me guess. [Laughs]
Thomas: This sounds a lot like playgrounds and, you know, swing sets and whatever.
Andrew: Uhh, yeah.
Thomas: And religions oughta be able to get all the benefits of whatever the State is giving, but with none of the conditions that anyone would ever want to put on them.
Andrew: That is exactly right.
Thomas: That’s just a blind guess. [Laughing] Is that right?
Andrew: As a blind guess you have hit it out of the park.
Andrew: Yeah. As I said on Twitter, this would be like, you know, having orthodox Muslims and Jews sign up to contract out the FDA’s meat inspection services and then be like well obviously we’re not gonna inspect pork plants. You want us to touch pigs, are you kidding me? Again, the solution to if you don’t agree with the city’s policies regarding placing foster kids with LGBTQ parents, don’t volunteer to help out! You’re a church.
Andrew: You are the Catholic church; you don’t have to be a part of this.
Thomas: Yeah, it’s like if I’m gonna get a job as a teacher, Andrew, but I’m gonna teach multiplication differently. I’m gonna teach them different numbers that I think are right. 5×5 is 40 to me.
Thomas: And I’m gonna teach that, but I have the right to teach kids in a public school that, you can’t stop me from doing that. Just don’t take the job. You can’t be a teacher, right?
Andrew: [Laughs] As tortured as that analogy is-
Thomas: [Laughing] I know! But like Gorsuch would be like … well? He should be able to teach that. [Laughs]
Andrew: It is fairly close. The City of Philadelphia has a condition in the contract that says we’re not gonna use you if you’re not going to comply with anti-discrimination provisions, then specifically instructs them, this is section 321 of the contract, “Provider” (that is the Catholic church here) “shall not reject a child or family including, but not limited to, prospective foster or adoptive parents for services based upon their sexual orientation.” Then I’m gonna talk about the nonsense reading of the exception in there. I’ll read it to you now, it says “unless an exception is granted by the Commissioner or the Commissioner’s designee in his or her sole discretion.” There’s this sort of catch-all legal exemption at the end of it.
In any event, this was, the Catholic church thought, the perfect time to tee up a direct plea to the Supreme Court. This was question one, this was what they wanted the Supreme Court to decide, and what they wanted the Supreme Court to decide was to overturn Employment Division v. Smith. That crazy liberal Scalia opinion from 1990 that we have talked about at great length. They wanted to say no, you have a 1st Amendment, constitutional right as a religious participant to have exemptions from otherwise neutral laws.
Exactly the situation you’ve described. I get to come in, I get to take advantage of all the situation, but if I decide well that part of the law violates my sincerely held religious beliefs then I get an exemption. Right now you very likely have one due to the operation of RFRA-
Andrew: The Religious Freedom Restoration Act, but that’s at least a law. It has limits. This would say oh, no, regardless of whether there’s a RFRA law or not, whether a future Congress decides to curtail or repeal RFRA (dare to dream).
Andrew: This would say inherent in the structure of our government are special exceptions for churches. Now, if you’re wondering how to square that with an originalist reading of the constitution-
Thomas: You can’t.
Andrew: Good luck, yeah.
Andrew: It’s preposterous, but that’s the argument that was made. And so if you are looking for the silver lining? (Question mark)?
Andrew: The silver lining is John Roberts was able to cobble together a decision that said okay, we’re not going to overrule Smith … yet. That’s what this decision stands for. It says we’re going to read this as falling under the Church of the Lukumi Babalu Aye, and not as a neutral law, as a law that actually is targeting the Catholic church because of that exception. It is crazy, bizarre nonsense.
Despite the fact that this is a 9-nothing opinion, and that every single one of the Supreme Court justices signed onto Roberts’ opinion, not a single one believes that this is true. None of them believe that the operative regulation contract and statute at issue here discriminated in the way that the legislature in Hialeah, Florida saying “yeah, I don’t care what the law says we just wanna make sure we don’t have those voodoo people here in our city.” That’s what the Church of the Lukumi bar is. The opinion that John Roberts crafted said that exception that I read to you qualifies as being a target under the Church of the Lukumi decision.
Thomas: Well now I’m mixed up, because you said 9, you said 7. Who signed onto what, here?
Andrew: It’s 9, it’s unanimous.
Andrew: All 9 justices signed onto this opinion, signed onto the Roberts opinion.
Thomas: … Why? [Laughs]
Andrew: You can tell it’s a bad – well, we’ll get to that answer. You can’t tell it’s a bad one because there are four separate concurrences all written by varying degrees of right-wing monsters.
Andrew: [Laughing] Right? That’s a like, okay, we agree, but blah blah blah. So, the opinion says we’re not answering the question of whether to overrule Smith yet. We’re gonna save that for another day, because this case does not fall under Smith, this is really a Church of Lukumi v. City of Hialeah case. This is you’re actively targeting Catholics by not letting them be part of the exception, but putting the exception in the hands of the Commissioner.
That is pretextual and stupid and wrong and none of the justices honestly believe that that actually happened. But, to answer your question, how did we get there? We got there because John Roberts went to Justices Sotomayor and Kagan and said, “uhh, we probably have – we’re at least looking at a 6-3 opinion to overrule Smith. You might be looking at a 7-2,” (put a pin in that).
Andrew: “Do you really want to write a withering dissent and have this Court overrule Employment Division v. Smith right now? Or do you wanna kick the can down the road? And hey, who knows?” This is 100% speculation. You know, maybe you’ll get some more Democratic Senators, maybe you’ll pack the Court, maybe the Court will change. Maybe a plague will take out the entire right wing here. These are low probability events, but when faced with “or we’re going to overrule Employment Division v. Smith,” that’s why I think Sotomayor and Kagan took it and decided to sign on.
You may be wondering, why have I omitted the third member of the Court’s liberal wing, Justice Stephen Breyer from the list? And the answer is that on, as we’ve talked about on numerous occasions on this show, on separation of church and state issues, Stephen Breyer, not a reliable vote for separation of church and state. Somebody who signed onto Amy Coney Barrett’s concurring opinion, which we can now move to-
Andrew: Yeah. As I explain why that’s bad, just re-summarize, Court says you’ve asked us to overrule Employment Division v. Smith, this isn’t the right case for that because this is really a Church of the Lukumi Babalu Aye v. City of Hialeah case, you’ve unfairly discriminated against the Catholic church by having this condition where some people get exceptions but they don’t. That’s essentially the ruling.
Folks have asked me, so that means that the City of Philadelphia can just go back and delete the exceptions for everybody, right? And I’ve said, oh, yeah, they can do that, but that will then just reinstate this lawsuit. Then the Catholic Church will say okay, great, now you’ve set it up, now it’s a Smith case, now we want the Court to overturn Employment Division v. Smith.
Andrew: There are no great ways out of this. You should still do that-
Andrew: -and I imagine that the City of Philadelphia will do that because in the interim it will make a difference to gay parents looking to adopt and looking to foster kids. God forbid that the Supreme Court actually do some good for some human beings. But in the long term, that’s what they’re teeing up.
I also need to tell you, there are 5 hard votes, possibly as many as 7, for overturning Smith. The reason they break down is because Amy Coney Barrett and Brett Kavanaugh, in a concurrence joined with respect to everything except the first paragraph, by Stephen Breyer. If you’re nervous, this is why you should be. Basically said – this is a 3-paragraph opinion, it takes two and a half pages because, you know, lawyers.
Andrew: The 1st paragraph says Smith kinda sucks and we want to overturn it. Stephen Breyer didn’t join that. The second paragraph says “but if we overturn it, we’re not really sure what the rule should be.” It looks like Alito and the gang think that if we overturn Employment Division v. Smith, then strict scrutiny would apply to [Laughing] to any – to the free exercise of religion.
Andrew: In other words, you would have to narrowly tailor the law so as to not burden any potential religious exemptions, or else exempt them from the law, which is just a nightmare of unimaginable proportions, and it caused Amy Coney Barrett to say “I’m skeptical about swapping Smith’s categorical anti-discrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other 1st Amendment rights, like speech and assembly, has been much more nuanced.” It’s basically like hey, I don’t know. You want us to get rid of Smith, but we have no idea, that would leave a void and we have no idea what to replace that with.
Then the 3rd paragraph says, “well but we don’t have to answer that question in this case because,” [Laughing] and you might think I’m doing my typical paraphrasing? No, I’m reading this directly.
Andrew: This is how Amy Coney Barrett – she writes –
Andrew: She’s the worst Supreme Court justice writer in, you know, 100 years.
Thomas: I genuinely thought you were just doing your summary thing.
Andrew: Right, no. “We need not wrestle with these questions.”
Thomas: Is there like a hey man! [Laughs] Listen.
Andrew: [Laughs] Hey man is going to show up in an Amy Coney Barrett opinion, I promise you. “Because the same standard applies regardless whether Smith stays or goes. A longstanding tenet of our free exercise jurisprudence … is that a law burdening religious exercise must satisfy strict scrutiny if it gives government officials discretion to grant individualized exemptions … As the Court’s opinion today explains, the government contract at issue provides for individualized exemptions from its nondiscrimination rule, thus triggering strict scrutiny. And all nine Justices agree the City cannot satisfy strict scrutiny. I therefore see no reason to decide in this case whether Smith should be overruled, much less what should replace it.” That’s the middle ground. “Yeah, Smith is probably terrible, uhh, but we’re not entirely sure what to replace it with.”
Then you have 77 pages of, you know-
Andrew: Season 5 of the Handmaid’s Tale, I’m not making this up, as the Alito/Thomas/Gorsuch concurrence that’s like “yeah, we should get rid of Smith, we should get rid of anything resembling separation of church and state in society.” I imagine that Andrew Seidel and I will be breaking this down in tremendous detail. Go ahead.
Thomas: Wait, this Handmaid’s Tale thing wasn’t joined by an actual handmaid in Amy Coney Barrett?
Andrew: [Laughs] Not yet!
Thomas: Women actually were called handmaids in their weird religion thing that she was in, that’s all.
Andrew: Absolutely true.
Thomas: Until they changed that after [Laughs]-
Andrew: Until the show came out.
Thomas: Maybe this is not such a good look.
Andrew: This then represents the hard right opinion. Get rid of Smith, replace any law that burdens religion has to satisfy strict scrutiny, which is to say is virtually impossible to defend. It would be a nightmare. I mean, we would have to revisit-
Thomas: And what is a law that burdens religion?
Thomas: You know? Traffic law? If a priest wants to drive 70 in a 55 or something? Genuinely, what is their standard there for that?
Andrew: You cannot come up with cases more extreme than cases the Supreme Court has already adjudicated, which is the Amish and Jehovah’s Witnesses claiming paying taxes violates their sincerely held religious beliefs. 100% that will be back on the forefront. There is no practice that you can’t imagine concocting a religious exemption to. It is – this is the whole reason Employment Division v. Smith came out that way, because Justice Scalia said allowing each person-
Andrew: -to evaluate every law on the basis of whether it would violate their personally held religious convictions turns every person into a law unto themselves.
Thomas: Yeah. Wow.
Andrew: That’s true! Yeah.
Thomas: I can’t believe I’m saying this, but I agree [Laughing] with Scalia!
Andrew: God help me, I agree with Antonin Scalia.
Thomas: Scalia was like alright, religious people have to follow some laws, right? I mean, they gotta pay taxes and not murder people. Then these fundamentalists on the Supreme Court today are like “that’s too far.”
Andrew: That is not you and I being liberal Thomas and Andrew palling around, crafting a joke. That is 100% how this case was teed up. That was the question that was presented; that is the reason that certiorari was granted; and John Roberts said “okay, I kinda would like not to be presiding over the last tribunal before this Supreme Court just becomes an unrecognizable hellscape.” I’m gonna try and postpone the massive public backlash that would otherwise come with what would be maybe a 7-2 decision to overturn Employment Division v. Smith, restore religious exemptions of question mark ability in response to any law that they claim burdens their freedom of exercise of religion. Terrifying.
Then Gorsuch wrote another concurring opinion, joined by Thomas and Alito, so you wonder why they couldn’t have put this all in the Alito opinion. It was already 77 pages long. Maybe Alito was like, alright, man. My hand’s falling off here. [Laughs] Neal can you take the last 7 pages? I’ll let you put your own name on it.
Thomas: Is that – what’s the normal length for something like this? That sounds extreme. Is that normal?
Andrew: It – this is one of the longest dissents I have ever read.
Andrew: Yeah. And that is designed to saying I don’t understand why this Court won’t overrule Employment Division v. Smith. It’s terrible, this is a direct quote, “Smith has been criticized since the day it was decided. No fewer than ten Justices—including six sitting Justices—have questioned its fidelity to the Constitution … The Court granted cert in this case to resolve its fate. The parties and amici responded with over 80 thoughtful briefs addressing every angle of the problem. Justice Alito has offered a comprehensive opinion explaining why Smith should be overruled.” Yeah. “And not a single Justice has lifted a pen to defend the decision. So, what are we waiting for?”
Andrew: Neal Gorsuch, ladies and gentlemen. That is the Fulton decision. It is Roberts strongarming, and by the way I’m focused on his strongarming of Kagan and Sotomayor, which clearly happened. Also, clearly strongarming Kavanaugh and Barrett into saying hey, are you sure you’re ready to jump off the cliff and sign onto strict scrutiny? Have you thought about what kind of chaos that would produce? Maybe let’s wait a little bit. If you are looking for a silver lining in here that would be to where I would point you, but that’s that decision.
Thomas: Just – I mean, I dunno. What’s the value of this, the few remaining liberals going along with this? Just – I’m kinda with Gorsuch. Just overturn it. What’s the point? Are they just being-
Andrew: That is- go ahead.
Thomas: If you were on the Court, Andrew, what would you do? Is this providing any value, the fact that it’s a 9-0 decision. Is that like the liberals on the Court trying to still preserve some legitimacy of the Court in some way?
Andrew: I think there are a number of things that are at issue there, and where you would come out on this, I think is kind of a mirror of the, you know, accelerationist vs. do no harm side, the harm mitigation side. It would be very difficult for me, and no doubt I find it difficult, you know. I think Sonya Sotomayor and Elena Kagan as folks who have been invested in the concept of the rule of law for, you know, longer than I have, I think deep down that they want to believe that the Court is an institution that can be saved. At some point you just give up, and that will – if there are not structural changes that’s gonna come. We have already started to see those signs, particularly in Sotomayor dissents. At some point that will happen, and whether you just kind of give up right now? I dunno. I think that they looked at the situation and said well? The longer we keep this in place the more we will allow localities to do some good over the next couple of years as opposed to turning around right now and crafting a broad-based religious exemption to anti-discrimination laws; which is the – I mean, we talk about neutrally applicable laws, but let’s not, you know, let’s not fall into the same discursive trap that they want us to. What that means is we want to be exempt from anti-discrimination legislation, and that’s coming.
Andrew: That decision will be handed down from this Supreme Court, and the only question is when.
California v. Texas Supreme Court Decision
Thomas: Let’s talk about the other decision real quick, I guess. [Laughs]
Andrew: [Laughs] Yeah! Well, so, you know, if you want more cold water thrown on you, this is getting grossly misreported. This is California v. Texas, and you will see it in the headlines as, you know, Supreme Court votes for the constitutionality of Obamacare for a third time and saves Obamacare.
Andrew: Uhh, no. No no no no no no no.
Thomas: Oh great.
Andrew: We talked about this case when it came out of the 5th Circuit on OA 343. 157 episodes ago.
Andrew: Basically, this case came about in the following particular posture. Remember that the NFIB v. Sebelius decision in 2012, the first one to defend the constitutionality of the Affordable Care Act. That was the Roberts opinion that inexplicably held that healthcare is not a form of interstate commerce, okay?
Andrew: That “A directive that requires Americans to purchase health insurance is not part of the Commerce Clause power” because “Congress can regulate commerce, but they can’t require you to participate in commerce.” That was a distinction that we hadn’t seen anywhere in the law for the last 200 years, and if you think about stuff you would expect a federal government to do, medical care, where all of these insurance companies are not just interstate but multi-national. Drugs come from overseas. The idea that this is not an interstate commerce market is just bizarre.
But Justice Roberts said that Obamacare was nevertheless valid as an exercise of the State’s taxing powers, federal government’s power to tax, because of the individual mandate. Fast forward to 2017 during reconciliation the Trump administration sets the individual mandate to zero. That tees up Greg Abbot to make the following set of arguments, and he’s gotta win both these arguments, in a case in Texas. He says, number one, the NFIB decision said that Obamacare was justified as being a federal government power because it’s a tax, but it’s not a tax anymore!
Andrew: Because you’re not collecting any revenues. You have to strike down the individual mandate. Oh, and by the way, you also have to strike down the rest of Obamacare, in particular the restrictions on discriminating against those with preexisting conditions, because the mandate is (quote) “inseverable from the rest of the bill.” When we talked about this you were actually kind of surprised. The fundamental Supreme Court case on severability is a case called Alaska Airlines, and the holding of that case is that the unconstitutional provision of a law must be severed, that is taken out, and you let the rest of the law stand, (quote) “unless the statute created in its absences is legislation that Congress would not have enacted” (end of quote).
Andrew: Yeah, in other words the real test is would Congress – do a thought experiment, we’re gonna strike out this provision and then say would Congress have nevertheless passed the ACA without the individual mandate?
Thomas: I dunno how you answer that.
Andrew: Right. Time travel? Again, stop off, kill Hitler along the way.
Andrew: But one real good way to answer that is well, Congress could have repealed the entire ACA, they put that up for a vote and that failed.
Andrew: But repealing just the individual mandate passed, so we can therefore infer-
Thomas: [Laughs] Seems pretty straightforward, yeah.
Andrew: Yeah, and in fact, spoiler, when the 5th Circuit said “oh no, it’s definitely inseverable,” that was a 2-1 decision and the dissent said “come on.” [Laughs]
Andrew: It was page 53, it says “again, the majority disagrees. It feels bound to ask whether Congress would want the Affordable Care Act to remain in force now that the coverage requirement is unenforceable. Answering that question should be easy [Laughing] since Congress removed the coverage requirements only enforcement mechanism, but left the rest of the ACA in place.”
Andrew: “It is difficult to imagine a plainer indication that Congress considered the coverage requirement entirely dispensable and hence severable, and yet the majority is unwilling to resolve the severability issue,” blah blah blah blah blah. Okay. So, this case was then taken up by the Supreme Court, and I want to say a little bit of an Andrew Was Wrong, mostly an Andrew Was Right. In episode 343 I said I thought that the Supreme Court would reverse and that we were not in trouble, that the Supreme Court was not gonna strike down Obamacare because of how bad the reasoning was; but I said what that would do is send it back down to the District Court to figure out if, and which provisions of the Affordable Care Act are severable or not.
The Supreme Court actually did something slightly different, and definitely worse. [Laughs] But I will say, more clever. That was they said oh, petitioners you don’t have standing to bring this case.
Andrew: Think about that. If the penalty from the individual mandate has been reduced to zero-
Andrew: -then you don’t suffer any legally cognizable injury-
Thomas: It’s true.
Andrew: -on the thing that you’re talking about. You’re asking for an advisory opinion, get out.
Andrew: Agreed? Definitely clever, and by the way only a 7-2 because Alito and Gorsuch remain in the nutball contingent. They were like yeah, well, pfft! Come onnn!
Andrew: That’s essentially what their dissent amounts to. Thomas, you might say well I don’t get why Clarence Thomas didn’t join in the “come on,” and the answer is he wrote a concurrence that was like – the first three pages of which are like “man, I really like Alito and Gorsuch, I really think they’re right. I really think the ACA is unconstitutional, I really voted the other way the other two times. But, um, I am persuaded by the standing argument because even I’m persuaded by that” is essentially what the Thomas concurrence says. In saying that there’s no standing, yes, that does not invalidate the ACA, but it sets up the following trap that I’m sure you see coming, which is if this Congress, which I expect it will, during reconciliation, adds the penalty back to the individual mandate-
Andrew: That will make this suit live again. It will come, we will have a 4th bite at the apple in which it will be, you know-
Thomas: Wait, it’ll make the suit live – but I thought the suit was is this severable, yadda yadda yadda, but if you’ve added it back in then why is it-
Andrew: Then you are collecting revenues. The suit would have to come up with some other theory for why that tax provision is unconstitutional, but you can come up with something.
Andrew: You can say – yeah you could! You could say it’s a direct capitation tax in violation of the 18th Amendment. I’m just coming up with that off the top of my head. Raising the argument isn’t going to be a problem, and then you won’t have the standing issue, because you will actually have a harm, you will have the folks who are required to pay the penalties extracted by the individual mandate. It becomes a bit of a poison pill. Look, is it good that we don’t have 5 Alito/Gorsuches on the Supreme Court? I guess. The outcome is a good outcome, which again, that I anticipated because the 5th Circuit, their opinion was so bad it struck me that – well, again, the 5th Circuit’s opinion was so bad not even Clarence Thomas could sign onto it, how about that?
Thomas: Wow. That is bad.
Andrew: [Laughing] There you go!
Thomas: That’s one of those, like “how bad was it?!” [Laughs]
Andrew: [Laughing] Right! So, yeah, we did. Again, kicked the can down the road because it’s a standing question, but if you think Republicans are done suing to challenge the ACA, I think you’re definitely wrong on that.
Thomas: Well, that’s a bummer as you said.
Andrew: Yeah. It’s a bummer.
Thomas: Big bummer.
Andrew: But, look, these are the things we need to know.
Thomas: I mean, we already knew we needed to pass something new, right? Or something different. I don’t know what can survive this ridiculous Court, but yeah, what is left? What can we do legislatively that won’t just get struck down by something that doesn’t make sense about interstate commerce?
Andrew: We can put jurisdiction stripping provisions into the bill. We can say, add at the end, like § 17, this is not reviewable in the federal courts of the United States of America (period).
Andrew: It would be … pretty extreme measure, but that is a constitutional power that Congress has. You know, you talk about playing hardball, it’s about time to use it.
Thomas: We need to win like 4 seats in the Senate and keep the House, basically.
Andrew: Yeah, that’s right.
Thomas: Then maybe have any chance of doing – 4 or 5 – so that way we have enough of a margin of Democrats who actually, you know, are full on Democrats, which Manchin isn’t.
Andrew: Right, yeah. We need to deliver a Manchin-proof majority in 2022. We need to start hitting that hard now, because look, I talk to a lot of Democratic activists, I know you do too, and they’re demoralized and that’s exactly where Republicans want you to be right now.
Andrew: And the people I talk to are like, [Sighs] man, I just want Biden to have done more by now, and I say yeah, me too! I totally get it, we’re all on the side of “I wish Biden could have done more by now.” If that demoralizes you such that you stay home in the midterms then you’re going to be left with an administration that gets nothing done, is not even able to appoint a single judge for two years, which Mitch McConnell has already said that.
Thomas: Which we really need to do, by the way.
Andrew: Yeah, yeah.
Thomas: That’s a major issue. Um, yeah. Alright, well, this was a depressing bonus episode.
Thomas: Not as fun as I’d hoped.
Andrew: It’s not like getting, you know, the secret decoder ring. Well, it is, it’s like getting the secret decoder ring and realizing it’s all just commercials for Ovaltine.
Thomas: [Laughs] [Sighs] Ah, but it was a bonus episode.
Andrew: But you need to be aware, you need to know. Yeah.
Thomas: Yeah, stuff we needed to know, it just should tell us all that we have to keep our energy up, we have to keep our activism up, because 2022 is gonna be a real challenge. If we lose ground, it’s so bad.
Thomas: I hope – Trump won’t be on the ticket and so I don’t know what the Republican side will look like, I also don’t know what the Democratic side will look like without that energy of, like, oh, I need to go vote against Trump. Who knows? But we’ve gotta do everything we can.
Andrew: Couldn’t have said it better myself.
Thomas: Well, uh, I bet you could’ve but that’s okay. [Laughs] Thanks so much for this bonus OA, Andrew, and we’ll see everybody for – you already teased it-
Thomas: But really, really, really fascinating topic on Tuesday’s episode. Early for patrons, as always.
Andrew: And you’ll be much happier. You’ll enjoy it, it’s a good deep dive. I’m sorry I had to report on terrible news, but you know-
Thomas: Oh. That’s your job.
Andrew: Gotta call it like it is. Yup.
Thomas: Alright, take care everybody, we’ll see you soon!