OA23: Trump Presidency Legal Q and A, Part 1

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 23. How you doing, Andrew?

0:01:28 Andrew: Yeah, I think that about does it for me too. We have our usual intro in which I tell you I'm doing great, Thomas, but I don't know that I can muster that. I thought I'll put in a plug. You and I and Eli uh recorded an episode of Atheistically Speaking where, you know, we sort of decompressed from the election and that um that really did help uh in in in my view, like I thought it was pretty cathartic and uh, you know, we had uh we had some fun and uh I think anyone who's listening to this show who might want, um, our of personal friends reaction, I think would enjoy, would enjoy listening to that episode

0:01:32 Thomas: Yeah, yeah. Yeah, certainly.

0:02:09 Andrew: Of Atheistically Speaking.

0:02:09 Thomas: I was really, really happy with that recording. Just had all kinds of everything that I wanted, which was just like Andrew's insight, Eli's humor, and just, you know, friendly conversation. It was really fun. Fun. So we thought somebody that we're going to do a Q&A and a status on our page and make sure you're following on Facebook Opening Arguments podcast. You know, you definitely want to do that facebook.com slash open args because if you didn't then you missed out on the chance to get your questions answered here today. Because But President Trump has elicited a lot of curiosity among listeners and everybody has questions for Andrew. I thought there would be some questions. I didn't know there there would be about a billion. So we'll see.

0:02:55 Thomas: We've got a lot to do. A lot of people are looking to Andrew for, you peace of mind and legal advice here, which you shouldn't take from a podcast. But it's really cool. I also think it's incredibly cool that, know, we have the opportunity to answer a bunch of questions that are on everybody's minds. So

0:03:12 Clip: He who questions training, only trains himself at asking questions. What?

0:03:21 Thomas: Start with the first question to kind of get things started. And Rachel Marshall asked, would you share who you two voted for or your voting decision-making thought process? So I'm guessing people know who we voted for, but Andrew, why don't you go ahead and tackle that?

0:03:39 Andrew: Well, Rachel, and there's there are actually some comments later in the sub thread. It's pretty obvious that Thomas and I both voted for Hillary Clinton. My thought process was this. I have been a Hillary supporter since early last year, early on in the primaries. I thought that she was running a very progressive campaign. I had posted throughout the primary season a number of articles about Hillary Clinton's actual record while in the Senate and her rhetoric since then. Then. It's not to suggest that I don't have some reservations. And in particular, I had reservation. I think a lot of, you know, kind of left liberals like like me had some reservation at Clinton's hawkishness.

That was something that I expected to be fighting her from the left about while she was president. Right. And kind of pushing back on that. But everything taken together was a situation that, me, I supported Clinton. I think, you know, just to take one example, know, we talked about this in our other episode, but, you know, there were a number of the Sanders key proposals where I really do agree agree with sort of the middle approach, right? So, you Sanders proposal was $15 an hour national minimum wage. The Clinton proposal was 12. And I agree with the Clinton proposal. Sanders proposal was free college for everyone. The Clinton proposal was a series of policy measures designed to make college more affordable. I more agree with that.

0:04:35 Thomas: Right. Yeah.

0:05:20 Andrew: So, um, and I would say that those policies seemed, you Now, I mean, you, if you want to call that moderate, right? Like it's moderate between a liberal Democrat and a socialist. So, you know, I mean, we're not talking about, triangulation and the kind of DLC stuff from the 1980s where Democrats were climbing, you Now, all over themselves to be, you Know, anti-gun control and pro-capital punishment and, you Know, sort of all of that, Know, triangulation. I think Hillary Clinton ran a very liberal campaign. What I was most impressed with was during the general election, her appeal to Republicans. Now, maybe she should have done something differently. But her appeal for Republicans was a temperament based appeal, right? Like she said, you're not going to agree with me on policies. But you know, I'm smart and reasonable. And you should trust me to be in charge of the country, which, you know I thought was a good appeal, obviously, you know, wasn't good enough.

0:05:31 Thomas: Yeah, yeah. Yeah.

0:06:19 Andrew: But but I think it's I think it's worth noting that unlike every other Democratic candidate in recent memory, you know, she didn't get to the to the general election and pivot back and, you know, sort of moderate out her policies and move to the right. I think that the position she's

0:06:34 Thomas: Well, there, yeah, there wasn't any chance to talk about policies in the general. There wasn't even, they're just like, okay, well, do you care about these policies? No. Okay. We won't talk about them.

0:06:35 Andrew: Yeah, No, yeah, well, that's, that's good point. Okay, so So that's that's my thought process. Thomas, what was yours?

0:06:45 Thomas: Well I agree with pretty much everything you just said. Uh, I, I think that it may come down to, you Know, being a millennial, but I was initially supporting Bernie Sanders. And I actually, the funny thing is, I actually feel the same way about most of what you said policy-wise. I didn't think free college for all is feasible. I thought most of what he promised wasn't feasible.I just really, really appreciated his honesty. I felt like he was the most politician that in my short 30-year life that I've gotten to really witness. Like I felt like, OK, this guy believes what he says. He's lived what he says. All of that.

0:07:33 Thomas: And I really, I don't know, something about maybe I'm not alone because people in the younger age groups tend to devote that way in the primaries. Also think a lot of people my age and younger kind of buy into this super extreme progressive progressive free college for everybody, $900 minimum wage, you know, kind of thing, which I don't, I don't necessarily buy into as much, but my thought process was he's not going to get anything done anyway. It's going to be Republican Congress. So maybe I, I wanted president Sanders because, uh, you Know, his honesty is integrity and what he believes in. I think for the most part, I like what he beliefs in. And I figured he'll try to get some stuff done. Maybe by the the time, if anything gets through Congress, it would be a more moderate version anyway.

0:08:19 Thomas: So that was my kind of thinking. And then he lost and it was, you know, it was Hillary and I, you know, I wasn't thrilled. I was, I was never thrilled about Hillary, but as it finally became clear that she would be running against the worst person to ever be a nominee for any party that I know of, it was, it was pretty easy. It almost, it really not, it did not much matter what Hillary said or did for me. I'll admit it. I think she did a great job, particularly in the debates, but we're voting for someone with experience, someone with knowledge, someone who you could ask a policy question, and she would be able to answer without using the word "bigly" and just saying tremendous and huge and terrible, like just fourth grade reading level sentences.

0:09:04 Thomas: So it was that versus a child who doesn't know anything and has absolutely no policy knowledge experience experience, and is a monster. So for me, it was really easy. And I think I'll try to resist going down the same path we went on, atheistically speaking. But the reason we did go down those paths is that I find it really interesting. It's what's on my mind lately. So I'll just say, I'll cut it short and say, follow, you know, my social media, I'm battling it out a lot with people about what happened and where the votes came from and didn't come from and what, you you know, and I think Andrew made an incredible point over on Atheistically Speaking, which was votes aren't messages. At the end of the day, and you said this perfectly, Andrew, I think you're so right. Atthe end ofthe day, what happened? You have President Trump. I mean, that's what happened. No one gives a shit about your vote. No, one's like, oh, did you not vote to send a message to the DNC? Okay, good.

Well, you just have PresidentTrump. That's all we have. President Trump and the harm and the disgusting, you know, nature of that, just grotesque nature of having someone like that as our president. That's what we have. No messages were sent. No one's going to translate the message that you intended as well.

0:09:33 Andrew: I

0:10:19 Thomas: Like they're not going to know specifically what the message was. It's just this vague thing that they're Not going to figure out and we're going to have President Trump. So for more on that, I'll try to stop going down that road. But I really, Really, it drives me nuts. But that was my thought process. I mean, it really was, for me, simple. I mean we can't have this guy be president. Hillary is pretty reasonable. I also, to add one more quick thing, I found her, I all of a sudden found the claims that she's terribly dishonest and a liar and a criminal. After listening to OA. Hillary Clinton's damned emails.

0:10:58 Andrew: Believe that's 13.

0:10:59 Thomas: 13. Yeah, I thought it was 13. After listening to that one and all that, I realized how much... Now, she's not perfect, obviously, but I realized how much of the supposed dishonesty and criminality I think really is not outright gender bias, but I think it's rooted in implicit biases that people don't want her to be honest, don't want her to be a good, you know, and I think that fueled a lot of weird conspiracy theories. And then once all these, the media covered all that, the right-wing media and even the mainstream media, actually, it sort of became more believable. So people could just accept like, yeah, yeah. She's the most dishonest politician ever. And when you look into those claims, there wasn't as much to it as a, as I think you would think just from absorbing the media.

0:10:59 Andrew: That's always 13.

0:11:46 Thomas: So that was my thought thought process. I'm sorry it was a little longer, but yeah, that's, so I voted Hillary proudly and I'm incredibly disappointed. Incredibly disappointed.

0:11:57 Andrew: Yeah. And I agree with pretty much everything that you've said, including the reasons you supported Bernie in the primary. Right. I think it's perfectly reasonable to send a message during the primary, right? Right. Like and to say, yeah.

0:12:11 Thomas: Right, right. That's when we, yeah, exactly. Yeah.

0:12:14 Andrew: So there you go. So and and to say even, you know, I am voting for this person based upon, character and integrity and, sort of the intangible attributes. I respect that. I mean, I came I came to a different conclusion. I was not a Hillary supporter in 2008. I started off as a John Edwards supporter before all the craziness broke and became an Obama supporter. Obviously, I've been mostly happy with Obama as president. We could get into that. But no topic for another show.

0:12:14 Thomas: Oh, that, okay. Topic for another show. Well, it would be, it will be interesting in January maybe or whenever to do maybe a retrospective of, yeah, yeah.

0:12:49 Andrew: Yes. Absolutely. Let's do it. Let's do a retrospective. Let's put it on the calendar.

0:12:57 Thomas: That would would be great.

0:12:58 Andrew: I became a Hillary fan over the course of the campaign. I was sincerely looking forward to her presidency, not just, I don't want Trump to be president, uh, which I don't want Trump to be President. Uh, but I was legitimately looking, looking forward to it.

0:13:04 Thomas: Yeah, me too.

0:13:14 Thomas: Yeah. Question one. That was a bit of a long one, but I think it's a good setup for to know kind of where we are coming from. But even though that is where we're coming from, I, I trust Andrew that he's going to answer questions from a legal standpoint, not from a, I think he does a great job, if I may say so, at showing where his bias is, but still answering the legal questions in the way that's consistent with with his interpretation of the law. So that said, first question, and I actually think a lot of the questions, but so I'll try to generalize this again, but I want to give JJ Bells credit for being the first to, I think, respond to our question-seeking status. Isn't he going to court for a rape case in December? What happens if he's convicted? And do we want to tackle all, just try to tackle all the charges against him at once or wait till they come up in questions? What do you think?

0:14:05 Andrew: So let me answer that, uh and talk about some of the other, uh cases that are pending. The first thing to remember is that the rape case, uh which is an allegation by a, woman a that when she was 13 years old, that she was sexually assaulted by Donald Trump, the fraud case relating to Trump University and these pending cases, even though they have elements that can be criminal elements, right, rape is obviously a crime, fraud can be a crime. These are civil lawsuits. OK. And and think back to, you know, sort of the most famous dichotomy, you know, over the past 20 years, which was the O.J. Simpson case. Right. O.J. Simpson

0:14:09 Thomas: All right.

0:14:50 Thomas: Right.

0:14:50 Andrew: Was was found not guilty for the murders under the beyond a reasonable doubt standard that applies in criminal law. But every time you commit a crime against someone, you also commit a civil wrong against them as well. Usually it's not worth it to pursue any random criminal for a civil case because those criminals typically don't have the means to recompense you. And if you're going to spend $300,000 on legal fees, people who have have $300,000 to satisfy judgments tend not to commit crimes. Uh, and, and you know, they tend not, I should say they tend not commit crimes of violence against people, right? They, they commit white collar crimes all the time.

0:15:32 Thomas: Yeah, sure. Yeah.

0:15:35 Andrew: Um, but so you can write, like if you're assaulted on the street by a random stranger, you can sue them in civil court. Uh but you have to pay the cost of your own lawyers. Uh and and your burden as we discussed in a previous episode is only the preponderance of the evidence. It's the 5149 standard. So the family of Nicole Brown Simpson was able to get a civil verdict against O.J. Simpson on that lesser standard, even though he was found not guilty on the criminal standard. Keep that in mind. All of these cases against Trump, even thought they have the rape allegation or the fraud, they're civil cases. So there's no no criminal component to them. Now question kind of, and a bunch of these questions say, you know, essentially, can he be impeached for the prior conduct before coming into office that are the subject of these lawsuits?

0:16:28 Andrew: And the answer to that question is probably not and no. Um, and, and it is right. It is to say this, right? Like a president can be impeached for the commission of high crimes and misdemeanors. Uh, as we saw with the impeachment of president Clinton, uh, in 1998, that, term is undefined. Uh president, president Clinton was

0:16:34 Thomas: Yeah I was wondering that. Okay come on lawyers. I am so tired of this. You just have a bunch of things. Oh, reasonable doubt. What does that mean? Eh, no idea, but we thought it was a good enough word to use. Start defining things, would you guys?

0:16:51 Andrew: Right. Yeah. Yeah. Well, right. Well certainly things that are used in credit I mean remember the, the reason why has an imprecise definition is because, you know, you look to the case law and you look history to see how this has been applied. Well, you know, impeachments, we've only, you know, ever had two in our nation's history. So, you know, there's not a lot of precedent. But what we do have and can draw upon from the Clinton experience is that, you know, impeachment is whatever you can convince the Congress is impeachable. Think the literature is pretty strong and pretty persuasive that it applies to the conduct that that occurs while you are in office itself. Right. So, for example, even though there were allegations of prior rape by Bill Clinton before assuming office, and those resurfaced during this election. So I don't think we need to go back into them. There was, there was pretty much agreement, even among Republicans, that that Clinton couldn't be impeached for that, and rather he was impeached for lying in a deposition about the extent of his, well, about having sexual contact with Monica Lewinsky.

0:17:14 Thomas: Hmm. Yeah.

0:18:16 Andrew: We can glean from that is two things, then. Number one, there's pretty much agreement that you have to be impeached for what you do during your term in office, not what happened beforehand. And

0:18:26 Thomas: And it doesn't matter when the case is resolved. It actually has to be okay.

0:18:28 Andrew: Right, right. It's the commission of the crime itself or, you know, the high crime and misdemeanor. And number two. And so. Right. So let me make it.

0:18:31 Thomas: Okay. Well, but that that's, So that's amazing, cause like it, what if you just, I mean, I know this is a stupid Hollywood like level thing, but what, I mean seriously, what if you killed a guy and then there was no evidence until you were in in office, and then they found some DNA evidence or something, like there's nothing, I mean I guess you would just be convicted and the impeachment wouldn't matter, so that was a stupid question, but a

0:18:56 Andrew: No. Well, well, you could have that. But and I want to talk about I

0:19:02 Thomas: Civil version of that I guess is what I

0:19:03 Andrew: Want want to talk about that process, but but it's pretty easy, because the way in which that evidence would come about would be because there would be a congressional hearing, and so there would be at least one point in the president's term in which, under oath, testifying before Congress, he would be asked, you know, Mr. President, did you kill this guy? And he would say, "Absolutely not, not," right? Yeah, and uh oh, it

0:19:04 Thomas: Uh he's like yeah, what if he says, "yes," they're like, "oh okay, well there's nothing we can do, he was, he was honest,

0:19:31 Andrew: It it," that would, that would be a, you know, that would be a much more interesting movie for lawyers, it would probably be a bunch less interesting movie for everyone else, uh but yeah, if you had a president who, you know, got up on the floor of Congress, "did you kill this guy?" "Yes," uh, that, that would be really really fascinating, because you would not have perjury, you know, during the the president's term.

0:19:53 Thomas: Wow, so would he like, would he be convicted and still be like president or something, somehow he's running the country from his jail cell, sure

0:19:57 Andrew: And I think, and we're going to talk about removal of the president from office in response to a later question. So I want to save that. But the other thing I would say is impeachment is also controlled by whatever the Congress thinks is a high crime or misdemeanor. And so, you know, think about this with President Trump. He's going in with a 24 vote. I don't know exactly what the margin is, but a significant majority of Republicans in Congress. And so the idea that those Republicans share the same view that our kind of left-leaning, at least question and asking audience does, I think is pretty remote. And the third thing I would add is, even say, I'm not even going to say I don't know. Like, I think I am happier with a President Trump than I would be with a president Pence.

0:20:08 Thomas: Sure, yeah yeah okay well we could

0:20:53 Andrew: So we get into that some other time. Uh, yeah

0:20:53 Thomas: Talk about that I've been no that's okay, I I'll take the opportunity, because I think you're going to be having to field everything this this this episode I, that's something I've thought, because for me, me and people who listen to my show know how just depressed I've been about this. I really have been. But for me, the damage has been done for a lot of it, not all of it, obviously.

But if you take the package of President Trump as a whole, a lot of damage in my mind is merely the idea that we could elect him to the highest office in the land, and that he could say the things he said, that he could do the things he's done, he could not care about facts, all this stuff, I'll spare you, but all the stuff that he is, that damage to me is done. Like, even if he was impeached immediately, that part still remains for me.

Like, I'm always going to be depressed that that could even happen. And so then I've been thinking to myself, given that that part of the damage is already done, would I rather have President Trump or President Pence?

0:21:01 Andrew: So

0:21:54 Thomas: And I'm honestly not sure. I think, I mean, there's a higher risk to Trump, for sure. There's a higher risk that he just does something insane and we're at war with Iran or something. But I don't know. Like there's also a chance, a pretty good chance that he just is lazy and doesn't really care about much. And like it already seems like Pence is going to be running most of everything. So I don't know that President Pence is any better. So I'm curious. Actually, let me just ask you your opinion on that in case anyone didn't ask it. What do you think about President Trump versus President Pence?

0:22:29 Andrew: I'm, with you, uh, I agreed uh 95 with with what you were saying, right? Like the damage is electing President Trump, and in my mind the the way to compound that would be have all of the problems of electing a President Trump that you've described, and then turn the reins over to a competent, dedicated, right-wing ideologue who cares about passing things that Donald Trump does does not care about passing. Uh, and, and let's be, you know, look, we're bashing on Trump and we're going to, we'm going to have two plus hours of bashing them, Trump here. There um, are things Donald Trump has proposed that are good things, right? Like the one thing he's emphasized since being elected is investing money into infrastructure to rebuild crumbling roads and bridges. Well, like we're all for that. So, and I don't know, not, I don't know, uh, we have a 20 year legislative history in which Mike Pence doesn't give a shit about that.

0:22:46 Thomas: Yeah, yeah, exactly. Yeah. Yeah,

0:23:19 Andrew: So, you know, yeah, I would rather have President Trump agenda than the President Pence agenda, even though both overlap on an awful lot of things that I don't want.

0:23:27 Thomas: If it was just agenda, I think you're totally right. If it was just let's Take what Trump says, one thing one day and another thing five minutes later, but like if we take what is stated, kind of do our best to figure out what his official agenda is versus is what Pence is likely to be, I think you're right. I actually think Trump might, well, yeah, I mean, what about the wall? Do they both, are they both in favor of that? I don't know. I mean it might be, I think if you put it well, it would be a good way to, it's like a sunk cost fallacy where we really would just make it, throw more good money after bad by having President Pence and making an effective kind of horrendous leader out of what might be kind of an ineffective one. So, yeah, that's interesting. I agree with that.

0:23:30 Andrew: Right. Yeah. All right. Next question.

0:24:17 Thomas: Next questions. Let's go with Adam Hutchinson. Sorry, Hutchison. How easy and by what mechanism can he overturn the Obergefell decision and get rid of the Affordable Care Act?

0:24:30 Andrew: OK, so two questions in there. Let's let's answer the Obergefell decision question first, because we have a bunch of Supreme Court questions. And my view, the way we talk about the Supreme Court being a 4-4 split right now, that's not really the right way to look at it. The right way at the Supreme court is it's a 4-2-2 court or a 4-2-1-1 court actually. Okay. So So there are four liberals on the court, right? Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, Stephen Breyer. We all know and we'll be doing everything in our power to prolong Ruth Bader Ginsburg's lifespan.

0:24:33 Thomas: Yeah, yeah and

0:25:17 Andrew: So there Are Four Solid Liberals. There are two hardcore conservative activist ideologues on the Court, right, Clarence Thomas and Samuel Alito.

0:25:28 Thomas: Then? There's Scalia's ghost. Oh, no, I'm just kidding.

0:25:31 Andrew: And they are in the Scalia mold. They are, in my view, interested in securing right-wing political outcomes on the court. There is Justice Roberts, who is very, very conservative and has a conservative judicial ideology, but But, you know, as we saw over the course, you know, in in voting for in upholding the central mandate of the Affordable Care Act, I think I think Roberts and this is a little bit of psychology, but I wouldn't put him in the same camp with Alito and Thomas, right? Like Thomas, Clarence Thomas gives speeches to Federalist Society groups, which I should I should say the Federalist society is the pro pro-Scalia, conservative legal club at law schools, right?

0:26:25 Andrew: And so all the, like, conservative kids join the Federalist Society and get together and bring in speakers who tell them, you know, how we're going to, you know, transform the law in this country. And Clarence Thomas is a regular speaker before those groups. He is an activist. Think Roberts is a little more reserved from that. I think he has a little bit of the of more classic reserved view of the court as being an apolitical institution that should be set off from, you know, sort of the partisan rancor that goes on in society. Now, that may not make a huge practical difference the court becomes a very conservative court. It didn't make an enormous practical difference over the past six, seven, eight years.

0:27:14 Andrew: But like I said, it did make a difference in terms of the ACA mandate. And he was somebody that I thought might moderate on a Supreme Court that I anticipated would get one to three Hillary Clinton appointees. Um, and then, uh, the last person on the court, uh, is Anthony Kennedy, uh, who has been much described as a a swing vote. He is a, um, a right-leaning centrist, uh, but Kennedy has been a very, very reliable vote on LGBT issues, um, his tenure, um, and, uh, you know, just like when you look at political moderates, they're not always like, I'm in the middle on every issue. Sometimes they're like, no, I'm moderate because I'm very, very pro-choice, but I'm also very, very in favor of reducing the capital gains tax. Right. And so that's sort of, you know, I've got one super liberal position and one super conservative position and it balances out.

0:28:05 Andrew: Kennedy is, you Know, a pro-business, small C conservative on the court. He can. He's open minded. It's fair to continue to describe him as a swing vote. But under the current composition, I think there are five strong supporters of LGBTQ rights on the court. Again, Ruth Bader Ginsburg is not in particularly good health. That I think there's a real, and I don't want to undersell the danger, but I do think that it's not it's just, 4-4 now and it will be 5-4 as soon as Trump gets to appoint somebody. I think we've lost out on the opportunity. You and I talked about this we talked about This at the end of the Second Amendment Masterclass episode, Part two, which has not yet dropped, but which we will re-release on. Yeah.

0:28:57 Thomas: We'll release that soon. Yeah.

0:28:59 Andrew: And I think there was some potential to maybe drive Justice Kennedy more to the left on a court that had that that were, you know, sort of more of the traditional school of jurisprudence that that I've just I've described over the show. So we've lost that opportunity, but I think his view of the law with respect to equality for our LGBTQ friends is pretty strong. Don't think there will be votes the near term to go back and revisit Obergefell because you're going to have five votes to reaffirm.

0:29:41 Thomas: So, Yeah, in some ways, I mean, Trump doesn't really make a difference beyond obviously appointing the justice. It's not like he initiates the process of, you overturning a decision. So they have to decide. Someone has to bring a case, right, Right. If they decide the time is right and the justices are looking, you know, like they might be if let's say something happens to to Ruth Bader Ginsburg and there's a conservative justice appointed, it looks I bet we have our five. That's when what someone has to just try to bring a case and read, you Know, go through the whole process again.

0:30:14 Andrew: Yeah, right. And I am I am pretty confident that conservative legal groups like the Alliance Defending Freedom are are looking for and or teeing up a test case right now. Now, remember.

0:30:25 Thomas: But what does that look like for marriage equality? Is it like, oh, so two guys got married and it hurt me, so I need to sue. Like, how do you even, what is a case? This may be a dumb question, but like what is a case for that? Yeah.

0:30:26 Andrew: Yeah. Yeah, no, no. Right. Remember our discussion on standing. Right? You have to be you have to have standing. You have to be adversely affected by a government action. And the but but the way in which you would.

0:30:50 Thomas: I can't wait to hear it. I really can't. I really, I just, my medical bills from dealing with having to know that two men or two women got married, I just, I've been wronged, like, what? I really don't know what it would be. Yeah.

0:31:01 Andrew: Right, well, you could have a Kim Davis style case, right? Like in which what you are essentially, what you would do is you would move for a declaratory judgment at the trial court level that says, want the court to declare that the of a marriage license violates the Constitution. And the argument you would We talked about the Rule 11 standard before is I am raising a good faith. This is this is raised on a good-faith basis that Obergefell was wrongly decided. And that's what I'm going to present on appeal. You would obviously lose at both the trial court and appellate court level. And then if there are four conservative activists on the court, right, you only need four votes to grant cert.

0:31:51 Thomas: You say you would lose at that level because they would just say well, the Supreme Court just decided this.

0:31:54 Andrew: Yeah, because, right, because a trial court, right. Yeah. Yeah, a trial courters cannot say we're going to overturn Obergefell. A trial court would say, however much we agree with the plaintiffs or disagree, Obergefella is the law of the land. They're the Supreme Court. We're a trial Court. You know, we are a United States District Court. And so their interpretation binds us. And you, and then you would appeal and you would go to, you know, in Maryland, if you brought it in District of Maryland, you would, which you wouldn't because that would be stupid. You would then appeal to the Fourth Circuit, and the Fourth Circuit would say the same thing, right? Which is, regardless of how we feel about X, Obergefell is the law, the Supreme Court's interpretation of the Equal Protection Clause controls, you lose.

And then you would appeal to the Supreme court, you would file a writ of certiorari, if four justices agree to take it, the Supreme Courts takes the case, and that's how you get up to the court.

So, now, that was the right predicate question, and I'll go back to what I was going to say say before, which is assume that Ruth Bader Ginsburg retires from the court and you now and Trump appoints somebody in, you know, in January and then appoints a justice who's confirmed to take Ginsburg's spot.

0:31:57 Thomas: Yeah. Okay.

0:33:04 Andrew: And conservative activists are saying, OK, we've got our five now. You still would have this is where I made the point about Justice Roberts, because you still have the the principle of stare decisis. At this point, Obergefell is a settled case, and the Supreme Court does not typically go back. I mean, we've talked about this. Most lawyers, regardless left or right, are sort of loathe to go back and say, yeah, boy, that was just wrongly decided, and we We overrule our prior holding and replace it with something else. It does happen, right? Brown v. Board of Education said Plessy v. Ferguson, which held that kids and African-American kids could be sent to, quote, separate but equal schools.

0:33:54 Andrew: Brown v. Board of Education says separate is inherently unequal. We were wrong in Plessy, and that decision has been overruled. Don't know.

0:34:26 Andrew: Into an agency of, you know, right wing policymaking by going back and saying there's no predictability. You can't rely on Supreme Court decisions because every time there's an election, there's going to be a new court. And, you know, I mean, that's the whole idea of the rule of law is that the Supreme Court's opinions are are durable and and you can rely on them for for for good or for ill. Right. And so, you know, I was expecting when we did this episode that I would be fielding a lot of like, how do we overturn Hobby Lobby and how do we overturn D.C. v. Heller? And how do you know? And and I was prepared to answer the question the same way. Right, which is to say, be careful about telling the Supreme Supreme Court, hey, you know, let's just go back and scrub this one out of the books, because there really is, you now, from a legal perspective, a value to stability and apoliticality, if that's a word, which it probably isn't.

0:34:36 Thomas: Yeah, yeah, yeah.

0:35:22 Andrew: And I think that would have some appeal. Look, that argument would have no appeal to Clarence Thomas and Samuel Alito. They are conservative political activists. They don't care. But it would have som appeal to Roberts. It would have greater appeal to Kennedy, uh, and so I don't, what I will be holding my hope out for, if if Trump gets two Supreme Court appointments, right. It.

0:35:41 Thomas: Let me ask a couple quick follow-ups and their minds. I want to get to our listener questions more, so make them quick. But I'm curious, with something like the stupid Kim Davis situation, just the fact that they can ask ask for a declarative statement or whatever you said it was. So that wouldn't be hampered. Their efforts wouldn't been hampered by the fact that you could just say, hey, you just have to do your job. It doesn't matter what the law is. They would still have standing to ask for like a declaration that gay marriage is wrong, you?

0:36:13 Andrew: Would be, you're asking a very good legal question, uh, and and, you know, I have not thought about the best way to design a test case to overturn turn Obergefell. It certainly.

0:36:27 Thomas: But it's so curious to me. That's fine. We don't have to get into it. But that's what's so funny to me is that I don't know what the hell that would be, you know, without

0:36:29 Andrew: No, no, no. Yeah. But but so in my view, what you would do, this is why I said it's why it's a good question. It's why I set off handedly. It would be stupid to bring the case in Maryland because what you wouldn't want to do, because if you brought the case in Maryland, right, a savvy U.S. district court judge would find a way to rule against the plaintiffs in this, you know, Kim Davis case, right, without ruling, without touching the issue at all. And the Fourth Circuit would do the same thing.

And so, you know, you could find yourself with a really terrible record before the Supreme Court, which makes it a bad test case. So what you want to find is you want to find, and forgive me if I'm picking on a particular state here, you want want to find a U.S. district court judge in Alabama who's in your pocket and then go from Alabama to the Fifth Circuit and ensure that they are going to tackle the question squarely and preserve a good record because, you know, you want to bring this test case to the court. And let me say, I'm importing a little bit of a nefarious intent there.

Liberal activist groups And if we were talking about a Hillary Clinton presidency and a Supreme Court that had moved, you know, sort of radically to the left, which would have happened, you would be looking for people convicted of

0:36:58 Thomas: Yeah, yeah.

0:37:58 Andrew: Offenses where you would would be bringing a test case and arguing that D.C. versus Heller and its progeny were wrongly decided. Right. So I don't I do not mean to suggest in any way that only conservatives do this kind of thing. Liberal activist groups do it, too. It's how you have to do to tee things up because our system says the Supreme Court does not issue advisory opinions. They only rule on live cases and controversies?

0:38:12 Thomas: Right.

0:38:25 Thomas: Right, and then I kind of, I have some questions about the notorious RBG, uh, and I, I'm, let me go ahead and ask, I'm not sure if anybody got to it later in the thread, but I'm curious, uh, listener Thomas Smith asks, uh, you mentioned her retiring, what's, how does that work? Is there, are they, what is the, first off, what are the rules? Does, do they have to to retire if a justice is, I don't know, maybe her mind's not all there, maybe some condition, whatever. What's the point at which, I mean, I picture a scenario where she's just trying to desperately hold on for, you however long she needs to. What are the kind of the rules or at least the typical procedures around that?

0:39:07 Andrew: The answer is that under the Constitution, Court justices are appointed for life. They can voluntarily step down at any time, but there is no procedure in place to declare a judge unfit or otherwise. You could impeach a Supreme Court court justice. That's, as far as I know, that's never happened. But you could, under the same standard, you could impeach a Supreme Court justice. But other than that, you know, there is no provision.

0:39:39 Andrew: And this is going to come up when we talk about presidential succession.

0:39:39 Thomas: Oh, I didn't know that. So even if, let's say, of, you know, just hypothetical justice. I don't want to even pick on or jinx anybody, but a hypothetical justice starts coming down with Alzheimer's or something. I mean, and just can't really even rule on anything cogently, but they don't really aren't aware enough to want to step down. Like there's nothing we could do.

0:39:42 Andrew: Yeah, there's, this again would make a pretty good legal movie for lawyers. Yours.

0:40:11 Thomas: All right.

0:40:12 Andrew: Um, and uh, yeah, there's not, you know, if that person did not uh voluntarily step down, if they couldn't be convinced by, you know, their staff and their clerks and their spouse and, you know, whatever, um, yeah, no, there's... there's really uh, there's no mechanism, there, I'm going to talk about this when we talk about presidential succession, so um, or I'll at least go back to it,

0:40:12 Thomas: Yeah. Huh. Okay. So we can, yeah, sure. Sure. So we can move on. But, but thanks for that. That I, oddly, I feel a little better. I like that. There's no, there can't be any weird Republican led effort to like declare RBG unfit or something if she's not healthy enough. Rachel Marshall asks, how much control does the president have over the military. Direct control slash has to go through generals. So yeah, that's the kind of an interesting, might be a big question to tackle, but what can Trump do, generally speaking, with his generals?

0:40:42 Andrew: Yeah.

0:41:07 Andrew: And and here's the answer. And this is we we beat up on our libertarian friends a couple of weeks ago, or I think in just the last released episode. And I stand by that beating. If you are a libertarian and dispute, feel free, send us an email, openarguments@gmail.com. I've answered a few of them, but so far I have not had anyone sort of rise to the intellectual challenge we put out. That being said, an area where libertarians, I think, are right is the increased power that presidents in the latter half of the 20th century have had over the military. Because historically, the check on presidential power has always been that although the president is the titular head of the military, that only Congress has the power to declare war.

0:42:02 Andrew: And so the idea is you have to go to Congress to get a declaration of war, that prevents the president from just deploying troops wherever he wants. As you may have noticed, like none of the past wars, including the longest standing war in American history, uh, which is the war in Iraq, which is still going on, uh, are declared war, right? Like declarations of wars are kind of like, uh, judges wearing wigs these days, like there will, there will never be a, I, I feel pretty confident about this, uh, you know, a declaration of war the way there was at the time that the Constitution was written. And so this provision, you know, I mean, this isn't a good example of how the founding fathers were not, they were not wizards, right?

0:42:43 Andrew: Like, you know, you were thinking, well, obviously no country would ever send troops abroad without sending a formal letter written, you know, in pen and ink by quill upon parchment.

0:42:42 Thomas: Yeah, yeah, right.

0:42:52 Thomas: Yeah, because if you're going to send a bunch of ships and like sail the seas, you could, the least you could do is write a nice little declaration, but little did did they know how, you know, how warfare would change over the uh, the centuries. Yeah.

0:43:05 Andrew: So what can Congress do, okay, to curtail the president's power to just send troops wherever he wants. Um, they can do a couple of things, but again, let me give the caveat. We're talking about, this is something that, Right, this is a, that starts from Congress. Uh, and, um, as we saw, uh, during the, uh, you know, in the aftermath of 9-11, when there was a democratically controlled Congress, um, our, because, because, uh, members of Congress are elected every two years, right? There are essentially always running for reelection. You know, I would say they are not typically what I would call profiles in courage when it comes to standing up to the president during wartime.

And so even if we had a democratically controlled Congress, I, I wouldn't be super confident that, you know, they would be aggressive in, in opposing military actions because, you know, our, our democratic Congress rolled over for, for George Bush in 2002. And you can make the same for both parties going back, so that's again, that's not a, uh, it's not a one-sided political indictment, but, uh, that being said, Congress can do a couple of things. So number one, um, Congress can pass a a resolution, they can, they can pass the bill that makes it illegal for the United States to deploy troops to a particular country, right?

0:43:17 Thomas: Republican Congress Right.

0:43:44 Thomas: Really? Huh.

0:44:24 Andrew: Yeah. We, and and they did that at the end of the Vietnam War with respect to, I want to say, they're Laos or Thailand or something. I don't, I don't have a strong recollection of it. But but yeah, so they can say, no, the president has to remove troops from this area because it's illegal for U.S. troops to be in this particular, in this particular area. But that, in light of what Congress did at the end of, during Vietnam, they also passed the War Powers Act, which gives the president particular period of time, I think it's 90 days, to seek congressional approval for a military action or withdraw the troops. And so the idea was that that was passed so that you did not have the kind of brinksmanship that we've just talked about.

0:44:24 Thomas: Hmm.

0:45:10 Andrew: Right. So so typically when you talk about getting congressional approval for military action, you are talking about getting approval under the War Powers Act. And if they say yes. Right, well, then what Congress has to do is repeal the War Powers Act and To repeal the War Powers Act would require super majorities because presumably the president, you know, if you're repealing the War Powers Act to force the president to withdraw troops, the president is going to veto it. So you're going to have to override the presidential veto. So that's number one. Number two, and you're going to quickly see the problem with this. The other way that the framers intended for Congress to serve as a check on presidential power to just sort of put troops wherever he wants is that Congress has the power over the purse and they could just defund the military, military, um, think you immediately sort of see the problems with that, right? So I

0:45:30 Thomas: Yeah.

0:46:08 Thomas: I Don't, I, I hope it's that, I can't imagine Republicans ever defunding the military. Is That what You Or

0:46:13 Andrew: I Can't Well I Can imagine any, I, I, you know, I can't imagine any congress Right. Because You know, you would say, right, if the president says, "Well, I'm keeping the troops where they are," and then Congress says, "Well, we're gonna cut their funding," and the president's like, "Well, then you're gonna have to explain to parents why they're, you know, men and women are coming home in body bags," uh, because they don't have sufficient equipment, um, that's not the side of the argument that you want to be on politically. Um, and, and historically, you know, we have had, uh, arguments over funding about both the war in Iraq and the war on Afghanistan.

0:46:17 Thomas: Even, yeah. Sure, even Democrats, I Mean That's a little frustrating Though, because it's like, couldn't They just be like, well, yeah, or you could just pull, withdraw the troops. You know, it's not, it's, now like, well, the troops are here and now it's your fault that they're dying because you're Not funding Them.

0:46:48 Andrew: Uh, yeah, right.

0:46:59 Andrew: No, you could, but remember you, you Know, statistically speaking, it's twice as likely that the member of Congress is standing standing for reelection than the president. Right. And, You know, if know we have learned some things about Donald Trump's character over the course of the election and I don't think backs down to threats is not something that I would say is a characteristic we have seen from him in you throughout the campaign. So I don't have I don't have a strong measure of confidence that either of those are really a strong CHECK AND YOU KNOW SO WHAT SO AGAIN IF YOU WANT IF YOUWANT TO BE HOPEFUL AND OPTIMISTIC AND I THINK IT'S ALWAYS GOOD THAT WE WE TRY AND INJECT SOME HOPE AND OPTIMISM INTO OUR SHOW

0:47:06 Thomas: Yeah. Yeah, good point.

0:47:22 Thomas: Yeah yeah I guess

0:47:47 Andrew: MAYBE YOU KNOW YOU KNOW MAYBE MAYBE THAT CONDITION WILL CAUSE bipartisan groups in Congress to get together and say, hey, look, like, let's figure out a way to curtail expansive executive power to control the military, right, For both of our sakes, because, you know, we're operating with scaffolding on top of a system that was designed in the 18th century that, you know, isn't really offering much protection anymore, and uh, and let's figure out a way to restore something that is consistent with the balance of power the framers intended, but reflects the reality of, you know, you're not, uh, marching your troops across the Rhine anymore, you're, you know, sending out carrier groups to, uh, you know, a particular area, or you know, or whatever.

0:47:48 Thomas: If it's appropriate I don't know.

0:48:06 Thomas: Yeah yeah you're just like pushing a button and then a robot sends a missile and kills something. Yeah no, that's interesting. It's scary scary answer. It sounds like President Trump really I mean man I've said this too. He really really could go wrong if he wants to. Like it's, it's incredible if he put his mind to it, how wrong he could go. Uh, I, I tend to maybe, let me just get a quick, 30 second answer from you on, on a question of mine. Uh. Cause I've heard a lot of stuff from people all through this election, uh. And some bad arguments in my opinion of like, well, you now the president doesn't have much power anyway. It's not a big deal. Checks and balances. I mean, how, how wrong in your view you, could it go?

0:48:39 Andrew: Right. Right, right.

0:49:16 Andrew: I don't

0:49:17 Thomas: Could

0:49:17 Andrew: Understand that argument just I just don't understand the argument that the president doesn't have much power because historically.

0:49:20 Thomas: Yeah. Yeah, but you've heard it too, right? I mean, it's not just me. I hear a lot of people.

0:49:23 Andrew: Oh, sure. Oh, yeah. And it's an argument that is completely untethered to to to history because the president has never had more power than than the president has right now. And we're going to talk about that in response to some of the upcoming questions. But let me say from this is not a legal answer from a from a political answer. I'm not, I am not overly worried about the, you know, sort of Trump pushing the nuclear button scenario.

0:49:33 Thomas: Hmm. Sure. Okay. No Right, right, right.

0:49:53 Andrew: And I thought that was kind of a tactical mistake by the Clinton campaign to sort of run the, you know, the modern daisy ad and be like, you know, this, this crazy warmonger is going to get us all killed because I don't think most people believe, and I don't believe that Donald Trump is a crazy warmonger, right? Like, I don't, I don't think he has, would be concerned if he were Donald Rumsfeld, right, like if he were somebody with a geostrategic view of the world that he wanted to impose. But but, you know, Donald Trump doesn't seem to be that kind of guy. He seems to be the kind of who wants to make money internationally. And that's not really consistent with.

0:50:28 Thomas: Until somebody insults him.

0:50:30 Andrew: I

0:50:30 Thomas: That's the thing that, that I, that, that is the reason I, I think it could be a worry until, until a country, you know, provokes us or does anything like that. I do worry what he might do, you know, if, if Iran doesn't do exactly, you know, what he wants them to. But yeah, I, I also, I can't imagine we'll be going nuclear anytime soon, but I could could certainly imagine conflicts popping up. But OK, let's give you a quick one. This is going to be an easy one, I anticipate, because it would be crazy if the answer to this were yes.

0:51:04 Thomas: But Jared McKinnon asks, he go to jail, which we already kind of covered? Could he go to jail for his upcoming fraud case? Also, could He pardon himself? I would hope the answer is no. Otherwise, I don't know. You know, I would think Nixon would have pardoned himself. So I'm going to guess the answer is no today.

0:51:04 Andrew: Think the answer is yes. There's no history on this, but I there is nothing as far as I know that prevents a president from pardoning himself.

0:51:33 Thomas: No way.

0:51:35 Andrew: So there you go. Now, he is not standing criminal trial for any charges. So there is nothing there. And remember that the the primary impetus there is that a pardon is an admission of guilt. And so, you know, again, this this has to go back to the movie script that we're writing. But I don't know. I'm happy to be corrected if if somebody out there uh is an elections lawyer

0:51:36 Thomas: Wow.

0:52:00 Thomas: Why didn't Nixon do that then? Was it the timing of it or something?

0:52:01 Andrew: Um because because Nixon uh insisted upon his innocence until the day he left office, right I mean Nixon yeah He did. Gerald Ford pardoned him uh and he and he accepted uh the pardon uh but but but Nixon was Nixon

0:52:07 Thomas: Yeah. But then he still got a pardon, right? Yeah. He's like, I'm innocent. I'm okay. I accept the pardon. I'm guilty.

0:52:20 Andrew: Was not. Nixon wasn't going to pardon himself. The other thing to remember that this is, I I think this is worth worth going down a little bit. Nixon's Republican allies had turned on him by the time that that he was, he resigned from office. There was not the same level of, you know, sort of hyper partisan divide. There was nobody sticking by him. And like, I hate to say this about Richard Nixon, but like, I think there was a sense of if he had, if he, I mean, he could have pardoned himself, but that wouldn't have prevented him from being impeached and removed from office. Uh, I think he didn't want that, right? And so, you know, there was no advantage, right, to pardon yourself as opposed to, you know, when when it comes down to the wire, to resign the presidency, allow Gerald Ford to take over and gain all those advantages anyway. So that's why that's I think that happened.

0:52:30 Thomas: Okay. Wow. Wow. Well,

0:53:19 Andrew: So, yeah.

0:53:20 Thomas: You know what, Jared McKinnon, I owe you a sincere apology. I guess apparently you can pardon yourself. I had no idea. I thought that was a silly question, but I was wrong. So Sally Arthur asks, and we've kind of covered this, but maybe just to cover it from a slightly different angle. Sally Arthur asked, can he really reverse Roe v. Wade with the nomination of conservative justices, should any of the liberal justices retire, and the help of the 30 states that he won. Now, how does that factor in? We don't really need the 30 states, do we?

0:53:51 Andrew: So the fact that he won in 30 states doesn't matter at all. In terms of overturning Roe v. Wade, I would answer that in two ways. Number one, by reference to my previous answer about the composition of the Supreme Court. And number two, that we are going to return. We did a three-parter on Roe versus Wade, which I believe is their episodes six, seven, and eight, which was a lot of fun. And at the end of OA8, at the end of the third parter on Rovey Wade, I teased the next development in abortion law, which which is still contemporary today, which is Planned Parenthood versus Casey. We are going to go back and we are going to do that story. We're going to talk about it probably sooner rather than later.

0:54:38 Andrew: It's going to be a lot of fun. So this is not just a topic for a future show going in the hopper. Really soon, we're going to return to that. And I think you're going to find it really, really interesting. So that's my plug for our future episode on Planned Parenthood versus Casey, Casey.

0:54:49 Thomas: Oh, neat. Okay. Awesome. Eric Brewer, you know Eric Brewer, he's always got questions for us. Eric Brewer asks, I honestly don't know where to begin. So, okay. I agree.

0:55:01 Andrew: No, us, us neither.

0:55:04 Thomas: Yeah. No, No, that's a good question. And, uh, I, I wish we had a better answer for you.

0:55:10 Thomas: April Poff asks what changes are likely in the affordable care act and what process would be necessary to make these changes? That sounds, that'S a big question. I think.

0:55:18 Andrew: Yeah. It's a it's a big question. We don't. So the first half of the question, we don't know. Right. The Trump has already sent mixed signals about what he intends to do with respect to the Affordable Care Act. As we know, the Republican Congress has attempted to repeal the Affordable Care Act something like 600 times since its passage. It's outrageous. But but those were deliberately sort of impotent gestures, right? Like they knew that there was no chance that they were actually going to that was actually going happen because you had a Democratic Senate and a Democratic president. So so let me answer the second half. So we don't know is the first part. What's the process? Congress can Congress passes new legislation, They can describe how that new legislation with existing legislation.

0:56:11 Andrew: Right. So one of the constructions that they'll often say is, you know, you'll have a provision that says this law will do X. And then the next sentence will say nothing in any prior law shall be construed as prohibiting or interfering with the ability of, you Congress to do X. Right. So they'll say essentially this is superseding everything that comes before it. Sometimes they'll do the opposite. Right. They'll say this law is going to let you do X and I'm sorry I don't have an example here, but I think it's OK without it. And then the next provision will say, however, nothing in this act is intended to disturb the Civil Rights Act of 1964. Right.

0:56:50 Thomas: Hmm.

0:56:50 Andrew: And and you do that because of precisely the sort of mainstream jurisprudential model that we talk about in just about every episode of Opening Arguments. And it's it's a way of codifying what what does Congress intend when they pass this law? And so when you read the words and a creative lawyer says, well, you know, this law says, you know, we're going to do X and that seems incompatible with this. So, you know, it could potentially supersede. Congress will often say, you know, whether they intend for it to do so or not. So Congress could, number one, pass a law that just strikes the Affordable Care Act from the books, uh, that repeals it in its entirety. Uh, they could pay, I, I don't know how likely that is. Um, less, it's worse. It's less than a hundred percent. Okay.

0:57:38 Thomas: Yeah.

0:57:38 Andrew: Um they could pass a new law that, uh, overturns critical provisions of the Affordable Care Act and explicitly says so. Uh or you know they could, they can just strike certain provisions of the Affordable Care Act. So one of the things that I would mention, and Thomas, you've heard me say this on social media, in my view, the provision of the Affordable Career Act, that it's really important that we get out in front of on this and convince lawmakers and conservative Democratic lawmakers. The Affordable Care act ended the prohibition on on insurers discriminating against applicants on the basis of a pre-existing condition.

0:58:19 Thomas: Yeah.

0:58:20 Andrew: That's made an enormous difference for people in all of our lives, including, you know, my sister-in-law. I know, and I've heard, I've gotten messages and emails from people who are, you know, crying and hurting and really worried about that. I would tell you, you know, get out and tell your story about that and tell tell your lawmaker, like, you know, forget the death panels and crazy stuff you've heard. The Affordable Care Act means that I can't be discriminated against on the basis of this crippling injury or disease that I have. And if it's overturned and I'm kicked off my insurance, then I will go back to paying eight thousand dollars a month for medication and I will die. And If you go and I don't care if your lawmaker is Jason Chaffetz or you if your senator is Ted Cruz, like There's

0:59:10 Thomas: If Your Lawmaker is Jason Chaffetz, I sincerely apologize, that is There and

0:59:10 Andrew: Yeah. But But go into go into their office, you know, look Ted Cruze in his eyes if you can maintain eye contact and tell him if You vote And

0:59:21 Thomas: Tell Me if He's a lizard or not, that's What I sure

0:59:23 Andrew: Tell Them, but I don't want to lose this right, look Ted Cruise in the eyes and say if you voteto repeal the Affordable Care Act and and insurance companies can discriminate on the basis of pre-existing conditions, I will die. And I'm telling you, not even Ted Cruz is going to be like, well, sucks to be you. Like, get out there. Tell your story. Let's get out in front of this. Because I think that's, in my view, that's something where I think we can mobilize people and we can save that provision. And I don't think that that's a liberal or conservative issue. But I will get off my soapbox now.

0:59:26 Thomas: Yeah.

0:59:56 Thomas: No. I I think that's great, I I really uh that made a lot of sense when you said it toward the end of a forthcoming episode of Atheistically Speaking, so uh but yes do that. Um, so let me just clarify a couple things on that in terms of what they can do, because April asked what's likely in terms of what I can do. I mean, they, they really could do whatever they want, right. I mean they can, can repeal the entire thing if they want, right. It's just a question of politically, if they wanna do that or do they need, is it because they don't have a super majority or yeah.

1:00:24 Andrew: Correct. Nope. They will not need a supermajority. All you need is a majority of both houses of Congress to send a bill that says, it would say SB1, a bill repealing the Affordable Care Act of 2009, and it would describe and would contain a copy of the text to be stricken. And President Trump can sign that into law. Now, can you block that by filibustering with the Democratic minority in the Senate? Yes, you can. Will the Democratic majority led by Chuck Schumer have the political wherewithal to filibuster literally everything coming out of the Republican Congress? We will have to find out.

1:00:49 Thomas: Okay.

1:01:08 Thomas: Okay. But they can. They can do that though. They could, they could filibuster because I think that's what I was talking about with the super majority. They don't have a super majority, so, okay.

1:01:15 Andrew: Yeah, that's the that's the cloture rule, right? That is the it takes 60 votes to end debate. And so you you essentially continue debate indefinitely on a bill. You have to end the debate before you can formally vote on it. That's what we've seen over the past six years under President Obama with a Republican minority in the Senate that is, you more than 40 senators where they have basically filibustered everything. And it's I know there's a later question on this, but we might as well answer it now. Right.

Like, again, this is one of these where, you know, a week before the election, I was getting a lot of like, you know, how can the Democratic majority that's coming in under President Clinton throw its weight around, given that we're not going to have 60 senators? You know, can we use the nuclear option? Can we get rid of the filibuster? Can we do X? Can WE do Y? Can can we do Z? And my answer, you can go back and look them up. Like my answers were uniformly like then a lot of these are on Twitter. But my answers are pretty uniformly like maybe. But, you know, be careful what you wish for. Right. And, you know. And I was thinking, you know, four, eight, 12 years down the road

1:02:02 Thomas: Yeah, yeah, yeah.

1:02:26 Andrew: And not a week down the road. But but here's where we are. Right? And so, you know, the procedures that are infuriating when you have a a Republican obstructionist minority in the Senate are the same procedures that are now available to that Democratic minority. That's what's out there. And so, you know, the more that you concentrate power and make it harder to do that, the more exposed you leave yourself when you know your party unexpectedly loses an election like this. So

1:02:42 Thomas: Yeah, well, So I think that should cover it for part one. We we've got plenty plenty, more to talk about in part two. We got a lot more questions. I'm actually worried about getting through them, but if we don't get through them maybe we'll go a little long in part two. But in part two we won't have to talk about why we voted Hillary, so that'll give us a little more time. I'd like to say our patrons over at patreon.com/law will get access to part two early. Won't be instant. I do have to edit, do some processing, and all that kind of thing, but I promise you it will be early, early, early, as early as I can get it, so that you can start coping with the election sooner and having your legal questions answered sooner than the non-patrons. So We've got still more new patrons to thank.

1:03:42 Thomas: I'm blown away. Thank you guys so much. Patreon.com/law. Really appreciate it. I'm going to thank our new patrons, Rebecca Smelser, Joshua Brown, Matthew Vernon, Daniel Murphy, Aaron Grady, Mason McAuliffe, Patrick John Graydon, and Courtney D. and Richard Heath, new patrons this week. Thank you so much, guys. We really appreciate that. I hope you enjoy the early part two when it comes your way because you deserve it.

1:04:11 Andrew: And as always, we want to thank our all-time greats, our Hall of Fame patrons. Those are Dan Irazari, Eli Bosnick, Dave Nichols of the Positively Doubtful podcast, Dale, Steve Sigmund, Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, La Bibliotecatrice, Heather Loveridge, Leon Hartley, Geeker41, Sean Pitti, Ian and Ali, Matthew Vernon, Hunter Ash, Michael, Kylie Reiser, Jeff S., Sakashite Fukasumi, Pro Panic, Philip Stomberg, uh, Zabby Frederick Alstromer, and the Inciting Incident podcast. Thank you all so much for continuing to support the show, uh, at the levels, uh, that that you've done to be, to be Hall of Fame patrons. We, we really appreciate it. We couldn't do the show without the, the fantastic support that we get from everybody, uh, and particularly, uh, from our, uh, our Hall of Famed patrons. It. We

1:05:02 Thomas: Absolutely. And with that said, look forward to part two. Plenty more legal questions for Andrew to answer about President Trump. We'll see you then.

1:05:20 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.