OA39: Trump's Muslim Ban

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode number 39. I'm your host number B, Thomas Smith. That over there is host A, Andrew Torrez.

0:01:29 Andrew: Hey, Thomas, how are you doing?

0:01:30 Thomas: I'm doing great. Today's And episode is brought to you by HelloFresh. Please visit HelloFresh.com and use the promo code LAWPOD, L-A-W-P-O-D, to save $35 off your first week of deliveries. HelloFresh.com.

0:01:54 Thomas: All right, Andrew, we're breaking down the law. We've got this lawsuit. Now, a lot of people I think have asked about this, and this this is something I'll be curious to hear the details of right away. I believe it was like the minute Trump took office, right? A lawsuit was launched regarding emoluments. So where do we stand on that?

0:01:48 Clip: The law breaking down

0:02:15 Andrew: There is a citizen watchdog organization called CREW, which stands for Citizens for Responsibility and Ethics in Washington. And in addition to the law firm that they have hired to bring the lawsuit, also joining it are my former partner, Norm Eisen, Richard Painter, Lawrence Tribe, Zephyr Teachout, all of whom we mentioned during the two-part interview with Seth Barrett Tillman, people who are very prominent constitutional law scholars. They're also joined by Erwin Chemerinsky, who is the dean at UC Irvine. It's just another, I mean, this is, if you are a constitutional law geek like me, this This is the OJ Simpson dream team of lawyers. It really is. I mean, it is just there. Every one of these people that that is involved on in the brief are people whom I am just not fit academically to.

0:03:13 Thomas: Do you think they're going to include an orange lawyer just to balance? Anyway, that's a weird, detailed OJ Simpson trial joke, but go on.

0:03:23 Andrew: I was really hoping for a Lance Ito joke here. So really, really smart people who are on the left and who were very public in their discussion of the Emoluments Clause put their money where their mouth is and filed a lawsuit seeking a declaratory judgment that Donald Trump is in violation of the Emoluments Clause. And so the real question is, is this lawsuit going to survive a motion to dismiss? And sure.

0:03:51 Thomas: Yeah, well, let me say, from how you've described it, yeah, Marsha Clark's involved. From all the names you just mentioned, that tells me, like, well this is not crack pottery. This is not, I don't, unless, that will be an interesting opinion if that's what you're going to end up saying. But this doesn't go down, in my mind, with everything you've just described as here's some people just trying to do a BS lawsuit for attention that's not going to work. This sounds like heavy hitters, people who know what they're talking about. Is that right?

0:03:57 Andrew: Sure.

0:04:22 Andrew: Yeah, I think that's right. And I would add that the reason I phrased the question for today as whether it will survive a motion to dismiss has to do with the structure of civil litigation. We've talked about this a little bit on the show, but Donald Trump's lawyers are going to move to dismiss this lawsuit on the two grounds that I'm about to discuss. Us. If they win, the lawsuit goes away and nothing happens. If they lose, then what happens is the court will set up a schedule, and the parties will conduct discovery. And so yeah, and so yeah.

0:04:53 Thomas: Discovery, right. That could be very interesting.

0:04:56 Andrew: So my ex partner Norm Eisen, he was on MSNBC, and was asked, you know, what do you want to do with this lawsuit? Like, what are you? What are you trying to do? Because you can't impeach Donald Trump for violating the emoluments clause, right? Like a lawsuit can't eject the president. And he said, well, the first thing that we want to do is we want to use the lawsuit as a vehicle to get his tax returns in discovery. And let me say that if the lawsuit goes forward, I think they have a good chance of getting the tax returns in discovery, so income

0:05:19 Thomas: Yeah. Really? Okay. I was going to ask that because will an argument be made like, oh, this is not relevant necessarily? Because it's not like your, does your tax return tell you like details of, yeah, I guess that's true. Okay. Yeah, it would be.

0:05:36 Andrew: From all sources. So yeah, it's Unquestionably relevant. We'll make include that I'm answering a listener question, although I can't credit the listener because I don't have it nearby, uh.

0:05:50 Thomas: That's okay. Use the trick where we talk about the fact that everybody asked us the same question because it's usually

0:05:51 Andrew: But yeah uh it is true well somebody asked me why can't I think it was on twitter why can'T we use the freedom of information act to request donald trump's tax returns and the answer is because the irs code says the tax returns are private and not not Uh, disclosable under the Freedom Information Act, but uh, they can be ordered disclosed by a court if they are relevant to a particular legal proceeding. And here, the allegation on the emoluments clause is receiving payments from foreign governments, particularly payments that have been locked in over time. And so having access to the tax returns is absolutely relevant to that. And I would think that if the lawsuit goes forward, they have a very, very good chance of getting the tax return. Turns so um and so and I commend um I commend norm on sort of you know publicly putting his cards out

0:05:55 Thomas: True yeah that's a good question sure uh-huh yeah

0:06:50 Andrew: There and going, hey look, like this is part of what we're trying to do. Yeah.

0:06:53 Thomas: Can I ask, okay, can I ask what I hope is not a dumb question but I believe you said This is civil, right? This is a civil suit, so how does that work? Like, who? It just seems weird to me that you would sue someone in civil court for like violating the Constitution, you know, doesn't that seem weird?

0:06:54 Andrew: Yeah. No Yes.

0:07:10 Thomas: Or maybe am I missing so

0:07:10 Andrew: It doesn't it seem Weird? Yeah, it, it kind of does. And then I think that dovetails nicely with the arguments that Trump's lawyers are going to make here, and let me say that this would not be a good opportunity to hire our friend Seth Barrett Tillman. You would want to hire him on the merits, right? Because he's going to argue that the emoluments clause doesn't apply to the president, but we don't get there, right? That's a question for summary judgment. We don't get there if you can't bring this lawsuit in the first place.

And so the two issues that are kind We have talked about how the Constitution says that courts can only adjudicate live cases or controversies. And there are two elements of what constitutes a live case or controversy. And those are, number one, that are relevant here. They're more. Number one, the doctrine of standing. And number two, the Doctrine of Justiciability. So let me talk briefly about both of those. We've hit standing before. Standing says, in order to file a lawsuit, you have to be injured by the subject of the lawsuit, and there has to be a remedy that the court can provide to

0:07:11 Thomas: Okay Yeah. Yeah yeah

0:08:27 Andrew: You. OK. And so I posed this question. Somebody said, well, you know, aren't we all injured if Donald Trump is violating the emoluments clause on Twitter? And I answered with the hypothetical question of, well let me ask you, who do you think is injured by if the president were 27 years old, right? Right. Like he were elected. He's twenty seven. The Constitution says the president must be thirty five.

0:08:27 Thomas: Old people old people are injured is that the

0:08:55 Andrew: Yeah. Yeah. I don't know. I Don't know the answer. Right. Like so the answer certainly could be all of us are injured. Right by having a president who doesn't meet the criteria that the Constitution.

0:09:04 Thomas: Yeah or like it wasn't fair so we're all like uh not fair is that that kind of sort of hmm

0:09:11 Andrew: Well, and and and that flip side is that the answer could be that nobody is sufficiently injured. Right. That if a president were 27, nobody would have the right to bring a lawsuit. But, you know, the Congress would have a right to impeach. Right. You would say, OK, he's clearly not qualified. He's violated the Constitution in getting here. It's violated several provisions of the Constitution, like when he took the oath of office. All of that, you know, there's no debate about that. But the question is, does that provision give rise to an individual right of action?

And so it will not surprise you that there is a massive chunk of the CREW lawsuit that is devoted to explaining what they think the specific harm to them is for purposes of establishing standing. OK, and why don't we go through some of that right now? This begins. I'm going to link the lawsuit. Obviously, they say there is a direct conflict between defendant President Trump's violation of the foreign emoluments clause and CREW's mission of protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption and reducing the influence of money in politics.

Defendants violations create a tremendous risk of foreign governments using money to improperly influence the president, create questions about the president's motives in making foreign policy decisions, and will likely lead to numerous conflicts and violations that the public will have insufficient information to judge. And then from there they say, and so as a result of this, this is paragraph, that was 52, this was 53,

0:09:19 Thomas: Yeah wow

0:10:54 Andrew: CREW has expended a significant amount of time and resources since the election educating the public about the foreign emoluments clause and defendant's violations of it. We receive hundreds of requests from the media. We've spent hours responding to them. And I'm not going to continue to read it, but that's the gravamen of their argument. Okay, they say, we're a watchdog group because he's violating the law, we have to go out and spend time and money educating people on how President Trump is violating the law. And so we're harmed by that. Okay. And you, you chuckled a little bit because I, I think you chuckled for the same reason I did, right?

0:11:21 Thomas: Yeah

0:11:29 Andrew: Like that's yeah.

0:11:28 Thomas: I wouldn't have thought of that I think that's a good one yeah

0:11:32 Andrew: And in fact, there is a case that I think is directly on point. It is a place called Clapper versus Amnesty International USA. Uh, it is, it's a recent case, even by your standards. Um, it'S a 2013 or 2014.

0:11:46 Thomas: Pre or post ali mcbeal that's all I want to know wow

0:11:49 Andrew: Yeah, no, itS it'S post It's 2013 or 2014. And

0:11:51 Thomas: That is tell you what that is recent

0:11:53 Andrew: Clapper might a hint because James Clapper is the director of national intelligence under the Obama administration. And so this was a suit by Amnesty International relating to the FISA court and the domestic spying. And Amnesty International made essentially the same argument. I mean, without turning this into the central episode, they said the same thing. You know, look, we're watching and you know what Amnestry International, they're an international human rights organization. And they said, look like we've got to monitor this. And the fact that you are you the government are engaging in these domestic surveillance activities gives us more stuff to monitor. And it that's a real injury to us. And the Supreme Court Said, "That's a self-inflicted injury, right? You don't have to do that. You've chosen to focus on this." And as a result, the idea you don't meet the test of there being a substantial likelihood that there's an injury that is traceable to the government's conduct here on which you're suing. You're just, it's all speculative.

0:12:41 Thomas: Interesting yeah it's sort of like if know if I came in and I said said, look, because I've decided that every time President Trump does something kind of unconstitutional, I've got to dig a hole in my backyard. And therefore, this is really causing me a lot of trouble. I've gotta dig a ton of holes in my back yard. So I want to be compensated for the work I'm putting. Is that kind of what you're saying? Like a straw man version of what you're they've decided to do this work, so they can't really say they've been wronged.

0:13:33 Andrew: Not only is it not a straw man version, it is exactly what the Second Circuit, because this was on appeal from the Second circuit. It's exactly what The Second Circuit judge did in that case. He said, and this is the judge's name was Judge Raggi, and he said, and the Supreme Court quoting that opinion said, as Justice Raggi accurately noted, under the Second Circuit's panel's reasoning, respondents could, quote, "for the price of a plane ticket, transform their standing burden from one requiring a showing of actual or imminent interception to one requiring showing that their subjective fear of such interception is not fanciful, irrational, or clearly unreasonable," thus allowing respondents to bring this action based on the cost they incurred in response to a speculative threat would be tantamount to accepting a repackaged version of respondent's first failed theory of standing. So in other words, they made the same argument, except instead of digging

0:13:36 Thomas: Hmm wait if

0:14:27 Andrew: A hole in the backyard

0:14:27 Thomas: You say so yeah I was like I was expecting you to say like oh the guy said digging a hole it was like the same thing but I yeah

0:14:28 Andrew: Yeah yeah no he didn't say digging ahole but he said That every time this was Judge raggy that the, uh, the defendants won on standing in the Second Circuit, Judge Raggie dissented, and in his dissent he pointed out that if you were going to allow independent expenditures, voluntary expenditures, to count for standing, then all you would have to do is say, "Well, every time I think I'm being spied on, I'm going to buy a ticket and fly out to Washington and, you know, interview the person who's in charge of the FISA courts." And so it was the equivalent of your digging a hole argument,

0:14:33 Thomas: Oh okay all right

0:15:10 Andrew: Except it involved a plane ticket and it was slightly more confusing. And so, yeah.

0:15:15 Thomas: Well let's tell this judge next time to use my digging a whole example because I think that's funnier so

0:15:19 Andrew: But the point is that you were exactly right. And that analysis from the dissent was incorporated in the majority's holding in Clapper. And so I think that, and that's a 2013 case, it is right on point. What CREW anticipates this, and their argument to the contrary, is that there is a 1982 case called Havens Realty Corporation versus Coleman. And in that case, it involved housing discrimination. And there was an organization called Housing Opportunities Made Equal, H-O-M-E, HOME, that was given organizational standing to pursue its damages in a racially discriminatory zoning case. And their argument is on the basis that their mission was to fight discrimination in housing and continued discrimination in house and cause them to expend more money, I think.

0:16:17 Andrew: And so their argument is Clapper didn't overrule havens. So at least prior to the Supreme Court level, you have to follow binding precedent. And And so that proves that there's no rule against CREW having standing for expenditures. It's a clever argument, but the way that the court, in my view, is likely to get around that is just to say, we think the facts of this case are closer to Clapper than they are to Havens. And I think there's a fairly high likelihood that that could happen.

0:16:48 Thomas: This will get dismissed you think likely

0:16:49 Andrew: I think It's more likely than not that they're going to punt on standing. And we haven't gotten to number two, justiciability, but I have alluded to that in the past. That says, even if you have standing, that this is not the kind of a dispute that the courts are meant to resolve. And here the issue is something that's called the political question doctrine. We have talked about this before. The operative case, I'm also going to link it in the show notes, is a 1993. So it's a during Ally McBeal, I think, level of recent case called Nixon v. U.S. It's a federal judge. It's a different Nixon. But the same problem, right, which was this judge was impeached and then the impeached judge brought a suit for declaratory judgment to reinstate his judicial salary and pension and all that stuff.

0:16:50 Thomas: Okay

0:17:46 Andrew: And he was arguing that the rule upon which he was impeached, that the Senate violated this technical rule. And the district court said that involved a non-justiciable political question, that is a question that cannot be resolved by the courts and that needs to be resolved in the political process. And this is a very – and the Supreme Court affirmed on that basis.

0:18:07 Thomas: I don't have an immediately graspable uh hole digging analogy for that one, but we'll just, I'll just go with your explanation for that.

0:18:16 Andrew: Yeah. Basically, there are questions that the Supreme Court has said, even if this could be fit, even if they're standing, even si there's a live controversy, even I there is all the other requirements for bringing a case before an Article III court under the Constitution, there are nevertheless some kinds of disputes that were meant to be left up to the political process.

0:18:45 Thomas: Right.

0:18:46 Andrew: And And are thus non-justiciable, cannot be brought as a lawsuit because, yes, that's exactly, that is exactly what it is, right? And those, the factors that go in are derived from a case called Baker versus Carr from 1962. So a semi-recent case, right.

0:18:51 Thomas: Is that sort of like a separation of powers kind of thing? Like we shouldn't be, yeah, okay.

0:19:08 Andrew: That's a joke. That's an old case. And they, and that case, that case held that there wasn't a non-judiciable political question. So it's dicta, but nevertheless, they're sort of the guide points. And there are things like if there is a textually demonstrable constitutional commitment of the issue to a coordinate political department, for example, war powers, right? Right. If there is a lack of judicially discoverable and manageable standards for resolving the dispute, if the case cannot be decided without an initial policy determination of a kind that calls for clearly nonjudicial discretion. So, these are different ways. I could go through the rest of them, but they're fairly technical. What the court is trying to answer is, is this the kind of case that people expect to be

0:19:12 Thomas: Well,

0:19:57 Andrew: Answered in the courts, or is this kind of the case that you expect to answered in, you know, the court of public opinion? Right.

0:20:03 Thomas: In impeachment hearings, right? Or in

0:20:05 Andrew: Yeah, that's exactly Right. Yeah. And so I think it is likely that this went to the Southern District of New York. I think it is very likely that that court, that whoever the judge that's assigned, will kick the case on both standing and non justiciability grounds and will say CREW does not have standing to bring the lawsuit because they're not injured directly by Trump's vote. Violation of the foreign emoluments, alleged violation of the foreign Emoluments Clause. And in the alternative, even if they were, this is the kind of non justiciable political question that is left to the political process. If the Congress wants to impeach, Congress can impeach. But we are not going to say as a matter of law,

0:20:05 Thomas: The Senate or in the, right. Yeah.

0:20:53 Andrew: That Donald Trump has violated the Emolgments Clause, right? Because that because ultimately, right, like that's, that's the net result of what you want out of this lawsuit. And if you did, you can see I'm this goes back, I think this is really perceptive of you to point out that the justiciability element is looking, has a separation of powers justification, right? Like it puts Congress in a bind, right. Like if, yeah, right, yeah.

0:21:01 Thomas: Yeah, yeah.

0:21:16 Thomas: It would kind of like going over their helmet to do a Spaceballs reference. Reference. Is

0:21:23 Andrew: No, you've, that's exactly

0:21:23 Thomas: That in the right date range for you or not? We'll have to figure, I don't know if that's a good reference for you, but yeah, it would be like, here, we're doing your job for you. Here's what we decided and have fun with that.

0:21:25 Andrew: Right. It is. It's a great reference. Right. Yeah. No. It, it, it absolutely goes over Congress's helmet to do that. I love So I want that. I want that on record.

0:21:43 Thomas: Oh, good. You went over my helmet. So I think when you put it all that way, I'm not going to call it, again, I said it didn't sound like crack pottery. I'm going to say it's still not, but it sounds a little flimsy. It sounds like they're just, like you said, and it sounds like they've admitted they want this discovery process and maybe the grounds on which they're doing this lawsuit and the just disability and the standing are a little flimsy, but it's worth a try, I guess.

0:21:54 Andrew: No.

0:22:14 Andrew: Yeah. And look like you could certainly imagine a judge reaching a contrary result. And I'm really looking forward to the briefing on on this question because I'd love to see this lawsuit go forward. But I do. I mean, if you ask me where, you know, ultimately what what I think is likely to happen. That's where I'm likely to see, where I think it's likely to come out.

0:22:42 Thomas: All right. Yeah, that's great, though. It's been in the news. Glad you broke that down for us.

0:22:49 Thomas: So, Andrew, we both tried HelloFresh this week, and I was blown away. What did you think about it?

0:22:56 Andrew: Enjoyed it. I had three different meals that were sent to me, and I had my son Alex, who is 14, prepare the mozzarella crusted chicken with roasted potatoes and tomatoes, and he made the entire meal from start to finish. Um,

0:23:10 Thomas: Wow. And for people don't how it works, yeah, we got these meal kits delivered to our door, and it's all packed in there a nice, cold box, nice fresh ingredients ingredients, and the best part is, this is my favorite part, Andrew, it's all categorized in little boxes for each meal. It's so easy to do because one thing that drives me crazy about living in a two-professional-person household is if we go to the store and buy a bunch of stuff, it's too much. We forgot something. We bought too much of this. It sits in the fridge. It spoils, whatever. It's really hard with just two people to do that. This HelloFresh makes it so much easier because it's exactly what you need, portioned to the amounts that you need. And I love it.

0:23:55 Andrew: The, the meal I made was the, uh, citrus shrimp, uh over, basmati uh rice and it called for, um like a teaspoon of chopped fresh oregano. Well, like, you know, you can't go into a grocery store and buy like eight oregano, but like, seriously, they sent me this teeny tiny little package of oregano. Um, in it. Um. So yeah, you don't have, you Don't have that. Like I've, I've bought $19 worth of an ingredient for one recipe and used a teaspoon of it. Meals, my meals are really, really tasty. And for me, the two things I like the most were first, mean, Alex and I went up, we cooked our meals. We did it in the same kitchen, right? We were sort of testing it out, trying it side by side. We went up at six o'clock and both of us were done. He was done at 6.40 and I was done at like 6.35, right? So, I mean, literally, you know, 35, 40 minutes start, I mean, from, you know, the moment we entered the kitchen and started washing our hands and that sort

0:24:13 Thomas: Yeah, it's perfect.

0:24:33 Thomas: Absolutely.

0:24:51 Andrew: Of thing.

0:24:51 Thomas: My favorite thing is left to my own devices. I would probably be eating a Hot Pocket every night or so, you know, like the best part about this HelloFresh delivery service is it's a different thing every time. I mean, and it's meals that I would just never think to have. For example, I had shawarma meatballs and bulgur. I'm not going to buy bulg. I don't know what that is. I would have had no idea, but it was delicious. And it's because they send you exactly the ingredients you want. And they've got a full time registered dietitian on staff who reviews the recipes to make sure it's nutritionally balanced. So you're getting something good for you, something delicious, and something that is all ready for you to put together and to cook. And it's easy. Even I can do it.

0:24:57 Andrew: God.

0:25:09 Andrew: That sounds good.

0:25:33 Andrew: And, you know, as somebody who's lose uh working out trying to lose weight, like, right on the box has the complete nutritional information. So, like, my meal was 580 calories, which is a pretty low cal meal, um, and, you know, the the portion size was, I mean, exactly right, like, I I looked at it.

0:25:40 Thomas: Yeah, that's the thing about nutritious food is you can eat a lot of it. And you're like, how is that 560 calories? Because you're not eating garbage. That's why. And like you said, nutrition info all there. If you use an app to track your calories, it's all right there for you, plug it in. And that's something that, even if you were like a cook yourself, is going to be very difficult to do if you're buying ingredients yourself and trying to measure out, like, ah, how much of that did I use? It's all right there. It's super easy.

0:25:56 Andrew: Yeah. I think yeah. No, And and, in fact, like, I do that. I track my calories and you know, I like to cook. The problem is, like, if I'm cooking entirely from scratch, right, that's an hour and a half process, uh and it's I've I've got to guess

0:26:19 Thomas: Yeah. Yeah. You don't have time to do that. You need to be lawing. You needs to be legalizing. So here's the thing. If If you want to try this, we can get you $35 off your first week of delivery. Go to hellofresh.com and enter promo Promo code LAWPOD, L-A-W-P-O-D, LAW POD, and get $35. That's a lot off your first week of deliveries. So try it. Use that deal. I guarantee you're going to love it.

0:26:29 Andrew: Yes. Yeah and remember, always take cooking advice from a podcast.

0:26:56 Thomas: That's right. Okay, so for our main topic today, at short notice because we thought it was so important to cover, we talked about back in opening argument 16 about the Muslim ban that Trump was proposing. That was a long time ago. We talked about it back way before it was clear that he was going to be president, but we talked And the conclusion was it actually is legal, if I remember right, because he had been given the power by statute. Sort of because even though the Constitution, you'd think it would protect it, like no religious tests or whatever, but these aren't citizens. These are not citizens of the US, so they don't necessarily have those protections. But there have been, of course, recent developments. Now that the ban is actually something that he's doing and people are reacting to it, there's been a lot of misinformation on this, I think, Andrew.

0:27:52 Thomas: So let's clarify. Is what Trump did legal? Is it any different than what he talked about doing? And how are some of these media sources getting this wrong? Oh,

0:28:02 Andrew: Yeah, so a couple of things. Number one, there is a statute that expressly authorizes Donald Trump to do what he has done for the most part, right? And that is 8 USC 1182, , which is "Suspension of entry or imposition of restrictions by president." And that statute, passed in 1952, says, "Whenever the president finds that the entry of any aliens of any or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any classof aliens as immigrants or non-immigrants, or impose upon the entry of aliens any restrictions he may deem to be appropriate."

0:28:50 Andrew: Okay. So that is abundantly clear And it provides the authorization for Trump to enact the Muslim ban, which is a 90 day suspension of the entry of individuals from seven majority Muslim nations. OK, now argument that has been made and the only person that I have seen prominently making this argument, but he made it in The New York Times. And so it's gotten a lot of press is a fellow from the Cato Institute whose name is David Beer. B-I-E-R. He is a self-described as an immigration policy analyst at the Cato Institute. He has a B.A. in political science from Grove City College in Pennsylvania.

0:29:43 Andrew: He which is located at eight USC, 1152, uh, prohibits the Muslim ban. And so I'm going to read the relevant part of that statute. And Thomas, as somebody who is doing exceptionally well on the bar exam, tell me if, if you can't kind of spot the problem right away. Eight 8 U.S.C. 1152A says numerical limitations on individual foreign states, A, per country level, 1, and then there's an accept, which isn't important. No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence. That's the applicable statute. Beer's argument is that supersedes and effectively repeals the provision 8 U.S.C. 1152 F that I previously read to you. What do you think about that argument?

0:30:01 Thomas: Okay. Well, came first? So that one came second, right?

0:30:42 Andrew: It came second. Yes, it did. Yeah.

0:30:43 Thomas: Hmm. Well, I admit I'm a little stumped because I would think, well, that came after, so you would think that would be the last thing that kind of modifies the law, but it sounds like I might be wrong on that. And

0:30:54 Andrew: Beer is reading this as the non discrimination provision second. And this is a kind of discrimination. But that law very specifically applies only, quote, in the issuance of an immigrant visa. Right. So if you stop the process, if you have a blanket prohibition on considering, on denying entry, on evaluating this, what this was meant to do was to protect against on the basis of country of origin in reviewing those applications. And there are a couple of things that we can look at that help us understand this 1152A provision does not effectively repeal 1182F.

0:31:46 Andrew: The first is that Congress was aware that 1182F was a provision when they passed the 1152, and it doesn't say, you know, and all laws to the contrary are void, or it doesn'T say, this repeals section 1182f. I mean, it's something

0:32:06 Thomas: That's something they would certainly do. They wouldn't, yeah.

0:32:08 Andrew: They might do, right?

0:32:09 Thomas: So

0:32:10 Andrew: Like, you could argue, oh, they just forgot to do that. But then you would have to have some evidence that this provision was meant as a general anti-discrimination provision and not only to apply to the processing of visas, visas. Beer knows this, right? Or he knows some of this because he says in his article, "Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between, quote, the issuance of a visa and the, quote, entry of the immigrant." That's absolutely true. He will assert that distinction. But this is nonsense.

Immigrants cannot legally be issued a visa if they're barred from entry. Thus, all orders under the 1952 law apply equally to entry and visa issuance, as his executive order acknowledges. Well, that's got it backwards, right? Like, the the fact that entry supersedes visas doesn't mean that we expand the definition of the specific terms in in the 1965 Act, uh, to include anything that touches on entry, right? Like, it's just really, really clear. And there's no case law that suggests otherwise. The only case law that is out there that applies 1152 was in a case in which the government didn't assert 1182, right?

0:33:33 Thomas: This is a little tough to follow as a layperson. So let me see if I have it right. So is it that The, okay, so there's the 52 one and the what was the other date, the year, okay.

0:33:33 Andrew: It is. Yeah. Yeah, it's a little. Yeah, there's

0:33:47 Thomas: What are the two things that, yeah.

0:33:47 Andrew: The 1952. Right. There's the 1955 law, which is eleven eighty two F. And then there's a 1965 anti-discrimination law. So maybe we should call these two different things. Right? Right. We should call the 1952 ban law. Right. And then the 1965 Immigration and Nationality Act. So we can call it that. Why don't we call it the 1951 law and the 1965 law?

0:33:48 Thomas: Oh. Okay. Okay.

0:34:16 Andrew: Just so we keep it clear.

0:34:15 Thomas: So there's the 1950. So, I don't know that I have this right, but tell me where I have it wrong. It sounds like you're saying the 65, the 1965 law is saying when you're issuing someone a visa, you can't discriminate and then then is the 1952 one saying the president can prevent anyone he wants from coming into the country? So are you saying that, yeah, they can't not issue the visa, but they can say you canít come into the county? Yeah.

0:34:20 Andrew: Yeah.

0:34:30 Andrew: You may not. Yeah, keep going. Right. Right.

0:34:47 Andrew: Yeah. In other words, there are two ways that you can read the 1965 law, right? You can either say the 1965 Law was meant to wipe the 1952 Law off the books, or you can say, no, the 1965 Law was met to sit up alongside the 1951 Law, right. And what you have to figure out is from the context, from the wording of the law, from the case law, from the legislative history, were these two statutes meant to sit side by side or was the 1965 law meant to erase the executive's power granted under the 1952 law? And my point is there isn't good evidence that the law was meant to erase that power.

0:35:36 Andrew: And there's a perfectly rational reading which says, Because yes, the 1965 law was meant to prevent systematic discrimination in reviewing visa applications against people by country of origin, right? You could imagine that as a non-discrimination provision. And in fact, that's how the law has been applied in the 50-odd years since it's been passed as a standard non-disrimination law, right. Right. Does that make sense? At least like you wouldn't want people saying, oh, well, we got a lot of Chinese in this country. So I'm reading these and I'm just throwing out every visa application that's Chinese. Right.

0:36:13 Thomas: But the, but thatís kind of what Trump is doing now, so but heís allowed to that.

0:36:17 Andrew: But what trump is allowed to do is bar the entry for a period of time of a class of alien or aliens. Right. So that operates ahead of the visa application process. Right. It's why people with valid visas were detained at airports, which we're going to talk about the ACLU case in a minute.

0:36:40 Thomas: Was what I was going to ask you about, because I wasnít sure if that was constitutional, because I was thinking like, okay, they already have the visa, like, why can you really just keep them and like detain them and stuff? But it sounds like yes, because this 1952 law gives them that power sort of above and before the 1965 law, sure.

0:36:41 Andrew: Yeah. Right. Yeah, right, Right. So what did the ACL you do? OK. The ACLU filed a habeas corpus action seeking an injunction preventing the government, in following the Muslim ban, from detaining folks who had valid visas. Right. Those are people who'd gone all the way through the process. They had a valid visa, and then they were being detained at the airport. And we saw the pictures of this over the weekend. At. The ACLU won an emergency temporary restraining order, by the terms of the ACLU's own press release. And we're going to have that they filed, as well as the order that was issued, and the ACLU's press release linked in the show notes. By the terms, in terms of that, it applied to a couple hundred people who had already gone through the visa process, but nevertheless were swept up at the airport and detained and potentially being sent back home.

0:37:02 Thomas: Well,

0:37:57 Andrew: And so what the court said was for those people who already had valid visa or other rights to enter the United States, those people, would be unconstitutional to. Yeah, go ahead.

0:38:10 Thomas: Let me, okay, now let me ask you this is just an injunction, right? So this isn't really necessarily, as we learned, you can find a a conservative judge in Texas to issue whatever boneheaded injunction you want. So now I want to ask you, is this just going to be a temporary thing? Well, now forget, forget the fact that I think by now that the administration is kind of waffling on the people with existing green cards thing. So well, forgetting that, assume that didn't happen. Would this injunction eventually be overturned though? Because it sounds like you're saying, well, even people who did have a visa, you can keep Trump can keep out of the country, but

0:38:12 Andrew: Yeah. Right. Right? Yeah. Correct. Yep. Yeah, yeah.

0:38:50 Andrew: And I and and that I think is an interesting area where I I wouldn't say it is clear cut to me one way or the other, but I want to read the specific words of the injunction just so that we're we know what we're talking about. OK, it prohibits removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. refugee refugee admissions programs, holders of valid immigrant and nonimmigrant visas and other individuals legally authorized to enter the U.S. OK, so that is several hundred people as opposed to the hundreds of thousands of people to whom the Muslim ban applies. So my answer is it is still possible that that TRO is overturned in the Second Circuit Court of Appeals. I don't know and I don't have a confidence level.

0:39:41 Thomas: It, will it not really matter or

0:39:43 Andrew: Yeah, it applies to those hundreds of people. It does not apply to the blanket ban on refusing to process immigration applications.

0:39:43 Thomas: Something? Cause, but what about people? Okay. So is there a difference? Uh, and I'm so glad you're answering all these questions cause it's very confusing. So did that injunction just apply to people who are currently stuck at airports?

0:39:54 Andrew: Yeah. Yeah. Right. Pretty much.

0:40:05 Thomas: So what about, what about the, the, people who are traveling abroad?

0:40:05 Andrew: Yeah or or or we're turned away. Right.

0:40:07 Thomas: Like they just went to visit their families. Are they going to be able to come back?

0:40:07 Andrew: Yeah. Well, that it, yeah, Yes, those, those are people who are either holders of valid, valid immigrant and non-immigrant visas or other individuals legally authorized to enter the United States. But you have to have been legally authorized to enter the United States prior to the issuance of the Muslim ban for this TRO to apply to you. And that is, as best as we can tell, a small number of people. It's good for those people, but I thought it was really, really important because, look, we've seen this with a lot. Yeah.

0:40:20 Thomas: Okay, okay.

0:40:40 Thomas: This was reported as Trump's Muslim ban struck down essentially like, they're literally, Mother Jones, I think, reported as Trump's Muslim ban struck down by judge, that that's not right. Hold

0:40:45 Andrew: Right. Yes. And that's not true, and in fact within sort of a half an hour after the initial reports came out, the ACLU started walking it back. They initially had a, we struck down the Muslim ban on their page and now, you you know, they've issued a much more nuanced press release. This is a real victory. Don't get me wrong. And, you know. If you oppose this sort of thing, then the ACLU is doing what I believe to be good work.

0:41:18 Thomas: It really helped hundreds of people, regardless of yeah, the long term, the rest of the ban, at least it really helps some people in a pretty dire entire situation who are, like, stuck at an airport. Yeah.

0:41:19 Andrew: Yeah. Yes. Yeah, and that's Precisely what, I mean, we should do an episode on habeas corpus. We don't have the time to go into it here. Um, this is, I think, will be taught in law schools as part of what the right of habeas corpus means, right? Like, you have a legal right to enter this country. Uh, you have document that says you do, and then nevertheless, you're being, uh, shuttled off into a room at gunpoint and not released and threatened with being deported out of a country that you have illegal right to answer. Like, that, that's something that that's precisely the case that habeas corpus was meant to protect. And so, when I talked about the, you know, Trump's right to pass the the Muslim ban while the ACLU case was pending, people asked me, you know, on social media, well, what about this, ACLU? Does the ACL you just not know? Is it just a long shot?

0:42:14 Andrew: And I said, no, no, no. They, they, they've brought a habeas corpus case. That is very different. I should add that the David Beer argument on the 1965 Act is not present, was not a part of the ACLU's argument. And I don't think it will be part of any challenge to the Muslim ban generally. I have seen Lawrence Tribe has argued that it may violate the First Amendment's religion clauses. Go, so we, we know what those are, we have talked about the lemon test, um, I, I think the hard part of the argument would be arguing that, uh, that this, uh, prohibition, uh, has as its primary effect the advancement or inhibition of religion, um, obviously see the argument, right? Like, you're, you're keeping out Muslims.

0:43:00 Andrew: Doesn't that inhibit Muslims? But I don't know, right? I mean, it doesn't sort of neatly fit within an Establishment Clause violation. And as a free exercise violation, we've talked about this before, since Employment Division v. Smith, Scalia has gutted the constitutional right of the free exercise of religion. And so all you have to do is have a rational basis for having a neutrally applicable law. And 1182F, the 1952 law, would certainly pass rational basis. So it's not going to get through. It is not going be declared unconstitutional as a restriction on the free exercise clause. Uh, and I think it, it does. I mean, I hate to disagree with, with Lawrence tribe who is, um, smarter than I am and more esteemed than I Am.

0:43:50 Andrew: And, uh, whom I, I tried to take for constitutional law when, uh I mean he was teaching at Harvard at the time that I was there.

0:43:55 Thomas: But does he have a podcast him

0:43:57 Andrew: So I do have that on him. I don't it's tough for me to disagree with somebody who is a and away, you know, an icon in the field of liberal constitutional legal analysis. Me, this is pretty clear. And it, It's one of the things that you and I have said, maybe we didn't beat the drum loud enough. I certainly wish we had done more prior to the election, but elections have consequences and this should not be surprising.

0:43:58 Thomas: I

0:44:27 Andrew: Trump has campaigned on this from day one.

0:44:27 Thomas: Don't know of anyone else who was talking about the fact that his Muslim ban would be constitutional, I really don't I don't know why, and I, proof of what you just said, the fact that this argument wasn't even in the ACLU's thing, like, that, I, I think that, uh, goes a long way to prove that that argument isn't going to fly, um, and no one was talking about it, and it's, it sucks, maybe no one really thought it would happen, oh,

0:44:33 Andrew: Yeah, yeah, Yeah. Well, and there is I forget the pundit who said that, the the left you took Donald Trump literally, but not seriously.

0:44:58 Thomas: I'm so sick of that quote,

0:45:00 Andrew: And the right took him, you you know, seriously, but not literally. Uh, but, but I think this is an illustration of that. Um, you know however banal that is.

0:45:08 Thomas: God, that we all need to take him seriously and literally, yes,

0:45:10 Andrew: Yeah. And it, to say I didn't see this coming means you constructed some sort of alternative narrative, right? Like because, uh, Trump has been saying this since day one, he said it despite the fact that it hurt him in the polls and he continued even in the Republican primary. Uh and a lot of people have, have dug up, you know like Like Mike Pence's original statement, you know, Paul Ryan, people who are – look, he said he was going to do this and then he won. We shouldn't be surprised that he's doing this.

0:45:17 Thomas: Yep, doesn't matter, yep,

0:45:41 Andrew: And to look for the courts to overturn, Know, something that – feel like there's sort of a level of frustration by people who were on our side politically who were like, well, this is all terrible. So the courts can intervene when, you know, people do terrible. No, like, you know, presidents and legislatures can do terrible things.

0:46:00 Thomas: I'm still slightly confused, apologies for, yeah, I haven't passed the bar yet, so that's probably why, why doesn't the habeas corpus thing apply to everybody, like, is it just, yeah, uh-huh, okay,

0:46:03 Andrew: Yeah. Well, because so suppose you're a refugee in Syria right now and you have filed your application for a visa to the United States, or you have failed for asylum, and or you haven't filed yet. Right. You're just going to get on a boat and you're going to file when you get here, right? Like, so you don't have a present United States right to habeas corpus under the Constitution to to come to this country, right? Like, what habeas, yeah, right, right, yeah,

0:46:32 Thomas: Let me, maybe this is why I'm confused, the the the 1965 law seems to protect from discrimination when you're processing that paperwork, but are you saying that, so, so will, will Trump's ban based on the 1952 law, will that just not even allow these people to apply? Okay. But

0:46:55 Andrew: Exactly right, and so, look, could you have the situation where, um, this would run afoul actually of a real case, um, Muslim band, as is, as, as the executive order is currently written, is for 90 days.

0:47:09 Thomas: Can he, is he just going to say, okay, another 90 days? I mean, can you just do that forever?

0:47:12 Andrew: Yeah, it read the text of the 1952 law and it says, you know, for whatever period as the president shall deem fit. Now, if that were to continue, I could see a point at which, you know, he continues to renew it for 90 days at a time, in which it has been, you know, now a significant period of time. And then I could say a court saying, OK, it's been long enough that this is now triggering the 1965 law. Right. Because we now have a backlog of applications for visas that are being thrown away or not considered. There was a case. So if you want your best case argument for this, this is I'm trying to come up with the best case. Right. There was a case in the 1990s where the U.S. was excluding applications for immigrant visas from of Vietnamese origin who were filing the so-called boat people.

0:47:20 Thomas: Yeah. And

0:48:16 Andrew: Right. Filing from Hong Kong. So it said with respect to Vietnamese applicants, you had to apply for your visa in Vietnam. We were going to throw it away if it was a Vietnamese immigrant applying from Hong Kong, even though if you were French. Right. You could apply for an immigration visa from Italy. Does that make sense? And they said, look, that if you think about that, that is sort of textbook of the 1965 law. And let's, again, go back to the words of the 1965 law, which is 8 U.S.C. 1152A, which says, no person shall be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.

0:49:07 Andrew: OK, so that was a case where the place of birth and place of residence were being used to discriminate against individuals in terms of whether they were going to issue the visas or not. So if you have – I mean, as I kind of put that together, if you want to – if you're part of an organization and looking to kind of build the best long-term case here, I would certainly encourage anybody who is movement to get people to file visa applications and build that backlog of visa applications. But as stands now, I think there is a very clear dividing line between doing something like showing systematic discriminatory bias in the issuance of visas versus an act that off that process in the first place and says, "We're just going to turn away and prevent the entry into this class of of this class of aliens or classes of aliens." And so and which

0:50:09 Thomas: That's what Trump is doing based, and it's okay because of that 1952.

0:50:13 Andrew: On the executive order? Yeah.

0:50:14 Thomas: Wow. It's a little, I gotta admit, it's a Little confusing to me. I still don't totally get how, but I guess you're just saying that the way you're reading it and it sounds like believe to be the, you know, the way most lawyers or every lawyer is going to read it pretty much is the 52, 1952 law preempts the other one. Yeah.

0:50:33 Andrew: Authorizes this. Well, it doesn't preempt, right? The 1952 law allows Trump to do what he's done. Then there was a 1965 law that came around. And the question is, did that was that law intended to prohibit activities like the Muslim ban, which are the core of what the 1952 law means? Right. And I think the evidence is that it was not intended to supersede and repeal that law. Law. And the fact that it doesn't say so, the fact that no court has held that, and the fact that there is a reading, it requires kind of parsing some distinctions. But one of the things that we've learned is that, you know, that happens sometimes in the law. Are capable of reading both statutes together harmoniously, right?

0:51:21 Thomas: Okay.

0:51:22 Andrew: Like you can envision how both of them could exist side by side. And so So to say, you more generic provision of the anti-discrimination law in 1965, to say that that prohibits the activity from 1952, you're going to have a higher threshold in order to say like, no, no. It was clearly meant to do this. So I stand by our analysis from OA-16. I think it's terrible. I think, obviously, I support and stand with the who are trying to help in any way possible. We've talked about the present refugees who have a habeas corpus right, but for the hundreds of thousands who are potentially swept up in this, what I can say is it seems like the best thing that you can do now is begin to stockpile those applications.

0:52:15 Andrew: And if they are systematically refused, right, that should leave a paper trail. I mean, again, I should say with all of this, right? Like I'm not an immigration lawyer, right? I've had to educate myself on this. So I don't know the practice. If somebody is an immigration lawyer and wants to reach out to us, that's openarguments@gmail.com. I would love to talk to you about the practice and see if there is, you know, something we can do in terms of Um, figuring out how to, how to build the record. Um, it's, yeah, yeah.

0:52:25 Thomas: Yeah, okay.

0:52:45 Thomas: Okay. Well, as has yeah, been the theme this year, in The new year, depressing, but reality. And I think that regardless of where we stand and the fact that you and I both absolutely oppose what Trump is doing here, knowing what it actually is and knowing the reality of the legal situation is crucial to being able to fight it properly. So, I'm really glad that we're doing this work and that you're getting we're getting this out there, because this, I'm not hearing this kind of thing anywhere else. Like, I don't really, like, I don't know how many people have a handle on this, so spread the word, everybody. I mean, it's it yes, depressing, and no one wants to be the person, the bearer of bad news, but I, seriously, we need to know what's going on, and we need to to have the accurate picture.

0:53:09 Andrew: Yeah. If, if, yeah well That, there, that, let me, me turn that into an activist statement, if right, this is a political solution, then it means we need to organize, uh, political resistance to it, right? It means you cannot rely on the courts to do your work for you, and that's why I, it's why I feel strongly about, I mean, in addition to just sort of wanting to report the truth, but I mean I sort of see this, um, tendency among people on our side to say, oh, well, we lost, but the court's going to strike that down, like the most horrible stuff.

0:54:06 Thomas: Yeah.

0:54:06 Andrew: We can turn to the court, and they're going to make it go away. And I want people to be prepared for a lot of the stuff. The answer is not the court is going to making it go way. The answer, you and I have to make this go away, and that may seem like a difficult task, but would rather do that than have people read a headline that says, oh look, ACLU won, want a lawsuit, Muslim ban's gone, right? Don't have to do anything anymore, right? So, and

0:54:29 Thomas: Yeah. True. True. Yeah, that complacency would be dangerous, so thanks for that, Andrew, that breakdown, that's really really dismal stuff in my opinion, but yeah, a good call to action that we need fight this politically and legally, it's not gonna work

0:54:44 Clip: He who questions training, only trains himself at asking questions. What?

0:54:52 Thomas: Okay, let's go to our listener question for today. Sage Scott asks, is Andrew willing to admit that Roe v. Wade was judicial activism? His reasoning on the emoluments question seemed to boil down to there's no legal precedent, but it has been handled this way for a long time. Now, Sage had what I think is a, I'll keep going, but a very perceptive and interesting interesting question about what we talked about with Seth and in those episodes, and relating it back to Roe v. Wade to ask a question about it. And he says, during the Roe v. Wade podcast, you guys spent very little time on the question of when human life begins. For those who care deeply about, my side of this topic, he's being pro-life, this is the crux of the issue.

0:55:37 Thomas: My memory is that it was treated in one to two minutes with something like there was no legal precedent, but it's been handled this way for a long time. Not only was absent, but wasn't explained or explored. And and he cites also, most states had treated abortion as a crime, and therefore that would be evidence of a little bit of...

0:55:54 Andrew: He thought it was analogous to stare decisis. So yeah,

0:55:57 Thomas: Yeah, yeah. Well, and drawing it back to Seth Tillman, when there was no court case, it seemed to be that your opinion was, well, we can look at how it's been done. We can look at all the presidents and how they've treated it throughout history. So I think that's the the argument he's making, the comparison he's making. So I'm curious what you think about that and whether or not that holds up.

0:56:20 Andrew: And I thought this was a really interesting question. I love the fact that we have an audience that has diverse opinions that differ from yours and mine politically. And I want to continue to try and dialogue with those folks. So it's why I wanted to take this up. Obviously, I disagree pretty strongly with the premises of the question, but I think I can understand.

0:56:43 Thomas: Well, but to be fair, I get it because like I was, I remember back in those episodes too, I was a little confused about how this wasn't, when life begins didn't seem to be anything that was evaluated. Like I expected if I just looked at it with no knowledge of Roe v. Wade and I have to admit, I had no knowledge of the details of the ruling of Roevie Wade because I've just never, you know, never looked into it. I never had an opening arguments podcast to tell me about it. So I always assumed, oh, they would have brought in philosophers and different religious people maybe and scientists to be like, when does life actually begin? And kind of look at it from that way. But I was surprised that that really wasn't done. And so I get it. I kind of get where he's coming from on this. Regardless of how I feel about the actual question of abortion, it's interesting, you know, how this was evaluated.

0:57:03 Andrew: Right.

0:57:32 Andrew: So let's start. There are really two prongs of that question. The first is the question about judicial activism and stare decisis. And so, unlike the case with Seth Barrett Tillman and the emoluments clause, abortion is predicated on the somewhat confusingly named constitutional right to privacy, which is really a right to liberty over personal decisions.

0:57:57 Thomas: And it's one of those penumbras, right?

0:57:59 Andrew: Yeah, it's well, it has now since Casey, I think it has been sort of squarely located in the 14th Amendment, but it was it was a penumbra in Roe v. Wade. We've backed away from that language. I think its now, know, pretty you cleanly located. In the 14th Amendment. And so when I said that you don't necessarily need binding Supreme Court precedent in order to understand the definition of words in statutes or in constitutional provisions when we're dealing with the Emoluments Clause, that does not should not be understood as as displacing the more general rule, which is to say, when you have settled longstanding jurisprudence, particularly at the Supreme Court level, that that precedent is binding, that is stare decisis, that is classic stare decisis.

0:58:06 Thomas: Okay.

0:58:51 Andrew: And here, we have, leading up to Roe, a long and fairly robust history of the Supreme Court protecting what it called the right to privacy, the right to make personal decisions. I actually did a patron-only deep dive on this episode, which I will link in the show notes, that went through the major cases. But I do touch upon what those cases are in our three Roe v. Wade episodes. So the first thing that I would point out is the right-to-privacy was well-established. We talked, for example, at some length about Griswold v. Connecticut, which said that it was illegal for states to prohibit married persons from purchasing contraceptives, right, and that was later extended to unmarried persons, right.

0:59:37 Andrew: So that's that's more significant than you would think, right? Like, that is not just saying, you know, well, generally, like, we at the Supreme Court think, you know, using a condom is cool, like, it was saying it Doesn't matter how many people want to do it, there is a an implicit liberty right in the Constitution to engage in to to have to engage in sexual activity to have to have government not be in your bedroom is – I mean, it's not how it's put in the case, but is how it is fair to describe these cases that prohibits a state from saying, well, you know, like, if you're not married and if – forget you.

0:59:46 Thomas: Yeah. Yeah, as you've said before, there's a huge difference, and it's significant, between saying no matter if 100% of voters voted yes on this, still doesn't matter. It's so strongly protected that you can't even do it. It'll be struck down because of the the Constitution.

1:00:29 Andrew: And So that range of decisions on contraception, on marriage, right? Like, it doesn't matter how many people say we think it's kind of icky when Black people and white people get married. It doesn't mater, right, that. That is a liberty that is best left to the individuals. And those decisions are not radically controversial. We're not radically controversial. And so what those establish is the strong, unbroken line from, you know, our nation's history to Roe and to today, that the state has a compelling interest in protecting the liberty and what they call the privacy interests of the individual over crucial personal decisions like whom you have sex with, whom you marry, how you go about procreating.

1:01:16 Andrew: And it is very, very logical to extend that to control over the decision to terminate your pregnancy. Now, what's on the other side of the of the coin, and what is on the other side of the coin, and what the statutes prohibiting abortion count as evidence toward is they count as evidence for the state's interest in protecting developing human life, in protecting the fetus, right? So that that was also there, right, like, and Roe v. Wade recognized that there was this fundamental liberty interest on the one hand, and then there was also this very strongly articulated, articulated, state desire to protect fetuses on the other hand. And so the Roe trimester framework was a way to balance those interests and to say, yep, given that it is important to protect fetuses, and we know this, and given that It is important To protect the basic liberty interests of the woman, and We recognize that, how are we going to balance Those two things, and they came test in Roe, which, to be honest, I think is better than the viability.

1:02:20 Thomas: Yeah, I remember that too, because it got adjusted, right? And, and it, yeah.

1:02:23 Andrew: Yeah, it was adjusted in Casey to a viability test. But the original trimester framework was, well, the way to balance this out was first trimester, states can't do anything about it. The woman's liberty interest is paramount. Second trimester states can restrict but not ban. Third trimester the state's interest And so states can even ban it, right? And it shows that gray area of when does liberty outweigh potential life, right. So that's how we get to Roe. I continue to defend it as not only non-activist, but a sensible and wise decision by the court. Let me tackle the other question, which is the, you know, when does human life begin question, because I recognize that this is really, really important for pro-life activists. It is a really important philosophical question.

It's not necessarily an important legal question. And I know that sounds a little weird, but there's a distinction between a legal person and a human person. And even if you were factually correct, I think pro-life activists are not on solid, you know, ethical, medical, whatever grounds for reasons that go way beyond answering this question, that wouldn't be dispositive over whether something is a legal right? Like, so, you know, corporations are in many aspects, legal persons, right? Nobody thinks that they have, you know, a functioning complex cerebral cortex or a heartbeat or anything, like it's just the biology of it doesn't matter. Eight year old children are unquestionably human lives. But when it comes to, you fundamental right. They don't have the right to vote.

So my view, that question of when you were entitled legally to present yourself as a person under the law for purposes of asserting your rights is logically distinct. And I would point out that our jurisprudence is mostly based on the concept of reciprocal obligations. You get a right because you are capable of recognizing, recognizing and respecting that right in others and the obligations that come with it.

1:02:36 Thomas: Mm-hmm. Mm hmm. Yeah. Yeah?

1:04:36 Andrew: And so you are not entitled to that right when you don't have those same obligations. Right. Like so. And that's that's the theory, for example, as to why it's OK to deprive children under 18 of their rights. It's because, right, if I'm 17, I can sign a contract and then at 18 repudiate that and say, sorry, like I was a minor, doesn't count, you know, go away, right? And so in exchange for that paternalism of, well, minors sometimes sign stupid contracts and we want to let them out, we have the notion that, so if you're not going to honor all of your obligations, then you don't get all of Your Rights, right. And I don't know that that is the perfect system for allocating all of our rights, but I do know that it's kind of the methodology and the thought process that is often used. And obviously, a fetus, similarly a newborn baby, it has no ability to undergo reciprocal obligations. And if you ask me, is there a difference in accepting and validating reciprocal obligations between a fetus and a newborn baby, I would say there would be, right?

1:04:59 Thomas: Yeah.

1:05:50 Andrew: Like, so survivability, actually existing disconnected from somebody else is a one-way obligation that you are no longer imposing on someone once you are an infant that is born as opposed to, you know, a fetus that is in a mother's womb. And so it makes perfect sense to me that regardless of the moral, biological, medical status, the question, even post-Casey, that turns on viability, the questions seems to turn on the notion of removing this very onerous one-sided obligation whereby the mother is required to provide for the fetus.

1:06:40 Andrew: That just, you know, it is not the same, it's not the same kind of obligation once the fetus has been born.

1:06:46 Thomas: I have to say, a lot of questions have occurred to me, but I think that they'd be better left with the time constraints of today. They might be better left to a future show. Thank I you for that explanation. That makes a lot sense to me where, where at least from a legal standpoint, that makes total sense to me. I think there's still going to be challenges when different groups of people see questions of fact so differently. I mean, I just feel like if I was doing the conservative's advocate, you know, in my mind, I'm thinking like, no matter what, well, we're still talking about a life, we're still talking about murder, we're still talking about this. And it occurs to me, it's like, what if a group of people, and I don't mean to straw man, but just as an analogy, what if a group of people thought a certain doll was like a living thing?

I mean, you wouldn't really expect to find a good legal kind of compromise, like, well, okay, you can kill some of them, but not, you know, it's just, it's weird to me. And I don't know that there's ever going to be a situation in which these two groups of people with way different beliefs about human life are going to both be happy, be.

But I think that's a topic for another show or maybe another podcast, like a different podcast from this one, because I think you've tackled the legal question really well. And thanks, Sage, for the question.

1:07:20 Andrew: Yep.

1:08:06 Thomas: Really good question. And I'm sure we'll hear more. I'm sure we will hear more follow-up on that. All right. It is time, Andrew, to thank our wonderful patrons. This would also be a good time to tell you guys that patrons over at patreon.com/law, are maybe as we speak, we'll see, it could be now, could be 10 minutes from now, it Could be tomorrow, but very soon before the end of the month, we will have a brand new Law'd Awful Movies featuring Tom and Cecil from Cognitive Dissonance. Going to be very fun. The movie is Runaway Jury. Can't wait to find out how accurate that is. Another Grisham, right? So So, yeah, I would suspect that unless Grisham went to law school between writing The Firm, because it's the same guy who wrote The Firm, right?

1:08:46 Andrew: Yeah, it's amazing.

1:08:56 Andrew: Yes, it is.

1:08:57 Thomas: Yeah, yeah. So, unless he went to Law School between The Firm and Runaway Jury, going to go ahead and go out on a limb and say, there may be some inaccuracies. So, I can't wait. Now is a great time to pledge, get access to the Lotawful movies, all of them, by the the way, but the new one coming out, and of course, get access to commercial-free opening arguments. So that being said, we'd like to thank the wonderful new patrons over at patreon.com/law for this week. They are Evan Lee, Michael Weston, Audrey My Todd, I think, or something, David Masalik, Elon, and Chris Harrell. Why don't you tackle the rest? Interest.

1:09:34 Andrew: Yeah, and thank you to Chad Trate, to Leonie Hilliard, Bill York, to Bea Arthurs cock, and yes, if you support us on Patreon, you can get me or Thomas to say really anything you want us to say. Uh, and uh, we also want to give a shout out to the netsec heathen who uh edited their pledge upward to be in the Hall of Fame. So, thanks to all of you for supporting the show. Yes.

1:09:59 Thomas: And looks like Charone Frankel did the same thing. So let's also thank her. Thank you guys so much. Hope you enjoy that bonus content. It's a pleasure to deliver it to you guys because you deserve it.

1:10:03 Andrew: Yes yes absolutely that

1:10:12 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:10:18 Thomas: All right. Now's that time where we get to find out if the improbable streak continues. Now, I believe I'm, so I've done seven of these things. I'm five of seven. Is that that correct? And this could be, this gets me up to, as you've said, a gentleman's C or whatever. I don't, I actually don't know what that reference is, but 75%. I'd be very happy. Or if I get it wrong, that's some percentage that I can't calculate off the top of my head. So that's, I'd rather be at the easier one to calculate.

1:10:30 Andrew: Is correct correct all right So if you recall, this question was, uh, homeless people who were living under a bridge. The land was owned by a chemical manufacturer. They snuck onto the a lake that was on the property. The lake was polluted with toxic waste, and the company knew that it, its lake, the homeless folks died, and then the estates of those two deceased individuals sued the company. And the question is, will the estites likely prevail on their tort claim despite the company's defense that the decedents, that the homeless people were trespassers? And the answers were, A, yes, because even though they trespassed, the owner had a duty to warn because it knew that they were in danger. B, yes because the owner was strictly liable for any injuries caused by the hazardous condition of the water in the lake. C, no, because the the owner owes no duty to trespassers except if it acts in with willful or wanton disregard, or D, no, because an owner of land never has to worry about protecting the safety of trespassors and go ahead.

1:12:00 Thomas: Let me ask you before, did we ever get no illusions answer? I know he was, we talked about, he's been a little boastful about his results. So where are we at there?

1:12:11 Andrew: So my understanding, straight from Noah, is that he got question seven wrong and is now only one question ahead of you going into this question. So yeah.

1:12:20 Thomas: Well, that is a key benchmark for me.

1:12:23 Andrew: So let's look, Hopefully, he has publicly disclosed his answer to TTTBE number eight because, you want to insert the drumroll, answer A, which Thomas chose, is indeed correct. So, you are now six of eight with an opportunity to pull into a first place tie with Noah. And if other folks have publicly tracked how they're doing, I also have it on good authority that Eli Bosnick was 0 for 7 going into the question number 8.

1:12:23 Thomas: Oh, Yes. Oh man, I'm on a roll. Wow. Yeah.

1:13:01 Andrew: But please tweet at us and let us know. No, no. So this.

1:13:02 Thomas: Oh that's funny. Yeah this one, I feel like Noah will get this one though. This one seemed pretty easy to me in retrospect having gotten it right. But I was a little worried, a little bit worried, but I had a pretty good confidence in this one.

1:13:18 Andrew: Yeah. So other than I kind of giggled at D, which, you know, no, no if you own land, you don't have to care about anyone else. Like, I mean, you ought to know that to be able to exclude that one.

1:13:22 Thomas: Yeah. Yeah, yeah. Ron Swanson, I think, answered that one. That's a reference you won't get, probably. Yeah but anyway,

1:13:37 Andrew: B and C, I think I can understand the attractiveness. Right. So B says the owner was strictly liable for any injuries caused by the hazardous condition. You can demonstrate an ultra-hazardous activity. You are strictly li able for that activity. So as a callback to Eli's lava emporium, there are certain things that are ultra- hazardous activities for which you can be strictly liabe. But the fact pattern doesn't say that they were ultra- hazardous. Right. This could just be standard toxic runoff for which, you know, they knew.

1:13:57 Thomas: Yeah,

1:14:13 Andrew: Right. For which the company knew was hazardous, but for which it would not be strictly liable. Right? Like you can You can say, hey, look, this is really, really dangerous and and still, you know, not fall into that category. Gory.

1:14:11 Thomas: That we all have. Yeah yeah yeah I didn't know any of that, but it didn't sound like totally unreasonable to me in terms of the, you know, just, oh, there's some, there's a some toxic pond on your property. That sounds like, yeah, that sounds like a normal businessy thing. I didn't think that was like outrageous that you would have some sort of thing like that. Right. But it is still pretty within the realm of intuition for me there.

1:14:38 Andrew: See I think also, you know, if you, if you don't know the law, you might be tempted to say, if you're trespassing, uh, you don't owe a duty, you just have to not act willfully so as to harm someone. But the answer is a, because at common law the the general rule is that where the owner knows about trespassers and knows that there's a dangerous condition, the owner must at least take sufficient action to warn the trespassers about the danger, right? So there is that C answer. Like I said, I think that the folks who guessed C have some reasonable basis for having done so, because in order to act negligently towards someone, you must have a cognizable duty to them, right.

1:15:36 Andrew: And so this is the classic Seinfeld, there's no such thing as a guilty the bystander, right? Like, you know, if you, if you walk by somebody, yeah.

1:15:44 Thomas: There's a reference we both can appreciate. I

1:15:46 Andrew: If you walk by somebody and, you know, they are, you know, having a medical emergency and you choose not to get involved, you know, nobody can sue you for that. You're not negligent for failing to, to get involved with that. If you get involved. Right. And then, you know, you, you say, I'm a doctor, stand back. And instead you're a podcaster.

1:15:47 Thomas: Love Seinfeld.

1:16:05 Thomas: Interesting.

1:16:05 Andrew: Like you can indeed be negligent because you you have assumed a duty towards someone else and then failed to act with the requisite standard of care.

1:16:12 Thomas: Note to self, never help anyone. Got it. Okay. Take help advice from on my podcast.

1:16:16 Andrew: Thanks. Thanks. This is, this is great. That's a, you

1:16:19 Thomas: Yeah. Well, I'm thrilled, and especially when I look back and I think how close I was on those two I missed, because it was my second choice both those times. Man, I went from, I was so down in the dumps when I was one for three, I thought, oh, this is going to be the, this Is going to be a disastrous bit. No one will ever respect me again. But you know what? I've made a comeback. So let's stop. Again, once again, let's start doing this. No, I am just kidding. We will keep going, and we will see if I can keep up the improbable luck streak I am on.

1:16:38 Andrew: Have. All right. Yeah. Question nine on Friday. I can't wait.

1:16:47 Thomas: Yeah, look forward to it. And my apologies, everyone, for forgetting to include the last week or the winner in last week's shows. I messed up, my fault, but I'm not going to make the same mistake this week. Andrew, who was our lucky winner for TTTBE question eight?

1:17:05 Andrew: Yeah, this was a great uh question, um, a lot of people, including a lot, lot of our Hall of Fame patrons, guessed B, including Sakashite Fukasumi, who confidently said that A was just an attractive distractor to tip you up. He doubted you, Thomas. And Eric Brewer, who had a lengthy answer about premises liability. And I would point out to Eric that premises liability is not absolute. It differs based on the class of individuals. In other words, you owe a higher duty to individuals you have invited onto your premises versus those who trespass onto your promises. Right. So our winner, very pithy. I enjoyed it. Don't know if he's played before is John Ronald at JJ Ronald 71 on Twitter, who says, my guess on the bar exam question is a homeless people trespass property owner must warn and are liable. So short, pithy, got the answer right when a lot of people, including some lawyers on our thread, got it wrong. Thank you, John Ronald.

1:17:38 Thomas: Yeah. Trespassers, yeah Well I feel extra good about this one. Side note, I believe one no illusions might be tied with one Thomas Smith on the bar exam.

1:18:09 Andrew: Uh, Played along, Mom. Oh, I I

1:18:17 Thomas: Just, uh, hashtag just saying.

1:18:17 Andrew: Think that's right, you're both six and two. This

1:18:20 Thomas: Yeah, well

1:18:21 Andrew: This was the hardest question, uh, to date, I think, uh, but I would say, uh, question number nine, which is going to drop on Friday, is even, even harder, much harder, will be our, our hardest question. We've ever had.

1:18:34 Thomas: I'm quivering in my boots that I'm not wearing, but yes. Thank you to our winner, that was one more time at, what was it? Alright thanks John Ronald so much for playing congratulations man. All Right. Well well, that's it for today's episode. I want to thank you as normal, Andrew, for being such an expert, such a wealth of knowledge. I learn so much every episode and I just want to say thanks as usual for being so great. I don't know how to phrase it any other way, but I really enjoy doing it. And thanks to all our participants, people who ask questions, people Who Pledge Us over at patreon.com/law, you make the show go. And with that said, all the aforementioned people, stop breaking the law.

1:18:42 Andrew: At JJ R O N A L D 71, John Ronald.

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