OA41: Betsy DeVos and School Vouchers

Transcript

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

0:01:16 Thomas: Hello and welcome to Opening Arguments. This is episode 41. I'm your host, Thomas Smith. That over there is Andrew Torrez. How you doing, Andrew?

0:01:25 Andrew: I'm okay, Thomas. How are you?

0:01:27 Thomas: Great, we're hot off a last Friday's episode was Neil Gorsuch, and I just want to point out, I want to sing your praises, because we actually recorded that so people are hearing this on Tuesday. I'll do a little, do a little calendar math for everybody just to illustrate how awesome Andrew is. People are hearing this on Tuesday, the 7th. We actually recorded that Neil Gorsuch episode on Wednesday, not last Wednesday, Wednesday, the 25th. So Andrew somehow knew ahead of time that Gorsuch was going to be the appointee. We were going to air that on last Tuesday's episode, but we preempted it for the Muslim ban because that was going crazy in the news at the time, and I don't regret that decision, but Andrew, I did a little bit take away from just how much of a genius you should have looked like when we, when we aired it after everybody knew that it was Gorsuch. So tell us your secret, how do you do it, sap

0:02:25 Andrew: Yeah, as soon as I saw Gorsuch was on the shortlist, I looked at it and I thought, well, here's somebody who is 49, right, which is kind of the sweet spot for Supreme Court justices. He has impeccable academic credentials. And yet he is clearly a political conservative activist, right? Like he, we talked about the piece he wrote for the National Review, like, he He was gonna make everybody, uh, to whom, uh Trump wants to, uh pay off and satisfy on the Far Right, uh satisfied, um could, you know, could they be more satisfied? You know, I don't know, like there are some groups that, you know, would love to have Roy Moore, for example. But that's

0:02:47 Thomas: Tell it, I don't know who that is, so who's that?

0:03:04 Andrew: Yeah, that's the Alabama Supreme Court justice who defied the Supreme Court order to remove the Ten Commandments monument from the courthouse, that like huge 10 ton thing, and uh, and he's, he's been twice removed from the bench, I mean, it's just, you know, I, it, it's that, would be sort of the Christian, you know, extreme uh dominionists, uh, their top choice, uh, but those people are going to be very, very happy with Gorsuch, right? Like Gorsuch has publicly said, I think there is a place for Christianity in the United States, uh, law that is consistent with his view of, of the First Amendment, which is to say he does not believe in separation of church and state, um, that should be disqualifying, it won't be, um, and by the time this airs yeah

0:03:18 Thomas: Now is the part of the show, you know, let's do the segment where Andrew adjudicates Twitter arguments that I've had. I want to ask you about something, I tagged you but I don't think you saw it yet, but I want to know if this is a proper analogy sorry, I'm pre, I'm taking over the show just just to answer me this, I think it was a, I thought of something, I think it might be a good analogy, but maybe, maybe it's not. So we'll find out here. Lawrence Krauss, listeners probably will be familiar with Lawrence Kraus. He's, you know, renowned physicist and brilliant guy, interesting guy. And he tweeted that we should, liberals should kind of stop complaining about Gorsuch because he's like the most qualified that Trump has nominated thus far.

And I said, here's what I said, I tweeted a quote out, I'm not, that he's going to see it, he's got tens of hundreds of thousands of followers. I said, yeah, he is qualified like a credentialed scientist who denied climate change is qualified, quote unquote. Now I'm drawing an analogy between originalism not being mainstream jurisprudence and climate change denial not being downstream science.

0:03:50 Andrew: Okay go ahead yeah

0:04:49 Thomas: Now, I'm wondering if maybe that's not exactly a fair comparison because of numbers, like what percentage of lawyers would be or I guess what percentage of what would you say constitutional lawyers would be originalists? It might not be as small a percentage as percentage of like climate scientists are, you know, climate change deniers. But what do you think about that comparison?

0:05:13 Andrew: I, I would say that, um, that it's a, it's a, it's a good analogy, it's a clever analogy, it might go a, a little bit too far. Um, and the reason is that, um, I mean, I think sort of two things are, number one, uh, there are more originalists who are legitimate scholars than there are climate change denialists who aren't legitimate scholars, uh, which, you know, I think is close to zero. Uh, and, and then the second is, you know, there, I would, I would be the first person to admit that the mainstream theory of jurisprudence, uh, has a bit of an art quality to it, right? Like it, is it's, it's not set in stone.

I mean, one of the arguments against originalism is that the founding fathers didn't say, you know, and henceforth, uh, people will be bound by the interpretation of these clauses that we give them, right, which you would expect given originalism, right, if the only thing that matters is what the founding father. But on the other hand, they didn't say anything, right? So, you know, so there is a level of ambiguity. So I think it, it, it stretches the analogy a bit, but as analogies go, it's not too bad. And certainly there are, you could imagine, trying to think of the name, but if you wanted to take it in a similar field of crack pottery, there are well-credentialed intelligent design theorists, right, who are good

0:05:50 Thomas: Right. Right, right, right.

0:06:32 Andrew: At their field, right? Right. Like whom I was trying to Guillermo Gonzalez is the guy who who wrote The Privileged Planet, and like he's a legitimate astronomer, right, like, but I wouldn't want him to head, you know, the National Science Foundation, even though, you know, he's an intelligent scientist with a legitimate degree who is legitimately published, because in addition to doing good science, he is also a crackpot when it comes to intelligent design stuff. So, you I think it's not a bad, I think that analogy gets us 80% of the way there, it sells the case a little strongly, yeah right

0:06:38 Thomas: Yeah, OK, so maybe it's a little overstated. But I mean, what I was trying to get at is people like Lawrence Krauss who tweeted that were are simply looking at, OK. This guy has the appropriate degrees, you know, and this guy has experience. And they were saying that makes him qualified. And I just wanted to say that you could maybe it may not be exactly the same, of course, but you could say that about scientists who deny climate change, or like you said, uh, some sort of, who's the guy who, uh, mapped the genome, or was, uh, that the, yeah you could say that about Francis Collins, yes, he has a lot of experience and credentials and degrees, but if you want to talk about intelligent design, like, he's, you know, he wouldn't be the best person to head up that field of research, I guess. Does that make sense? Yeah.

0:07:19 Andrew: Yeah yeah Francis Collins, but yeah it does, and I think part of that may come from, from the physicist's perspective, right, like there's a right answer when, when you have, when you solve an equation

0:08:05 Thomas: That's true, there's not as many, any, like, areas of physics where it's like, okay, 10% of our field thinks something that's kind of, the rest totally don't think, well, maybe there is.

0:08:14 Andrew: Equation yeah, well, well, and let's give one that Krauss himself has given, right, which is to say string theory, right, like if you, if you hear a Lawrence Krauss lecture, he will say, you know, there's, there's, uh, you know, nobody thinks that in physics except string theorists, and you know, they don't even know what they're talking about, right, like, so I, that might be an analogy that hits closer to home with him, of, you know, would you, would you accept as the chair of the, uh, major, some major physics. Yeah, right.

0:08:20 Thomas: Yeah. Right. All right. Origins project. I don't know. Yeah,

0:08:43 Andrew: Exactly. Yeah. Uh, somebody who was a, a hardcore string theorist. Yeah?

0:08:43 Thomas: All right. Well, we'll craft a better, yeah, well that's what we're trying to do here. Craft better analogies for Lawrence Krauss. That's one of the main objective one one of the show. All right, so let's get to our first segment here. Thanks for answering that. Sounds like I better go hedge my bets a little bit on Twitter, but I think it illustrates the problem, if not is 100% perfect representation.

0:08:59 Andrew: Yep. I agree. I disagree.

0:09:09 Thomas: So, breaking down the law.

0:09:13 Clip: The law breaking down

0:09:20 Thomas: Now, I admit, Andrew, I'm seeing this question here. I don't totally understand what it means, so I definitely need need to break down here. Did Trump file early for his reelection in 2020 to silence Planned Parenthood and other 501c3 groups? How would that silence? I don't even understand the premise of the question, but I'm assuming you'll break that down for us.

0:09:40 Andrew: Okay Yeah, this stems from uh a series of tweets published on January 28th by an account called the Resistorhood. There, there are like nine tweets in a row that includes the FEC form 99, where Donald Trump has filed to run again in 2020. Right. And the argument being made on that account is this is not a normal procedure. Procedure usually candidates file sometime after the midterm elections, about a year before the election.

0:10:12 Thomas: Huh.

0:10:12 Andrew: Uh, and so the question was, is there some nefarious purpose at work here? And the Resistorhood account says, um, the most important aspect is that as a candidate, uh, it changes how nonprofits can handle him. 501 C threes cannot campaign or risk losing nonprofit status. So it it means that they can't speak negatively about him. Imagine Planned Parenthood action having to convey the risk without limits on how to address, okay? And so this throws non-profit lobbying groups into chaos, okay. So that was the argument. It sort of seems plausible on its face. There's this weird filing. Is it designed to monkey with third-party groups that are involved in lobbying? And as far as I can tell, the answer is no.

0:10:13 Thomas: Oh,

0:11:01 Andrew: OK, that that it sort of seems overblown. So there are a couple of things to think about here. Right. The first is groups like the reason that there is a group called Planned Parenthood Action is because PlannedParenthood is a 501C3 corporation. Right? Right. And yet

0:11:15 Thomas: I see. Yeah. Is that a, is that like a pack? Like a, yeah.

0:11:18 Andrew: It absolutely. So. So Planned Parenthood is a 501 C3. They can never engage in political lobbying and campaigning. So when they want to lobby for, know, against restrictions on abortion and the like or against only education programs and things like that, They formed a spinoff group, which is a 501c4 group called Planned Parenthood Action. And those groups can of the same section of the IRS code. They're one provision down. And so they can still be tax exempt. And instead of having an absolute prohibition, they can spend up to 50 percent of their time engaged in campaign activities. OK, so the entire premise of Parenthood can criticize a president but not criticize a candidate. That's not true. They can't engage.

0:12:11 Thomas: Yeah, that already seemed weird. I was going to ask about that anyway.

0:12:14 Andrew: Yeah, yeah. Then and the other way to take a look at it is what the complaint here is, is the complaint is an issue of timing. Right. They're not saying Obama didn't run for reelection. Obama did run for reelection, but they're saying that he filed for reerection in 2011 for his 2012 campaign and Trump is doing it in 2017 for 2020 campaign. But if there were some magical change at the moment when a candidate filed for reelection, then we should be able to look back to 2011 and look at conservative interest groups and say, oh, well, look, conservative interest troops were criticizing Obama, criticizing Obama. Criticizing Obama. He declares for ree election. Now they're gagged. Right.

0:13:02 Thomas: Yeah.

0:13:02 Andrew: And you just you don't see that because it doesn't have that effect. Right? Right. So so I think when I when I look at all of this and then the other the other issue is by having a permanent campaign going, he can have a campaign apparatus that can accept campaign contributions. Uh, and I would say that that is, that's um, a problem with our current political system, but it is similarly a non-unique problem, right? Like it is, uh, the fact that that our candidates raise money the day they get into office. It's true for Democrats. It's true for Republicans. It's true around the clock. It's a bad thing. It's something that I think we should address. But it certainly is not unique to Trump and it is not unique to this filing.

0:13:52 Andrew: And the example that I would give is Obama's 2008 campaign organization was called Obama for America. And Obama for America was transformed into an organization called Organizing for America in 2009. And it continued to collect campaign funds. In 2011, In 2011, it spent money. Well, in 2010, that organization, Organizing for America, spent money on Democratic candidates in the midterms. Then Organizing for America was folded into a group called Organizing for Action. And then they were folded back into Obama for America in 2012 during the campaign. Right.

0:14:37 Andrew: So, in other words, Barack Obama raised funds as a candidate while president from day one. And, you know, and if you don't like that, then, you donate money to common cause, right? Like get start working with organizations that are going to deal with campaign finance reform, which I think is a major, major issue. But one of the things that we try and do here is sort of, you know, diffuse outrage and make sure that it's directed in the right place. And I think the simplest explanation for this filing, right, the why did why did Trump file immediately? Because he's surrounded by people who've never done This before. Right.

Like, I mean, Kellyanne Conway is a third rate pollster who was kicked off of, you know, state legislative races, right? Like, I mean, she's she's so far out of her depth it's not funny, and so you can imagine them looking around going, okay, what do we got to do? Oh, oh, this uh form, uh, 990, requires us to uh declare that we're going to run for, well, let's make sure we sign that form. So that, you know, I, I, it, to me in this case, incompetence is a better explanation, uh, than um, you know, some some sort of deliberate conspiracy to try and raise money and cripple Planned Parenthood and the like. And I think somebody was a little too clever in putting

0:14:46 Thomas: Yeah, We Need

0:15:57 Andrew: The dots together.

0:15:58 Thomas: To Make sure we target our outrage appropriately because I would love for whatever side I'm on to be as unhypocritical as possible so that the amazing amount of hypocrisy that's happening on the right currently around everything Trump is doing can, can better be pointed out. So thanks down.

0:16:17 Andrew: Yeah, I agree with that. Let me give an analogy from the law because I don't know that I've done this before. One of the things that's really common to do when you're citing an obvious proposition, I think we've talked about this, is you put together a string site, right? You say, It is well settled that a contract requires offer acceptance and consideration. And then you say see, and you put in like nine different cases. And the reason you do that is, you know, to sort of make it clear to the judge, hey, look, this is a settled proposition of law. And over and over again, you This is just the case. But sometimes, one of the things that any good lawyer will do, that I do every time I get this brief, is you look up and you read all nine cases.

0:17:04 Andrew: And sometimes, a lawyer will screw up a case in the middle of a string site. And so the easiest thing in the world to do when somebody has confidently asserted a proposition, if one of those cases contradicts it, rather than being in a spot where there are eight cases going the other way, you go and you say, well, this proposition is clearly not established by law. In fact, one of plaintiff's own cases, you know, Smith v. U.S. actually holds to the contrary. And then, you Know, and you go, and that's just crushingly effective, right?

Like, because you've taken the component of their argument, and you've said, No, no, no. You've actually gotten this wrong. And that's the analogy that I would would apply to when we're out there criticizing what's going on. There is enough that is unprecedented. There's enough that's unconstitutional. Let's make sure we get that right when we level that charge. Because if we say 12 true things and one incorrect thing, then the debate will focus on that incorrect thing as opposed to the fact that the balance of what we said was correct. So that's one of the things I'm trying to do.

0:17:34 Thomas: Hmm.

0:18:14 Thomas: Thanks for the breakdown. Okay, Andrew, it's time for our main topic of the day. Now, this is something that I'm really glad we are covering because I just don't know much about it at all. One of the consequences of Betsy DeVos, no nothing, no qualification Betsy deVos being confirmed for Secretary of Education is vouchers. This seems to be something that certain, I guess, political groups are really into. I'm not sure if it's bipartisan or what, but it seems to me more of a conservative viewpoint. But it might be a little bit of bipartisanship there. What are school vouchers? And more importantly, maybe more importantly does that system, which can result in the government giving money to religious schools, Is that constitutional?

0:18:21 Andrew: Right. So What are school vouchers? Vouchers is the – I'm sure Frank Luntz had a role in this in focus grouping a name. But basically what it refers to is a tax credit or direct payment from the government to people who decide not to send their children to public schools. Rules, so let's let's first start off with kind of basic economic theory, right? When you give somebody a tax break for something, like, what's the consequence of giving somebody a tax brake for something? Yeah.

0:19:40 Thomas: Are you asking me?

0:19:42 Andrew: I'm asking you right like you're the you'rethe economics expert here right like why do we give tax breaks for certain things yeah

0:19:43 Thomas: What's the consequence of... Oh, well, it seems like a lot of different reasons. It could be any political reason, but it seems to be if the government has some interest in it, in whatever that activity is, or wants to promote it or whatever, then it's a way of incentivizing people, I suppose, to do it.

0:20:02 Andrew: That's exactly right, like a tax break is incentivizes certain behaviors, right? And so, and we know this as sort of basic macro, macroeconomic theory, that, uh, you know, for example, if you were to double the tax on gasoline tomorrow, for purposes of this, let's say, increase the tax on gasoline such that the price of a gallon of gas doubled tomorrow, we know that people would use less gasoline right, like they would carpool more, they would, uh, walk places, they would take public transportation, right? Like, unless you- unless demand for something is inelastic, when you increase the price, by definition, you are decreasing the demand.

0:20:21 Thomas: Okay. Mm-hmm. Yeah.

0:20:44 Andrew: So voucher programs give tax rebates or direct payments to people who send their kids to non-public schools. The direct consequence of that is it is the government incentivizing you to pull your kids out of the public school system. Why Democrats are not fighting that on that ground alone is just sort of beyond me. But nevertheless, so that's what it is. It's a reward to you for opting out of the public school system. And if you would ask yourself, why should the government pay you to not participate in a service the government provides that is, you know, ostensibly designed to encourage, you know, teach citizenship? And I don't know.

0:21:19 Thomas: Government schools. Yeah, Yeah. Yeah.

0:21:30 Andrew: Vouchers are, we're going to talk about the specific program in a minute. Voucher is also almost never cover the cost of the private schools to which they are applied. So, for example, when I think of what a voucher means, I think I've gone to a festival and there are 50 different tents set up and I get three tickets and I can go get meals. At any of the 50 tents, I can get any three meals or beers or whatever, depending on what the festival is.

0:21:43 Thomas: Huh. Well, that sounds delicious. Okay. Let's do this.

0:22:06 Andrew: Yeah, it does, right. Right yeah well look That's why, I mean, when I say I was not just being sarcastic when I said I'm sure Frank Luntz had something to, like, there's no doubt in my mind they focus grouped and found that the word voucher has a a very public positive connotation, because you think about that, right? You think a voucher means, yeah, I just go around, I go to all the 50 tents and I pick the one I like and I give my voucher and they give me my stuff. But school vouchers don't take that form. They They take the form of you get some money back. Well, we're going to talk about what those levels are, but they're almost never – I mean, private tuition – and again, you know, you and I, I mean you live in California. I live in Maryland. I am sure there are private schools in more rural areas that are less costly. But around me, and I'm not talking about just going into D.C. and talking about Sidwell Friends or going up and talking about Phillips Exeter Academy or some of the most expensive prep schools in the country.

0:22:06 Thomas: I'm in favor of it. Long live Betsy DeVos. No.

0:22:21 Thomas: Yeah, that's

0:23:08 Andrew: Even in Baltimore, it's very difficult to find a prep school, to find a private school that is under $18,000. It is very common to find private schools that are $30,000 or more tuition per year. And the The vouchers – yeah, it really is. And the vouchers are a fraction of that. So, you know, from a political standpoint, what you were doing is helping people offset the cost of opting out of the public school system.

0:23:22 Thomas: Like, that'S like college price. Jeez.

0:23:39 Thomas: Yeah Yeah.

0:23:40 Andrew: I obviously – you know. We don't hide our political views on this show. I don't understand. I mean, if you told me that the government wanted to take your tax dollars and subsidize stuff, subsidizing people to opt out of public schools would rank about a billionth on the list of things, right? Like, I would sooner, you know, subsidize people to go see superhero movies than, you know, right. No, I know. I picked that one on purpose for you.

0:24:02 Thomas: Okay. It might be, that might be the one thing lower on my list. I mean, I guess I at least get the logic of maybe for a conservative or something or libertarian minded type person, like let's take take the money that the government would have been spending on your public education because presumably, you know, there's a cost involved in for every student. There's going to be some per unit cost. And let's say, okay, if you want to, in order to give people the right to have education wherever they want, we'll cut you a check for that amount and you take it elsewhere. I mean, I guess that kind of makes sense.

0:24:38 Andrew: Yeah, that's the argument. The reality is that no part of that equation matches up, right, like, you So it is, in other words, jurisdictions that have had schools that sort of fall under the voucher program, you don't see a one-to-one reduction in costs, largely because the worst schools, the ones that you need people to voucher out of, are criminally underfunded to begin with. So you don't see a reduction in cost. There's not a one to one correspondence between any reduction in coast and the cost of the vouchers. It's just a separate line item, right? Like it just increases what we have to take out of the general tax revenues to now pay people as a tax rebate for not going to public schools. So now the question is, is that constitutional?

0:24:45 Thomas: Yeah.

0:25:31 Andrew: And there's a really, really, Really, really good argument that it's not. No,

0:25:37 Thomas: Can I ask, do you mean regardless of what school it's going to, like, because I mentioned religious schools. Are you saying, forget that, like even if it's not a religious school that you'd be going to. Is that constitutional versus the specific religious school question?

0:25:52 Andrew: Excellent. And the way in which vouchers were sort of backdoored was the first pilot voucher programs specified that the payments could only go to families who sent their kids to non religious private schools. And as far as I can tell, that is constitutional. It's dumb public policy, but it's constitutional. The argument that it's not constitutional comes from the fact that when the programs were that so that those programs were fine, and then they were expanded and the vouchers went to parents who sent their kids to private schools, right? And to those private to religious private schools. And the argument there is you are directly paying people to send their kids to a religious institution right and so if you remember are the the guiding principle for establishment clause violation

0:26:49 Thomas: Oh, we're going back to, we've gone back to shoot up tires and playgrounds? Is that what we're coming back to? All right.

0:26:50 Andrew: Yeah yeah the and again you know when you think about it it invokes the same sort of questions um that the principle is lemon versus kurtzman the lemon test and in In order to pass muster, the law in question must, one, have a secular legislative purpose. Two, the principal or primary effect must neither advance nor inhibit religion. And three, it must not result in an excessive government entanglement with religion. Yeah, it's got to pass all three. Right. So the vouchers, could you argue that there is a secular purpose? Yeah, I think you can argue that there is secular purpose, right? You can say what we want to do is particularly in areas where the public schools are a problem. We want to make it possible for people to have an alternative. Okay.

0:26:58 Thomas: Yeah. Or some people say pass mustard, but yeah, go on.

0:27:28 Thomas: And that's an and test.

0:27:52 Andrew: So I agree.

0:27:53 Thomas: I agree with that. I was actually going to say that if if you were going to ask me, I was like, yeah, I could see it's not exactly favoring religion. It's kind of just a general going to whatever school you want.

0:28:02 Andrew: Right. But the principle or primary effect must neither advance nor inhibit religion. I don't see how you get past that other than as a as a point of fact, which we will find out in a few minutes, the Supreme Court has strongly disagreed with me, but I just don't see how, with a straight face, you cannot. That's why I began with the, you know, macroeconomics question. The effect of lowering the price of religious schools is to encourage people to go to religious. And it is – if you didn't believe that, you wouldn't have the law, right?

0:28:36 Thomas: Yeah.

0:28:36 Andrew: And so to say the primary effect is not advancing religion, I don't know how you can come to that conclusion when you – let's give a really, really obvious example. Instead of vouchers, we'll call them smouchers. And what The government will And if you identify your church, they will pay back a portion of what you pay in tithes to your church. Right. Right. So, you know, you give up to 10% of your income and the government's now going to say, you know what? We're going to reimburse you. We're gonna pay you back for that. Right. That would, there's no way on earth that that could possibly survive constitutional scrutiny because what they're saying is we, we essentially want to use, right.

0:29:24 Andrew: You're the conduit. We'RE going to take government dollars and give them via you to a religious institution. And we are going to to incentivize you, you know, to, right, why would you not, right?

If you were a member of a church, right now, you to give what you choose to give, and yes, I mean, there's the tax break question, which is, you know, kind of separate, which you could make good arguments that are sort of beyond the scope of this program, but you get to choose, right.

Like you say, do I want to give them 10%, do I wanna give them 5%, do I want give them 20%, if you're like Donald Trump, do Do I want to give them 0%, right? You get to choose, you know, how much you're giving to the church. If the government were to pay you back dollar for dollar up to 10%, well, everybody who's a member of a church, there would be no reason not to give 10%, right, yeah. So that would clearly violate the lemon test. It would clearly then violate the establishment clause. So I don't understand the basis, but let's see, right. Right. You know, so let's ask lawyers smarter than me what happened. And the case here is Zellman versus Simmons-Harris, 536 U.S. 639. It is a 2002 decision. So that's post-Ally McBeal, right? Right. Oh,

0:30:12 Thomas: Yeah, true.

0:30:22 Thomas: I was going to say, now let's see what the Supreme Court thinks during, that's in the thick of Ally McBeal.

0:30:45 Andrew: Okay. Okay. And so

0:30:45 Thomas: Yeah. Also known in the Supreme court is the Ally McPeel years, I think is what you're trying to say.

0:30:51 Andrew: In this case, the Supreme Court upheld on, because it's a 2002 decision, on a 5-4 decision, the voucher program employed by the state of Ohio in Cleveland. And I'm going to tell you a little bit about the way that program works, but it compensated parents who sent their kids to any non-public school, including religious schools, the tuition aid was distributed to parents according to financial need. So families with incomes below 200% of the poverty line were given priority. They were eligible to receive up to 90% of the private school tuition capped at $2,250. And then for all other families, the program would pay 75% of tuition costs up to $1,875.

0:31:42 Andrew: Then, you know, there are a number of other provisions. So the Supreme Court applied the Lemon Test, found no problem with satisfying the first prong, which is to say that the purpose of the voucher program was to provide parents with an an alternative to troubled Cleveland inner city schools. They found no problem with a third prong, and we haven't talked about the entanglement issue, the sort of the perverse effect of the anti-entanglement prong when it comes to vouchers is it encourages government to give money away for people to go to private schools but then have no oversight, right? Because the more oversight you you have the more potential entanglement you have, right? Yeah, so it really is kind of the worst of all possible worlds. And then with respect to the advancement prong, they say that because it's a free choice by the parents, that that does not implicate the advancement problem. There's no analysis on the correct

0:32:24 Thomas: Yeah. Oh, man.

0:32:48 Thomas: Yeah. So, the logic is that the government, because the parents are just choosing, they're not, like, making anyone pick a religious school. Is that what it is, kind of?

0:32:59 Andrew: And That therefore the primary effect is neither to advance nor inhibit religion. And in addition, the majority opinion pointed to prior decisions that allowed some money to flow from the government as a conduit to individuals that could potentially wind up in the hands of religious schools. So, for example, there's a case called Everson versus Board of Education of Ewing from 1947 that involved paying for transportation costs for busing for kids where you had situations where the low income students were being transported via bus and that that was paid for by the government and they might get bused to their private school. And so the Supreme Court said, look, that kind of transit is okay. But as the dissent points out, there's never been anything –

0:33:50 Thomas: Hmm.

0:33:59 Thomas: The dissent in that case or the dissent in this case?

0:34:00 Andrew: No, I'm sorry. Yeah, as the descent in Zellman versus Simmons-Harris in this case points out, that's that really does, I think, qualify as sort of the incidental benefit, right? Like, you, you could, we could have a debate back and forth over, okay, we're gonna just bus kids to their schools, and yeah, the buses are gonna drop kids off at the religious schools, but like, those kids chose to go to religious schools in the first place, you know what I mean? There's... there's not the same kind of direct incentivizing. And so this is, this is how the dissent put it: "School voucher programs differ in both kind and degree from aid programs upheld in the past. They differ in kind because they direct financing to a core function of the church, the teaching of religious truths to young children. For that reason, the constitutional demand for separation is of particular constitutional concern."

0:34:05 Thomas: Okay.

0:34:54 Andrew: "Private schools that participate in Ohio's program, for example, recognize the importance of primary religious education. They pronounce that their goals are to communicate the gospel, provide opportunities to experience a faith community, provide for growth in prayer, provide instruction in religious truth and values. History suggests not that such private school teaching of religion is undesirable, but that government funding of this kind of religious endeavor is far more contentious than providing for secular textbooks, computers, vocational training, transportation, or even funding for adults who wish to obtain a college education at a religious university. History also shows that government involvement in religious primary education is far more divisive than property tax exemptions or, you know, other things." So they're distinguishing all of those cases. And I would point out the Supreme Court doesn't say this, but you can use the vouchers to give you tuition to go to a school that teaches young earth creationism, right? That teaches abject nonsense that is motivated by religious belief.

0:35:49 Thomas: Yeah, gosh, that entanglement thing is killing me because it's like, you'd want to be able to say, well, no, I mean, if we're going to give public money to this, you have to teach actual things. But like you said, wow, that's mind blowing.

0:36:02 Andrew: Right? Yeah. Yeah. Yep. And And then it says vouchers also differ in degree. The aid programs recently upheld by the court limited amounts of aids to religion, but the majority's analysis here appears to permit a considerable shift of taxpayer dollars from public secular schools to private religious schools. That fact, combined with the uses to which these dollars will be put, exacerbates the conflict problem that underlies the First Amendment's separation of church and state.

State aid that takes the form of peripheral secular items with prohibition against diversion aversion of funds to religious teaching, holds significantly less potential for social division. In this respect as well, the secular aid upheld differs dramatically from that, and I'm not going to go on with that. But essentially, that's the argument to the contrary from over a decade ago. Zellman versus Simmons-Harris is good law, and it provides the blueprint of how you could put put into place a federal voucher program that would provide grants to the state for giving tax rebates to parents who pull their kids out of public schools. And it would be, again, it seems to me very obvious to frustrate the fundamental separation of church and state issues that underlie the Constitution. It also seems to be to be monstrously bad public policy, but there's no constitutional barrier if you follow the Zellman plan. I don't see – you would have to go to the Supreme Court and argue that Zellmann was wrongly decided. And we've talked about that, right?

0:37:40 Andrew: And I don't know – I mean, you would probably get the dissenters from Zellman, right, which were Souter, Ginsburg, and Breyer. John Paul Stevens is no longer on the court. Well, David Souter is no long on the Court either. You would get Ginsburg and Breier. You would probably gets Sotomayor.

0:37:45 Thomas: Yeah. Yeah, Sotomayor or something.

0:38:01 Andrew: Think you d have any chance of picking up – well, I mean I know you wouldn t get any chance of picking up anthony kennedy because he joined the majority in in Zellman versus Simmons Harris, and, and Kennedy, you know, we have talked about how he is a very, very reliable vote on LGBTQ issues. I continue to believe that that will be the case. I think that that's a real matter of principle for him. Uh, Kennedy has also been somewhat sympathetic to the, you know, public view, the accommodationist view of religion on religion cases. So this would have been an uphill climb under a Clinton presidency that the benefit is Hillary Clinton would not have signed a federal voucher program. But I think it's going to be a tough

0:38:10 Thomas: Yeah. Oh, boy. So

0:38:50 Andrew: Argument in the courts.

0:38:50 Thomas: It sounds, you disagree, and I think with pretty good reason, on the original Zelman versus Simmons-Harris. But you said it's good law, meaning, I there's not going to be much grounds apart from trying to get the Supreme Court to re-look at a case that's only 15 years old. And with, you know, Supreme Justice Gorsuch on the case there, it doesn't seem like like there's going to be any reason to do that or any realistic possibility of it getting re-evaluated.

0:39:17 Andrew: You would have to, right? The justification that is given on the second prong of the lemon test is that the vouchers that all they do is enable free private choice of the individuals and what you would have to do is if I if I represented the group challenging the incoming Trump Devos voucher program, which by the way I'd be happy to do, what I would do is brief up that second prong and I would say yes, Zellman versus simmons harris is is good law, and by that I mean it hasn't been overturned, right, like there's and it hasn't been strongly criticized by subsequent decisions of the Supreme Court. So in other words, it's binding precedent. And I would say, yes, but here's where it was wrong.

0:40:04 Andrew: Zellman versus Simmons-Harris presumed, or it may even be true in Ohio, I don't know and I don't care, that the vouchers were not interfering with private choice, that they were just empowering it. But this program, the vouchers are interfering with private choice by pushing, by encouraging citizens in one direction. And specifically, you would have to say it is encouraging them to religious schools over not only secular public schools, but over secular private schools. Now, you could do that. You could put together a study. But I got to tell you, the like you know, Alito Gorsuch wing of the court is going to turn up their nose and say, do we want to look at studies of what this law actually does?

Or do we Want to pontificate about what Alexander Hamilton would have thought about vouchers in 1787 when there were no schools like, you And there weren't, right? Like I've already made my case against originalism and why that's stupid. But it illustrates there's a disdain on the right for when courts look at social science research. And I just wanted to point out like this would be a perfect example of where it would make sense in light of the precedent to look at actual research, right. If Zellman

0:40:52 Thomas: Yeah. Yeah, mm-hmm,

0:41:26 Andrew: Versus Simmons-Harris says, yeah, vouchers are constitutional because they reinforce rather than sway private choice, well, that's an empirical question, right? Let's figure that out. And instead of just having a judge go, well I don't think it does, let's do the research. And the idea that let's do the research has become associated with, well, that makes you a fringe activist lefty, you know, nutball judge is just, well – speaks for itself.

0:41:38 Thomas: Yeah.

0:42:01 Andrew: So get ready. Get ready for the Trump-DeVos vouchers program. We'll revisit this when law gets proposed.

0:41:59 Thomas: It's sad. Yeah yeah. Oh man, when it inevitably happens.

0:42:10 Andrew: But look, there's only one reason you make Betsy DeVos your secretary of education, and that is to push this program. And there's a blueprint in law to do it. But

0:42:20 Thomas: But Joseph Lieberman said we need an outsider because that's the biggest asset that you could could have in this position, that's what he said, so that's yeah

0:42:29 Andrew: I don't, and, and look, we you could go off way down that rabbit trail, but that sentence is, I mean, could you imagine, right? Know, our flights out to reason con, like, well, you We have decided to have an unemployed beverage dispensing machine, vending machine cleaner pilot the plane because, you know, we really wanted to find an outsider's approach to piloting, right? Like, you Know, don't hire me to represent you in court. Like, just get somebody off the street because let's have an outsider'S approach to the law. Like, the notion that not having competence in the field that you're supposed to administer is a virtue is something that I find troublesome.

0:42:43 Thomas: Yeah it would be like appointing someone like like Rick Perry to be secretary of energy, just as an extreme nonsense example that I don't know why I even thought of that example, just hypothetically, like the least qualified person for a job. I again, you know what, that was a stupid example, I should, that would never happen, I shouldn't have said that. But you know, I was just trying to think of like an extremely unqualified qualified person that you would never appoint to that position. So sorry to use hyperbole. I just, it's, you know, whatever. Sometimes I exaggerate to make a point.

0:43:44 Thomas: All right. Well, on that once again depressing note, and that's going to be the, maybe that'll be the new normal with the Trump administration, but thanks for explaining vouchers, Andrew. I'm looking forward to using vouchers in the future to pull my future kids out of public school, I guess. I don't know. Because it seems like it's going to happen. And we'll have to move on to the rest of our show.

0:43:44 Andrew: Yeah,

0:44:10 Clip: He who questions training, only trains himself at asking questions. What?

0:44:19 Thomas: All All right. Time for our listener question for the day. And this is asked by Ryan Decker. He asks, I grew up Mormon, no longer affiliated, but growing up, I always heard about the horrible Missouri governor Lilburn Boggs and the infamous Mormon extermination order. It has always been presented as an illegal order that allowed people from Missouri to illegally murder, sorry, to legally murder Mormons. Now that I am out of the church, I'm skeptical of anything the church teaches, including how bad this order really was. Can you give a more clear picture of that order?

0:44:53 Andrew: So the answer is yes. And in fact, just this past week, I was on our friend Bryce Blankenegel's Naked Mormonism podcast. That was episode 47, which we will link in the show notes, where we talk about the history, the legality. We go through. It's a two-hour episode. You will enjoy that. Please give it a listen. And Bryce is a friend of the show. And Naked Mormonism is a great—it's a serial Mormon history. Podcast. If you like the show and you like sort of storytelling through history, I would recommend giving it a listen. Now, to answer the question kind of quickly, Mormon extermination order has some similarities with contemporary political issues. It was an executive order Order issued by the governor of Missouri was Executive Order 44 was issued by Governor Lilburn Boggs of Missouri.

0:45:47 Andrew: And it says so is it is directed to General John Clark of the militia. And it say, after the introduction, "I have received information of the most appalling character, which places Mormons in the attitude of an open and avowed defiance of the laws And having made war upon the people of this state, your orders are therefore to hasten your operation with all possible speed. The Mormons must be treated as enemies and must be exterminated or driven from the state if necessary for the public peace. Their outrages are beyond all description." And then there's, you know, some other stuff on it. But so this is an example where the church was, was not lying to you, Ryan. This was a direct order from the governor to drive Mormons from the state of Missouri and or exterminate them.

0:46:33 Andrew: Uh, and uh, and it is what it says, um, uh, people, people were killed, uh, and to sort of put that into historical context and also to talk about the legality, uh, I would, I would refer you over to Naked Mormonism, but, uh, um, but but it really did happen

0:46:45 Thomas: Have to, yeah, I'll Have to check that out. Interesting. Well, there you go. For once, the church was not lying to you. Yeah. Okay. Okay. Well, you know what time it is, Andrew? It is time to thank our patrons. And this week being new patron Tuesday here, uh, we we've got a lot to thank. I am thrilled at the outpouring. I'm thinking maybe it's a Law'd Awful Movies that people were seeking. I maybe, but for whatever reason, we've gotten a lot of people to thank and I want to start with Lachlan Jones, Dylan Bruce. Thank Thank you, Steven Devi. Thank you. Ben Goh. Rachel, Andrew's second favorite Jew.

0:46:46 Andrew: Yeah so Uh, yeah,

0:47:23 Thomas: Thank you John Eckerd. Robert Dillian. Lauren Carter. Tijin guy.

0:47:31 Thomas: Myk Dowling. The Art of Andrew Wood. Alexander Liddington. Becky. Anthoni Fortier. Nate, Nathaniel Derosier, uh, Heather Mayer, uh, Mice and Mana, Chris Stoff Lynch, Christopher Neff, Phil Ridley, and why don't you take the rest there, and he

0:47:39 Andrew: Yeah.

0:47:52 Andrew: And thank you to Tyler Wright, enjamber, Brett Khedkar, Andrew Lindsay, josh Howie, Andrew Pierce. Thank you to Rachel Laurenson, Jacob, David Boots, Eric Schaffer, Sandra Whitson. Thanks to Donald Carrick. Thank you too. Always take legal advice from a podcast, which, which you know, you, uh, thank you to Squick Thinger, Dain Melendez, Dennis and Jacob. Thank you all so much for your pledges. Uh, really does make the show possible.

0:48:14 Thomas: Just ruined our we just ended our show, yeah Absolutely. Hope you enjoyed Law'd Awful movies. And our little bonus Q&A we did. We also released that. So if you want to check out those things, become a member, become a patron over at patreon.com/law.

0:48:32 Andrew: Yeah.

0:48:44 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:48:50 Thomas: All right, Andrew, is it moment of truth time? Is it when I need to find out if I got what I think was the hardest question yet wrong or correct? Well,

0:48:57 Andrew: Yeah, yeah. So Let's, so this is TTTBE number nine. As you may recall, this question was a real estate question, and real property is notoriously bar killer. It's one of the hardest areas to study. Law students commiserate about it. And so this question, yeah, you

0:49:18 Thomas: You're either building me up To be okay with the fact that I, I got it wrong, or you're building me up to really feel proud of myself if I got it right. So we'll see.

0:49:26 Andrew: Either got it right or got it wrong, that is correct, you have you have you have interpreted my, uh, my introduction correctly. Um, yeah, so this was, uh, cousins who own real estate as joint tenants. Uh, one cousin, uh, takes out a loan and secures it against his interest in the property, uh, then the cousin dies, uh, and then the second cousin goes to sell the property. But the bank that issued the loan to the first cousin says, "Dude, I've got a lien on this property." And so the question was, will the court enforce the lien of the mortgagee against the sale of the property by the second cousin? And our potential answers were: because the second cousin's assent to the judgment lien was presumed by law. That was A. B, yes, S, because the joint tenancy was broken when the first cousin put the judgment lien on the property.

0:49:28 Thomas: Yes, that is true.

0:50:17 Andrew: And then our no answers were C, no, because the judgment lean was never valid. A joint tenant cannot file a judgment note on just that joint tenant's interest. Or D, no because when the first cousin died, the second cousin became the sole owner due to the right of survivorship as per the joint tendency, which was still fully intact.

0:50:37 Thomas: Boy, I think it's a bad sign or a sign of how difficult this question was that I'm struggling to remember what I even answered. Did I answer C?

0:50:43 Andrew: And you did did answer C. So if

0:50:46 Thomas: That's not a good sign. I don't know about that answer now. I've changed my answer. No, I'm just kidding. I answered C. see.

0:50:53 Andrew: Want to insert our drum roll, the answer is D. So You've got the right result, but for the wrong reason. And this just, I mean, like I said, the reason this is difficult is you have to know that the feature of a joint tenancy is that other person in a joint tenancy has a right of survivorship.

0:51:00 Thomas: Yeah.

0:51:19 Thomas: Yeah, That's what really killed me because I remember saying at the time, like I thought, I thought if the one cousin died, then like their whoever was kind of next on their will or whatever would get the rights to that agreement or their, their share in the property. But so specifically, I had to somehow know, I don't know, maybe from all my studying at Harvard or something like that. I would have had to know that, no, that's, it's just a feature of these agreements that the other person just gets the whole thing.

0:51:20 Andrew: Okay. Right.

0:51:50 Thomas: Oh man.

0:51:49 Andrew: Yeah. So what happens Is, and what makes C wrong is you can secure your property. You can put up your interest in the property as collateral for alone uh, but then the creditor, when you die, uh, your interest passes immediately via the right of survivorship to the uh joint, to the other joint tenant holder. And so then there's no property left in Let's say Thomas's name.

0:52:00 Thomas: Yeah. Right. Oh, so that's what threw me off. So, so the reality is that a lender probably just wouldn't do that, right?

0:52:19 Andrew: Yeah. Yeah. Right. Yeah. Or, or would lend, you know, for a different period of time or what whatever, right, but it would just, it's, it's a bad

0:52:25 Thomas: Ah, yeah. So that threw me out because I thought it would be a no answer. Is that a no no answer or yes answer. I can't remember. Okay.

0:52:31 Andrew: Yeah. It is a no answer.

0:52:37 Thomas: I thought it would be a no answer. And I just didn't, I just thought I got the survivorship thing wrong. I just figured it would go to the family. So that, that just led me to like, okay, therefore it would be C, but I, yeah, that, so that was hard. Another reason why that was so difficult is If, if it's true that it would just go to the other person and, and then therefore whoever, uh, find the right, whoever lent the, the, the cousin who died, the deceased cousin, you know, whatever it was, they would have just be, Know, out you of luck. That seemed weird to me, but it turns out they probably just never would have made that loan in the first place.

0:53:10 Andrew: Right.

0:53:11 Thomas: So, wow. That was a tricky one.

0:53:11 Andrew: Right. But they can right And, and, and, look, like there are reasons why you might loan to someone even though there are questions about the collateral. Right, like, so in other words, if the bank determined that uh cousin number one had the ability to pay, uh, they might loan, they might loan that person the sum anyway. It's collateralized. Maybe they don't get to collect on the collateral in the event that the cousin dies. But suppose what's not in the fax are the ages of these people, right? So suppose cousin number one is 35. He's in good health and making good money as a podcaster, let's say, unlike us. And so the bank might say, yeah, yeah, you can probably pay this loan even just on your, you know, ordinary credit, but we'd also like to get some collateral. And he says, oh, well, I'm a joint tenant in this particular piece of property. Okay, well you know what are the odds that you're going to die before this loan term comes due?

0:53:21 Thomas: Yeah. Yeah. Yeah. Yeah.

0:54:13 Andrew: You know, they're pretty low and then the bank guesses wrong, right? So it's not It's not necessarily the case that, you know, you would never loan. I don't, I mean, this is all speculation. I am not a loan officer, although my sister is, so I could ask her about it. Yeah, so tough question, really, really tough. The result correct.

0:54:28 Thomas: Oh, well, that was a really tough one. Yeah, you this

0:54:37 Andrew: Incorrect. Six of nine, sixty six percent. Yeah, so

0:54:37 Thomas: Puts me at six of nine. Hey, that's right. Wasn't my target 65%? All right. Hey. 10 is a somewhat reasonable sample size. If I can keep this trend going, I am on my way to practicing law in a very short time. Opening up my own practice and starting a new podcast where I'm the legal expert. No, that's not happening.

0:54:45 Andrew: Yep.

0:55:02 Thomas: None of that is happening.

0:54:56 Andrew: That would be great. Oh, no. Oh, Oh, I- we should do that. I mean, anyway, yeah. And

0:55:08 Thomas: All right. Well, thanks to all who participated. And Andrew, who was our lucky winner for TTTBE number nine?

0:55:15 Andrew: Yeah, Thomas, this week's winner is Tiny Warrior. This is at Diddling Quokka on Twitter, which that's a fantastic name to begin with. And Tiny Warrior says, "It has to be option D. If not, I killed my cousin for no reason." So for getting the question right and for having the best possible definition of why he got the question Question right, big shout out to at diddling, D.I.D.D., L.I.-N.G., Q-U-O-K-K, at Diddling Quokka, Tiny Warrior, who maybe shouldn't have confessed to that online. But for your confession, we will award you this week's win.

0:55:56 Thomas: All right, well, that is it for today's show. Thanks so much for joining us. Thank you so much to our patrons over at patreon.com/law. Thank You to Andrew for being such an amazing expert week in, week out, Tuesdays and Fridays. And we will see you next time.

0:56:21 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.