OA51: The Grimm Reality About Transgender Bathrooms

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 51. I'm your host, Thomas Smith. That over there is Andrew Torrez, Esquire. How are you doing, Andrew?

0:01:27 Andrew: I'm great, Thomas. How are you?

0:01:29 Thomas: I'm great. I really enjoyed that new intro we definitely just heard, and I hope the listeners did as well. That is a great pick.

0:01:35 Andrew: Yeah, I really enjoyed segment number three. Yeah,

0:01:41 Thomas: It's between two and three.

0:01:42 Andrew: Obviously. The others are good.

0:01:44 Thomas: Yeah, it's one of those. No, we'll get that, all I haven't done it yet as of recording this, but of course you will have heard it, so I guess you're welcome, Andrew, that's what I'm trying to say, Andrew. And listeners, you're welcome for the new intro, all right, we got a hell of a show planned for you today oh return of the hit segment uh Trump Trump impeachment countdown, I guess it's going to be, we'll see how, how much further, uh, the yodeler has gone up the hill or whatever that was. Is that what it is? Is that's what it's doing?

0:01:45 Andrew: Oh, thank you. Yeah.

0:02:14 Thomas: Yeah. It's a mountain. Oh yeah. Right. Yeah. It's like scaling a mountain okay. So we're going to check that out as our first segment right now.

0:02:14 Andrew: It's a mountain. That's a little.

0:02:23 Clip: Because people have got to know whether or not their president's a crook. So you're not aware of any contacts during the course of the election? How many times do I have to answer this question? Can you just say yes or no on it? Russia is a ruse. I know you have to get up and ask a question so important. Russia is a ruse. Well, I'm not a crook.

0:02:41 Thomas: So, Andrew, of the many impeachable offenses, potentially impeachable offenses that, uh, we could examine with Trump, we'll look at a few. You, I guess, first off, the new Muslim ban, as you likely know, as everybody likely knows by now, although it's gotten lost in just a deluge of other horrible stories, he rewrote, or somebody rewrote for him, the Muslim ban, the executive order, and he dropped Iraq out of the list for some reason. I'm not, I guess they're fine now. I don't know, really know how that works. And then, uh, he also got rid of the stuff that I think was problematic, which was like the current green card holders and all that.

And I noticed on major media sources, including the New York Times, and uh, then the, and others, pretty much everybody, actually, I saw a lot of headlines I was kind of disappointed with the mainstream media, or lamestream media, as we call them, no, uh, that, that they were reporting it as though a headline I saw was, "Don't be fooled, the Trump's immigration ban is still unconstitutional." And I thought, well, you need to listen to Opening Arguments, because I, first off, I don't think the first one was largely, that the first one was large, largely constitutional, is just the couple mess ups they had in the rollout of it was bad. And now this one, my lawyerly opinion is that I think it probably is constitutional. So let's hear from the real lawyer now. Andrew, what do you think?

0:04:13 Andrew: Yeah I agree with your considered legal opinion here, Thomas, we're going to link a couple of those articles, including the don't be fooled headline, which you and I both saw, as well as the text of the latest executive order in the show notes and the text of the Ninth Circuit's opinion, which basically gave the Trump White House. I mean, when we did the episode, I mean you and I sort of concluded. We said, hey, look, like the Ninth Circuit is telling the Trump administration here's how you can fix the Muslim ban and have it be constitutional. And, you know, we sort of debated back and forth whether, you Know, Trump's desire to get it done or his arrogance, you Know, which one would would take precedence and and, you you know, apparently, uh, desire to implement horrible policy took precedence over,

0:04:25 Thomas: Yeah. Oh, yeah. Right. Yeah. Well,

0:05:06 Andrew: Over desire to win in court.

0:05:06 Thomas: And as and as people have pointed out, if you remember the rationale behind the first one being like instantaneous was, well, if if you delay it a week, bad hombres are going going to get in. And Then this one, because, uh, part of, I think what they needed to do to make it be legal was, you know, give people a heads up. It's, it's, this one's delayed a week. So I think it took effect. It probably will have taken effect by the time you're hearing this, but I like how that, that logic no longer applies. Like before it was emergency. You had to get this in because terrorists were just filling our streets, just flooding. There's a, there's actually a big hose that was just a terrorist hose and it was in the on position and Trump's genius policy is like we need to turn this terrorist hose to the off position.

0:05:19 Andrew: Right. Yeah. We, we, we got to shut that off like your credit. So, yeah.

0:05:53 Thomas: Reference to Law'd Awful Movies number four, which everyone should check out over on patreon.com/law, and yeah, but but now all of a sudden, uh, I guess that's not true because he's giving us a weak notice, uh, and all this stuff they

0:06:09 Andrew: So, um, the, so here's what the revised executive order does. Um, number one, as you've alluded to, it exempts Iraq and there was a long, uh, paragraph. It is paragraph G on page five of the executive order that explains that our military presence and, quote, the close cooperative relationship between the United States and the democratically elected Iraqi government, blah, blah. Means that in sort of of their judgment, they have taken Iraq off the list. I don't know what other reasons there would be for removing Iraq from the list, but in any event, Iraq was removed from the list. That has nothing to do with the constitutionality argument. What does.

0:06:55 Andrew: Section three is the scope and implementation of the suspension. And they say, subsection A, scope, the suspension of entry pursuant to this order shall apply only to foreign nationals of the six designated countries who, number one, are outside the United States as of the effective date of this order. Number two, did not have a valid visa at 5 p.m. Eastern Standard Time on January 27th, 2017. And number three, do not have any valid visa as of effective date of this OK, so that's the first part. And then Section B is exceptions. And it says the suspension of entry will not apply to. And if it is then defined as number one, any lawful permanent resident of the United States, number two, any foreign national who is admitted to or paroled into the United United States on or after the effective date of this order.

0:07:46 Andrew: Number three, any foreign national who has a document other than a visa valid on the effective date or issued at any date thereafter that permits him or her to travel to the United States and seek entry or admission, such as an advanced parole document. Number four, any dual national of a country designated under Section 2 of this order when the individual is traveling on a passport issued by a non-designated country. OK, so I think that's clear. But that is, if you are a dual citizen of both Iran and a country that is not on the banned list, dual nationality citizens are allowed to enter into this country.

0:08:21 Thomas: Are or aren't?

0:08:22 Andrew: They are, they are part of the exception. So five, any foreign national traveling on a diplomatic or diplomatic type visa. Uh, and then number six, any foreigner national who has been granted asylum, any refugee who has already been admitted into the United States, or any individual who's been granted withholding of removal, advanced parole, or protection under the Convention Against Torture. So, revised section completely eviscerates the Ninth Circuit's due process argument? If you remember, when we talked about the Ninth Circuit's decision not to grant a stay of the lower court's decision, uh, the primary analysis there was the likelihood of success on the merits prompt, and the Ninth Circuit said, um, there are two areas where we think the government has not demonstrated, uh, necessarily a likelihood of success on the merits. The first part was the due process argument, which, um, you and I evaluated, we, we said, look, this is the strongest argument.

0:08:23 Thomas: Okay. Yeah.

0:09:24 Andrew: These are individuals who can assert constitutional rights because they have a lawful right to be here in this country, green card, right? Visa holders, permanent residents, those who have been admitted as part of the refugee program, all of those. And so they've all been exempted now, right, like that was, I mean, you heard me me just read it. Anybody who has any kind of manifesting right to make an individual claim has been exempted from the new executive order. So that knocks out the best part of the argument. The second argument that the Ninth Circuit evaluated was the establishment clause equal protection clause argument. Right. That said, the states argue that the executive order violates the establishment and equal protection clauses because it was intended to disfavor Muslims.

0:10:16 Andrew: Right. And this was the evidence that included going to Giuliani and saying, hey, how do I keep out the Muslims? And, you know, Giuliani saying, yeah, well, we'll cook up something for you. But, right, here's what the Ninth Circuit said about that argument. Right? Right. They said the state's claims raise serious allegations and present significant constitutional questions in light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the government has not met its burden of showing likelihood of success on the appeal of its arguments with respect to the due process claim. We reserve consideration of these claims until the merits of the appeal has been fully briefed. The right, Ninth Circuit was signaling there that, uh, the due process argument really is the strong argument here, um,

0:10:25 Thomas: The Right.

0:11:03 Andrew: They said, hey, look, we want to reserve consideration of this First Amendment argument, um, but it's the due process argument that that really is the basis of our finding of, uh, likelihood of success on the merits, or lack of likelihood of success of the government on the merits. Okay, that's been fixed, so all of the arguments that are remaining, the point, point of going through all of that is the only argument that's remaining is the First Amendment argument, which is this order, regardless of what it says, is intended to disfavor Muslims. It's intended to be a Muslim ban, and religious discrimination is the sole point or the primary point of the executive order. Now, how do we evaluate that as an argument?

0:11:48 Andrew: As we have discussed in our prior episodes on the First Amendment, to prove that a statute has discriminatory intent under the First amendment for infringing on the free exercise The case is the City of Hialeah case, right? It is the Church of Lukumi Babalu Aye versus City of Hialeah, which involved the practice of the Santeria religion. And I want to read a little bit from that case, and so basically what happened was a guy bought land in the City And said, want to open a Santeria church? And everybody in the city of Hialeah got together and freaked out and said, we can't have people practicing voodoo down here in our city. We got to stop that. And so they passed a series of ordinances, and the ordinances—I'm going to read a little bit on its ordinances criminalized, quote, sacrifices of animals for any type of ritual, but exempted kosher slaughterhouses, regular slaughterhouses.

0:12:07 Thomas: Oh.

0:13:01 Andrew: Pest extermination, euthanasia of stray animals, you know, hunting, fishing, I mean, all that sort of stuff. It was very, very clear. And then, and that in and of itself was not enough. What was dispositive for the Supreme Court? And I should add, animal sacrifice, yeah, I mean, it's sort of integral to the practice of Santeria to, um, sacrifice live animals. Okay, and, and you know, that seems a little weird, but, like, you know, uh, the animals are, uh, sacrificed and then, you know, cooked and eaten afterwards, right, and there is, there are plenty of, I mean, I mean, I know there's a ritual that involves, I think, like, swinging a chicken. I mean—you know, look, like, Yeah, it's so—I mean, I'm an atheist, you're an atheist, so all religious rituals, like, they all kind of seem a little bit weird. I get that, you know, animal sacrifice kind of seems a littlebit weird, um, but, uh, you know, we're not talking about, like, leaving bloody entrails out in the street or whatever.

0:13:42 Thomas: Yeah. Yeah.

0:14:02 Andrew: It's just, you know, whatever it's a part of their religious, uh, beliefs, uh, it's an integral part of their practices, and saying you can't sacrifice animals, live animals, is as fatal to the practice of Santeria, in my understanding, uh, as would be saying you can't serve alcohol would would be fatal to the practice of Catholicism and many branches of, of Christianity. Right. And you could, you could very easily make the same argument. Like, you know, I don't, I don't often, I'm not in the habit of, uh, you know, serving underage kids alcohol, but, you know, priests can do it and it's just fine. Um, so, uh, what happened?

0:14:02 Thomas: They They really let that power go to their head, but anyway, but so

0:14:40 Andrew: Yeah. So, um, what happened in passing this animal sacrifice statute was the county council in Hialeah made it very clear. Here's what the Supreme Court said. And I've actually looked up some of the testimony. It's the Supreme Court quoted this in the least hilarious way. So, you know, as the Supreme court is want to do,

0:15:03 Thomas: Only marginally different from the most hilarious way for for lawyers. But anyway, oh

0:15:06 Andrew: Yes, for lawyers. Yeah. The minutes and taped excerpts of the June 9th session, both of which are in the record, evidenced significant hostility exhibited by residents, members of the city council, and other city officials towards the Santeria religion and its practice of animal sacrifice. The public crowd that attended the June 9th meetings interrupted statements by council members critical of Santería with cheers and the brief comments of Pichardo, the guy who was trying to start the church, with taunts. When Councilman Martinez, a supporter of the ordinances, stated that in pre-revolution Cuba, quote, people were put in jail for practicing this religion, end of quote, the audience applauded. Other statements by members of the city council were in a similar vein. For example, Councilman Martinez, after noting his belief that Santeria was outlawed in Cuba, questioned, quote, if we could not practice this religion in our homeland, why bring it to this country?

0:15:59 Andrew: Councilman Cardoso said that Santeria devotees at the church are, quote in violation of everything this country stands for. Councilman Mejides indicated that he was, quote, totally against the sacrificing of animals and distinguished kosher slaughter because it has, quote a real purpose, end of quote. The quote Bible says we are allowed to sacrifice an animal for consumption, he continued, but for any other purposes, I don't believe the Bible allows that. And then finally, the president of the city council, Councilman Echevarria asked, what can we do to prevent this church from opening?

0:16:20 Thomas: Man Yeah.

0:16:35 Andrew: Um, and then they introduced testimony that Santeria was a sin, that it had the worship of demons. I mean, okay, you, you get my point, right? This is pages and pages in the record of people saying, hi, I am a councilman in the city of, uh, Hialeah, Florida. And the purpose of this neutrally seeming ordinance is to persecute Santería into non-existence and prevent this church from opening. That's the kind of evidence that you need to prevail on a First Amendment free exercise claim based on animus. And I elided over this when I was reading the sections of the revised executive order. But what it does is the first seven pages are full of findings regarding the six nations from which the travel ban is to apply.

0:17:26 Andrew: Look, we all know what this is. Right. The question that is going to come down is, this current executive order neutral in its application, or is it religiously motivated in the same way that the city of Hialeah case found that that that that the animal sacrifice ordinance was religiously motivated? Look, I am all for—the state of Hawaii has already resumed a lawsuit or initiated a new lawsuit on the basis of the new executive order. I am all for making this argument. If the, if the state of Hawaii wants to hire me, uh, I will gladly research the hell out of it and make the argument and

0:18:07 Thomas: State of Hawaii. Are you listening? Do you listen to the show? Someone make sure the state listens to the show. But what about the thing? So I, I guess I still wasn't sure, but

0:18:08 Andrew: Yeah. Yeah. Yeah. So So I think it's a good, so I think it is a good argument, right, but if you ask me in terms of likelihood, it, I mean, you, you heard me go through it, right, at the end of the day it will not surprise me if the courts say we think that there is probably some history of animus and discrimination, but on the whole we defer to the government's finding that the primary purpose of this is not to discriminate against Muslims, but is to protect against terrorism, and the fact that that that's overlapped yeah, sure, go ahead, yeah.

0:18:42 Thomas: Hold on. I still don't understand why. Cause I thought the law gives him the right to do it on any basis. ISIS, so how is it that, like, let's assume he 100% is merely discriminating against Muslims, the somehow, even though the law says he can do it for any reason, the law said he can restrict any group of people for any reasons coming into the country, you think he wouldn't be able to do that, right?

0:19:08 Andrew: Right, because remember the Constitution sits atop of any particular law, right, so the The president is authorized by a grant of authority from Congress that dates back to 1954. Yeah.

0:19:13 Thomas: But prospective immigrants Aren't, do, are they protected by the Constitution, people who aren't citizens?

0:19:23 Andrew: No.

0:19:23 Thomas: I

0:19:24 Andrew: And that's a that's the distinction between the due process argument, in which real individuals were voicing real claims, versus the the First Amendment argument, which says the government is prohibited from enacting laws that favor a particular religion. Right. So that's the argument. That's what you have to prove here. You have to you have to prove that the purpose of this executive order is to advance Christianity or to inhibit the Muslim religion. And that's a hard argument, right?

That's the whole point of going through the City of Hialeah case, right, especially because there is a valid argument that that says, if the government has a rational basis for segmenting out particular Muslim majority nations on the grounds that it believes that there is a connection between those nations and terrorism, that, I think, would be sufficient to make this a law of neutral facial applicability, even if there is some, you know, sort of religious animus that goes into it, right? Right. Like even if the rational determination, remember, we talked about for purposes of equal protection, you know, you have kind of three different standards. You have the rational basis standard, you have the heightened scrutiny standard, and you have the strict scrutiny standard.

0:19:45 Thomas: Understand Now Okay Right Yeah Sure

0:20:49 Andrew: And essentially, the way it works is strict scrutiny means your bill, your proposed legislation, or in this case, executive order is almost always going to fail. And rational basis means that your legislation, or in this case, executive order, is almost always going to succeed. So the way in which you get to that is you answer the threshold question, is the intent of this executive order to disfavor the Muslim religion?

0:21:17 Andrew: Can you make that argument? You can make that argument. Are The folks who are making it as confidently as the New York Times is making it, are they overplaying their hand? I think they're overplaying their hand. I certainly would listen. I would hope that there would be better evidence. But what we have now of the... Because remember, now we also have a revised executive order. So part of the prior evidence was in drafting the first executive order, Trump went to Giuliani and said, hey, you know, help me get the Muslims out of here. I am sure that they are going to introduce evidence that this next executive order, that everything was designed with, no, no, hey, help me stop terrorism. I absolutely in no way do I wish For This To right

0:21:20 Thomas: Yeah Did they Have To stage Like a fake series of scenes where they're like, you know, that Muslim ban was a bad idea, scratch All that, let's Do a different thing now, Giuliani What Do you say And then like Read Your lines Read your lines, yeah They

0:22:11 Andrew: Yeah I Sure I Sure Hope no One is recording This Yeah, yeah No, look, remember, I mean, we we talked about this, the outcome of the City of Hialeah case was they lost on that case, and then, you know As Soon As The right They passed a different Law prohibiting animal sacrifice, that, you know, on public health. And and the whole point of, I mean, this goes back to our discussion of originalism and Scalia and Employment Division versus Smith. The whole point of Employment Division versus Smith was to say, you no longer have a First Amendment claim for infringing on the free exercise of your religion, if the law is neutral in its applicability, uh, and neutral on its face. Uh, I'm really glad you asked the question. Um, we, we've moved from, what, what the revised executive order does is it exempts the folks who have a direct claim under the Constitution, uh, and instead asks the, um, question that can only really be enforced kind of by the state, which

0:22:30 Thomas: Just Passed A different Law Yeah Right

0:23:18 Andrew: Is to say, there's no one individual withstanding. It is more a question of, no, no. The federal government has passed a law that impermissibly violates the First Amendment because it targets religion. And then the states will have standing for the same purpose, on the same grounds that they did in the original Ninth Circuit case, which is to say if Hawaii or any other state wants to have emigres from those six nations, going to be deprived of that opportunity. And so they won't be there to work in the various jobs that those states need filled. So the states clearly have an interest, but you no longer have individuals with a direct constitutional claim, which as we went through, as even the Ninth Circuit said, that was the better argument. Think we've kind of run this to ground,

0:23:23 Thomas: Yeah All Right, well, that's it for the new Muslim ban. I, I I agree with your considered considered opinion, Andrew, that makes sense. I'm glad you clarified the two different types of arguments, though, because I was wondering how, because I was thinking of it more in terms of like, you know, discriminating, and I thought, well, if these aren't citizens, they don't really have constitutional rights, but it makes sense that the First Amendment prohibits you, the government, from just making a law in general that favors a religion. So that's, that clears that up for me. But I have another, it's sort of Trump impeachment related question that a lot of people have been asking. We'll go ahead and tackle that in the C segment today. But it'll be, this is like a to be continued. So so over the C-segment, we'll see if if there's another yet another reason why Trump might be able to be impeached. But for the time being, for

0:24:52 Andrew: Excellent. Stay tuned. Yeah, all of our listeners who bail out halfway through, listen to the whole episode this time, you'll like it.

0:25:03 Thomas: The Time being, we better get over to our main segment.

0:25:10 Thomas: All right, time for our main segment today, Andrew, and this one, this is a a peculiar little thing here, I didn't totally understand so I'm glad you're going to clarify it for us. There was a transgender kind of bathroom rights sort of case that the Supreme Court was looking at. It was the Grimm case, and I saw in the headlines the other day that they're no longer going to do that. What's going on there? How did that happen? Maybe you can explain the technical details of how that worked out.

0:25:40 Andrew: Yeah, sure. Um, so yeah, this is an, an interesting, uh, kind of intersection with, um, legal procedures, uh and substantive rights. So I'm, I'm glad we're, we're tackling it. Um, here are the facts of the underlying case. There is a male student in Virginia, and the Gloucester County School Board had a policy that required students to use the bathroom that was associated with their genitalia. So this student who possesses the, apparently according to the pleadings, identifies as male, but has female genitalia, was initially required to use the women's bathroom.

0:25:40 Thomas: Yeah.

0:26:33 Andrew: Later, the school decided that as an accommodation, they would, quote, allow this student to use an entirely separate bathroom, that's one of the things that only an administrator could come up with. I mean, like the could, I mean, could you imagine, you know, you think about the level of sort of lack of understanding of trans kids in public schools to begin with and to then say like, "Oh, no, no. Don't worry. Like that person will go use their own bathroom all on their own."

Like, I mean, it just I can't imagine, how much worse that would make the problem, how much that would reinforce, like, all of the worst stereotypes against trans people. He sued, and he sued for injunctive relief, declaring that the policy was invalid under a statute that is commonly called Title IX. So what is Title IX? Title IX is a 1972 amendment. It is now codified at 20 U.S.C. 1681 subsection A, and it says, no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.

0:27:05 Thomas: Yeah.

0:27:56 Andrew: And then there's some exceptions, not really important. But you will notice that the defining feature of that statute is on the basis of sex, right? And so the question is, what does it mean to discriminate on the base of sex? And there are two strains of argument that that have up with respect to Title IX and other similar statutes, I bet you could probably take a pretty good guess as to what they are. So there is sort of the more conservative, more originalist strain, which says, look, we have anti-discrimination statutes that apply to sex, sexual orientation, and gender identity. The legislature knew how to use those words. They didn't.

0:28:42 Andrew: They used the word sex, which is a very different word and which has the ordinary dictionary definition of meaning biological sex. Therefore, this only prohibits discrimination against individuals on the basis of their biological sex and does not prohibit discrimination on sexual orientation or on the the basis of gender identity. Similarly, you can imagine the other side, courts that say, "No, look, act was meant to enshrine a principle of anti-discrimination," and discrimination against trans people or against LGBTQ individuals more generally is discrimination on the basis of their sexual characteristics, right?

It is the fact that we find somebody who is, in the example of individuals who are homosexual, to say, "We object to your relationships because you are a woman with a woman and not a man with a a woman," and that's discrimination on the basis of sex. Similarly, we object to the fact that you are presenting yourself as a woman because you are, in biologically quote a man, because of your sexual characteristics. Whereas we would not have that same objection if you were biologically woman. So again, you know, it's a way of saying the larger principle at stake here is an anti-discrimination principle that prevents you from singling

0:29:31 Thomas: Uh-huh. Yeah.

0:30:10 Andrew: People out on the basis of sex

0:30:10 Thomas: This was sort of like the arguments that gay people had the right to marry, like a gay man had the same right to to marry a woman that a straight man had, like that kind of argument. Yeah.

0:30:11 Andrew: Yep. Yeah. Right, right, exactly. And and and so, um, kind of without counting it up, um, uh, there there were dozens, perhaps as many as a hundred, uh, decisions that have come out of various uh federal courts interpreting the definition of the word sex in Title IX, and they split roughly 50-50, okay? Yeah, right. So there is tremendous amount of uncertainty over what that means. So in 2016, on May 13th, 2016, Obama's Department of Justice, the Civil Rights Division, issued a letter, okay, and this was the opinion of the Department of Justice as to what we think the word six in Title Nine in that statute means. And here's what it says. OK, the departments treat a student's gender identity as the student's sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity. The department's interpretation is consistent with courts and other agencies' interpretations of federal laws prohibiting sex discrimination.

0:30:40 Thomas: Yeah.

0:31:32 Andrew: And then there's a footnote and then there is a citation to some of the cases that I talked about that went that way. So all of that is true. That interpretation is inconsistent with what many courts have found. It's also inconsistent with many courts. And the agency we've talked about executive agencies having the authority to promulgate regulations and describe their interpretations the authority to do that. Right. So so they did that. Fast forward to 2017 and the Trump Department of Justice has rescinded and withdrawn this memorandum. OK, so this is not—it's not an executive order, it was a binding interpretation of how the Department of Justice viewed its own regulations.

0:32:22 Andrew: Like, in other words, if there is to be a lawsuit, the internal regulations of the Department of Justice are to say, "We are going to take the position that we will move forward with prosecuting violations under Title IX if your school is not treating trans students equal with cis students. And if you are, then we will hold that if you're treating those equally, then you're complying with Title IX, right?" Right. So that's that's the importance of the guidance. How does it affect this case? OK, so when this case, Grimm versus Gloucester County School Board, got to the Fourth Circuit, the Fourth Circuit used a doctrine called the Auer deference, A-U-E-R.

0:33:10 Andrew: It's based on a case called Auer v. Robbins that is related to the doctrine of Chevron deference, which we've talked about in some of our previous cases. So Chevron Deference says interpretation of a statute when the statute is ambiguous. Right. Auer is related. It says courts must defer to an executive agency's interpretation of their own regulations if the regulations concern a statute that is ambiguous. Right. So unlike in the Chevron case, right, you have a situation where an executive agency is empowered to promulgate regulations. Here, there were just sort of internal guidelines, but the Auer case says, yeah, yeah, we defer to those internal guidelines as well, right?

So it's part of the larger principle that says courts defer to executive agencies when they're interpreting stuff, Now, right. That's the core. So the Fourth Circuit said, obviously in in light of the letter, the Fourth Circuit said, What they do is they first say that Title IX is capable of multiple interpretations, And then they say, we will defer to the Department of Justice internal guidelines as to how to interpret this ambiguous statute. And it says sex means gender identity. Therefore, you're obviously not treating this trans male student equivalent to other male students because you're requiring him and only him to use this special weird bathroom. So it's a violation of Title IX.

0:33:29 Thomas: Okay.

0:33:59 Thomas: So

0:34:45 Andrew: The school district petitioned for writ of certiorari to the Supreme Court to hear the decision. Supreme Court granted cert and was scheduled to hear the case. Now, um, what did they do? The Supreme Court said, um, given that the DOJ has pulled the letter, right, the basis for that Fourth Circuit opinion is no longer valid, there are no longer regulations to which they can defer. So the Supreme Courts said, we are going to vacate, that is to make null, the Fourth Circuit's decision below, and we're going to remand instead of granting cert. Yeah, go ahead.

0:35:19 Thomas: That's That's A curious thing that I I didn't get, so the the Supreme Court can vacate a circuit court's opinion? Good.

0:35:26 Andrew: It is within the court's power, not only to reverse a lower court's opinion, but to vacate an opinion and also to remand an opinion. So when the court assumes jurisdiction over a case by granting a writ of certiorari, right, which they did in this case, they can direct what happens with that case afterwards, right? So you will often see, when you reverse, you will often see a case gets reversed and remanded all the way back down to the trial court level for further proceedings that are consistent with this opinion, right. So, for, think, think about this in the Amendment context of the prohibition on self-incrimination. So suppose that a piece of evidence is allowed in, the objection that it was illegally procured.

0:35:26 Thomas: Yeah.

0:36:17 Andrew: It goes all the way up to the Supreme Court. The Supreme Court says, no, this is definitely coerced. We're going to throw out that piece of of evidence. You don't have a trial before the Supreme Court, right? Like the Supreme Court says, we're going to remand this case all the way back down to the trial court level for a new trial, for proceedings that are consistent with this opinion, without the key piece of evidence in it.

Now, on a practical basis, when you win in those cases, they often just drop the case at that point. But yeah, so that's sort of a lengthy answer to the Supreme, Supreme Court can do what they did here, which is to throw out the Fourth Circuit's opinion, to say this is no longer valid, and then remand it back to the Fourth Circuit for proceedings that now evaluate, yeah, well, and I'll say it this way. Look, in terms of, there's a real, I always try to be cognizant of the fact that there's a real human cost here, right?

There is at present a trans male student who is being for, because there's no stay, right, like the court failed to grant an injunction from putting the policy into effect. So the policy's in effect, and this poor kid has been forced to use the the weird bathroom. And anything like this that is delaying, you know, has a real human cost, to that person. And, you and, Know, it's easy for me to, you render, kind of an abstract, judicial opinions, but but I am I try to be cognizant of the fact that that they're real people here.

0:37:01 Thomas: It just feels a little passive aggressive. Like, yeah, that Try again, guys. That, uh, how about you, how about she do this case over again? No, it makes sense. It's just funny, was

0:38:00 Andrew: That being said, if I were on the Supreme Court, I think I would have come down the same way, right? It is very, very clear. We're going to link the opinion in the show notes. The Fourth Circuit's opinion entirely grounded. Yeah, it was dependent on the letter, and the letter's not there, and there's no doctrine to which to defer. And it is better if you want the Supreme Court to tackle the issue of transgender rights under Title IX head on. You don't want them to be doing it from an opinion that is presently indefensible. You want a good record to come up from the Fourth Circuit.

0:38:10 Thomas: Dependent on something that's no longer in place. Yeah.

0:38:36 Thomas: Yeah.

0:38:36 Andrew: Now, so let me answer that implicit question that I've just teed up. What are we likely to see from this panel from the Fourth Circuit? And what are we unlikely to see From the Supreme Court? Because the second cost of this delay is by the time it comes back up, we will probably have Supreme Court Justice Neil Gorsuch. And I am very confident that Neil Gorsuch is not going to hold that the that, yeah, that would look, we know he's a conservative activist. We've linked his snotty little article already. We have talked about how he speaks. I mean, he writes for the National Review. He speaks at conservative interest groups. He's not somebody without an interest, without a dog in this fight. So I had a pretty good idea where Gorsuch is going to come out.

Um, do I think, the, where do we think the Fourth Circuit is going to come out, where do I think the Supreme Court is going to come out, I would turn you to uh the analysis, this is all dicta, because the Fourth Circuit, like I said, their opinion was based on deference to the Department of Justice.

Um, they, but but the Fourth Circuit went out of their way in the majority opinion to say, um, uh, it is not clear to us how the regulation would apply in a number of situations, even under the board's own biological gender formulation, right, because remember the school district said you have to use the bathroom that corresponds to your genitalia, for example, which restroom would

0:38:36 Thomas: Yeah.

0:39:00 Thomas: You're probably not trans friendly. Yeah. So

0:39:55 Andrew: A transgender individual who had undergone sex reassignment surgery use. What about an intersex individual? What about a sex reassignments surgery use, what about an individual born with X

0:40:01 Thomas: Then you have to go to the point where you're inspecting people's genitals to like just, can the school really do that? Sure.

0:40:02 Andrew: Yeah yeah yeah well let me, let me finish, these are the hypothetical question. What about an individual born with XXY chromosomes? What about an individual who lost their external genitalia in an accident? The department's interpretation, again, we sort of go back to the hour problem, resolves ambiguity by finding that in the case of a transgender individual using a sex-segregated facility, the individual's sex as male or female is to be generally determined by reference to the student's gender identity. So I think that is a reasonable I could be wrong. It's going to go back to the same panel, but I think you're going to get the Fourth Circuit concluding on the merits Title IX applies to gender identity and not just biological sex for the arguments raised there. When it comes to the Supreme Court, I mean, just sort of as quickly as I

0:40:10 Thomas: Sure. Yeah. Is

0:40:57 Andrew: Can, yeah, look, like if they granted cert the first time to tackle the question, they're going to grant cert again. Same four votes are still there. And this is where I would point out Anthony Kennedy has been—there are four liberal justices on the Supreme Court that I feel pretty confident are going to rule that Title IX's use of sex includes gender identity. Anthony Kennedy has a long and consistent record of voting with the liberal wing of the court on LGBTQ issues. And so I I recognize that there is a risk with Gorsuch being on the Supreme Court, but I think we're going to find the same lineup that we saw in Obergefell, which is to say a 5-4 majority with Kennedy voting with the liberal wing of the court, and strenuous and impassioned and probably sarcastic

0:40:57 Thomas: This something that you think they would definitely look at, they wouldn't just be satisfied with the Fourth Circuit's opinion, they already looked at once, I guess. Yeah. True. Yeah.

0:42:00 Andrew: Dissents from Gorsuch, Roberts, Thomas, and Alito. That's my prediction. We'll see how it bears out.

0:42:07 Thomas: Yeah. This one, yeah. I'm really curious to see how this works out. It's certainly an important issue. And like you said, important, especially to the individual who's kind of in purgatory right now, not able to, uh, to, Function as they should be able to at uh... at their own school. So.

0:42:19 Andrew: Yeah, yeah. Being in high school is hard enough. Being trans is hard enough. Being trans and in high school is hard enough without having the school district singling you out for persecution. I can't imagine. Just to go sort of from the personal back to to kind of a general jurisprudential question. We have talked about how one of the criteria for granting cert at the Supreme Court level is to resolve a split among the circuits. And this is a textbook example of that, right? Like, I went through the history, you know, half the cases say Title IX sex means biological sex and half the causes say Title IX sex includes sexual orientation or gender identity. And so it's what you would expect the Supreme Court to decide.

0:42:26 Thomas: Yeah. Yeah.

0:43:10 Thomas: Alright. Well, we'll keep an eye on it. Thanks for taking us through all that, Andrew, and onward to the rest of the show.

0:43:15 Clip: He who questions training, only trains himself at asking questions. What?

0:43:23 Thomas: So, Andrew, I wanted to ask you this. Lots of people have been asking. It's something we've kind of talked about before, actually, but I want, you know, we cover so much in this show, I think it would be good to do a little bit of review, because you've answered the question about whether or not someone could sue Trump for libel. We've answered that before. However, I want, now that we have a good tangible example, which is Donald Trump tweeting that that Obama wiretapped, in quotes, by the way, I love that, tap, it's so stupid, wiretapp Trump Tower, which doesn't even, none of it makes sense. But anyway, since you, me, and everybody in the entire United States who isn't a Trump supporter knows this is complete nonsense, is there room for Obama to sue, even though we know he's not going to?

0:44:17 Thomas: Hypothetically, could he say this is libelous, or is this within Trump's kind of normal business proceedings, I guess, as president, and so he has that immunity?

0:44:27 Andrew: Really, there are two good questions there. I have been looking at the question assuming that this statement by Donald Trump is actionable, is outside of the purview of presidential immunity. But that's not necessarily the right assumption, right? Remember that that the presidential immunity doctrine applies to acts being done by the president that are in furtherance of his official duty as the president. And that, as we talked about with the sort of classic law school, you know, senator accidentally running someone over while on, while rushing to the floor to vote, right, related to, for purposes of immunity has been, in many cases, is construed broadly by the courts. Now, accusing

0:45:15 Thomas: They might think that, distracting people from other horrible things that are going on in Trump's presidency is, maybe that's a normal presidential duty, like, hey, if I don't tweet outrageous things and people pay attention to the other things I'm doing, right?

0:45:24 Andrew: Um, I think that the first step, if, if there were to be a libel suit in this case, the first line of defense would be for Trump to say that this, um, is not actionable because, uh, I made the statement while in furtherance of my official duties as the president. It's a hard argument. I don't know what accusing the past president of having wiretapped you, but I'm sure they would make it. If I were White House counsel, I would at least try and make that argument. But let's assume that it is actionable, that this is just that the court says, no, no, you talking about how you won has nothing to do with doing the job of the president. In that case, the standard that's going to apply is the New York Times versus Sullivan standard.

0:46:15 Andrew: And the reason that that's gonna apply is because Barack Obama is a public figure. And so one of the questions that I saw that, this is a little bit of a spoiler, so on Friday's episode we're actually going to take a look at some common legal terms, I'm going to try and quiz you, Thomas, and, uh, and we'll see how you do, um, but is an example of that, where phrase public figure, I got a couple of questions from listeners who said, well, Obama is not in office anymore, right? Like, he's no longer a public figure. The answer to that is no, that's not the case. That you can be, you are a public finger when you are a figure of public interest on a particular topic, right. So you can be a general purpose public figure, and general purpose purpose public figures are not just elected officials, but, you know, for example, know, LeBron James is very, very clearly a public figure, right?

0:46:22 Thomas: Right, do

0:47:08 Andrew: He's a public finger for everything, right, like not just for basketball. So, you know, if someone were to say horrible things about LeBaron James that have nothing to do with basketball, you would nevertheless fall within this New York Times v. Sullivan standard that I'm about to talk about. Um, secondarily, there are limited purpose public figures, right? There are people who are prominent within a particular field, uh, but not at all prominent outside of that field, right. So when a couple of, right, yeah, no, that's, yeah.

0:47:36 Thomas: You and I are limited, our goal is to one day be general purpose public figures and have everyone say awful things about us and have no recourse, that's our one day we can all dream, it's

0:47:49 Andrew: That is exactly right. And, and, and in that case, they would be able to, uh, say if, if we were held to be limited purpose public figures in the field of, uh, podcasting, or, you know, legal podcasting, or, you know, interviewing podcasting, however you want to slice that, they could say horrible libelous things about you, then we would be subject to the New York Times v. Sullivan standard on the basis of those comments alone, but somebody could libel you in other, so for example, they could say, you know, Thomas doesn't actually interview anybody, buddy, uh, but, um, you know, he just makes them all up right yeah it's all done in a

0:48:28 Thomas: All computer generated yeah which it is okay you've got, you've outed me, I don't know why, I don't get why, don't I get better guests, if it's, it's all, yeah, anyway. Hmm.

0:48:31 Andrew: Yeah, um yeah there's no Andrew Torrez, there's nobody there are no guests on Serious Inquiries Only, it's all just computer generated, um, and, if you were a limited purpose public figure in podcasting, you would have to prove that, that heightened standard of malice. On the other hand, if somebody were to defame you with something that was unrelated to where you are a public figure, right, if they were to say, for example, that you had no feet, right, right, like something just unbelievably outrageous that has nothing to do, then in that obviously unlikely and ridiculous hypothetical, I would say that might be able to prove liable under the ordinary standard, right? You would say, hey, look, like you want to go say LeBron James doesn't have any feet have at it but when you say that about Thomas Smith as a person unrelated to podcasting uh he is a private figure and so the the lesser standards of libel apply so now what are we talking about with the New York Times v. Sullivan standard? Okay, New New Yortimes v. Sullovin said to prevail on a a claim of defamation, libel or slander,

0:48:59 Thomas: Huh. Go on. Notepad out. Writing this down. Very unlikely.

0:49:39 Andrew: Right?

0:49:39 Thomas: Was it, let me see. Was it like, you have to have a complete disregard for the truth or falsity of the statement or something? And or no, okay, yeah. Or that.

0:49:46 Andrew: Or knowing falsity, right. So you have to say something either that you know not to be true or that you are recklessly disregarding the truth, Right, and the standard that I always use in this that we did in a prior episode is take a look at the National Enquirer and the Daily Star that say, you know, Hillary Clinton and Lebron James have given birth to Bat Boy, right, and they put little Bat Boy on the cover, right, that they know, like, you know, Hillary Clinton didn't give birth to Bat Boy, right, but nevertheless, like, uh, the reason that those papers are not sued out of existence is because there's sort of enough plausible, like, yeah, no, look, everybody just knows we're totally careless about the facts, uh, but we didn't recklessly have disregard for there, we just, you know, we just kind of went for it, you know, whatever, like, I think I saw it somewhere

0:49:58 Thomas: Yeah. Mm-hmm.

0:50:38 Thomas: They Probably have some stooge that could be their source if they were asked, yeah.

0:50:43 Andrew: Right Yep Yep And And so that the standard for proving, uh, actual malice, uh, for proving libel by a public figure is, uh, is this worse than Bat Boy, right, and as you can imagine, that's almost impossible to prove, right? Um, and Keep in mind this is by design, right? Like, we, we, one of the things that's been associated with the comments of, uh, you know, Obama should, should sue Trump for libel, um, which, but you know, by the way, like, it, it would not be an open and shut case even under the New York Times standard, right?

Like, you know, it's not going to happen, but, um, uh, you, you know, you, you, it's, it's hard to imagine something that is more, you know, in reckless disregard of the truth. But on The other hand, you know, it's probably, you can get, as you point out with the stooge comment, you can get Steve Bannon to produce, like, you know, five trolls from the basement at Breitbart who will be like, no, no, I totally wrote in 2016 that Trump Towers was being bugged, and, you know, and and look, that's all you'd need, right?

Like, it, that Donald Trump could could evade any liability for libel by saying, yeah, no, Steve told me that somebody on Breitbart said that it was bugged, and that's not reckless disregard for the truth. That is an awfully careless attitude towards the truth. No, so we juxtaposed, a lot of the stories have juxtaposed exposed, um, Trump's 2016 comments about defamation where he said, you know, it, when I get into office, I'm going to make it, you know, easier for people like me to sue

0:51:01 Thomas: Yeah. Yeah. Yeah.

0:52:23 Andrew: For libel. And shut down, stuff like that, um, right, and

0:52:24 Thomas: What are his sources Yeah. He said no, no more anonymous sources, they shouldn't be able to do that, so, okay, what's your source for the, for this claim?

0:52:33 Andrew: And, And I would say that the fact that Trump was wrong in 2016 is is what protects him now, right? Having the almost impossibly high burden of libel is what serves as a bulwark for the free press. And I would not want anything to remotely erode it. I wouldn't want Obama to be able to prevail on his claims. There to be... Because look, we saw, we covered the Steven Novella lawsuit a couple of weeks ago. Despite the high burden Right. People still sue other people with respect to things that they have said on important social and political issues. Having the burden be set that high is what acts as kind of the the the maximum counterweight to that that's possible. So, not going to be able for Obama to sue Trump for libel. We wouldn't want him to do it anyway, and Obama's not going to do that.

0:52:33 Thomas: Yeah. Yeah.

0:53:28 Thomas: Oh, well, but there's no, so you, you can't, so you can impeach Trump for just making completely baseless claims to the public for no reason, yeah.

0:53:35 Andrew: Look, the question, what I would ask, somebody asked me this on Twitter. In heading up to the midterms, I would ask every Republican congressman at every town hall, I would make it a part of the debate, I I would make it a part of my stump speech. Do you support impeaching Donald Trump over his direct appointment of Jared Kushner to the White House staff, right? Like it is, that is, it is 100% a violation of the Anti-Nepotism Act.

0:54:01 Thomas: There You go So he doesn't get around it by not taking a salary because I think I heard that's what it

0:54:09 Andrew: We read, we read the statute. The statute says it is a criminal offense for any executive branch employee, including the president, to even advocate for the employment of somebody. It's not a quid pro quo. This is not like bribery. It's not a situation where the fact that he's not taking the salary means that it's not a job, or it means that the arguments to the contrary are so bad that no independent prosecutor would ignore that. But we don't have an independent prosecutor. We have Jeff Sessions. So, yeah.

0:54:10 Thomas: Oh, Yeah, oh.

0:54:43 Thomas: Darn. So No justice in the session, in the, in the country, cool, you know, that's really been the overall message of this presidency for me, is sure we have all these great rules and systems in place, but then they just don't count, it's just like no, it doesn't matter, nobody wants to enforce it, doesn't count, I had no idea, it's really depressing, yeah.

0:54:48 Andrew: No. So that it, you from a historical perspective, country is set up with separation of powers. And the idea dating back to the founding fathers was that for elected officials, by and large, the best remedy would be through the political process rather than through the legal system. And they just, you know, we went back and we read some of the Federalist Papers in connection with last week's episode on originalism. And there's like a level of naivety there that, you Know, the founding fathers just couldn't believe that somebody who considered the idea that you could have somebody in power who would be corrupt. Corrupt, but they only envisioned that you would be secretly corrupt, right? Like they didn't think you would have somebody who would just openly say, yeah, well, you know what? It doesn't really matter. I'm going to continue to do this.

0:55:58 Thomas: Yeah.

0:55:58 Andrew: And, You know, we're sort of pushing up against that system. And you, if you are a student of political philosophy and science, I suppose it gives you some interesting hypotheticals, but, you know, if you have to live in this country, well, you know, we've made our, we've made our perspective known, so

0:55:58 Thomas: Yeah.

0:56:12 Thomas: All Right, so still nothing, uh, impeachable so far. Oh, well, maybe impeachible, like the Jared Kushner thing, but nothing that the Republican Congress is even close to thinking is impeachable. We'll have to do an update on the Russia connections, maybe, but at some point, or maybe not, because, as read something yesterday that talked about the fact that there's probably not going to be like a smoking gun Russia thing because they just wouldn't have needed to do that. Like Trump and Putin wouldn't have needed to have some, you know, smoking gun on meeting or phone call, uh, in order to do what they've likely been doing together. So who knows, we're, we're kind of stuck on that, I guess.

0:56:25 Andrew: Yep. Yep.

0:56:54 Thomas: So we'll do a, uh, we'll keep an eye on more things, there's always more Russia stuff to talk about with Trump, and so, uh, until next time, the yodeler is is, I guess, creeping up the mountain, but, uh, but not quite there yet, so all right, well, you know, now's is the time when we have to thank our amazing new patrons. I love new patron Tuesday

0:57:16 Andrew: New patron Tuesday, so thank you, it is co it extensive with Hall of Fame patron Friday, one of my two favorite days of the week. Thank you to Mark Seabird, to Mark R Price, to Kietel, hope, hope I pronounced that correctly, uh, to Rodrigo Valdivia, to Neil Garrett, to Brian Taylor, to Boyd Bork, and to Jay, thank you very much.

0:57:43 Thomas: Yeah, and also thank you, Nuke, oh, you, you saved that one for me, didn't you, Nukes, Nuked Lion, Nukeds Lion maybe, or New Kesley, and I don't know, thank you to Taylor, Robert L Lathro says laughs, I give up, John, I almost said John just, but it was John just pledged John on. Uh, David at the ramblingblog.com with a pledge edit. Thank you to that. By the way, you want to get access to that Law'd Awful Movies, you know, edit, that pledge, uh, up, up to $2 and you got it. Oh, also nice pledge edit from the Net Sec Heathen. Thank you very much for that. Derek Barnett, Tracy McFadden, Charles Loesch, David Cox, Faytheists, so F A Y E theist, I thought that was kind of clever, and Roger Fickle, thank you guys so much. And then C6Sara with a pledge edit as well. Thanks for that, and you'll hear your new shout-out on Friday's episode.

0:57:46 Andrew: Yeah.

0:58:05 Andrew: Covers

0:58:45 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:58:51 Andrew: Right, Thomas, it's that time again.

0:58:53 Thomas: Are we still doing this? Okay. I

0:58:56 Andrew: So we're on question number 14, um, this was an intentional infliction of emotional distress Yep.

0:59:04 Thomas: Remember now.

0:59:05 Andrew: So this was a psychopath, uh, brutalizes innocent elderly people with physical torture, that is heinous and shocking, tortures the victim's father for no good reason, uh, the victim, the victim himself was not present, read about it in the newspaper, heard about it from the police, suffered from extreme emotional distress, required medical treatment, sued the psychopath. Will he be able to bring a successful action for intentional infliction of emotional distress? So you guessed no, because the victim was not present at the time that the outrageous behavior occurred. That was answer A. Our other options were B, yes, because the activity was both outrageous and shocking. C, no, because the perpetrator did not know that his victim had any immediate family members.

0:59:55 Andrew: Or D, D, yes, because in torture cases, there is strict liability imposed on the perpetrator. And I will tell you, a really, really interesting question because of some developments in the law that I'm about to tell you about. But, drumroll please, you got this question correct. Correct. So, yeah.

1:00:13 Thomas: Oh, thank God. Okay, I'll go back and fix that to a more excited drumroll. That was a, that was a very hesitant drum roll. Like I know I'm going to get this right.

1:00:27 Andrew: No, you got you got the question. You got the question right. It.

1:00:30 Thomas: Ooh, few, uh-huh.

1:00:31 Andrew: So what is, what is the tort of an intentional infliction of emotional distress? It requires one, extreme and outrageous conduct with the intent to cause or reckless disregard of causing emotional distress to It requires the plaintiff to suffer a severe or extreme emotional distress. And three, the defendant's conduct must be both the necessary and the proximate cause of the plaintiff's emotional distress. And it is that proxmate cause prong where you correctly realized that the more attenuated the action is from the person suffering distress, the less likely that you're going to be able to demonstrate that cause of action, right? So the classic scenario would be, um, take the exact same fact pattern where a psychopath is torturing your father, uh, but you're physically, you're watching him do it, right? So even though he doesn't torture you, like, you could be, he could be, you know, uh, you could suffer no pain whatsoever, right? You could, he could have done literally no other thing wrong to you, but the act of forcing you to watch your father get tortured is itself an act against you.

But, right, at At common law, the rule has, has been for the plaintiff to maintain an action for intentional infliction of emotional distress, they must be present, right, activity. Not present here. That's why you got the question right. However, there is a recent case, and by recent, I mean 2007.

1:02:02 Andrew: So, you know, recent even by human standards. A case in the district court for the District of Columbia, Federal District District Court for Washington, D.C., that held that where there was a terrorist attack on individuals, right, on people in the military, that the plaintiff family member does not have to be present. OK, so, you kind of cracks in the armor there. And I would say this is an unlikely bar question in my mind going forward, because I think I think had you answered B, I would certainly be arguing to give you credit or at least partial credit on that, because the law seems to be moving in that direction.

Now, look, it will be up to evaluation of future cases to see if the move towards eliminating that presence requirement is an exception, a sort of torture exception, for, oh, this is terrorism, and like judges kind of throw their minds out the window when they're ruling on terrorism, or whether that, that reflects sort of a real trend in the development of IED law. It's tough to tell right now. Right. Right. Like, I mean, you could imagine being a district court judge going, gosh, am I really going to throw out a, you know, the victim of somebody killed in 9-11, the family member of somebody killed in 9-11 suing Iran on

1:02:39 Thomas: Partial credit. Yeah.

1:03:28 Andrew: The grounds that, you they weren't physically present when a plane crashed into the Pentagon. Like maybe I'm not going to throw that out. You know what I mean? It so I I don't know if that's going to have, how that's going to affect sort of the development of the jurisprudence, but I thought it was worth noting in connection with the question, but you don't care about any of that.

1:03:46 Thomas: I don't know what the hell you're talking about. Other, other than I got a question, right? That's all I'm here this whole time. It's been, you know, like when the, uh, peanuts and it's the want, want, want with this, I've just been hearing you're right. You're right, you're Right. You're Right the whole time, so I'm amazed that you took that long to explain how right I was.

1:03:50 Andrew: There you go.

1:04:04 Thomas: I feel like that was an awfully long time.

1:03:57 Andrew: Well, Thomas, you are right. You are right, and And and here.

1:04:11 Thomas: 8 of 14? Is that what it is? Wow.

1:04:12 Andrew: Yeah. Yeah, that's pretty good. And and now we will find out who else was right.

1:04:21 Thomas: Oh, yes. Who is our lucky slash skillful winner for this week? Future Andrew.

1:04:25 Andrew: Yep. Yeah, and before we get to the question, Thomas, I want to say that we have been asked several times to take a look at the Trumpcare proposal, the American Health Care Act, and I just want to recommend that our listeners who are interested in that, they're probably listening to Serious Inquiries Only, your other show, but if not, they should be, and in particular, they should be listening to episode number 22, in which we're going to be talking about which you break down entirely accurately, as far as I can tell, the the history of the ACA, how the AHCA is going to repeal that and begin sort of the piecemeal replacement process. You you break down reconciliation. I mean, it's really it's it's it's an exceptionally done episode.

1:05:14 Andrew: And and there's no need for us to cover it on the show because you you did such a fantastic job on Serious Inquiries Only episode 22. So people should go listen to that. And our winner for Thomas Takes the Bar Exam is Ian, E-A-N, Query, Q-U-E-R-Y, on Facebook, who says, "I'm going to say that I think the answer to TTTBE is," and then there's a long scream. And he says, "Sorry about that. It happens to me sometimes when I get hit with the realization that expletive deleted Donald, expletive deleted Trump is the expletive deleted president of the United Expletive Deleted States of Expletive Expletive Deleted America. It comes in waves. I'm OK now. I'll say the answer is A." We we know how you feel.

1:06:01 Andrew: Thanks for playing. Good job getting the answer correct. And remember, you too can play along with Thomas Takes the Bar Exam on on Facebook as here or on Twitter. So thank you, Ian Query. Everyone go check him out.

1:06:13 Thomas: All right, then. That's it for today's show. Hope you enjoyed it. I know I did, mainly because I got a question right. Right. That totally changes my opinion of the episode every time I've been dreading because, because, you know, all our listeners are like 15 for 14 now. They're like, yeah, I've gotten them all right. Plus the other one's right. So it's like I do. I have I've been feeling the pressure lately. You know, there's a couple I should have gotten. But I think some of these, I mean, geez, with no Googling power and just having to rely on my, of course, you Know, vast law education. But still, it's been a few years. It's it makes makes it tough so that's it for today's show thank you listeners thank you patrons especially patreon.com/law thank you andrew so much for being the expert as usual and we will see you on friday

1:06:31 Andrew: All

1:07:07 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.