OA59: Make America Great Again! OA Defends Trump

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 number 59, and I am host Thomas Smith. That over there is host Andrew Torrez. How you doing, Mr. Torrez?

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

0:01:28 Thomas: I am doing, well, okay. Just got back from, Yeah. Boy, was the law different over in Europe. That was an experience. I had to take a whole different bar exam. No, not really. But Oh Yeah Nothing, nothing, so nothing significant. Oh, I just got back, anything, no news, right, nothing I have to worry about or think about.

0:01:32 Andrew: Welcome back to the States. Made sure nothing happened. Oh Sent all my friends in the Trump administration an email and asked them to make sure nothing would take place during the week while you were overseas.

0:01:56 Thomas: Oh Good.

0:02:01 Andrew: So you see how much pull I I have

0:02:01 Thomas: Well, that that's Yeah Sounds Like it was a success. Uh, I'm sure we had something else planned for this episode, but, uh, whatever it was, I'm sure it'll be great and it'll wait for a later episode, but yeah, we've definitely got to talk about the big news, which is Trump deflecting away from anything else that was going on in his presidency. So we'll figure out whether that's legal and all that. But in the meantime, let's first get to our first listener question of the day.

0:02:03 Andrew: Yeah

0:02:31 Clip: He who questions training, only trains himself at asking questions. What?

0:02:39 Thomas: T.Sp, I Don't know what this is, some username somewhere, but we'll try to give you credit, whoever T.SP is. I have a question regarding the possible invocation of the nuclear option. Since changing the Senate rules would require a vote, I was wondering whether the vote to end the filibuster could itself be filibustered. It seems like if it could, the Senate wouldn't be able to muster up the 60 people to get cloture for that vote. So yeah, I guess that's a procedural, procedural question, it's something that, um, you know, you might wonder offhand, well, how can you get rid of something like that without having the 60 votes in itself to to get rid of it? So what's the procedural story there, Andrew?

0:02:40 Andrew: And it's actually um even more interesting than uh t.sp suggests um we should be clear the The Senate invoked the nuclear option on Thursday, April 6th, last Thursday, paving the way for the vote on Gorsuch, which took place on Friday, April 7th. In between those two events was we will talk about in the main segment. But but if you missed it, yes, indeed, the Senate did invoke the nuclear option, allowing them to confirm Neil Gorsuch with under 60 votes. They had 52 votes for the nuclear option and then 55 votes for Gorsuch. So Gorsuch is now on the Supreme Court, all of our venting and trying to alarm people and get people interested in opposing Neil Gorsuch has turned out to be fairly useless in the long run, but, you know, we did our best.

0:03:33 Thomas: But

0:04:26 Andrew: What is the nuclear option? What differentiates the Senate from the House of Representatives is that in the House of Representatives, you have an automatic limit on debating any piece of legislation or action that comes up. And so when that time limit is up, it goes automatically to a vote. And then there's just an up or down vote there.

0:04:46 Thomas: There's No Such Thing As A filibuster cluster in the House. It Sounds like

0:04:49 Andrew: They're really. Yeah, There's no such thing as a filibuster in the House. And in the Senate, what makes something a filibuster is you reach the end, is that there's a set time limit on how long you can debate something in order to cut off debate. You have to have a motion, which is called a motion for cloture. And cloture, I'm sure, is some Latin word meaning close.

0:04:50 Thomas: Yeah It's to cloat it, you Need to make sure That somebody cloats It, so yeah Mr.

0:05:14 Andrew: Yes, right, right. It's related to the Latin root cloaca. No, I have no idea. Longstanding rule of the Senate, that vote in itself requires 60 votes. And so what happens when you can't get 60 votes to call cloture is debate continues. And it used to be, if you've seen, you know, Mr. Smith goes to Washington. Right. Yeah. That the implication of, oh, OK, we've cut off debate. We vote. We have voted to cut off defeat. That failed. Now we have to debate some more. And that's where the idea of the filibuster as, you You know, guy Jimmy Smith, Jimmy Smith. Jimmy Stewart reading from the phone book into play in in the past 30 years. That hasn't been how filibusters get conducted because filibesters have become so commonplace that the Senate will just sort of take

0:05:39 Thomas: Smith Goes To Washington Yeah Yeah Jimmy Stewart Yeah, they're Like, look, why

0:06:11 Andrew: It as a given.

0:06:11 Thomas: Are We putting Doing all this work when we could just not Yeah Now

0:06:14 Andrew: Yeah, yeah, exactly. Exactly. And actually what they can do is they can move to the next piece of business, even though no action has been taken on the prior piece of business. That was the procedural rule that needed to be put into place. So that's why even though to pass a law, you only require 51 votes to To actually call the vote requires 60. Now, T.Spuh asks a really interesting question, which is, what about changing the rule that requires the filibuster itself? Wouldn't that itself be subject to debate? The

0:06:51 Thomas: The first Thing I have to say is obviously this is like, why they're still monkeys if we evolve from, like, obviously there's a reason, otherwise we, T.Spuh wouldn't be the first person to think of this, but, uh, but clearly there is a reason. So let's have it. What is It

0:06:51 Andrew: Yeah, it's actually much more complicated than you would think. As it turns out, a vote to change a prior rule that is in effect in the Senate doesn't require 50 votes, doesn't require 60 votes, actually requires 67 votes, okay? So, yeah, it's even harder to change the rules than it is to filibuster. So you might be saying, well, this sounds fantastic and all, but you just said the Republicans were able to change the rule. So how did they do that? And the answer is that they relied on a very, very used and controversial procedure in the chair of the Senate would declare that a particular procedure was either was in this case unconstitutional. Right. So the chair would declare that requiring 60 votes for confirming a Supreme Court nominee is unconstitutional and that that the appropriate constitutional remedy was, in this case, the fact that the Democrats had used a version of this nuclear option back in 2013 to confirm a number of federal judges who were getting basically the Gorsuch treatment from the Republican Senate.

0:07:21 Thomas: Super, super Super Majority. Wow. What

0:08:24 Andrew: They were filibustering for over six months on confirming a whole slate of federal court judges. And so the last time the Democrats controlled the Senate, they used, in 2013, they used a version of this nuclear option to confirm a bunch of federal judges. And I should say, as we go through this, if the Democrats had controlled the Senate in 2016, there's no doubt in my mind they would have used the nuclear option to confirmed Gorsuch, right? Right. Like if if there had been supposed there had been a changeover and, you know, I mean, you can you can figure out a scenario under which the shoe is on the other foot.

But so what you have to do for the nuclear option is the the chair declares that a particular procedure is unconstitutional, recommends a different procedure in its place that then either goes unchallenged, which doesn't happen, or or is challenged by the minority, which brings up the provision of appeal to the decision of the chair. And under Robert's rules of order, an appeal to The decision of the chair requires only a majority line vote. Okay, so what the nuclear option is, is a way of saying, we think this prior rule is unconstitutional, we are going to replace it with this other rule. And in so doing, that That vote itself only requires a majority vote.

0:09:52 Thomas: A stupid rule, boy. It really is. Like, senators hate this one weird trick To get Your, wow, right

0:09:54 Andrew: Yes. Yeah, no. Well, and you're probably going to ask if the answer to a sort of reduction to absurdity, right? Because that's where we were otherwise headed, right. If every procedural vote itself required cloture, then everything would ultimately require 60 votes, right! You would never get around it. You would just be like, oh, well, then I'll I'll filibuster that vote. Right. And and the answer is rules changes don't require, you know, procedural stuff doesn't require cloture because there's no formal debate on it. This is all part of Robert's Rules of Order. But if everything can be reduced down, if the way you avoid that reductio is by ultimately getting to something that requires a 51-49 vote, then there really no protection left in the Senate, right? Couldn't the Democrats, as soon as they assume control of the Senate, invoke the exact same nuclear option procedure to get rid of the filibuster entirely? And the answer is yes.

0:10:15 Thomas: Yeah

0:11:01 Andrew: Yes, they could. And so we were asked about this back in the delightful and heady old days in which people would send us questions in September of 2016 about what President Hillary Clinton and the Democratic Senate were going to do in 2017. And you may recall we were asked, know, should the Democrats exercise the nuclear option to confirm either.

0:11:18 Thomas: Yeah. Merrick Garland or whoever Hillary decided.

0:11:27 Andrew: Yeah, right. Right. And and I happy for consistency opine that no, I think she shouldn't. Because, you know, truly sort of once you've done this, I don't believe that the traditional filibuster on legislative matters is going to last the next session. I think the next time the Democrats get control of the Senate they have a Democratic president, which, again, I hope is as early as 2020, I think they will look at this sort of litany of past wrongs and say, you know, well, by God, we're not going to be played for chumps again.

0:11:29 Thomas: Yeah. Yeah, yeah,

0:12:06 Andrew: You know, they they they took a Supreme Court nominee away from us. They essentially filibustered six out of eight years of our last Democratic president. And we're not going to let that happen. And

0:12:07 Thomas: Yeah.

0:12:18 Thomas: You know, some People might be thinking, why wouldn't the Republicans just do that now? And I don't know if we have the same answer for that, but did manage to keep up to date on some stuff while I was in Europe. And I heard an interesting discussion on one of my many podcasts that that Republicans actually just would not want that because they're already having a hard enough time passing health care when they have the majority. Like they can't decide on what they want. They don't agree. So being able to blame Democrats and saying, well, we just couldn't get the 60 votes. And so therefore that's, you know, that's Democrats. Oh, they held us up. Darn it. And so based on this analysis, it actually makes sense to me. I'm curious what your thoughts are that Republicans don't want to do that because they don't really have the same kind of cohesive agenda that Democrats have.

0:12:19 Andrew: Yeah,

0:13:10 Thomas: Whereas Democrats, if they got back control of the Senate, they'd be like, OK, let's get rid of that filibuster. Let's pass a better health care bill. Let's do this. Let'S do that. There's a lot more things that I think Democrats agree on. What do you think about that?

0:13:21 Andrew: I can sign on to that analysis. I mean, I think the Republican Party right now is an uneasy alliance of several parties. Right. Like you have whatever Trump's Republicans are. Right. The sort of populist knee jerk. Don't I know. I'm not going to try and characterize them, but whatever they are. Right. You have the Tea Party faction, the, you know, sort of, you Know, hardcore, hard right Christian conservatives. And then you have the kind of a loose amalgam of, You know, people who have historically been like, Where do you put Bob Corker? Where do you put, you know, I mean, Susan Collins obviously is the last like, you know, sort of potentially moderate to mainstream kind of New England business Republican. But whatever, you put all those people that you don't know what group to put them in in group three. They're very, very good at being an opposition party. There's not a lot that they agree on.

0:13:29 Thomas: Yeah.

0:13:42 Thomas: Freedom caucus going on. Yeah.

0:14:14 Thomas: Yeah,

0:14:14 Andrew: Neil Gorsuch is somebody they all agree on, right? Like, I means, he Is, if you are a Republican of any of those stripes, I, I mean, he is, you know, your dream candidate. So it is not surprising to me that that they would want to see that advance. But making it easier for Trump to get his legislative agenda crossed, I tend to see a lot of merit in your position. The other thing is, we went through this on the gerrymandering. Um, there's sort of a sense it's kind of a playground fight, um, sort of mentality.

Like, if you've ever watched two like seven-year-olds fight on the playground, like, basically like one kid will shove the other kid and then they'll be sort of a pause, and then the other kid will shove that kid back, right. And Then, And then he just sort of, you know, are in that kind of delayed shoving match. Right. And that's kind of what politics feels like right now, that that there's one side feels slighted. And so they shove back as hard as they can. And then the other side sort of collects itself and waits to shove back. And the you

0:14:18 Thomas: Yeah, yeah. Yeah.

0:15:21 Andrew: Know.

0:15:20 Thomas: Yeah. It's, it's really annoying. I mean, I, I have my biases. I don't think Democrats are perfect, but I, boy, do I hate Mitch McConnell. And I think that the, the childishness, like you mentioned of, of just this, this idea of it's either to one side it's hypocrisy. And then the other side is, well, you did it first and that's all it is. Like there, you just switch it. Like you look at the Republicans, you're like, well. Well, you know, this is hypocrisy. They said, you Know, we couldn't do this earlier. And then their excuse is, well, you guys did it first, so we're doing it now. And it's like, at a certain point, there's so many of these back and forths that you wonder, like, does it matter who struck first? Are we going to go back to the 80s or the 1800s? Or like, how will we figure that out?

0:16:07 Thomas: When will it end? And the answer is never. That's my answer. It will never get any better. But anyway, yeah.

0:16:12 Andrew: Yeah, no, no. I think I think that's exactly right. And, you know, again, I mean, I was trying to draw the analogy with our gerrymandering episode, but, the Democrats were in power, you know, in particular, we were looking at the Texas case, they absolutely drew the legislative maps in Texas in such a way as to keep more Democratic legislators in power than reflected the population. And so, you You know, as soon as the Republicans got in, they were like, well, by God, that's not going to stand.

0:16:42 Thomas: Right.

0:16:42 Andrew: And they redrew the map to elect as many Republicans as possible. And now, you know, I think I think of the like thirty-five member delegation from the House of Representatives in Texas. Isn't it something like thirty-four Democrats? I mean, it's it's amazing in terms of of what they've been able to do with the the red map software and and a chip on your shoulder. Um, And, uh, I don't know, I would love to see something that would be able to kind of diffuse that tension but um, I don't see. I don see what it was, I read a report. I'm not sure if you saw the same report about a supposed, is this was a political story, I will, I will link it in the show notes, about a kind of gang of eight, like, like a group of senators that were trying to the filibuster, prevent the nuclear option. And at the end of the day, the first condition the Republican side was, well, OK, all the Democrats on this list have to vote for Neil Gorsuch. You

0:17:00 Thomas: Wow. Uh, the Phil Yeah. Yeah.

0:17:52 Thomas: Yeah

0:17:53 Andrew: Know, well, OK, I'm not surprised that the effort to compromise failed there when Your idea of compromise is how about we get what we want and you shut up and like it. We've wandered a little bit away from the question. The question was, doesn't everything require debate and cloture? And the answer is no, procedurals don't. They require actually even more votes unless you decide to exercise this procedural bit of trickery. But this procedural bid of trickering has gone down without a hitch. And so, you one of the things that I think is as near an ironclad rule in politics is if somebody doesn't pay for it the first time around, then no one's going to pay for the next time. Right. Like there there There will be No repercussions if Democrats somehow managed to retake the Senate in in 2018. And you've done an SIO on what an uphill climb that is.

0:17:53 Thomas: Right Yeah Yeah Yeah It'll

0:18:46 Andrew: But if they do, the democratically controlled Senate refuses a Trump nominee who shows up, you know, in December of 2019, right? Mitch McConnell will say, well, you know, our president was only for the last year of a presidency and Donald Trump has 13 months or, you know, Mike Pence or whoever it is at that point. I don't really think that the Democratic Senate will be like, well that's an excellent, yeah, yeah.

0:19:12 Thomas: Be Jared Kushner but Yeah, somehow Yeah

0:19:16 Andrew: Yeah, I don't think that the Democratic Senate is going to be like well that's an excellent point so yeah you got him in in December okay we'll have a vote. Oh, no, obviously they're going to do back to the Republicans what, you know, what the Republicans did.

0:19:27 Thomas: This Is this is going on a while but Another thing that I found really annoying about all the the punditry was, uh, the idea that oh Democrats just should not have done this because, you know, next now Trump's gonna going to have his way with the Supreme Court justice. And as you've pointed out, like it doesn't really get worse than Gorsuch. Like it's already, he's already about as bad as it gets. So I, my opinion based on what I've learned from you and other sources is, yeah, just it's, I'm glad we did made them pull the nuclear option. It was the only thing that Democrats could have done. There was a slight chance that maybe you could have gotten a couple principled Republicans to not do it or something. And there was no, I mean, you had to do it. There's no downside. It was a stolen seat, or rather it was all downside. There was no, it was lose-lose. So it's like, you might as well make them do it and then maybe you can use that later on for something.

0:19:30 Andrew: Yeah. Yeah. And let's go very quickly. Look, we discussed this in O84 in which we first discussed Neil Gorsuch. Are there worse nominees? Sure. Right. Roy Moore would be a worse nominee. Nominee, uh, but anybody who, but there's sort of two things to remember on Supreme Court nominees, right, the first is, um, it's hard to imagine how any of those worst nominees, uh, in terms of being less intellectually and academically qualified, would give you more of what you want, right? Like you have 100 of what you want in terms of right-wing activism, right, there's, there is no position, uh, that is going to come before the Supreme Court, for which Roy Moore is going to be a better vote than Neil Gorsuch.

0:21:05 Andrew: That's part of what makes him so frightening. And number two, all of those.

0:21:05 Thomas: Yeah, they could just use the nuclear option then, by the way, that was what I was going to say.

0:21:11 Andrew: Yeah, well, yeah, well.

0:21:13 Thomas: But yeah,

0:21:14 Andrew: And but remember part of the reason why I think that's so important, part of why I remember what made Gorsuche so dangerous were his academic credentials, right? Like if the Last time that, you know, and we talked about this, with President Bush failing to get a Supreme Court nominee. And the reason there was because that nominee lacked the academic credentials to be on the court. So the only people that I could envision would be worse sitting on the court would be people that would be harder to fight for and thus politically, from the Democratic perspective, a quote better nominee because he's because that person would be someone we would have a better chance to take down, so yeah, I mean, that that's a long, that's a very long-winded way, which is to say, an Andrew way, of my agreeing with you.

0:21:22 Thomas: Yeah, ja, ja. Well, credit to T.Spuh though. I mean, it wasn't a complicated thing. I mean, ultimately, obviously, the answer had to be what it was, but that is a lot more confusing than I would have necessarily thought. So thanks, T.Spuh, whoever you are, for your question.

0:22:27 Thomas: Let's find out whether or not we're going to impeach Donald Trump for his illegal attack on Syria. Is that about to happen? Are we just moments away from that?

0:22:35 Andrew: As such. Um, we received this question um from a number of sources, um, and what I want to do in analyzing the attack on Syria is put myself in the position of, uh, envisioning that this was President Hillary Clinton who had ordered, uh, the strike.

0:22:36 Thomas: Yeah.

0:22:54 Thomas: No.

0:22:54 Andrew: And in fact, I mean, one of the, the criticisms I have of this as a mode of public policy is that one of the, one of the few actual public policy positions Donald Trump took during the 2016 election was to criticize Hillary Clinton's long stated preference to to to maintain a no fly zone over Syria. He did so loudly in the debates.

0:23:10 Thomas: Fly zone Yeah. Yeah. We can't have that no fly phone because it would be such a threat to Russia, so we definitely can't do that, it would start World War Three because that, yeah, God, it's so frustrating.

0:23:23 Andrew: And And, and look, I certainly didn't agree with Trump's criticism, which basically was, I don't see why we should be involved in Syria, we should let Russia handle that, which is pretty much what he said. But but I do agree with the critique that Rand Paul offered way back in one of the very earliest Republican debates in which the same question came up and, and they were debating the no fly zone. And Rand Paul said, you do know maintaining a no fly, fly zone over Syria means being willing to shoot down Russian jets because the Russians are flying over Syria. That's what a no fly zone means. It's not like the Syrians have a massive air force that we're, you know, and, uh, and and, and I was

0:23:23 Thomas: Yeah. Yeah.

0:24:10 Thomas: But my response was always, like, of course this would be negotiated, it's not as though, I mean, it you, we could argue about the policy and whether or not it would actually work, I would argue that Hillary, uh, had some insight into this that maybe I didn't have, being, as, you know, her years of experience as a Secretary of State, but it's not as though they were going to just, you, they were to drop those, there, the next day and shoot down every Russian jet. I'm sure there would be negotiated process of doing it, which was why I was so frustrated with that criticism. Sure, criticize the policy if you don't think it's a good idea, but the hyperbole of that it's instantly going to start World War III was, to me, very frustrating.

0:24:10 Andrew: Right. Yeah. Right. Yeah, oh, I, yeah, no, I don't, I don't mean to suggest that it is, uh an instant, you know, go to World War III, do not not pass, go do not collect $200. Uh, but that, uh, it is an, an, an immeasurably destabilizing and aggressive action. And, you know, as I said, I anticipated, Being uh. Here criticizing Hillary Clinton from the left.

0:24:55 Thomas: Yeah. Hey, you know what it might have done, though? Might have stopped that chemical weapon and airstrike that was delivered in the air. So you have to measure both sides of the ledger.

0:25:15 Andrew: Well, yep.

0:25:18 Thomas: Sure, it could have caused a lot of tension and it's not the most straightforward thing, but it would stop airstrikes on civilians. So that's what a no-fly zone would have done. But anyway, drum

0:25:26 Andrew: Yep. Yep, yep, yep So in any event, That's the position that I, that I am putting myself in. And as we go through this, um, I am of the opinion that Trump's authority to unilaterally declare airstrikes in Syria is, as far as I can tell, a constitutional exercise. Yeah, I didn't I didn'T want to put in a drumroll because I'm not I'm NOT thrilled about defending Donald Trump on the show, as as everyone knows. But I think it's at least as constitutional an exercise of the executive's commander in chief authority as anything that's been undertaken out of the Executive Office in the past 35 years.

0:25:46 Thomas: Roll. Oh, yeah, yeah.

0:26:10 Thomas: Yeah, you know, because we've talked about this way back when, the fact that the old argument that's always trotted out is, "Wait a minute, you need Congress's approval to declare war," and this, I, I'm guessing you're going to refresh us a little bit on this, because if I remember right, your answer was, "Well, we don't really ever declare war anymore, that doesn't really happen." We just have these certain things, yeah, go ahead, hmm.

0:26:31 Andrew: So, well, I looked up, me try this one on for size. How many times do you think Congress has declared war in American history?

0:26:37 Thomas: Once

0:26:46 Andrew: Well, I like I like that it's got the numbers either really, really low or really, really high. I like it. I Like I Like one. Yeah, no, the answer is the answer is five, right? Beginning beginning with the War of 1812.

0:26:45 Thomas: It had to be really low, uh, four I five okay yeah yeah I

0:27:00 Andrew: And none since World War II.

0:27:01 Thomas: Thought because my once answer was it was just gonna be the Revolutionary then they never did it again but yeah, anyway, no, I

0:27:05 Andrew: Right. Yeah, no. Right. So let me take a step back and sort of ground the powers that are at stake. Right. So Article two, Section one says that the executive power shall be vested in a president of the United States of America. And Section two says the president shall be commander in chief of the Army and Navy of the united states and of the militia of the several states when called into the actual service of the United States.

That provides the sort of ill-defined power to the president to run the nation's military. He is constrained on the other side by several propositions, the largest of which that pertains to what we just discussed is Article 1, Section 8, And it is Clause 11, even though the Constitution doesn't number these, which grants to Congress the power to declare war, grant letters of mark and reprisal and make rules concerning captures on land and water. So historically, that has been understood as declares war and the president gets to prosecute the war. And so the question is what, where does a one-off military strike, uh, fall into the intersection of these two provisions? So the answer to that historically is, it's fallen under the, uh general aggregated power of the president to act as commander in chief, uh and to have the powers of the executive. And historically, we have seen that presidents, particularly in the past 30 years, have said that these clauses do not constrain them from engaging in military action that is short of declaring war.

0:28:51 Andrew: And attorneys general have argued, additionally, that what the legislature maintains, what Congress retains, is the power to fund the military, right? So in any event, if you had the president sort of going rogue and acting beyond the scope of the delegated authority under the Constitution, yes, obviously if the president acts beyond the Constitution you can impeach the president. We've talked about the difficulties in doing that. We're going to hit that in the third segment on the show. But it's easier than impeaching the president is just cutting off the funds for that particular military action. And that vote came up several times during the Iraq war, which again, no declaration of war.

0:29:39 Andrew: There was a 2001 authorization for the use of military force, which I'm going to get to in a minute. But the Congress was free to cut funds, they didn't. There were many votes that came up. There were some that attracted a plurality of Democrats. But at the end of the day, part of the kind of checks and balances here of saying we don't need a judicial determination that the president has gone too far in his executive powers in ordering bombings is we can just say, hey, you know what, we're not going to, we're going to pay for those bombs. And the Congress maintains the absolute authority to do that. I'm going to link in the show notes a bunch of different things. But one of the things that I'm willing to link is a document by Walter Dellinger, who was White House counsel in 1994 to Bill Clinton regarding the use of targeted military strikes against targets in Haiti.

0:30:36 Andrew: And Dellinger said the president complied with the War Powers Act, which I'm about to describe in a minute. And after examining the circumstances, nature, scope, and duration of the anticipated deployment, we determined that this was not a quote, war in the constitutional sense. Specifically, the planned development was to take place with the full consent of legitimate government and did not involve the risk of major or prolonged hostilities or serious casualties to either the United States or Haiti.

For those reasons, we concluded that the president had legal and constitutional authority to order United States troops to be deployed into to Haiti. So there's that, there were actually some boots on the ground, I think there were, I think there were helicopters that were also deployed in the, uh, in the Haiti action. Um yeah right Um, so that's, that's sort of the, the backdrop, uh, I mentioned the War Powers Act, that is 50 USC 1541 at sec, this was passed in 1973, uh, at the end of the Vietnam War and at the, the end of the rather tumultuous presidency of Richard Nixon, in which Congress said as a declaration of policy, this is, well, let me read it to you. This is 1541A.

It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and ensure that the collective judgment of both the Congress and the president will apply to the, the introduction of United States armed forces into hostilities or into situations where the imminent involvement in hostilities is clearly indicated by the circumstances and the continued use of such forces in hostivities or in such situations.

0:31:17 Thomas: Boots yeah oh no, sorry, yeah

0:32:13 Andrew: So you may recall the Vietnam War was an undeclared war. So Congress said, hey, look, we are passing this War Powers Act to reclaim for ourselves and take away from the president the open-ended authority to just, you know, wage the bloodiest war in American history in terms of loss of American lives without a formal declaration of war. Okay, well, fine. If declarations of war are now sort of relegated to the ash bin of history, that's fine, but we still want to assert our role in given given oversight.

That requires is, this is section 1544, that president submit a report to congressional committees and that within 60 calendar days after a report is submitted or required to be submitted, The president shall terminate the use of forces with respect to which such report was submitted or required to be submitted, unless the Congress one has declared war or enacted a specific authorization of such use of the United States armed forces, to, has extended by law, the 60-day period, or three, is physically unable to meet as a result of an armed attack on the United States. Okay. So, um, so yeah, so what this says is if the president wants to use military force, he's got to submit a report to Congress.

0:33:36 Andrew: Uh, And he has to terminate his activity unless Congress either declares war, grants a special authorization of military force or, you know, was blown off the face of the map by, you know, and that seems to make it pretty clear to me that one off activities that require less than 60 days are presumptively valid under the War Powers Act. Would add you will not be surprised there are no successful cases that involve lawsuits against sitting presidents regarding the use of military force. There have been efforts. So Campbell versus Clinton was an effort to challenge President Bill Clinton's use of airstrikes in former Yugoslavia.

0:34:24 Andrew: And O'Connor versus United States, 2003 decision challenging George W. Bush's war in Iraq. And both of those cases were decided on other grounds, it remains the case. You know, we always ask this question, right, because I've said the first place we look to for understanding the significance of the meaning of constitutional terms is the history and jurisprudence.

0:34:51 Andrew: Yeah. And, and what we can tell from previous cases is that there have been no successful efforts at blocking a president's use of military force, either under the constitutional provisions or under the 1973 War Powers Act. And so, as I read kind of the, at least ambiguity, and I would argue, you know, there's kind of a 60-day safe harbor period, plus the prior memoranda that had been submitted by both, both Democratic and Republican House counsel, I think this is a legitimate exercise of the president's authority as commander in chief. Again,

0:34:50 Thomas: Telling oh yeah, yeah yeah

0:35:35 Andrew: Now, you know, we can question the wisdom. We should question the wisdom every day of giving a game show host with no political experience control over the most powerful military on the face of the planet. But we did that. Right. And elections have consequences. And

0:35:49 Thomas: Because when you give them control of that military, uh, Syrian bomber planes will be, inconvenienced for almost an hour, an hour, maybe two hours, so that's the kind of raw power that this administration wields, they can, they can severely delay. You, that's the most frustrating part about this whole thing to me. They couldn't even just destroy the entire airfield. They put the airfield out of commission for like, I don't know, half a day or something like it. We spent millions to do that. So anyway, sorry, I had to make a joke there, but it is very frustrating. At the very least, could you at least demolish the target that you're going for?

0:35:57 Andrew: No, and yeah, would think if if the objective is to eliminate the future ability of this Assad government to deliver chemical weapons, what you would want to do is strike at their chemical weapons facilities and shore houses and strike at their air force that is delivering said chemical weapons. It is.

0:36:38 Thomas: Yeah but no, so anyway, different story, though, yeah

0:36:56 Andrew: But yeah, but look, yeah,

0:36:56 Thomas: I I suspected the Answer to this was this was legal, because, uh, I mean, we, we've seen every president for, what, since, I mean, I'm, I'm not that old, but I remember going back when Clinton would do this kind of thing, you already referenced it, uh, I don't remember, and I was a little young, but I, I don't remember congressional authority for every single one of those little cruise missile strikes that Clinton did to distract from the blowjobs he was getting. But I would imagine that this, presidents do this for decades now, that it would have been surprising for it to not be legal, to me anyway.

0:37:20 Andrew: Yeah.

0:37:31 Andrew: And let me add one bad argument that I think has been made. It was made by Senator John McCain, who, of course, has not met military intervention that he does not want, has argued that this was expressly authorized by the 2001 Authorization for the Use of Military Force in Iraq. I will link that in the show notes. I can read you the entire authorization because it's two paragraphs long. And it says, the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he He determined he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11th, 2001, or harbored any such organizations or persons in order to prevent any future acts of international terrorism against the United States by such nations, organizations orpersons. And then there is the paragraph B.

0:37:50 Thomas: Oh, does he think it falls into that, like preventing? Venting, but it sounded to me like that was attached to if you were harboring terrorists who committed 9-11, right? Yeah,

0:38:28 Andrew: Right. Yeah, well, it says he determined, planned, authorised, committed, or aited the terrorist attacks that occurred on September 11th, 2001. And then and then there is a subparagraph B that says, by the way, this is intended to constitute specific statutory authorization within the meaning of the War Powers Resolution. Right. So but that's it. Think it is a I think it is an untenable uh reading of the war powers act

0:39:02 Thomas: Because that Would allow you to do anything anywhere in the Middle East, really. If the authorization for Iraq allows you to attack Syria when there's no connection to 9-1, then unless he's trying to allege that somehow, that would be alarming to to me if that allows you to attack any country and essentially in the area right.

0:39:03 Andrew: Yeah And and the provocation for this and and look like again uh if we were talking about a different president um... there's absolutely nothing wrong uh it is actually a continuation of of of the Clinton doctrine uh to say that we will strike against and disable uh a regime from using chemical weapons against its own Right. Like that, that's that's a perfectly legitimate international goal of the United States. But that does not have a plausible, tenable connection to preventing future acts of international terrorism. And the statements being made by the administration, like, you know, to their credit, right, they are not saying we undertook this to prevent future terrorism. They're saying, look, there was a terrible chemical weapons attack, and we did this to make sure there aren't subsequent chemical weapons attacks. Value, that justification is consistent with the acts of the United States of the past 40 years and, in my view, complies with the operative legal requirements. So make America great again, is I think what I'm saying.

0:39:48 Thomas: Yeah are Knew it. I knew I saw him wearing the hat. No, all right, yeah, thanks for keeping us honest. I I I suspected that was the answer, and let's let's attack Trump the right way. Let's uh let's make sure to keep logic and facts on our side. But all right. Thanks for taking us through that. And now we have our favorite segment, one of our favorite segments. And let's hit that music right now.

0:41:07 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.

0:41:25 Thomas: We just heard our favorite song, and that was the yodeler. And so that's how you know that we're going to talk about the fact that uh the clear path, I'm sure we have to impeach Donald Trump. Right, right, huh, right, closet.

0:41:40 Andrew: Yeah, well, I want to keep my uh streak alive. So having uh having defended Donald Trump uh I think in all three segments of the show as I'm about to do that. Yeah, that that that means I don't know where all our all the people who hate tweeted us will go. But, yeah, there was there was nothing. There was no there were no procedural defects in Neil Gorsuch getting on the Supreme Court. We just discussed Syria and something that is making the rounds in our circles. Is a Robert Reich video that is the five grounds for impeaching Donald Trump. I

0:41:50 Thomas: Conservative yeah well I'm glad

0:42:21 Andrew: Will link. Yeah, I will look in the show notes, but I

0:42:21 Thomas: We have five wow it could have only been one or two, but it turns out it's five. I can't wait.

0:42:26 Andrew: It in fact, I'm going to let you tackle these.

0:42:31 Andrew: So here are Robert Reich's five grounds for why Donald Trump can be impeached. Number one, Article two, section two requires the president to faithfully execute the office of president of the United States. That's the presidential oath clause. And he is not doing so because he has accused Obama of impeachable and illegal activity with no evidence. Those are the wiretapping claims. How do you rate that as a ground for impeachment? I'm

0:43:00 Thomas: Well uh I'm Going to do the disappointing thing that you've done to me every single time anyone's asks any of these questions, which is, well, impeachment is an impeachable acts or whatever the Congress decides is an impeachment. So if somehow they, if the Republicans all of a sudden woke up in some sort of body switch situation where they all decided like a Freaky Friday scenario where they they all had changed brains and decided that not that accusing Obama of wiretapping was uh a high crime and a misdemeanor, technically, yeah, it could be impeachable, but it sounds pretty thin otherwise to me.

0:43:39 Andrew: Yeah. Yeah, I have to say, I if were a member of a democratically held House of Representatives right now and those were the grounds for impeachment that were drawn up before me, I don't know that I could vote for that. I would not want I mean, look, it's tough to say I trust in the American people not to elect a callow moron as president. Um, but the idea that a president could be impeached for the things he says about his predecessor. Um, I, I wouldn't want to set that precedent. Right. Like, I know how I felt as a Democrat in 2008. And and I and certainly, you know, yeah, yeah.

0:43:53 Thomas: Yeah because you know, Mitch McConnell will take it further the next time around by the way once he, once that impeachment happens, then it'll be well he looked at the president, looked at somebody the wrong way and then you know what Democrats started this at

0:44:27 Andrew: Yeah. Well, well, look. Yeah, I mean, if you if you impeach President Trump for saying bad things about his predecessor, I that's essentially what this comes down to. If you say that constitutes a high crime or misdemeanor, then, yeah, I would be very, very concerned about what, you know, President Elizabeth Warren is going to do in 2020, you know, January 2021 in describing the mess that she's going to inherit from President Trump. Right. So, you know, yeah, look, I I agree presidents ought not to to do this, uh but okay

0:45:06 Thomas: The same time it Is a little weird. I know it's something we've already talked about, but I it's it's so hard to grasp with the fact that Trump can just accuse his predecessor of a literal crime, like actually fabricate a crime that that that Obama did. And there's no consequences other than, well, sooner or later after he's ruined the world, then we'll vote him out of office. It is hard to believe that that's the only recourse. So I guess I what I'm saying is I don't blame uh whoever Robert, I don't know Robert Reich, but I don't blame him for trying I guess oh

0:45:08 Andrew: Uh former secretary of labor under uh president Clinton, first uh first secretary of labor or possibly the treasury, I actually, I think he was secretary of the treasury, um, unimpeachable liberal credentials. I like the guy, uh he's sort of taken up the gadfly role right now, um, but I just think this is a step up too far. And with respect to that, I Trump led a convention in which chance of lock her up were led from the stage throughout the Republican National Convention. So I don't really know why we should be surprised that that rhetoric has continued. I mean one of the things you and I have said sort of since Trump became president is all of these are things that he he promised to do, right. And yeah, I mean, the wiretapping is new, but the demonizing your political opponent. I mean that that's part of what people liked about Trump that got him put into office. I don't I don't know what the long term fix for that is, it's certainly bad.

0:45:47 Thomas: Okay yeah so It's that's that's pretty uh frustrating, so anyway That's that's the answer to that one. Really would be I I agree with you, though. I mean, that would be uh that would be setting a difficult precedent that I wouldn't be too comfortable with, ah the emoluments class

0:46:47 Andrew: Yeah. Yeah. Reich's second ground is the is our old friend, the emoluments clause. Article one, section nine. And here he points to two supporting pieces of evidence. The first is the decision in China that came sort of serendipitously soon after the election to approve various Trump trademark applications that had previously been pending. And the second is steering foreign diplomats and others looking to curry favor with the president to Trump hotels. And do those count as foreign emoluments? And I would say, again, we did two episodes on the foreign emolluments clause, leaving aside the legal argument that was raised that I think neither you nor I were persuaded by. I would Describe the classic application of the emoluments clause, and so so did Professor Tillman, as, you know, Russians give you a bag of money. That's what it was sort of meant to cover. These if those are the paradigmatic cases, I think that the uh foreign business entanglements, again, are something that uh I would look at as being resolvable through the political process, right, like if you elect a guy and again remember Trump ran on uh I'm too rich to be corrupted, which

0:47:04 Thomas: Right yep okay

0:48:26 Andrew: Is the most preposterous assertion I've ever heard. But I mean, he expressly ran on I'm a rich guy with hotels all over the world. And, you know, the fact that the Democrats didn't make a very good case against this and the fact that voters were like, oh, yeah, well, I'm sure that when he's president, despite the fact that he's, you know, disclosed basically nothing about these businesses around, I mean, I really view a lot of that entanglements as, you know, sort of the being on the fault of the voter, right? Like it, we were supposed to, it's why it's been a tradition for presidents to release their tax tax returns. And we talked about that. But but but it should have been the argument should have been presented clearly of, you know, here is somebody with, you know, a leviathan of international agreements who has done everything in his power to be as opaque about them as possible.

0:49:22 Andrew: And, um, we can't give somebody like that executive power, right? That's the political argument because we've now given that that person executive power. And it's and it's beyond obvious that he's using that power to, you know, enrich himself and his immediate family and his tiny inner circle of cronies. And that's it. I think that is a difficult case to make to a hostile House of Representatives that that would constitute a violation of the emoluments clause. Although I would say that's the best of the arguments of these four is the emoluments clause. And certainly, you know, if if if we had a Democratic legislature, you could see that legislature passing specific guidelines right now would restrict future entanglements. And I suspect, by the way, regardless of who the next president is, that we will see that. Right. I mean, we have a history in this country of passing legislation to, you know, lock the barn door after the horse has long escaped.

I suspect that we will see future legislation that specifically says, you know, a president using his influence to promote his business interest, but you know, but we don't have those laws right now, we don't have that guidance, we just have, you know, the that single line in the Constitution. And again, I don't know, uh, know if if you had a Democratic Congress, I don't know that that that would be sufficient.

0:50:00 Thomas: Right uh, this next one I think is particularly weak, unless I'm uh, maybe I I'm I'm not reading it right, but it just says the the Muslim ban, having violated the First Amendment. So are we believe from this Robert Reich guy that if you propose, uh, or if you do an executive order that's struck down by the courts, that would be an impeachable offense? That sounds outrageous to me.

0:50:54 Andrew: Yeah it it it really is the argument he's making. And it it it sounded outrageous to me, too.

0:51:16 Thomas: So that's absurd. I mean, how much stuff did Obama have struck down by courts? I mean parts of Obamacare, he tried to do certain, I mean what would just, once you do something that a court decides is unconstitutional or doesn't hold up, then we get to impeach you? That cannot be, that can't be right.

0:51:17 Andrew: And yeah, right.

0:51:35 Andrew: I agree. But that is the argument that he was making. And it's it that's why that's a bad one. See, like I said, you should take this.

0:51:41 Thomas: Man, Man. Yeah, yeah. And then same goes for four, I'm guessing, right? Because he's threatened to abridge, number four is he's threatening to abridge the freedom of the press. And which, again, yeah, these are all bad things.

0:51:51 Andrew: Right. And that is The Cowering of Journalists. And I look like I agree that's That's a terrible thing.

0:51:56 Thomas: Yeah. Exactly. Go ahead. We're just going to say the same stuff. So.

0:52:01 Andrew: Yeah, you say it.

0:52:02 Thomas: Okay. I'll say, I mean, these, these things are all good. These are all bad things is not to in any, by any means endorse any of these things, but there, there has to be a standard of what's actually impeachable, otherwise you're just going to go back and forth impeaching each other's, you know, parties present for stuff that you don't agree with rather than stuff that's actually a high crime or a misdemeanor, uh, and as far as the abridging freedom of the press thing goes, I mean, we shouldn't get into it, but I mean, there was some stuff Obama did early in his administration that was actually not entirely dissimilar from some of the stuff that Trump has done, uh, and and I know that's that can be uncomfortable to hear, but he corps, and he did, he did a lot stuff like that early on that, uh, that people looked at as, uh, abridging the freedom of the press, and I don't think it was impeachable for him, and I think it's impeachible for Trump.

0:52:50 Andrew: Yeah. And let, I think I know to to what you are referring. I would want a Democratic president to be free at a press conference to look at a flack from Fox News or from Breitbart and say, "That's a ridiculous question. Question. Don't come in here with your partisan crap. And I'm going to call on a real reporter now." Right. And and and and I think that's perfectly legitimate to do. And so it's preposterous that Donald Trump's definition of what constitutes fake news is anybody but Breitbart, but again, you know, when you draw the line of the president, kicking out various members of the press or singling out, uh, individual reporters or news institutions by name, uh, you know, again, we gotta, we gotta play by the same rules on both sides, and, um, and there are certainly, if I were president, like, there's no way, I mean, there's no chance I'll ever be president, uh, but there's, uh, no way I'm not gonna, you know, I'm not gonna stand there for a question from you, some idiot it at Breitbart, I'm gonna be like, um, that question's ridiculous, next question.

0:53:54 Thomas: Yeah. Yeah.

0:53:55 Andrew: Um. And yes, and the fact that Trump is using those techniques, you, on, uh, you know, Wolf Blitzer or whatever, like, is kind of ridiculous, but but, uh, but not impeachable.

0:54:06 Thomas: Well. Wolf Blitzer deserves it, but anybody else, now I know what you mean, all right, right, what is number five, I don't even know that I understand this one, you'll have to take this one

0:54:07 Andrew: Well. The last one was just Reich saying, and possibly a fifth, if we uncover evidence that he, yeah

0:54:16 Thomas: Yeah. It was this, the old round number provision, the and because I didn't want to do four, yeah, why don't we go there Through 10.

0:54:20 Andrew: Yeah. It was the if if If if we find evidence that he conspired with the Russians to to subvert the election. Yeah.

0:54:30 Thomas: Through 100, if we find evidence that he killed somebody, if we find out, yeah, yeah.

0:54:31 Andrew: Yeah. And look, like, if there is evidence that Donald Trump or operatives in his campaign conspire with the Russian to fix the election, then I would agree that impeachment is a proper remedy. Um, but not, we were not there yet, Francis. Like, so, so I was not overly impressed with the, uh, with the Reich video. Um, I, still a fan. I am glad that he's a voice out here on the left. But of the things that that you and I have have continually beat the drum about are, you know, sort of number one, making sure that you're making good and factual arguments on our side. And number two, that, you know, that those arguments you're, of how those arguments swing both ways. I

0:55:15 Thomas: I I really don't like stuff like this, I mean, I on the left, I, and you I I said this on Serious Inquiries Only very early into Trump's presidency, or even maybe before he assumed office, that I was worried and I'm very disturbed that fake news is more a product of who's in power than it is left or right. I hope that's not true. I hope we can say that there's more fake news on the right and the left is going to be closer to reality in general. But stuff like this, it's not helping. So let's tidy it up a little bit, it, left, stop with the sources that are clearly just talking out of their behinds and not really, they don't really know what they're talking about, so that's that's my quick two cents on that.

0:55:57 Andrew: Agree.

0:55:57 Thomas: So I guess the answer is the yodeler just practically fell down the mountain a little bit more, I mean, this is just not even close after this, I mean, uh but we'll have to stay tuned, we'll keep an eye on that yodeller, and maybe someday, maybe someday in 20 never, no, no, that's not happening. He will be, after looking at the 2018 midterms, my adjusted belief is that he will lose in 2020 before he's impeached. I just don't, my prediction, again, hold me to this, but I don't think that's ever going to happen. It would be great if it did, but I think he will loose in 2020, and that will be how we get rid of Trump. So, whatever, we'll see.

0:56:01 Andrew: That

0:56:37 Thomas: Sorry. Sorry.

0:56:37 Andrew: That that's where, that's where my prediction has has been how did he

0:56:41 Thomas: Yeah, you were right. You were right, sorry. I was hoping 2018 would do something. It could. It's a tiny possibility if everybody hates Trump. If his approval rating is like 30, or in the 20s, it's possible that people just don't come out and vote, even though the map is way in the, or not the map, but the elections that are up in 2018 are way favorable to Republicans. It's possible. It could be a landslide the other way because there's so much energy, and hey, let's let's all hope for that, but it's going to be a difficult road.

0:57:12 Andrew: Here's here's the way to summarize it, based off your episode of Serious Inquiries Only, in the way that I have been giving it as a shorthand to folks, which is the Democrats have to hold on to all of of their seats, they have to pick up two tough races, and and then the other way is that either have the win in Utah and defeat Orin Hatch, or in Texas and defeat Ted Cruz, and I, you know, no, I did

0:57:13 Thomas: Yep. Yep. Texas.

0:57:40 Thomas: Is a tiny possibility, it's gone, it's it's a weird state now, but you never know, but even if we win, if we keep all of ours and win too, it's still not enough, unfortunately, so yeah, like you say we have to, oh

0:57:42 Andrew: It. Yeah. Can you come up with it? You can come up with a scenario. But that's correct. Yeah, you got it. If you want, if you want to believe Democratic Senate, you have to believe Ted Cruz losing his seat. Now look.

0:58:01 Thomas: I would love to believe that would go, you know what, nothing in my heart will ever, you know, know, will ever heal the wound that is the fact that Trump, you know, assumed the highest office of the land, that never will be fully healed. But Democrats taking back the Senate with Ted Cruz losing his seat, that would go a little way. I would accept that as a, okay, you know, we're, I'm speaking to the universe again. We're on, we're now on speaking terms because that, that WOULD BE PRETTY GREAT.

0:58:02 Andrew: Oh, we will.

0:58:31 Andrew: The universe does owe us a couple do-overs, doesn't it, yeah.

0:58:35 Thomas: Oh, no kidding. I'm not talking to the Universe. But anyway, that's our analysis there. Thanks for taking us through that. Andrew, I chipped in a little bit. I think I've learned enough from you over the? Eight months or so. But anyway. Thanks for that. And now we'll have to thank our new patrons. And they are Zach Attack from the back. Nice.

0:58:46 Andrew: Yeah.

0:58:58 Thomas: Deborah. Thank you, Jessica Wilson. Alastair Lichten, I think. Aig787. Alexis Krohn. Gerardo García, Torstein Skurve, Erik Durso, Danyel Fisher, Joseph Stricklin, Kathy Ross, Trey Beard, Grunting Frog. Thank you guys very much.

0:58:57 Andrew: I

0:59:25 Thomas: I left you this one.

0:59:24 Andrew: Thanks thanks for cutting on this one, yeah. Thank you

0:59:29 Thomas: I don't know if we can This is a children's program. I don't know if we can

0:59:30 Andrew: Yeah uh thank you to Smalley sighs when he blows me, thank you too, Emily, to Ryan B, to Jeff McLeod, to, uh, Pledge Edit to Adopt a Homeless Pet and Oppose Declawing and Ear Docking, um, so again, uh, you can use your pledges, your pledge edits, for causes that happens to be a good cause we agree with, um, thank you to Kalen Turner, to Eric Schnoebelen, to Dylan Barnett, Karen Sheets, thank you too, Stephanie, thank you, Beth Deitch, and thank you, DannoG. Thanks to all of you for supporting us on patreon.com/law, uh, all of your support is what helps make this show possible, and we really appreciate it.

1:00:19 Thomas: Absolutely, and we are inching ever closer to those new goals. So get us there, there, guys, and enjoy the Law'd Awful Movies in the process. Oh, and if you, I want to hear, by the way, Lot Awful Movie is number four with, uh, Sam from Comedy Shoeshine, go over to the Comedy Shoeshorn feed where that is there, and I'm sure that one was great, and I am sure you are going to want more, and if, do you want more, make sure to pledge to patreon.com/law.

1:00:45 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:00:50 Thomas: Right, it is time to find out whatever question I answered Way back before I had a life-changing experience in Europe, now I've, I've just, I've decided if I, if I get enough wrong, I'll just say that, you know, my my vacation in Europe has caused me to no longer wish to pursue the law, but but that'll be my excuse I'll keep later on. But until that happens, how did I do? Let's find out. Hmm.

1:00:55 Andrew: Okay.

1:01:14 Andrew: Um, we're going into this question, uh, 10 out of 17, um. And this question was an oddly prescient question involving a president signing into law the quote, American Morality Leadership Act, which limits the amount of makeup that women can wear in public, precludes wearing of short dresses, requires men to wear brown or gray attire while those under 65 must wear buttoned, buttoned down dress shirts with neckties, uh, it just, uh, you know, kind of goofball, uh, completely authoritarian act. And the question is, which argument listed below more closely reflects the constitutional argument that is most likely to succeed in court? Our listeners, I will point out, were all over the map on this. So our answers were, A, the law is unconstitutional because it violates the Commerce Clause. You could see that because it requires a certain kind of dress and prohibits makeup, and maybe you can make that argument.

1:01:18 Thomas: Yes.

1:01:29 Thomas: I'm

1:02:15 Andrew: B, this was your answer. The law is unconstitutional because it denies all citizens the equal protection of the law. C, the law is Unconstitutional Because It Violates Procedural Due Process. Or D, the Law is Unconstitutional Because it Is Not Rationally Related to a Legitimate Government Interest. You picked B. I am forced to tell you, however, that the answer is D. It's a difficult, difficult question. There certainly is a difference between how men and women are being treated in this law. But both men and woman are being subjected to kind of draconian Victorian era fashion requirements, even though they're different requirements.

1:03:02 Thomas: Appealing this one. I appeal this decision already. That can't be right. I

1:03:05 Andrew: And So the question is really best answered looking at substantive due process, because when government actions infringe upon a fundamental right, they receive strict scrutiny. Otherwise, they subject to the rational basis review, which we've talked about, which which only requires them to be rationally related to a legitimate state interest. The right to dress as you want and to have an individual appearance is generally recognized as part of the right to expression that is protected by the First Amendment and is considered part of the rights of ordered liberty that are inherent in the First Amendment. And so this kind of a law would fail to stand up to the level of scrutiny required to satisfy the due process clause.

1:03:59 Andrew: It's depriving everybody of rights, even though there are different deprivations for men over 65, for men under 65, between men, between women. Those were, were all sort of distractors that were in there because the fundamental problem that this law faces is that it was depriving you of that basic right to dress as you want. Right. That's really what the law was getting at, out your ability to wear clothes, which is indeed a considered part of the First Amendment. I wonder what the, what those originalists would say to this view. You, anyway, uh, but so there's the answer, um.

1:04:37 Thomas: Recently went to Europe and I've decided I no longer wish to practice law. I just was so... I found myself and No, I'm just kidding. I'll come back. I'll have faith in me. I'll do it, okay. 10 of 18, that's higher than 50%.

1:04:53 Andrew: Yeah, you just gotta get, gotta get back up, uh, on that horse. Yeah.

1:04:56 Thomas: Yeah, That was a tricky one. I don't remember anything. I've read the Constitution, like, you know, once, and I don't remember anything about having a, you know, they're having to be a, what was the phrase that was used in D? What was It, yeah.

1:05:12 Andrew: Legitimate government Interest. And that is, that phrase is not found in the Constitution.

1:05:16 Thomas: That's Why I was thrown off Is it some part of The jurisprudence since then or something? Okay. Well I'm an originalist So I say that B. I'm changing, what if I do that, if I change to original, originalism is B, right? Oh.

1:05:16 Andrew: Yeah. Yeah. Exactly. It's Part of of how, uh Well Fortunately the makers of the test, uh, view originalism In The same way that You and I do So Uh So There

1:05:35 Thomas: Geez. Oh Wow Why Is That, okay. Well that You should have mentioned That by the way, but As Part of our Why Originalism Sucks episodes, like The makers of the, the test, the bar, actually don't even recognize it. Interesting. Okay, well, you learn something every show, or 25 things, and, uh, well, I learned something and I'll just have to come back next time.

1:05:41 Andrew: We go. Yeah. Well, we'll

1:05:57 Thomas: Well, which listener did a lot better than I did and was smart enough to not fall for that, uh, trick answer B. Well.

1:06:04 Andrew: Well And again, let me say we had listeners guess A, B, C, and D, um, there were only, only a couple of folks who picked D. One of them was Mike, the infidel, at Board Infidel on Twitter, who says, my answer is D, I don't see any rational government interest in establishing the fashion police. Well, Mike, just just

1:06:22 Thomas: I Didn't Either, I just didn't think that was in the Constitution, Constitution. Gosh, I haven't read up on all the jurisprudence.

1:06:27 Andrew: Just wait for President Pence. I am sure you will change your answer. But for now, you are right. Thomas was wrong. And everyone should hit up at Bored Infidel on Twitter. Send him some love. Send them some messages. Congratulations for being this week's winner on Thomas Takes the Bar Exam.

1:06:47 Thomas: Gosh, Andrew, you didn't have to rub it in another time. All right. Well, there you have it. Thanks for listening as always. Thanks for pledging over at patreon.com/law. And thanks for the, they get the early answer, right? They get the early entry every week as well as the Law'd Awful Movies. So thanks for that. And we will have to see you on Friday.

1:06:51 Andrew: Not

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