OA66: Sanctuary Cities

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

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

0:01:27 Thomas: I'm good. Ready to tackle some more important legal questions. So, with that said, let's get to our first listener question for the day.

0:01:30 Andrew: Yes.

0:01:36 Clip: He who questions training, only trains himself at asking questions. What?

0:01:43 Thomas: Okay, Brad Kalmanson asks, Could Trump really carry out his threat to break up the Ninth Circuit? Now, I admit I didn't catch this threat. Is this a recent threat or is this a persistent line that he's using or something?

0:01:57 Andrew: This is I love this question on every conceivable level. Trump's threat to break up the Ninth Circuit came about after what happened in our main segment occurred, which is to say, a US District Court judge in the Northern District of California issued an injunction blocking Trump's executive order uh on sanctuary cities, and Trump took to the Twitter, uh, to say, uh, "Stupid Ninth Circuit, I'm gonna break them up," even though, um, he was sort of misinterpreting his advice from whatever trained monkey legal counsel he has, uh, around the White House, that I think they were trying to say to him, the Ninth Circuit is very likely to uphold, but

0:02:08 Thomas: I see. Oh, this is great.

0:02:42 Thomas: Probably.

0:02:43 Andrew: That's true, but look, I mean, I mean, we talked about this previously, and we're going to get into the merits, which are amazing, in our main segment, just about every circuit court. I mean if this were pending before the 5th or 11th circuits, I mean I would say there's still a good chance that the injunctive relief would be upheld.

0:02:43 Thomas: Yeah. Okay. OK, but

0:03:04 Andrew: So, right,

0:03:04 Thomas: But just in case people didn't didn't catch that someone in a district court, a district court judge blocked his order and he's mad at the Ninth Circuit. So there's no there's not like that doesn't if if this district court were in the Fifth Circuit, Seventh Circuit, Twentieth Circuit, like it doesn't matter. He still could do the same thing. It has no connection to breaking up the NinTH Circuit.

0:03:13 Andrew: Right. Right.

0:03:28 Andrew: I would point out his last tirade, President Trump's last tirade against the Ninth Circuit occurred when the district court judge in the District of Hawaii, another court that is appealed to the NinTH Circuit, blocked the executive order, the so-called Muslim ban. So jurisprudence isn't a strong suit in the White House. Kelly Ann Conway should be listening to the show. We told her how to how to rewrite the executive order in such a way that it had a better chance of surviving and they they declined to listen. So, you know, it

0:03:40 Thomas: Right. Right.

0:04:01 Thomas: It's really funny. It is like saying, I hate Sacramento. I am going to split California into two states. But Sacramento will still exist in the state, right? It doesn't really matter if it will be in one or the other.

0:04:09 Andrew: It so so OK, so right. So now so Trump is mad at the Ninth Circuit and has threatened to break them up. Let's delve into that. But but first, let's deal with your Sacramento point, which is to say, I don't get it, I don't get it, right. Like that, the judges who are on the existing Ninth Circuit who are perceived as being too liberal by Trump will still be on whatever court they're on if it's. And again, I haven't got, I haven't gotten to, you know, that. But like that, those are Article three judges who have life tenure, right? Like they can't be removed because, you know, they were appointed by Democrats, right. Right. Like, I mean, it's just because

0:04:12 Thomas: Yeah. Right.

0:04:51 Thomas: In trying to interpret, is he thinking in his his little brain, is he thinking like, okay, we'll break it up so that there can be, instead of one liberal circuit, there'll be, well, there'd be like a smaller liberal circuit and then another conservative circuit, but then it doesn't really matter, does it? Because, yeah, exactly.

0:05:09 Andrew: Because his complaint is forum shopping and you will still be able to go to the liberal one. That's exactly right. I don't get it. Could you put so so you could put you could carve out.

0:05:14 Thomas: Yeah, yeah. It's not like the circuits vote and then there's a majority of circuits. I mean, mean, does that happen? I mean, I suppose you've talked about the fact that how certain circuits rule on things maybe affects the other circuits, but it's not as though there's ever like, okay, every circuit vote. Oh, damn it. This ninth circuit is throwing off our vote like tally. I don't, you know, am I crazy?

0:05:41 Andrew: Yeah, it it's his complaint was forum shopping. And and so, yeah, it, I don't understand it. I suppose maybe you could make kind of a gerrymandering kind of argument because, OK, the Ninth Circuit geographically is the largest circuit. OK, it covers Montana, Idaho, Nevada, Arizona, the Pacific Coast, Washington, Oregon, California, Alaska, Hawaii, also Guam, I believe Puerto Rico and I think the Panama Canal zone. OK.

0:05:46 Thomas: Yeah. Wow.

0:06:13 Thomas: We need to break that crap up.

0:06:14 Andrew: Right. So could you carve out you could carve out, I suppose, stick Washington and Oregon in with Idaho, Montana, Nevada and Arizona and then have California, Alaska and Hawaii all be in the same circuit.

0:06:30 Thomas: Oh, and so you try to over time, maybe create two conservative or moderate it circuits

0:06:35 Andrew: And and basically say, OK, whatever has California is going to wind up being, you know, the liberal circuit.

0:06:37 Thomas: Oh it would still wind up Okay, I thought you were trying to pair them each with a bunch of conservative states and hope that they, yeah, okay

0:06:42 Andrew: Yeah. But I was trying. But but there are a couple of, there are a couple of rules that that are or principles that are at stake here. And So there are a couple of principles that are at stake here. And those are there is a judicial precedent that you don't create a circuit that has only one state. Right. Even though you could very easily just have an appellate circuit that covers only California. OK, but got to have more than one state. And you do not want to have any non-contiguous states. Right. So, you know, you wouldn't want to Have a circuit that is like California, Texas and Oklahoma. Right, right. You know, and yet, well, Hawaii and Alaska have their own problems. That's why I stuck them in. But again, I think I think that the way that principle would work would be you could pair them up with a coastal state, but you wouldn't want to pair up Hawaii with and

0:07:01 Thomas: Okay right I mean Hawaii is kind of screwed no matter what but all right, yeah sure Nevada

0:07:35 Andrew: And and that is. Right. Remember that when you have an unbanked decision, all the judges have to get together. Right? And So if you had a circuit that was, you know, California, Texas and South Dakota, like all those judges, like I don't care how conservative they are. Like, you can be Neil Gorsuch writing liberals in lawsuits. But the moment that like your president is like, hey, I'd like to stick you in a circuit, that's going to require you to go to Fargo, like you're gonna gonna be like, uh, how about I not do that. Right. So, um, because you have to sit actually physically be there for those en banc arguments right yeah Right, I like the person who said every time I say en banc they picture someone getting hit with a rubber mallet, um, you know, an oversized novelty, uh, hammer, um, uh, but I'm gonna continue to say it because it's kind of an important thing to do.

0:07:38 Thomas: Yeah yeah on a bonk right that's what that means right yeah all

0:08:23 Andrew: So, look, you had the joking. Now let's talk about the law. So we've talked about this. Just this is, it's, it's kind of stupid factually. I don't understand what you think you're going to get out of it. But let's talk about the law whether

0:08:28 Thomas: Right oh whether or not you can break up a circuit okay yeah whose job is it to do that

0:08:39 Andrew: You actually can do this. So, yeah, yeah. President Trump can't do this. But here's where all of this stems from. If you turn to Article Three of the Constitution, it says in its entirety relating to the judiciary, quote, "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish." And that's it. It doesn't specify size of the Supreme Court, which we've talked about before. It doesn't specify the size of those inferior courts. And so our structure was really created by the Judiciary Act of 1789, Act of Congress. It was modified. There was an 1891 act that created the Circuit Courts of Appeals that really gave us the structure that I have described for us many times on this show.

0:08:45 Thomas: Sure okay

0:09:34 Andrew: Of federal district court, circuit courts that sit geographically, and then Supreme Court above that. So the answer is, could Could a Republican Congress breakup the Ninth Circuit? And the answer to that is yes. Yes, they could. And in fact, the last time this happened was a Republican Congress with a Republican president in 1981 broke up the Fifth Circuit into the Fifth and the Eleventh Circuits. So the old Fifth Circuit covered pretty much the entire Deep South, right? Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. And they were broken up into two new circuits. That old Fifth circuit at the time had 26 sitting judges. It had the largest docket and was the busiest circuit court in the country. And because of that, they split off Alabama, Georgia, and Florida into the 11th Circuit. And the 9th Circuit has 25 judges on it, right? So all of the arguments from a procedural perspective of let's loosen the workload that would be consistent are not bad arguments, right.

0:09:49 Thomas: Okay

0:10:43 Andrew: Right. Like if there were an independent committee that said, hey, we're going to need to split the 9th and the 12th up, you know, create a 12th judicial circuit. Yeah, that'd be fine. But as a form of political retaliation, you Know, obviously, Trump can't do it on his own. And it strikes me, unless there's something that that I'm not seeing, it strikes me as very, very difficult to gerrymander that into two less liberal circuits. You're still going to have kind of the overwhelming majority. 18 of the 25 judges who are on the Ninth Circuit right now were appointed by Democrats. Some of them are more liberal than others. Uh, but you know, 18 and seven, I mean, again, we did our gerrymandering episode. That's hard to, to break out into, to, you know, 50, 50, uh, circuits.

You're still going to wind up with with a liberal circuit in my view, um, and additionally, breaking, you know, all of the like crazy right-wing loons who are like, break up the Ninth Circuit and have no idea what that means, um, in order to establish a 12th judicial circuit, uh, Congress is going to have to fund that, right, that will create new judgeships, they will, you will need to have new courthouses, I mean, you know, it. It that

0:11:02 Thomas: Yeah They're too busy. Is he paying for a wall? I can't be doing that.

0:12:08 Andrew: Yeah, you can't do that in a revenue neutral way. And so as soon as these, you know, Freedom Party caucusers, you know, who are chanting break up the Ninth Circuit right now, get a bill before them that is going to require them to raise taxes to do that. I suspect these demands will go away. But but but there you have it. Our president is mad at a district court judge in California wants to break up The Ninth circuit um just to that'll that'll show him yeah I

0:12:27 Thomas: Yeah. All right. Just to show him. Just to punish him. That's a great question, though. Thanks a lot, Brad. Good stuff. Good explanation, Andrew. Okay. Let's go to our main segment for the day.

0:12:55 Thomas: Another important segment here. This is a crucial thing. This is another Trump executive order getting overturned. Sorry, not overturned, I need to word this properly. I should know better. I listened to opening arguments. It's going to be an injunction, right? It's gonna be a stay on the order, right, like, okay. And it's that pesky Ninth Circuit. If only you could have broken them up, this might not have happened. No, that's not accurate. It is a district court judge. Judge. So, what's going on with Donald Trump? What's going on with President Trump's order on sanctuary cities?

0:13:12 Andrew: Exactly right yeah Uh, so this uh covers Executive Order 13768, which is the Enhancing Public Safety in the Interior of the United States. That's what it's called. I didn't name it that. And so there's a big fact-finding section. Tens of thousands of removable aliens have been released into communities across the country solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our federal, state, and local jails. So it is the policy of the executive branch to ensure the faithful execution of the immigration laws of the United States and make available all systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States. So what does it do? It says nine targets sanctuary jurisdictions, and it says it is, is the policy of the executive branch to ensure to the fullest extent of the law that a state or political subdivision of a state shall comply with 8 U.S.C.

0:14:31 Andrew: 1373. That is communication between government agencies and the I.N.S., so reporting immigration status information back to the federal government, and okay? Here are the key provisions, subsection A. In furtherance of this policy, the Attorney General and the Secretary of Homeland Security may, in their discretion and to the extent consistent with law, ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373, sanctuary jurisdictions, are not eligible to receive federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or secretary. The secretary has the authority to designate in his discretion and, to the extent constant with law, a jurisdiction as a sanctuary jurisdiction.

Uh, the Attorney General shall take appropriate enforcement action, blah, blah, blah, that's not important. B, to better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the, the secretary shall utilize the declined detainer outcome report or its equivalent, and on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens. Okay, so there's the EO, uh, we want to target uh illegal aliens, uh, the Attorney General, and let's not forget that's Jeff Sessions, one of the dumbest human beings on the planet, uh, and also a doc, well-documented racist, uh,

0:16:02 Thomas: Yeah, and yeah, just a horrible person in general.

0:16:03 Andrew: Yeah. So Jeff Sessions and Secretary of Homeland Security, an individual whom I had to google to discover, his retired U.S. Marine Corps General John F. Kelly, so if you didn't know that, I didn't know that either, don't feel bad.

0:16:17 Thomas: Me neither.

0:16:17 Andrew: Um either one of them may designate an area as a sanctuary jurisdiction. So let's start off with that. Um. This has been called the sanctuary city, uh, executive order. Thomas, what, what would you say a sanctuary city is?

0:16:31 Thomas: Is it a lawless land where criminals run free and and murder is not punished, and you're, yeah, there's like chainsaw battles happening. I mean, I know that's, I'm pretty sure that's what's going on, right?

0:16:37 Andrew: Yeah. Thunderdome actually. Um right. Yeah, no. And yeah. And, and the answer is, um, no one knows.

0:16:49 Thomas: Roaming bands of illegal immigrants wander the streets killing children. Is that right?

0:16:54 Andrew: Yeah. Um The, so the real answer is no one knows. And the reason why no one knows is because this is one of these kind of weird political terms that has been used as a pejorative and then sort of embraced by some that are part of that as part of their own language to kind of reclaim it. So let me give you an example of some policies that are sometimes considered sanctuary city policies. Right. California was one of the first jurisdictions to have cities that passed that.

0:16:55 Thomas: Yeah.

0:17:26 Thomas: Well, what's interesting that You said that nobody knows what it is. I thought that that wasn't under dispute, but I'll be, be interested to learn why, but I thought it was just when cities decided they didn't want undocumented immigrants to be feel threatened, like enough to not report crime and stuff. So they, they took the, uh, they took the mindset that they're not going to deport or arrest, uh, possibly undocumented people just for basic interactions with police, isn't that right, not The case.

0:17:28 Andrew: Yeah.

0:17:57 Thomas: So, I got, okay, mark, mark, another one.

0:17:54 Andrew: Yeah, not not case. So, yeah, I'm

0:17:59 Thomas: Off on the bar, so wait, what's not the case? You're saying that's not what a sanctuary city is? Is

0:18:05 Andrew: I'm saying that maybe there are cities that have similar policies, but that there's no fixed definition of what constitutes a sanctuary city, and that the sort of bare minimum for what constitutes or could potentially constitute a sanctuary city, any city or political subdivision that fails to comply with voluntary request by Immigration's and Custom's Enforcement, ICEE, the former INS, can be labeled as a sanctuary city. So, for example,

0:18:39 Thomas: I suppose. I, I mean, I was just answering what in the common, common parlance, you know, we think of as, so you're saying, what is the actual definition according that, that this executive order, which it's important to define things when you're, you know when you doing this. So, so I, I, was answering from a different angle, but I see what you're now that there's, there's not a consistent definition that you would need in order to enforce an executive order like this.

0:18:42 Andrew: Yeah, yeah, yeah. Right. No, no, no. Right, right.

0:19:06 Andrew: So ICE will issue requests to localities and they will say, if you know of immigrants with undocumented status, we need you affirmatively to report that to us. Now, that's a voluntary request, right? The local authorities can choose how much they want to comply with that. And by the way, I would recommend we covered in the C segment of Opening Arguments episode 52, we looked at some analysis from an immigration lawyer on the term illegal alien. And I found that when I was doing the research for that question, I found that immensely helpful in a debate. Again, not left-right, although we're not hiding where our political views are on this, but I found it immensely useful on the terminology, because if you want to take the provision that you have violated the law by failing to comply with the immigration laws and therefore you are an illegal alien, you... You can take that position as a as a political position, but it is not one that is recognized in any of the statutes. The term illegal alien, as we discussed, is found only in one statute and it doesn't mean what you think it means.

So go back, listen to 0852 if you haven't. If you have, I don't know, go back and listen again. It's a pretty good episode. Um, but, but the point is, there's no fixed definition of sanctuary city and it can mean all the way up to, uh, things like, uh. I was going to talk about California was one of the first, uh, states that had, uh, cities that designated themselves as sanctuary cities, right, affirmatively took on that mantle.

0:19:41 Thomas: Right. Sure.

0:20:49 Andrew: And in Los Angeles, there was a policy called Special Order 40. And it said police officials shall not initiate police action with the objective of discovering the alien status of a person. Officers shall not arrest nor book persons for a violation of Section 8 Title 1325 of the United States Immigration Code illegal entry. OK, so the the idea there is that if precisely

0:21:12 Thomas: Okay. They're not going around trying to find uh undocumented immigrants like by by pulling them over for no reason or that kind of thing, okay.

0:21:24 Andrew: Right and that and that if the status is discovered because they've committed a crime, right, then, you know, they would nevertheless comply with the law, report the information, but that essentially you're not going to deputize local law enforcement officials to act as extended immigration officials. Right. That even though, yeah, we can make the argument you violated the law, but if you are law abiding while residing in the country outside of a documented immigration status, that we're not going to engage in that heightened level. And that's all right. So. So the phrase sanctuary city. Right. Is not, you know, like like the old Dukes of Hazzard. Right? Like if I if I cross the county line, you Know, your jurisdiction ends and all of a sudden I'm home free and, you you know, I can commit whatever crimes. No, it is. Is local law enforcement going to engage in additional

0:21:25 Thomas: Right.

0:21:45 Thomas: So Wait, you're saying no

0:22:23 Andrew: Investigatory?

0:22:23 Thomas: Chain, how many chainsaw battles, of some chainsaw battles, or no, or it's gotta be some in Sanctuary cities because sanctuary

0:22:28 Andrew: Yeah. Now, given these kind of incredibly broad potential definition of sanctuary city, right. Given the fact, look, we read that section 9A that the The executive order says Jeff Sessions has the power and Tom Kelly, who I'm sure is a fantastic human being, That they collectively and individually, each of them have the power to just declare an area to be a sanctuary city. So with that in mind, uh, the counties of Santa Clara, uh, and and San Francisco County and then the city of San Francisco moved, uh, for, uh, injunctive relief for a temporary restraining, for a contemporary restraining order and preliminary injunction, just like you...

You anticipated in the U.S. District Court for the Northern District of California, seeking to block the order. And here's what they alleged. They say the enforcement provision of the order, Section 9A, first violates the separation of powers doctrine enshrined in the Constitution because it improperly seeks to wield congressional spending powers. Right. In other words, the president doesn't get to decide who gets federal funds. Congress gets to decide how to spend the money because that's what Section 1 of the Constitution said, Article 1 of the Constitution says, right?

0:22:47 Thomas: Wait Yeah Right

0:23:44 Andrew: Second, it is so overbroad and coercive that even if the president had spending powers, the order would clearly exceed them, Amendment's and prohibition against commandeering local jurisdictions. And third, that it is such a big issue that it would be so vague and standardless that it violates the Fifth Amendment's due process clause and is void for vagueness. And fourth, and finally, because it seeks to deprive local governments of congressionally allocated funds without any notice or opportunity to be heard.

We talked about due process in the last episode. It violates the procedural due process requirements of the Fifth Amendment. OK, so there you have it. The argument is, number one, the president doesn't get to control spending. Number two, even if even if the president could control spending, this is ridiculously overbroad. Number three, this is vague and thereby void. And we have talked about the vagueness doctrine in connection with Hillary Clinton's emails. And number four, it deprives cities of their constitutionally protected liberty interests in receiving federal funds without due process of law, right? Like there's no process. It's just Jeff Sessions going, I don't like San Francisco, so you no longer get any federal money. So that's the gravamen of the argument that was raised in the U.S. District Court for the Northern District of California. How do you think, I know this is a tough question, but

0:24:35 Thomas: Right Yeah Yeah

0:25:08 Andrew: What do you thing the Trump administration picked as their first line of defense? I don't get it all. First line.

0:25:15 Thomas: You Are asking The impossible Because You because you're asking me to to get into the mind of a madman, but I, my, the First thing I imagined

0:25:16 Andrew: Yeah. A lawyer, a lawyer for a madman.

0:25:24 Thomas: Exactly It was just like, oh, what do I say to still get, keep, get paid and keep my job. Uh, don't. No, I imagine, my, the first thing I imagine was Jeff Sessions just shouting, he's "I am the law." That's, he's, he's Mr. Law now, so he gets to do whatever he wants. But I would say, uh, the thing that that I think I'm seeing here is that their answer would be like, well, if they're breaking the law, then we get to do whatever we want. But I don't know how that would translate through their lawyery minds, through their working-for-the-Trump-administration-lawyery minds, into responding to these arguments. Because all the arguments you just made sound really good to me, so I don't know.

0:26:03 Andrew: Yeah, what they instead chose. I like the Judge Dredd defense. I think it would have had a higher

0:26:09 Thomas: Yeah, that would have been great.

0:26:10 Andrew: Likelihood of success than what the Trump administration actually did, which it astonishes me that no one is reporting this. So, yeah, get out there. And when you see these, please Link, link to our show, link to O.A. 66, folks, go out there and do this, because this is, I promise you, that the Trump fans that you have on your Facebook page and in your Twitter accounts and social media who are complaining about the Ninth Circuit striking down this executive order don't understand that. This is the argument I am quoting from the decision that the government's lawyers made at trial. Quote, "The government does not respond to the county's constitutional challenges, but argues instead that the counties lack standing because the executive order did not change existing law and because the counties have not been named sanctuary jurisdictions pursuant to the order." It explained for

0:26:19 Thomas: Oh, wow. Opening arguments exclusive.

0:27:09 Thomas: Huh.

0:27:10 Andrew: The first time in oral argument that the order is merely an exercise of the president's, quote, bully pulpit to highlight a changed approach to immigration enforcement. Under this interpretation, Section 9A applies only to the three federal grants in the Departments of Justice and Homeland Security that already have conditions requiring compliance with 8 U.S.C. 1373. This interpretation renders the order toothless. The government can already enforce these three grants by the terms of those grants and can enforce 8 U.S.C. 1373 to the extent legally possible under the terms of existing law. Now, this is their argument, right?

0:27:45 Thomas: Yeah. Am I hearing this right? Is their argument... This executive order actually is nothing. Does Yeah. Absolutely nothing, so therefore don't worry about it. Their

0:27:49 Andrew: Their and I want to read the last sentence because This is what the judge said. And, and I have, I have been in a case in which the other side has been quoted. The other side's lawyer has been quoted this way. "Counsel disavowed any right through the order for the government to affect any other part of the billions of dollars in federal funds the counties receive every year," period. That was their argument right now. Now, the U.S. District Court for the Northern District of California said, this

0:28:20 Thomas: Argument was essentially, yeah, we're on this hundred days thing and we just want to, you know, don't worry about this, we just wrote this, yeah, we just it's some creative writing, we just wanted to express ourselves, we're all about free expression here.

0:28:25 Andrew: Is worthless. That they said the order is toothless. Right. So when you have, you know, Uncle Frank has said, I can't believe that they can't deny funds to San Francisco, quote back and say Trump's lawyers said we are not depriving San Francisco of dollar one and quote and link this article link the ruling if you want. It is it is astonishing to me that this was their argument. And the court said, look, and again, this is high lawyer humor. It is heartening that the government's lawyers recognize that the order cannot do more constitutionally than enforce the existing law. But Section 9A, by its plain language, attempts to reach all federal grants, not merely the three mentioned at the hearing. The rest of the order is broader still, addressing all federal funding. And if there was any doubt about the scope of the Order, the President and the Attorney General have erased it with their public comments. The president has called it, quote, a weapon to use against jurisdictions that disagree with his preferred policies of immigration enforcement. And his press secretary has reiterated that the president intends to ensure that, quote counties

0:28:38 Thomas: So Yeah, they

0:29:35 Andrew: And other institutions that remain sanctuary cities don't get federal government funding in compliance with the executive order. End of quote. The attorney general has warned that jurisdictions that do not comply with Section 1373 would suffer, quote, this is great, withholding grants, termination of grants and disbarment or ineligibility for future grants and the clawback, that is getting money back from those jurisdictions, of any funds previously awarded." It. Section 9A, yeah, Section 9a is not reasonably susceptible to the new narrow interpretation offered at the hearing.

0:30:02 Thomas: Just and Then he said, "I am the law." Oh, sorry. These idiots just don't get it, do they? They didn't learn from the, the, the, the immigration order one. They didn't learn from that executive order where it's like, they think they can just, they think this, these courts are like a, a little silo, like an underground layer where they can just say, yeah, this, this doesn't mean anything. Don't worry. No, it's not a Muslim ban. It's not a, don't worry about, but then they forget, like, oh, wait, the internet and TV exists and the judges can just see what they're actually intending by this. And they're not getting that, right? Am I right?

0:30:10 Andrew: Nope, yeah.

0:30:40 Andrew: Yeah. And so I'm going to highlight a bit more, but, you know, the, the judge, and again, this is just in the introduction. Usually I go to the analysis, but the introduction to this case tells you everything you need to No, it's one of those rare decisions. And it says, although the government's new interpretation of the order is not legally plausible, in effect, it appears to put the parties in general agreement regarding the order's constitutional limitations. The Constitution vests the spending powers in Congress, not the president. So the order cannot constitutionally place new conditions on federal funds, obviously. So, we go through and and look at some of the specifics of the underlying law that I that I want to pick out, because unlike the executive order regarding the so-called Muslim ban, there's...

There's no way to to this order in such a way as to as to make it constitutional without, you you know, basically saying what what the court has said in the introduction, which is you want to condition three grants that are previously conditioned on complying with the law with complying. Yeah, you can restate that if you want. But other But than that, the president does not have the power to say Congress shall not disperse funds to San Francisco.

0:31:00 Thomas: Right.

0:31:52 Andrew: But I do want to talk a little bit about the sanctuary city concept. This is page six of the opinion. The court says an ICE civil detainer request asks a local law enforcement agency to continue to hold an inmate who is in a local jail because of actual or suspected violations of state criminal laws for up to 48 hours after his or her scheduled release so that the ICE can determine if it wants to take that individual into custody, right? This is the key provision that I was alluding to earlier, okay? Those civil detaining requests are voluntary and local governments are are not required to honor them. Okay. But if a jurisdiction fails to honor them, uh, they get labeled a sanctuary city under the, under the sort of common political parlance. Right. So this is really what we're talking about is we're talking about, uh.

0:32:40 Andrew: Uh... a civil detainer. So somebody's been arrested. We would otherwise let them go. Uh... ICE says, hold them for an extra 48 hours so so that we can investigate their immigration status. And by the way, this is also, this is at the bottom of page six, ICE does not reimburse local jurisdictions for the cost of detaining individuals in response to a civil detainer request and does not indemnify local jurisdictions for potential liability they could face for related Fourth Amendment violations, right? So again, we have, if you are a principled conservative, what we have is an unfunded government mandate, mandate where a federal agency issues requests to the local government that imposes costs on the localities and refuses to, and potential liability, right?

0:33:25 Andrew: Like, I mean, when you keep somebody for an extra 48 hours, they may turn around and sue you if you have illegally detained them after you've already made a decision to let them go, And in right. Any other circumstance, this is a situation in which your small government conservatives and libertarians should be outraged by this. So keep that in mind, you know, it goes through, it talks about the policies, it talks about the federal funding. Then we go to the legal standard. You know, the legal standard for awarding injunctive relief.

You don't have to do hardly any of that analysis, and we're not going to do it in this segment, because remember, the government never contested anything on the merits, they just said they don't have standing because this executive order doesn't mean what it plainly means, uh, and uh, and, and so once the court goes through standing, and that section is uh, Section 1A of the discussion begins on page 11, obviously, you know, this opinion is linked in the show notes, um, that says, uh, the, the, counties represent, represent that they have sanctuary policies, right? They don't necessarily comply with those voluntary ICE.

So the section I skipped over established that both counties and San Francisco as a city fail to comply with voluntary ICE civil detainer requests, right, they've said, yeah, you've said it's voluntary. You've asked us to to keep guys for an additional 48 hours. Uh, we're not going to do that unless you reimburse us and, uh, and indemnify us for potential liability.

0:33:46 Thomas: Yeah. Yeah.

0:34:55 Andrew: And you haven't done that. So we're not going do it. And the law says we don't have to do it." Um, and so the counties say, look, um, these have been described as sanctuary city, uh policies, uh and who knows if Jeff, if, if Jeff Sessions is going to be like, yeah, San Francisco, sanctuary city. And if you do a a Google search, by the way, and just search for Sanctuary City and pull up anti-immigration organizations, San Francisco is designated. Yeah, right.

0:35:21 Thomas: It's like number one. Yeah.

0:35:23 Andrew: Say, look, not right now, but the law says we could be designated by Sessions. There's a good reason for us to think we will be designated bei Sessions, therefore this is a live and justiciable controversy. And here's the government's, this is again, I'm quoting from the case, which is quoting from the government's own lawyer, Donald Trump's lawyer, sent out to California to defend this policy. "The government raises two primary arguments against the county's claims of standings.

First, it asserts that the counties cannot demonstrate injury in fact traceable to the executive order because the order does not change the law in any way, but merely directs the attorney general and secretary to enforce existing law." So there's another good quote you can tweet back and, Uncle Frank, why are you so upset? Donald Trump said this executive order didn't change the law. So whether it's blocked or not shouldn't matter. Right. If it's just bully pulpit, if it doesn't change in the law in any way, then why do you care whether it got blocked? What what possible harm could the bad love? Please us on that. Tweet that back at us. I'd love to know what Uncle Frank has to say to that. Second, that. It argues that the county's claims of injury are not sufficiently concrete or imminent because the government has not, and I'm going to add in editorially, yet designated either county as a sanctuary jurisdiction and

0:36:12 Thomas: Right. Yeah.

0:36:36 Andrew: Has not yet withheld any federal funds. So, I mean, we've already talked about that. I don't need to cite the cases. You can read them for yourself, and I would encourage you to do that. It's just plainly obvious that, and the court said, look, like you're arguing for an interpretation of this executive order that is at odds with not only what the executive order says in plain language, which should, should bring our, our textualist friends on board, but also is at odds with what the president and his press secretary have said they intend to do with them.

0:37:01 Thomas: I was gonna say, yeah, they really Are Their strategy is like, just to try to trick, the the district court into just, oh, okay, well, I guess it is what you're saying. And And then later, they'll be like, ah, we tricked you. Okay, now we're going to enforce all this stuff. I guess.

0:37:08 Andrew: Yeah.

0:37:21 Andrew: And Shockingly, yeah, courts, courts are not eager, uh, to be yeah, to be, uh, you know, held up as as idiots, um, and, and, and that's what they, and they go through, right, "the government attempts to read out all of Section 9A's unconstitutional directives to render it an ominous, misleading, leading, and ultimately toothless threat. Effectively, the government argues that Section 9A is valid and does not raise constitutional issues as long as it does nothing at all. But a construction so narrow that it renders a legal action legally meaningless cannot possibly be reasonable and is clearly inconsistent with the order's broad intent." And then, with respect

0:37:24 Thomas: Not that gullible. Yeah.

0:37:45 Thomas: Yeah. Yeah. Oh, man.

0:37:56 Andrew: To the pre-enforcement standing, right, they have not yet withheld the funds, um, that

0:38:01 Thomas: Well, you know what? I just thought of something. I mean, this is probably just piling on because their defense is such a piece of crap. But I wonder, why wouldn't you say, well, if this was just supposed to be the bully pulpit or whatever, why isn't it an executive memo?

0:38:01 Andrew: Yep.

0:38:15 Andrew: That, good, good question, um, don't know, I don't know what you would answer with respect, I mean, like, and that's, and that' ultimately what, what the judge is saying here is that you have argued, uh, you know, counsel for the government has argued for an interpretation, uh, that is just not plausible, because, uh, if, if you're saying the The law means nothing, you know, why are you here defending it? Right. And, and I am sure that question was asked. And that's where they got the sort of bully pulpit answer. And the court was like, all right, well, if that's the best you got, I'm I'm ready to go. I'm right.

0:38:39 Thomas: Yeah. That's absurd. Yeah. Yeah, so I think what you're saying is if only they had broken up the Ninth Circuit, none of this would have happened. No.

0:38:50 Andrew: Exactly.

0:38:56 Thomas: Wow, what a ridiculous defense. I didn't, I mean, I had no idea it would be this bad. I mean, because the Muslim ban one was very interesting because for a while you predicted it maybe would go the other way, depending. And even though it's something we disagree with in principle, like, you have to look at the law. And it was very, this is something where they just clearly are in violation a lot. Their, their defense is terrible, their defense is laughable. It's not even, it's not even just bad, it's just completely laughable. Wow. Trying

0:39:21 Andrew: Yep. Yeah. The one the one commonality is, again, we've already done this, but but I and

0:39:32 Thomas: To trick them into, into, yeah, like, look over there, we never said any of this, don't, that's a commonality. Yeah. Yeah, sure.

0:39:37 Andrew: I Want to, I want to read just one more. I know it's piling on, but I would, I want to read one more. The president and the Attorney General have repeatedly held up San Francisco specifically as an example of how sanctuary cities threaten public safety. In his statements to the press on March 27th, 2017, Attorney General Sessions referred to the tragic death of Kate Steinle and noted that her killer, quote, admitted the only reason he came to San Francisco was because it was a sanctuary city, end of quote, quoting Sessions' press conference at one. In an op-ed recently published in the San Francisco Chronicle, the Attorney General wrote that Catherine Steinle might be alive today if she had not lived in a sanctuary city, and implored

0:39:41 Thomas: Go ahead.

0:40:18 Thomas: Yep.

0:40:18 Andrew: San Francisco and other cities to, quote, re-evaluate those policies, end of quote. These statements indicate not only the belief that San Francisco is a sanctuary jurisdiction, but that its policies are particularly dangerous and in need of change. They also reveal a choice by the government to hold up San Francisco as an exemplar of a sanctuary jurisdiction. And, again, you hit it a bunch of times, but, you know, they are learning that one area.

0:40:41 Thomas: Yeah. Well, Trump's not learning. They're not learning at all. But I think I know what you're going to say, and maybe I'm thinking a similar thing, which is there's finally one place where words matter. Like, nowhere else does Trump's words matter, nothing he says, whatever he's saying. Don't take him literally, take him figuratively and metaphorically, and then literally when we need to, but whatever. No, but this is the one place where it actually matters. They're like, here's what you said. It contradicts this other thing you've said. There's consequences. Finally, finally, there are consequences for that.

0:40:49 Andrew: Yeah. Yeah. Yeah.

0:41:17 Thomas: And with that said, yeah.

0:41:18 Andrew: And look, and I would add to that, I mean, I can't tell you the number of people who came up to me at ReasonCon and said, I love opening arguments, but you know, you, it's it's kind of depressing. It's it's always I bring you, you know, Some, some, you know, crazy liberal scheme. And you tell me that, you know, don't read Occupy Democrats. And by the way, don't, Occupy Democrats, it's a garbage site. Yes, right. Like, I think it's important that, you know, if you're, if you're liberal, your outrage be directed in the right place, and that we not do the kinds of things that we criticize those on the right for doing, which is, you know, making up our own facts.

Um, but, but here's Here's a really, really good example of where, I mean, you know, I started, and I've said, you know, I I I love the law and the American Constitution. I've, I've given that answer when we've talked about like sort of hypothetical questions. Um, and this is really continued vindication of my faith and belief in the rule of law and and the good of our judicial system, which is, um, you can't get away with this and uh and and

0:41:30 Thomas: Yeah, here is a victory.

0:41:54 Thomas: Yeah, yeah,

0:42:19 Andrew: I'm, it's That should, not a lot of bright lights, but um, but you know, that this is, this remains one of them that, um, yeah.

0:42:27 Thomas: A silver lining.

0:42:28 Andrew: There you go. So

0:42:29 Thomas: All right, well done. Good breakdown. I love it. I'm really glad we covered that because that is more, that's some ammunition for Trump incompetence for sure. Sure. That is absolute incompetence. So thanks for breaking that down and we'll go on to the rest of the show. All right, Andrew, we've got another listener question. Although this is, is this our first ever? Let me think. Is this our first ever in-person listener asked you a question, now it's getting answered? Because David Oxford at ReasonCon asked you, at what point exactly did you fully understand or get what you were doing with the law? And I like this one because it does imply that there's kind of like in a movie, there's the Zen

0:42:45 Clip: The law breaking down

0:43:17 Thomas: Moment where like Andrew was just like, ding, he was reading, you know, one of the many law books that you probably display prominently behind you so that, you know, you look nice and law-y, like nice and knowledgeable. And you're probably reading one of those and then you got to a paragraph and you're like, ting, I understand the law. And then you just knew how everything worked, how every statute interacted with every other statute, just

0:43:36 Andrew: Was Thinking I Was Thinking Keanu Reeves from The Matrix going, I know Kung fu, right. I, I know the law. Um, so no, I loved, I love the question. I was starting to compose an answer on the spot, and I told David that uh it was such a good question that I wanted to do it on the air. And so that's what we're doing. So let me say, just as a caveat, I have a very atypical experience as a lawyer, one that is going to give a much lengthier answer to that question. And the reason is, at Harvard, at most Ivy League law schools, you don't learn a lot of substantive law in your classes. You learn how to read cases and how to think about the interaction of case law in shaping what the law is.

0:43:41 Thomas: Yeah.

0:44:27 Andrew: But you don't learn, you learn almost, you learn almost nothing about statutory law, you learned nothing that is state specific, by, you know, sort of by definition, and, you know, and you kind of come away with much more theoretical education than my friends who attended, and and I practice in Maryland, so I have a lot of friends who went to University of Maryland or University of Baltimore, including some who are better lawyers than I am, and and they will tell you, like, oh, yeah, no, like, we are, my 2L year, you know, we spent, and I learned like the substantive laws of commercial paper in Maryland. And I'm like, wow, I didn't learn any of that. I sort of started with a more esoteric education. Then I went to, as we all know, Covington Burlington Coat Factory, which is now one of the largest law firms on the planet, an international law firm with offices in multiple cities and thousands of lawyers.

0:45:26 Andrew: It was a little smaller when I was there, but it was still Still one of the largest and, you know, most prestigious law firms in the country. And this is a good time kind of for an aside politically, which is to say of the things we when we talked about, like the McDonald's hot coffee lawsuit, I talked about how there is a a meme in right wing circles that wants to blame plaintiffs lawsuits for clogging up our judiciary.

0:45:55 Thomas: Right.

0:45:55 Andrew: Uh, And That's just false, it just, and, like, I, again, I I invite our handful of conservative listeners, especially conservative lawyers, uh, to to write in, dispute, to the contrary. Um, what,

0:45:56 Thomas: Right. I Haven't Seen any of it yet. You've Asked this several times. I haven't. I haven't seen. Now, it could be that Dan, Dan the conservative man just hasn't Gotten around To it.

0:46:09 Andrew: Yeah. Yeah. It Just, he's He's Taking

0:46:17 Thomas: Yeah. And He's He's Tired Of bearing the brunt of having to like defend all of conservative ideals on, you know, he's like, gosh, hey, Dan, Dan and the conservative men, get some more conservative friends to listen to of the Show. You get a little teamwork going, respond to Andrew on these Questions. Yeah.

0:46:17 Andrew: He's taken a Break. He's a couple He's A couple Of shows late.

0:46:27 Andrew: Right. Right, Right. No, but but seriously, I mean, I have raised, I have, I have conservative friends in, you know, in legal circles here. If you are honest and you are not, running for office, right? So you're not Ted Cruz, then you have to concede that the the entirety of the delay and expense in the civil justice system is caused by big corporations suing each other with big law firms involved on both sides. Because when you have, you know, and look, I did these cases for 20 years, when you have a billion dollar case, right, that even when I was first chair, right? Like, I'm not the only guy, right. Like a billion dollar case between two multi-billion dollar companies, they're not like, eh, why don't we see how Andrew's doing? And the other side is like, yeah, you know, why do we get Thomas to defend us?

0:47:23 Thomas: Yeah.

0:47:23 Andrew: Like you have teams of lawyers and you litigate every single issue, and it doesn't matter that you're paying $1,000 an hour to the lead partner, and that your law firm bills are, you know, six figures every month, because there's a billion dollars at stake, right, and if somebody's like, well, how is this proposition likely to help us? Well, it might make us one percent more likely to win the case if we do it. Okay, well, should we spend twenty thousand dollars and a month on something that'll make it one percent more likely that we win a billion dollars? Yes, yes, you should, right. And so mega cases between multinational corporations with big firm lawyers on both sides are an enormous industry. It's what keeps those, you know, fat six-figure salaries in big law Paid. And it is, one I was going to say 100, but I, I don't want to be exaggerating in this. It is the overwhelming majority, it's in the 90s of what's causing the uh delay in our legal system. It absolutely Is not

0:48:23 Thomas: I picture David Having Asked you this question at ReasonCon. 10 minutes later, you're talking about clogged legal courts And David's like, I don't But

0:48:25 Andrew: Right. Yeah, David's Like, uh, he's He's Slowly Backing away. He's, was like, I just, being polite because you were between me and The bar, and now I can't. Yeah. Right. So with that aside, but but it's important to answer the question. Now think about what happens in those big lawsuits. And again, I have mentioned this on the show. The first case I was on wasn't a lawsuit. It was compliance with the FTC's second request for documents in antitrust. But they were, were approving the ExxonMobil merger, right? And 130 of us at Covington were working on that case, right?

0:48:32 Thomas: Yeah. Geez. Right.

0:49:03 Andrew: Those were full-time lawyers. There were 30 of us that were, that was all we did, but everybody, lots of people at the firm got involved in some way. I had a team of contract associates working for me just reviewing documents. I reviewed a ton of documents too. And I was responsible for a segment of compliance of pipelines owned by Exxon and Mobil with the overall pattern of how pipelines were distributed throughout the country. So, right. So if you think about when an oil company buys another oil company, right, like you're mostly thinking, you know, what are they going to do to the market for petroleum? What are their gas stations going to look like? I never touched any of that, right? Like I only dealt with the pipeline stuff.

0:49:49 Andrew: Stuff. Um, and I had a senior partner above me and a senior senior partner above that. And the, the senior senior senior partnership team above that and 110 contract associates reviewing documents for me. Um, what I mean to say by that is I got, in no way did I ever sit down and talk about the overall picture of the antitrust laws and what we were doing in this context, right? Right. Like I was working on a very, very specific area.

0:50:17 Thomas: You're Pigeonholed Yeah.

0:50:20 Andrew: Yeah, exactly. And when you have mega cases that are staffed up by young lawyers who are billing out, by the way, a first year associate right now, Covington and Burling, is almost certainly billing out at a higher billing rate than I do. Right. The paralegals there probably bill out at roughly my billing rate. So you have young lawyers who don't know a whole lot. They're very smart. And so what you do is you give them very discrete tasks and it makes it a challenge. And it was one of the reasons when I was three or four or five years in, I started, right, I was beating down the doors of partners saying, hey, let me take this deposition. Let me argue this motion. Let let me do that because, um, the, the easiest thing for them to do sort of, uh, keep you on specific tasks that are, um.

0:50:21 Thomas: It's

0:51:10 Andrew: You know, that are discreet, uh. That where you never kind of get the big picture. Um. So then I left, I left Covington, uh after, after, uh almost five years. Uh. Went to Zuckerman and started second chairing cases. Uh. And it took me a couple of years of, And by second chair, that literally means, yeah, it really does. The one chair is the lead partner who is arguing, who gives the opening statements.

0:51:31 Thomas: Like an orchestra. Yeah. He Plays all the solos. Yeah. You

0:51:40 Andrew: Yeah, exactly. But the second chair means you get to do some of the witnesses.

0:51:45 Thomas: Were back there Playing harmony

0:51:46 Andrew: Right.

0:51:46 Thomas: Lines.

0:51:47 Andrew: And I developed a bit of a reputation at the firm for handling expert witnesses, particularly like experts in that had a math component to them where I could sort of translate and get and the jury to understand, you know, kind of complex or whatever in a way that that made sense to them. It was sort of a pre-opening arguments, you know, making it make sense for the jury.

0:52:07 Thomas: Wow. Yeah. You Were Born for This job. I Love it.

0:52:12 Andrew: Yeah. Oh, I love this job. And so, yeah, so it was, it was probably eight or nine years out before I, I had my first, first chair experience and really kind of understood a case from a, from a big picture perspective, from from start to finish. Uh, and, and that was, um, that might have never happened had I not gone, gone from Covington to, to Zuckerman because, uh, because it was a smaller case, right? Like I went there, my rates were lower, everything, right. So we could take on instead of every case had to be a billion dollars at stake, you know, we could taking on cases with, with less at stake. And when there's less at stake, you don't over lawyer it. And, you know, you're happy to have the eighth or ninth year associate who's, you know, done all the work, give the argument because, you Know, there's,

0:52:30 Thomas: Right. You Get what you pay

0:53:01 Andrew: Yeah.

0:53:01 Thomas: For in a lawyer, in a law firm. Yeah.

0:53:03 Andrew: Well, that's right. So that's, that was kind of, that was kind of my journey. And then I was a partner for, you know, more than 10 years To sort of get to the point where I am now, you knows, where I'm thinking about the kind of overall view of the law in society. Like, you're just, you're not encouraged to think that way. You know, you are encouraged to kind of do your job. And if you think about lots of other jobs, you know, are are that way.

0:53:31 Thomas: Yeah.

0:53:31 Andrew: Um, but we have, you know, we have movies and TV shows where, you know, every time, uh, there's an issue, right, you bring in the third year associate who's who's fresh out of the document review room who has a strong opinion on, you know, whether, uh, we can grant immunity to this witness in this particular case.

0:53:50 Thomas: You definitely You definitely bring in Tom Cruise who's been there for a day to go meet your, like, top clients in the Cayman islands. That's how it works well

0:53:55 Andrew: Right yeah yeah and he's gonna sit there and be like, "I'm gonna put you into these." Yeah, right. So,

0:54:00 Thomas: I assume David probably wanted to ask me the same question, so I'll just go ahead and answer as well. Well, when did I, let's see, when did I fully understand, get what I was doing with the law? Well, it all started when I listened to Andrew three times and then pretended I knew anything about the law. No, no. It's time for my co-favorite day of the week, and that That is Top Patron Friday.

0:54:05 Andrew: Yeah Oh, I love Top Patron Friday. It's

0:54:24 Thomas: Isn't it the best? Man, Top Patron Friday. I just can't.

0:54:27 Andrew: The co-best. It's the co-best all

0:54:29 Thomas: Yeah, every day I'm like, which is better? I don't know. They're both good.

0:54:32 Andrew: On Top Patron Friday. We thank our Hall of Fame patrons who pledge at the $5 level and above. And those thanks go out to Roger Metcalf, Danny Rosari, Eli Bosnick, Dave Nichols of Positively Doubtful Podcast, Steve Sigmund, Jim Grove, Amanda Lipnack, Heather Loveridge, Geeker41, Sean Pitti, Ian and Allie. Thank you to Matthew Vernon, Violet Page Hall, Heath Enwright, Jeffrey Maynor, the Wayward Willis, detective Matthew Maxson. Thank you to Dave Lovely, Danny Baker at Combat Nonsense, thank you Charone Frankel, host of the delightful podcast Habeas Humor, Squick Thinger, Ian Ryan, Matthieu Hillier, Aaron Graddy, Brandon Smith, and thank you too, TV Is My Girlfriend Girlfriend.

0:55:19 Thomas: Also, thank you to C6era, Hunter Ash, Torsten Skrv, and Oppose Declawing and Ear Docking, Philip Stromberg, You Are Here Sci-Fi Audio Drama, RJ Rocio, John Bodley Esquire, Kaylee Reiser, Sakushi Tefukasumi, Michael Schaefer from Reason Real Estate, Michaela, The Electronic Frontier Foundation at EFF.org, Marissa Alexa McCool and her fabulous snarky publishing stuff, Duff, TheNetSecHeathen, Jessica Wilson, Mark Smith, Thomas McCormick, Frederick Alstromer, Revan, Michael Rops, and Conrad Michaels, and, of course, our top patron, Zabby. Thank you, Zaby. Thank you everybody on our Hall of Fame Patron Friday. It really is one of the top two best days of the week.

0:56:08 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:56:13 Thomas: And now it's time for my least favorite day of the weekend. And that is Thomas Fails the Bar Exam Friday. That's catchy. That's a good, yeah, yep.

0:56:15 Andrew: All right Thomas yeah Uh, this is question number 22. You are 11 for 21, um, so we're we are teetering on the brink, but I, I know, I know you're gonna push forward, build up a little bit that cushion, uh, and get to 60. So, uh, here

0:56:30 Thomas: Yep I don't know that, but I'm glad that you do. Sure, whoa

0:56:40 Andrew: We go. Are you ready? A yard sale, a seller puts out an old etching that he inherited from his aunt. He labels it with a price tag of $10. A buyer comes by fully aware that it is the work of a famous Italian Renaissance artist, and quietly offers the $10 for an etching he knows to be worth at least $100,000. When the seller finds out that he made an awful mistake and that the buyer knew it was a precious work of art, he's sued to get the $100K or for return of the etching. The buyer defended by alleging that the seller did not act reasonably to protect himself by knowing what he was selling. Under the Restatement of Contracts and the majority rule in case law, will the court grant the buyer's motion to dismiss the seller's complaint? Okay.

0:57:25 Thomas: What the hell? Okay.

0:57:32 Andrew: So, right.

0:57:32 Thomas: I don't know either of those two things, so I can't wait for this one.

0:57:34 Andrew: Yeah. Don't worry about that. Right. So what that is telling you is that there are other cases, right? There's a minority view here, but it's saying Under the majority view, buyer is moving to dismiss, says, we're not going to go to the facts. I'm going to concede for the sake of argument that I knew it was worth 100 grand and you didn't. But I want to dismiss your complaint because you had an affirmative duty to know that this was a precious work of art. You didn't do it. You know, finders keepers, losers weepers. There you go. So, A. Yes, the seller should have had the items appraised before selling them.

The seller always must know the value of what is being offered for sale. B. Yes. The seller cannot rescind a contract just because he later regrets it. Either party may end up with a superior deal, depending on luck, knowledge, and a variety of factors. C. No, because in some unilateral mistakes, rescission is allowed if there had been an unconscionably unequal exchange of values and hardship to the other party. Or D. No, because a party always has a right to rescind a contract where the value of the product or services does not live up to his reasonable expectation. Expectation.

0:57:36 Thomas: All right. Oh, okay. Okay.

0:58:01 Thomas: Know what you were selling okay. Yep.

0:58:50 Thomas: Think this one's got to be B. A, I didn't like the wording. Well, first off, I'm leaning toward, uh, the fact that it will be dismissed because I think it was labeled $10. The guy bought it for $10. I don't think you're allowed to just go back on contracts that you don't like. Uh, the transaction happened. There's not really, it's not like, I don't think there was any fraud or anything, because it's just, he, he bought something that was labeled $10, you know? So it's, it's different than like a lemon law situation where you sell something and you kind of know that there's something up, uh, but you don't tell the buyer. This seems different to me. It seems like the burden is more on the seller. So I was leaning toward A, yes, the A, I didn't like the wording of the seller always has to know the value.

0:59:37 Thomas: I thought that I, I, hopefully I'm, I'm on the right track. I don't know, but I've been learning that you need to pay attention very closely to the wording to know which is the better answer, even if the one you decide is the right answer, like yes or no. And for that reason, I think the wording on that one is worse. I think that B is the correct wording and is the answer that I think is right. Now, C is the only one of the no answers that looks plausible to me, but you don't have the right to go back on a a contract just because you don't like the outcome. So I'm going to go with B and I'm going to hope to recover here. We'll see.

1:00:16 Andrew: And well, we will find out on Tuesday if that is correct. Uh, and if you would like to play along with Thomas on Thomas Takes the Bar Exam, always as we release the episode on Twitter, uh, retweet and quote that episode, include the hashtag TTTBE, include your guests and your reasons therefore, and we will pick, uh, the most delightful answer. It could be the right answer. It could be a wrong answer that makes us laugh. It could be something that makes fun of Thomas. No more feet jokes, that's, uh, that has now been settled, uh, and uh, but but uh but play along closed argument. I rest my case.

1:00:48 Thomas: Hear that my lawyer says that has been settled, yeah. Case closed. Excellent.

1:00:56 Andrew: No, I'll play along. TTTBE on Twitter, yeah.

1:00:59 Thomas: Yeah, and if you'd like to play on, welling on Facebook, you can share dot dot dot, you know the drill, make sure you're following and liking our page on Facebook, uh, and and Twitter as well. Like us on Twitter, Andrew tweets, uh, really valuable stuff on our Twitter account by the way, it's a good one to follow, um, because you're getting a lot of stuff that you're not necessarily getting just from the the show. So I highly recommend that. That's at Open Args, right? Do it.

1:01:21 Andrew: At O-P-E-N-A-R-G-S. Pretty pretty constant, there's a lot, a lot of content out there, and uh, I know, I know we have a lot more listeners than we do Twitter followers, so you know it's a little bit of a little but extra free stuff we give you, uh, every day, and I know you've been asking for more Open Arguments, so there you go.

1:01:40 Thomas: Yeah. I just wanted to say it's valuable stuff. So a good job on that, Andrew. It's, it's a, it'S an account I follow and I'm like, wow, awesome. I get a lot from it. So, okay. All right. Well, that does it for our show today. Thank you so much for listening. Thank You so much to our top patrons, of course, on hall of fame patron Friday, co-favorite day. Thank YOU to our Top Andrew over on Top Andrew Andrew Friday. That's every day, though. Andrew is the best. Tuesday. No, I would say Sunday through Saturday, roughly speaking. Thanks most of all to you listeners, and we'll have to see you next week for the thrilling conclusion of Thomas Gets Every Question at the Bar Wrong, part 22 or something. See you then.

1:02:16 Andrew: Right

1:02:27 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.