OA79: The Thomas Was Right Show! (Featuring Climate Change and the Paris Accords)

Transcript

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

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode number 79. Back at you this week. How are you doing, Andrew?

0:01:24 Andrew: I am great. How are you, Thomas?

0:01:26 Thomas: Doing great. See. Oh, I wanted to mention before we get started, just a little reminder that we've had an ad recently. We've got more ads to come. And if you want an ad-free Opening Argument experience, you can always go to patreon.com/law and get the content ad free, just wanted to remind you that that is one of the benefits of being a patron, so just throwing that out there. You got anything before we get going?

0:01:49 Andrew: In addition, I released some of my show notes that went into a little more detail on the main segment as a special patron-only post. We do that from time to time. We do a little newsletter from time to time, you know. The spirit of Patreon is, we put out a free show, kind of like the old PBS model. Some folks folks uh decide that they like that and uh and support us, and when people support us, we try and shower them with gifts from time to time. So uh you

0:02:20 Thomas: Speaking of of Course is getting toward that time of the month where uh we do a Law'd Awful Movies, not that time in the month, the other time of month where we do Law'd Awful Movies and uh bonus Q&A this month since you guys helped us reach that goal, so there we go.

0:02:22 Andrew: Yeah. Yeah. Yeah. Yep. Yep, enough shilling for that, but you really should, if you haven't, thrown us a buck on Patreon, and you can head on over there and uh help us out.

0:02:42 Thomas: Absolutely. So, Andrew, you were on This Week in Law, right?

0:02:46 Andrew: Yeah, uh, one of the uh most popular tech law portals is the This Week in Tech, and Denise Howell and the other folks on the show uh do This Week in Law where they talk about that intersection, and I was on, was treated very well, so uh go uh go, if you like this show, go give them a listen. And and and if you can't get enough of of Opening Arguments, you get a little bit, a little bit of a taste on the This Week in Law show.

0:03:14 Thomas: All right, let's get to our first segment of the day. Well, I'm seeing in our notes, I don't know what these words mean because I don't often see them in this order, but "Thomas was right," it says. What is that? Explain that, Thomas.

0:03:19 Clip: The law breaking down

0:03:37 Andrew: Yeah. Well, we were talking about the Trump administration's appeal of the Fourth Circuit's ruling to the Supreme Court in last week's episodes. And And since then, on June 12th, so just a couple of days ago, as of this recording, the Ninth Circuit issued their opinion affirming the entry of the TRO from the U.S. District Court for the District of Hawaii. That opinion, I think, is incredibly interesting on a number of grounds that are sort of worth talking about. But the headline, I think, was that Thomas was right.

0:04:20 Andrew: Absolutely, because the opinion, we'll get into it, but But pointed out some of the sort of technical and procedural defects that were pending in the Trump executive order 13780.

0:04:18 Thomas: Was Right, oh Yeah, that Was oh No.

0:04:38 Andrew: That's the revised so-called Muslim ban. And you pointed out, you know, that one of the major kind of hanging questions that's out there is that the stated purpose, time and time again reaffirmed in the sort of preamble to Executive Order 13780, is that we just need a little bit of time. We just need to hit the pause button to kind of figure out the whole Muslim thing. And you said, you asked Thomas whether one of the issues that could potentially come up before the Supreme Court was the the fact that the stated objective for the original executive order was, you know, we need to just, we need a 90 day, hit the pause button and figure this whole Muslim thing out. And we went through, we looked and saw that that rationale was continued to be reiterated in the in the introductory clauses of even the revised executive order. And it sort of begs the question of, well, it's been several months now. You know, you haven't had the Muslim ban in place, but what progress have you made in terms of, you know, figuring this whole Muslim thing out?

0:05:02 Thomas: Yeah. All Yeah.

0:05:50 Andrew: Most amazing thing about the Ninth Circuit's opinion is that none of it is on the First Amendment grounds that we have talked about. Um, literally none of it. Now, it doesn't have to be because, uh, what's going to happen in this case, this is sort of a, sort of a weird procedural quirk. Um, I was very surprised, uh... when the Fourth Circuit ruling was appealed to the Supreme Court.

Uh, from a strategic perspective, this case was still pending before the Ninth Circuit, this separate on the exact same subject. And if I were the Trump administration appealing to the Supreme Court, I would have filed the petition for writ of certiorari from the district, you know, ask the Supreme court to bypass the ninth circuit and directly consolidate with it the district court of Hawaii's decision, thus denying the ninth—that notoriously liberal Ninth Circuit, the opportunity to get another case in, you know, another opinion in on the on the record. And the Trump administration's lawyers didn't do that. The Supreme Court, you knows, sort of has the power to to bypass and in cases and to consolidate. And and clearly they would have. Right. Like it's the same order being challenged. The record is fully developed at the district court level. But whatever reason, the the Trump lawyers didn't do that, even though they had to know that a hostile opinion was coming from the Ninth Circuit. And they got it.

0:07:19 Andrew: And so the fact that this case is going to be consolidated with the Maryland case means that all of those issues, the First Amendment issues, are preserved in the Maryland case, will be adjudicated, and then some, right? Right. And and so the Ninth Circuit's opinion basically goes through and tackles the eleven eighty two F rationale that we talked about, you know, way back in August of last year. Right. That that's the statutory provision that upon which the government has relied, and the opinion, through the specific requirements, and says that this EO lacks the findings that are required in order to comply with 1182 F. Um, so remember, 1182F says, "Whenever the President finds that the entry of any aliens or class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

0:07:31 Thomas: And Then Some, well

0:08:31 Andrew: So, super broad language. That was one of the first things we pointed out. Here's what the Ninth Circuit says. It says, "To be sure, 1182(f) gives the President broad authority to suspend to the entry of aliens or classes of aliens. However, this authority is not unlimited. If that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests. It requires that the President," italicized, "find that the entry of a class of aliens into the United States would be detrimental to the interests of the United State. This section requires that the President's findings support the conclusion that the entry of all nationals from the six designated countries, all refugees, and all refugees in excess of 50,000 would be harmful to the national interest. There is no sufficient finding in the second executive order that the entry of the excluded classes would be detrimental to the interests of the United States."

0:09:23 Andrew: And then they go through and look at the revision and the inclusion of six majority Muslim nations, the exclusion of others, arguments that were raised at oral argument, which the court says, "We reject these reasons because they relate to the preservation of governmental resources, to review existing procedures, and ensure adequate vetting procedures. There is no finding that present vetting standards are inadequate, and no finding that absent the improved vetting procedures, there likely will be harm to national interests. The identified reasons within the text of the executive order do not support the conclusion that the entry of nationals from these six designated countries would be harmful to our national interests. We then turn to national" security concerns.

0:10:05 Thomas: Correct Me if I'm wrong, but what It's Sounding like is you can't just write, write an order that says, "Let's stop this until we, you know, kind of clear, figured things out in there." And that can't be like your legal justification. You can't Be like, well, I promise we'll justify it. Eventually. We just need to figure it out. Like that's too vague of a reason to stop an entire class of people from coming in.

0:10:06 Andrew: Yeah, yeah, go ahead. Yeah, yeah, that's exactly right. Right. So the conclusion on national security is, you know, the order's discussion of country conditions fails to bridge that gap. Indeed, its use of nationality as the sole basis for suspending entry means that nationals without significant ties to the six designated countries, such as those who left as children or those whose nationality is based on parentage alone, should be suspended from entry. Yet nationals of other countries who do have meaningful ties to the six-designated countries and may be contributing to the very conditions that that are discussed, i.e. terrorism, fall outside the scope of the executive order. Consequently, the executive order's focus on nationality would have the paradoxical effect of barring entry by a Syrian national who has lived in Switzerland for decades, but not a Swiss national who was emigrated to Syria during its civil war.

0:10:30 Thomas: Oh, interesting.

0:11:15 Thomas: Wow.

0:11:16 Andrew: Right.

0:11:16 Thomas: That makes sense.

0:11:17 Andrew: So that's kind of the first section. There's a long bit on standing that's sort of not worth going through. But that's the first analytical section, goes through the 1182F criteria and says the executive order doesn't meet those findings and it doesn't mean those findings for precisely the reasons that you raised in last week's episode's in 0876, which I think that's just, I mean, A, I want to call out whenever you're right. Right.

0:11:45 Thomas: Yeah.

0:11:46 Andrew: But, you know.

0:11:46 Thomas: Well, you better. Cause That's why it's only happened one to two times. You just want want to make sure to highlight when it happens.

0:11:51 Andrew: But B, you know, we've we've talked about and continue to talk about the role that common sense and fairness plays even in appellate jurisdiction. And, you know, and that's sort of what we're seeing here is, you know, the the it's

0:12:00 Thomas: Yeah. Yeah. It's because it's not like Oh, letter of the law, letter of the law, he has this thing, this authority, letter of the law, you know, like I think that's something that, yeah.

0:12:13 Andrew: Plain. Yeah.

0:12:14 Thomas: That Well, I was just gonna say, I think that's that you've taught us really well on this podcast, that it's, you know, it's not words, aren't just magic, that you know, magically he can do whatever he wants. You still have to be reasonable, and there has to be, and and I love that it points out the, the, I guess, contradictory nature of the order. When, when it said, you know, yeah, if you've lived in Sweden your whole life, but you were born in a certain country, you can't come in, but if it's vice versa, you can, like, it just shows that no, this isn't reasonable, you know, like you need to, you need to do the work of actually crafting a reasonable policy.

0:12:14 Andrew: Oh, go ahead. Sorry.

0:12:50 Andrew: Yep. Yep. The next part, if you liked that, you're going to love the next section of the ruling.

0:12:52 Thomas: But Wait, there's more? Okay.

0:12:55 Andrew: There is more, because next, the Ninth Circuit takes up the 1152 argument, right? That and is the subsequently enacted statute was meant to eliminate the, quote, national origin systems as the basis for the selection of immigrants to the United States. 1152A prohibits, says no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, emphasis added, nationality, place of birth or place of residence. And previously, we had dismissed, I had dismissed the 1152A argument because the issuance of an immigrant visa is a tiny subset of the application of the executive order writ large.

0:13:42 Andrew: I've got to say, I still think that's the correct reading. The Ninth Circuit does sort of its best job to try and rehabilitate the 1152A argument here. Again, I think to sort of give the Supreme Court the maximum amount of alternatives by which to affirm the issuance of of the TRO. So, you know, again, you don't know what's going to be salient to Justice Anthony Kennedy. And I think the Ninth Circuit is thinking maybe this argument will be salient to him. I don't think it's correct, but I do think that it is, you knows, it can be read with a straight face. So here's what the Ninth Circuit says. The government tries to reconcile the executive order with 1152A by arguing that the executive order bars the entry of nationals from six designated countries but does not deny the issuance of immigrant visas based on nationality, that was my argument too.

0:14:06 Thomas: Okay, okay.

0:14:40 Thomas: Yeah, I remember.

0:14:41 Andrew: The executive order suspension of entry on the basis of nationality, however, in substance operates as a ban on visa issuants on the bases of nationality. The order's text confirms as much. Its primary purpose is to evaluate screening and vetting processes associated with the visa, with the visa issuances process, the executive, the executive order affects nationals of the six designated countries who were outside of the U.S. as of the effective date of the order, but did not have a valid visa at the time, such as the effective data of EO1. Further, it provides for a waiver so consular officers or customs and border protection officials may authorize the issuance of visas during the suspension period. The government also stresses that it should not be required to issue visas for aliens who are validly barred from entry, explaining that requiring such aliens be issued visas permitting them to travel to this country only to be denied entry upon arrival could create needless difficulties and confusion.

0:14:41 Thomas: Hmm.

0:15:33 Andrew: So the conclusion is that for nationals of the six designated countries, the executive order is effectively a ban on the issuance of immigrant visas. If allowed to stand, it would bar the issuance of visas based on nationality in violation of 1152A. The government did not dispute this point at oral argument, and it stands to reason that the whole system of visa issuance would grind to a halt for nationals of the six designated countries whose entry is barred from the United States. OK, so see that there's some bootstrapping going on there. 1152A, right, applies only to visa issuance. The executive order prohibits all sorts of, to this country, right, whether via visa or via the refugee program or via any other program.

0:16:20 Andrew: There are lots of different ways to come into this country. But what they want to do is sort of relate back and say the prohibition on visas, a clear of protection in the law. And this executive order is, quote, effectively a ban on the issuance of immigrant visas. So, again, more sort of expansive language of, well, come on, this would really undercut 1152A if, if the executive order is allowed to stand. Then the justification for doing so, you might be going, OK, well, that, that little bit of bootstrapping, going back and forth. What's the justification? Well, the justification that the Ninth Circuit gives is that 1152A's non-discrimination mandate was enacted after 1182F and is thus reinforced by other canons of statutory construction.

0:17:08 Andrew: So, first, a later enacted, more specific statute generally governs over an earlier, more general one. And the citation here is, see Antonin Scalia and Brian A. Garner reading law, the interpretation of legal text, page 183 to page 187.

0:17:15 Thomas: Yep. You always try to cite the, the enemy, so that it'll, uh, help your case, right?

0:17:28 Andrew: There is no doubt in my mind, because that general principle you could cite to anything, right? Of course you could. There is no doubt in my mind that the law clerk who came up with the idea of we should cite to Scalia's textbook here greeted with smiles

0:17:32 Thomas: Anywhere yeah yeah, that makes sense. This is not the first time we've covered something like this, I'm pretty sure this has happened before. But

0:17:48 Andrew: And pats on the back. So here, 1152A was enacted in 1965 after 1182F was enacted 1952. It's more specific. It sets a limitation on the president's broad authority to exclude aliens. He may do so, but not in a way that discriminates based on nationality. There's some additional argument with respect to that. Again, I don't buy it because I think that you have, I've used sort of the term bootstrapping. They say that what the Ninth Circuit says is the ban on, in the issuance of visas should be read as restricting the language on the restriction of entry, period. And I don't see any evidence. Right. Because the issuance of a visa is a very, is only one

0:18:09 Thomas: You ultimately don't buy it.

0:18:39 Andrew: Way whereby people come into this country. So, yes, other words, it would work in my mind if it were the other way around, right?

0:18:40 Thomas: One way to enter, okay. Hmm. Right.

0:18:47 Andrew: If you had a general grant of authority for immigrant visas, and then you had specific non-discrimination statute that said you may not discriminate on the entry to this country on the basis of nationality or basis of origin, then that would be pretty clear to me, right. Right. Like, regardless of the discretion, we have a generalized non-discrimination principle in entry. But we don't have that. What we have is a generalized nondiscrimination principal in the issuance of visas. But because that doesn't cover all of the ways that people entry, enter into this country, I don't think ultimately it was meant to restrict 1182F in that way. Again, you know, we'll see how it, we'll see how it plays out. It's not, in my view, it is not a, it's not a preposterous argument.

0:19:35 Andrew: And maybe it's the one that hits Anthony Kennedy, you know, sort of right in the jurisprudence. But it doesn't doesn't hit me. But I have come around a lot. Exactly. It doesn't for me. Uh, but again, I have, I have also come a long way on the, uh, uh, the First Amendment argument, as you know, as we have previously discussed, uh, and again, you know, that's, those are just own goals by the, uh, by the president, which, uh, are the best

0:19:44 Thomas: In the family jurisprudence yeah yeah yeah it's just so funny because would you agree that Trump, let's replace a competent version of Trump, of maybe a Pence, I don't know, uh, who hires, who actually hires good lawyers and, you know, has some sense of these things, could have easily written an executive order that would do what he wants to do and be legal, right?

0:20:01 Andrew: Yes Absolutely.

0:20:20 Thomas: It's all incompetence. It's funny. I mean, it's also fortunate. I'm glad they're incompetent, but you know, it is also another reason to, I guess, be cautious because going forward, they could always finally figure it out and make it happen, but who knows?

0:20:23 Andrew: Yep. Yep. Yeah.

0:20:36 Andrew: I mean, but you do, you do run kind of smack dab up against the City of Hialeah problem we've talked about several times, right, which is, you, when you competently do something that doesn't push your fans' buttons in the right way, you at what point do your fans, you know, lose interest and wander off and, there, and I, and I feel like there was so much of, you know, appeasing Pepe the Frog heads, you know, and you and I kind of differ over this, right? Yeah. So, you know, so right.

0:20:42 Thomas: Right. Yeah, we've argued about that a little bit. Anyway, no need to rehash that, I don't think, but yeah, it is, it is, it does make sense, like, and it is probably the reason again that Trump got on Twitter to say nope, it is definitely a ban, it was it was I who committed the murder, yeah, no, so you could be, you could be right about that, and that might be a reason that Trump will always do that, but

0:21:18 Andrew: It is, it is a ban. Yep. So in summary, I'm not sold on the 1152 argument, but I don't want us to lose that Thomas was right about this. And I think you, it's a really good argument, right? Just it, it, yeah.

0:21:35 Thomas: Yeah, hang on to that, everybody as we go to the bar exam answer, let's uh, hang on to that uh, notion, yeah.

0:21:41 Andrew: And, and, And that, with the sort of trailing sentence, the lack of statutory standards is a really, really good argument to pitch at a Kennedy or even at a Roberts, right? Is to say, we're not asking you to make a sweeping ruling on the First Amendment, right. We know that's going to appeal to Kagan and Sotomayor and Ginsburg, right. But what we're saying is there's a really narrow ground to continue to uphold this executive. And that is the failure to meet the statutory standards that would otherwise authorize it. And that, I think that has, I think that was brilliant. And I think it is designed to go after first Kennedy and then Roberts and say, hey, look, you know, you don't, you don't, you don't have to rewrite First Amendment law here, you can, you can issue a super narrow opinion that reaches the right result. We'll see if it works, but that's what I think, uh,

0:22:31 Thomas: We'll see all righty, and what do we look, what's the next thing we're looking for in this regard, uh, with this issue?

0:22:40 Andrew: The next, thing is the Supreme Court is going to grant cert, consolidate the cases, and calendar the case for oral argument,

0:22:47 Thomas: Uh, well, we'll keep an eye on that. All Right, on to the main segment of the day.

0:22:55 Thomas: This is the Paris Accord. So this is interesting. We're a little bit late to the party here, but again, I mean, there's just so much in the news to cover. But better late than never, I think, certainly, especially because I know the timeline of leaving these accords is like three or four years. So we've got time for analysis. What's going on with the Paris Accords?

0:23:04 Andrew: Yeah.

0:23:17 Andrew: Trump administration has announced its intention to withdraw from the Paris agreement. As you point out, under Article 28 of the agreement, the earliest effective withdrawal date is November 4th, 2020. and 20. So, there certainly is a long time period. That being said, as is going to be a theme from this from the segment, there are no adverse consequences for for failure to abide by the term. Right. There's... there's no enforcement anywhere in the Paris agreement for literally literally anything.

0:23:50 Thomas: Yeah. Well, I don't know if you're going to touch on this, but that's what was so hilarious because a lot of the analysis was Trump said, let's renegotiate to be something that already was exactly the Paris Acords. His rationale was like, wow, we need a better deal. And everything he outlined was like wait, that is what this was.

0:23:55 Andrew: So yeah, that

0:24:11 Thomas: Excellent.

0:24:11 Andrew: Is, Yeah, it, it is what the, what the deal. So we're going to, we're going to talk about the deal, but first I wanted to address kind of a number of sort of legal questions and misconceptions that I have seen in, in connection with this withdrawal. And the first is, does the president have the power to do this, right? Can the president, president unilaterally withdraw from a treaty? Um, and the answer to that is, go ahead and take your best guess.

0:24:37 Thomas: This is not a bar question. Yeah, this was tricky. I heard some stuff back and forth on this and I think it had to do with whether or not Congress originally ratified it. So, I don't know. I'm going to need legal advice from a podcast. So So I'm going to guess, I'm gonna guess it is legal just because it's always Trump gets away with everything.

0:24:42 Andrew: Um, you you should you should have stuck with your first guess as has is always the case on on Thomas's second chance law firm. No, the right answer is, I don't know.

0:25:02 Thomas: Oh, okay. Yeah. Oh, interesting.

0:25:09 Andrew: And the reason why I don't is the right answer is, because this is the entirety of what the Constitution says about treaties. OK, it says the president shall have the power by and with the advice and consent of the Senate to make treaties, provided two thirds of the senators present concur. And notice that that says "to make treaties." It doesn't say anything at all about withdrawing from treaties.

0:25:32 Thomas: Yeah. Well, if you're an originalist, what does that mean? We just fall into a vacuum when we ever leave a treaty? Like there's no, there's No words on it. So we can't do it or something. It's a good question.

0:25:43 Andrew: I yeah, I I think it

0:25:46 Thomas: What would Scalia think about this?

0:25:46 Andrew: Means we yeah, we look to see what George Washington did and he never withdrew from any treaties. So therefore, you know, nothing. So now our story is going to take us all the way back to the halcyon days of President Jimmy Carter, not generally regarded as as well as one of our nation's finest presidents. On December 23rd, 1978, President Carter gave unilateral notice that he was going to terminate the 1954 Mutual Defense Treaty between the United States and Taiwan to be effective January 1st, 1980. And he did so without advice and consent of the Senate or approval of both houses of Congress. And so what happened was then members of the legislature sued the president and said, you don't have the power to unilaterally abrogate the treaty, that it violated their legislative right to, quote, be consulted and to vote on the treaty's termination. So it first went to the United States district court for the district of Columbia.

Uh, and that court said, uh, held that, um, yes, that approval of both houses of Congress was necessary prior to terminating a treaty. Um, and then, uh. Obviously, uh... president appealed to the Court of Appeals for the District of Columbia they reversed in a per curiam decision.

0:25:48 Thomas: Yeah. Yeah. Yeah. Hmm.

0:27:13 Andrew: Decision. We have talked about per curiam before. That is an unsigned, typically short opinion that is not attributed to any one The Court of Appeals opinion held that the president had the authority to terminate the treaty in order to facilitate normalized relations with the People's Republic of China. It would have been unreasonable to hold the U.S. to the treaty since Taiwan was no longer recognized as the legitimate government of China. It's the one China policy that we talked about in our last episode. Senator Barry Goldwater filed a petition for cert with the U.S. Supreme Court. The Supreme Court granted it. Of a very interesting maneuver, There's no lead opinion. So that case is Goldwater versus Carter, 100 Supreme Court 533, 444 U.S.

0:28:04 Andrew: 996, 1979. And we're going to link it in the show notes. But the interesting thing is there's... there's no No lead opinion. The memorandum opinion vacates the order of the Court of Appeals, remands back to the district court with directions to dismiss the case. OK, so the result is to permit President Carter to terminate the mutual defense treaty with Taiwan. But there was no single opinion that garnered five votes that said, you this is the reason why. Right. Right. So

0:28:39 Thomas: So there's not really anything to point to, is what you're saying. It's just kind of like, this

0:28:40 Andrew: Exactly. Right. So some. Right, so there's because there's no majority opinion, what we have are a series of concurrences. And so one concurrence says that this isn't a live case or controversy. Right. That's Justice Powell's concurrence, said because that there Congress had not taken official action on the notice of termination. In another concurrence, Rehnquist, joined by our friend Warren Burger, Potter Stewart and John Paul Stevens, said that the question of whether to terminate the treaty, treaty, is a political question, we've talked about the political question doctrine before, um, then and then somebody who's long been regarded as the most liberal member of the Supreme Court, certainly in the 20th century, uh, uh, is, is Justice Brennan, uh, who wrote a separate concurrence and said, uh, that explicitly the president has the power of unilateral, to unilaterally terminate treaties.

0:29:32 Andrew: And Brennan's, uh, Brennan concurrence says abrogation of the defense treaty with Taiwan was a necessary incident to executive recognition of the Peking government. Uh, little bit of archaic terminology there. You'd know it's a 1979 case because the defense treaty was predicated upon the then-unabandoned view that the Taiwan government was the only legitimate political authority in China. Our case is firmly established that the Constitution commits to the president alone the power to recognize and withdraw recognition from foreign regimes, that mandate being clear, our judicial inquiries into the treaty rupture can go no further. Then, uh, and then two other liberal, well again weird alignment, uh, uh, Harry Blackman, who is a liberal justice, and Byron Whizzer White, who was a a right of center justice, uh, dissented just to say that that they would have wanted to have heard oral argument on the case. They so they therefore disagreed with the court's disposition, which is vacating the D.C. Circuit opinion and remanding to the district court with instructions to dismiss. Yeah.

0:30:31 Thomas: Is pretty complicated to try to follow. Hopefully you can, can you bottom line us on that?

0:30:37 Andrew: Yeah. So the bottom line is don't know why there's no good text, But the president seems to be able to unilaterally withdraw from treaties. So that threshold question, again, good practice by a president that cared about these sorts of things would be to consult with The Congress. Yeah, but as far as we can tell from the only case that's dealt with that, and certainly from, you know, tradition, from precedent in the form of tradition, presidents can unilaterally withdraw from a treaty, even though they have to for a treaty to be ratified, uh, that's a, that's an incredibly high bar, which is to say, you know, it must not only be ratified, it must only be signed by the president, but, uh, approved by by two-thirds of the Senate, yeah, super majority, um,

0:30:48 Thomas: Hmm.

0:30:58 Thomas: To run it by Congress.

0:31:17 Thomas: Huh. That's two thirds, right? Yeah. So what? Yeah. Yeah, so the fact that there's nothing in the Constitution directly about this makes this really interesting, huh? So how yeah, like how does this even get decided? Is it pretty much just like the first president to do it and then however the chips fall? I mean, it seems weird.

0:31:29 Andrew: Yeah And, and that's right, I mean, that, I, there could, are scores, I mean, this is another, if we want to sort of go back to the originalist, uh, and maybe it would be interesting to put this question to our friend Seth Barrett Tillman.

0:31:55 Thomas: Yeah, that would be interesting.

0:31:57 Andrew: The longstanding habit prior to 1979, the United States has abrogated dozens of treaties starting 1798 when an act of Congress pronounced the United states freed and exonerated from stipulations of the treaties of 1778 with with France. This act was followed two days later by one authorizing limited hostilities against France. So, you know, the run up to the French and Indian wars. But the way in which we withdrew from the French treaties of 1778 was by act of Congress. Longstanding tradition and practice up until 1979 was presidents had to get congressional approval to withdraw from treaty obligations. Jimmy Carter was the first, as far as I can find, to unilaterally withdraw and did so on the basis of, I need to withdraw from this treaty in order to continue to further our negotiations with China. And it's an interesting argument.

0:32:19 Thomas: Hmm, yeah.

0:33:02 Thomas: Yeah, yeah, so is this something that you would want to go to the Supreme Court so that we, we could just get an answer on this either way?

0:33:04 Andrew: I so yes, like I always want the, but But I wonder if we would do any better than Goldwater versus Carter, right? I wonder If we would get kind of the same sort of disparate collection of some folks would say it's a political question. Some folks would say It's not right. One or two justices might affirm the president's inherent authority to withdraw from treaties. It's always interesting to me when you have these sort of oddball alignments of justices, And it doesn't kind of clearly break down along political lines.

0:33:13 Thomas: Yeah, yeah. Yeah. I just, I mean, very simple mindedly, it just seems to me that if the intent was you need congressional approval to make a treaty, you would also need it to get out of a treaty. Because in some ways that's sort of like a treaty in itself, you know, canceling one. So I, yeah, okay, sure.

0:34:00 Andrew: And well, let yeah, let me give you the counter argument. The counter argument would be a a limited government, you know, sort of using this without irony, a classical liberal Lockean approach that says, no, it should be harder to bind the United States to obligations than it is to to release it from obligations. Right. That strikes me as a not implausible argument. Right.

0:34:23 Andrew: So that's the threshold question. Can Donald Trump withdraw? It seems like the answers are, you know, mostly right. So you have explicit withdrawal provided in the terms of the Paris Accords themselves. And you have some precedent least that the courts won't stop you as president from unilaterally withdrawing from a treaty, even though it requires two thirds to enter into the treaty in the first place. Um, yep,

0:34:23 Thomas: Okay, yeah?

0:34:53 Thomas: Now, did you look into, were you going to cover at all how we got into this treaty? Because I know there was some some controversy there. Okay, cool.

0:34:57 Andrew: Yep. Yep. Yep so the second question that I have seen come up is that the Paris Accords were not themselves submitted to Congress for approval under the Treaty Clause that that I just described right so there was never a, you never a two thirds vote of the Senate to ratify the Paris agreement in the first place. That's kind of true, but not at all important. And the reason why is because the United States specifically not only enter, but ratified by the Congress In 1992, under Republican President George H.W. Bush, the United Nations Framework Convention on Climate Change. And I'm not we're going to link it in the show notes. That is another, know, kind of lengthy treaty that was meant to facilitate a reduction in global CO2 emissions and pursuant to the UNFCCC, the signatory nations were empowered to to hold future conferences. Right. Article four of that treaty, which was properly ratified, authorizes the signatory nations to conduct for and regularly update and and facilitate ongoing future commitments. Right.

0:35:09 Thomas: Oh, okay.

0:36:25 Thomas: Negotiations. Okay.

0:36:27 Andrew: And So United States agreed to agree. It is. So the Paris Agreement is a subsidiary agreement within that UNFCCC. So, the argument that the Paris Agreement itself was never separately ratified is, you know, sort of true, but misses the point. And And then the third legal question that I saw that was just sort of baffling is it is circulating among kind of the far right, because various states, let me take a step back.

Now we should probably talk a little bit about the substance of what the Paris Agreement provides. It provides a voluntary goals, right? It's Article 2, which says goal of the Paris Convention is to hold the increase in global average temperature to well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 degrees Celsius above pre industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change. And that is, look, we do not have time on this podcast, even if we went six hours to kind of go through climate change science. I don't think we have too many climate change deniers on who are listeners to the show. But what I will tell you is you can go to the NASA page, right? There's Donald Trump's NASA now.

0:36:27 Thomas: Okay? Yeah.

0:37:48 Andrew: And there is just unanimity, right. Right. The the the arguments against climate change that I hear by and large a sort of we don't know if it's you know, how much is anthropogenic versus how much is just natural Earth cycles. This sidesteps that. The right, unanimous, virtually unanimous data from the scientific community is that at one point five degrees Celsius increase in average global temperatures are when you start seeing catastrophic climate reverse. You know, catastrophic habitat loss of ecosystems, sea levels, and things like that, that have the long term implications of those are catastrophic, right? Right. So, give very, very easy examples are you have melting of the polar ice caps that that causes flooding in coastal regions. Right. Like, particularly, I mean, around the world, really, you look at how the U.S.

0:38:04 Thomas: Yeah.

0:38:52 Andrew: Population is distributed. Even now, most of our population are on coastal regions, right? Like there's a reason why 10 million people live in New York and eight people livein Utah. Right. So you start flooding coastal regions. People have to migrate away from. Yeah, they

0:39:08 Thomas: To Utah, and we don't want that to happen. I think this, yeah.

0:39:12 Andrew: Have to migrate away. And so.

0:39:14 Thomas: Well, the scariest part to me is the feedback loop nature of it, because so many of the bad effects themselves actually produce more more warming, and then it gets worse and worse and it feeds, feeds back on itself. And I think that's why there's such a tight range, you know, like you, you might think like, oh, why is, how could two degrees make such a difference? And I Think that's Why, because it, it sets things in motion. Like once the ice melts, then that doesn't reflect as much of the sun, which believe it or not is a gigantic effect. And that feeds to more ice melting, all this kind of stuff.

0:39:48 Thomas: And once it kills the certain habitats, then there's less greenhouse gas reducing reduction going on from that. So it's scary stuff.

0:39:25 Andrew: Right. Right, right. Before. And I totally agree with all of that. I'm sort of trying to reach out to, you our nonexistent conservative audience members who, you You know, who may be skeptical. Migratory crossings, environmentally driven migratory crossings are a major problem, particularly in Europe, right, where you have now all of a sudden you're driving people over borders because there's so many, you countries that are smaller countries, narrower, you knows, smaller borders.

0:40:03 Thomas: Dan Dan, the environment hating man. Yeah. Mm hmm.

0:40:23 Andrew: So, and that's a tremendous driver of violence. Obviously, species loss, habitat loss are areas like 90 percent of our medical research comes from the Amazon basin. Right. And when you have, catastrophic loss of a habitat and all of a sudden, you've driven a species to extinction because it can't live there anymore, you really have no idea. And this is another one of those, you sort of like the feedback loop, You just can't predict what the causal chain on that is going to be. That species goes extinct, what other species do you lose that preyed on that species or had a collaborative relationship with that species? The models on ecosystem collapse are truly terrifying. Of terrifying. So that's why you should care about climate change. All of these are voluntary agreements.

And as a result of it being voluntary agreements, a number of states, of which I believe both of our home states, California and Maryland, have announced the intention. In Maryland, it's a little bit controversial because it was announced by the legislature and by our Republican governor. Both of those, but both of our states, as well as others, have announced their intention to voluntarily continue to try and match the Paris Accords. And there has been an argument in sort of the among the right wing of you can't do that, right? Like a state can't decide decide. Well, and the argument, you know, sort of has a surface level of plausibility, right, that says the federal government is supreme over the state, so the state can't decide to effectively ratify a treaty, right?

0:41:43 Thomas: Yeah.

0:41:56 Thomas: Can't voluntarily try to reach a goal. Come on.

0:42:10 Thomas: Well, and we know Republicans hate states rights. So,

0:42:14 Andrew: Well, again, it's part of this sort of unique, you know, political breakdown. It's why I find it very plausible when I talk to folks who say they They are, you know, never Trump conservatives. This is a really, really good illustration because, yeah, you have Trump surrogates who are, sort of, taking the line of the federal government has supremacy over the states and the states can't show up the federal department by voluntarily adopting what would have otherwise been a treaty obligation and that they should be required to follow the national policy instead, which, as you point out, is anathema to what Republicans have been saying literally for 50 years about the states being laboratories of democracy and the like.

So there's no, I do want to clarify, you know, that argument is nonsense. So if Uncle Frank is posting that, you know, Massachusetts can't show up the president by voluntarily abiding by the Paris Accords, then And you can you can direct him to the show. And we will link again. We'll link all these documents. I don't understand how it persists among the, you Trump supporting community that that there are any sort of binding commitments because it's like the plain words show that there or not. Um, yeah. So you had a, uh, you had a voluntary set of commitments, uh entered into pursuant to a validly enacted treaty obligation uh, by the United States. Um, can the president withdraw from it? Yeah, he probably can. Um. Can he withdraw on the time schedule?

0:42:57 Thomas: Yeah. Yeah.

0:43:50 Andrew: No, but there's no penalties for him withdrawing early because there's no penalties or anything, uh in the Paris Agreement. And, is it permissible for other states to, uh, to, to pick up the slack, uh, thinking so, for example, like, I know Massachusetts has said they're going to abide by it, California, uh, not just because these are liberal states, but because there is a legitimate, um, Californian, Massachusetts are two of our most of, uh, the states in which our nation's tech, tech industry is, uh, is centered. Uh, and there is a strong belief that, um, emerging, uh, industry is. You, that there were tremendous business opportunities, uh. To be had, uh, both nationally and internationally in, uh, in green technology, uh, and so you know you saw the the

0:43:55 Thomas: That's interesting.

0:44:35 Andrew: Immediate kind of aftermath

0:44:35 Thomas: Well, not only that, I mean, California also has a lot of coast. So, I'm going to... We also don't want to die.

0:44:37 Andrew: Yeah well yeah, yeah no right Yeah, no, that's, that's a really good point. So, um, so there you go, it all begins with Jimmy Carter and Barry Goldwater back in 1978, uh, but there's... there's your framework for for understanding how we how we got to where we got.

0:44:52 Thomas: Wow. So, would you guess that we're probably not ever going to get a clear answer on that? Like, we're just going to kind of continue in this ambiguous state because who cares? Or something like... Are people suing, or is anybody trying to make the case that Trump can't do this?

0:45:07 Andrew: Yeah. Well, yeah, I I have not seen a lawsuit brought. So it so I would put it more strongly. I would say it.

0:45:16 Thomas: Okay. Who would be able to bring that lawsuit?

0:45:22 Andrew: Good question.

0:45:22 Thomas: The environment?

0:45:23 Andrew: I think, yeah, well, I think that you would have the same kind of state level standing, right? States Attorneys General would be able to bring the lawsuit to say, by withdrawing from the Paris Accords, the administration has, you put my state at a competitive disadvantage with respect to green science. There's, you know, we just sort of talked about that. It would be very, very interesting to do a redo of Goldwater versus Carter, right, to have sitting members, sitting Democratic members of the U.S. Senate file a lawsuit and say they were denied the opportunity for advice and consent. Uh, I suspect that there are a lot of reasons why they're not doing that. Um, and, and probably a lot of that really is, you know, sort of Trump illegal fatigue, right? Like there's just only so many battles you can fight at once.

0:45:25 Thomas: Okay. Yeah.

0:46:14 Andrew: And, you Know, being part of a, how did you with, you know, you have no legal right to withdraw from this treaty. I can see, you some of the senators on the Senate Judiciary Committee saying, you you know what? I don't want anything. We have a serious, uh, an ongoing investigation into obstruction of justice. And I don't want my name on a lawsuit where the Supreme Court will probably issue a pro-Trump ruling if it got there. Uh, because I don't, I'm not gonna, I don't, I don't want to undercut the force of my objection and have, you know, and have people say, oh yeah, you just sue Trump for everything, right? Like I want to focus my energies on, you know, this this plainly illegal and, you obviously detrimental to the country conduct. It's not to suggest that withdrawing from the Paris Agreement isn't detrimental to the country.

0:46:15 Thomas: All

0:47:02 Andrew: I think it clearly is. But I think that, but it also is probably, also probably illegal. So I can't, can't openly fault the members of Congress or the sitting senators for not doing that.

0:47:16 Thomas: Right, fair enough. Well, good stuff. Thanks for taking us through all that. All

0:47:19 Clip: He who questions training, only trains himself at asking questions. What?

0:47:27 Thomas: Okay, Andrew, listener question time. Actually, it's been a little while since we had a specific listener ask a specific question. It's more been, hey, everyone on earth wants to know this thing. So, I guess that's a sign of just how universal this news is. Oh, and by the way, the fact that these testimony, these hearings got such high ratings was really, I think, encouraging in some ways, you know, as people paying Attention to the process. But here's a question from Mick Dowling. They ask, I have a question for Andrew relating to, don't take legal advice from a podcast. I've heard this sort of disclaimer from many sources over many years. What's the legal basis for this advice? Is the purpose to protect the lawyer from claims or to protect the lay listeners? Where does the potential liability and danger lie? My answer to that is it lies in anyone listening to anything I say that's, but uh, but I'm not, we'll see if that's

0:47:49 Andrew: Yeah, I agree.

0:48:20 Thomas: The right answer

0:48:21 Andrew: I think we know Thomas's second chance law firm is is is running, I think, ahead of most lawyers that you'll find, you know, their face on the back of a bus or billboard somewhere. So I would definitely rather go to Thomas's Second Chance Law Firm than than a bunch of those places. Interesting and fun question. In general, people try and put out disclaimers to disclaim against liability. Right. I'm warning you, you know, this is a dangerous activity. And then, you know, if you do the activity and get hurt, I can say, hey, look, I warned you in advance and you consented to the risk.

That's a doctrine called assumption of risk that is sometimes successful in avoiding tort injuries. When you see it with professional services, there are sort of a couple of things that are at stake here, right? So first, there's no guideline. There's nothing in my ethics, rules are bound by something called the Model Rules of Professional Conduct. There's nothing in those rules that requires me to state, don't take legal advice from a podcast. There are significant guidelines that apply to lawyers once you've taken somebody on as a client, so right? We've talked about attorney-client confidentiality.

That applies even when you're sort of discussing a case with a potential client. You still have to treat the stuff they tell you when you are evaluating whether to take their cases, confidential, um, when you've begun representation, um, courts, uh, will require you to

0:48:33 Thomas: So you

0:49:47 Andrew: Petition the court before you can withdraw from the case, uh, for good reasons, um, right, you would not want

0:49:53 Thomas: Can't you're saying you can abandon someone that you've

0:49:53 Andrew: Yeah you can't like show up on the uh eve of trial and be like, nope, don't like this guy anymore, you know, peace out right right um but uh you know that works a, it works a real hardship. It works a hardship on lawyers. I don't know how much sympathy I'm going to get for this. But, you know, if you have a client who hasn't paid you in three months and you're in court, I would like to withdraw because I'm doing hundreds of hours of work and not getting paid is not always a sufficient answer. Right. Usually gets you there. But you still have to to sort of go forward. And during the period while the representation is is going on, you know, you are under and I'm in those situations and I've actually been in this kind of situation where, you no money was coming.

But nevertheless, like you still have to use your professional best judgment your best efforts on behalf of your client, even if they're not writing the checks. And, you know, and good, right? Like, again, don't get me wrong. Lawyers should have to do that. But I suspect very few of our listeners who are in other professions would would enjoy the extended prospect of, you know, working hard for free.

0:49:55 Thomas: Okay yeah pranked you yeah yeah

0:51:03 Andrew: From protecting on my end is making it very, very clear that there's no attorney-client relationship that's established by listening to the podcast or sending us an email or responding on Twitter, stuff like that, are the risks that I'm worried about. But let me tell you, that's all really, really, really small. Right. I don't think that a court somewhere is going to say, oh, you know, oh, you listen to Andrew Torrez on Opening Arguments and now, you know, he's your counsel of record in this case by implication. That's not going to happen. I really do it to protect the listeners because one of the the things that I hope has come across in doing 79 episodes of the show is sometimes very, very minor differences in fact patterns make a huge difference in terms of how the case goes forward.

0:51:52 Andrew: And you just don't know what that difference is unless you're a lawyer or you've talked to a lawyer. And so somebody could listen and go, look, you know, Andrew talked last week about about scratching off terms in a contract. I scratched off a term in a contract. Therefore, I'm in a perfectly good shape to not pay. It doesn't apply to me, and I'm going to go. And that may not be the case with you at all, right, if you're sort of listening and have scratched out a term in a contact.

0:51:58 Thomas: Yeah

0:52:24 Andrew: The way in which that contract was communicated back and forth, is, you know, sort of crucial to the inquiry. And if you're just sort of thinking about kind of the general principles that we talk about, I wouldn't want anybody to, you rely on that and confidently sort of make a mistake that could, you know, cost them financially that could have sort of ruinous consequences. So don't do the disclaimer for the reasons that you see on like, you you know, natural male enhancement commercials, right? Disclaimer They because their products are frauds. They don't work. And they're trying to make sure you don't get sued. We do it to try and let you know that, you

0:52:59 Thomas: Right but by the way, if you've gotten a legal erection for longer than four hours, please call a doctor. Just, from from our show, just throwing that out there.

0:53:13 Andrew: I assume there's some, the idea right. Is to try and drive home. Well, I'll give a tiny example. I had someone of the show. I was very, very excited to meet them. They had a super specific question about their residential lease. Right. And leases are something that the key legal aspects can vary county by county. Right? Right. Like so literally five miles away, one jurisdiction might have a duty to mitigate damages and one duty and one jurisdiction might not. Right. And so I couldn't even in the abstract say, you well, generally what's going to happen with your leases? All I could say is, yeah, I'm sorry, there's... there's nothing I can you like you're going to have to talk to, you know, a landlord tenant lawyer here.

0:53:14 Thomas: Yeah

0:53:59 Andrew: Don't take legal advice from a podcast. And that's and that's true. Right? Right. Like it it it if I were to randomly opine about, you know, your lease in Pocatello, Idaho, that would be malpractice for me and and probably a bad idea for you to listen. So I try and tell people, you Know, hey, look like that. This is going to be fact intensive and, you talk to a lawyer or, you Let's talk to me if it's within my area of expertise and I'll sit down and figure it out. But but you can't just kind of go from from our general principles. So that's why we do it. Yeah.

0:54:30 Thomas: And don't use legal zoom all

0:54:34 Andrew: That I can confidently say you can take business advice from this podcast. Please don't please don't use legal.

0:54:41 Thomas: Right, well, good question, thanks so much, and thanks for that answer, interesting stuff. All right. It is time for one of our co-favorite days. I don't know if we ever mentioned this, but this really is one of our co-favorite days. And that is new patron Tuesday. And we begin with thanking Lawrence Tauzin, Yodel Mountain Lion. I like that one. Joel Meyer, Josiah Wearne, Jesse Rabinowitz, and Christopher Hammock. Thank you guys so much for the new pledges.

0:55:12 Andrew: Yeah, and thank you to John Figdor, to Scott McInally, Kate Capps, Erik Schanzenbach, Teacher Martin. Thank you all so much. I think I got the tougher names this week.

0:55:24 Thomas: But by the way, John Figdor is someone I've had on my other show. Uh yeah somewhat prominent member of the uh of the skeptic community, so cool, John, thanks for listening and pledging.

0:55:28 Andrew: Oh, cool. Nice.

0:55:34 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:55:41 Thomas: Now it's time for, we had the Thomas Was Right segment earlier, now let's get to the Thompson's Wrong segment, but I'm, I'm hope, I think I might have kept Second Chance Law Firm intact, but we'll see, halfway.

0:55:51 Andrew: OK, so, Thomas, this is a pizza gate, the question. Right. We have a pizza owner that's losing business to his competitor, Burger Man, and starts making false statements about the burger restaurant, its inferior ingredients, says they've been causing poisoning. And when the burger joint owner loses his customers and business income to the pizza place owner, can he sue for conversion? You eliminated A, which was yes, because the pizza owner interfered with his right of peaceful enjoyment and disrupted his business activities. I can tell you that is a good elimination. A is not the answer. Uh, you also you also eliminated C, which was no, because conversion consists of appropriating another's real property, uh, and I can tell you that's a good elimination, so

0:56:28 Thomas: There, all right Well, all right, end of the show, thanks guys, thomas us a Second Chance Law Firm intact, no?

0:56:44 Andrew: Yep, that left B, yes, conversion is an intentional tort and the pizza owner acted intentionally to convert and did convert part of the burger business, which you picked. And then D, no, because there was no interference with his ownership or right to possession of his personal property. That's ultimately the answer you picked. I am happy to tell you that that is the correct answer, uh.

0:57:07 Andrew: Yeah, it is um, yeah really yeah, the tort

0:57:06 Thomas: Way, I don't believe you really wow I am blown away, I totally thought I was like, I got, I got this wrong, I, I thought I outsmarted myself, but it turns out I just smarted myself because

0:57:17 Andrew: There you go, that's right, no, uh, conversion, and we've actually occasionally yeah

0:57:26 Thomas: Yeah just the title, I've never freaking heard of this, but I just, the title of it, I know, I know you never know, like, what how things are named in law, but I'm just, conversion just didn't sound right to me. What would the tort be for what's described here? Is there a different one that would be more appropriate?

0:57:45 Andrew: I mean, look, this is, uh, a, the tort that's here is a business defamation is tortious interference with business relations.

0:57:50 Thomas: Yeah, okay. Holy crap, Andrew, I think I understand the law. No, I shouldn't go that far.

0:57:59 Andrew: What does conversion mean? We've actually, we've used the word a couple of times on the show. Conversion is when somebody else has your stuff and you want to get it back, right? And so the principal way in which conversion comes up in the legal system is in kind of like the landlord tenant context, right? You have a dispute, the landlord, you've moved out, you still have personal property on the premises. The landlord has locked the doors or whatever. And again, I want to be very clear, particularly in light of our question, I'm describing a general situation, not given, yeah.

0:58:38 Thomas: Yeah, don't take conversion advice from a podcast.

0:58:41 Andrew: But you will then sue for the tort of conversion And you will say, um, those things belong to me and I want them back. Um, and, it and is one of the, um.

0:58:52 Thomas: Are you pranking me? Is this where you made up a whole answer for me to be exactly right. Cause I just, I can't believe it. I'm, I'm over the moon right now. So the other thing I was going to ask is how is it that D was more correct than C? I think I have those letters right. If I remember from last week, I The reason I eliminated it was just cause I thought D was like more specific, because they were both kind of along the same assumption, like the correct assumption of the tort, but is that what it is?

0:59:06 Andrew: Right. Yes, you, you did.

0:59:20 Andrew: I think you're sort of right on that. Um D D uses the phrase personal property, which is more more expansive. C uses the phrase real property and real property means land. Right. So yeah, you might've looked at on that part, but yes, uh, the, the classic tort of conversion is personal property, not, not real property, right? Like it's, it is hard to, to, yeah, to convert, real property. And uh, uh, was a lot to parse through for somebody that didn't know what the word conversion meant,

0:59:22 Thomas: Okay. Oh, okay. Real property. Oh, so I might've lucked out on that part.

0:59:43 Thomas: Yeah, it's a little harder to convert land, I guess. Okay. Gosh, I can't

0:59:53 Andrew: So great job.

0:59:53 Thomas: Believe it. The theme of this show is Thomas was right. You know, look, Look, it took a bit of luck, but I have to say, I'm amazed that somehow I accidentally analyzed that correctly. Wow. Oh, okay. Thanks. Do I win again? No, let's go to future Andrew so we can get our real winner for this week's TTTBE.

1:00:10 Andrew: Yeah. No, yeah, let's go to that's Okay, Thomas, this week's winner is Andrew Ray at Diopter, D-I-O-P-T-R-E, on Twitter, who writes, D, correct answer, the burger joint doesn't own its customers and its reputation was trashed, not converted. So I thought that was pretty good. He got the answer right. There was a lot of funny stuff out there, a lot, lot of people playing along, uh, but this uh week's winner, Diopter, give him a follow on Twitter, Andrew Ray, thanks for playing.

1:00:46 Thomas: Never Andrew, I have to say, I've never been this happy. Like, I, I like to pretend that the the bar exam doesn't get me down, you know, I, I put up a rocky exterior to try to shield my true inner hurt from when I get the the var questions wrong. But no, but I, I have to say I'm, I'm blown away. I just thought I, I thought you were gonna lecture me by like, ah, stop trying to overthink this stuff, you know, I just go with the obviously correct B answer. But no, I don't know what the opposite of overthinking is. I guess I appropriately thought it.

1:01:16 Andrew: And, as a sneak peek for anybody who's still listening and hasn't just, you know, recorded, you know, uh, skip to the end of the episode, right here we are, we're getting close to our Patreon goal, uh, of two thousand dollars an episode, where we do live shows, and uh, part of our live show will be live Thomas takes the bar exam, we do, we've uh, we've We've talked about multiple ways. Oh, yeah.

1:01:27 Thomas: Oh yeah. It's going to be so fun. But by the way, audience participation, by the by. So it's not just me. It'll be you guys too. It will be really fun.

1:01:37 Andrew: Oh yeah. Yeah. Yeah, it's, if you like this segment, you will love our live our live show. So, yeah.

1:01:45 Thomas: Absolutely. Looking forward to that. All right. Thank you guys so much for listening. Thank You Andrew for for changing the rules of law to make me write on stuff, because I'm sure there's no way it would have happened otherwise. And we will see you guys for another newsworthy episode on Friday.

1:02:06 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.