OA80: Flashback Friday (featuring Health Care, The Slants, and Gerrymandering!)

Transcript

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

0:01:17 Thomas: Hello, and welcome to Opening Arguments. This is episode number 80, and I'm your host, Thomas Smith. Over there is Andrew Torrez. How you doing, Andrew Torrez?

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

0:01:28 Thomas: Doing good. I'm excited. It sounds like you've got a little miniature announcement here.

0:01:33 Andrew: Yeah, I do. In a couple of weeks on Sunday, July 2nd, I will be giving a talk before the Lehigh Valley Humanists in Allentown, Pennsylvania. That is going to be a how to never pay taxes again and make Bernie Sanders president using this one weird trick talk. And if you are a listener of the show at all, you probably recognize that by it's more more sober legal title, which is skepticism and the law. Uh, but yeah, if you're an OA listener, uh, on the East coast, Maryland, Pennsylvania, nearby areas, um, it's a free talk, uh, and, uh, we'll, we'll give the link in the show notes and I'd love to have some friendly listeners, uh, stop by and, and hear the speech.

0:02:19 Andrew: It should be, you know, I mean, look, if you like the show, you like listening to me talk. Well, no. If you like the show, you like the fact that Thomas interrupts me talking every 30 seconds to keep me focused, and you will not get that with this talk, but

0:02:31 Thomas: I can always Skype in to the talk. Okay.

0:02:32 Andrew: Nice, maybe I will do that, or what I could do is just like kind of set up a a metronome, and every time it clicks the other way, you know it's Thomas going, wait, wait, wait, a minute, oh,

0:02:36 Thomas: I'll say hi. I really want to get one of those robots that has the, it like drives around and then your face is Skyped in someday, someday opening arguments. Well, as soon as we're at the top of podcast mountain and we just have like, we just more funds than we know what to do with. That's the first thing I'm going to do. So, so that's really exciting. Congratulations. I, and I bet you as soon as word gets out on the title of your talk, you're going to have just like thousands of people just filing, who don't know the show, just are like, oh yeah, I want to not pay taxes and make Bernie president. So I'm sure that'll, hopefully it's a large capacity place.

0:02:47 Andrew: Yeah, I'm with you, I'm with you.

0:03:07 Andrew: Yeah, I think so.

0:03:18 Thomas: All we've got some hot off the presses kind of news stuff for you today. As usual, it is Friday. It is the day you're hearing the Opening Arguments podcast reacting to the freshest news. It's my favorite, so let's get right to it. All Right, Andrew, we got got a few items to talk about here. The health care bill, it is finally in the open.

0:03:33 Clip: The law breaking down

0:03:46 Thomas: That's the first thing. Like, it's finally been revealed. Like, we're allowed to kind of know how our whole lives and livelihoods and health care are going to change. So that's nice of Republicans. What's going on? The AHCA, we've got, it looks like we've got the bill. It's like 130 some odd pages. What are your observations? I know this is going to be a quick reaction because this literally just happened as we're recording. So I only expect you to have read, you know, 100, 120 of the pages. I but

0:03:45 Andrew: I have, through the bill. And they're just sort of a couple of things that I want to point out. The threshold question that I have that I haven't seen answered yet. But again, you know, this news broke an hour ago. So maybe this will be obvious by the time we go to press. But this bill is going to be pushed through the reconciliation process, which you've explained on SIO. It's the procedure that is going to allow the Republicans, if possible, to avoid the filibuster in the Senate. A reconciliation bill must be revenue neutral and yeah.

0:04:35 Thomas: Yeah.

0:04:50 Andrew: And, have you,

0:04:48 Thomas: Within 10 years, right? So So It could spend money in the first four or something, and then, like, as long as they allegedly it evens out, then, then but if, as long as it's neutral by 10 years, then it's good, right? It doesn't have to be neutral like every single year because I know there's Like there's like these timing things where they're like, okay, this will phase out, you know, later. And so that ends up making it revenue neutral.

0:05:04 Andrew: Right. But as far as I can tell, all this does is spend money. Um, so I don't see, I, I honestly don't see how it's going to be, uh, you know, even taking a 10 year horizon, uh you're going to wind up with, with anything that's revenue neutral. And let me, yeah. Yeah. And let me talk about some of that. Right. So we're going to link the bill in the show notes. Page 11 of the bill establishes, and I'm not making this up, a 50 billion dollar slush fund. And what that is, is it is it ist 15 billion dollars in 2018 and 2019 and 10 billion dollars in 2020 and 2021 to the administrator for the Centers for Medicare and Medicaid Services to give out to states to sort of ease disruption and provide support for states transitioning away from the Affordable Care Act. So $50 billion, one government official gets to decide how that's doled out.

So, you know, that's a good point to that's It's a good place in the bill to point to if you've got a Pepe the Frog head in your Twitter feed who's like, this is repealing Obamacare and getting rid of wasteful government spending and be like, would you consider a 50 billion dollar pot of money that one bureaucrat appointed by Donald Trump gets to spend?

0:05:16 Thomas: Boy, that's a good point.

0:05:41 Thomas: Just for fun.

0:06:33 Andrew: However, he sees fit to be wasteful, government spending or how would you, how does that, how does that strike you? Um, so, Uh, so that's pages, uh, 16 and 17. Um, starting on page 25 is, uh, it's sort of not even worth going through because these, this is the same laundry list of tax cuts that is the purpose for passing this bill, right? And you went through that, I thought, in in really good detail in the SIO episode, uh

0:06:40 Thomas: Yeah. Yeah. If you don't mind me just chiming in real quick with what I said, I realized that it's kind of odd to even call this a healthcare bill, the initial one. Now, I think that this one has changed a little bit in the Senate. I know they've tried to throw a few more, you know, scraps to the health care system. But the first one, I just want to get your take if you think this is fair to say. The House bill, if you had no title on the bill and like, you know. Some aliens just came down and read the bill.

What do you think they would call it? Because it really, to me, it looked like a tax cut. Like it literally was just a tax cut. The money their saving is from taking away healthcare and the money They're spending is from cutting taxes on the rich. So it's like, you don't really, it's not really a healthcare bill. And I tried to make the analogy. Like, what if you, someone's like here, I got an infrastructure bill for you. And you're like, like, oh, great. I love infrastructure. What do you got? Well, we're going to take away billions of dollars from infrastructure and give it to the rich people.

And it's like, well, that doesn't really, is that an infrastructure bill or is that a tax cut? And I, you know, you might think I'm being hyperbolic. Maybe Dan Dan, the conservative man will be mad at me or something, but that is actually like, you can look at the numbers and how they line up of the CBO report. And really, I mean, that's what the house bill was doing.

So I guess my question is, do you keep me in check here if I'm going over the line. Is that, am I being hyperbolic? And does this Senate version change that at all that you know of?

0:07:04 Andrew: Right, yep.

0:08:25 Andrew: You are correct that the House bill is properly described that way. And again, I would say, you Know, anybody wants to disagree and point us to something in that Republican bill that came out of the House. I'd be interested to see it, but I've been through it pretty exhaustively. And there are it is, as you described, the Senate bill is a little different and it has a couple bones thrown out there. It's why I started with that 50 billion dollar slush fund. That is sort of the soft landing. Um, there's a second slush fund in there, uh, which are, um, dollars that are made available to States for the high risk pools, because you're going to have the problem of, of folks with preexisting conditions. Um, because of the accounting, this is really, really, really, really weird.

0:09:12 Thomas: Hmm.

0:09:12 Andrew: Um, and this starts on pages 16 and 17 of the bill. Um, so if you think, okay, we're, we'RE going to be transitioning people with preexisting conditions. Uh, and so states are going to have to come up with programs that's going to have a cost to help insure those folks, right? That's supposedly what these funds are for. The funds that are allocated are, uh, beginning in 2019. $8 billion in 2019, $14 billion in 2020 and 2021, then $6 billion in 2022 and 2023, $5 billion in 2024 and 2025, and $4 billion in 2026. And then because of the reconciliation problems, presumably everybody who has pre-existing conditions will either be, yeah, they're cured or dead.

Don't forget, dead is a possibility within 10 years. So $0 from 2027 and out. I, again, you know, we're a half hour in, so I don't know how those match up to actual health care expenses other than I'm going to talk about certain issue with with hospitals that that service poor low income communities, those expenditures. So these are hospitals that typically that have a high level of emergency room traffic. Right. Because that is we heard that argument being raised by the Republican House. Oh, you can always just, you know, go to the emergency room. Federal payments to those hospitals have been almost 12 billion dollars a year, so you if that gives you some sense of where

0:10:02 Thomas: They're cured. Yeah, that's true. Yeah.

0:10:52 Andrew: Uh, these uh high-risk pool fund numbers might be, by comparison, uh, you know, there you go.

0:10:58 Thomas: The high risk pool, it really is just a way to make it seem as though Republicans are doing something when And really, they're the most they're really impractical. It's a it's a in order to actually have them work there, they are a concept that could work, which is putting everyone who are the the most expenditures in health care, because the 10 percent of people, you know, elderly, unhealthy people make up the vast majority of health care expenses. So the theory is, well, we'll put them in their own like little high risk pools and then health care should be easy after that. But then what you don't realize is, okay, well, you have to put tons and tons and tons of money into the high-risk pools. And what will inevitably happen, in my opinion, is they won't be funded enough. And so these people will just not, there's no way they will work unless the Republicans put just bags and bags of money, which they're not going to do because the goal is to do something else.

0:11:50 Thomas: So high-risk pools, I think, are really a dangerous thing to latch onto as a solution to health care unless they were going to be funded incredibly well. My prediction would be it's going to be a way for people to just not have health care. I mean, to not be able to afford it. The plans that they'll offer will end up being terrible because they'll have to scale the coverage down in order to afford stuff. So I I'm worried about that. I'm really worried. What's what's your what's your opinion on these high risk pools?

0:12:16 Andrew: I think you've analyzed that exactly right. And these pages 16 to 17 of the bill is how those high risk pools get funded, as we pointed out, they're funded for eight years on a decreasing line in this, in this bill. So, you know, we don't, I can't tell you here is the minimum number to which they need to be funded. I can tell you that just payments to what, disproportionate share hospitals, which I'm about to talk about, were federal government payments to those hospitals to ensure that emergency rooms could keep running. Right. Like, that's basically what this is, because, you know, a lot of people skip out on emergency room bills, they're not insured, everything else. And so these DSH, disproportionate share hospitals, are drastically underfunded and they receive federal funds to the tune of twelve billion dollars in fiscal year 2016. So, the high risk pools, you saw, funded for eight years, six, six of those eight years aren't $8 billion or below, so it

0:12:47 Thomas: Hmm.

0:13:23 Thomas: So just not going to add up.

0:13:25 Andrew: Doesn't seem like it's going to add And I would point out sort of hilariously, this is a huge expenditure of money, I mean, I would not be surprised to see the more conservative members of the Senate say, I'm not going to vote for this huge bloated spending bill that, you know, right, right.

0:13:38 Thomas: Yeah. Oh, and they were worried about that back when it was the house version, which was even worse. And they were like, it's still not conservative enough for some of these people. You have to take health care from every man, woman, and child in the country to make Ted Cruz or somebody happy. Wow.

0:13:50 Andrew: Right. Right.

0:14:01 Andrew: So there's something I want you to keep an eye on, Alaska Senator Lisa Murkowski. She is a moderate Republican to the extent that that term means anything to begin with. And she is pro-choice. And this bill on pages eight and nine disallows employers to take a health insurance credit if they offer any insurance plan that covers abortion.

0:14:24 Thomas: Wow, and I can't Believe what they're doing there because there was a theory that maybe McConnell would offer something specifically to Alaska to try to buy her vote. Because one of the things the new version, the HCA did that Obamacare, I think, did better was they stopped adjusting the reimbursements based on location. So Alaska, you bring up Alaska, it costs a lot more to get health care in Alaska because it's frigging Alaska.

0:14:49 Andrew: Right.

0:14:49 Thomas: There's not a hospital on every corner, you know, like so getting the reimbursement that Obamacare provided was higher in Alaska so that, you know, nobody would have to pay above x amount of dollars for their their health care and this bill got rid of that and it only does reimbursements as long as this hasn't changed in the Senate version which have you seen any change to the to the way they do reimbursements because they change it to just being based on age and that like that's about it so I'm That'll be another region to keep an eye on Murkowski.

0:15:19 Andrew: Let Yeah, you actually you point out a major weakness in the House bill that that actually is changed in the Senate bill. Um, the house provision, uh, that, uh, provides for reimbursement based on age is scrapped and Uh, and and what the Senate version does, this is another, uh, great way to tweak, uh, anybody in your, uh, immediate, uh, social media circle who says thank goodness we're finally, you know, repealing Obamacare. What the Senate version does is keep the Obamacare, keeps the exact Obamcare structure. And what it does is the Obamacare subsidies are available to Americans earning between 100 percent and 400 percent of the federal poverty level. So up to four times the poverty and the poverty level is, you know, a depressingly low number.

0:15:29 Thomas: Oh okay. Wow.

0:16:11 Thomas: Oh well. Yeah. It's so low. Yeah, it

0:16:13 Andrew: Right.

0:16:13 Thomas: Really is.

0:16:14 Andrew: Starting in 2020 under the Senate bill, that That reduces the, it keeps the same structure, but reduces the top eligibility from 400% to 350%. So it kicks a good chunk of lower middle income, middle-class Americans off of eligibility for reimbursement.

0:16:35 Thomas: Okay. So that sounds like it's a pretty dramatic change to the structure. So I'll want to wait for the CBO score to really know how that's going to pan out. So interesting to note there.

0:16:39 Andrew: Yep. Yep. Yeah. Yeah, that it is. It is clearly designed to try and game a better score from the CBO, because when the CBO came out and said that the Republican bill was going to cost 23 million people their health care coverage. Yet that that pulled really, really badly.

0:16:57 Thomas: Yeah. Well, not only that, I bet you, because McConnell is not as stupid as some of these House Republicans. He's pretty devious. And my theory would be that people pointed out that the very people that the AHCA, the original AHCA hurt the most were the elderly people who live in places where health care is expensive. Guess what? Those are all Republicans. And so I wouldn't surprise me if they're like, hey, maybe we should figure out a healthcare system that doesn't specifically cost our constituents more money. So, that's my theory.

0:17:05 Andrew: Correct. Correct, yeah.

0:17:31 Andrew: I You know, I, or just run a re-election campaign in 2020 that convinces them that the reason they lost their health care coverage was because of Uh, some combination of those damn liberals and Uh, yeah.

0:17:39 Thomas: No, yeah. Well, it's probably Hillary, right?

0:17:44 Andrew: Well, And and people trying to force you to use uh gender appropriate pronouns too. Uh, so

0:17:44 Thomas: Yeah. Yeah. I have a question though, because I'm seeing something and I don't know, again, this is, I really want to emphasize this is just breaking now. So, early, early on analysis here, but it does this actually technically repeal Obamacare?

0:17:49 Andrew: Yeah, Nope. Absolutely does not. So, um, we've already talked about, so for uh, the reimbursement structure that we just talked about, it's kept exactly in place. It is lowered a tiny bit to eliminate reimbursements to hardworking, lower middle class Americans, which it's just mind boggling to me. Yeah, I mean, because this is, you that I think you and I have both talked about this, you know, politically that, you Know, Donald Trump has tried to sort of reclaim the mantle of, you know, white working class Americans to vote Republican or what have you, that actually was really successful by by Ronald Reagan in the 1980s. And the idea was to sort of draw the wedge to say Democrats are protecting poor people and Republicans are protecting middle middle class Americans and up. Right. And so, yeah, no, right. I get it. We're going to protect a lot of rich people, too. But you know what? Like the great thing about America is you two could be rich someday and we're going to give, you know, a hand up to you if you're in the middle class, not a handout.

0:18:05 Thomas: Wow.

0:18:23 Thomas: Cost cutting. Yeah.

0:19:12 Andrew: Right. Right. And that was and that sort of became typical Republican rhetoric until Bill Clinton was elected in the early 90s. And Democrats kind of tried to, I think, really sensibly, because that's where more people are, recapture some of that rhetoric. And you hear, you know, Democrats going after that, Know, when they talk about like small business initiatives and, you you know, tax reform for the middle class, listen to political speeches and you will hear both parties, you know are sort of very active out there with, I'm going to do this for the middle class. Nobody, you Know, it's a, it'S a, IT'S a solid critique from the sort of far left of the democratic party that there's been a decreasing emphasis on, you KNOW, classic new deal 60 style programs that aid the poor, that everybody wants to aid the middle class.

0:20:03 Andrew: It's shocking to me that the way the Senate bill saves money is by keeping in the subsidies for the poor, but cutting off a chunk of the middle class, lower middle class.

0:20:13 Thomas: That's interesting.

0:20:14 Andrew: So think there's that politically.

0:20:15 Thomas: However, it does cut Medicaid, right? So, I mean, that should have, that probably compensates that in some complicated way that I hope the CBO tells me.

0:20:19 Andrew: Yeah. The Expansion, this is sort of the last thing I wanted to talk about with respect to the bill. Medicaid expansion has been enormously successful. I want to read a little bit of the findings of, this is a nonpartisan government agency, the Medicaid and CHIP Payment and Access Commission, or MACPAC. And their findings issued a year ago were, evidence suggests that the ACA coverage expansions are reducing the number of uninsured individuals and levels of uncompensated care, especially in states that have expanded Medicaid. Medicaid. And what does expanded Medicaid mean? That means two adults under age 65 with incomes at or below 138 percent of the federal poverty level. Right. So, again, you know, really sort of the desperately poor who most need health care that have been allowed to be expanded into the the Medicaid program.

0:21:20 Andrew: The MACPAC study says, however, even in Medicaid expansion states deemed DSH hospitals, right? And we talked about that, that those are the disproportionate share hospitals, the ones that have emergency rooms that service a higher number of low-income individuals, serve a particularly high share of Medicaid beneficiaries and low-income patients report negative operating margins before DSH payments. So this is the current status of the law. Although the commission cannot evaluate the merits of pending DSH allotment reductions at this time, the analyses in this chapter raise concerns about the appropriate distribution of reductions among states. Not only do current allotments vary wildly on states' historical spending, but declines in hospital uncompensated care are not evenly distributed among states and hospitals.

0:22:07 Andrew: The DSH allotment reduction methodology initially proposed in 2013 does not fully account for state-by-state variation. However, if reductions take effect in fiscal year 2018 as scheduled, we will need to update this methodology and use this opportunity to better align DSH allotments with objective measures of need. This is their conclusion. In the commission's view, Medicaid DSH payments should be better targeted to the states and hospitals that serve a disproportionate share of Medicaid beneficiaries and low-income patients and that have higher levels of uncompensated care, consistent with the original statutory intent, right? Right. So let's kind of parse through a little bit of that jargon. These hospitals, emergency rooms that are seeing a disproportionate number of Medicaid patients have high operating expenses, can't continue to work without DSH reimbursements.

0:22:58 Andrew: And the current system is not perfect at getting DSH reinforcements to the states and not enough states that have expanded Medicaid are getting enough in the way of DSH payments. Right. And so the best way to make sure people aren't dying in emergency rooms, that emergency rooms have sufficient staffing and sufficient reimbursement to cover their expenses, is to make sure that these DSH allotments get to the states that have expanded Medicaid to cover individuals under age 65 who are at or below 138 percent of the federal poverty level. OK, what do you think the Senate bill does with DSH allotments? And and

0:23:34 Thomas: Okay. Puts them into a slush fund to, so

0:23:39 Andrew: Yeah, What they do, this is starting on page 41. I haven't seen anybody talk about this yet. They say there is a disproportionality in how DSH DSH reimbursements are awarded. It. True. But in the eyes of the Senate, the problem is that the disproportionality favors expansion states. And so there's a huge section to have no change in the reduction for expansion states and to protect states that are non-expansion states from being able to get their prior share of DSH dollars. So in other words, I

0:24:20 Thomas: It's evening out throughout the states. Is that what it is?

0:24:24 Andrew: Can't describe what the effect will be because this is totally impenetrable in terms of the money, but it is the exact opposite of the approach that MacPak recommends, right? MacPack says, look, you have to have a disparity in how DSH allotments are reimbursed from the federal government because states that have expanded Medicaid Medicaid suffer a disproportionate burden because those people show up in emergency rooms and then need to be covered. Right. And and those expenses are required to be reimbursed by the Medicaid program. And this bill is going to exacerbate that problem by trying to level out, ensuring that non-expansion states have access at historical rates to their DSH reimbursement from the government. At least that's how I read it.

Maybe I'm maybe I'm wrong, but it looks like and you can understand why if you don't like the Medicaid expansion and you're trying to kill Obamacare. Right. This is another way of eliminating one of the incentives, right? Because we've seen how even red states that don't like Obamacare, once they have opted in and are receiving the Medicaid reimbursements from the federal government, you know, saying, "Hey, Louisiana, why don't you give back the money?" Louisiana's like, "I'd rather not give back the money." This is attempting to eliminate another one of the incentives for states to participate in Medicaid expansion. So that's how I read it. It seems pretty clear to me. And look, the net result of that is going to be underfunded emergency rooms is is going to be, I like, I don't see how, you know,

0:24:28 Thomas: Hmm. Yeah. Hmm. Yeah. Yeah.

0:26:08 Andrew: That when we talk about health care, you know, you can call out hyperbolic on the issue or whatever, but um, uh, and we're talking about people with critical injuries dying on gurneys in in emergency rooms, there's no other way way to put this, so yep.

0:26:25 Thomas: Well, shoot, we got to move on. There's actually more I wish I could ask, but I guess we'll keep an eye on this bill. Just to close here, I really am curious about the budget neutrality of this bill because I hear what you're saying. It does seem like it adds a lot more spending. I don't know where they're getting the funding for that. So very curious. I think a massive overhaul of our healthcare system, maybe that should get 60 votes personally, but that's just me.

0:26:27 Andrew: Yeah. Uh,

0:26:55 Thomas: All right, Andrew, we've gotten this from so many people. I got a actually a New York Times alert on my phone in the early morn the other day. And so I thought I was the first on the case. But of course, since I'm on the West Coast, I am never the first. On any case, it's a little little bit of a handicap. But the the slants case was ruled on. You remember in opening arguments We interviewed The Slants about their case, and wouldn't you know it, it's been ruled on. Tell us the results.

0:27:00 Andrew: Yep. Yeah. Uh, Thomas, this is uh, Matal versus Tam, uh, you may recall, uh, Simon Tam, founder of The Slants, we had him on the show, and um, this case, I think, has been the subject of a fair amount of misinformation on both sides, uh, so it's it's going to be good to clear that up, um, let's first, okay, so the result is that the Supreme Court unanimously, 8-0 decision, because this is a non-Gorsuch case, obviously, held that the provision of the Federal Lanham Act, which is 15 U.S.C. 1052a, that prohibited registering trademarks that, quote, quote, "may disparage or bring into contempt or disrepute any person's living or dead," was impermissible viewpoint discrimination under the First Amendment.

0:28:21 Andrew: And so Simon had attempted to register his trademark for the band name The Slants. That was rejected by the USPTO, the US Patent and Trademark Office, on this non-disparagement clause grounds. And appeal, pointed out in our episode Tam's appeal really gave the Supreme Court kind of two avenues. OK, the first was a very, very narrow avenue that said the non-disparagement clause didn't apply in his particular case. Um, that would have enabled the Supreme Court to say, yes, we're going to reverse the opinion. Uh, you get to register your trademark, but you, but we don't have to, to address the first amendment. And instead, uh, what the Supreme court did, this is actually a section.

So section one of the opinion, uh. Just lays out the facts. Section two says, before reaching the question of whether the disparagement clause violates the First Amendment, we want to tackle this argument that says the non-disparagement clause doesn't apply here for a variety of technical reasons. And the Supreme Court said, no, no it does, find it important to rule on the core First Amendment question. And to me, that's interesting because it reveals that justices are closer on these sorts of viewpoint discrimination issues than we might have thought. And you and I, we've done a fair number of free speech episodes on opening arguments.

0:28:58 Thomas: They didn't have to touch the First Amendment.

0:29:50 Andrew: I think it's it's it's fair to describe me as as as pretty far down the road in terms of of supporting free speech. And so I'm, I'm pleased to see that it's, it's one of the things that I think is kind of a salutary effect of the right sort of attempting to seize the mantra of being pro free speech on everything is if that, if that can get us to a position where the entire Supreme Court says, hey, you know what? Like, we're not going to have government programs that reinforce viewpoint discrimination as to the content of particular speech. Then I think that's a good thing. So they, they reject the narrow grounds and then they go for, uh, the specific analysis and the, and the interesting question, uh.

0:30:39 Andrew: They're, they're kind of a couple interesting questions. I'm going to get to the one that I know everybody wants to know, right? Which is what effect does this have on the Redskins? But I want to save that to the end. Certainly are a number of arguments related to being a form of commercial expression, and both the majority opinion and the plurality opinions that the commercial quality of the speech doesn't mean that the government can nevertheless impose restrictions that are based on viewpoint. So what is the viewpoint that is at issue here? That depends on which provision, which part of the case that you read. And it sort of shows the, this is one of these kind of interesting fractured opinions where the, there are no dissents. But there are parts of the opinion that the court's liberal wing declined to join and that the part that they, four justices declined to joined.

0:30:48 Thomas: Yeah. Yeah, huh?

0:31:45 Andrew: So therefore, it is not binding precedent is three B, three C and four, which have sort of the strongest language about the need to protect controversial and offensive speech. OK, so the Alito opinion, joined by Thomas, joined by Roberts, says, "Have said time and time again that the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of the hearers. Our cases use the term viewpoint discrimination in a broad sense. And in that sense, the disparagement clause of the Lanham Act discriminates on the basis of viewpoint. To be sure, the clause even-handedly prohibits disparagement of all groups."

0:32:33 Andrew: It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arranged on every side of every possible issue. It denies registration to a mark, to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination. Giving offense is a viewpoint. OK, so that is that is how this is being characterized in some quarters. Right. That offensive speech is the viewpoint that is being protected here. Um, friend Justice Kennedy, uh, joined by Ginsburg, Sotomayor, and Kagan, but not by Breyer.

So sort of an interesting alignment, uh specifically did not subscribe to that portion of the opinion that I just read and wrote a concurrence, uh that it that instead, Uh, ruled that viewpoint discrimination was taking place on far narrower grounds and and emphasized the history of this case, the points that Simon Tam himself made on our show, which is to say that the point of registering the Slants as a trademark and naming his band the Slant was to reclaim an offensive trademark, Right? And so what he said was, the government I'm going to read from now, this is another for justice concurrence they say, he cites the disparagement clause and then says, "Within that category, an applicant may register a positive or benign mark, but not a derogatory one. The law thus reflects the government's disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination. The government disputes this conclusion.

It argues to begin with that the law is viewpoint neutral because it applies an equal measure to any trademark that demeans or offense. And then it sort of goes through that and it says, "The government next suggests that the statute is viewpoint neutral because the disparagement clause applies to trademarks regardless of the applicant's personal views or reasons for using the mark. Instead, registration is denied based on the expected reaction of the application's audience."

0:33:43 Thomas: Yeah,

0:34:32 Andrew: In this way, the argument goes, it cannot be said that the government is acting with hostility towards a particular point of view. For example, the department does not dispute that the respondent seeks to use his his mark in a positive way.

0:34:48 Andrew: Epithet, using new insights, musical talents, and wry humor to make it a badge of pride. Respondents' application was denied not because the government thought his object was to demean or offend, but because the movement thought his trademark would have that effect on at least some. Okay. Then what Justice Kennedy says is the, that this is still viewpoint discrimination is because it's weighing in on one side of the debate of an argument. Okay.

So he concludes, "The trademark will have the effect, respondent urges, of reclaiming an offensive term for the positive purpose of celebrating all that Asian Americans can and do to contribute to our diverse nation." And again, we heard Simon, I think, very eloquently express that on our show. "While thoughtful persons can agree or disagree with this approach, the dissonance between the trademark's potential to teach and the government's insistence on its own opposite and negative interpretation confirms the constitutional vice of the statute." So what does that mean? That is Anthony Kennedy saying the harm here to viewpoint discrimination was in looking at a mark that could be interpreted in multiple ways, assuming that the negative view was correct, denied us the opportunity to have the discussion back and forth. OK, and that and then there was a there's a lengthy discussion in part two, not going to read it. But that is what the Kennedy plurality here finds as the essence of viewpoint discrimination, shutting down that debate. The Right. Reason we we prohibit viewpoint discrimination by the government is because we want to have a robust exchange of ideas. These are pretty hairline distinctions, right?

0:36:33 Andrew: The difference is Alito and the three justices who joined his concurrence say viewpoint discrimination is must protect speech that intends to offend. Kennedy says we must protect speech in such a way as to the marketplace of ideas, to foster the fullest range of expression and debate. And we cannot let the government assume that a trademark is going to affect a particular group in a particular way. Why would the Supreme Court justices line up and, uh, parcel out an opinion where, again, all eight of them want to affirm the Trademark registration, uh, over such a hairline distinction. And I think the reason for that is because the Redskins case is pending, right? And I Don't know. And I Know That it Is, yeah, It, it does.

If you signed on to the Kennedy concurrence, that does not commit you to the view that the Redskins name and moniker are necessarily invalid under a revised regulation that is issued by the USPTO. Now, look, the USPTO may not issue a revised regulation, right? Like, if they just sort of let this stand and say, "Yeah, yeah, you know what? Like, we're not going to do anything about it and we're going to grant the Redskins their trademark." Then there's going to be no case or controversy. Um, but if the USPTO, and again, uh, my understanding, um, bulk of the decision makers within the US PTO, there's a new interim commissioner 'cause there's new interim chief of everything.

0:37:14 Thomas: Yeah.

0:37:25 Thomas: So it doesn't commit them.

0:38:13 Andrew: Uh, but, but uh, uh they, they may decide to, uh affirm their denial of the trademark. Mark. And if they do, and if that case is still pending, remember that Kennedy opinion was Kennedy, Ginsburg, Sotomayor, and Kagan. So what you would have to do is peel back Justice Breyer from having joined in with the Alito side of the opinion. Gorsuch obviously Obviously, we'll also join in on on the Alito side. But there's more there's more of an open question. Now, look, if I were a betting person, suppose the way I would arrange the bets, it would be in order of number one, the Redskins case being mooted. Number two, the Red Skins case going forward.

0:38:59 Andrew: But the Supreme Court ruling just following this case, uh, that, uh, that it's going to protect all of the Redskins trademark. Um, but there is a possibility, uh, that you could get a ruling that says, "No, that the trademark we protected, uh, in Matal versus Tam was, uh, in the context of encouraging and fostering the marketplace of ideas and just a racist caricature, just the Redskins mark standing by its own, doesn't foster that debate, doesn' place in the marketplace of ideas." I could see that. Again, I would describe a very low probability to it. And look, if I were on the Supreme Court, I might come out the other way, right?

0:39:46 Andrew: I might com out on the Alito side of the coin and say, yeah, look, Look, like even if you want to follow Justice Kennedy's analysis here, having the Redskin contributes in some way to national debate and discussion about the history of Native Americans in this country and whether the term is offensive or not. And whether, you know you've seen that Redskins PR stuff has been really, really bad. But, you Know, you've Seen That They Brought Out, You Know, A Couple Of Individuals Of American Indian Ancestry To, You Know, Say, No, We Feel Like This Celebrates Our Heritage Or Whatever And Know And And There's An an argument there of is contributing to a discussion.

0:40:32 Andrew: So, you know, again, I don't I don't want to commit Supreme Court Justice Torrez, not that I'll ever have a chance to be on the Supreme Court. Do want to say that is, I think, a little bit more going on in this case than was reported. Obviously, I'm thrilled at the result. I know Simon is thrilled at the results, uh, but we asked him the Redskins question when he was on the show and, uh, and you heard him say, "You know, look, think there's a difference between, you know, what we're doing in, uh, fighting to reclaim an offensive stereotype versus, uh, with the red skins are doing," which is fighting to make money off of propagating An offensive stereotypes, um, and the, and the first lines of this opinion, uh, on page one is, uh, you know, "Slants is a derogatory term for person, for persons of Asian descent, and members of the band are Asian Americans.

But the band members believe that by taking that slur as the name of their group, they will help to, quote, reclaim the term and drain its denigrating force." So, you, the I, I've seen some laughable, uh, kind of takes on line of, you know, you know, "take that, social justice warriors" or whatever, which, you know, as if the idea that, uh, an ados Supreme Court decision in, in favor of a, of a band that was formed to promote social justice issues, uh, is something that that we would be unhappy with, is, is kind of funny. So, good case, good result, interesting, distinctly interesting to me. I hope it

0:40:38 Thomas: Right. Yeah yeah.

0:42:01 Andrew: Was interesting to you too, uh, that makes this sort of not exactly as cut and dried a question. Gives the court The right You know, you could, you could see people testing the limits of this. Uh, I'm, I'm not going to engage in those hypotheticals right now, but, by, you know, know, sort of trying to register a ton of sort of truly demeaning trademarks. Uh, and I think, I think the Supreme Court has left itself, uh, and left lower courts the ability to, to say, you there are limits, right? Like, we are not signing on, there is no premise that says, uh, you have a commercial right to all, uh, economic value from, uh, racially demeaning or offensive terms. Um,

0:42:07 Thomas: Yeah. Yeah. Yeah.

0:42:40 Thomas: Well, I'm glad you've clarified that because it it's really does seem to be a lot more complex than is being reported on in some circles, so yeah, interesting stuff. All right, thanks for breaking that down. And, you know, you you heard it here first over on OA 33, so it's cool to get the follow-up to that, awesome.

0:42:47 Andrew: Yep.

0:42:57 Andrew: I I love, I think we've, we got a, we got a pretty good batting average going with a lot of the cases we've picked, uh, looking at the issues and, uh, and and also looking at the results, so I'm pretty excited.

0:43:09 Clip: He who questions training, only trains himself at asking questions. What?

0:43:17 Thomas: Andrew, tell us what's going on with this Wisconsin gerrymandering case.

0:43:17 Andrew: Yeah. A bunch of people sent us, uh, notices of this, uh, the, uh, Supreme Court, uh, just a couple of days ago, uh, took up the Wisconsin gerrymandering case that we discussed at great length in OA episode 54, our first episode on gerrymandering. This was the three judge panel, federal district court that ruled two to one that the maps that were drawn by the Republican State Assembly in Wisconsin were using the red map software, violated the one person, one vote principle under the law. We went through and And in that O.A. 54, we talked about the history of gerrymandering law sort of going back and forth. And we know that there are now, presumably, that there were three hard votes on the Supreme Court for the idea that partisan gerryandering just sort of comes with the territory.

0:43:38 Thomas: Yeah, yeah,

0:44:21 Andrew: And the question was, uh Anthony Kennedy has sort of always been and and we can presume that Neil Gorsuch is going to be the fourth vote on that. But the question was always, what the question for the next couple of years, presuming no, no further changes to the Supreme Court's lineup, which is a tough presumption. But, you know, if you if you're a if you are a praying person, then may I recommend that you say a little prayer for Ruth Bader Ginsburg every time you go to bed. But assuming no changes in the Supreme Court's lineup, the question on most of these political cases over the next couple of years is going to be, you how does this strike Anthony Kennedy? And and Anthony Kennedy has previously been, as previously indicated, a strong sympathy to the notion that political gerrymandering can be a violation of the one person, one vote principle, which, good, because, you know, it seems. But he's been concerned about the methodology. Is is there an appropriate remedy?

0:44:44 Thomas: Yeah.

0:45:28 Thomas: And when you had said like, oh, now this computer software gives you the ability to say, to adjudicate and say like, oh, this, yeah, this is clearly unfair because you can analyze it and show how much the gerrymandering, like you can put a number on it.

0:45:29 Andrew: Yeah, that's exactly right. We have the level of data and we have really, really good researchers that can say, hey, look, we are crafting a remedy that makes sense here. And we are diagnosing, you actual vote dilution and not just sort of, you Because, I mean, you know, when you're just when you'RE JUST COUNTING VOTES WHEN YOU'RE JUST LOOKING AT HISTORICAL, YOU KNOW, PARTY I.D., YOU KNOW THERE'S A LOT OF NOISE IN THAT AND SO THE NOTION IS WE CAN NOW KIND OF DRILL DOWN AND FIGURE OUT WHERE THE SIGNAL IS, RIGHT? Right. And how much of this is legitimate data? I am strongly concerned, however, and I mentioned this on opening arguments episode 72, in which we revisited gerrymandering in the context of racial versus political gerrymandering.

0:46:17 Thomas: Hmm. Yeah.

0:46:35 Andrew: And that was the Cooper versus Harris decision. Kennedy joined into a concurrence in part, dissent in part authored by Samuel Alito. In that opinion, you may recall the dissent. Everybody on the Supreme Court thought District one was impermissibly racially gerrymandered. Right. Right. Because there was affirmative evidence that the Republicans in redrawing the district said this is subject to the Voting Rights Act, which it wasn't, and to Section 5 of the Vouting Rights Act. Which requires us to make this a majority minority district.

0:47:12 Thomas: Oh, that's right.

0:47:13 Andrew: So, yep.

0:47:13 Thomas: They tried to use it as a justification, but they were actually were misusing it. I remember.

0:47:17 Andrew: Right. Right, right. And so everybody said, yeah, District 1 doesn't count. District 12, you know, this is this is sort of like the Trump issue, right? For District 12, you had more of a wink and a nod, right? Nobody said this is a Voting Rights Act district. They just said, well, you know, we're going to, and and the argument that was raised as a defense to impermissible racial gerrymandering was no, no, we weren't trying to put all the blacks in District 12, we were just trying to to put all the Democrats in District 12, right? The dissent that Kennedy signed on to said, yeah, I would not uh hold that District 12 is impermissible racial gerrymandering.

And the language in this case, again, this is Cooper versus Harris, we talked about this more, more in depth in OA 72, uh, but, but it is, it is worth, uh, rereading. Uh, this is now, these are Alito's words, but, but, but this is, uh, Kennedy signed on. As we have acknowledged, quote, "Politics and political considerations are inseparable from districting and apportionment. And it is well known that state legislative majorities often attempt, very often attempt, to gain an electoral advantage through that process. Partisan gerrymandering dates back to the founding." CV, and that's a citation to the Scalia opinion from which Kennedy offered the concurrence.

0:47:49 Thomas: Yeah.

0:48:37 Andrew: "And while some might find it distasteful, our prior decisions have made it clear that a jurisdiction may engage in constitutional political gerrymandering, even if it so happens that most loyal Democrats happen to be black, and even if the state were conscious of that fact." And then there's another other citation to Vieth. So that's really, really worrisome to me. There may be reasons to believe maybe Kennedy hadn't read that portion super clear. Look, I don't know what's inside Anthony Kennedy's head, but I do know that I was feeling relatively optimistic in OA 54, and I would describe myself as feeling relatively pessimistic today with respect to this case.

So Supreme Court's going to hear it, uh, it is clearly the, the, the Wisconsin plan, uh, makes a lot of sense. It addresses a framework that Anthony Kennedy has previously signed on to, uh, it is solidly within the Supreme Court's, um, confusing jurisprudence on gerrymandering, uh, but in light, in light of a case that, in light of a case that liberals celebrated, and this is part of why I love doing the show, right, Cooper versus Harris was an 8-0 decision for redistricting, you know, striking down an impermissibly gerrymandered district, five more votes to strike down the second district, right? Right. It was seen as a good thing. But I am strongly concerned by the, by that language.

0:50:08 Andrew: And I would point out that the critical fifth vote in Cooper versus Harris was Clarence Thomas, who on him for taking a strong stance on racially gerrymandered districts. Uh, Clarence Thomas is clearly, uh, not on board with political gerrymandering, uh- uh, you know, with- with, uh-, withholding that there is a, uh,- constitutional one-person, one-vote, right against a politically gerrymandered district. So you're not going to get Clarence Thomas in the Wisconsin decision. You've got to win back Kennedy. Uh, I'm nervous about that. So there's som sober disappointment, uh but the Wisconsin case is pending and, and we'll find out.

0:50:46 Thomas: Great. Well, shoot. That's, that's too bad. All right, well, but better to to know the reality of it and deal with it and that's why, uh, that's why Andrew gives us the facts here on this show. So, okay, what, what's the, what's the deadline there that we're keeping an eye on, what's next, uh, thing to look out for all

0:50:57 Andrew: Yep. Oh. Uh. Yeah, briefing schedule has not been set, so, uh, when that has been set, we will see, um, what the briefs are to the Supreme Court and and if there's anything interesting, uh, in those briefs I will, uh, you know, we can be sure we'll talk about it on the show. Oh.

0:51:23 Thomas: Right, well, it is that time. It is our second, well, time, first and second, tied favorite time of the week, and that is of Fame Patron Frurday, here we go. Got to thank our Our Hall of Fame patrons are all-time greats. They're the best. And they begin with Roger, hung like a Duraflame log, Metcalf.

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0:52:51 Thomas: Oh yeah I think that was a system alert by the way like patreon just threw that in

0:53:12 Andrew: Stephen Boyd at DJ Empirical. Campquest.org, Campquest dot org, Camp quest dot org. Torsten Peel of Prosperity Karma and Placebo Mart dot com. JT also loves Dungeons and Dragons. Soggy Pants Sammy, Carl Zippel, the Squaring the Strange Podcast, Chisel and Brand Web Design and Marketing. Again, remember you can use this to promote your business as well. Sam Donow, Mike Grimaldi, Greg Sullivan, John Bodley Esquire, Kaylee Riser, Sakashite Fukasumi, Michael Schaefer of Reason Real Estate, the Electronic Frontier Foundation at EFF.org, the Net Sec Heathen, Jessica Wilson, Mark Smith, Thomas McCormick, Dang Griffith, Frederick Austrimer, Reevin, Michael Ropps, Conrad Michaels, and Zabby. Thank you all so much for being our Hall of Fame patrons. Uh, we keep trying to get great rewards out to you. We've got a new uh all patron Q&A coming out this month. We've get a new Law'd Awful Movies with Heath Enwright. Uh, we did an extra uh little little memo to patrons that did a deeper dive on last week's episode. We uh we love you guys. We try and show as much support as we can. Uh, thank you for supporting the show.

0:54:20 Thomas: Absolutely and I I think it's worth it andrew does a great job of getting bonus stuff out there and you've now got two bonus things a q a every month and a Law'd Awful Movies so I hope you're enjoying that all

0:54:31 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:54:37 Thomas: And it's time for my co-unfavorite time of the week, which is Thomas takes the bar exam, but it's one of those times where we've got a special guest. How are you doing, Denise?

0:54:47 Denise: Great, Thomas, how are you?

0:54:48 Thomas: Not great, because I have to try to answer a bar question, but other than that, doing great. Excited for our interview with you on Tuesday's episode, but as a little preview to our audience, we're going to maybe show your credentials here and you can school me on this bar question. Let's see.

0:55:06 Denise: It's been so long, I don't know that I can school you on anything, but we'll take a flyer at it.

0:55:11 Thomas: All right, well, Andrew, I think I'm, what am I, 13 for 28, I believe. All Right, I'm

0:55:16 Andrew: Yeah, 13 for 28, inching your way back towards 500. Once you get there, all

0:55:20 Thomas: On an absolutely Improbable two question streak Is the another also Denise, to fill you in, I started, once I got like six in a row wrong, I really, what I started doing was I just eliminate two answers and then I consider that a victory for myself, so I started during that, so that's the most important thing.

0:55:26 Andrew: Right. Right. Good, good. So Thomas and Denise, here we go. At a metro station in the city, there's always significant construction going on, including a rebuild of the elevator shaft between the platform and the ground level. There's a sign warning, quote, quote, "This elevator is not available at this time. Please do not ride it." A passenger sees the signs, but tries to ride the elevator anyway, and is injured when she falls into the shaft. When the passenger sues the city for negligence, the city states that she assumed the risk. Is that a valid and accurate defense under the circumstances? So this is testing your knowledge of the assumption of risk doctrine, Thomas.

0:56:22 Thomas: Yeah.

0:56:22 Andrew: Which, I, I know you're uh Yeah Yep, all right, so here are your choices.

0:56:23 Thomas: Very studied at, yeah. And by the way, Denise, sorry, don't chime in because for the sanctity of the game, I need to try to answer this first myself. And then you can give your answer. So just to preserve the sanctITY of the game.

0:56:38 Andrew: Absolutely. A, yes, because she was fully informed and should have known that the elevator was unsafe based on the signs. Yes, because the signs make her contributorily negligent and a legal cause of her own injury. C, no, because the sign did not explain the danger and only told her that it was not available, and therefore she did not know what she was encountering. D, no, because the city has strict liability when everyone is depending on the subway way.

0:57:10 Thomas: Okay. Okay, here we go. Come on. Here we go, all right. I feel like this is one I need to get right because we've talked too much about this kind of thing. So it's a little easier when when it's the one we've talked nothing about and I could just not know. So in terms of eliminating two, I've got to say that D has got to be a hard elimination unless I'm just way out of my mind. No, because the city has strict liability when everyone is depending on the subway. I hope that's wrong. So I'm going to go with a hard elimination on D and my second elimination is, I guess I'm going to go with, ah, go with A for my second elimination, even though that it's actually not a bad, that bad of an answer to me. Yes, because she was fully informed and should have known the elevator was unsafe based upon the signs. I don't feel like she was fully informed.

0:57:58 Thomas: It just said not available at this time, you know, and pleased. I think that's just a little too strong of language for describing it. I hope that that's okay. So I'm going to be left over with B and C. And what I really want to go to, and I hope it's not just because these are a bunch of words I recognize, is B, yes, because the signs make her contributorily negligent and a legal cause of her own injury. I'm hoping that, I like that language because she's contributorily negligent. She's not fully, you know, neither party is like 100% negligent I hope that's the right answer. That's what I'm going with. Now Denise can tell me how wrong I am and tell me what her answer is.

0:58:39 Denise: Love this question. And I'm not at all confident that I've guessed the right answer here. But I do have a guess and it's not yours, Thomas.

0:58:48 Thomas: Uh-oh, this does not bode well for me.

0:58:50 Denise: Right. My guess is A. And why. And this question really illustrates how they, if I'm right. They try and, um, get you to go for one of the not right answers because B sounds really good, right? But right.

0:59:09 Thomas: Damn it. Yeah, I think it sounds great.

0:59:12 Denise: Um, but I think it's trying to lead you down a rabbit hole of contributory negligence, which is really not what's going on here. What's going On here is assuming the risk. And I think that under that doctrine, again, it's been so long since I took the bar exam and had to puzzle through these questions myself. And I don't really practice tort law on a daily basis. Uh, but I think that under that doctrine, um, having been told by the city not to ride the elevator, that would prevail. And that would say, stay out of the elevator. And if you've walked into the elevator despite the signs telling you not to, you've assumed the risk of whatever happens to you in there. There. Maybe not whatever happens to you in there, but if you got injured, that would be something you could reasonably expect a sign to be posted to prevent, prevent against. So I'm going with a.

1:00:08 Thomas: All right, that's probably right. Right. So now I think the the audience really has an unfair advantage now. They get to they get to all guess A. So I don't even I don't care about the audience this week. I don't even. We'll take the funniest answer for the winner.

1:00:08 Denise: Right.

1:00:22 Andrew: Okay. So if you would like to play along and get the question correct, and I'm not saying that, you know, we have a legal expert on the show taking the question, but we have a real expert on this show taking question. Send us all your answers. Correct, incorrect, funny, however, you now how to play. We announce the episode on Twitter. Quote that episode. So include the hashtag TTTBE, give us your answer, give us something good to laugh at or good explanation, or maybe you disagree with, with both Thomas and Denise. That would be really exciting. Uh, uh, we'll go through and we will give a good shout out to whoever gives us the best answer on Tuesday's episode, which features a long interview with Denise. It's going to be a lot of fun. You're not going to want to miss that.

1:01:04 Thomas: Yeah. The last thing I'll say is I don'T like this format because it doesn't allow me to feel like I had any chance. You know, like because I only got to feel Like I was right for like 10 seconds and then it was just it was gone. So but but that's OK. It's fun for a change up.

1:01:16 Denise: I could be, no, I could be totally wrong. So

1:01:19 Thomas: No, no, no. I'm sure you're right. All right. Thanks, Denise, so much for playing. And thanks to everybody, of course, who plays week in, week out. It's a really fun part of the show. All right. Well, Well, that's it for today. Thanks so much, Andrew. Thanks so Much to Denise for coming in and showing me how the bar exam works.

1:01:19 Denise: Yeah.

1:01:37 Thomas: We'll see. We'll See who's right. We'll Seey who's Right. With that said, we will see you on Tuesday. You'll hear more from Denise. Really interesting episode coming up. And as always, thanks for listening.

1:01:38 Andrew: Yep.

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