OA102: The Utah Nurse, DACA, & Disaster Relief

Transcript

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

[0:00:02] Is that why you hit your wife? Withdrawn. Is that why you drink and pop pills? Withdrawn. Are you a virgin? Withdrawn. [0:00:19] Says here you robbed a hospital. Why'd you do that? Yeah, I'm not guilty. That's not what the other lawyer said. [0:00:30] Actually, I was going to stay in my office tonight and work on my law blog. Of course, the Bob Loblaw Law Blog. Wow. You, sir, are a mouthful. [0:00:45] The jury is instructed to disregard its own testimony. Your Honor, the prosecution rests. [0:00:54] Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez, LLC, for entertainment purposes, is not intended as legal advice, and does not form an attorney-client relationship. Don't take legal advice from a podcast.

0:01:17 Thomas: Hello, and welcome to Opening Arguments. This is episode 102.

[0:01:21] I'm your host, Thomas Smith. Out over there is your other host, Andrew Torrez. How are you doing, Andrew? I am great, Thomas. How are you? I am super excited about this episode. This episode is like everything I want to know in an episode. And that's why Friday is such a good day. I mean, there's lots of reasons. There's Top Patron Friday. There's the bar exam, which is way too easy now. There's all kinds of reasons. But on top of all that is the quality of the content on this show. So today we've got for you the, you might've heard, you might've seen the Utah nurse who was arrested for refusing to draw blood.

That was awful. I mean, that video looked awful. So we're going to hear about the actual law behind that. Then we've got DACA. I know I did a little bit on this, but I did an interview with a DACA recipient. I kind of left all the legal stuff as I always try to, to the experts. And Andrew, I'm really excited to hear your analysis of why. Because one thing I heard on a podcast about DACA was, it was originally Obama had said, well, look, I can't do anything about this. I can't do anything about this. It's unconstitutional. And then all of a sudden it was like, oh, no, I can do something about this. I'm curious to hear the argument for why it is or

[0:02:30] isn't constitutional.

0:02:31 Thomas: Can't wait for that. And then finally, you might have heard this also, Texas churches are suing for disaster relief money over Hurricane Harvey. So we're going to hear all about that too. So action-packed day.

[0:02:43] I don't know how we're going to squeeze it all in, Andrew. We're just going to have to try. I'll speak extra quickly. Yeah, we might have to fast forward, Andrew. We'll just get –

[0:02:52] All right. Yeah, and we should – I think we should add, since you previewed, we're going to talk about a disaster relief story.

0:02:58 Andrew: You and I participated in a fundraiser for the FFRF's donations to victims of Hurricane Harvey. And we are going to use our voice this week to encourage you. We're not going to shill for supporting the show, but we're going to encourage you and give a link at the end that if you can contribute to relief for Hurricanes Harvey and Irma, which is potentially affecting my parents right now as they are driving as we record this out of the state of Florida, they're evacuating. So we're going to put in a plug for that, uh, don't send us the money this week, send it to, uh, send it to some folks who really, really need it, some organizations that

[0:03:41] they can do. And we'll talk a little bit more about that in the C segment. Oh, okay, perfect. Yeah, we'll leave it for then. Uh, all right, before we

0:03:48 Thomas: Get to it, I know you wanted to talk about the Opening Arguments Facebook community we got going. Yeah.

0:03:54 Andrew: I am, I am really excited about this. You and I came up with this idea after we did our first live patron Q&A hangout, that was a video hangout. And we had, I think, over a hundred people in the hangout. And they had, I think, more fun talking to each other and kind of riffing on what we were saying than they had, you know, listening to, you know, you reading the questions and me answering

[0:04:19] them. And we, we had a second, you and I were just third wheels.

[0:04:24] We had a second hangout last Friday. And in that we announced that we were going to start the opening arguments, uh, Facebook community. You can just search for that. It's a closed group, but just request to be added, excited, answer the little, uh, three questions to prove you're not a bot, and, uh, and anybody can join that, everybody should join that. So if you're a fan of the show, uh, like the Opening Arguments page on Facebook and join our Opening Arguments Facebook community.

[0:04:48] We've got hundreds of people on there now. It's, um, people are having a lot of fun. And if you're not a part, you and I are on there, we

0:04:55 Thomas: Can, we can kind of interact on various different things. It's a fun time, sort of like an extended Patreon Q&A in a

[0:05:01] way, just that the hangout vibe of it, but it's open for everyone, one anybody. Yeah, normies can, can, can join. We love our normies. So, all right, so yeah, check out that link in the show notes, join up on that online community, on that Facebook community, it's really fun. Down, down, down, down, down, Andrew, we've got a lot to squeeze in, so I suppose this will be a breaking down the law segment. Alex Wubbles, the Utah nurse arrested for refusing to draw blood, an incident of really, I mean, police brutality, and caught on video. It just, anyway, so much to say about it, but in terms of the actual law, what's going on there?

[0:05:45] Yeah, so here's the, kind of multiple aspects of the law, so what happened

0:05:51 Andrew: Was a, uh, a patient of this nurse was in the hospital where Alex Wobbles was working,

[0:05:57] uh, the police demanded that Ms. Wobbles draw blood and And give it to them as evidence. This has really been missing from most of the reporting on it. 100% of the reason why you do that is to charge that person who has been admitted into the hospital with

[0:06:16] drunk driving, with driving under the influence of either alcohol or a controlled substance. Oh, okay. So the reason they wanted the blood was as evidence against the patient. Right. And as you might be thinking, even though the laws of the road deviate a little bit from kind of how individuals ordinarily interact with the police, taking your blood is a search and a seizure. And it is governed by the Fourth and Fifth Amendments.

[0:06:49] It's also, you are being compelled to produce evidence that is then being used to incriminate you. So the question is, how does the government get the right to take your blood? Okay. And the answer is

[0:07:02] Imminent domain. No, I'm just kidding.

0:07:05 Andrew: And the answer is, it kind of depends, right?

[0:07:09] So one of the things that is a fixture of Fourth Amendment search and seizure jurisprudence is when the government is required to get a warrant and when

[0:07:22] they're not, right? So, for example, when the police, if you're involved in a high-speed movie-style chase, the police obviously have probable cause to arrest you at the conclusion of that chase because you've broken all sorts of laws, including the speeding laws, but also the implication that you've broken whatever law caused the police to put on their flashers in the first place. And they can also impound and search your car, right? That is called search incident to arrest. And the rationale is you don't have to get a separate search warrant. If you had probable cause to arrest somebody, you also have probable cause to search

[0:08:06] their vehicle. And so now you have the situation where you have not a high-speed chase, but you have somebody who's involved in an accident, and then they are taken from the scene of the accident to the hospital because they need urgent care. And the circumstances

[0:08:25] of the accident are such that the police might suspect that there's alcohol or drug use involved, that you were driving while under the influence, either exceeding the allowable

[0:08:37] amount of alcohol or under the influence of another controlled dangerous substance. And so the state's argument in all of these cases for why they can

[0:08:49] request that the hospital turn over your blood as evidence is a version of the search incident to arrest. And they say, look, the compelling governmental need here is the fact that alcohol dissipates from your bloodstream. And so we want to preserve the

[0:09:08] record rather than have to come back and administer some other kind of test after several hours worth of care, where if somebody is at – say, if the limit is 0.08 blood alcohol content in the state. If somebody is at 0.09 right now at the time of the accident, that by the time you administer another test after the hospital has performed

[0:09:34] whatever medically necessary, life-saving or other medical services, then just the natural processing of the alcohol in the bloodstream will give you a lower number. Right. Yep. And as it turns out, the Supreme Court took until 2016 to answer that question in a case called Birchfield versus North Dakota, which we're going to link

[0:10:01] in the show notes. And that case finally answered definitively whether the question that was sort of left open, they reached a compromise result in a 2013 case called Missouri v. McNeely. And the interesting thing was Missouri versus McNeely was a 5-4 decision. By the time we got to Birchfield versus North Dakota, it was 5-4, I should say, in that case, not allowing the government to seize blood from a hospital under suspicion of driving while under the influence of alcohol.

[0:10:38] But for reasons that are no longer important but were kind of interesting to me from a procedural basis, the threshold question of, in all cases, must the government get a search warrant to seize your blood at the hospital under suspicion

[0:10:56] of driving while under the influence? That wasn't answered until definitively until 2016, the Birchfield versus North Dakota decision. And that was a 7-1 case. That's a pre, and I should put an asterisk on it, right? That's obviously a pre-Gorsuch case. So there were dissents filed in that case by Sotomayor and Ginsburg, but that's because they dissented

[0:11:21] from the majority's holding that the state, which basically parsed and said, police officers do have to get a search warrant before they take your blood. They do not have to get a search warrant before they administer a breathalyzer test. Right. And so the majority opinion essentially comes down on the burden line and says, look, seizing your blood is a much more invasive type of search than requiring you

[0:11:45] to blow into a box. Your breath is more like the equivalent of your trash that you're throwing out. I'm done with this carbon dioxide, like, I'm not using it. It's kind of discarded into the atmosphere. Atmosphere, I would like to, you know, use it for the benefit of several plants. Exactly, who, who might enjoy a scotch scented carbon dioxide, to just speaking from yeah, that's that's all the time. And that's not Andrew hasn't had any drinks, that's just his natural. He had an accident, it's hard to explain, but it's always there.

0:12:17 Andrew: So yeah, so there were two dissents by Sotomayor and Ginsburg, but they were dissenting that the case needed to go further. There were seven votes, so they were concurring in part

[0:12:29] and dissenting in part. I was trying to figure out how Republican justices would balance their love of

0:12:36 Thomas: Their thirst, their selective love of liberty with their love of authoritarianism and police, the police

[0:12:42] state and all that. I was, I was trying to figure out how they would, you know, balance those two things. Right. And so

0:12:48 Andrew: Roberts, Kennedy and Alito moved from being on the other side of the issue just three years earlier to this was actually the Birchfield decision, is an

[0:13:00] Alito opinion. Only person on that wing who remained consistent was, of course, Clarence Thomas, who thinks the police ought to be able to do basically whatever the hell they want, and you might take your leg, yeah, like, if you, yeah, you might think that I'm being facetious here, but when you read his, uh, dissent in, in Birchfield, which, again, we'll link in the short, in the show notes, his rationale is, this court justifies its result by balancing the invasiveness of the, the particular type of search against the government's reasons for the search. Such case-by-case balancing is bad for the people who, through ratification, have already weighed the policy trade-offs that constitutional rights entail. It is also bad for law enforcement officers who depend upon predictable rules to do their job.

Today's application of the search incident to arrest exception is bound to cause confusion in the lower courts. The court's choice to allow some but not all blood alcohol searches is undeniably appealing, for it both reigns in the pernicious problem of drunk driving and also purports to preserve some Fourth Amendment protections, but that compromise has little support under this court's existing precedence. The far better and simpler way to resolve these courses is by applying the per se rule that I, that I proposed in McNeely that was the case from three years earlier under that approach, both warrantless breath and blood tests are constitutional because the natural metabolization of BAC creates an exigency once police have probable cause to believe the driver

[0:14:21] is drunk. So yes, basically, basically, police can do whatever the hell. I think that's a fair characterization. So feel free, Clarence Thomas defenders, uh, open arguments at gmail.com or better yet,

[0:14:33] uh, if you're a Clarence Thomas defender, post about it in the new Opening Arguments community. How many Clarence Thomas defenders do you think exist in the wild? Well, let's see, um, anymore after the you know the after of the testimony that came out during the uh the confirmation hearings um so

[0:14:52] uh, maybe nobody. Yeah, if you are, we want to hear from you. So that settled it, the law is, then it sounds like they

0:15:00 Thomas: Can't take your blood if you're unconscious without a warrant, but they, they could, he could have breathalyzed him, I

[0:15:07] guess? Correct. Uh, which they weren't trying to do, they were demanding. The police in this case in Utah were demanding that

0:15:13 Andrew: Ms. Wubbles turn over vials of blood. And that's what led to the brutality

[0:15:20] On the video and Ms. Wubbles being arrested. It also, I think, indicates something that I know I got a couple questions about this. Sort of, for what reason was she being arrested? Yeah, exactly.

0:15:34 Andrew: Yeah. And the answer is that you have a constitutional right to

[0:15:40] a speedy trial. So she was getting, arresting her to get her right over to her trial is what you're saying.

0:15:47 Andrew: Well, under constitutional jurisprudence, your Sixth Amendment right to a speedy trial, which says in all criminal prosecutions, the accused shall enjoy the right to a speedy trial, has been interpreted. Different states apply it, but

[0:16:00] Essentially at every state, what that means is after you have been arrested, the state must, within 48 to 72 hours, identify you of the charges that are to be filed against you or release you from police custody. So arrest just means that the police are engaged in the lawful exercise of custody over an individual. They

[0:16:25] don't have to announce or file charges until 48 to 72 hours out. And as far as I can tell, no charges have ever been filed against Ms. Wubbles or will ever be filed. So

[0:16:38] there's at least that kind of happy ending to that. I think given the way in which a lot of people interact with the criminal justice system, you hear, oh, yeah, I was arrested for DUI or I was arrested for assault or whatever. And that's because most people plead in our criminal justice system, right? 99%

[0:16:59] of cases plead out. And so you think about the arrest as sort of starting the process. But from a legal perspective, remember, the police don't have any ability. They have the power to detain you, but they do not have the power to bring charges. It's a prosecutor who brings charges against you, right? So the police must have probable cause to believe that you have violated the law. And look, in this case, again, I want to parse this very,

[0:17:30] very carefully. The police, who are not constitutional lawyers, had good faith probable cause to believe that Ms. Wubbles was obstructing justice and interfering with a police investigation. That is a crime. They were

[0:17:49] mistaken on that belief.

0:17:51 Andrew: And obviously the way in which the arrest was handled, if you've seen the video or if you've even just read about it, is unconscionable. But that doesn't mean, in other words, I do not believe that

[0:18:04] Ms. Wubbles would be able to maintain a suit for false imprisonment. Okay, so that's the protection we have.

0:18:10 Thomas: Again, because what if the police decide to just arrest you every three days and not charge you with it? I mean, there's so there's some protection against, you know, what what would be the avenue of protection if you just get an asshole officer who just decides they don't like Andrew Torrez because they're a huge Clarence Thomas fan and they're like, I'm going to arrest you

[0:18:29] every 72 hours and not charge you with anything. Yeah, there are a couple of things there. So number one, while you're number one, no one's I was a Clarence Thomas fan. Okay, cover that. Okay, number two.

0:18:39 Andrew: The unlikelihood is some protection. But no, that's a great question. And you can certainly imagine situations in which that would not just be a hypothetical. And so the answers are, number one, eventually after – I would say after your second arrest without being informed of the charges against you, sort of the maximum holding, during the pendency of that proceeding, I would have my attorney file an emergency habeas petition, which is to say that they are without power to

[0:19:09] hold you at that point. And then from that, I would file tort charges for malicious prosecution and anything else I could think of where you would then be able to introduce the pattern and practice of depriving somebody of their constitutional rights over that

[0:19:29] extended period. In other words, you would say the cumulative effect of being arrested and then released without charges and then arrested again and released without charges and arrested and released without charges amounts to a denial of your Sixth Amendment right to speedy trial and probably other constitutional rights as well. And you would be able to introduce

[0:19:47] that pattern and practice evidence. I see. But coming back to this case, it's a good question because we often talk about like how media overblow, you know, quote, technicalities. But this is an example where we would not, that I feel really confident, even in conservative pro-police jurisdictions, They

[0:20:06] would not allow police officers to get away with that repeated technicality in favor of the police. So it's a good, it's a, it's a continuing illustration of our point that sovereign citizens are insane and that and that the law doesn't work on, you know. Oh,

[0:20:25] yeah, minor technicalities and, yeah. Technical application that in almost every case, you know, you're still looking at kind of fundamental underlying fairness. So you would have protections. And look, the reason we know you would have those protections is because no one's tried to do that, right? Right. Right. And you can bring the reason I'm pointing out the constitutional rights violations is you can bring Section 1983 lawsuits against not just the police officers in their individual capacity, but also against the the police force and the state for violations of constitutional rights. So it would be a very, very expensive lesson. And it's a good thing that we have that because that's what deters

[0:21:10] – the fact that there are monetary consequences deters those agencies from skirting the law, right? It says, oh, hey, look, you can't act in X ways because that's

[0:21:23] going to come back and harm us. Yeah. So coming back to this case, though, just to sum up. So if you separate kind

0:21:29 Thomas: Of the just the needless brutality going on, you're saying he was within his rights, even though he was mistaken, the officer, even though he was mistaken, he thought that she was impeding justice or whatever, obstructing justice. So he was within his rights to arrest her. But then separate from that, though, there's the, I guess, the brutality question and the fact that hopefully he's going to get fired for just handling that in a really stupid way. So is that how that breaks down? Like he's mistaken in the law, but we

[0:22:01] allow officers to be wrong and arrest people. And that's kind of okay. It is called the good faith exception. And I think – and again, you want to distinguish good faith

0:22:13 Andrew: In the arrest versus how the arrest – in the decision to arrest versus how the arrest was conducted. And you could certainly imagine that – again, imagine sort of the high

[0:22:26] -speed chase scenario and at the end of the chase, the officer hauls the driver out of his car and beats him to a pulp, right? Right. Like you would say, absolutely. You know, when somebody drives away from the police in a high speed chase, they now have a good faith basis to believe that they

[0:22:45] can arrest you. No one would contest that. So in other words, those are two separate things. Separate questions. Yeah, exactly.

0:22:51 Thomas: All right. Well, thanks for covering that. And yeah, more more police brutality every day with a cell phone era that we're in. It's just it's ridiculous. All right. On to the main segment.

0:23:06 Thomas: All right, Andrew. DACA. I have so many questions. I don't know where you wanted to start, so I think I'll hand it over to you to where you wanted to start with this, but I definitely have questions about the constitutionality of

[0:23:19] the executive order, but I'll let you start where you want to. Well, no, I think we should start with a question. I want to start with a plug for SIO74, in which you had an interview with

0:23:31 Andrew: Christian, who is a DACA recipient. And I thought that was a terrific episode.

[0:23:37] It really kind of puts a human face on the experience. And I thought you described accurately What the program does. And so I would recommend that everybody go

[0:23:50] listen to SIO 74. We didn't plan this as another crossover episode. No, I did that very short notice. I just happened

0:23:56 Thomas: To know somebody. And let me just say one quick thing on that, because I don't know how big of a deal this is at all, but I've been trying to use a different word other than recipient. Because what DACA does, it's incredible, because I think Republicans and Trump and whoever, I think they have this xenophobic idea that we're giving money to immigrants or where there's some unfair benefit they're getting. This means, to be a DACA recipient, in quotes, means you get to pay $500 to apply, go through an incredibly lengthy vetting, extreme vetting is what it is, really. And then after all that, like going through this long process, you have to give up all this information about yourself.

By the way, if you're applying, that means you're here illegally. That means you were brought as a child through no decision of your own. The person I interviewed was brought over at five years old. So how do we hold that person accountable for where they just grew up? They just grew up here as a kid. They know no no other country, really. I mean, he can't really remember Mexico where he was from, and all he wants to do. So, he's undocumented because he wasn't born here, but he's brought here at a super young age. Being a DACA recipient means after that lengthy process, you are allowed to

[0:25:11] work. That's all it is. You're allowed to get a job. Yeah. And let's be clear, you are allowed to apply for apply for a job a a conditional use social security number Exactly, this, this isn't, and this program is making the government money, this isn't, I mean, there's millions of these Dreamers, they're paying $500 every two years, this is increasing tax revenue because they're switching from working under the table, you know, previously the, they would, the only way you can work as an undocumented person is working for like, you know, cash under the table kind of thing, and now they're switching, when they get this provisional social security card, as you referenced, then that means they can pay taxes.

They can work a sort of a quote-unquote real job and pay the government more. So, you're not really even a recipient. And I, sorry to criticize your use of that word, Andrew, but I just, I've been trying to say like DACA, I don't know, beneficiary or something, because you really aren't receiving anything. And the conservative meme, I saw one that was like, you know, until every homeless veteran is, you know, put into a house, then I'm not going to support DACA or something like that. And it's like, what does one have to do with the other? If anything, DACA would help that because you're making money off of these people. So anyway, that's my

[0:26:31] spiel on it. I take, no, no, no. I take the correction. There isn't a good word to describe the process. And I think that is incredibly useful and instructive. So, with that,

0:26:45 Andrew: Start, why don't we start by addressing the threshold question, which is, which is the constitutionality, let

[0:26:51] me explain briefly how DACA came to be. We're going to link these documents in the show notes. On June 15th, 2012, President Obama directed then Secretary for Homeland Security Janet Napolitano to issue a memorandum regarding prosecutorial discretion with respect to individuals who came to the United States as children. So that memorandum

[0:27:17] is the source of the authority for the president to enact the DACA, quote, program. We've talked about this before, but, but an agency is allowed to set rules for how it determines its own application of the laws that apply to that executive agency, and prosecutorial discretion is something that is within the discretion of an agency, okay, uh, that

[0:27:42] is, that, you know, that that has the power to prosecute. And so the question of constitutionality is, is the DACA program, right, that you've described, its application both on SIO74 and summarized it here, is that fairly characterizable as an exercise in prosecutorial discretion? That is saying, we are not going to bring cases against the following classes of individuals. And let me give an example of something that the Obama administration exercised, issued a similar memorandum, which the Trump administration

[0:28:20] then rescinded, right? Right. Which was, the Obama administration took the position that it was not going to prosecute in cases of sex discrimination

[0:28:32] on the basis that it was going to interpret gender identity as part of sex discrimination for purposes of construing Title VII of the Civil Rights Act of 1964. Right. And that and nobody thinks that was unconstitutional.

0:28:51 Andrew: Right. That was saying to the Department of Justice, this is your guidance for what kinds of cases you should bring

[0:28:58] and what kinds of cases you should not bring. Right. But there is an argument, and it is, in my view, certainly in the political realities of our Supreme Court, as I'm about to explain, there is

[0:29:10] an argument that the additional stuff that DACA does that has as part of its implementation, namely the alternative social security number, is not properly characterizable as an exercise of prosecutorial discretion.

[0:29:29] And if that's the case, then you don't have an executive agency promulgating rules. What you have is an executive agency essentially making new law. And when the executive agency treads the line from interpreting its own grant of authority to which not only is it entitled, but as we've talked about before, that's the Chevron deference that we were criticizing that I, in particular, I think it was the only voice out there saying that Neil Gorsuch is dangerous. And that's still the case, right? Like we have not had a Chevron deference case come up. But his signature issue, Neil Gorsuch's signature issue on the 10th Circuit was lovingly opining in a dissent how if he gets to the Supreme Court, he wants to dismantle Chevron deference. That's still an issue that hasn't yet come before the Supreme Court that is potentially dangerous on which Neil Gorsuch is a dangerous extremist. All of that to the side, the question is, if DACA is a legitimate

[0:30:32] exercise of the agency's interpretation of its own rules, then not only is it constitutional, but it is entitled to deference in the courts under the Chevron Doctrine. If it

[0:30:45] is promulgating new law, it is an unconstitutional exercise of executive authority and should be struck down. So what is the guidance that we have? The guidance comes from subsequent efforts by the Obama administration. I told you the date of the original

[0:31:04] 2012 Napolitano memo that is DACA. Subsequently, the administration released DAPA, the Deferred Action for Parents of Americans and Lawful Permanent Residents. And that action was immediately challenged in the courts. That case is Texas versus United States. And the district court in Texas enjoined that policy on a nationwide basis from going into effect.

[0:31:34] In that trial court opinion, one of the bases, the opinion itself is like several hundred pages long. So I got to just kind of summarize in order to get us

[0:31:46] there. But one of the bases was, you know, we've talked about how courts have used Trump's words against him. This court used Obama's words against him. I'm going to read. This is from page 668 of the opinion. This is the court. What is perhaps most perplexing about the defendant's claim that DAPA is merely, quote, guidance is the president's own labeling of the program. In formally announcing DAPA to the nation for the first time,

[0:32:11] President Obama stated, quote, I just took an action to change the law, end quote. He then made a, quote, deal with potential candidates of DAPA, quote, "If you have children who are American citizens, if you've taken responsibility, you've registered, undergone a background check, you're paying taxes, you've been here for five years, if you've got roots in the community, you're not going to be deported. If you meet the criteria, you can come out of the shadows," end quote. While the DHS's characterization of DAPA is taken into consideration by this court in its analysis, the quote, "label that the agency puts upon its given exercise of administrative power," is not conclusive. Rather, it is what the agency does in fact. Thus, the court turns its attention to the primary focus of its analysis, the substance of DAPA. Nevertheless, the president's description of the DHS directive is that it, "It changes the law." And then obviously the court also concluded that

[0:33:01] the inactuality in its view, DAPA changed the law and therefore exceeded the authority delegated to the Department of Homeland Security.

[0:33:13] That decision was affirmed on a 2-1 split by the Fifth Circuit Court of Appeals. And the majority and minority split out on the grounds that I've laid out. Right. The majority said DAPA is creating new law.

0:33:32 Andrew: The minority said that the case is non-justiciable and lack standing. And again,

[0:33:38] I should add, this is Thomas's favorite kind of procedural posture for a case. This is on a motion for preliminary injunction. Oh, okay, so it is not so when the majority, they're not just saying on the merits we think that it is new law, the majority is saying on balance we think that the petitioners

[0:34:03] have shown a substantial likelihood of success on the merits that DAPA is new law, so a very, very strong finding. Okay, um. That then went up to the Supreme Court in 2015, and the

[0:34:16] ruling came down in 2016 at a time, a year-long time in our nation's history, where we only had eight Supreme Court justices on a 4-4 split. As you know, if you are a longtime Opening

[0:34:28] Arguments listener, a 4-4 split at the Supreme Court means that the lower court's ruling is upheld. So it was affirmed by per curiam opinion, which just said an equally divided

[0:34:41] court. Therefore, the Fifth Circuit's ruling stands. We know the change in the Supreme Court since 2016 is to add Neil Gorsuch. We know, as I just went through, how Neil Gorsuch is going to vote in this case. So the way in which the president repealed, quote

[0:35:01] unquote, DACA was by having Attorney General Jefferson Beauregard Sessions III issue a memorandum in which he says, I write to advise the Department of Homeland Security that it should rescind the June 15th, 2012 DHS memorandum entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, As well as any related memoranda or guidance, this policy known as DACA, blah, blah, blah. And the basis for this rescission letter is a citation to the line of cases, United States versus Texas, that I just described. Here's how Attorney General Sessions describes it. He says DACA was effectuated by the previous administration through executive action without proper statutory authority. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the executive branch. The related DAPA policy was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit on the basis of multiple legal grounds and then by Supreme Court by an equally divided vote. Because the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially

[0:36:10] imminent litigation would yield similar results with respect to DACA. I am not one to say I frequently agree with Jeff Session's view of the law. I agree with that assessment.

[0:36:22] It's why I can't imagine there would be any meaningful difference between DAPA and DACA in the law, but yeah, yeah, so I think that's right. So what has Trump said he's going he he wants to to do? He said there's going to be a six month phase out of DACA. Phase out I guess, is the wrong word. It's a word he used, but it's the it's

[0:36:41] the wrong word. It is deferred for six months. And Trump has then tweeted, okay, now Congress, it's time for you to act, that you know, if you want to preserve something like DACA, you're going to have to do it through legislation. In my view, I suspect, Thomas, that you're likely to agree with me, there

[0:37:00] is zero chance of that happening. Oh, I No, I don't think there's zero chance of that happening. Oh, interesting. Good. Well, I want to hear your rebuttal. Let me lay out my case very, very quickly. Yeah, sure. We're running out of time, but go ahead. I know, I know. Yeah, sure. So the last major comprehensive immigration reform was in 1986 under President Reagan. All right, you're right.

0:37:22 Thomas: I already concede. No.

0:37:25 Andrew: There was a proposed reform bill proposed in 2013. The structure that an immigration reform bill is going to have to take to sort of fit within traditional legislation is it's going to have to bring three groups together. It's going to have to bring together conservatives, who the

[0:37:44] way to appeal to conservatives is by increasing more money and otherwise putting in border security, increased enforcement. What Trump is going to demand is, of course, the wall or some sort of, you know, increased fencing. Right. Yeah. It's going to have to bring together. The second group is is business interests. And in particular, there is there is nothing you can do on immigration

[0:38:09] that has a widespread effect that that you're going to be able to do without a carve out for the American fruit and vegetable industry. 100% of that work is done by migrant laborers at wages and on conditions that are grossly beneath the minimum wage laws. And any kind of actual enforcement of the law is going to have to carve that out just as a political reality.

[0:38:40] And you can – I mean, that's something that I think unites left and right, that we hate seeing migrant – the left hates seeing migrant farm workers making pennies a day. The right has the sort of law and order policy. You would think they would come together. But I think both left and right also don't

[0:38:58] want to kill billions of dollars worth of the domestic fruit and vegetable industry. Well, is it really – I mean, a topic for another show, but is it really going to kill it, or will we just have to pay a little more for vegetables? Well, from the consumer perspective, we might just have to pay a little bit more for fruits and vegetables. But from the existing business perspective, it would be a drastic overhaul of a multibillion-dollar sector of the economy.

[0:39:28] And that's why – and no senator wants to do that. Which is unfortunate. Yeah. Yeah. And then the third issue that has to be part of any kind of comprehensive immigration reform is some kind of recognition of

[0:39:40] the fact that we are not going to deport 11 million people who have undocumented status in this country. That's the best estimates. Obviously, there are error bars around that. In episode 52, and then in a follow-up on episode 67 of the show, we discussed largely, I mean, 99% accurate Facebook post from an immigration lawyer that argued very persuasively to me, and I haven't heard a good argument to the contrary, that the term illegal immigrant is not just useless, but not supported by the way in which our network of overlapping immigration laws actually treat individuals, right?

[0:40:25] So we have used the term undocumented alien or aliens without legal status. But I would recommend going back to those two episodes,

[0:40:38] that is 52 and 67. It was the C segment on 52, by the way, for an overview on our nation's sort of myriad network of overlapping laws.

0:40:51 Andrew: But the characterization of, quote, illegals is not only politically shorthand,

[0:40:58] but it is – but not an accurate reflection of the law, which treats different violations of the law differently, as it should. And so that third component is what the conservative right has decried as amnesty, some notion that you're not going to round up 11 million people

[0:41:17] who have committed a variety of legal infractions, of which by far the most common is only the infraction of violating the immigration law, being here in the first place, overstaying visas, or illegally crossing the border. There's no basis under law for lumping them all into the same category. And on a practical basis, as you've pointed out, the overwhelming majority of an identifiable subset of them is actually making the country money as opposed to costing the country money. And so the third component that is crucial in any kind of immigration reform is something to address those individuals that is a form of what the right decries as amnesty.

[0:42:02] If you take those three components, I don't see how you can bridge the gap between the moral objections of right-wing Republicans who think that what we need – and who formed the bulk of Donald Trump's base, right? His signature issue,

[0:42:21] build the wall, who want a hardline approach, I don't see how you can get them to the table. And I don't think there are enough moderate and pro-business Republicans to combine with the Democrats to protect a left-leaning bill. Yeah, well, I might have misheard

0:42:40 Thomas: You. I don't think we'll get comprehensive immigration reform. But I wouldn't say it's impossible that they do some quick DACA fix, like let's just make some version of DACA the law. Because it's pretty popular, and ending DACA I think is pretty unpopular, but you never know. I think that never underestimate Congress's ability to

[0:43:06] not get stuff done. Well, you know, and I would just say, look, you need 13 Republicans to break

0:43:12 Andrew: A filibuster because Ted Cruz is up for reelection in 2018. And there is no doubt that Ted Cruz will

[0:43:18] filibuster an attempt to legalize DACA. Really? Wow. Yeah. I mean, that's, you know, it's, that's been one of his signature issues from the very beginning. He's already at 0% with Hispanics in Texas. So he needs to organize and motivate his base to stave off primary challenge from a, from a pro Trump challenger. He's in a good look. He's in a good position to do that financially, obviously. But if Ted Cruz were to support DACA, or Ted

[0:43:50] Cruz were to fail to filibuster DACA, all of a sudden, he would be looking at an immensely weakened political position. Again, I could be wrong. I'm a lawyer, not a campaign manager, but that's my read

[0:44:02] Yeah, of the political situation. Well, you make a strong case. I, yeah, maybe that. Maybe that won't happen. Maybe I was being too wishful with that,

0:44:08 Thomas: With how, I mean, it seems like this has gotten somewhat of a bipartisan response, but maybe you're right that practically speaking, it just won't be able to get done because Congress is so fundamentally broken.

[0:44:21] And I think because – and I was talking about comprehensive immigration reform as sort of the pattern.

0:44:27 Andrew: But it is clear to me that in order to have a compromise bill, right, in order to preserve DACA, you're not going to just take

[0:44:33] DACA and put it up for a vote. That's not going to get any Republican support.

0:44:40 Andrew: Maybe it will get the few voices that have spoken out, Orrin Hatch and John McCain. But that's not going to get you 13 Republican votes. They're going to say, we got to get something in exchange. And so typically what

[0:44:52] you would give them in exchange is some kind of additional enforcement for border security, right? If it's not building the wall, additional fencing, more policing, whatever, something to placate the conservatives. I don't know how many Democrat – so in other words,

[0:45:10] it just seems like there's so many pressure points of if it's a wall, right, you're going to lose Democratic vote. Even over preserving DACA, right? Enough Democrats are going to say, no, no, no, I'm not voting for a $15 billion wall to preserve an $800

[0:45:29] million program. And then the flip side of that, even if you have some compromise on border security that's less than a wall that therefore doesn't lose the Democratic votes, it's awfully hard to see where you're going to get past kind of the moral

[0:45:48] objections of this can't contain amnesty. And almost all of the Republicans are on record from having opposed DACA and DAPA as saying this is amnesty. So, you know, you've got the sort of both appealing to their base and the flip-flopper problem. I think they're boxed

[0:46:06] in. And I would say, you know, the guidance I take from that is if you couldn't muster 50 votes to repeal Obamacare, the idea that you can get 60 votes to do something that is politically much harder and

[0:46:19] has much more of a diversity of interests, I don't think we're going to get there. So yeah, all right, well, thanks for taking

0:46:25 Thomas: Us through that, Andrew. Excellent job. That's that's sad news. Uh, hmm, yeah, it's, I, I was hoping there would be some way this would be constitutional, but yeah, it sounds like it's it's not really. And, uh, Andrew agrees with Jeffrey

[0:46:38] Beauregard Sessions. Okay, we gotta go. Thank you, Dr. Hibbert. I rest my case. You rest your case. What? Oh, no, I thought that that was just a figure of speech. Case closed.

0:46:50 Thomas: Andrew, I just heard about this today. Closed arguments. Oh, I love when it's closed arguments. That means we're going to get a nice quick, well, it might not be quick, but we're going to get a firm answer here. Texas churches are suing

[0:47:03] for disaster relief money. What's going on there? Yeah, this is the immediate foreseeable consequence of the Trinity Youth Movement. Is this the consequence of they're all, they're chock full They're full of tires in their playgrounds, and now they need disasters. Yeah, so we're going to link in the show notes a post from the Friendly Atheist blog by Hemant Mehta, friend of the show. And, I mean, sadly, I just – I think he's wrong on every line in the article.

0:47:33 Andrew: Because his argument is that these churches which are suing to be part of the disaster relief efforts for Hurricane Harvey and inevitably for Hurricane Irma, his argument is the federal government is under no obligation to admit them into the program. And I think that's wrong. I think it's not going to describe what happens. I think this is the immediately foreseeable consequence of the Trinity Lutheran versus Comer decision. We were one of the only outlets explaining not just that the decision was terrible, which it is, but that it was landmark in its terribleness.

[0:48:11] I think a lot of people sort of view it as, yeah, it was bad, but Gorsuch on the court, whatever.

0:48:17 Andrew: The reason, what we said at the time, and what you're seeing an implication here is Trinity Lutheran versus Comer stated in its opinion, it framed for the first time in our nation's history the free exercise clause of the First Amendment as giving churches as institutions and organizations the right to participate in government benefits programs. Okay, and I'm going to read a little bit from the decision. This is page 13 of the Trinity Lutheran opinion. The court says, this is a 7-2 majority, by the way, so can't pin this on Neil Gorsuch in this case. There is, is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. Remember the

[0:49:01] government benefit in trinity lutheran was the mulched tire resurface program for playgrounds the rule is simple, no churches need apply. The state in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program for which it is fully qualified.

[0:49:20] So that – in my view, that kind of rhetoric and that kind of basis establishing – Supreme Court has now said that the free exercise clause means – let me be clear what the previous rule was. Before Trinity Lutheran,

[0:49:39] the Free Exercise Clause was a constitutional right held by individuals. And in my view, that is the correct reading of the Constitution. It is consistent with our nation's 230-year history on the subject. It is consistent with the framers' original intent. Whatever judicial philosophy you have other than I want to break down the separation of church and state, the view of the First Amendment's free exercise clause as applying to individuals and not applying to churches is rock solid. Trinity Lutheran changed that and said churches shouldn't be put to the burden between choosing between whether they're a church or whether they can participate in a government

[0:50:22] program that is of general benefit. And there is, in my view, virtually no basis to distinguish between resurfacing the playground for a

[0:50:36] school and daycare that is attached to a church and rebuilding the church itself. Right. Remember, we had Andrew Seidel on from the FFRF to discuss the facts of the case and to, you know, sort of bemoan the outcome with us. The Trinity Lutheran School is a Lutheran school in which proselytization takes place, right? It is open to the public in the same way that all churches are open to the public, which is to say anybody can come in, but when you come in, you will receive Christian and

[0:51:07] specifically Lutheran theology within the walls of this church or within the walls of the school. There was no argument, and it was not factually the case, that the school and daycare was secular. It wasn't. It was a religious building and a religious institution attached to a religious church. And the court didn't think that mattered. And so the argument raised in Hemant Mehta's article, he basically raises two arguments. He says, number one, FEMA shouldn't be giving government dollars to buildings that are not open to the public. That distinction, I think, is not going to wash for the reasons that I just said. And then number two, and this is actually his lead argument, and it's something that we distinguished at the time.

0:51:54 Andrew: He says, five of the judges who ruled in favor of Trinity Lutheran made clear that the ruling applied only in cases like a church playground. And then he adds where the benefits are secular. And again, I don't think that follows, uh, for the reasons that I've just stated. Right, it's not a secular benefit to resurface a playground that's, uh, part of

[0:52:14] a, an expressly Lutheran, uh, school and daycare. That refers to footnote 3 on page 14 of the Trinity Lutheran decision, which you will see this in Supreme Court decisions

[0:52:27] that are controversial, sometimes it drops a little footnote, and the footnote says, this case involves express discrimination based on religious identity. With respect to playground resurfacing, we do not address religious uses of funding or other forms of discrimination. Okay, so that is what we call in

[0:52:45] the law an attempt to narrow the scope of the holding. Okay, and it sounds like you're throwing a bone to the other side. It's saying, hey, look, this is only a playground resurfacing case. But let me tell you how this is going to play out in the event that this were a lawsuit that is going to go up to the Supreme Court, which, by the way, happy to do an Andrew was wrong. I don't think this will even be a lawsuit. I think that it is just crystal clear to me. I would be surprised. I mean, it may be the FFRF decides to get involved as a matter of principle, but I think they're pretty bright strategists over there. I would be curious. We're going to tweet this episode out to Andrew Seidel and see if we can't get whether the FFRF is going to challenge this. The way in which the argument would go is the FFRF, the group opposing allowing churches to be a part of the relief effort, would say

[0:53:38] Trinity Lutheran was expressly narrowed in its holdings to the facts of that case and does not apply here, see footnote three. And then the other side is going to say, yeah, but the rationale of the Trinity Lutheran opinion is that religious institutions have a First Amendment right to to compete for publicly available governmental benefits if they otherwise qualify for those benefits and should not and have a First Amendment right not to have to choose between their religious character and the eligibility of participating in those programs. And no case to the contrary exists. There's no case that says government programs that says, uh, institutions should have to choose

[0:54:28] in whatever case. And the reason no cases exist is because the right was made up in Trinity. Right, but that's how they're going to put it. And what's your response going to be? Your, there is, I cannot come up with a good reason why, if it applies to allowing a school to resurface its playground, why it doesn't—an expressly religious school attached to a church of expressly religious character to resurface its playground, why that wouldn't also apply to having the church to which that school is attached rebuild its walls or its roof or whatever. I mean, this is the immediately, I've said it before in this episode, but this is the immediately foreseeable consequence of Trinity Lutheran. It's why we flagged it as a landmark opinion. It's why it drastically changed the landscape. And I certainly think that you might see the members, the two justices from the court's liberal wing start to back away from Trinity Lutheran in coming years. But you are not going to get ultimate relief from this court to

[0:55:36] overturn or distinguish or limit the scope of Trinity Lutheran, particularly given the composition of a court. So I don't—if I were a locality and I got a threatening letter saying, hey, you've got to allow my church to participate in this, you know, in your cleanup efforts, in the money that you're doling out, my advice would be not to fight it, right? Wow. Hold those dollars because this is a loser of a case under Trinity Lutheran. And I wish that weren't the advice,

[0:56:08] but certainly, you know, localities, it would be very, very expensive, time-consuming, and ultimately detrimental to those localities to lose the lawsuit and have to pay attorney's fees in addition to everything else by fighting it. And that's

[0:56:26] the reality of the choice. Okay. So I guess I'm not totally clear on why they weren't able to distinguish

0:56:32 Thomas: It or limit it, I guess is what you're saying. Sorry if I'm just not getting it, but why doesn't it work to say, no, this is kind of, it only

[0:56:39] applies to things like playgrounds or it only applies, why doesn't that work in general? Because Trinity Lutheran does two things, okay? It has a holding. The holding is the law, which is

0:56:51 Andrew: Expressly limited by the terms of footnote three to things like playgrounds in that

[0:56:57] case. But in addition to the holding, Trinity Lutheran also sets forth the court's understanding of other principles of law, and this is what is called dicta. We've talked about it in the past. And it is certainly valid to take a look at a Supreme Court decision and say, this wasn't part of the holding,

[0:57:17] and therefore it's dicta, and distinguish it on that basis. But in order to dismiss part of a court's holding as dicta, you have to explain what the reason is for not extending the rationale of the court's opinion to an analogous situation. Because, after all, that's what case law is all about. Case law is all about saying, oh, yeah, the general principle is X. This case was about school playgrounds. This next case is about, and let's be clear, it will be characterized as, this case was about religious playgrounds attached to churches. And this next case is

[0:57:54] about the churches themselves. Themselves. So then you would say, is there a meaningful difference between giving funds to a church to resurface the playground of the daycare

[0:58:06] that is attached to that church and giving funds to a church to rebuild its own walls? And I'm at a loss for what that rational distinction would be. Do you have a good one? Because certainly the argument of one building is open to the public and one isn't is not true, right? I can, as a non-believer, I can walk into

[0:58:28] any church in America, right? I choose not to because it's not the kind of thing I want to. But right, it is just as open as the school, right? Which is to say, it is open if you don't mind going and receiving theology. I mean, that's why, again, I can't stress enough,

[0:58:47] enough. The First Amendment is different than other kinds of arguments about government benefits, right? Like one of the things that, you know, will come up in these cases, it came up when we talked about Trinity Lutheran,

[0:59:00] is the, I don't get to say where my tax dollars go argument, right? And, and that's true, right? Like when I pay my taxes, I can't say, I want all of this to go towards, you know, aid to families in need of assistance, and I want none of it to go to the military. I don't get a vote on that. I don't get to withhold on a line item. That's true as a general principle. It has never been true in our nation's history about churches. We've always said, look, there's a presumption that tax dollars can't be taken out of a general citizen's pocket and put into the the pockets

[0:59:36] of a religious institution. And until Trinity Lutheran. Yeah. And Trinity Lutheran uniquely changed that. And it's, that's why we devoted a couple of shows to it. And, and look, this is something that will turn around.

[0:59:53] If, if, if there is a trough of money out there, this will turn around and bite the proponents of breaking down the wall of separation of church and state in the ass. Our friends

[1:00:06] at the Satanic Temple will start competing for government benefits. And people that everybody hate on all sides of the aisle, right? The Scientologists and the Mormons and everybody, right? Like all of those groups will start becoming eligible on an equal basis. And, you know, maybe in the long run, we will see the kind of realignment back to the political state of things in the 1950s. And in the 1950s, some of the most stalwart defenders of separation of church and state were religious individuals, organizations, institutions,

[1:00:41] because they didn't want, right? They didn't want other religions. The Catholics didn't want the Protestant Ten Commandments posted in schools, right? Yeah, gosh. I like when you brought up Scientology. I mean, they're

1:00:53 Thomas: The villain we all love to hate. That would be the one good thing that could come out of Scientology for me is if they started trying to get like the Scientology commandments in or something. I don't know, whatever. Whatever the equivalent is, Xenu

[1:01:06] or something like a statue. Look, Scientologists are very, very active in disaster relief. Well, I thought you were going to say they're active in, they're legally active too. I'm sure they're up on the case law. Yep. Yep. And one of the – I mean, they recognize that being part of disaster relief efforts

1:01:25 Andrew: Is a great opportunity to proselytize. So I would be shocked if the Scientologists

[1:01:31] are not kind of the next on board. And, you know, again, this is a problem of your own making, you know, people who are in favor of – the position is called accommodationism, the idea that there is not a strict separation of church and state. You know, yeah. So,

1:01:50 Thomas: So what does this mean practically? So this mean taxpayer dollars are going to be rebuilding churches? Is

[1:01:56] that all that will be rebuilding churches, absolutely. I'd look, I'd love to be wrong on this. I will do, I

1:02:02 Andrew: Will do the Happiest Andrew Was Wrong segment. Yeah, uh, that there is, but I don't see a basis particularly at the local level for really, for even contesting it. I mean, we, we walk through, I asked you, you know, how if, if, if we have to give, if we have to allow churches to compete for limited federal funding, which let's be clear on the limit part, right? What Trinity Lutheran said was, if you're only going to give away 10 resurfacing for playgrounds and 70 different playgrounds apply, and one of them is religious in nature, you have to evaluate the religious in nature applicant as if it were a secular applicant. And so it is not just that dollars go from the federal coffers directly into church bank accounts, which again, used to be the ironclad test of when you were violating the Establishment Clause, but it is, they are going into church coffers at the expense of going into the coffers of secular

[1:03:05] institutions. You know, again, it's landmark, it's atrocious, and there is, if you are expecting relief from the courts, you will not get it. Wow. Yeah, it's a, it's

1:03:18 Thomas: Interesting because it's a closed arguments that would have been probably closed argument the other way before this decision,

[1:03:24] right, in your mind? Yep, would have been absolutely. This is, this is, this is part of why I, and

1:03:31 Andrew: Again, I was wrong. I I wish I wasn't about Trinity Lutheran. It's the reason why I did Trinity Lutheran is the three-part You Be the Supreme Court. And if you are feeling equal parts nostalgic and

[1:03:43] masochistic, you can go back and listen to that. But I thought for sure that the Supreme Court, and again, I think Andrew Seidel gave us some really good reasons in his two appearances on our show why this didn't happen. But I thought for sure that the Supreme Court, guided by competent

[1:04:03] oral argument from lawyers for the state of Missouri, would explain the implications of drastically changing the rule in the way – because the Trinity Lutheran decision is exactly the relief that the ADF requested, right? This was the ADF's argument on the appeal in their brief, and the court adopted it. And it was, I thought, well mapped out to the contrary by the state of Missouri. But

[1:04:34] because of the political change, because it wasn't well argued, the court was not presented with the opposite side of the argument in any kind of compelling way. And remember that the premise of You Be the Supreme Court was, on its face, this didn't seem ridiculous, right? Like, yeah, you, you're not looking at the full picture when all you see is the arguments being raised by Trinity Lutheran. I mean, I think I, I got you to walk down that path a little bit with me. Yeah, in the first episode, because that's sort of the definition of what Supreme Court cases are, right? Like, if, if you can't even make an argument for the other side,

[1:05:11] yeah, why did get there, the Supreme Court? Right, so, yeah, you can make an argument, it just collapses upon the scrutiny by the other side, and here we didn't have it. And so, you know, now the, the

[1:05:24] Pandora's box is open, in my view. It will get worse before it gets better. Oh, man. Okay, well, depressing note to, to go. Yeah, depressing, a non-yodel mountain depressing segment. Yeah. Wow. Oh,

1:05:36 Thomas: Man, all right. All right. Well, on that depressing note, I think it's time to thank our all-time greats, our Hall of Fame patrons.

[1:05:43] Yep. Thank you to CampQuest.org, CampQuest.org, CampQuest.org. Steven Boyd at DJ Empirical.

1:05:49 Andrew: To Philip Stromberg. To Adopt a Homeless Pet and Oppose Declawing and Ear Docking. Hunter Ash, C6 Sarah, Aaron Graddy, Squick Thinger, Charone Frankel, host of the delightful podcast, Habeas Humor. Thank you to Danny Baker at Combat Nonsense, The Wayward Willis Podcast, Jeffrey Maynor, Violet Page Hall, Matthew Vernon, Ian and Allie, Geeker41, Jim Grove, Steve Sigmund, Dave Nichols of Positively Doubtful Podcast, Eli Bosnick, Danny Rosari, Rhonda the Dork,

[1:06:18] Time Magazine's Person of the Year, Roger Metcalf, Sakashite Fukasumi Eats Podcast for Breakfast, Kaylee Reiser, and Heather Loveridge. Thank you all so much. And thank you, Torsten Piel of NoSeboMart.com,

1:06:31 Thomas: Including Sickness Pills, Evil, and then it was cut off, so you ran out of room. Room. Soggy Pants. Thank you, Sammy. Sam Deneau. Congratulations, Thomas and Lydia. Thank you very much. Greg Sullivan. Malika Chandler. Jesse Stutt is my favorite lawyer. Andrew is a close second. Tricicular Manslaughter.

[1:06:49] Jaga, co-host of the Shifty Bastards Transformation Podcast. Some unreadable symbols. I can't. Wow. Okay. Thanks. Rebecca Smizer. Cosmos Vigilante. Adam Lenda.

1:07:02 Thomas: Amanda, Frederick Alstromer, Michael Rops, Clear as Kushner, Zika Baby's favorite new podcast, Reasonable Risk, Socialism's as delightful as Roger Metcalf. I guess you can take that any way you want.

1:07:16 Thomas: Jessica Wilson, Thomas McCormick, Mitchell, Eric Johnson, Carl Zippel, Conrad Michaels, and Zabby, our top patron. Thank you guys so much for being our Hall of Famers, are all-time greats. And I'm not going to plug our Patreon this, today's episode. So there's been some questions, we've seen a few things posted on on different charities. I, it's hard in these cases, Andrew, to know, you know, like what's the best place to give money in in a case like Harvey or Irma. And and I'm not, I'm I'm not convinced that, you know, you or I know better than anybody else. We did some research to try to make sure we weren't plugging anything that would be like a bad use of money. We've seen some rumblings of like, oh, maybe the Red Cross, who I would have thought would just be the default go-to as a good

[1:08:06] good organization.

1:08:07 Thomas: We've seen a few articles like, maybe it's not the best use of money, but I don't know. So at the same time, they have a great ratio, their ratio of the money that actually goes to relief. So we're going to recommend the Red Cross. And just to find another one in case you're worried about that, Habitat for Humanity, which I love Habitat for Humanity, and there's great things about it, but their expense ratio

[1:08:32] isn't as good as Red Cross, Yeah, that's right. So the Red Cross has been criticized for its

1:08:39 Andrew: Recent relief efforts. We don't have any basis to evaluate that. But their overhead ratio is 11% of every dollar goes to overhead. 89% is actually used for boots on the ground disaster relief efforts. Habitat for Humanity is another charity that Thomas and I wholeheartedly support. Their overhead ratio is 25% of every dollar goes to overhead. So between those two, you've got to figure it out for yourself. But we would recommend donating to either one or both of those organizations. I want to be very, very clear. I want to echo. This is something that a lot of folks have said, but it bears repeating. The best thing you can do as a person in response to a humanitarian crisis is to give

[1:09:29] your money to the professionals who can put that to the best use, right? Right. So they don't want you to – organizations don't want you to show up or bring cans or, – the way that they can, – that you can do the most good and what organizations most need is your financial support. And we are raising money and we are going to support disaster relief financially. We encourage you to do the same. It's how we can actually make a difference and sort of do more than just,

[1:10:00] You know, extending, you know, thoughts and well wishes and prayers. I'm praying for you guys. No, I'm just kidding. So we're going to put a link to both of those two charitable forms in the show notes that you can be confident that between 75 and 89 cents of your dollar is actually going to help victims of Hurricanes Harvey and Irma. Yeah. And hearts

1:10:24 Thomas: Definitely go out to anyone who's in the path right now of Irma, which looks, wow, it looks, you know, it's another one of those once in a billion year storms that just happened. There's like seven of them this month. But, you know, once in a thousand years. All right. So let's move on to my favorite segment. This is an all-time favorite segment. Thomas Ace's The Bar Exam. Routine segment at this point.

[1:10:47] What's today's question, Andy? Yeah, and we are getting very close to, uh, I'm gonna have to go purchase another bar exam book. Oh, wow. Yeah.

1:10:56 Andrew: No, because, because we got, uh, we've got 50 questions in the hopper here, and then, uh, and then we get to move on to

[1:11:02] a new source. So, wow, what if it's a harder, I'm excited about that milestone as well. What if this, this

1:11:08 Thomas: Whole time I've been accidentally doing like the easy bar exam, like the, like it, like the pre-SAT or whatever, instead of

[1:11:14] the SAT? That'll be great. Okay, Thomas. The state charged the accused with the intentional murder of a former girlfriend. He, meaning the defendant, admitted to killing her, but asserted

1:11:27 Andrew: That he lacked the intent to murder due to his suffering from a personality disorder complicated by two days of

[1:11:33] drinking alcohol heavily. This might hit home for some of us on the podcast. The trial judge instructed the jury that, quote, "The law presumes that a person intends the ordinary consequences of his voluntary acts," end of quote. The judge did not tell them that they had a choice or could infer another conclusion.

[1:11:52] They were told only that the law presumed it. The accused was convicted of depraved heart murder and sentenced to 100 years in prison. On appeal, the appellant argued that the court took the fact-finding task of determining criminal intent out of the jury's hands by in in effect, ordering them to find intent. The jury could have felt that they were being told that they had no other choice. The state Supreme Court affirmed the conviction, but the United States Supreme Court granted certiorari. Will the court, that meaning the Supreme Court,

[1:12:23] likely reverse the conviction? This is the big time. This is my first Supreme Court case that I'm taking on here. And I would say it's asking for settled constitutional law. This is not a Neil Gorsuch question for the bar. Right. Right. So your options are, A, yes, court will likely reverse the conviction because the wording of the instruction could have been viewed by jurors as a mandatory direction to find that there was intent to murder.

[1:12:51] B, yes, because the wording in effect caused the defendant to be a witness against himself by having him intend everything that he did. C, no, because the defendant could raise an argument to rebut the permissible inference created by the jury instruction, or D, no, because the instruction was only a presumption that the jury

[1:13:12] did not have to consider in its deliberations. Wow, so I think this is a really, really tough question. Um, I think it's easy. I don't know what you're talking. Oh, good. No, all right. No,

1:13:26 Thomas: I'm just kidding, I'm just going with, going along with my current success. This is a, yeah, this is a weird one. This is definitely, it feels different than most of the other ones we've had. I like that the Supreme Court's involved. It's going to start making me guess the split too, like Andrew. Oh, this is going to be a 5-4 with Alito and, you know, I have

[1:13:45] to do that kind of thing. Yeah, as we know, that is not a prerequisite to either passing the bar or having a successful law-themed podcast. All right. I'm Okay, starting with eliminations, I think I'm going to eliminate B, yes, because the wording in effect caused the defendant to be a witness against himself by having him intend everything that he did. I don't really think that would be the reason it would be a yes answer. If it is a yes answer, I think that that is kind of a sideways way of getting there, if that makes sense, like circuitous way of getting to there. I think that that won't be the best yes answer. I could be be wrong about that.

And then I'm going to eliminate D, which is no, because the instruction was only a presumption that the jury did not have to consider its deliberations. I feel like, I could be wrong, but I feel like the judge telling you this, like, hey, the law presumes this. I don't feel like that's something the jury's just going to ignore. So then I'm left, the two answers I'm left with is yes, because the wording of the instruction could have been viewed by jurors as a mandatory direction to find that there was intent to murder, or C, no, because the defendant could raise an argument to rebut the permissible inference created by the jury's instruction. So, that's really tough between those two for me, because I think that's, I feel like that's the heart of the issue, you know, is this the kind of thing that you can rebut, or is the wording from the judge so kind of, in a way, biasing, like it's, that it would not give them a chance to consider it.

[1:15:17] I'm going to go with A.

1:15:21 Thomas: This could be my improbable streak could be coming to an end here. I'm going to go with a yes because the wording of the instruction could have been viewed by jurors as a mandatory direction to find that there was intent to murder. I'm going to go with that. This could be wrong. But I feel like if you're having to raise arguments to rebut the judge, like that just seems wrong to me. But it could really be C. I don't know. I'm going with with a I'm

[1:15:46] gonna go with a, stick with it, this could be the end of my streak. All right, and as always, if you'd like to play along with Thomas, uh, play along on social media, so, uh, retweet or uh repost from Facebook our announcement

1:15:59 Andrew: Of this episode, either on Twitter or on Facebook and include there with it, your guests,

[1:16:05] the hashtag TTTBE and your reasons therefore, for, and we will shower our winner with uh never-ending fame fortune and affection on tuesday's episode and future andrew will actually be

[1:16:18] there, not just robot, the time machine is functioning now, it's, the time machine is is back in working order. Yeah, the flux capacitor is, yeah, it's fluxing. Yeah, absolutely. Uh, I put, I put the banana peel in the top, it's great, it works, it, It works fantastic now. So there you have it.

1:16:37 Thomas: Yeah, this is a tough one. And do you want to go along with my improbable streak? Or is this

[1:16:43] the week to maybe break away from the Thomas answer? We'll find out. Yeah, it's, I don't know. I will say again, while we're sticking with the gambler's fallacy, Thomas is on a seven question win streak. So he's, he is, if you're at the craps table, that's the way to bet. If you're at the roulette table, I guess you go the opposite, right? Is that gambler's logic? Always? Yeah, none of that. Okay, just making clear, Andrew doesn't actually believe any of those fallacies, just, just before anyone starts arguing with, all right, thanks for playing along everybody, I think it's really fun, definitely make sure to do that, and, uh, tough one, but with that said, that does it for today's episode, man, great stuff, Andrew, so much relevant knowledge, uh, really

[1:17:27] happy to be, be learning all this stuff, uh, every Friday and every Tuesday. It's fun, I had a lot of fun, see everybody next week. Yep, see you Tuesday, stop breaking the law. 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

[1:18:07] 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.

[1:18:31] This podcast is a production of Opening Arguments Media, LLC. All rights reserved.