OA126: Mick Mulvaney & The Consumer Financial Protection Bureau

Transcript

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

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[0:01:02] 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.

0:01:25 Thomas: Hello and welcome to Opening Arguments. This is episode 126. I'm your host, Thomas

[0:01:31] Smith. That over there is your other host, Andrew Torrez. How are you doing, Andrew? Well, I am greatly improved after

0:01:37 Andrew: Having listened to that fabulous new intro. Yeah.

0:01:41 Thomas: Future Thomas definitely is making a new intro. Sorry, made a new intro. We just heard it, it was incredible. Boy, the uh, the the amount of Matt grinding in it, those ones are my favorite. The uh, definitely the Simpsons and

[0:02:00] the Futurama quotes were the best. I like the one where people uh said something about the law that wasn't the way the law is, I thought that was fantastic. Yeah, yeah, yeah, those were particularly good. So that's always fun, uh, Future Thomas definitely took care of that. And so today we're going to talk about, we're going to talk about net neutrality. So I understand

[0:02:25] someone has given you an argument on net neutrality, or for net neutrality. Is that right? For abolishing net neutrality. Yeah. Oh yeah. That's what, sorry. Yeah. For abolishing net neutrality. That's, that's going to be interesting. I'm curious to hear what that is. We're going to talk about the CFPB. Can't wait to get to the bottom of that. And then we've

[0:02:44] got, we've got some speeding ticket stuff.

0:02:48 Thomas: Question, listener question slash listener Thomas S experience. So that's our day here

[0:02:54] and let's get to it. I'm asking you if you know the difference between right and wrong. Maybe, maybe not. Maybe f*** yourself. So Andrew, I love this because in the, in the spreadsheet here, it says Jake and Hagar on net neutrality. I don't remember.

0:03:12 Thomas: I've read all the books and I just don't remember when Jake and Hagar, you know, opined on net neutrality, but apparently it must've been some part of the, uh, the game of Thrones books that I didn't,

[0:03:25] uh, is it in the, like the appendix or something? Yeah, it turns out the the faceless men are strong libertarian anarcho capitalists. No, you know, so so I've lumped all these things into an Andrew was wrong segment. Um, the first thing, you know, we, we called out in our last episode and, uh, said, uh, that, uh, Agent Pi of

0:03:50 Andrew: The FCC really was making, you know, summary conclusions about competition and not, uh, putting forth an argument. And, uh, and our buddy uh jaken hagar uh that is a a pop culture reference I get, so that may have aided in the fact that I took this.

[0:04:08] He wrote back with the following, right? He said, "Imagine a rule that said new clothing retailers had to operate with at least 50 stores in every US state on day one. Net neutrality activists would be the ones saying this is great, as it means consumers all over the country get the same choice of clothing. Every existing mega retailer benefits from this rule, as they already have the capacity to provide such an offering. But new startups, competitive threats to them, will disappear. Preserving the status quo is anti-competitive." And so I responded back and I said, that seems like the same argument, because we were talking about, you know, is there going to be a new startup ISP? The investment for that is billions, tens of billions of dollars, right? And the idea that like, I mean, what that argument is contingent upon is is that there is a multi-billionaire out there saying, "You know, I would start up my own ISP and compete with AT&T right now, but for and I'd be willing to invest the billions of dollars in infrastructure, but for net neutrality rules, um, and that seems

[0:05:16] preposterous to me. Yeah, right, like the barrier to entry is the billion dollars, right? The barrier to entry is not the rules of operation once you get there. Um, yeah, are they, is it, is the argument that like, oh, well, smaller

0:05:29 Thomas: Companies or smaller startups could just provide like a piece of the internet or

[0:05:35] something? That's exactly right. And so apparently, in in Europe, uh, and again, this is this is jack and Hagar's argument,

0:05:41 Andrew: Not not mine, uh, he says, in Europe there are wireless ISPs that offer, for super cheap, uh, internet packages, um, for example, uh, unlimited Netflix and Spotify, uh, and then data caps on everything else, and it's much cheaper than getting, uh,

[0:06:00] conventional internet. Yeah, I'm with you, that doesn't sound like a barrier to entry, like it doesn't seem

0:06:06 Thomas: It doesn't seem any easier to, you know, like it's it's not any easier to do a startup

[0:06:12] that way than it is the other way, is it? He says, and again, picking the argument, he says

0:06:18 Andrew: Wireless ISPs of the future, the technology to lower that, uh, barrier to entry is

[0:06:25] probably five or so years away from mass viability. Um, to which I responded that, you know, what you're then weighing is you're weighing a hypothetical pro-competitive benefit based on future technology in the hands of shoestring startups against a definite concrete harm now, based on current technology in the hands of the most powerful multi-billion dollar multinational corporations on earth, right? So in other words, even if that's true, right, even if ending net neutrality is a slight benefit to these hypothetical future wireless ISP startups,

[0:07:02] they're already so massively disadvantage in the marketplace by the existing ISPs, that it's difficult to think that that regulatory removal is going to make the difference between, you know, your shoestring being able to knock off AT&T. On the flip side, we know what AT&T

[0:07:22] will do if given the power to obviate net neutrality And we know that because we've already seen prior to net neutrality, the attempt to block Google Wallet. Right. That was in 2014. Now, look, that was stopped by backlash.

0:07:42 Andrew: So there is some consumer power here. But in my view, you know, what that tells us is we know that these ISP providers are looking forward

[0:07:54] to being able to interfere with edge providers. And we know that because they own edge providers and they've been buying edge providers, right? And we're going to continue next week with our discussion of the AT&T-Time Warner merger, but that's a perfect example of an ISP buying up edge providers. And the level to sort of say, I'm sure they're just buying up edge providers for whatever, because they're

[0:08:25] a good investment, I mean, just strikes me as not reflective of reality. A girl has no argument. Well, his response was, when it comes to delegations of power, I'd rather take my chances with mega corporations than hand more power to the only entity that can legally jail or kill me. We recognize this. Far-reaching preemptive regulations are dangerous in high-growth industries. Let the market breathe, I say. And I think I would respond to that in two ways. Number one,

[0:08:54] this is – net neutrality is a regulation that literally right now applies to six people, right? I mean, it applies to the CEOs of six of the largest corporations on earth.

[0:09:07] And the idea that you would have the sort of libertarian mindset that says, I want to repeal a regulation that affects six people to the benefit of 300 million, I mean, I don't know. I guess I'm just sort of going to let-

0:09:25 Thomas: Yeah. If you're in the Opening Arguments community group, you saw something that I came

[0:09:31] across. I don't know where I found it, but it was, let's say, a little graphic that was the funniest thing in the world, which is, it's the Don't Tread on Me snake, you know? And then it says like, if it's a corporation, it's like, oh yes, please tread on me. And then it has like a

[0:09:50] ball gag in his mouth. Yeah, yeah, they're, they're good, they're

0:09:56 Andrew: Additional good memes on that thread. Everybody should join up with the uh the Opening Arguments Facebook community. Um, so I'm

[0:10:02] not going to give away the rest of those. I, I thought that that was, but I thought it was perfect for uh for the these episodes, which

0:10:08 Thomas: Is like libertarians do seem to think it's, it's, you, the government cannot, you know, tread on

[0:10:14] you unless, you know, but a corporation that's totally fine, tread all over us. And that's, you know, that gets

0:10:20 Andrew: Into the second aspect, which is, you know, we see that the government is the only entity that that can legally jail or kill me. Well, you're not getting jailed or killed for violations of the Federal Trade Commission, right?

[0:10:33] Like the, the antitrust laws do not carry. Well, I, I shouldn't say that. Well, wait,

0:10:39 Thomas: Are you forgetting about the massacre that happened when Comcast throttled Netflix and then a bunch of yeah,

[0:10:45] they pulled in, yeah, they pulled in all the executives. Yeah, did I just start assassinating him? Oh, wait, that didn't happen. We're talking about a financial, in all of these cases, the overwhelming remedy. Again, I don't want to say there aren't criminal penalties in some extreme instances.

0:11:04 Andrew: They are exceptionally rare. I know of none off the top

[0:11:10] of my head. I'm sure some of our listeners who are lawyers may send that in to us. Yeah, maybe Ned Stark

0:11:16 Thomas: Or some other. I'm sorry? I said maybe Ned Stark or some other Game of Thrones character. Exactly.

0:11:24 Andrew: The Lannisters should send in their report on people being jailed for antitrust. But look, by and large, the harm that you're talking about in a regulatory environment is economic harm and behavior subject to economics. And both of those are

[0:11:42] things that a corporation can do to you just as easily as the government. We've already talked about that. So I do – look, I want to thank the Faceless Men for making the argument on Twitter. We want to give things a fair hearing. I would, you know, sort of reiterate our uh libertarianism challenge, right? If you think you actually have a good argument for property as a side constraint, uh, you know, send it to us. We'll engage. But so far,

[0:12:12] there have been an awful lot of crickets on that score. Plus, in this hypothetical world, and maybe I'm misunderstanding,

0:12:19 Thomas: But so you'd have like a little wireless thing that gives you Netflix or something. But then what if you want to do something else on the Internet? Do you have to log off of that and like jump over to another one that you've subscribed to, like

[0:12:31] another Wi-Fi? How would that work? I don't get it. I think the way these sort of micro ISPs

0:12:37 Andrew: Work is you get the limited packages that they give you that are unlimited. And then if you want to go beyond that, you are either throttled or you pay by the minute or whatever. I don't know how they work. I can see that right in the abstract. I can see, you know, that being a temporary market, kind of like maybe the the prepaid phone market without, I guess, the benefit to drug dealers. But like, you know, back in the 1990s, but when we were sort of sorting out cell

[0:13:09] phone technology, you know, you had actual consumer use of of prepaid cellular phones. And today, you know, that market is is virtually nothing. Uh, but but perhaps, you know, there would be uh this kind of micro market for instead of having, uh, yeah,

[0:13:28] but then Comcast would just buy them all up, right? Isn't that what would happen, or whoever? You'd think, uh, and it's just the monopoly seems like the bigger issue. Yeah, and um and and it's, it is weird to me that recognizing an environment in which we're moving away from monopolistic protection, you would also want to lessen the regulations on those monopolistic entities. But, you know, I, I am a, I am a statist, so uh my words can't be, uh, can't, can't be true, can't

[0:13:59] be taken seriously. It, you know, I, I will just end with uh we did uh a an episode I enjoyed on this, uh, OA 22, Libertarianism Is Bad and You Should Feel Feel Bad

[0:14:11] and uh if you uh yeah go find out where Andrew comes out on that question. I have not been shy on my political views on this, so, so let's find out how else you were wrong. Yeah, I'm gonna get, because this, I don't really think you're wrong. No, no, I don't, I don't need, well, you know, so but it's sort of Andrew was quote unquote wrong sometimes this segment. Next up, we we had an email from Maddie, a self-described tech nerd, and she says that Google's original intention in acquiring Motorola was to acquire Motorola's patents and not the manufacturing arm. Now, I took that assertion from a court case, but, you know, judges get stuff wrong, too. So, so here's what Maddie has to say. She says Motorola Mobility declined to sell their patents separately for fear of crippling the value of the business. So Google bought them outright. During the period of Google ownership, 2012 to 2014, Motorola only manufactured one handset for Google. And during that same three-year period, LG made three phones for Google. Huawei made one. Motorola

[0:15:21] made the one. Then Google sold Motorola to Lenovo in 2014, minus the patents. And then she adds, so on that, I've tried to take a look on that. I can't really confirm or deny that the specific facts, it looks consistent with

[0:15:39] the history. So I'm willing to take that one. And perhaps the antitrust filing that I read misstated the situation a bit. It looks like there's some overlap. Lap. Uh, the area where I, I really do want to, um, I really want to emphasize, uh, because I think it, it, it helps cut back against, uh, against my narrative a little bit. She points out that in 2011, AT&T attempted to purchase T-Mobile. That was the first place mobile carrier attempting to buy the fourth place mobile carrier, even though Verizon was two, Sprint was three.

[0:16:18] And the Obama DOJ shut that deal down. Yeah. She's absolutely correct.

0:16:26 Andrew: And, you know, I've been using it's okay for one to buy three. If two buys four, it's okay. And this was an example in which the Obama Department of Justice declined to craft a remedy that said, okay, AT&T can buy T-Mobile if Verizon buys Sprint, right? Which would be the analog. Instead, they said, let's, you know, we only really have four mobile carrier

[0:16:51] companies in this country already. Let's not have fewer than that. And it was good, good work, good correction.

0:16:57 Andrew: And it and it look, it shows there's a difference. Right. Like, again, I think the general point is that the line is trending away from antitrust enforcement, even with Democratic presidents. I stand by that. But there is certainly a difference between having a Democratic administration and having what we have now, which is essentially the, you know, the Wild West. But for one example, we're going to talk about next week. So that was that was a letter number two.

0:17:27 Thomas: Yeah. And then also, it sounds like maybe I could be crazy, but it sounds like Democrats might be preferable in some ways to Republicans on that question. If Obama actually enforced a little bit of an antitrust. But but anyway, yeah. OK, Andrew was wrong. Gosh, Andrew, tired of this. Get

[0:17:46] your act together. And then the third one, Cynthia Francis, who works for Miller Coors, wrote in to tell

0:17:53 Andrew: Us that InBev acquired Anheuser-Busch and not the other way around. They were attempting to buy up a bunch of breweries. And so they acquired InBev, then AB

[0:18:06] InBev. I don't know why they decided to put AB first in their name, but they did. Then AB InBev acquired SAB Miller, which necessitated the Miller Coors divestiture. So we got the antitrust law part correct, but I think I said Anheuser-Busch acquired InBev. And that is my US

[0:18:25] centrism playing a prejudicial role that I just thought of Anheuser-Busch as this huge company because InBev is a foreign company. And it was like, oh, well, obviously, you know, Anheuser-Busch was the bigger company. Nope, nope, they were the smaller company. InBev is a huge multinational conglomerate that owns basically like all of the

[0:18:43] alcohol distilleries in the world. Oh, okay. Yeah, no, I would have thought that too. I thought Anheuser-Busch was just a giant thing that owned everything. Yeah. No, it turns out they're a giant thing that owns everything until you start looking at truly giant things.

[0:19:01] So thanks to Cynthia for that one. All right. Yeah, you were wrong about all that. Meanwhile, we got another email that just said Thomas keeps

0:19:07 Thomas: Killing it at the bar, gets all the questions right. Good job. But you know, I'm sure eventually, Andrew, you'll be able to get this stuff right. But until then, thanks for the emails. Thanks for correcting Andrew,

[0:19:20] everybody.

[0:19:23] okay andrew the cfpb that's the consumer financial protection bureau This is an interesting thing. I covered it a little bit on my show. Actually, I, I think this is a really cool, uh, agency and and doing a lot of good stuff. But I'm just a libtard, so I guess I would think that. Uh, but there's been some controversy about who should be in charge of this damn thing. Right now, Mulvaney has been been allowed by a judge to take over. But you're going to break down all the ins and outs of that, I'm sure.

[0:19:55] Yeah. So so here's here's the situation. Richard cordray director of the cfpb

0:20:01 Andrew: Resigned uh and so So his appointed deputy director, Leandra English, claimed that she became the agency's acting director under the provision of the Dodd-Frank Act that

[0:20:14] provides for the deputy director to become the agency's acting director. At the same time, Donald Trump nominated and appointed Mick Mulvaney,

[0:20:27] the director of the Office of Management and Budget, to be the acting director of the CFPB. Mick Mulvaney is a vocal opponent of the CFPB. He has called it nonsense. He has said that it should be abolished. Uh, and so again, you know, preliminarily and, and, um, and you touched on this on your show, but, uh, but this is not an example of, you know, false equivalency where, where both sides do it, right? Appointing Mulvaney to head the CFPB is like appointing Dennis Kucinich to the joint chiefs of staff or David Silverman to held, to, to, to head the office of faith-based initiatives, right? Right? Like Democrats do not appoint people to government offices who want to abolish the offices

[0:21:19] to which they have been appointed. And Republicans do this all the time. So there is no false equivalency here. There is no like, oh, the left is just as bad as the right. This is a uniquely Republican issue. And moreover, it's not really, it's not without precedent, although it's without longstanding precedent, right? Like you may recall that President George W. Bush appointed John Bolton, a vocal opponent of the United Nations, to be the U.S. ambassador to the United Nations for the express purpose of

[0:21:50] pissing off the United Nations.

0:21:52 Andrew: So that's the situation. Leandra English filed a lawsuit on her own behalf, not on behalf of the agency, because the agency sided with Trump and Mulvaney for reasons

[0:22:05] that I'm about to explain. Well, don't they have to? Because they're a federal agency? Well, anyway, you'll get to it. Yeah, the agency is the CFPB, right? So in other words, the acting, so both the general counsel for the CFPB, and her name is Mary McLeod, and one of the assistant attorney general, attorneys general, Stephen Engel, both filed legal memoranda supporting Trump's right to appoint Mulvaney to head the CFPB. So let's break down how that interplays. Let me tell you, I mean, let me cut to the punchline. As you said on Serious Inquiries Only,

[0:22:50] Ms.

0:22:52 Andrew: English's lawsuit sought a temporary restraining order, which is the very first form of injunctive relief. It's designed to preserve the status quo under the, I think, rather

[0:23:04] sensible notion that, um, you shouldn't have two directors at the same time. Uh, and that, uh, if you just allow the ordinary operation of the statute, uh, it clearly provides for the acting, uh, for the deputy director to become the acting

[0:23:23] director, director, uh, and uh, you, so then the agency would just carry on its normal functions and you could litigate whether Mulvaney uh or uh or English deserve to be the acting director, you know, at greater length, but but kind of step in, solve the immediate problem.

[0:23:42] Um, the court, that's the United States District Court for the District of Columbia, uh, the judge is Timothy Kelly, who is a Trump appointee. We are going to talk about this next week. I've already gotten questions. Isn't that a conflict of interest? It's not a conflict of interest. The fact that Kelly was appointed by Trump does not prohibit him from ruling on matters regarding the Trump Trump administration. That's too broad a reading of conflict of interest,

[0:24:08] and has never been. And I just want us to be clear on this as Democrats, because you had plenty of Clinton appointees ruling on, you know, President Bill Clinton's issues back in the Bill Clinton

[0:24:20] presidency. You had some Obama appointees ruling on Obama lawsuits, including like crazy birther lawsuits that were brought by, you know, Larry Klayman and the like during the Obama administration. And there was never a rule and nobody suggested that, you know, an Obama appointee couldn't tell a crazy loon like Larry Klayman that his lawsuit was meritless.

[0:24:45] So we shouldn't be making that argument here. That being said, it does help us understand the outcome a little bit.

0:24:53 Andrew: So and I should I want to add one more thing, which is that Tim Kelly is, as far as I can tell,

[0:24:59] a traditional resume qualified judge didn't find any immediate links to the Federalist Society, didn't find any, you know, goofball articles he's written for National Review. I mean, he seems to be a perfectly ordinary, albeit conservative, leaning judge.

[0:25:14] So that TRO was denied. And what it means is that Mulvaney is now the acting director of the CFPB. That same court is still going to rule on two things. They're going to rule on a request for a preliminary

[0:25:33] injunction in joining the president from appointing anyone under the Administrative Vacancies Act, which we're about to discuss. And then hypothetically, they could rule on

[0:25:45] The merits. Once the court rules on the preliminary injunction, that order will become immediately appealable to the U.S. Court of Appeals for the D.C. Circuit. And I cannot imagine that it will not be appealed. So, uh, this is not the last that we've heard of this, and I think it's uh, I think

[0:26:05] it's timely and worth sort of knowing. It kind of felt like it was when he took over, it's like, "Oh, it's over." But I guess that's just because you don't want to have two directors. Yeah, well, and look, and it can be, right, like it can be in the sense that if the president gets to a point, the, the head of the CFPB, uh, is uh, a subject to advice and consent of the Senate, right? Um, so uh, it requires a full vote and approval from the Senate. Um, if we get to the point where President Trump nominates a permanent new director of the CFPB, that will moot this case, right? Then there will be no need for an acting director because, uh, there

[0:26:50] will, will be a, oh, I see. So nowhere on the, you know, range of possibilities was Leandra

0:26:56 Thomas: English was leandra english going to be like the permanent full-time director it was just who was going to take over until

[0:27:03] Trump nominated somebody as, as acting director, but that nomination process, as, as you know, uh, can sometimes take a long time. Um, and, and, uh, particularly with Mulvaney, uh, there's, I, I don't want to, I don't want to suggest that, uh,

0:27:21 Andrew: I pin a lot of hopes on Republicans being pro CFPB here, but I, but Mulvaney is such an extreme pick that, that it might be possible, uh, that, uh, you know, you, you would be able to,

[0:27:34] to block his nomination.

0:27:36 Andrew: So in any event, yeah, this is all about who gets to become the acting director. And again, you know, if the Democrats deadlock or win back the Senate in in 2018, that that could certainly change the calculation, although you would think that any nomination would come at least sometime during the year

[0:27:54] of 2018, '18. Um, it's not, it's not going to come now because, uh, Congress is very, very close to breaking for the holidays. And as we all know, there are like 12 working congressional days over the course of the year, uh, and, uh, and we're, we're past them now, so uh, they're, they're busy trying to cram through the

[0:28:13] tax bill, reprehensible and awful tax bill, which again, another good plug for SIO, you, you've done a fantastic job of, uh, of breaking that down, particularly from, from the political aspect, so you

[0:28:25] know, it's why we haven't covered it here, but if you're curious on how terrible the tax bill is, uh, listen to SIO. Thank you very much. So this is all about who gets to be acting director, maybe for quite a while. We start with a provision called the Federal Vacancies Reform Act. It's 5 U.S.C. 3345. And what it says is, if an officer of an executive agency whose appointment to office is required to be made by the president, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office. Then, one, the first assistant to the office of such officer shall perform the functions and duties temporarily in an acting capacity, semicolon.

Two, notwithstanding paragraph one, the president, and only the president, may direct a person who serves in an office for which appointment is required to be made by the president by and with the advice and consent of the Senate to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations. And then there's another provision that's not relevant here. But so basically, the Federal Vacancies Reform Act provides for what happens when there's a vacancy in an executive office, right, in any executive agency for which that person must be appointed by the president and then confirmed by the Senate, of which the CFPB is one, and says the president gets to elect. He can choose to let the deputy director become the acting director,

0:29:59 Andrew: Or he can nominate somebody who currently has been approved by the Senate to serve in that capacity. And that's what Mulvaney is, right? Mulvaney was approved with the advice and consent of the Senate to serve as director of the Office of Management and Budget, so he is eligible. And he can be named as acting director of the CFPB if this statute applies, wise. Since this is a main segment, you might guess that it's not quite that cut and dry. And the reason it's not that cut and dried is because that is 5 U.S.C. 3345. If

[0:30:35] you move ahead two sections to 5 U.S.C. 3347, the same act says that this act is exclusive, quote, "unless a statutory provision expressly designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity," end

[0:30:54] of quote. Um, and so the first question would be, does Dodd-Frank, and specifically does the section of Dodd-Frank that creates the Consumer Finance Protection Bureau, does it do that? And the answer is yes. 12 U.S.C. 5491 says, in the definition section, uh, this is section B5, "there is established the position of the deputy director, who shall be appointed by the director and serve as acting director in the absence or unavailability

[0:31:25] of the director." So now you might say, OK, is a vacancy an absence or an unavailability?

0:31:33 Andrew: Right. And the answer there is yes. But again, the answer isn't, isn't overwhelmingly yes. The answer is probably yes. And the reason that it's probably yes is nowhere else

[0:31:46] in the section of Dodd-Frank that creates the CFPB uses the term vacancy.

0:31:52 Andrew: But other sections of Dodd-Frank use the word vacancy. And so you might raise an

[0:31:58] argument that says, look, it doesn't say the deputy director becomes the acting director in the instance of vacancy, and Congress knew how to use the, the word vacancy, they used it elsewhere in the

[0:32:11] statute it says absence or unavailability and that kind of seems like, maybe it's more like, you know, the director is, you know, in a coma for a couple of days, or, you know, he's traveling and can't be at, you know, can't be reached by phone, right? Like, like, absence, unavailability seems a little more, uh, a little more temporary than it. It does somebody who has resigned his office.

[0:32:42] But as it turns out, there's... there's good case law and and both the assistant attorney general and the general counsel for the CFPB have concluded that, you know, that that that this provision, while vacant, does count as the director being absent or unavailable. And they've done so under, you know, the sort of ordinary English words, right? Right. Like the current Richard Cordray is not available to run the CFPB. Why is he not available? Because he's resigned.

[0:33:14] So so then you would say, OK, well, now where are we? Right. The Dodd -Frank says the deputy director becomes the acting director. That seems to fall within the exception to exclusivity that was set up in the Federal Vacancies Reform Act. So why

[0:33:33] didn't English win? And the answer is that it hinges on that Section 3347, when it says that it is no longer the exclusive remedy, whether it remains a remedy. And the position that the government has taken is when you have specification

[0:33:53] by statute that some other authority is to step in and become acting director, then that becomes an option for the president that he can choose from among. So the president could choose to allow the deputy director to become the acting director, or he could choose to exercise the positions under to exercise his authority under the FVRA and appoint somebody else. The fact that it's no longer exclusive just means that both statutes are operating at the same time. And there's one case that

[0:34:31] supports that argument. It's a case called Swan v. Clinton, and it had to do with members of the board of the National Credit Union administration and

[0:34:44] whether they could be filled under the Vacancies Reform Act. And the court said yes. So, okay, so that's the argument. English has a response to that as well. And English has, she actually has two, I think, pretty good responses that are at the end of this chain.

0:35:04 Andrew: And the first response is that when you go back, and I should take a

[0:35:10] step back and say, part of why I wanted to do that, I mean, A, it's important, but B, this is an example of an actual sort of difficult case in the law, right? Right? Where all of a sudden it looks like there are two laws that are operating simultaneously, and there's not a lot of case law. There's only one case that's sort of relevant to the issue. So the question becomes, how do you resolve the inconsistency, right? Do both laws operate at the same time, or does the Dodd-Frank law supersede, right? And so, you know, so one of the arguments that falls in the background that I'm not going to go into because it's pretty straightforward is Dodd-Frank came later, right? Later acts of Congress, more specific

[0:35:50] acts of Congress are presumed to supersede earlier and less specific ones, right? So that's one argument, and you give that sort of whatever weight you would give it. But the other thing you would really try and do if you're a court, if you're the lawyers arguing before the court, is dig into what did Congress intend? When it established the CFPB. Right. Did Congress express anything that would tell us whether they

[0:36:18] intended the acting director position to be filled by the president or to to succeed automatically by operation of 12 U.S.C. 5491, and the answer is, uh, there are two things in the legislative

[0:36:36] history of Dodd-Frank, uh, that give us some clue that Congress intended for the deputy director to advance to become acting

[0:36:48] director without the president being able to choose not to let that happen. Really? Okay. Yeah. And here are the two things. Okay, uh, and, and I'm gonna read, because it's a citation from, from legislative history, I'm going to read directly from the TRO memorandum that was filed by Ms. English. First, the early version of Dodd-Frank that passed the House of Representatives in December 2009 did not provide for a deputy director of the CFPB. Instead, it explicitly stated that when the director's office became vacant, a temporary replacement

[0:37:19] had to be appointed in the manner provided by the FVRA. But the Senate bill, introduced and passed months later issued this choice instead, opting for what would become the present statutory language, right, that I just read, 12 U.S.C. 5491. This change from using the FVRA to providing a different mechanism reflects a considered decision that the FVRA should not govern succession in the event of a vacancy in the director position. That

[0:37:44] seems like a pretty good argument. Interesting, yeah. Yeah, it says, look, Congress thought about it and they initially we're going to use the FVRA to govern how acting director would be appointed. And then they said, no, we're going to take that out and we're going to specify that the deputy director becomes the acting director. And then it dovetails with the second argument, which is, and you've probably seen reference to this in some of the news articles regarding the story, the overall statutory scheme of Dodd-Frank, which, quote, established an independent bureau and created mechanisms to to protect that independence. That is quoting from 12 U.S.C. 5491a. In establishing the Bureau, Congress determined that it needed to be an independent regulator insulated from direct presidential management and control to remain a vigilant guardian of consumers' interests.

Accordingly, Congress structured the Bureau to enhance its independence, placing it within the already independent Federal Reserve System, giving it an independent funding reserve, and protecting its director from removal except for good cause. Yet, if the President can appoint his own chosen successor under the FVRA, and again, I'm reading from the brief, it would mean that the CFPB could be headed potentially for many months by an acting director handpicked by the president without the check of senate confirmation. So the the the the brief concludes, in some, the president's interpretation of the relationship between the FVRA and Dodd-Frank is contrary to the latter's text, legislative history, structure, and purpose.

0:39:11 Andrew: I think that, again, obviously I'm, I'm sympathetic, political biases. I think that's a pretty good argument. And the only response, I should say that is in the memoranda, and I will attach the memoranda, they are well-written legal memoranda. They're not crazy, but ultimately their response to the legislative history is, well, you know, the CFPB changed a fair amount from that initial proposal in the House of Representatives. So, so, you know, we don't think of that as particularly

[0:39:44] dispositive.

0:39:46 Andrew: Again, in my view, that's not a great counter argument, right? Like you've got to go with the evidence that you have. And the evidence that you have is that earlier drafts of the bill said it would be pursuant to the FVRA. And the current draft of the bill says that it isn't and also says has multiple provisions that

[0:40:04] emphasize uh the independence of the bureau from the executive agency and of course that's what this is all about, right? Like let's go back to the beginning, it's about installing somebody in to dismantle

[0:40:17] the functions of the bureau. Um, and so I think on balance they, they probably have the better side of the argument, but, but also, and again, this is why we talked about judge Kelly, I think, sorry, I think that uh, that English has the better side of the the argument. Um,

[0:40:34] but again, uh, the reason that I wanted to talk about, about judge Kelly is that I do not think we can attribute to judge Kelly necessarily, you know, partisanship or malice here. Um, remember

[0:40:46] that the standard, you know, you know, you know, our injunctive relief standard, and, and yeah, go, go ahead. I just was saying likelihood of success on the merits, and then some other crap. Yeah, right, right, and here, right, the real question is likelihood of success in the, I mean, obviously she's got irreparable harm, right?

0:41:04 Andrew: Like this, you know, you've got Mulvaney running the the CFPB now, so uh, that is irreparable harm. The the balance, I think, also, you know, sort of very clearly uh sways in her direction. The question is,

[0:41:17] does she show a likelihood of success on the merits, and I can see a judge saying that this is, you know, we're talking about how to interpret corporate deleted provisions from the 2009 House draft of Dodd-Frank. And we're talking about, you know, is a vacancy equivalent to an absence? We're talking about sort of all of these issues that are not 100% clear. So I can't say that there's a likelihood of success on the merits. That's not to say, remember, you know,

[0:41:49] it only works one way, right? If you have failed to demonstrate a likelihood of success on the merits, you may still, but once you have demonstrated a likelihood of success on the merit, you're not, you know, the other side is, is not going to be able to win on their merit. Today's episode is brought to you by Mack Weldon. As I said, you can go to Mack Weldon, M-A-C-K-W-E-L-D-O-N.com and get 20% off using promo

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[0:42:38] Mack Weldon sweatshirt. I also got some socks. Their socks are super high tech, as is all of their clothing.

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[0:43:47] check it out. Mack Weldon dot com. So I go through all of that because I think there's going to be an appeal. It's going to be a

0:43:53 Andrew: Race against the clock. It may be moot. Ms. English may give up, but I don't think she will. And, you know, in the Senate may act quickly, although I don't think it will, but it's not... You know, so,

0:44:06 Thomas: Yeah, it just comes down to that that interim period before he could just get Mulvaney approved

[0:44:12] anyway. Right. Right. But it is fair to point out, as the memo points out, that you might accept somebody for one office which requires the advice and

0:44:24 Andrew: Consent of the Senate, but not accept them in another. Right. I mean, let's go back to the Dennis Kucinich example. Right. Like he's been a long standing mayor of Cleveland. He was a longstanding, you know, member of Congress. You might accept appointing Dennis Kucinich to head some executive agency. You wouldn't

[0:44:42] accept him as secretary of defense. Right. Because he's a pacifist.

0:44:47 Andrew: So, you know, the the idea and I want to use an example on our side because, you know, I want to be as I want us to evaluate it as objectively as possible. The FVRA says, well, you know, it's just a temporary position. So if somebody's been approved by the Senate once, they're probably good. And at least they have a gatekeeping function of keeping, you know, complete charlatans, frauds and crooks out of the executive branch. I would say that the Trump administration has probably cast serious doubt on that going forward. And I suspect that you will see, you know, the next our

[0:45:24] next Democratic president, Elizabeth Warren, will probably have on her lengthy agenda amendments to the federal vacancies reform act. Yeah, whoever's the next president is going to come in with a long list of, okay, here's what we need to fix

0:45:42 Thomas: In case that happens again.

0:45:45 Andrew: It is. I mean, and this is, you know, things are broken that you did not expect to be broken.

[0:45:52] Yeah, you didn't expect to need a bunch of child-proofing on the president. Ah, no, that's exactly right. On the president. But it turns out we need to put some of those, some stuff I'm probably gonna have to do in in a year or two here is

0:46:04 Thomas: Put Put some of those things in the in the sockets and in the White House, you know, so, yeah, yeah, no one sticks a fork in them. Yeah, put some little soft edges on some of the, uh, some of the cabinetry, some of the, some

[0:46:16] of the furniture, stuff like that you didn't know legally you needed. The thing, the thing we did that, um, I

0:46:22 Andrew: Was locked down the toilets, which was great fun when you had, uh, guests over and you had to teach them, uh, okay, you know, where's the powder, it's off there, but you gotta, you know, hold in two buttons in order to to lift the lid. But, um, I was terrified.

[0:46:38] I read a story about a child that, uh, went face first into the toilet and drowned. So, oh, man, you know, terrible. All of this is, all of this is ahead of you, Thomas. You won't be, uh, yeah, child proofing, we've got the entire house, uh, high-tech California low-flow toilets that I don't even think a person could drown

0:46:57 Thomas: So that solves that issue for me. But anyway. Anyway, back to Trump. Yeah, there's all these guardrails that we now know we need. But okay, interesting. So there, I thought this was going to be open and shut, but it sounds like it's not so much that, but they're sort of going with, the judge is sort of going with Mulvaney for some complex reasons, allowing him to step in. And do you, but I mean, do you have a prediction? Or are you thinking, will it be enough of an issue that it'll even be pursued?

[0:47:28] Or, yeah, I, I mean, I think they are going to run out the clock, um, and and and, uh, I mean, that would be my pessimistic prediction, that it'll just be tied up in the courts long enough to where, they he appoints somebody anyway. That's right, points Mulvaney anyway, I guess. Right, right. And, and, you know, look, there's, you know, there's a fight to be mounted over Mulvaney, uh, but there were fights to be mounted over Betsy DeVos too,

0:47:53 Andrew: So, you know, that, that's, you know, you know, where those, you covered that in, uh, in exquisite detail on

[0:47:59] On Serious Inquiries Only. Yeah, but side note, someone who, I again, I'm not a huge fan of Tillerson, but someone

0:48:06 Thomas: Who actually had some sort of credentials in terms of leadership and international experience. And Rex Tillerson, he's out. He's going to be out. Latest news I'm seeing. But someone like Betsy DeVos, still

0:48:18 Andrew: In. And again, it's a deliberate, one-sided strategy to appoint people to executive agencies to dismantle government functions that they don't like. And there is every reason to be angry about. But from the perspective of what can we do, there was never going to be a position that allowed Leandra English to remain at CFPB through to 2020. That was never going to happen. The question was keeping Mulvaney out for maybe indefinitely, but certainly for at least a couple of months. And, you know, we've lost the opportunity to do that right now. There may be, you know, an interesting ruling from the D.C. Circuit. The D.C. Circuit may also uphold the denial when this court issues the preliminary, the denial of the preliminary injunction. Because again, the standards are the same. And I should just add, procedurally, English's team chose to pursue only

[0:49:20] the entry of a TRO at first. And the reason for that is because they wanted to be heard immediately, right? Like there was, that was already an announced appointment. And so they wanted to get an immediate ruling. Ruling the next step is still the, the, the complaint seeks a preliminary injunction, which lasts longer than the TRO, and a declaration of rights. That's the adjudication on the merits. The next step is going to be the ruling on the preliminary injunction, it's the same standard, so the judge

[0:49:51] is going to rule the same way. That, you know, there's some possibility that, you know, you you write a better brief, you put But it's not going to happen that he's going to rule the same way. Once that is issued, even though that's interlocutory, even though that doesn't dispose of the whole case with finality, that denial of the preliminary injunction becomes immediately appealable and will go up to the U.S. Court of Appeals for the D.C. Circuit. So again, you have more opportunities at every stage of this. You have opportunities for the

[0:50:23] government to run out the clock. And that's why, that's ultimately where I predict that we're going to All right. Well, you're

0:50:30 Thomas: Probably right, unfortunately. But, but we. Yeah, I guess there's not much we can do once they get, once they get Mulvaney in there with the advice and consent of Congress there. There's nothing we can do until 2020. Right. I mean, even if we take back hypothetically the House and the Senate, it's not as though they can get rid of a director. Can they? Yeah. No, the

0:50:53 Andrew: Answer to that is under the statute, the president cannot remove the director except for, quote, "inefficiency, neglect of duty or malfeasance in office." Otherwise, you

[0:51:05] serve a full five year term. Oh, I see. So even 2020, not really going to happen.

[0:51:37] Yeah, the CFPB from the president, and this is, you know, directly subverting that. So, so we, but so we may be screwed for like five years. Yeah, yeah, and again, this is this is the other sort of pushback when you, when you talk about, uh, and why it's important to know that this case will be appealed, uh, because you have to keep pressure on the president to at least nominate a a permanent, uh, director and start that five-year clock.

[0:52:09] Right, yeah, the worst case scenario would be to give up, go away, let Mulvaney run it for two years, and then have, you know, Trump appoint, at, you know, at the end of, uh, 2019, or, you know, I guess if, if the Democrats, uh, miraculously take back the Senate in the lame duck session at the end of 2018, appoint somebody else, uh, and not start the clock until 2018, meaning you don't get to appoint a new, a new director till 2023, almost entirely at the end of our next president Elizabeth Warren's first term. So yeah, so that, that is so, great

[0:52:46] question. And it is another reason why elections have consequences, folks. Yeah, yeah, yeah.

0:52:52 Thomas: All right, well, thanks for breaking that down, um, depressing as always, uh, but that's

[0:52:59] That's some, most of the time this show in the Trump era. So, he who questions training only trains himself at asking questions.

0:53:09 Thomas: What? Okay, Matthew from Nova Scotia asks: a driver is going over, I love these hypotheticals,

[0:53:16] those are the best, when people, people think of these really specific hypotheticals. A driver is going over the speed limit. An officer is standing on the side of the road with a radar gun to catch speeders. The officer registers the excessive speed of our hapless driver. Well, why is he hapless? I I feel like he just knows what he's doing. Hapless driver, and calls the marked unit ahead. The driver, however, noted the officer on the side of the road and was able to slow down to the posted speed limit before the marked unit pulled out. Regardless, the driver receives a ticket for speeding based on the speed reported by the officer back up the road. Would the driver be able to successfully argue that the officer who issued the ticket did not have any evidence to base it upon? So he's just saying, like, one cop tells another cop to pull this guy over? That doesn't seem like that heart of a legal problem

[0:54:06] But am I, am I missing something there? No, I was, I was thinking, again, because it's the hypothetical, I was hoping that

0:54:12 Andrew: Uh, that would trick you into answering the question, because this is the form of questions you usually answer.

[0:54:18] Oh, yeah, um, you know, you were, are we in Kentucky, or are we, at what state are we, yeah, well, Matthew is from Nova Scotia, so I'm, but I'm assuming that's a made-up place. Yeah, I'm assuming he was maybe vacationing in the United, I mean, that his friend was vacationing in the United States, and and this happened to him. But no, your, your instinct there is a hundred percent correct, the, the first

[0:54:42] police officer has valid direct eyewitness evidence of you violating. Well, it's it's indirect via the radar gun. Yeah, is he trying to make it into be like a chain

0:54:55 Thomas: Of custody problem, like, like, how do you know I'm the same person, I might have driven through a teleporter

[0:55:01] or something, I don't know, I guess, but so long as the

0:55:08 Andrew: identification—I mean, that would be subject to sort of ordinary impeachment, but you would bring in—maybe he was thinking about it like a hearsay question, right? Because you could just

[0:55:21] bring in the first officer, too. Right. Like, you know, you would say, uh, the, the, the first officer would come in and say, yeah, no, I was manning the radar gun and I clocked, we'll call him Schmatthew. Uh, I clocked Schmatthew at, uh, you know, 73 and a 55. And then I radioed ahead to my buddy, uh, you know, Officer Knuckles who, who pulled him over. There's you know there's... there's absolutely nothing wrong with that. Anybody who's told you that, uh, you know, you've got to be, that there must be one officer who observes and pulls you over, is feeding you possibly

[0:55:59] some sovereign citizen nonsense, which is a, uh, a nice excellent teaser for

0:56:05 Thomas: This month's Law'd Awful Movies, number 13, unlucky 13, unlucky for us. Uh, we, we had to watch a, a sovereign citizen, what would you call it, video

[0:56:19] video manifesto. Uh, it was, it was amazing. In my brain permanently going to witness, Andrew, like, we're, we're just going to record Andrew's brain oozing out of his ears as we ask him, you know, like, is the U.S. a corporation? And is just all this stuff. It's going to be fun. So check that out. Patreon.com/law. But also, I mean, listeners to Comedy Shoeshine will know that I recently got a speeding ticket. I get one every like three or four years, just kind of on the dot, you know, just in a really regular time. Yeah, I'm just, because, because the freeways out here, they're all like speed limit 70, so they're, they're pretty fast, they're straight, they're not safe, there's

0:56:25 Andrew: Throttled part of my spine in an effort to, uh, to escape from my body. We're really just

0:57:12 Thomas: A thousand lanes and everyone just drives 80 on them just at all times, and uh, so I drive, I drive 80, and sorry, most people drive 80 and then like 20 of the people drive 90, so I got, I got pulled over for going 80 in a 70, and uh, as I, I was doing so, I mean, people were passing me like it wasn't, you know, as I got back on the road I was like, all right, fine, I'll go 75, because I'm not going 70, I'm not doing it. Lawyer representation, Andrew Torrez, is that cool to say, am I in any trouble, I'm never going the speed limit ever, maybe that means I'm

[0:57:46] going under it, okay, I'm fine, that's right, there you go, now that, that gives you sufficient ambiguity that, uh, when this is played at trial you can say no. That's my question, I was, was wondering if for a, for an opening argument segment, if I should just go try to fight this ticket just to, just to observe like what happens when you do, I wouldn't really have an argument, I would just get, like, what would I say, what should I say, like I would just go in and be

[0:58:10] like, um, I, yeah, I went, I'm guilty. Have you never contested a speeding ticket before? No, I've never contested. Oh, yeah, you should, you should do that. Like, we should absolutely, I mean

0:58:23 Andrew: All you have to lose is, you know, your, your time, so if you haven't paid it already, let's, let's talk about

[0:58:29] and see if we can't record forever as an OA special. Well, I was gonna, I was gonna ask you, yeah, can I, can I record like just pop, pop a little recorder in there, and I will need to look to see the, the California laws, but but California, it should be, unless there's a specific procedure, right, traffic court in California should be, you know, covered by the sunshine law, so they should be open to the public, which, uh, which means

[0:58:53] that you can, uh, presumptively record the proceedings. Wow, the sunshine law sounds nice. Yeah, um, so, uh, what are the risks of, like, if I make just a batshit slash

0:59:07 Thomas: Really annoying argument, can I, can I get, is, can anything bad happen to me, can I be found in contempt

[0:59:13] of court or something? Well, you can always be found in contempt of court, but, uh, as long as you don't, I have nothing but contempt for this. Yeah, as long as you don't go in with, you know, a UCC

0:59:25 Andrew: One articles of presentment, and say that you're there to, uh, settle the debt against your straw man, I

[0:59:31] the worst that's gonna happen is you get the ticket that you started with. Yeah, so, well, now I'm wondering if maybe I should just go in and do every intro quote that we've, you've ever had, ladies and gentlemen of the jury, I'm a caveman, I should go and dress, this caveman, this would be, this would be fantastic, that you've decided to use your speeding ticket as, is there time, is there time for us to turn this into a Patreon fundraiser? Oh, man, because, uh, I, I think maybe we could, I feel like the bailiff will be escorting me out. Well, you know, everyone suffers for

[1:00:11] their art.

1:00:14 Thomas: All right. Well, okay. We'll keep an eye on that. Yeah, no, pretty easy question. Sorry. Sorry, Schmathlew. That's just a no brainer, I guess. But come up with a new hypothetical. Let's involve, and let's involve like a shape-shifting alien. I don't know. Let's just spice it up. I mean, I've seen some hypotheticals that are more, you know, they've

[1:00:33] got more twists and turns than that one.

1:00:36 Andrew: Well, you know, speaking of, we've got that coming up, but first we have to thank our

[1:00:42] Hall of Fame patrons.

1:00:44 Thomas: Oh, absolutely. Yeah, it's our favorite, co-favorite time of the week, and that is thanking our Hall

[1:00:51] of Fame patrons. Yeah, so thank you to our Hall of Fame patrons. These are the best of the best, the people who

1:00:57 Andrew: Keep this show going. If you'd like to become a Hall of Fame patron or patron of any sort, go on over to patreon.com

[1:01:03] slash law, and you can be a part of all of this fun, and when I say all of this fun, here's what I mean. Thank you to This Week In News With Kevin And Benedict, thank you to Sakashite Fukasumi shaves all and only those men who won't shave themselves. Uh, way to get a logic puzzle in in your one line shout out. Thanks to Heather Loveridge, Aaron Graddy, Adam Lenda, Soggy Pants, Netsec Dan, Sam Donow, Eli Bosnick, Teresa Gomez, Raymondspecilties.com Custom Survey Gear. Help, poor emailing is destroying my last few frayed ends of sanity. Thanks to Hunter Ash, Ian and Allie, Dave, co-founder of Florida's chapter of Thomas's Goon Squad,

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[1:02:48] so apparently we will say preposterous things if you give us small amounts of money, good to know, up Violet Page Hall, if Michael Robs is our best patron, then John Funk is our sexiest, Frederick Alstromer, Cody Bond, Eric Johnson, stop breaking the law, asshole

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[1:03:17] Upstairs Medical College, Add Bigly Pardon, Add Bigly pardoning turkeys to Trump's tremendous list of accomplishments, Zabby and Conrad Michaels, thank you guys so much, making the show happen, and uh, always entertaining with the patron thanks names, so that this is a good time, guys, patreon.com/law, if you want to check out our bonus, oh, when are

[1:03:42] we doing a patron, Patron Q&A, Andrew Torrez? Well, Thomas, we are going to do our patron-only

1:03:48 Andrew: Q&A next Tuesday, December the 5th at 7 p.m. Eastern Time, 4 p.m. Pacific. You can figure out your crazy time if you're not in one of those two time zones and uh those are always a lot of fun. I'm really looking forward to it, it'll be November's Q&A. I know it's coming in December, but you know, we have the holiday and everything else. So it'll be next Tuesday, December the 5th at

[1:04:13] 7 p.m. Eastern Standard Time. And be there or be square, damn it. We're also going to have, before then, we will have released our Lawed Awful Movies 13 featuring Sovereign Citizens. So

[1:04:25] all kinds of great goodies coming. Really good time to be a patron if you haven't been a patron yet. Just saying. Absolutely. Oh, no associate of this firm has ever failed the bar exam. No kidding. All

1:04:38 Thomas: Right. And now it is time for the easy bar exam. Just it's it's really just going through the motions at this point. So, Andrew, what easy question do I have to tackle this time? All right. We

1:04:51 Andrew: Have a smoking question. So again, uh, no, no comment on perhaps the,

[1:04:57] uh, uh, the, uh, age of these questions here. So, um, Congress passed a law imposing a 50% excise tack on each pack of cigarettes manufactured for sale in the United States. It's apparently this bar exam question takes place in an alternate universe where Congress passes taxes. An amendment was successfully added to the original bill requiring that all proceeds from the tax be used for anti-smoking educational programs in audio, video and print media and elsewhere. The amendment also provided for the establishment of federal stop smoking clinics funded through the excise tax. The various tobacco companies were required to pay the tax directly to the federal government. Puffham Tobacco Company filed suit in the appropriate federal court, praying that the tax be struck down as unconstitutional.

[1:05:47] So the court is likely to rule, A, the tax is constitutional because the tax is severable from its purpose. B, the tax is constitutional because the broad provisions of the general welfare clause would condone it. C, the tax is unconstitutional because it does not provide equal time for the tobacco companies to present their side of the smoking controversy. Or D, the tax is unconstitutional because it abridges the First Amendment rights of

[1:06:16] tobacco manufacturers by forcing them to pay for messages they may not agree with. Wow, well, I feel like this kind of exists already in some way. I mean, this kind of happens, but I

1:06:28 Thomas: Guess I've never thought deeply enough into it or looked deeply enough into it to where I didn't know there was some complication, like if the tax money can't directly be used or if it has to go through some government, you know, circuitous route of funding for these things. I didn't know that. Let's see. Well, wow, this is a tough one. It just seems like this isn't an issue, but apparently it must be. Otherwise, we wouldn't be getting a bar question on it.

Um, I, I think I'm gonna go ahead and just get this one wrong. I think it's been, yeah, I've been getting too many right, so I'm gonna go ahead and just, I'll play dumb here and just pretend I don't know exactly what this is. So I'm gonna eliminate, I'm going to eliminate C for sure. The tax is unconstitutional because it does not provide equal time for the tobacco companies to present their side of the smoking controversy. That would be funny, I, that would be funny if it was like the government also had to do ads that were like smoking is great, kind of like, get both sides in there. But maybe this will be one of the crazy answers that's right ones. I hope not. So I'm eliminating C and I'll eliminate... Oh man, this is really hard. I'm going to once again... These ones have been weird. They haven't been as easy to break down for me, but I've gotten two or three of them right, but maybe it's all luck. I'm going to eliminate D. The tax is unconstitutional because it abridges the First Amendment rights of

1:07:49 Thomas: Tobacco manufacturers by forcing them to pay for messages they may not agree with. But now I'm wondering if I'm playing into this question too much, because maybe there is some weird thing where there has to be, the funding can't be direct. Because I imagine what it's trying to prevent is some tyrannical situation where you just levy a tax because you don't like someone, and then you've used the money to, like, screw them over. Like, I guess there's probably some protection against that. But maybe I'm being clouded by my living in California, where we just imprison smokers and they're eventually executed. So I, man, I'm going to go. Go, yeah, screw it. I'm going to eliminate C and D, and I'm going to go with B, the tax is constitutional because the broad provisions of the general welfare clause would condone it. I don't know. This one is hard. This one wins either way. I don't think I got this one right. It's too confusing. I think I'm too clouded by my biases. Maybe I'll find out, is actually like answer C or something. I can't wait. So

[1:08:58] I'm going to go with B, but this will, you know, I'm giving the little guy out there an opportunity, so listeners, you can look, uh, brilliant and make me look stupid this week, uh, because I don't know the answer to this one, so I'll go with B. Well, and

1:09:10 Andrew: Plus that gives more incentive for people to, uh, bet against the favorite, right? This is like, you know, yeah, it was getting, Vegas keeps, you know, it was a couple years ago when the Patriots went 17 and 0 and uh the

[1:09:23] and yeah that was a couple of 10 years ago. Yeah, yeah, they had to increase the the points on the spread to get people to bet the other side until it was like the Patriots giving 45 against the Jets or whatever. Um, and so

[1:09:35] we can't have you on, too. Yeah, this is just, we're changing it up, we want to give listeners a chance to get the answer right

1:09:41 Thomas: And embarrass me. And I felt bad, Andrew did that, Andrew was wrong segment, you know, I just kind of feeling bad, so

[1:09:47] just, so, as always, if you would like to play along with Thomas Takes the Bar Exam, you know how to do that, uh, simply retweet

1:09:54 Andrew: Or share out our Twitter, Facebook posts announcing this episode, include there in the hashtag TTTBE your answer, your reasons therefore, and we will pick a winner and shower

[1:10:06] that winner with never-ending fame and fortune. Fame and fortune not guaranteed. All right, and uh

1:10:12 Thomas: Yep, thanks for playing. Um, that was, that one is confusing and weird, and I don't know the answer because I'm not a constitutional lawyer, so, uh, looking forward to seeing the answer through that. And thanks so much for listening. Definitely check out

[1:10:25] all that Patreon content, and we will see you on Tuesday. Stop breaking the law, asshole!

[1:10:35] This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five-star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time.

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