OA408: What Happens When The CARES Act Expires Tomorrow?

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 408. I'm Thomas Smith. That's Andrew Torrez, sender of fine McCallans scotches. How you doing, Andrew?

0:01:27 Andrew: I am doing fantastic, Thomas. Happy birthday. How are you doing?

0:01:31 Thomas: Well, it's my birthday, so not great, but yeah.

0:01:35 Andrew: That's how you know you're an adult. It's my birthday, so not great. Come on.

0:01:38 Thomas: The best thing about what we do is if you ever feel like forgetting your birthday, a bunch of Australians who live in a different dimension will wish you a happy birthday like four days before your birthday. Ah, it's your birthday! You know, because for them, whenever the heck the time is in Australia it comes up for them and you start getting message, I'm like, what, my, what the, so that's always an interesting thing, but you also get fine McCallans sent to you from co-hosts, so thank you so much, Andrew, I really appreciate it. Oh,

0:02:07 Andrew: You deserve it, man. So will...

0:02:09 Thomas: I just had an idea, we can combine two things, we need to announce that we are doing the Q&A that we do every month on Saturday, that's August 1st Saturday, that's going to be at 4:30 p.m. my time, 7:30 p.m. everybody else in the world's time apparently, Eastern time, and uh, maybe I can crack open that scotch and have a nice, I mean, let's be real, I will have already done that before then, but I will reopen the bottle and try some of that on the live Q&A video. Yep.

0:02:24 Andrew: Nice.

0:02:39 Andrew: And as as always on the Q&A, patrons get to suggest and upvote the questions that get asked. So take a look for that thread in your Patreon feed.

0:02:49 Thomas: Absolutely, heart the ones you want to hear asked, and uh, ask your own and see, see if we get to it. We do our best. Andrew is notoriously bad at lightning rounds, but we try it. We try.

0:03:01 Thomas: Okay, a couple other announcements before we get to today's action-packed episode because, Andrew was kind enough to come on Serious Inquiries Only. I wanted to do a show where we kind of throw out all the wild theories of how Trump might just try to stay in office kind of thing, and it's something we've touched on here. We've covered a little bit, but I thought it would be a good opportunity to really try to throw some curveballs at Andrew and just get the wild theories out there. And either, Andrew would talk us off a ledge or I would talk Andrew onto a ledge, as I say in the episode. And so that's over on SIO. So we're going to do a thing where we'll, we'll put that in the patron feed for this show. So if you're a patron, we'll pop it in your feed. If not, you'll have to hop over to SIO, Serious Inquiries Only.

0:03:48 Thomas: Just search that on any podcast-y thingy and check that out. It'll be the next couple episodes. We'll be Andrew.

0:03:54 Andrew: Yeah, that was a lot of fun, um, as, as you're going to hear in the a segment, the one question we just sort of dismissed is of course, you know, breaking news as we record today, uh, but, but now, like, we really dive into, I think, some of the, um, more really, I join you on the ledge a little bit, right, like, it's, it's, I'm still optimist, but I don't want to give too much away, yeah.

0:04:05 Thomas: Yeah.

0:04:16 Thomas: Hashtag no ledge spoilers. We'll see.

0:04:18 Andrew: No ledge spoilers, yeah, but that was, that was a lot of fun, um, and uh, it's always great to go back to the mothership. So, so everyone should check that out.

0:04:26 Thomas: And also another note, we like to try to throw lots of stuff in the patron feed for patrons, and one of those things is, uh, talk that Andrew did, you want to give people a little, little hint of what that is? I

0:04:36 Andrew: Yeah. Thanks to our friend, Michael Marshall. I was invited by Skeptics in the Pub online to deliver a lecture. And this is, if you heard my 100 seconds talk that I gave to Houston Oasis, this is a greatly expanded version of that talk in which I talk about killer robots and how they try and trick us. It's I I'm I mean, you know, I'm a little biased, but yeah, shockingly, it's a it's a new subfield.

0:05:04 Thomas: Didn't know you picked up a specialty in killer robot law, yeah. I mean, given that you're a Transformers fan, I'm sure it's what, you what you got into law to do, is there I know, in X-Men, there's Frazier plays the X-man lawyer, you know, if I've, I know, my X-Men, which I don't, I only saw them, is there a Transformer's version of that, like, like, is there a Transformer attorney at law who's also a spaceship or something or whatever they are?

0:05:16 Andrew: It's it's the case I was born to litigate, baby. Yeah, yeah. Beast. Yeah. Yeah. So, so there is a fantastic character, uh, Chief Judge Tyrest.

0:05:43 Thomas: Why did I ask this?

0:05:44 Andrew: Yeah. And what makes him great is that he's insane, and the way in which he, uh, alleviated the like build up of it was basically like by, um, trepanning himself, right? Like by drilling holes, uh, in, in throughout his body, uh, as a as a tick, it's a fantastic storyline, it's so great though.

0:06:03 Thomas: Still more qualified than most of Trump's appointees to the court. Shouldn't have asked. We got a lot of news to get to. That's on me, listeners. Sorry about that. My fault. And also, quick teaser. You've got another talk coming soon to a patron feed near you. It was an American Atheist panel that you did. So that's another thing to look forward to.

0:06:15 Andrew: Yeah.

0:06:25 Clip: Ask the president of Finland a question, please.

0:06:30 Thomas: Okay, so first things first. Something we meant to actually kind of address in the SIO, but we didn't even bother because it's one of those clear as Kushner things, things, uh, Trump today in an effort to distract from what is always horrible news, whether it's the fact that the economy is shrank by a massive amount, I think it's probably mainly that, or the fact that Herman Cain died from going to his, uh, rally and died of coronavirus, a one of those things, whatever it is, he's trying to distract from, he tweets out that he, he's thinking about delaying the election. Of course that means a, a bunch of people have to do a whole bunch of, you work and talking about it, whatever, and falling for the distraction. But it's also hard, as we've faced so many times in this last four years, because it is a real thing. Like, it's one.

0:07:15 Thomas: It's hard to say, oh, he's just being, you know, he's just doing a distraction, when he threatens to be in a fascist dictator kind of thing. Like it's hard to just ignore it, you know, but anyway, fortunately for everybody, we've already covered this in Opening Arguments 370, so, um, no, Trump can't delay the election. Is there anything else you want to say on that while we're here? Yeah.

0:07:37 Andrew: Yeah, I want to quickly summarize because I've been sort of putting out these fires on social media, right? Because as you point out, when we say, no, Trump can't do something, people will come back and say, right, just like he couldn't hire Jared Kushner, right. Right. And and and look, it's a good argument, except that the you have to look at what are what's the default condition if Trump doesn't act. Right. So the default conditions, if if Trump, not if Trump does that, but, you know, if Trump acts in violation of the law. Right. And the default position with respect to the Nepotism Act was, well, then we'll impeach him, which obviously that didn't happen. The default condition with respect to the election is the 20th Amendment to the Constitution. Right. And the 20TH Amendment says the term of the president, the terms of the President and Vice President shall end at noon on the 20 th day of January. Right? Right. So all you talk about in terms of shenanigans, right, like that, the Constitution is as clear as Kushner that the president's term is over on January 20th.

0:07:53 Thomas: Yeah, yeah, then

0:08:53 Andrew: So there's no like the question of what if he postpones the election? Doesn't that mean he stays in office? No, it doesn't. Right. You could postpone the election. Right, you wrangle that out. And then you look to that. That was I just read you. Section one of the 20th Amendment says the term ends. And then Section three says, well, what happens if you postpone the election? And the answer is if at the time fixed for the beginning of the term of the president. Right. That's the next day. The president elect shall have died. Then the vice president elects shall become president. OK, if the president shall not have been chosen before the time fixed or if the president elect shall have failed to qualify, then the vice president elect shall act as president. OK, but if there's no vice president select, right, then Congress may by law. Yeah, it does. It goes to Thomas. A little known provision in the Judiciary Act of 1789. Weird how how prescient our founding fathers were.

0:09:41 Thomas: It's me oh no, yeah, yeah, those Illuminati really thought it out back then, sorry.

0:09:52 Andrew: Yeah. No, what's provided for under the 20th Amendment is that you look to the Presidential Succession Act, right? And that says the next person in line, no president, no vice president, the next president in line speaker of the house, Nancy Pelosi. So unlike all of the other scenarios, this is not a no risk provision, right, that this becomes a major risk If you try and postpone the election, the backstop is, OK, you postpone the election. You're not going to stop congressional elections. The Democrats are going to control the House of Representatives and you're going to wind up with even this Supreme Court, right? Like John Roberts will not be it will not intervene.

0:10:38 Andrew: Right. It would shame John Roberts to take plain meaning of the Constitution and twist it in a way that that that couldn't possibly be. You probably, you might, I think you would win 9-0, right? Like, if, if, if I honestly believe that, I think, um, don't want to bank everything on Alito and Thomas, right? Like, so maybe seven, but you're definitely going to get Roberts, you're, you're almost certainly going to get Gorsuch, you will probably Cavanaugh, yeah, so, um, it's yeah, yeah, right, yeah,

0:10:59 Thomas: Gorsuch, and probably Kavanaugh, yeah, I I take your point, I think it's, there are hmm, there are different levels of no, Trump can't do that, you know, like it's not, it's sort of like how there's different, uh, amounts of infinity, not all infinities are equal. It's like, I, I see what you're saying, it's like with the, with Kushner, it's no, Trump can't do that, but then you look at what the teeth of the, the law, or, you know, the, the ability.

0:11:25 Thomas: Yeah. It's not enough. And the justice department is able to just kind of sidestep it or whatever it is, you Know, the one weird trick they did, but with this, it's like, no, there's a, there'S a hard stop. Like there, there, there's just no way around it. And to even delay the election, the first place you'd need a bill, which, uh, I do not think the house is going to.

0:11:14 Andrew: Yeah. Right. And

0:11:44 Thomas: Yeah, don't think that's going to work. Yeah.

0:11:42 Andrew: Would pass the House of Representatives. Yeah. I mean, that's that's also the answer on the presidential succession part. Right. Like, you know, again, we told you in 2018, it was a really, really good thing that the Democrats won back the House. Yeah. So these are all the fact that Democrats control the House will prevent legislation from being passed that will change those operative rules. So you can rest easy. And again, let me be clear about this, right? Like, we have 406 episodes of the show, of which 99% are why Trump is a monster, right, like, we're not saying don't be afraid of Donald Trump.

We're not not saying Donald Trump doesn't have doesn't want to be a fascist dictator, we're not saying he's not going to suppress the vote, we're saying, hey, you can't be afraid of literally everything, literally all the time, like, there's only so much brain space you have, and this is not the one that you want to be devoting the brain space to, right? You, you want to be looking at and going, oh, why are they trying to distract, what are they trying to distract us from, right? Oh yeah, that the, the fact that the economy shrunk by a third, right?

0:11:55 Thomas: No kidding. Even

0:12:52 Andrew: Like that is literally unprecedented, right, like that is three times the Great Depression, right? Like, I mean, you know, that's super bad for a president. And your point on Herman Cain, like, yeah, so that's what we're saying, not, hey, I trust Trump and it's going to be fine. It is, hey. This scheme is not likely to work because of all of the ways in which it is backstopped. And even people around Trump who are evil and trying like, look, if they thought they could make it work, I have no I have No, right. I'm sure they would try it. But I think they're not going to.

0:13:26 Thomas: Yeah. Even McConnell already came out and said like, nah, like I mean this is just a nothing. It's it's a nothing. We've already, also, if you'd like to learn more about it, again, Opening Arguments 370, if you like to learning more about one weird ways that Trump might try to stay in office, check out Serious Inquiries Only, uh, the next two episodes, and there was one question that people have thrown at us that I meant to do in that SIO that I don't think we got to, which I think will just be a quickie, hopefully, which is, uh, what if Trump defunds the postal service and other that way, you know, messes with the mail and voting and all that.

0:13:29 Andrew: Yeah. Yeah, so yeah, Fortunately, the 2020 budget is already passed. So the post office is funded up through 2021. We're fine. We'RE fine. It's good. It'S all it'S all got look like, again, not saying I trust Donald Trump, not Not saying you shouldn't be worried, but, you know, let's calibrate our risk to the things that I really want to be worried about, which is their active efforts to suppress the vote, to delay, to make it harder to count, particularly at the state level. Like all those are real things. So let's let's talk about those.

0:14:35 Thomas: Speaking of real things, I think we have an Andrew was right. Don't we on Flynn just breaking as right before we go to record, it looks like the Flynn thingy will be reheard on bonk. Give us a more technical and a correct way of telling us what that means.

0:14:49 Andrew: That that is correct. So, look, this is 100 percent what I predicted. Did, I want to tell you about the scope of the rehearing, right? So we prepared our opening arguments amicus brief. We filed it before Judge Sullivan in the Flynn case on the expectation that although Michael Flynn had filed a petition for a writ of mandamus to the D.C. Circuit to tell Judge Sullivan he must dismiss the case, my belief, what I was wrong about, was that the D.C. Circuit would say, well, that's stupid because you can't possibly get mandamus in this case. Somehow, the D.C. Circuit panel came out to one the other way. It was an opinion written by Naomi Rao. It Was Terrible.

0:15:39 Andrew: We've talked about this at great length on this show. And so as a result of that, Judge Sullivan, by and through his counsel as a respondent, petitioned the D.C. Circuit to the entire DC Circuit to rehear the case on Bonk. That order came out today. And let me describe quickly how that came to be and what the implications are. First, in order for the DC Circuit to overhear a case on Banqu and vacate the panel opinion, you have to get a majority of of the judges, right? So if you liked Naomi Rao's opinion, you probably voted against rehearing on Bonk. The fact that a majority of judges said, uh, we'd like to revisit that is a pretty strong tell that the D.C.

0:16:32 Andrew: Circuit knows that that panel screwed up the law of mandamus. So that came out today. It vacates the panel opinion. That means Naomi Rao's opinion is no longer good law. It scheduled a rapid oral argument August 11th, so a week and a half from today. That's going to be Tuesday at 9 30 a.m. And yes, I am going to Be on that phone call. The order specifically says the party should be prepared to address whether there are, quote, no other adequate means to attain the relief desired, end of quote. Here's what that means. It means that the D.C. Circuit is thinking about this case as a mandamus case.

0:17:18 Andrew: And the argument is super straightforward. It's one we've made on this show a bunch of times. And it goes like this. You get mandamus when a government official has no discretion to act, right? It says you must transmit the report to the Senate. You don't transmit the rapport to the Senate, I can go to court and I can get a writ of mandamus that says, hey, man, transmit that to the senate, and the court will enforce that. If you have any discretion, then you can't get mandamus. And here, it's super obvious.

0:17:55 Andrew: And do you have an alternate mechanism for obtaining relief, right? It's a separate test, but it overlaps rather nicely. And here in this case, it's just a slam dunk. Is there another adequate means to obtain the relief? Sure there is. And Here's the Story. Judge Sullivan very well could take a look at the record, take a Look at Our Amicus Brief, and decide, yeah, All of ours, right? Yeah, uh, and decide under Rule 48A, um, yeah, in the exercise of this court's discretion, I'm going to grant the government's motion and I'm going to dismiss the case. That is a plausible outcome, and because that's a plausible outcome, you don't get mandamus, right?

0:18:20 Thomas: Yeah. Mine too. Too. Yeah. All of ours.

0:18:39 Thomas: Right.

0:18:39 Andrew: Now, what right what, what you say is, "Hey, Michael Flynn, you're not in prison at the moment, you're free walking around round, and the court hasn't ruled on the Rule 48A motion yet. So why don't you shut up and let the court rule? And if Judge Sullivan denies the 48A Motion, then you can appeal that to the D.C. Circuit. But let's not take away his discretion to determine whether he's going to grant or deny that relief yet. Let's not assume that he will. Let's see what happens." And Judge Sullivan's counsel is going to get up and say, uh, Judge Sullivan hasn't made up his mind yet, um, he might grant the 48A motion, so of course there are other adequate means to obtain relief.

Wait, see what we do if we did if we just, if, if we deny the motion, then appeal, and we get to come back up here and it'll be fully briefed, and he can argue to his heart's content that I applied the you know, that that Judge Sullen applied the wrong standards under 48A, and that's something, by the way, that that this court will be exceptional at doing, because appellate courts are really, really good at applying the law. That's your job. Like, that would, that would be my oral argument. I feel like I know I'm finishing early, but any questions?

0:19:58 Thomas: Well, that that makes sense to me. And what's the next win we're looking for? So it's reheard en banc and then they say what?

0:20:04 Andrew: So it's reheard on Bonk. We are going to refile a version of the amicus brief. You could do the same thing.

0:20:12 Thomas: Yeah, I'll get my secretary to retype, type it up.

0:20:15 Andrew: Tailored to that question, right, that says no other adequate means to attain the relief. And we're going to say, yeah, far, the no party has advanced the argument that we make in our brief that Rule 48A motions don't even apply in this circumstance. And so we're going to fit that argument in the context. We're going to file it as an amicus brief in the DC Circuit. If the DC Circuit en banc decides that it's going to deny, because now what they're hearing is they're Hearing the petition for writ of mandamus again. And if they, as I expect, deny that petition, then it goes back to Judge Sullivan, and that reactivates our amicus brief and the other five or six amicus briefs that were filed.

0:21:05 Thomas: I really hope you're, you know, our real one gets cited here and you know cause it was great. It was really well done.

0:21:06 Andrew: Yeah. Yeah, I well, thank you. I thought I thought yours was excellent, too. So So there we go. And that's what we're waiting for. So August 11th is going going to be oral argument. I would not be surprised, given how rapid that is, I would not be surprise if I mean, you almost never get a ruling from the bench. I don't know that it's ever happened. I'm sure some of our lawyer listeners will chime in if an en banc court has ever ruled on the merits from the bench after oral argument, I doubt it. But you may get that very, very quickly. And assuming that they deny mandamus relief, then it will go back to Judge Sullivan to determine whether, in the exercise of his discretion, he's going to dismiss the case against Michael Flynn under Rule 48.

0:21:14 Thomas: Yeah.

0:22:00 Andrew: And that's what we've been trying to persuade him of all along. Hey, man, don't do that. Or at minimum, hold an evidentiary hearing. Figure out why the government is dismissing this case and whether it's doing so for corrupt reasons, so that's that's what we're looking for.

0:22:15 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:22:24 Thomas: OK, for our main segment, we're going to talk about the Heals Act. And Andrew, I know a lot of people out there keep wondering when or are they if and when they are going to get another check. The great, great tweet from months ago was like, oh, I was really panicked. And then I remembered I got $1,200 three months ago. So everything's OK. OK, the point of which being that Trump and the Republicans have done just about nothing to help people in this catastrophic time. So tell us more about the nothing they're doing.

0:22:59 Andrew: And, and this so, so a couple of things. First, if you see lots of different references. Right. And, you know, kind of even in your intro, we don't fully know what all of the Republican proposals are. Right? This is all still up in the air. Usually I don't cover bills that are in draft form. However, the deadline, right, the Senate is set to recess a week from today on August 7th. And the benefits, the extension of unemployment benefits under the original CARES Act ends today on July 31st. Right. So, so we got to cover this now and talk about the situation.

0:23:47 Andrew: And it really is dire. And if you're sitting there thinking like, OK, well, the Republicans wouldn't be so irresponsible as to just like go, like, I don't know where you've been the last four years. Right. Like like they went home over the weekend last weekend. Right. Like if if their proposals are not accepted, if there's not some kind of daylight, just go home. And these are really, really good reasons for not voting Republican in the fall. Um, so, uh, so

0:23:58 Thomas: Yeah. Yeah. So, look, I think I'm in touch with the people and I know what we need right now to get through this. I think that if we were able to, in deduct a few more meals per year, then that would get us all through this, right? So is that in there? Are we doing that?

0:24:34 Andrew: It depends, right? Like there is, as I've been trying to, to, to piece this out, there is a core proposal, um, that is called the cares act that, uh is backed by Mitch McConnell. That is a $1 trillion bill. And I'm going to go through the provisions That does not have the meal deduction stuff in it, nor does it have an extension, a second round of PPP or anything like that. But there are other separate proposals that are likely to become part of any kind of final bill coming out of the Senate. Right. There have been no votes on this that are being put forward that are going to get incorporated into this omnibus bill. So, yeah, there are a lot of moving parts.

0:25:26 Andrew: But what I want to do is I want to cover kind of the core of what will definitely be in there. And we know that it'll definitely be in there because this is the one that McConnell introduced. Right. It's a Republican bill. I'm going to talk about the arguably good things in it.

0:25:43 Andrew: But, you know, you got to hand it to Republicans. They put the obvious bad stuff as Section 101. It's right up front. What are we doing? And one of the things that they're doing is they are gutting literally the best thing about the CARES Act. So, yeah, that is exactly right. Right. So if we do nothing, the six hundred dollars ends today as this as this on Friday, as you're hearing this episode, their proposal would slash the benefit from for those who are unemployed. And so in that situation, if you are unemployed, you are currently receiving an extra $600 per week on top of your benefits. This bill would reduce that to $200 for the next eight weeks for August and September, and then would cut off, have a final one-time payment in October. October, that one-time payment would be, how much do you think that the one-etime payment would be, right?

0:26:02 Thomas: The $600, yeah, $227, oh,

0:26:54 Andrew: Yeah. It could be, it is a maximum. This is section 101 of the law. It is a minimum of $500.

0:27:03 Thomas: That ought to do it, right, yeah.

0:27:03 Andrew: Now, or, right, but again, it's the lower number of of $500 or 70% of your wages, of your average weekly wages, or your base amount as the state calculates it under the state unemployment insurance scheme, right? And again, that in many, many states, in Maryland, for example, right, a progressive state, the benefits are capped at just over $400, right. Right. So in most states, it will be less than five hundred dollars as a one time buyout.

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0:29:43 Andrew: Buyout. So to recap, if you are unemployed, the Republican bill will take your additional you will you will receive your base unemployment. And you will then receive with without any further extensions, given that covid is lasting an awful lot longer than we thought back in March. And you will receive the grand total of $1,600 plus an amount that is no more than $500, right? So a maximum of $2,100, and then that's it. And by the way, you're probably butting up against the maximum number of weeks that you can collect unemployment insurance in your state.

0:30:30 Andrew: This law does nothing to further extend that. And again, I don't care where your cost of living is. It is really, really hard for anybody to live on $2,100 per month, let alone $2,100 for the rest of the year, for the foreseeable future.

0:30:54 Andrew: It's really bad. You need to know that. And that's their starting proposal. You want to know some other bad stuff that's in the bill? Sure. Why not? Look, there are some good things in the Bill, right, that that have to be thrown in to kind of counterbalance everything. Everything. Right. So, you know, sections one oh three and excuse me, sections 104 and 105 provide reimbursements back to states for UI and TANF block grants. Right, what used to be welfare. So you know so there's some reimbursement back to States for some of their costs.

0:31:01 Thomas: Sure.

0:31:40 Andrew: That's Section 102 governs state reimbursements, and it increases the amount of reimbursement for states from 50% to 75% for payments made to nonprofits, right? Now, if you're sitting there thinking, well, that seems weird to single out nonprofits, right? Like, you know, you could make a case, okay, like I guess some nonprofit, like you wouldn't want a nonprofit organization to be laying off staff. As we have documented on the show, the overwhelming majority, it rounds up to 100 percent of the nonprofit dollars have gone to churches. And this bill would give an additional, would increase the incentives for states to allow that from 50 percent of federal reimbursement to 75 percent. So in other words, yeah, if you were counting on states to, uh, aggressively monitor the programs to make sure that we're not spending tax dollars, paying priest salaries. Um, this makes that harder. So, you know, if you care about that kind of thing, um, you should care about that kind of thing. Now, me talk about the check.

Um, this is section two Oh one to two Oh two. And, uh. And this is really straightforward. It is an additional $1,200 check. It is under the exact same terms and conditions as the original CARES Act, so excludes individuals lacking documentation as to legal status, excludes DREAMers, requires you to produce a social security number, and has the same caps, right?

0:32:23 Thomas: Cool. Cool.

0:33:21 Andrew: Right. About $100,000 for individuals, $150,000 for head of household, $200,000 for families includes the same $500 dependent deduction, but removes the cap at age 17. So, you know, if you've got a 20 year old kid living at home and you claim them as a dependent on your tax return, you get an extra $500 bucks for that. So, again, I don't want to suggest that one time payments are a bad thing to help income individuals, but think it is certainly inadequate. So there you go.

0:34:03 Thomas: So what are Democrats doing in all this? What can they do? I know that it's it's one of those. It's tough because because Republicans are find just, you know, shooting the hostage most of the time. But what are they doing?

0:34:08 Andrew: Yeah. Right. So Democrats have passed the HEROES Act in the House, which I don't have the time to break through. You can you can read that up, which is a three trillion dollar package and is far more progressive, as you might imagine. And I think ultimately this is a question where if, if you were Democrats, Nancy Pelosi has had a really good finger on the political pulse of the nation in terms of being willing to push back against Republican efforts to say, well, you know, if you don't vote for our bill, then it's the Democrats' fault. Like it, the Democrats' messaging has been pretty good on that. And and so I think that during the negotiations next week that they will draw certain lines in the sand and they will say, we've got to have X, we got to have Y, we gotta have Z.

0:35:09 Andrew: And if you don't give us a bill that has that in it, then I guess we're just gonna have to go without, out. And I'm pretty sure that the voters are going to hold the party that controls the presidency and the Senate responsible for the fact that there's no action.

0:35:27 Thomas: I worry about the Fact that Republicans probably already realize they've lost. So they're just cashing out essentially like, hey, let's just give all this money to churches and all, you know, ourselves.

0:35:28 Andrew: Yeah.

0:35:37 Andrew: So, so look, this is going to be another big omnibus bill. There's going tobe stuff in there. That's weird that, um, nobody understands how it operates. I, I, want, I want to highlight two of them right here. The weirdest one, because I can't figure this out, so we're to crowdsource to our listeners on this, Section right? 214, I understand this in principle, but I don't understand the limitation. Here's what it says, right, and this is a classic kind of Republican thing to do. It says, if you're an employer and you have independent contractors, you can provide them with benefits during the pendency of the COVID-19 emergency, and it will not change the classification of those individuals as independent contractors.

Right. And that's the classic like 1990s corporate Republican kind of proposal where you look at it and go like, OK, I see the pluses and minuses of this. Right. Like on the one hand, it's enabling companies that are you know, we have a real problem in this country with individuals who are, you know. Not acting with discretion, who really aren't independent contract, you Know, calling your dishwashers independent contractors. A social problem. But you could see like sort of Democrats going along with with corporate Republicans and being like, I get it. We got out.

We've got to create new incentives for that. But for the time being, let's at least make sure we don't incentivize companies to fire their misclassified employees. Right. Like let's let's allow. OK, so so I get that. So that would be sort of the pro and cons of the Section 214, except that the terms of Section 215 apply only to marketplace platform companies.

0:35:38 Thomas: Hmm. Yeah. Huh.

0:37:37 Andrew: And when I read the definition, you're like, OK, well, what the hell is that? This is defined in sub subsection A2, the term marketplace platform means any digital website, mobile application, or Similar system that facilitates the provision of goods or services by providers to recipients. So this is a giveaway to Amazon. Like, I, I just don't get it, um, I, I, I don't understand it at all, right? Like so that's basically what it says, if you sell stuff on online, which, yeah, look, that applies to a lot of people. But but when we're talking about classifying workers as independent contractors for stuff you sell online, we're Talking about Amazon. And this is a.

0:37:51 Thomas: Yeah.

0:38:19 Thomas: Who? Did this because we know Trump hates Jeff Bezos And doesn't Want to help Amazon, so

0:38:28 Andrew: Yeah, this is this is McConnell's bill. So, So yeah, super weird. We're picking through for other stuff, section 224 is super weird, and this I am crowdsourcing to our lawyer listeners who are tax lawyers, okay? I'm going to point you to the provision of the bill that we link in the show notes. It starts on page 99, okay, OK, and it amends the CARES Act by adding special rules with respect to farming losses. OK, And it says if a taxpayer has a farming loss within the meaning of Section 172B1B2 of the Internal Revenue Code, then the amendments made by subsection A shall not apply to any taxable year for 2018, 19 or 20.

0:38:30 Thomas: Oh. Geez. Is

0:39:26 Andrew: And it goes through and changes the tax treatment. I could parse this out. It would take me a week to parse out all the cross-references. If you're a tax lawyer, take a look at this 224 and tell me what the preferential tax treatment is, right? I can tell you who it's going to benefit.

0:39:43 Thomas: This Just Trying To to help people who were harmed by the tariffs, like To try to win Those people back, we've

0:39:48 Andrew: I have no idea. I suspect, right, like in the same way that if you're in marketplace platform, form. Right. That means Amazon. If you have farming losses, that means Monsanto. Right, like for all of the talk about like family farms, family farms are less than one percent of the overall farming industry in the United States. And again, that's not to say we shouldn't help family farm. Rightly, we have we have family farm, you know, farmers who are show listeners. Right.

0:40:26 Andrew: We Got cows named after us. Yeah, I tell, so, maybe yeah, I'm wrong on this. And maybe it is try and offset the harms caused by the tariffs and trade wars. But I think it looks like when you talk about how you carry forward losses to next taxable years, I think this is going to wind up being a huge giveaway to Monsanto. I could be wrong. So tax lawyers check out Section 224 and then the rest of the bill, everything else in it is marginal. That's basically, those are your major provisions. So one time payment of twelve hundred bucks, ending, dropping by by two thirds the UI benefits and then phasing it out in eight weeks and some what look like massive corporate tax giveaways.

0:40:25 Thomas: Got cows named Named after us.

0:41:14 Andrew: Uh, that's the core of their proposal. Our friends, they're not friends. Marco Rubio and Susan Collins have separately proposed a new round of PPP loans. Um. I have no idea if that's going to get added into this proposal. Uh, but the new round Of PPP Loans, uh, would obviously be monumentally expensive. Want to add that in addition to, because we're about to talk very briefly about how PPP loans are, you know, there's virtually no oversight and they've been terrible and everything else. There's been tremendous criticism of oversight of the CARES Act.

And you'll be pleased to know that the HEALS Act corrects that by adding the Senate Finance Committee and the House Ways and Means Committee to get those oversight reports. That's Section 225. If you say, wait, but don't the oversight reports suck? Shh, don't look too closely. Like they literally, there is no additional oversight proposed in the core Republican plan, even though we know that virtually all of the money that's been administered has been wasted, mismanaged in in in terrible sorts of ways. So there's that. Also want to link to this is a this is real time academic research from a respected researcher, researcher, Raj Chetty, somebody we've actually quoted on the show before.

0:41:49 Thomas: Uh-huh.

0:42:47 Andrew: It was filed in June of 2020 by the National Bureau of Economic Research. And it's a working paper. And basically, it says that, PPP loans don't work, companies that received PPP loans laid off employees at roughly the same rate as companies that didn't. So, you know, if you're trying to think about, like, what are the mechanisms to keep people employed, you know, we sort of gave our tentative stamp of approval on the CARES Act that said, you know, okay, right, we're going to have a giveaway. But, you know, it at least that giveaway is designed to help employers not fire people to reduce costs.

0:43:37 Andrew: Turns out that did not incentivize that behavior. The best research shows that. So, yeah. So, of course, Marco Rubio and Susan Collins want to do it again. Would interface with the CARES Act if it's incorporated in through Section 211 of the CARES Act, which provides reimbursements for certain tax credits for retained employees. Employees, here, why don't I pose this as a question? One of the criticisms of the first round of stimulus funding that went out was that not enough went to small businesses and an awful lot went to publicly traded Companies and huge corporations. So in the context of the retained employees tax credit, the original CARES Act capped that reimbursement, right, in certain ways for employers that had over 100 employees, right? That was sort of their dividing line of, you, where does a small business end?

0:44:17 Thomas: Yeah.

0:44:42 Thomas: Small to big business.

0:44:43 Andrew: Yeah, right. Ends at 100 employees. Please. What do you think that number is reduced to in the in the HEALS Act?

0:44:43 Thomas: Yeah. Reduced to 500 employees.

0:44:53 Andrew: That is exactly right. Reduced to 500. Yeah. Yeah. The joke answer

0:44:56 Thomas: No, really? I just flat out guessed that. I was joking.

0:45:01 Andrew: Is correct. Um, the, the Senate Republicans believe that the, yeah, uh, yeah.

0:45:05 Thomas: And I guessed the right number, too. I could have said 200. I could've... Wow. What are the odds?

0:45:10 Andrew: I believe that the

0:45:11 Thomas: It's my birthday. Bar credit. I get a point.

0:45:13 Andrew: Problem with the original HEALS Act was it

0:45:18 Thomas: It left those poor, giant corporations to fend for themselves too much.

0:45:22 Andrew: Is a challenge to me to imagine that you could fairly argue that a business with 350 employees is a struggling small business, right? Small businesses are my clients. You want to say, is it 10? Is it 15? Is it 25? You can have a real debate on that. 100 sweeps in what I would call medium-sized businesses. And 500 makes it, yeah.

0:45:51 Thomas: Yeah. Yeah. And it really depends on what kind of business you are. I mean, you could be a massive company that doesn't rely a lot on direct employment, you know, because of what kind of product you do versus you could be a small kind of struggling company and have a lot of employees because that's the line of work you're in. It's, you Know, it depends on what you do.

0:46:00 Andrew: Yep. Yep, yep, yep. Total, total agreement. So, there we go. Um, it's back to the A segment and play that, because that's your good news of the week. Uh, the bad news is that the starting position for the Republicans on how to cope with the state of the U.S. economy, uh, is utterly out of touch with reality.

And, um, you know, we're going to monitor this, we will update you next week, uh, but, um, but, but we wanted to make sure that we did sort of the, this is their starting point before next week, because, you know, we're going to, we're gonna probably have another 900 page bill that that I've got to parse through. And, and you're going to need to know, you know, how does that break down in terms of, you know, which parts of this did it keep intact. So And that's why I wanted to go through where where they're starting. After today, we have four business days for the Senate. And like their business day is like three and a half hours long. Right. Like, I mean, these these are not hardworking individuals to start with. And we got a huge gap to cover. So I'm worried.

0:47:18 Thomas: Obviously we need to do everything we can, but ultimately we needed to just do the basic stuff to contain this virus that would have made it so we don't have to do all this crap. I mean, it's just it's

0:47:29 Andrew: Yeah, that would that would have been a good idea.

0:47:31 Thomas: So frustrating what a failure of a country we are. Pathologically, selfish people. Can't, would rather, you march with guns, wielding then wear a mask to maybe help. And it's, it's all ultimately, as with Herman Cain, it's all going to hurt them.

0:47:34 Andrew: Yeah.

0:47:45 Andrew: The Republican Party has been so hijacked by fringe thinkers, right, that you have Louie Gohmert right on the far fringes, gets covid and goes out to post. Well, you know, I'm sure that the reason I got covid is because I would I've been wearing my mask over the past couple of weeks. Right. Like, it is just, they are all in on, on, we want more people to die. And position is very, very clear on this show.

0:48:04 Thomas: Oh yeah.

0:48:14 Thomas: Yeah. We're anti-death usually.

0:48:16 Andrew: Yeah, um, I don't understand, uh, how people can look at that and say, okay, uh, the government actively wants to kill us, I want four more years of that. Um, that seems like a hard sell to me, but, you know, what do I know? Yeah.

0:48:29 Thomas: Catastrophic. Just catastrophic. All right. Well, that's your heels act, everybody. I'm sure that'll do it. That'll probably make everybody totally fine. Just take that, you know, a couple of hundred bucks and just pay your mortgage for the next 12 months. I am sure you'll be great. Awesome. Well that's depressing. On that depressing note, I suppose we should cheer ourselves up with some patron patron shout outs. What do you think? All

0:48:53 Clip: And thank you, Let's go!

0:48:54 Thomas: This'll make us feel much better. New patrons here on patreon.com/law. Hope you enjoy all the stuff we've been sending you that we covered in the beginning of the show and the Q and a reminder that's on Saturday featuring a delicious McAllen scotch that I can't wait to try. Uh, and all your questions. I'm going to do it quickly here. Let's thank Brooks Smith, Chad Kozicki, Grant Godso, Eric Hill, Oh, well, sorry for this episode. I'm sure that didn't help, but yeah.

0:49:10 Andrew: Well, Absolutely. You could you could be sane and depressed at the same time

0:49:26 Thomas: Hey, but remember, there was good Flynn news. We got some good news. I'm certain even the ethical jerk wears a mask, I bet. Sounds like Monty Python or something. I'm sure it's some uh some something anyway uh thanks new patrons we love you enjoy the goodies and again patreon.com/law if you'd like to join in yeah

0:49:29 Andrew: Yep.

0:49:42 Andrew: I love that name. It Yeah. Yeah. I, I want to just add, um, you and I before recording this episode actually got together to game plan because we have so much stuff to give to patrons, uh, that I mean, it's basically like one new thing a day for a week. Um, above and beyond, you know, the normal perks of getting, sometimes getting the show early, uh, of getting the uh question and answer for T3B, all of the great stuff, being able to, you know, talk to us directly on the Patreon feed. Like, it's, it's, I humbly say, look, we're talking about a country with 30 plus percent unemployment, if we've always said you got to take care of your own, take care of yourself, take care your family, if you can. I think it's pretty good value for a buck, so that's my, that's my humble pitch for, for heading on over to Patreon.com. And obviously a great many of you do support the show, we really appreciate each and every one of you.

0:50:08 Thomas: Dang

0:50:54 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:50:54 Andrew: Yeah.

0:51:00 Thomas: The return of t3be PE, uh, skipped it last week. There was just too much, but you know what? It's my birthday. I'm sure Andrew's got a nice real property question lined up for me because, uh... I think the evidence shows I nail those. They're super easy. All right, let's hear it.

0:51:16 Andrew: Yeah, not, not, uh, I have something, this used to be in your wheelhouse. I have no idea of how, you know, the world, you know, cats and dogs are living together now that you're a real property expert.

0:51:26 Thomas: Yeah, I've changed legal, uh, specialties, you know, and my office, uh.. It's gone through some changes. I take different clients now.

0:51:27 Andrew: Yeah. You know it's like Saw Goodman going from elder law to, uh, you know, criminal law.

0:51:37 Thomas: Yeah. Ah, I'm so.. It makes me so happy that you reference good things now.

0:51:42 Andrew: Yeah. I'm, oh man, it's so good. Okay, Thomas, a plaintiff sued for injuries arising from a car accident, claiming a back injury, to testify that before the accident, she never had any problems with her back. Is the plaintiff's proposed testimony admissible?

0:52:01 Thomas: Oh, Oh, wow. That's a short one. And also sounds about what I've never been good at this. What are you talking about?

0:52:10 Andrew: A, no, because the plaintiff has not been qualified as an expert. B, no because the plaintiff pain could have been caused by factors arising after the accident such as an injury at at work. C, yes, because it is probative evidence of the plaintiff's injury. Or D, yes because the testimony of parties is not subject to the lay opinion rule.

0:52:33 Thomas: Interesting. Interesting. This seems like one, a real lawyer would kind of snap off like, oh, good. Just a quick, just a quick two sentence question. Boppity booppity, uh, finish it and go to the next five paragraph essay. Real property pretty bulsh. Okay, interesting. It's one of those things that you would think, you know, that sounds pretty straightforward. Like, yeah, doy, of course, you just say, yeah my back was fine and And now it's not, but this. I'm saying to devil's advocate, the, the back injury thing here would, would you, would the best thing to be? No, no, no. You have a doctor who comes on and says, here's the x-ray or whatever. And here's what happened in the accident. Here's the, here're the injuries, you know, is that what it's supposed to be. I donno, I guess we'll see. So the answers are, A, no, because the plaintiff has not been qualified as an expert.

0:53:24 Thomas: Yeah, that's kind of along the lines of what I was saying. B, no because the Plaintiff's pain could have been caused by factors arising after the accident, such as injury at work. I don't like that one. I'm throwing that out. I think that, think, that that's like that's not going to be the reason why it's not admissible. Like, I, think that's something you would argue if you're the other side, you know, that would be, that, would be something you'd have to prove or whatever. Whatever. Uh, C so I'm throwing out B C yes, because it is probative evidence of the plaintiff's injury.

0:53:54 Thomas: Plausible, plausible, uh, D, yes, because the testimony of parties is not subject to the lay opinion rule. Gosh, I mean, it could be that this is tough. So a C and D are looking okay. Ish. Really feels weird that you would sue and not be able to say like, yeah, I never had any problems with my back. And now I do. That. That feels wrong. At the time, I know.

Is it what I said where, you know, you actually need to have an expert say, here's the injury? So, if I'm leaning toward a yes, it's hard to determine which yes is it. Yes, because it is probative evidence of the plaintiff's injury, and maybe so, under that theory you would be like, yeah, you have the person testify and then you also maybe have a doctor testify and say blah blah blah, I don't know, it could be that.

Or D, is it true that testimony of parties is not subject to the lay opinion rule? That might be true too. Like, if you have a party to the accident testify and they say, yeah, I saw this or this, it makes sense that you'd be like, okay, they're not an expert, but it's okay because they were there. They were involved. So they're allowed to just testify as to their involvement and what happened. Oh, this is a tough one. It's short, but tricky. Let, I feel like you ought to be able to testify because you're a party and therefore you don't have to have an expert doctor opinion. Gosh, is that right? Or is it going to be C? Yes, because it's probative, probative evidence. Gosh, this is really tricky.

0:55:36 Thomas: I don't have any confidence in this. I think I'm gonna go with D, yes, because the testimony of parties is not subject to the lay opinion rule. I—oh, I don't feel great about this one. I think A, C, and D are all pretty plausible, um, but I'm going with D, final answer. I should,

0:55:58 Andrew: Well, that was exactly the right kind of enthusiasm to cap off this episode. And as always, if you'd like to play Play along with T3B with Thomas. You know how to do that. Just share out this episode on social media. Include this episode. Include your guests, your reasons. Therefore, the hashtag T3BE. We will pick a winner and shower that person with never-ending fame and fortune. Fame and fortune not guaranteed.

0:56:24 Thomas: Have just retired after I got that real property question. That was, I'm never gonna do better than that, that was the best analysis, got it right, uh, it was real property let's you

0:56:32 Andrew: Oh, that was so good. I mean, that's not to say that this isn't all so good, right? I'm not giving it away, but oh, man, that is so good good that

0:56:38 Thomas: Yeah, that would have been. Yeah, That would have been great. Oh, well, uh, we do what we can here, just leave the podcast just

0:56:44 Andrew: Would have been the George Costanza, leave on a high note, that's it. Welcome to Opening Arguments with Andrew sitting around for a long time waiting for a prompt.

0:56:52 Thomas: Yeah Thanks so much for listening, everybody, we love you so much. And again, come, come join us. You don't have to be a patron to join us on YouTube for the Q&A. Just you don't get to ask the questions, but that's fine. You can still interact with others and with us a little bit on the chat. And it's a lot of fun. So that's Saturday, 4.30 Pacific, 7.30 Eastern. Be there, be square. And we'll see you folks then. Thanks for listening.

0:57:03 Andrew: Yeah Bye.

0:57:20 Clip: He's not even a lawyer and he's kicking your ass.

0:57:53 Clip: This podcast is a production of Opening Arguments Media, LLC. All rights reserved. It is produced with the assistance of transcriptionist Heather Loveridge, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Deborah Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki. Follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Argiments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.