OA431: Here's How We Can Still Save the Census

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 431. I am Thomas. That is Andrew. How are doing, sir?

0:01:24 Andrew: I'm fantastic, Thomas. How are you?

0:01:26 Thomas: Well, you say you're fantastic, but not great news.

0:01:28 Andrew: I do say that.

0:01:30 Thomas: Not great news, and I believe you are. You're just always fantastic. You can't be not fantastic, but the news is not great. Um, we didn't have time to talk about it last week, obviously, but the census decision seems not good, not good. I'm Very, very keenly interested in Andrew's breakdown of what that means, what can we do, anything about it, what, what's going to entail. Oh, I'm eager to learn the information but not happy about it, so we'll get to that. Got about today. We got another Mazars update, again with the Mazars, that's our schedule. It's not, I don't know. It just seems like every, for the last like two or three weeks, we've got a Mazars upgrade. Am I wrong?

0:01:48 Andrew: That's fair.

0:02:09 Andrew: I like that we've got again with the Mazars. No, you are not wrong, because we are moving forward exactly the way we told people. So, yeah.

0:02:19 Thomas: Okay. Oh, well, that's good. You wanted to say something about the Amy Coney Barrett schedule before we get going?

0:02:26 Andrew: Yeah. Yeah. Yep. This is breaking right as we're recording. But in violation of the Senate Judiciary Committee rules, which prohibit scheduling the vote prior to hearing all the testimony and also prohibit scheduling the vote without at least two members of the other party present, there was not— doesn't matter. There's nothing you can do about it. Lindsay Graham scheduled the committee vote to send Amy Coney Barrett out of the the Senate Judiciary Committee uh on October 22nd, so that is this coming Thursday, October 22nd. Um, when do you think Mitch McConnell has scheduled the uh hearings before the entire setup, uh, October 23rd so

0:03:13 Thomas: October 22nd. Yeah. I was gonna go twenty-third. But I want to go even more. McConnell, just to see if it was right. So

0:03:18 Andrew: Yeah yep I when she is confirmed out of the Senate Judiciary Committee in the evening of Thursday, the 22nd floor debate on this crucial issue in the middle of a pandemic will then begin Friday morning. So there we have it. They are going to.

0:03:39 Thomas: What's the the story with the rules? Um, I saw this on Twitter as well, you know, just before we started recording, because again, this, we're back in time, uh, but but Democrats tried to play a little hard ball. Is this just a question of, you we don't control the thingies so they get to ignore the rules? Is there more to it than that? Is this unprecedented what they're doing, or is this more along the lines of we get to just decide the rules because we have the majority? Yeah.

0:04:03 Andrew: So it's it's somewhere. It's both of those things. I was going to say it's somewhere in between, but that's not really a spectrum. It is both of those things. The Democrats are doing everything they can to, as sort of a last ditch, of throwing up procedural road blocks. At the end of the day, the violation, it's not clear. It's not clear that that there is, is an inherent remedy for violating the rules anyway, right? Like it's not like it renders the entire process void ab initio, like like you have to specifically, that has to be a part of, so

0:04:41 Thomas: But like, at what point, where do the, where's the rubber meet the road here? Like, just totally abandon all everything and just be like, sorry, according to Democrats, we now control this because somebody has covet, or make up a rule or something, we now have a majority, what stops people? What stops senators from just outright ignoring any rules? Is it just norms?

0:05:03 Andrew: A really good question, I don't, I'm not sure that I know the answer to that, right, in the sense that if, if what you're asking is, uh, because you, you were sort of anticipating the path that I was going down, which is at any point a motion for reconsideration or appeal to the decision of the chair is appropriate under Robert's Rules of Order. And you can, quote, clarify what the rules mean with a simple 51 vote majority. So at the end of the day.

0:05:31 Thomas: Okay, so it's still, that's where the rubber meets the road, is that 51 vote majority.

0:05:33 Andrew: Yep. Yep, yep. But it does. I mean, I think it illustrates your point that there must be some limits. Right. Like if you interpret, you know, if if future Republican Senate in 2023 decides to interpret the rule that says there must be a quorum of 51 senators present as meaning the president doesn't get to sign bills into law. You know what I mean?

0:05:37 Thomas: Okay.

0:06:08 Andrew: Intuitively, there ought to be some point at which this is, in fact, justiciable. I don't know where that would be. We've never had to approach that before because the Senate hasn't had a Mitch McConnell in it before. And hopefully after this November, it won't have a Mitch McConell in it again either. So, yeah,

0:06:27 Thomas: Oh my gosh, don't, I can't even, it's too much, it's too much hope for me, I can't go there, I gotta protect myself. Can't, can't, it just, he's always gonna exist, they're never gonna die, Trump is gonna live forever. I've just, I have to set my own expectations so that I, you don't get too excited. Okay, woo, okay. Okay. All right. Well, that's frustrating. But to be expected, I guess this wasn't anything that they didn't anticipate. They're just throwing everything they can at it to say they did, which is good because, you know, we did see a lot of these arguments. They'll like, oh, they're not doing everything they care. And it's like, no, you just, you can't McConnell would have done this in 2008 and 2009 or whenever, you Know, a couple of justices were confirmed. He would have Done this if he could and he couldn't. So, all Right. Time to get to our show.

0:06:34 Andrew: Agreed. Yep.

0:07:09 Clip: Because people have got to know whether or not their president's a crook. So you're not aware of any contacts during the course of the election? How many times do I have to answer this question? Can you just say yes or Russia is a ruse. I know you have to get up and ask a question so important. Russia is a ruse. Well, I'm not a crook.

0:07:27 Thomas: Mazars update number seven or something, Andrew. What's happening?

0:07:31 Andrew: Yeah. So this is exactly what we told you was going to happen, which is that the Second Circuit ruled against Donald Trump in Trump versus Vance on October 7th, 2020, my birthday, the day after they filed the mandate, which, again, is stayed for a grand total of five days for the president to file any relief in the Supreme Court, which he did. So on October 13th, that was Tuesday, October the 13th that it would our schedule got pushed out by one day because of the mandate. Trump has moved for an emergency application for a stay pending the filing and disposition of a petition for writ of certiorari.

0:08:22 Andrew: Right. So he's asking the Supreme Court, don't let your to don't let the Second Circuit's ruling go into effect and allow Mazars to start turning over documents to Cy Vance, to the district attorney's office in the state of New York. And that application was made on Tuesday, the 13th, which means that Sunday, the 18th, is when the response, the opposition is due. And two days after that, Tuesday the 20th, that is to say today, as you're listening to the show, is when Trump's reply brief is due, which means that the Supreme Court could rule on this as early as tomorrow when you're hearing this.

0:09:07 Andrew: And if they deny the application for a stay, that's it. Then Mazars has to turn over the documents to Cy Vance as early as tomorrow, October 21st, 2020, uh, which we, we told you that could happen. So look, um, could the Supreme Court sit out? They could, okay, but remember that the, the original Vance decision was seven to two. It was not, it's now six to two with with RBG's passing, uh, but Amy Coney Barrett will not be on the the court yet, uh, and even if she were, right, uh, this is, you keep talking about how, uh, six three decisions matter, right? This is, um, the the court, other than you know who, and you know who being Clarence Thomas and Samuel Alito, uh, did not seem particularly eager to go rescue this particular president, uh, from his personal troubles. And and and I should add, by the way, that is consistent with what we said about both Gorsuch and Kavanaugh, right, that they are not Trump toadies in the sense that Justin Walker is a Trump toady.

0:09:24 Thomas: Yeah?

0:10:20 Andrew: They are true, believing, hardcore, conservative judicial activists, and their interests overlap with Trump's when it comes to adjudicating from the bench. But they going to jump in to to save him on this? You know, they they didn't the first time. So I don't see that necessarily they're going to the next time. So opportunity for an answer was wrong on Thursday. But please don't prove me wrong. Supreme Court, I, I am also going to link this motion for a stay in the show notes because we have often debated back and forth. Right. It's the it's the Reese's peanut butter cups of stupid lawyers. Right. Like is is Bill Consovoy dumber than Jay Sekulow? Well, I have to tell you, the two great tastes now taste great together. This brief is a collaboration between Jay Sekulow and Bill Consovoy, and it's a Voltron of stupid. It's amazing how bad this is. And to prove that, we're going to go to page 28, which OA listeners can already answer based on a clue I gave you a week ago.

0:10:48 Thomas: Yeah.

0:11:37 Andrew: So the president's brief says, the Second Circuit embraced a standard for plausibility under which no subpoena challenge could survive a motion to dismiss. Even though overbreadth and bad faith must be measured against the scope of the grand jury's investigation, the Second Circuit never actually described what it thought the scope of the investigation might be. Instead, the Court of Appeals merely speculated in broad terms about a complex financial investigation, and then found the president's claims are implausible because there's nothing inherently unusual or unlawful about a subpoena seeking financial records of a global corporation as a part of this kind of investigation. And if you sit there going, "Yeah, that's right," like, wasn't that that our enterprise's porn case that Andrew talked about for like 20 minutes?

0:12:27 Thomas: All right.

0:12:29 Andrew: Indeed, it is. That's the answer. But but no, what we what we get from Jay Sekulow slash Bill Consovoy is that can't be right. The end result would be to insulate every subpoena from any overbreadth challenge. And again, stuff that is answered by the Supreme Court, and not just answered by The R Enterprises case, but here the standard set forth in The R Enterprise case is, quote, quote, "A a subpoena is overbroad if there is no reasonable possibility that a category of materials requested will yield information relevant to the general subject of the grand jury's investigation." That is Our Enterprises, 498 U.S. at 301. And you might be thinking, OK, well, but you're reading from that case.

0:13:15 Andrew: Oh, no, I'm quoting from page 19 of Jay Sekulow slash Bill Consovoy's own brief. So at least they acknowledge that that's the standard, but then they're like, and how could you possibly meet? Oh, wait, that's because these subpoenas aren't overly broad or unduly broad. All right, our bad. So yeah, this brief is, it's hilarious and terrible. And if you want to know how we completely teed up how these arguments are going to lose, Go check it out because it's fun. See, that's good news.

0:13:53 Thomas: Well, Andrew, yeah! Okay, good news! And now let's talk about the other things.

0:14:02 Clip: The law breaking down

0:14:09 Thomas: So, Andrew, I know a lot of people must have seen this headline that looks like Trump won the Supreme Court regarding the census. What happened? Break it down for us.

0:14:18 Andrew: Yeah, I will break it down. I want to lead off with, there are things we can do about this, and I am going to discuss those at length once I've gone through the case. So this was a request to stay a preliminary injunction telling the Census Bureau to play by the rules, and specifically to follow the data collection plan that the Census Bureau itself said it was going to follow in open court. Right. Here's what that is. Every time there's a census, there's huge drive to get people to fill out the census and file it and everything. And then there are people who don't do that. And as a result of people not doing that, the government does a second round of going back and visiting people and being like, hey, man, you didn't fill out census. Would you like to do that? Can we count? And you might imagine the breakdown of who those initial non-filers are.

0:15:11 Thomas: Yeah.

0:15:24 Andrew: Needless to say, Republicans have made the almost certainly correct decision from a political standpoint that those are probably not their voters. As Justice Sotomayor puts it in her dissent, quote, "Significantly, the percentage of non-responses is likely much higher among marginalized populations and in hard to count areas, such as rural and tribal lands," end of quote. So the government said they were going to continue collecting data until October 31st of 2020, until they decided they were not going to anymore. More. And let me spend a minute on what they decided, with respect, because I think this background is really, really important to talk about.

0:16:18 Andrew: So the Census Act, 13 U.S.C. 141, the Department of Commerce was required to present its plan to Congress in April of this year, And they did so. And in April of 2020, we were already in the midst of the COVID-19 crisis. And so the the Bureau of the Census extended their deadline for gathering Gathering data under the census from July 31st to October 31st. And in open court, in explaining this deviation, the associate director for field operations said, quote, it would be ludicrous to expect the Bureau to, end quote.

0:17:05 Andrew: Complete 100% of the nation's data collection efforts earlier than October 31st in the middle of a pandemic. Makes total sense. Also, under the Census Act, Bureau then has to deliver its report to the president. Right. They have to say, OK, we've gathered all the data and now here's here's what we found. And that time is fixed by law at December 31st. But because they were extending out the time to collect the data, they said, oh, we're going to move that to April 30th, 2021. And then a question was raised. Can you do that? Right. The law, 13 U.S.C. Section 141B, it's pretty clear that it says it must be delivered in the same year. That would imply December 31st.

0:17:51 Andrew: Donald Trump, because there's always a Donald Trump statement, said, uh "I don't know that you even have to ask Congress, this is called an act of God, this is call a situation that has to be," end of quote. Um, And, Yeah.

0:18:03 Thomas: A situation that has to be. Yeah.

0:18:06 Andrew: Uh He could have stopped after that, that second sentence. Um, and it would be one of the rare times that I think I would say I probably agree with Donald Trump. Right. Right. Like, notwithstanding the statutory deadline, I think it would be reasonable to promulgate rules that say, yeah, we're, we're doing our best to hit against the deadline. But important than the statutory implementing deadline is the constitutional requirement that an actual enumeration of the population take place. Right. That is Article 1, Section 2, Clause 3. "Representatives shall be apportioned among the several states." This is the three fifths clause in the Constitution. Right. And it says the actual enumeration shall be made within three years after the first meeting of the Congress, and within every subsequent term of 10 years, in such manner as Congress shall by law direct.

0:19:01 Andrew: Right? Right. And so you would say, yeah, look, get it that it's bad that the law says that we have to finish this by December 31. we're Going to take an extra five months because the law is much more clear that it must be an actual enumeration. And if we don't take the extra time, the numbers won't add up. And that's more important. And that would be, I think, a good argument.

0:19:24 Thomas: Yeah, that makes sense to me.

0:19:25 Andrew: And I think because it's a good argument. The Trump administration instantly abandoned it. So Bureau of the Census formally requested that Congress, they went to Congress, notwithstanding the fact that Trump said it's like an act of God, right? It's a situation that has to be. House of Representatives passed a bill extending the deadline. And then the Senate committee was scheduled and in fact held a hearing on that bill on July 23rd, 2020. But on August 3rd, Trump rescinded that request. And you might also recall, because we did a show that day, that was when Trump said that when I do the apportionment, I'm going to exclude undocumented immigrants in the report that I transmit to Congress. You Might also remember that that day August 3, they were busy.

0:20:13 Andrew: That's When Wilbur Ross, secretary of commerce, announced a, quote, replan schedule and under the replan schedule, they would stop collecting data as of September 30th. Right. So literally within seven weeks and they were just going to report what they had. Right. I think it's probably not a surprise that this is right about the time when the Trump administration realized, oh, clown horn, we're not going to be in power in April of 2021. So if we're going to ram this through, we've got to do it while Donald Trump is clinging to the drapes and before he's forcibly evicted from the White House.

0:21:00 Andrew: So Wilbur Ross says, yeah, forget all that stuff that we said. We're actually just going to do a half ass job and and we're going to stop collecting data in September and we're just going to give you whatever we have and then Donald Trump's going to make up some numbers anyway. They, they were sued by advocacy groups, cities, counties, Native tribes, right, all the people likely to be hardest hit by not collecting follow-up data, who filed for an injunction. And crucially, this injunction is limited not to extending out the reporting deadline, but to extending the collection deadline out to the point that, again, the Census Bureau said in open court, we need until October 31st to collect all the data.

0:21:52 Andrew: And the district court granted the injunction because, of course, they did. And then the Trump administration went directly to the Supreme Court and said, yeah, we want to stop that injunction until this entire thing is litigated, which is to say to moot out everything by running out the clock. And the Supreme court said, okay, we're happy to do that for you. Um, and, and Sonia Sotomayor wrote a blistering dissent, um, in which he said, look, she

0:22:21 Thomas: Yeah, I saw, by the way, sorry, but I saw that she dissented. Please tell me she wasn't the only one.

0:22:24 Andrew: Was the only one, uh, that filed a, a written dissent and that that voted to dissent from the state. So in other words, the the grant of the stay is per curiam. And then, yeah, there's

0:22:40 Thomas: Oh, so we don't get a count, like it's not a decision where we get a account. Hmm.

0:22:44 Andrew: No there's no there'S no decision.

0:22:45 Thomas: Okay. But Couldn't They have Signed On Yeah.

0:22:46 Andrew: There'S no ruling. But this is the only dissent. Yeah,

0:22:49 Thomas: Couldn't They have assigned On to her descent, huh?

0:22:49 Andrew: You could absolutely Justice Breyer could have signed on. Justice Kagan sort of could have assigned on and did not.

0:22:55 Thomas: By The way, Sotomayor is my favorite justice, has been for a while. Just throwing that out there.

0:23:02 Andrew: Yeah, would love to do a deep dive on Sotomayor's jurisprudence. You know, maybe January of 2021 would be a nice time to do that. So if you'd like to hear Thomas and Andrew talk about Sonia Sotomayor at great length, then maybe go out and vote for Joe Biden. All right. So, Sotomayor wrote a scathing dissent and said only irreparable harm that the government says it will suffer unless this injunction is stayed is, quote, if data collection continues through October 31st, the Bureau will not meet the December 31st statutory deadline to report census results to the president. And then Sotomayor says, but it's unlikely the injunction will be the cause of the Bureau's inability to do so. Indeed, for months, senior Bureau officials have represented that whatever the data collection deadline meeting the December 31st reporting deadline would be impossible.

0:23:14 Thomas: There's

0:24:03 Andrew: Right. And then she's got a long citation to lots of different evidence of the administration saying, yeah, look, like we suck at this. Like there's... there's not a chance we're going to report everything by December 31st. Only recently have officials begun to claim that the bureau might yet be able to meet the statutory deadline. And even then, their story keeps changing. See Ibid. And there's more. Notably, the government fails to explain why it cannot meet the statutory deadline by adding resources to accelerate data processing as it did with data collection. That the Bureau has provided, quote, ever changing projections about the impact of the data collection deadline on its statutory deadline is understandable, given the complexity of the census and the unanticipated impact of the COVID-19 pandemic.

0:24:51 Andrew: But those ever changing projections demonstrate that any harm attributable to the injunction is at best uncertain and more likely non-existent. Right. And look, she's right. Right? Right. It is. One of the things that, again, has been encouraging, if slow, has been jurisprudence coming out of the Supreme Court, calling the Trump administration out on its transparently obvious efforts to evade the law, right, to run out the clock, to offer pretextual justifications. This was back when the game was shaming John Roberts. Once Amy Coney Barrett is on the court, Yeah, it's not right. Like that is. Oh, well, we've managed to shame this away from a six three to a five four decision the other way.

Right. Like they and again, you know, think about like every justice in Supreme Court history. Right? Like can fight on nobly like, you Know, like Justice Ginsburg and become known known for your dissents. But Justice Ginsburg didn't always lose. This is this is like, you know, the Harlem Globetrotters and the Washington generals. And sounding the alarm now is great. But like you can only sound the alarm for so long when when when nothing happens. So so, yeah, this totally dovetails into our need to fix the courts. But I want to point out that we are not just stuck. Right. So let's take the worst case scenario here.

0:25:38 Thomas: No one To Shame, yeah. Yeah.

0:26:34 Andrew: The census now, with the blessing of the Supreme Court, they do, like, again, all they have to do is just a sloppy job of litigating. Right. And just, you know, file some papers. There's... there's no, there's no way that the district court is going to rule on the merits of this case in two months under the most expedited schedule, right? So October 31st is going to come and go. They've stopped the additional collection of data. We'll see if they deliver the report to the president on December 31st. If they do, we know what that report will exclude. We know how they intend to bias it. So suppose they do all that, and then the president transmits apportionment data to the Senate.

0:27:22 Andrew: But that Trump has lost, Biden is the president, and there is a Democratic Senate incoming. If that is the case, we are not stuck with Trump's numbers and Trump's census. And the person who initially came up with a plan for all of this was, of course, your girlfriend and mine, Elizabeth Warren. Um, I'm

0:27:47 Thomas: Well, We got To compete with that, Marine, it's gonna be, be tough. It's

0:27:49 Andrew: Uh, I'm Going to link back to her tweets on the subject, uh,

0:27:56 Thomas: A great joke for A few people out there.

0:27:57 Andrew: Oh, Man. That's, I, I did a reenactment of that reading on Skeptocrat, so, uh, yeah. It's, uh, me reading steamy Liz Warren fan fiction, uh, go, go, go check out the, I don't know, whatever episode of Skeptocrat I was on. But but no, at at August of last year when the Trump administration announced that it was going to begin monkeying with the apportionment numbers being transmitted to the Senate. It. And Liz Warren detailed her plan. She said, if the Trump administration somehow manages to get the question back on the census, I will cancel that rigged census and replace it with a fair and accurate one. Here's how that would work. This is over Twitter. First, I would immediately direct all executive agencies to ignore the tainted census data until a new census is complete. States receive nearly $600 billion per year from 16 programs tied to census data, and we will not allow a tainted census to skew that. Next,

0:27:58 Thomas: Oh, Okay. Oh, That

0:28:59 Andrew: My administration would conduct a second census without any questions about citizenship to replace Trump's tainted census in advance of the 2022 midterm elections.

0:29:07 Thomas: Is that's Weird, I didn't think we could, I thought we covered this and this seemed like not something we Could do, okay.

0:29:13 Andrew: I'm going to get to it. And I would have an aggressive, well-funded outreach campaign to reach historically undercounted communities. Finally, we'd ban the use of citizenship questions at government surveys and implement lasting reforms to the census to prevent any president from using these kinds of tricks to take political representation or other resources away from immigrant communities. So can she do that? Well, can Joe Biden do that, isn't the decennial census in the Constitution? And the answer is they can do that. So here's what's in the Constitution. Yeah, you can't stop the apportionment. Here's, here's what's in the Constitution. We go back. Article one, section two, clause three. Right. Representatives and and direct taxes shall be apportioned among the several states according to their respective numbers.

0:29:15 Thomas: All right.

0:30:01 Andrew: Three-fifths clause, yeah. The actual enumeration shall be made within three years after the first meeting of the Congress of United States and within every subsequent term of 10 years in such manner as they shall by law direct. So every 10 years you have to have a census. Can you have a census more frequently than 10 years? And the answer is we already have provisions in the law. If you've never heard of the mid-decade census, that's because no one's ever heard of a mid-decade Census, but it's there in the law. It is 13 U.S.C. Section 141, the exact same one that we were talking about, right?

So subsection A says, and again, this gets amended amended periodically, so this one, uh, was last amended 1976, and says the secretary shall in the year 1980 and every 10 years thereafter take a decennial census, blah, blah, blah, that's, that's sections A and B were what I quoted from when we were going through Sotomayor's opinion, right, which is, uh, every 10 year April you've got to go, uh, and the, the secretary of commerce has to lay out the plan.

You've got to deliver that data, quote, this is in Section B, within nine months after the census date reported by the secretary to the president of the United States.

0:30:36 Thomas: Really?

0:31:22 Andrew: So that's why they've got that December 31st deadline, right? But subsection D, exact same bill, exact same provision, 13 U.S.C. 141 D says, without regard to A, B, and C, the secretary in the year 1985 and every 10 years thereafter shall conduct a mid-decade census of population in such form and content as he may determine, including the use of sampling procedures and special surveys, taking into account the extent to which information to be obtained from such census will serve in lieu of information collected annually or less frequently in surveys or other statistical studies. The census shall be taken as of the first day of April of each year, which date shall be known as the mid-decade census date.

0:32:07 Andrew: Mid-decade census, censuses, I think, is the proper plural there, have been proposed in their current form since at least 1967, um, and although the implementing regulations have watered them down a little bit, right, and and notice, right, that D allows for those, those mid-decade censuses Censuses, to be sensei?

0:32:30 Thomas: Censuses? I think, yeah.

0:32:34 Andrew: Allows For a mid-decade census to be, to use sampling procedures and special surveys. Right. So that does not comply.

0:32:34 Thomas: Yeah.

0:32:43 Thomas: Like Less intrusive or less, like, not actually going out and trying to actually physically count everybody, but it's more statistical analysis or what?

0:32:54 Andrew: That is that is 100 percent correct. And that is tied to Article one's requirement that the census be an actual enumeration. Right. And actual enumeration means you have to count all the real people.

0:33:07 Thomas: Head Count Yeah. Okay.

0:33:08 Andrew: Yeah, exactly. And again, another one of these things where, you know, if you brought Alexander Hamilton into the future and we're like, so it's

0:33:16 Thomas: There's 350 million people in the country, or whatever it is now? Holy

0:33:20 Andrew: Closing in on 400. Yeah. It's over.

0:33:22 Thomas: Crap.

0:33:22 Andrew: It'S over 350.

0:33:22 Thomas: Hey, Alexander, there's almost 400 million people, do you think we should Still be physically, like, hand counting people? And he'd be like, no, kidding me.

0:33:23 Andrew: Yeah yeah yeah. We're going to line them up. Yes. Everybody get an alphabetical order. Adam Aronson.

0:33:35 Thomas: He'd be like, what a dumb idea. Are you still listening to that thing we wrote on a whim 200 years ago? What in the world?

0:33:40 Andrew: Yeah. And look, you say that, but Article 1, Section 2, Clause 3 of the Constitution has, the next part that I didn't read, then says, oh, and by the way, like, here are some made up numbers for how many members of the House of Representatives each state gets in case we can't count all the people. Right. Like so it was very, very clear that the idea that, you know, it be an actual enumeration, while important, was somewhat less important to the founding fathers to, you know, being able to get stuff done. So I agree with that 100%.

But nevertheless, over right, time, the distinction on actual enumeration has meant to, has served so as to exclude using any kind of sampling methodology, which again, you I could come up with ways in which using statistical analysis might benefit the kind of communities that tend to vote Republican, right? Right. Like there's... there's nothing inherent about statistical sampling. Right. It's a methodology. The question is, what does statistical sampling replace? Right. And what it replaces is it replaces people who fall through the cracks. And because when people fall through, the cracks are overwhelmingly Democratic voters and they get counted as a zero. You can see why the Republican Party is all of a sudden so very interested in having an actual enumeration.

0:35:23 Andrew: But look, like, so we can't necessarily fix the actual enumeration problem. But what we can see is that there is consistent legislative and judicial history that shows that while you have to have at least one census every 10 years, there's nothing to stop you from having more. So 100 percent could, could we, would be tied up. So let me be very, very clear. The danger in apportionment is real. OK. And what I anticipate is that on January 1, which will be before the new Senate is convened, the president will try in his last lame duck couple of weeks to enumerate to the Senate his cooked census results.

0:36:17 Andrew: I don't know that he can do that when the Senate is not in session. And yeah, well,

0:36:21 Thomas: Yeah, well, I'm sure McConnell will be like, we have time for exactly two things. Confirming this justice way too fast and ruining the census. Sorry, no time for a, a second stimulus check though, you guys got like 400 or something 10 months ago. I'm sure you're fine.

0:36:37 Andrew: That's all true. But remember that the new Senate is convened by law on January 3rd. Right. So convening a special like I don't know if if if even McConnell can convene a special section of the Senate on January 1. And if that would survive scrutiny in the courts,

0:36:37 Thomas: Oh, The courts, you say? That

0:37:00 Andrew: I get It. I Get It.

0:37:02 Thomas: Was going to be my next question about all this. I mean, are we going to need to, is all this contingent upon winning the battle of putting more people, not packing, because gosh, that's such a scary word, putting more not insane justices on the Supreme Court.

0:37:04 Andrew: Yeah.

0:37:18 Andrew: It. So no. Okay.

0:37:20 Thomas: Hmm. Who

0:37:20 Andrew: I think this is separate from that battle. Here's the way it plays out. Trump tries to cram through an enumeration to the Senate, either before it's in session, which would have its own problems, or at any point after January 3rd, but before January 21, before hopefully President-elect Biden comes in to replace him. And so long as we win back the Senate, a Democratic Senate could then say, yeah, we don't accept those results. Then leave the Trump administration to file a lawsuit to then demand that those results be taken seriously. Obviously, all you have to do is then run out the clock for two and a half weeks, which, look, that's going to happen.

0:38:13 Andrew: Right. There's no way to get an order requiring apportionment prior to January 21st. Not even from an Amy Coney Barrett led Supreme Court, like just writing the papers is going to take more than two and half weeks. And then the incoming Democratic Senate amends 13 U.S.C. 141 and President Biden signs into law the Census Continuation Act of 2021 that says, OK, we're going to we're go back and fix this data. And until that happens, we're going to continue to use the allocation from the last good data that we had. And we will then expeditiously accumulate as much data as possible to supplement.

0:39:04 Andrew: And as soon as that's done and we have the constitutionally required enumeration, I will transmit that to the Senate, which will then apportion taxes, benefits, and congressional seats in accordance with the revised data. Now, Republicans will be fighting this in court, but again, this is where their techniques of the past four years will come back to bite them in the butt, because all you have to do is get the actual counting done before the wheels of justice have churned so as to spit out a requirement that you use the 2020 numbers. And I feel very confident that between the makeup of the District of Columbia, the District of the District of Columbia and that it has a Naomi Rao and a Justin and a couple of Corys on it, the D.C.

0:40:02 Andrew: Circuit is still a pretty good place, even with no future appointments to to send those appeals. And I feel pretty good that if they try these shenanigans, that we can hold them off in the courts long enough to replace the bad numbers with good numbers. In any event, it is certainly not a foregone conclusion. It's not one of those where it's like, oh, nope, sorry, it's done and there's nothing we can do about it. So once again, Liz Warren had a plan for that. And And we know she's got Biden's ear. Hopefully they try and I don't know. Actually, I was going to say hopefully they trying to be a little more subtle about it. But, you Know, I got to say, yeah, that's right. Like, let's let's I'm all in on hardball. So, you Now, let' let's challenge this nonsense.

0:40:49 Thomas: Cares? Finally, we got him. We got

0:40:59 Andrew: We got him.

0:41:00 Thomas: Him, everybody. Everybody.

0:41:01 Andrew: There we go.

0:41:02 Thomas: Andrew is a constitutional hardball. Yeah, I am glad to hear that this can't necessarily, or I shouldn't say can't, but won't necessarily be totally scuttled by the court. It's nice to have that just in case things go wrong. But so much is already riding on the fact that we need to fix the court and win, and, you know, win the presidency in the Senate and fix the court, that I hope we just do that anyway and it won't matter. So, um, now it's time to thank our Hall of Famers, our all-time greats on patreon.com/law. Andrew, why don't you start us off?

0:41:29 Andrew: Yep. Agreed.

0:41:31 Clip: And thank you, Let's go!

0:41:39 Andrew: Thank you to Nevin Dudes's cow. Wesley Glenn Brock, becoming a patron to get five episodes a week, now to catch up on months of backlog. Yeah, there is a ton. Enjoy. Matt Rogers for Virginia 47th House District. At Casa Agrias, the best brewery. At Emperor's Brewery is a close second. I wouldn't know because neither of those have sent me any beer, and, you know, get on it. Bradford Kitey, the great dooku tree. Attorney General for the Galactic Republic, sorry, a Torn Tree General for the Galactic Republic and District of Hyrule. Thomas Kleberg, Mary Perez, I am an ancestor of Marcus Aurelius, Stoic Tutor Junius Rusticus, Buddy Geierson for Senate, together we can defeat Blank Q Boxman. We are ruthless, may her memory be a blessing. Idea for a screenplay, Air Bud, man's best amicus.

0:41:42 Thomas: Yeah

0:42:32 Andrew: Please vote early and in person to save our democracy. Well, again, you know, based on whatever is best, follow the link from two weeks ago. I have only one or two shots left to say this before it's too late. F and vote Biden. Save America. Agreed. Two fabulous lesbians who too busy on their honeymoon to change their patron name. Well, all right. William Drew Collins. Bob Newhouse. Sassy Italy tourist spends more on Barolo and Barbaresco per year than Trump pays in taxes. Greg Krimer. Re-elect Senator Doug Jones. Vote. Just vote. Vote. Vote, goddammit, vote. See, I even left in the profanity on that one. I didn't pass the bar, but I aced the pub quiz. Cheeky breeky. Well, Welp, there go's my excitement for my new tools, R. I.P., R.B.-G. Jennifer Tchaikovsky, I'm gonna sleep this off.

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What? I don't understand that at all. Uh, I who knows, I, I have spent very little time looking at Ringo Star's penis, but there we go. At infinity, at infinity, David Gould. Is that dash infinity dash infinity? Whatever. David Gold. Putting a pin in this patron name for later. Jake Braun. I'm too sexy to vote Trump. Too sexy devote Trump. Trump needs to be re-impeached. You know what I mean when I, and then the song drowns off. Christopher Brown, online law school with a third grader. What could go wrong? Lawful Copter said he was going to vote Biden, but Trump tweeted Space Force, and now I don't know what to do. The wheels of justice turn faster than the speed. I change my Patreon name.

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0:44:31 Thomas: Wow how do you know that oh

0:45:48 Andrew: Zirkle. Bosnick Pug-a-Pegacorn 2024. Odin the Law Dog is getting a human sibling. Yay. Vizlin the Kobold Monk. Stop asking me to picture Mitch McConnell's naked power grab. It's like a scared turtle. Polly Hernandez. The previous patron name is true. The next patron name is false. Every judge on my ballot is listed as both Dem and Republican. F. New York judicial elections. Um, I really want to do a show on that, by the way, on non-partisan judicial elections, but I can't. But thank you, Patreon. Sorry. Fly Law. Emily Rainbow Spence. Duncan Dixon. Coffee Terry Cannon. I had a Trump interrupts my name change joke queued up, and then he got COVID. I can't work under these conditions. Jason Copas. Hotspear.com supports the Jujitsu Court Act of 2021. I like that title. And and new book, The Greatest Gift of All, a Logical Path From Religion to Humanism, by Mark McLean. Art out November 30th, pre-order now. Thomas, take it away. Yeah.

0:46:16 Thomas: Yeah oh All right, thanks to Punching Fascists Is Not Enough. Get Into Good Trouble. Melania Is a Russian Super Spy. Dealing with Republicans is playing prisoner's dilemma with someone that always betrays you. Drop ethics, go with game theory. Yeah. Liberal, coastal, scotch drinking, anti-air fryer elites. Wait, is that the patron or is that because we're that, right? You and I, but yeah.

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0:47:11 Andrew: Definitely, they

0:47:57 Thomas: I shake My Little Tush on The Catwalk, Philip Kizer, Andrea the Arbitrarian Capricious, Eric Alsman. I like traffic lights. I like Traffic Lights. I like Traffick Lights. Stop equivocating. They're not the same. Vote Biden. Bye, Don. 2020. Wow. I can't believe that's the first time I've heard that joke. I don't know if I have another clever patron name in me. I'm so exhausted. Can we just fix America already? Terrified for the future and lost any shred of hope for humanity. Pain Strumpet, Trambolous, congratulations to Andrew Torrez' Tampa Bay Rays. All right. Right. Assuming they didn't blow their 3-1 lead by the time you're hearing this.

0:48:35 Thomas: Yeah. A world without simile wouldn't be like anything. The Wandering Gambler. I don't want no Trumps. A Trump is a guy who can give COVID to me. SCOTUS uses the Bob's Country Bunker model of religious tolerance. Milo Meadsong is working the polls. Therese Chan. Boston Live Show 2021 with lobsters and karaoke. Join your labor union. Together we bargain, alone we beg. The Republican Party is a string of reprehensible characters. I Nova King Way. James K. Doctor at night, homeschooling our kids in the day. Pretty sure my wife's a superhero. Chad T. Anonymous. Put Some Beans On It are my favorite reminders. Blinders Pins are close second. Oh,

0:48:34 Andrew: Did not no nice

0:49:16 Thomas: No I like, let's change that, we can we can be, we can beat beans pins over beans word origins.org I'm a homer for Pins. Okay, word origin, it's no offense to beans, I'm just saying, I'm gonna fight for my team, Word Origins dot org. Never gonna give you up, never gonna let you down, never gonna run around and desert you. Stop, ask a question T. Gomez would ask. R.I.P. Notorious RBG. Didn't we already get that one? We had two of those? Hope you're all safe and well. Have a good week. Airbud69. It's a dog eat dog world out here. Video killed the Patreon pun.

0:49:17 Andrew: Yeah I agree I agree pins pins over beans there we go I

0:49:54 Thomas: Liz Constitutional Kumite Weeks. Derek. So much delicious epic heresy. Adam Costa. J. Alden Walt. A string of unpronounceable characters. Buttercup's Spooky Cat Hotel now on Facebook. Rhonda 2020 because why the F not? I feel like that has been a patron name for a long time. Still applies. The coronavirus apocalypse is making me too depressed to think of anything clever this week. Malika Chandler. Tricicular manslaughter. Is representation for a cenobite? Let's put a pin in that. Soggy Pants. Matthew Vernon. Sakashite Fukasumi is currently obsessed with the way Professor Eliason enunciates the word particularly. Hmm. Adopt a homeless pet opposed to clawing and ear docking. Don't take legal advice from laser beam monstrosity attorney at law. Heather L. Jeremiah's Fancy Microwave Emporium. Ian and Allie. Dan Irizarry. David in Brooklyn. Eli Bosnick. Sam Denao. I want to see a ghost. Mitchell. No Commutes. So Behind in Podcast. It's 14 days till Election Day. Please vote. Natasha Crunchwrap wants you to support the Justice Policy Institute. Sam Buck.

0:50:12 Andrew: Agree, he's

0:50:59 Thomas: Philatelists support the USPS, and Conrad Michaels, the champion for all time. Whoo, thanks so much, top patrons. And right well, now it's time to get the answer to t3be uh I felt pretty confident about this one, let's find out which music I'm playing.

0:51:07 Andrew: The best

0:51:18 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:51:28 Andrew: Yeah, I love the ones when you're a super confident. I love them when you get it right. And well, I love them always, but I'm always a fan when you get things right. So

0:51:38 Thomas: It's okay, you can root to get for me to get them wrong, it's like I understand it would be, be threatening to your job. Now there's no possible way I could get a hundred percent of these right. I would still not be able to do your job in any way, shape or form. Yeah.

0:51:42 Andrew: No, no. No.

0:51:51 Andrew: Oh, well, since you were so nice to me, I will be nice to you and tell you the answer. So here we go. This was I want to say you absolutely deciphered this question correctly. This was a classic bar exam question that starts off with under state law, a drug company that makes a false fact claim about a prescription drug is strictly liable in tort. Court. And you're like, OK, OK. This is a strict liability question.

0:52:18 Andrew: Right. Yeah. And they're like in an advertisement promoting sales of a particular drug. The company claimed that the drug was safe for children. OK. Suit was filed against a child who was allegedly harmed at the time the child took the drug. At the available medical studies supported the company's claim that the drug was saved for children, but later research proved that the drug was actually harmful to children. And then the total curveball company moves to dismiss the suit on First Amendment grounds. Should the court grant the motion? And you I don't know that you even had a backup answer. You're like, nope, it's

0:52:18 Thomas: Strictly exactly, yeah not

0:52:50 Andrew: Going to be a no answer. And and you went with a which was no, because false or misleading commercial speech is not constitutionally protected. And we can talk about some of the other answers. But Thomas, that is exactly right. Right.

0:52:50 Thomas: Really nailed

0:53:06 Andrew: Core Supreme Court doctrine. That I think bears emphasizing on the Roberts court is that we differentiate between commercial speech and political speech and speech by individuals. And so while there is some expressive content, and again, notice that the case law on this is super duper clear, contains language basically of the sort that I'm about to articulate to you, which is, yeah, the New York Times wants to sell newspapers. Papers. Yes, you know, Fox News wants you to watch their broadcast. Having a commercial interest in promulgating the news, in promulgeting the press, is not the same as commercial speech, which is an advertisement, right?

0:53:05 Thomas: It, yeah

0:53:56 Andrew: And that's what this was. This is an advertisement. This was not a debate about, right, and advertisements get less protection under the First Amendment. And in particular, are pretty much an unbroken line of cases from the start of the late 1970s. So, again, you know, more recently than you'd think.

0:54:18 Thomas: Well, back in the day, you could sell uh, uh, old, don't Pappy's Snake uh Oil Tonic that would you know, like, fix all your joints, and also it has like heroin in it or something. It didn't matter it was fine

0:54:24 Andrew: Exactly. Yeah. Well, no, That, that's right. Right. Like, the way in which these cases come about is because states started passing consumer protection laws in the 1970s and 80s that were designed to protect you against false or misleading advertising. And I love that this question for bar exam purposes is designed to be as sympathetic to the company as possible, which is always a challenge. Um, but in reality, right, these were coming about where, where companies were blatantly lying in advertisements and then going into court going, "No, we're, we're sparking a public debate over the efficaciousness of blah, blah, blah, blah, blah." Right. And and the Supreme Court said and the companies argued this is speech and you would never hold a person liable for false or misleading speech that is nevertheless constitutionally protected.

0:54:30 Thomas: Yeah

0:55:27 Andrew: And and and supreme court was like, yeah, right. But ads, we do. So get out of town and this is fine. And that's what this was testing. Do you know this was a con law question, not a torts question? And you deciphered it. You horned in on the relevant fact. You weren't in onthe fact that the statute is irrelevant other than that's the motivation and got this one exactly right. Right. The I, I actually bit down on the inside of my cheek when reading the no, because the drug business is subject to extensive health and safety regulations. That's just yeah, that's just nonsense. Right. Like if they got a First Amendment right, it doesn't matter whether they're regulated or not.

0:55:40 Thomas: It's just a badly written answer, yeah and also, like, the drug business is, that's just weird construction. I didn't know, I didn't, we were running out of time, so I didn't want to go too much into it, but I was back back on Friday's episode, but I, there was a lot wrong with that answer. I'm glad I sussed out right.

0:56:16 Andrew: Yeah. Yep. C is says liability cannot be imposed for false statements without a showing of actual malice. And that, I don't know, might be the hint to you if you're a if you'RE a harried law student trying to take this exam, which would be like, oh, OK. Yeah, right. That's the non-commercial standard. Right. Because that is the the actual malice standard.

0:56:43 Thomas: Well but didn't we already say strict liability, so it wouldn't matter, or what

0:56:48 Andrew: Well, but remember, if you have a constitutional. So, in other words, said that the law consumer protection statutes would are somewhat like statute at issue in this hypothetical. They impose liability on businesses that say false stuff in their ads that you would not apply that same standard to just a person. Right. Remember, if I defame you on this show, right, if I say something defamatory about thomas smith private citizen.

0:57:17 Thomas: You do all the time I have to, I have to edit so much out, you have no idea how cruel Andrew is. It's just, it's really, it's a, it's, it's a tough experience, but I do it for the listeners. It's okay, constant harassment

0:57:18 Andrew: True. True. Yep. Yep, but but because you're a public citizen. Right. And yeah, that's that's our New York Times v. Sullivan actual malice standard. Right? So in other words, you could not it would not be constitutional to pass a law that says if people say false things about other people, they are liable and can be sued. Right. They're strictly liable in tort for the damages arising from that. Right. Because you do have a First Amendment right. And that First Amendment rights protects your right to at least negligently say false things about people. Yeah.

0:58:03 Thomas: Oh so that answer Is saying, like, the original law would have been unconstitutional in the the question. Okay. So it's not like that bad of an answer. I just, I, okay. I got you. All right. So maybe I dismissed that one a little too hastily, even though ultimately it was the wrong answer.

0:58:09 Andrew: Exactly. Exactly. Exactly. Right. Yep. Yep. Yeah. And Same thing on the public concern that's sort of even, even The worst, again.

0:58:25 Thomas: Well, that was bad, right?

0:58:26 Andrew: Yeah, it's, again, both of those are in are including elements that are in the New York Times v. Sullivan individual standard, so it's, I I feel like they're meant to give you a hint. I

0:58:30 Thomas: Yeah. You know, if anything, I feel like this. Okay, so I'm torn between, I don't know whether or not this exam is getting easier or I'm getting better at it. I worry that this exam was getting easier. Like the online one is easier because like, I feels like the bar could have messed with us a little more because if they would have had one or two answers that was more along the lines of some strict liability BS, you know, like something along that angle, because on one hand I'm thinking like, is this getting easier? But also I think, like, you know, you've helped me learn to notice certain things. I think, I think, uh, episode, you know, 50 of OA, OA 50 version of Thomas would have just seen like, oh, the company has moved to dismiss. Okay. Yeah. Yeah. So they're trying to dismiss. And I wouldn't have like specifically spotted with how they're trying to dismiss, which is on First Amendment grounds and like what, what that would actually mean. So, but I also think the test, I don't know, maybe this test is still easier than the other book. I'm not sure.

0:59:30 Andrew: I I think it's the former, I'm going with that one. I will be and you'll be the negatron. Or

0:59:33 Thomas: Okay. You can be optimistic and yeah, I appreciate it. Hey, I just want to, you know, I'm always trying to get better. Yeah. Someday, some state someday may change their bar rules, right, so that I can just go take it without any experience or anything. And if that ever happens, I will go do it. Oh, oh oh that

0:59:53 Andrew: Or post-COVID, right? Because remember, the only reason you're not technically, uh, under my supervision for the Kim Kardashian rule is because California requires yeah your apprenticeship to to be in person, but like in post COVID, like why the hell should your apprenticeship be in person?

1:00:04 Thomas: Is a great point. Can we get Okay, talk after the show. Can we start this, like, appeals to the bar rules to get this, the wheels turning I could be under your, uh, under your employee, Andrew, I could b that would be so awesome. The ultimate culmination of, of the show. Me becoming an apprentice to, and then I think I have, kill you with a lightsaber after that, right? We'll figure that out later though

1:00:19 Andrew: Um, I'm with you. There you go.

1:00:34 Andrew: We all, we all knew that was coming. I mean, I signed up for that one when I started the show.

1:00:35 Thomas: Yeah I mean that's happening regardless but this will make it more fun. Okay, all, actually I did want to ask you, because we, we have like a minute here, um, what would it, like, ignore the First Amendment thing, what would happen in the case of, like, company makes claim based on science at the time, but later the science changes, like, what would happen there? Are they still just strictly liable because of that law, or what would happen there? Hmm.

1:00:40 Andrew: Yeah. Yeah.

1:01:03 Andrew: Strict liability means that if, if it changes at the time that the injury occurs, then they, they are responsible for the consequences that flow from that. So, in other words, like a negligence standard, this is what, you know, where the debates have been, for example, in the tobacco lawsuits, suits, right, where you knew that this was dangerous at the time, uh, but you said that it wasn't, uh, but then the question would be, if the research changed, so they make the ad, let's, they make the ad in uh 2020, uh, and the research says yes, it's safe, uh, research in 2021 says no, it isn't safe, but the ad is still running, uh, and then the kid takes the drug in 2021, um, would, would that trigger the strict liability under the statute? And the answer there is yes. So strict liability says yeah, um, you're, you're doing a thing if somebody gets hurt doing that thing, uh, you're responsible for it. It is designed, uh, to say we think it's more important to render the plaintiff whole than to, uh, punish or deter or change the behavior of the defendant. Yeah.

1:01:25 Thomas: Huh it was false. Yeah all Right, was just curious about that, but, uh, important part is I nailed the question. Let's play the music.

1:02:24 Clip: You are correct, the best kind of correct. He's not even a lawyer, he's kicking your ass.

1:02:35 Thomas: All right, Andrew, tell us who this week's big winner is of T3BE, and

1:02:39 Andrew: Well, Thomas, this week's winner is John Ronald on Twitter, who writes, "Answer A has to be correct. No 1A right to fraudulent commercial speech." Short, sweet, to the point, not the first one in, but the first that caught our eyes. And so, congratulations, John Ronald, you are this week's winner. Everyone, give him a follow on Twitter at JJRonald71. That is at J J R O N A L D 7 1, and congratulations again on being this week's winner.

1:03:11 Thomas: That's our show. Thanks so much for listening. And we'll see you next time.

1:03:14 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:03:48 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra 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 Arguments 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.