OA458: Biden's Amazing First Day

Transcript

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

0:01:18 Thomas: Hello, and welcome to Opening Arguments, episode 458, you know what, it's episode one. It's episode 1 of Opening Argument, season 2. It's a new day, I just feel so good, Andrew, I don't know why, how are you doing?

0:01:25 Andrew: Yeah, I am fantastic, but I'm extra fantastic today. I do. I think we could do the like, you know, common era, but before comment, right? Like, let's let's I'm in favor of this being.

0:01:46 Thomas: Yeah, we can borrow from like the Silmarillion, I'm sure there's like the Dark Ages, or the, you now, like, there's some sort of, back when Sauron was in the White House.

0:01:55 Andrew: I, Rachel will never forgive me for this, but but I could not begin to trudge through the Silmarillion. I tried. I really did. Elvish poetry is a challenge.

0:02:02 Thomas: It's It's dense, it's dense. It's, uh, it takes a dedicated reader. I think takes a certain type to get through it. I can't remember if I got through the whole thing or not. I think I did, but maybe not. Anyway, uh, I'm fantastic. This is fantastic and fantastic, uh, that's our new show, episode one. Here we go. We didn't realize, last recording, that that was the last Trump era recording. We, it was, you know, since we record on Thursdays, we both kind of forgot. And then wouldn't you know it, that was our last episode in the Trump era. Good riddance.

0:02:34 Andrew: And how fitting it was, too.

0:02:38 Thomas: Oh, it's so nice. I didn't wake up to things exploding on Twitter. Andrew, you're going to have to refresh us. Can you do foreign policy not on Twitter? How would that work?

0:02:48 Andrew: Yeah yeah can you can you hire and fire people without you know uh it being 4 a.m And you're on the toilet, yeah.

0:02:52 Thomas: Yeah. You're going we're going need detailed breakdowns of how that would work. Like, how would they know? How would the world know if it's not, if it doesn't go out on your Twitter account? That sounds impossible. Well,

0:03:06 Andrew: Oh, Yeah. No, we, we got, I, I posted yesterday that it's now safe to follow the at @POTUS Twitter account. Right, it's literally just boring legend, you know, pronouncements about, like, like, okay, here's the link to the text of Executive Order 14,107. Oh, my

0:03:17 Thomas: Yeah.

0:03:29 Thomas: And from here on out, a president was measured by how few followers they could get on that POTUS. Like, they're so boring.

0:03:36 Andrew: God. That would be amazing. Yeah.

0:03:40 Thomas: Well, oh, also in announcement time, aisle 45, clean up on aisle 45. Five first episodes already out because that was the second best thing that happened yesterday for

0:03:44 Andrew: Yeah. No, thank you very much. We're having a lot of fun. AG and I got our first episode out. It is available on all of your podcast vehicles of choice now. I think we've gotten all the bugs worked out. It's called Clean Up on Aisle 45. And we talk about in this week's show, don't know if you saw the story about the power sharing arrangement and like, you know, kind of the the freak out of like, oh, my gosh, you know, Chuck Schumer is collaborating with Mitch McConnell. And, you know, we kind of break that down. And we talked about a bunch of other stuff, too. But you

0:04:17 Thomas: Yeah, right. Because the last time this happened it was a different time basically, right? Like, they're they actually did some. Yeah.

0:04:28 Andrew: Will. The biggest thing is you You have to do something because of math. Right. Because there are only so many Democrats that you can assign to a committee. Right? Like, you know, so all the people who are like, how dare he agree to, you know, an equal number of Democrats on all the committees. And it's like, well, because if you didn't do that, you'd have to just like give some committees over to the Republicans. Right, like you.

0:04:52 Thomas: Let's gerrymander the committees though? Can we find a way to? We'll we'll pop and no, pack and crack. We'll pack and crack this thing. Put the, put all the Republicans in some committee we don't care about, like and then all the good committees, then we have the slight majority.

0:04:55 Andrew: Now that I would be in favor of.

0:05:09 Thomas: Get me Schumer on the phone. I solved it. Yeah. Well, also I want, so apologies, this might bring us down just a touch, but I wanted to throw out that I was recording Serious Inquiries Only last night and I decided to check the math of how close the election was. I was just, just like, I was going to make a point, you know, as, oh, let me check how close, that, now we all know. The first thing everybody's probably thinking is what are you talking about? 7 million votes. Biden crushed it. Gigantic popular vote victory. Yeah. Yeah, but we have the stupid Electoral College, of course. And I was curious. I hadn't seen anything on this. I'm sure it's out there, but I just, I hadn't noticed. And I thought, okay, well, I remember in 2016, we always used to say, right? We'd say Michigan, Wisconsin, Pennsylvania, 77,000 votes or thereabouts.

0:05:09 Andrew: I, like it, I like it.

0:05:56 Thomas: And And I was thinking, well, it must not have been that close this time. Andrew, it was closer this time!

0:06:03 Andrew: Shared those numbers with me and, and I was just blown away and terrified.

0:06:08 Thomas: Andrew didn't believe me. He, like, had to check himself, which I understand, but

0:06:09 Andrew: Yeah, No, I, I not I I in no way failed to to trust your math. I, it seemed like, like, because go ahead, walk, walk through 84,

0:06:14 Thomas: No, I'm just Well, yeah, because it seemed, and I just want to throw that out there. It was funny because I was in the middle of recording and then I, like. I had to react a lot. I was like, I cannot believe this. I hadn't seen it. It's only, you know, because again, it's the same margin as the 38 electoral college votes you would have needed to flip it. And what's funny is 37 electoral college voters, that was even closer. That would have been 43,000 roughly. 43, 000 votes difference in an election where Biden won, got what, 80 million, 81 million votes. So when doing the math, like 37, you know, 38 to win 37 electoral college votes, we were 43,000 votes away from a tie.

0:06:57 Andrew: So break that out for me.

0:06:59 Thomas: That's Arizona. So in order of how close they were, Arizona, 10,000 volts, that's 11 electoral college boats, 10,457 difference. Georgia, we all know that was close, 16 electoral college votes, 11,779. And then Wisconsin was the next closest 20,682 vote win for Biden. And that's 10 electoral college boats. That's 37. We were 43,000 votes to be exact, 42,918 away from a tie that it was that close. And tell us what would have happened in a tie.

0:07:33 Andrew: Tie would have gone to the House of Representatives, where each state votes as a state unit and based on the underperformance of Democrats in 2020 with the, because it would have been, remember, Congress gets seated first, right? Those state delegations, 27 out of 50 favor Republicans. So, that's that that

0:07:52 Thomas: Yeah. So I got it wrong in my episode. I still go listen to it because I talked about about Joe Manchin and some other stuff, but like we were actually 43,000 votes away from a Trump win.

0:08:10 Andrew: That's that is terrifying also, because if you look at at those three states, right, those are two Republican states that we flipped this cycle in Arizona and Georgia. And look like I agree, Stacey Abrams has done amazing work. I agree. Democrats have done amazing work in shifting the underlying demographics in Arizona. But until until we have multi-election cycles in which those states go blue, I'm still going to be nervous. Aren't you still going be nervous?

0:08:20 Thomas: Yeah. Yeah, yeah. Oh, I'm going to be incredibly nervous. Who knows what's going to happen in 2022 and 2024?

0:08:43 Andrew: And Wisconsin, which has been trending away from the Democrats on cultural issues for the last several election cycles, flipped right to Trump in 2016. I was very nervous about it in 2020, and rightly so. And that is without talking about... So in other words, right, if you just look at the typical battlegrounds, right, that is without looking at Pennsylvania and Michigan as well, which are other potential avenues for a loss. Um, or I don't know, the Republican governor of Nebraska and the Republican state legislature of Nebraska saying maybe we don't give Omaha to the Democrats in the next race, like I, it's, there's an awful lot that necessitates that us rebuilding this country and making real gains. So yeah,

0:09:22 Thomas: Yeah so, yeah, let let it suffice to say I'm glad I didn't look at this until after he was sworn in. I know, I know it wouldn't have mattered, but just like stress-wise. I think I didn't need the extra stress. So in an election where Biden won that many votes, I mean, 81 million votes, a massive popular vote victory, it came down to 42,918 votes were the difference.

0:09:55 Thomas: God, and if you don't think everything we did mattered, you are dead wrong. I think I'm not a big fan of this electoral college system, I'm realizing paralyzing just now

0:09:55 Andrew: Yeah, I have nothing to add. That is perfect. No, I, to, I think I'm with you on that as somebody who, you know, uh, made efforts to defend the Electoral College in the past. I unequivocally and unconditionally disavow all of those remarks.

0:10:06 Thomas: Yeah this is this is crazy all right well I just was blown away by that and the fact that you didn't even believe me when I told you made me think maybe a lot of people haven't looked at this so I just wanted to bring it up on the show but that's that's where negativity gone, Andrew, that just means we got to work that much harder going forward, but it's a good day still and we won, do

0:10:21 Andrew: This is super bad. So, no, I think that's perfect. It is. So recognition of your contributions, going to let you decide to roll your own opening arguments today.

0:10:47 Thomas: I get to be the Supreme

0:10:47 Andrew: Day.

0:10:48 Thomas: Court, remember when we did that five years ago, all right overturned Citizens United, is that what I get to do, okay done all

0:10:48 Andrew: Yeah. Oh, man, that's we're going to do another you be the Supreme Court. That's going to be a lot of fun. There you go. Yeah, absolutely. By the power vested in you. No, I have two stories, two big batches of stories that I really, really want want to cover today and I can't choose. So you help me out here.

0:11:02 Thomas: Right

0:11:13 Andrew: The first is I would kind of like to talk about what Joe Biden did on his first day in office. He did 19 things. And that's not counting like, you know, signing up the you know filling out the I-9 form and you know everything else that he had to do at Human Resources. He did 19 things. It's pretty amazing.

0:11:13 Thomas: Get his parking spot, get a

0:11:33 Andrew: Yeah. Yeah, right. You got to get the badge and, you know, go down to talk to Cheryl in accounting. I mean, it's just, you Know, no, it was a pretty amazing day one for the president. So so that's That's choice A. We can talk about it's my first day. Or choice two, this is, I guess, a little more, a lot more of a downer. We can talk About all of the pardon related questions, right? Like, why did Donald

0:11:33 Thomas: Badge yeah onboarding packet yeah, okay choice a are you telling

0:12:04 Andrew: Trump not pardon himself?

0:12:04 Thomas: Me you went through all

0:12:05 Andrew: Can he? 43?

0:12:05 Thomas: 150, however many pardons and read every single one them?

0:12:09 Andrew: Yeah. Are you you surprised by this

0:12:10 Thomas: I am not surprised. That is, wow.

0:12:11 Andrew: Um I yeah, so I've been through every Trump pardon, I want to tackle the like, what about if Trump has a secret pardon in his pocket kind of thing, like yep

0:12:21 Thomas: Yeah. Oh, I've been waiting to ask you that.

0:12:24 Andrew: So, uh, what do you think

0:12:27 Thomas: Oh I have to choose between those? That's impossible. Well, I really, really want to know about the pardons. I can't wait to get to that. However, I feel like those pardons are locked in. They're not changing. Whereas if we get to Tuesday when the next episode comes out for normies, Joe Biden may have done a bunch of other noteworthy stuff that'll make it look like his first day, you know, is kind of outdated. So I think I'm going to have to choose break a breakdown of what he did on his first Day. And then we'll, we'll hear the pardons on Tuesday, but I will say this. I will be eagerly, uh, editing that episode to get it out to patrons early as I always do. So patrons, this is a, this was a good time to be a patron at patreon.com/law. You will get the next episode, which will be all about the pardsons that Andrew went through. And, uh I I'm pretty sure Joe Exotic was not one of them, you'll tell me and we'll break that down, but almost, but almost we'll Break that down for Tuesday, but patrons get that Sunday night.

0:12:49 Andrew: But but almost yeah oh oh, I like that, I like that okay, and and let me add with respect to Just as a little bit of a teaser, I am 99 percent, I'm as confident as you can get that there are no pocket secret pardons for Trump or his corrupt family. And I'll explain why on Tuesday's episode, on Sunday's episode for patrons.

0:13:42 Thomas: Oh, okay.

0:14:15 Thomas: All right, Andrew. 19 things Joe Biden did on his first day. Now, given that Joe Biden is is a secret Republican, I assume he built the wall more separated some more families, banned other religion beyond Muslims from traveling here. Let me see what else they do. Tore up some more climate agreements. So that's my guess since we all know he's secret Republican. What Am I right? Did I get it?

0:14:38 Andrew: Um, you got it. If this were opposite day, um, it, it, the only thing that you could even remotely cast shade on is the 20th thing that Joe Biden did yesterday, uh, which was proclaim it to be a national day of unity. And if you were super cynical, And you're like, well, look, you know, that's just saying a thing. You'd be right. OK, you want to be super cynical. A national day of unity is just a proclamation and it's a speech.

0:14:43 Thomas: Sick burn.

0:14:58 Thomas: Yeah.

0:15:10 Andrew: And, you Know, that'S

0:15:10 Thomas: Have I already said this on this show? Sorry, I can't remember. But like, it's free to say that. I know. Look, We're going to be mad if Joe Biden does something that meaningfully gives more power or sway to Republicans or more handouts to Republicans than he needed to. And we'll be the first ones to be made about that. Saying crap like this is free, it's it's fine, don't worry, it's something he could say that costs us nothing and it's a gesture to make it look like he's trying to be unified, and maybe he even believes it, but it's fun, let's wait to to get our pitchforks out until he actually does something for Republicans.

0:15:17 Andrew: So.

0:15:47 Andrew: Yeah. And obviously, I agree with that. So but but but let's give the naysayers that one. Right. Scratch that off the list of the 19 things that Joe Biden did yesterday. All of them came from the most progressive wing of the Democratic Party, and all of them, like, I've been through each and every one. And I want to highlight the comprehensiveness and the degrees to which this illustrates, I think, an administration that I'm cautiously optimistic is is ready to do the hard work to root out the ways in which Donald Trump has tried permanently to break our government.

0:16:33 Thomas: Huh.

0:16:33 Andrew: Right. So let's go through that, because, look, all of these are executive orders and proclamations. Right. We also have and this is unconfirmed that that the first draft bill that that Joe Biden sent over to Congress was an immigration reform bill. I can't confirm that there's no text of that. And obviously, you know, model legislation has got to work its way through the Congress first. But of our executive orders and proclamations, here's what we've got. And this is, I think, this is the order in which they were posted to the White House website, which, again, kind of interesting to be able to, like, go to one click on WhiteHouse.gov and there's a briefing room slash presidential actions. And it's not like hundreds of pages of crazy. It's just, no, this the stuff broken down into a couple different categories that Joe Biden did.

0:16:53 Thomas: Yeah. Yeah.

0:17:31 Thomas: It Does they Got rid of the page that was like, like actually a lot of slaves were happy with the, you not joke. The 1776 Commission is almost that. I don't know. I was going to make a joke and I bailed out. It's too, it's too dark, but that's actually what they believe.

0:17:40 Andrew: It it really is. Yeah. Yeah, yeah. But one of the things they did was abolish the 1776 commission, which you're stealing my thunder on. So that was

0:17:50 Thomas: So, oh, sorry. I'll put it all that in

0:17:51 Andrew: A joke. No, don't cut all of it. OK, so first thing was a regulatory freeze. What's a regulatory breeze? It is an instruction. This is literally the first thing that Joe Biden put pen to paper on yesterday. And it was telling every single executive agency because, look, we have a situation where Joe Biden has not been able to appoint his heads and get those approved by the Senate where appropriate. And there are lots of Trumpers still at these executive agencies. So what's the first thing you do? You tell every executive branch, guys, number one, no new rules until my guys are in charge. So if you're secretly crafting some horrible, like, anti-trans rule, nope, stop that work.

0:18:43 Thomas: Fact, don't even save a draft of it. That's just, don'T even just get rid of it We don't need just recycle bin that thing and then empty the recycle bin.

0:18:44 Andrew: Yeah, yeah. It 100% says that.

0:18:50 Thomas: It.

0:18:50 Andrew: Yep. Yep. It says any rules that you have transmitted over to the Federal Register but haven't published yet, you are instructed to withdraw those. Right. And to tell the Federal Register, like oops, nope. Didn't mean to do that. Any rules that have been published in the Federal Register, the implementation should be postponed for 60 days and opened up to a 30-day notice and comment period. And I love this part, should actions be identified that were undertaken before noon on January 20th, 2021, right, that is by the outgoing president, To frustrate the purpose underlying this memorandum, I modify or extend this memoranda pursuant to the direction of the president to request that agency heads consider taking steps to address those actions. Right. So literally a like, oh, and if Trump did any super secret stuff to try and cram through an order, you're instructed not to follow that either.

0:19:45 Thomas: Are you reveling in just the sheer competence of this stuff?

0:19:48 Andrew: It's Oh god, yes, it, it, it hit every- there's no right. Remember when we looked at, you know, Trump's first, uh, executive order, Muslim ban, and we were like, well, there's going to be a problem because it's written by idiots.

0:19:57 Thomas: Right. I was going to. Yeah. Yeah, it was written in crayon, you know, like there's a lot. The thing about these executive orders, you know that he undertook on day one is they'll probably actually work. I mean, I guess there is the complication that the court is ruined and maybe we'll shut some of this down. You'll have to tell us. But still, they're going to be written in a way that's actually competent and understands how things works. It's refreshing.

0:20:22 Andrew: Yep, yep, there is already, and I'm not going to go through it in detail, but I will link it in the, the show notes, and an implementing memorandum from the Office of Management and Budget. Right. That describes exactly how to implement this regulatory freeze. So, you know, so that's it. Right. First thing we did. All right. Stop any of the embedded Trump appointees from doing any more harm. Right? That was executive order number one. Executive Order No. 2 is about equity, it uses the term equity the way we progressives use the term equity. Let me read you the definition from the EO.

Quote, the term equality means consistent and systematic, fair, just, and impartial treatment of all individuals, including individuals belonging to underserved communities that have been denied such treatment, such as Black, Latino, Indigenous, indigenous Native Americans, persons, Asian-Americans, Pacific Islanders, other persons of colors, members of religious minorities, lesbian, gay, bisexual, transgender and queer, and then parenthesis LGBTQ plus persons, persons with disabilities, persons who live in rural areas and persons otherwise adversely affected by persistent poverty or inequality. And notice, right, the the the deliberate use of both equity and equality, like the One of the criticisms that progressives have had of the center left is subbing in, oh, yeah, equality of opportunity as opposed to concerns about equity, substantive treatment of individuals.

0:22:02 Andrew: This implements and instructs our executive agencies to engage in data collection and policy recommendations, quote, to embed principles of equity across the federal government. Consistent with that, as you previewed, revokes the racist 1776 Commission, revokes EO 13950. That's the one that just got promulgated in November that prohibited workplace diversity and inclusion training by federal contractors. We have an administration that the second piece of paper they put out was about equal treatment of historically disadvantaged groups in a way that you could not, you can't find somebody farther left that could possibly complain about a lack of inclusion here.

0:22:55 Andrew: Here. Third piece of paper that Joe Biden put out ends all the Muslim bans, right? Revokes Executive Order 13780, Executive Proclamations 9645, 9723, 9983, hereby revoked. This is what the Biden administration has been doing, right? Like not just revoking the bad stuff, but also figuring out how to fix the stuff that the bad stuff did. Right. So Section 1 revokes all the executive orders and proclamations that created the Muslim ban. And Section 2 says, all right, here's how you were also directed to the- the Secretary of State shall direct all embassies and consulates consistent with applicable law and processing procedures, including those related to COVID-19, to resume visa processing in a manner consistent with that revocation and to clear the backlog of cases that were specifically denied as a result of the previous executive order. Right. So, in other words, not just, OK, we're going to stop discrimination going forward, but everybody who was caught up in that net, we're to develop procedures to expedite your entry into the country, if appropriate. Refreshing.

0:24:11 Thomas: Well. Unfortunately, Trump was so dedicated to this Muslim ban that they, you know, let a pandemic get out of control. So no one should go anywhere anyway. But assuming we fix that. Dedication to a cause. I'll give him that.

0:24:12 Andrew: Right.

0:24:22 Andrew: Yeah. Well, and right. That's I mean, again. Yep. Instructing Department of Homeland Security to review whether they're doing an evaluation of the usefulness of form DS-5535. And if you're wondering what the hell is form DS-5535, it was a new form created by the Trump administration that, in addition to the standard questions that you would ask for visas, asked where else you have traveled in the last 15 years and asked you to identify your social media accounts. Accounts. I can't imagine why that would possibly be relevant to a neutral consideration of whether to grant a visa for entry into the United States, and neither can the Biden administration. All right, so that was the third thing they did.

0:25:13 Andrew: The fourth thing they did, I'm going to go really lightly over this, wear a mask and requires federal employees and contractors to wear a mask. We it is the COVID-19 response, naming Dr. Anthony Fauci as the COVID-19 response coordinator, and again, Again, embedded within the executive order, instruction to reduce disparities in the response, care and treatment of COVID-19, including racial and ethnic disparities. Right. We all know on the left, we are sort of keenly aware that those impacts have been disproportionately felt in communities of color. We now have an administration that's included that on their first day of rollout. So that was number five. Number six, comprehensive immigration. This revokes Executive Order 13768.

0:25:18 Thomas: Boy,

0:26:07 Andrew: And that was, gosh, I looked at it and I remembered when we covered that four years ago on this show. But that was a 2017 executive order from Trump's first week in office that was to defund sanctuary cities. Right. Remember that order? And and yeah, it's been enjoined, but there's still pending litigation. Right? Like when I say it's going to be hard to rebuild, that's what I mean. I mean, there was stuff we covered on this show four years ago that I forgot about. Right, and so, yeah. Yeah. Like if if you ever fell prey to the like equivalence, both sides like, but who built the cages, Joe? Like is designed to reverse all of the Trump era policies at the border and concerning immigration. Oh, boy, this one. This is this was my favorite geeky one. The seventh one, that was revoking a large number, six separate administrative executive orders that were designed to handicap the government. And let me take an extra section of this because I don't think anybody else is going to cover this one. This is called an executive order dealing with the, quote, revocation of certain executive orders concerning

0:26:26 Thomas: Yeah. Yeah.

0:27:28 Andrew: Federal regulation. And I know half of of our listeners have already fallen asleep just in my reading that title, right?

0:27:34 Thomas: No, I'm awake. I swear I'm away.

0:27:36 Andrew: Thank You, Thomas. It reminds me, we need to do another deep dive explainer on Chevron deference, right, because here's the overall game, right. Republicans want to make it impossible for the government to do anything because that fits in with their ideology that government never does anything. So they the attack functioning Government from all possible angles, and Chevron deference allows the judiciary to attack the constitutionality of certain regulations from the bench, as opposed to deferring to the agency's own interpretation. That's a huge oversimplification, but remember, they're attacking executive orders and regulations from the judiciary, which they also control. Then They've

0:27:36 Thomas: Mm hmm. Yeah, I mean, I don't very Worried about how any of this is going to go with the with the Supreme Court the way it is. I mean, are you expecting a massive battle over everything where the Supreme Court can just strike down stuff left and right using Chevron deference and other other things, or what are you you expecting there?

0:28:20 Andrew: Also—so here's the thing. Chevron deference kicks in when an interpretation is ambiguous, is capable of having Multiple interpretations. Where it is unambiguous, the courts have no role, right. So it's a question of how broadly is an executive agency allowed to act on the authority delegated to it from Congress to promulgate rules that help us implement statutes, right? Right. And we've given the classic example of, you know, you have gun control legislation, and Congress, rather than writing the name of all the guns into the bill, says, "And such other firearms as the Bureau of Alcohol, Tobacco and Firearms may designate from time to time." Right. And so the question is, when an agency looks at its congressional determination and says, "OK, Congress has said we can do X," they've said we could add firearms to the list of regulations.

0:28:44 Thomas: Yeah.

0:29:34 Andrew: Right. So we've now decided as an executive agency to add the following firearms that would be unambiguous and would not depend on Chevron deference. But suppose that the Bureau of Alcohol, Tobacco and Firearms under that hypothetical gun ban that would never, ever pass also said, oh, and and we're going to add to that list of ammunition and large scale magazines as well. Well, then you would have an ambiguity. Then you would say, OK, a 30 round magazine does not seem to be an assault weapon, as it says in the bill. So the question is, did Congress intend to devolve to the Bureau of Alcohol, Tobacco and Firearms the ability to also add magazines onto the list?

0:30:26 Andrew: And then Chevron deference says, well, you ask the agency, did you interpret this grant as including magazines? Right. And then the agency would either say, yeah, look like it's very clear from the hearings and and from Section two of the bill that says and other paraphernalia that, you know, this was meant to be not just weapons, but everything that goes along with dangerous weapons. Right. And 50 senators spoke from the floor and said, you know, we need to ban high capacity magazines and this bill will do that. Right. Eliminating Chevron deference now means that the court gets to decide in a question of an ambiguity whether which interpretation is correct. It gives no deference to the agency's interpretation.

0:31:14 Andrew: And so you know how the right wingers are going to come out in that case. They're going to be like, oh, no, absolutely. It did not include, you know, the right to ban high capacity magazines. So I guess we wound up doing a little bit of our rabbit trail on Chevron.

0:31:27 Thomas: Yeah. But don't get us started on our deference, which I will never understand, but it's okay. We'll move, moving on. I'll never understand the difference. It sounds like the same. Anyway. So, okay.

0:31:33 Andrew: Yeah, I will. OK. All Fair Enough. So. So in addition to the point of that rabbit trail on Chevron deference was that's a way for a right wing judiciary to attack executive action. Right. Also, what Donald Trump did was promulgate a whole bunch of executive orders that made it harder for executive agencies to do their own jobs. Right. Because they don't care. Right. Like, I mean, remember, it was a point of pride. And this is when Rick Perry couldn't count to three to say, oh, yeah, I would disband the Department of Education. Right. They are happy to bring it down from the inside. So here are the six Trump era regulations that Joe Biden, stroke of a pen, got rid of.

0:32:24 Andrew: OK, one executive order 13771. You might remember this. This was the one that required each agency to eliminate two regulations for every new one they passed. Yeah, that's gone. 13777, which created regulatory reform officers to enforce that previous one. Right. So so I want you to just like chew on the irony of that for a minute. Right, like the party of small government.

0:32:35 Thomas: Yeah, God. Yeah? Create a bureaucracy around trying to get rid of bureaucracy?

0:32:52 Andrew: Yeah, exactly. Oh, my gosh. So that's gone. 13875, that was designed to eliminate one third of federal advisory committees. Right. With the aim of getting down to 350. Why 350? Because that's number Trump picked out of the air and ended in a zero. And so you're thinking like, OK, well, ending advisory committees, what could that possibly mean? Hundreds of advisory committees were abolished pursuant to that executive order, including, just picking one at random, the Board of Scientific Counselors for the Center for Disease Control's Disease Registry was abolished in mid-2019.

0:33:27 Thomas: Hmm. Yeah...

0:33:37 Andrew: Might might have been nice to have had that that government agency around and nothing ever happened.

0:33:37 Thomas: And there were no bad consequences and everything worked worked out. Yeah.

0:33:44 Andrew: But yeah, will say and I tweeted this out from from our account. This is incomplete in the sense that, you know, we've talked about like stopping the bleeding and also rebuilding. We need an executive order restoring those committees that were cut because Because, CDC disease registry was a big one, but lots of environmental committees, advisory committees with smart people making smart recommendations were eliminated as a result of this executive order, right? Right. The EPA's Environmental Laboratory Advisory Board, the National Advisory Advisory Council for Environmental Policy and Technology. I could go through a dozen of these.

0:34:00 Thomas: Yeah, okay. Yeah. What's your sense of, like, I've been... one thing I've really wanted, you know, and look forward to with the Biden administration, is just staffing stuff, like... But it's hard to know, like, any firm numbers on that. I mean, I picture these government buildings just must be full of cobwebs and raccoons and, you know, trash cans, because, like, I can't imagine that that they've been well-staffed through this whole thing. But am I wrong? Is there, have they, you know, what's your sense of that?

0:34:34 Andrew: It's. Uh-huh.

0:34:52 Andrew: I think you're right that these agencies are understaffed, and that really, and you didn't know this was coming. But that dovetails nicely with the next handful of these that were overturned, that were revoked with the stroke of a pen, which created... So, for example, EO 13893 is the PAYGO order, right? And it requires all administrative action costs of any sort to to be offset, um, by, uh, by cutting something else. Yeah.

0:35:16 Thomas: Yeah.

0:35:25 Andrew: No, it's uh blew

0:35:25 Thomas: I'm sorry, but just look at all this BS to try to cut, you now, $50 off a budget somewhere at the expense of leaving us completely unprepared for a pandemic, for example. And then what if you were to just take an overall look, like, hey, Andrew, what was the overall effect of the Trump administration on the budget deficit? A massive hole in it.

0:35:45 Andrew: A massive hole in it. Yeah. Yeah.

0:35:48 Thomas: It's just so insulting, you know, like there, there's no limit to the money they had for a gigantic tax break to the, to the wealthiest among us and corporations. But when it comes to actually providing services that maybe could have helped prevent 400,000 American deaths, um, nah, sorry, we got to get rid of the, like this one guy's position here that would, you Know, it's God infuriating and diming. Like it just, ah,

0:35:49 Andrew: Yeah. Yep.

0:36:11 Andrew: So those Pago rules are gone, and an additional fun Yeah. Yeah, no, but a fun one. Benefit of that is, because the Trump officials were so rabid about wanting to dismantle executive agencies, executive order that just got reversed itself revoked a George W. Bush memorandum on PAYGO, which was M-05-13, because it didn't go far enough. So that one's still gone. And now we got rid of the further right thing that replaced it. A couple of others, I'm not going to go through it. One that, you know, is sort of hiding under the rule of law that basically about this scenario, right?

Right. The EPA notices that you're dumping black sludge into the river. So they send you a cease and desist, and then they open up administrative proceeding against you to get an injunction to stop you from dumping the black sledge into the water. And then you tell them, oh, look, in addition to the like 400 toxic chemicals that are in this black slodge that are on the EPA's prohibited list, there's also this new chemical you've never heard of before that's equally toxic, that that's a part of that sludge. And it's a, but it's slightly different formulation.

0:36:36 Thomas: Right. Hmm. Right.

0:37:31 Andrew: The Trump EO says, oh, no, you have to advise them first before you can send the cease and desist order or get the injunction. Right. So and you don't know. Right. Until you wish. Yeah, it was just it was designed to be a getaway.

0:37:44 Thomas: So under Trump, they're like, no, no. Keep dumping that. No. Yeah. Make sure you keep dumping that and then maybe we'll come back and check on you.

0:37:46 Andrew: Yeah. Yep. So those six separate executive orders were all repealed. That was 13892. Also 13891, which I want to flag because it's one of these that seems like a good idea until you realize that that it's just designed to put sort of more administrative red tape in order to slow down. It required every executive agency to create a searchable database of guidance documents, right? That is all the rules, agency decisions, internal guidance memoranda. And so on the one hand, I love that, right? So you can go now to type it in, epa.gov slash guidance, and all the rules are in one place. So that's super cool. On the other hand, like requiring the agencies to do that, and then potentially listing and invalidating, which was the point of companion EOs, those that are not on the list, right, is designed to sort of attack it from the inside. So I certainly agree that we should have better access to documents because you know how much I love reading documents.

0:38:59 Thomas: Yeah. You sicko. I know what you do with documents.

0:39:04 Andrew: Yes, you do. All right. So that was number seven. Number eight, you might remember we did Opening Arguments, episode 307 on apportionment. And I was talking about the risk that Donald Trump would apportion the census using cooked numbers. Well, you can thank a healthy combination of COVID-19 and incompetence and laziness on the part of Donald Trump. He forgot to do that. Um, I'm serious. Um, so, uh, again, day one, uh, Joe Biden, uh, executive order directing, uh, an a lawful and accurate enumeration and apportionment pursuant to the census, um, directed the count to include all of those living in the United States, which, you know, is what the Constitution requires. Yeah.

0:39:32 Thomas: Yeah. Wow. That's awesome.

0:39:54 Thomas: Yeah, yeah, yeah.

0:39:56 Andrew: Um, but no, the the bad guys will not be able to do the kinds of things we thought they might be able to do in in, uh, OA 307, and to be honest, the kinds of things they could have done a week ago, right? But you know, thankfully Donald Trump had, you know, 87,000 rounds of golf he needed to play at Mar-a-Lago, so uh, good on good on him

0:40:15 Thomas: Plus, he really had to decide whether or not to pardon, you know, a lion tamer or a tiger collector or, you you know, or whatever snake dealer.

0:40:23 Andrew: A snake the cobra king we're gonna get to it. Yeah, we're gonna get it. All right, so that was eight. Number nine, on climate change, revokes the Keystone XL pipeline permit, revokes a whole bunch of terrible Trump executive orders, states as policy it is the policy of my administration to listen to the science, to improve public health and protect our environment, to ensure access to clean air and water, right, and to promulgate rules in connection therewith. So that was climate change.

0:40:26 Thomas: Yeah.

0:40:53 Thomas: And I think that's, Don't you think that significant because the pipeline thing is something that I could have seen, you know, maybe a Democrat 20 years, 10 years ago or whatever, saying, "Yeah, well, I'm all about stopping climate change, but you know, we, we have all this oil, so let's use it," kind of thing. That, that strikes me as a shift in in democratic politics.

0:41:14 Andrew: It. Executive Order 10 on gender identity and sexual orientation is maximally inclusive, right, is saying, in light of the Supreme Court's decision in Bostock, right? Right. That was that the Civil Rights Act of 1964 and Title Seven is what applies to to government positions, that that includes gender identity and sexual orientation. This is a comprehensive order to implement that. It is the policy of my administration to prevent and combat discrimination on the basis of gender identity and or sexual orientation and to fully enforce Title VII and all other laws that prohibit discrimination on said basis. And I love this. It is also the policy of my administration tool to address overlapping forms of discrimination.

0:42:05 Andrew: I want to read you this sentence is in the executive order. And you tell me, you know, if this is what you would expect from a centrist, quote, discrimination on the basis of gender identity or sexual orientation manifests differently for different individuals. And it often overlaps with other forms of prohibited discrimination, including discrimination on the basis of race or disability. For example, transgender black Americans face unconscionably high levels of workplace discrimination, homelessness and violence, including fatal violence. Obviously, it's a travesty that we live in a country in which that happens. It's I'm incredibly proud of an incoming administration, you know, led by a near octogenarian that understands the importance of intersectionality when it when it comes to actions to prohibit discrimination.

0:43:00 Andrew: This is not, this is not lip service. This is somebody who put somebody who is acutely understanding of LGBTQ issues in charge of doing the research and writing the draft of this. CEO. Very proud of it. Eleven is modernizing regulatory review. And I'm just going to skip over that because I'm the only person that cares about that. But I will say illustrates the democratic approach, right, that it says that we, quote, undertake regulatory initiatives that are likely to to yield significant benefits, right. And that's that's the difference between Republicans say it costs a thing and Democrats say, right, but it also benefits us, right?

0:43:46 Thomas: Yeah.

0:43:46 Andrew: And and so, you know, that will be that willbe part of it. Number 12 is an ethics pledge. And, you know., those are binding to varying degrees. This contains paragraph nine says, I acknowledge that this executive order, which I have read before signing any employment document, contains the terms applicable to the obligations and set forth the methods of enforcing them. So what that means is anybody who violates that ethics pledge, which is designed to prevent you from doing what the Trump administration has done, right, coming in and regulating, you know, the company that you You were the CEO of seven minutes ago. This contains a two year moratorium, right, which says, hey, if I was employed by any business, I will not for a period of two years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or my former clients, including regulations and contracts. Um, that's kind of refreshing.

0:44:53 Thomas: I was curious because we, we all, I'm sure, saw the news that Trump reversed his own EO about not letting you know people in his administration become lobbyists for five years, and then I was furious, like, will this be a get out of jail free card for his lobbyists, or can this EO replacement affect, you the ones who just left his his administration?

0:44:57 Andrew: Yeah.

0:45:14 Andrew: Yeah, it's it a complex question. But ultimately, if you were in the Trump White House, in any executive agency under Donald Trump, and left prior to the promulgation of this order, I think you could reasonably rely on the Trump rescission and not be bound by the ongoing, or even the first order. So, yeah, I think it's a it's a massive giveaway because, you know, we never had any intention of draining the swamp, and I think there's no effective way without legislation to curtail, you know, what Betsy DeVos is going to do. And she's going to be a monster, like we know she's been a, she's got a monster her entire life. So You know, passing some legislation would be nice, um, but you know, this is, um, again, I think you're seeing a theme of, yeah, absolutely, they got away with it, yep.

0:45:59 Thomas: Yeah. So they got away with it basically. So they got a way with pretending he cared about the swamp, which we all knew he didn't, but like hiring everybody from, from Goldman Sachs. Uh, but on, there was also the, oh, but he passed a EO that said they couldn't become a lobbyist for five. And then just by revoking it on the last minute of his administration, they all get to do whatever.

0:46:09 Andrew: Yep.

0:46:27 Thomas: Wow.

0:46:27 Andrew: That is correct, yep.

0:46:29 Thomas: I don't like like this Trump guy.

0:46:29 Andrew: Yeah. You shouldn't. All right, uh, I'm gonna go through really quickly EO 13, um, ends the the building the wall, terminates the fake national emergencies, postpones, uh, pauses indefinitely all construction within seven days, so within five days of you, you hearing this, no money can be spent on any contract in connection with building the stupid wall. EO 14 solves deliberate inaction by Donald Trump regarding Liberia. You know, the U.S. has had a long history with Liberia and Africa. Liberia went through two civil wars that that killed almost 10 percent of their population in the early 2000s. And Liberian refugees have been here in the United States. Congress, in a bipartisan way, wants Liberian refugees to be able to apply to become permanent residents of the United States. And because that rollout was complicated by COVID and Trump incompetence, the last omnibus bill, extended the application deadline by another year to December of 2021. But Trump didn't issue an executive order. And so Liberians became eligible to be deported as of January 10th of this year. And this EO puts a stop to that.

0:46:40 Thomas: I don't Wow.

0:47:54 Andrew: It says, no, no. It gives until until June of 2022, a permanent moratorium on on deporting Liberians simply because of a failure to register. So it

0:48:08 Thomas: I will expect from this administration allowing in tons more refugees than we have this past four years. That's very important to me.

0:48:17 Andrew: Very important to me, too. And so, you know, you'll be a fan of EO 15, which was which directs the Department of Homeland Security to preserve and fortify DACA. That's that simple.

0:48:29 Thomas: Yeah, I mentioned that. Yeah, in my episode, DACA is very, very near and dear to me now. We need to pass something on this, right? I mean, this is this is really just a Band-Aid. And I'm curious, curious, you know, I know we're running out of time, but I'm worried about the Supreme Court with this one because, you I know how much they, and honestly they have a case, you know, when they, when they got rid of, DAPA, you that part of it. I mean, this is something I worry about, you know, but I am not the lawyer, are you, are you worried about there being some one weird trick since Trump got rid it now they won't be able to un-get rid of it, yeah.

0:48:30 Andrew: Yep. Yep. Yes, yes, yes. We.

0:48:58 Andrew: It it. I am worried the difference between the DAPA. So the DAPA ruling and again, Fifth Circuit, but, you know, the Supreme Court is as conservative or more conservative than the Fifth Circuit. DAPTA ruling said that that program went beyond the legitimate limits delegated, you Know, by legislation and the difference between DAP and DACA is, you slightly less so. But like, look, there's a very, very good argument in the abstract that that DACA exceeds the authority delegated by Congress. And that argument will be incredibly persuasive to the Supreme Court.

0:49:47 Andrew: So, yeah, I totally agree. It's it's bandaid. It'S, you know, it's defensible and good

0:49:21 Thomas: Yeah. Yeah. That's what I'm worried about. Oh,

0:49:55 Andrew: Lawyers.

0:49:55 Thomas: Yeah. No, I'm not saying you shouldn't do it. Definitely do everything we can. But like, you know, this needs to be a bill.

0:49:56 Andrew: Yeah, yeah, yeah. Absolutely. That is correct. So, okay. And then we have four proclamations. I'll do them super, super quickly.

0:50:08 Thomas: Oh. I think you have to say I do declare before you say.

0:50:11 Andrew: I declare.

0:50:12 Thomas: I do declare.

0:50:14 Andrew: So, number 16, the acting secretary of education is directed to extend the pause on federal student loan payments and collections and keep the interest rate at zero percent.

0:50:22 Thomas: Nice. Yeah. And we'll tune in later for student loan forgiveness, hopefully.

0:50:28 Andrew: Yeah, again, that's right. If you want to say we didn't get student loan forgiveness on day one, we did not get student loans forgiveness on day one, but we did get an extension, an indefinite extension of collecting on student loans and keeping the interest rate at zero during COVID-19, so, um, that's that, that, that paves the way for what I'm sure will be a fight, uh, and, you know, where we're going to be on that side of the fight. Number 17 was a letter sent to, uh, the UN secretary general that said, hey, you know, um, when, uh, Donald Trump said we were going to withdraw from the World Health Organization, yeah, we're not going to do that, that. That required a year advance notice. It was issued July 6th, 2020.

0:51:14 Andrew: And the Biden administration, thanks to you not voting back and thanks to the 43,000 people that ensured we did not reelect Donald Trump, rescinded that before it took effect. You may have heard relatedly the statement rejoining the Paris Climate Accords. That deserves its own episode. So I will just say we did that. And then finally, number 19. And this one has gone unreported absolutely everywhere. And it is exactly what I said I wanted the Biden administration to do on day one. So I have to call them out for this.

0:51:21 Thomas: All right. Cool.

0:51:51 Andrew: It names 34 acting federal agency heads. Right. I will list the names. You will not recognize any of these names. OK, but this is the the the trick that we said the day after the election.

0:51:51 Thomas: All Right.

0:52:05 Thomas: Yeah, well, I thought we didn't need to too, because we control the Senate? Or is this still just worth getting just to do it, streamline it?

0:52:10 Andrew: But but while it is, it is also teeing up, even though we control the Senate. Right. It is teeing Up the battle in the Senate, right, that says, hey, while we're waiting. Right. And while, you know, Mitch McConnell is furiously trying to get Joe Manchin to maybe vote against, you know, the more the most liberal member, like here, here are the people who are going to be implementing our policies in the interim. Right? And so, you want to fight over a candidate that I gave you? Okay. But you're going to to be left with while that fight grinds out. You're going to be left with the folks that we set in line to implement. So, for example, I looked up the acting attorney general. It's guy named Monty.

0:52:40 Thomas: Right.

0:52:50 Thomas: I love it.

0:53:00 Andrew: Monty Wilkinson.

0:52:59 Thomas: Cool. Good Yeah.

0:53:02 Andrew: Monty Wilson was a law clerk to Eric Holder back when Eric Holden was a judge on the Superior Court for the District of Columbia, which is a state court. And he's been the deputy attorney general for human resources for the last like four years, right? So he's been kind of hiding, not in a position to draw the ire of the Trump administration. So he wasn't fired, right. And this is what they did is they dug through 34 of the most important executive agencies and they found reliable civil servants to serve as acting agency heads. And again, like, I just can't emphasize doesn't like this isn't going to go anywhere on, you know, when when Joe Biden delivers his State of the Union address, he's not going to say, well, you now I put in 34 acting federal agency has like literally I'm the only person that cares about this.

0:53:56 Andrew: This is crucial to us getting stuff done in the next month while While the Senate deliberates over Joe Biden's cabinet appointees and and it was really great work. So I'm going to take a deep breath. That is everything Joe Biden promised he would do on day one. Right.

0:54:11 Thomas: What a great day. What

0:54:16 Andrew: He are things that we can say. There are thingsthat we're going to criticize Joe Biden about. Can't you can't criticize day one on?

0:54:17 Thomas: A great day. These are great. Here's What I didn't notice. And I'm having trouble recalling what it is. But what is the thingy that changes every single time the party changes in the in the presidency? It's something to do with, foreign countries and abortion and funding. What, what is that? Thing that Happens every Time the Heidemann, why I didn't Notice that, is that something we still need to do? Yeah.

0:54:37 Andrew: The Hyde Amendment. Yeah. Yeah, it is. As far as I can tell, it is something we still need to do. And it just has to do with the the way in which we characterize lobbying in foreign countries. So it's why Joe Biden has been a very, very he's got 100 percent pro pro choice rating Planned Parenthood. Right? Like I've not concerned that he's secretly going to, you go along with Trump era abortion restrictions. So, yep.

0:54:51 Thomas: No, I was Just remembering something That I, that changes every Time. Okay, and what a great day. Uh, there's so much more to look forward to, and I can't wait to, uh, to get through all the pardons on Tuesday. That's gonna be a Ton of fun, and

0:55:07 Andrew: No, Yep.

0:55:18 Andrew: Oh, man, I have so much fun prepared.

0:55:22 Clip: And thank you. Let's go!

0:55:24 Thomas: And now it's time to thank our new patrons over at patreon.com/law. Hope the lot-awful rooties we put out recently. That was a lot of fun. And all the goodies. We got the Q&A coming up in another...

0:55:38 Andrew: Was A lot of fun to put out. It Was

0:55:40 Thomas: Yeah, it was a little bit of fun to do. And so start us off, Andrew.

0:55:42 Andrew: Yeah. Thank you to Dennis Geller, Matt Pease, Liz Winters, John Tantalo, Austen Pond, Matthew Spiegel, Natalie Bendele, Renee Ketchel, Nick Pilgrim, Nastja M, Ron Squash, and Renee Parsonage. Those are, by the way, some fantastic names. I hope they're real names, like that we got all of those nouns, like a pilgrim, squash, parson Age, like that's Fantastic.

0:56:12 Thomas: Oh, yeah. That's interesting.

0:56:14 Andrew: Not to mention the rhyming of Natalie Bendele, like, but in any event, uh, we, we sincerely love your names. We sincerely Year, leave, love your support. Thank you. And take it away, Thomas.

0:56:20 Thomas: Yeah. Cassholevania.

0:56:26 Andrew: That's Probably Not A Real name.

0:56:27 Thomas: Okay. Thank you. Yeah. Thank you, dude. The guys at the strip club are the only ones who know my real name. Santi Lara. Allison Fredrickson. Lynne Durham. Mark uhl. January20Baby. Yeah. Ding dong, the Trump is gone! Oh, those go together, too. DigyourownDraves. Interesting. Kieran de Terra. Contact Your Doctor For An Insurrection Lasting More Than Four Hours. And Doom. Oh, Doom finally pledged to us. Thanks so much, new patrons. Hope you enjoy all the goodies and the early pardon spectacular that's coming out on Sunday night.

0:57:08 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:57:14 Thomas: Now it's time for T3BE, um, yeah I've got a new streak to not pork everybody. So if you're keeping track at home, this is a good streak. So I don't want to pork it. There'll be no porking. Uh, well there, there may be porking, but I, I will don't root for porking yet. A switch. Now it's like, it's, well, it was real 1984. We were always at war with parking. Uh. We never, we have never wanted to pork. Uh all right, here we go.

0:57:16 Andrew: Now, speaking of fun. Exactly.

0:57:38 Andrew: All right. Thomas, a woman sued a man for physical damages based on a federal statutory claim. The incident occurred within State A, but the woman brought suit in federal court. State A recognizes all of the privileges recognized at common law. At trial, the man called the woman's treating physician to testify as to statements made in confidence to him by the woman in furtherance of medical treatment. The woman objects and claims that the physician-patient privilege applies to her statements. Which law should the court apply to that claim of privilege? Yep. A, the state law, and the court should therefore recognize the claim of privilege. B, the federal law, and the courts should therefore recognized the claim that privilege. C, the state law.

0:58:32 Andrew: The court should, therefore, reject the claim, but privilege. Or D, the federal law, and the court should therefore reject the claim of privilege. Yeah.

0:58:43 Thomas: Oh, because I always get mixed up on these. It doesn't seem to be like a, you know, one where it's like, which court should it actually be in per se? It seems like we're staying in federal court. There's not. Okay. So, woman sued a man for physical damages based on a federal statutory claim. The incident occurred within State A, but the woman brought suit in federal court. Okay. So, we don't have any other states to worry about. State A recognizes all of the privileges recognized at common law. All right. So a trial. OK, here's the man. The man called the woman's treating physician to testify as to statements made in confidence to him by the woman in furtherance of medical treatment.

0:59:28 Thomas: OK, the woman objects and claims that the physician-patient privilege applies to her statement. I know I'm just rereading the question, but it's pretty short. Which law should the court apply? So I'm pretty sure, I - you talking about like you could be suing, I'm pretty sure you brought up an example like we could, I could be in State A, you're in State B, I bring federal charges or something or whatever, federal whatever, and then we could apply the laws of State C. Like I swear you said something weird like that. I think federal court can apply the law of states based on something - thing. I think I remember that.

And what I also noticed is interesting about this question is it does say State A recognizes all of the privileges recognized at common law, but it doesn't give you anything about, I guess I'm supposed to know what the federal law would be on that. Like it, you know, cause it doesn'T give you the other side of that. It just says state. State A recognizes all the privileges, you know, and then I, I assume I wouldn't know which, you know, federal wise, which way it would go. Because if you look at the answers, the answers are two parts, you know, it's, it'S four choices. Cause it's like, two you squared here. Cause we got this, whether we're looking at state or federal and then whether or not the privilege claim should work or not. And it's every combination, every permutation of those things.

And so I do, I don't personally have any information as to what what the federal, like if I went with federal law, I don't know what that would be. I would have to totally guess. Would I guess that it recognizes the privileges? But it would be interesting if both state and the federal law recognizes all of privileges, recognize a common law, then it would Be kind of a weird and pointless question.

1:01:12 Thomas: So because it would be the same, like the result would be the Same either way. So this makes it confusing. I'm not not entirely sure. I think my instincts are that the federal court will apply state law. I, I think that's my instinct based on listening to you on the show. I don't that's what federal court did because oftentimes if I remember right, it's like the federal law might not be complete on everything. Like, you know, there might be a federal statute about this thing, but you know because we've talked about how there's no, there's no federal murder statute or whatever, like they tend to apply the state laws and cases because it's more complete or something like that. I don't know if I'm making that up, but I think that's what I remember you saying.

1:01:57 Thomas: So I'm going to I think That's what I'm going to go with. I'm gonna go with state a in which case and in terms of the actual privilege, this feels to me like something that that is physician patient privilege. I mean, the woman's treating physician would have to testify to statements made in confidence to him the woman in furtherance of medical treatment. It doesn't say, it doesn't give you any indication that like, oh, it had nothing to do with the actual treatment. It was something she said, which would be like a harder question, I think. But this seems pretty textbook physician, patient privilege. Now, text is never straightforward. So I'm probably missing something, but I think I'm going to go with. With, so if we go through the answers, A, the state law and the court should therefore recognize the claim of privilege.

1:02:44 Thomas: I could see an argument for B, I'm between A and B. I think I could see, you know, maybe somehow it's B, the federal law, and therefore the court should recognize the claim of privilege. I wonder if it's like you look to federal first and then to a state or, you know, like I could I'm really between A and B. I just don't know. I'm not not, I think I'm pretty solidly, this should be privileged, you know, and maybe there'll be some trick that actually the federal law doesn't protect it or something. I don't know, but I, how do I make this choice? About this, the thing about the history of me in this bar exam is I tend to go with the most straightforward answer, and it's not right every time, but it's been right, you knows, sometimes I'm wrong about the most, I'm in picking the most straight forward logical answer. And then, but other times it's more complicated answer, but you know, that's done, done me pretty well in the past, but with this new test, that doesn't seem to be the case.

1:03:35 Thomas: They're almost never straightforward. So like I'm, I'm genuinely questioning whether I should just go with like B, um, federal law and therefore the court should recognize the point of privilege. I mean, the incident occurred in the state. Stick with the horse. I'm gonna dance with the horses that brung me. As I always say, this is not going to be right. I don't know. Because if I don'T go with the straightforward answer, anything goes. It could be any answer. You know, it could be maybe the privilege doesn't work. I mean, C, I think I can eliminate pretty solidly. But D, maybe the federal thingy doesn't. I think it's A and B. I'm going to go with A. I'm gonna hope that it's the straightforward answer. A, final answer.

1:04:14 Andrew: Right. And if you'd like to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your guests, your reasons therefore. We will pick a winner and shower that winner with never-ending fame and fortune. Fame payment, fortune not guaranteed.

1:04:27 Thomas: And that's our show. Ah. Hmm. Ah, exhale. So nice. So great.

1:04:32 Andrew: Yeah. Feels So good. Me.

1:04:33 Thomas: So good. I'm very happy, Andrew. Thanks so much for listening, everybody. We'll see you next time.

1:04:39 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.

1:05:13 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.