OA468: SCOTUS News! Trump's Taxes, Affirmative Action, and Title X

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 468, I'm Thomas, that's Andrew, how are doing, sir?

0:01:23 Andrew: I am fantastic, Thomas. How are you?

0:01:26 Thomas: Doing pretty well, pretty, pretty well. Doing okay. Not bad, not great, not bad.

0:01:27 Andrew: Yeah? Nice. Yeah, well.

0:01:36 Thomas: Vaccines almost fully kicked in, I've seen so many people online getting vaccinated, it just makes me so happy to see, people you valuing science and just the utter miracle of science that is this. Vaccine. Well, several vaccines. I mean, it is staggering. We're living through some... Well, we've lived through a lot of history. Honestly, I could use to live through a little bit less history in the next few years, But this is the kind of good part of the history, which is a historically fast, amazing, vaccine that I'm just so excited. I'm a little positive because of that.

And I'm so happy to everybody who's masked up and social distance. I just just really appreciate everything everybody's done. And maybe once we, enough of us get vaccinated, we can start seeing normality, if that's the word. It'd be nice to get back to normal so I'm doing great you yeah how anyway We got a few announcements um for Patrons by the way the free Britney episode we Did bonus episode with Morgan Stringer boy there's a big story there. There's a lot of twists and turns. Too much to talk about, but we tried, and it was really interesting. So go check that out, patreon.com/law.

0:01:57 Andrew: Yeah. Yeah right.

0:02:25 Andrew: Fair Uh Yeah Any level you get uh access to the bonus episode and uh and Morgan is fantastic and we loved uh having her on and um and that was a ton of fun um also just a reminder we we plugged this last week but uh there are two separate essay contests out there we've got links on our website in the show notes one is uh our buddy Andrew Sidle at the Freedom From Religion Foundation um with a contest for U.S. law students where they are giving away a pretty good chunk of money um and then the second is uh my involvement with the Federal Bar Association of Maryland so if you are a high school student in Maryland's uh you can answer the topic prompt of how lawyers can serve roles in fighting against systematic discrimination and injustice in the legal system.

0:03:39 Andrew: So if either of those apply to you or students or friends or whatever, please, please do point folks in those directions. Yeah, get the word out.

0:03:45 Thomas: Get the word out. Excellent. Hey, how was IL45 this week?

0:03:51 Andrew: Oh, it was good. We did the Supreme Court updates that we're not going to cover on this show. So kind of the first look at, you know, obviously the headline news of the Supreme Court declining after an inexplicable four month period of delay, declining to issue injunctive relief to prevent Mazars from turning over Trump's taxes to Cy Vance, the Manhattan district attorney. And uh and as of this record he has those documents so um yeah so we talked about the implication of that on on cleanup um

0:04:30 Thomas: Yeah, damn right he does. Also, it's probably just Because I work with you, but I'm Team Mazars. I don't know why you guys didn't address this on the show. Big, major, major debate. AG says, like, Mazars or something. This she puts the emphasis on the end of it and I look we might be right you and I might be wrong but I also feel like I'm grandfathered into Mazart like I just absorbed that from you so I'm kind of you know I I if if you made me wrong then I'm holding you accountable but yeah but for now uh you know I'm Team Mazars it sounds better I don't know Mazars

0:04:35 Andrew: Oh that I don't want to be right huh I I agree so we we think this could be uh yeah this could could be an AGey

0:05:10 Thomas: This is I'm just trying trying to start our feud yeah no it's not nothing will be that bad oh

0:05:13 Andrew: Thesaurus moment yeah all right what about yeah yes sure it will be what about SIO this week

0:05:21 Thomas: Serious Inquiries Only, so you know, you may remember last week we did the uh repressed memory with uh Carrie Poppy of Oh No, Ross and Carrie, very interesting story, but uh we wanted to tack, we got a few emails about like, well, actually, there's maybe this tiny uh uh theory justification for the science of repressed memories. And Lindsay and I took, well, Lindsay, cause she's scientist, took a look at the evidence and we did a little bit of the other side of that just to give a full picture of the possible science there. There's some interesting stuff. We stand by basically everything we said in that first episode about repressed memory and, and the, the satanic panic and all that stuff is still totally valid, but it was worth, you know, we like being totally clear, as you say on this show, we liked presenting a full feature of the science. And so we would delved into the sort of the other side of that. So it's a super fascinating episode.

0:06:02 Andrew: Oh That sounds awesome. I haven't heard this week's SIO yet, um, largely because I was prepping for this show but

0:06:15 Thomas: Well, I usually release it. Yeah. Like late, like 1am your time on the night before OA. So I feel like it's that it's okay, buddy. It's okay if you don't get to it.

0:06:17 Andrew: Yeah no thanks, it's at the top of my queue but uh you know I I usually am, you know, reading 1100 pages of documents or whatever, but I

0:06:27 Thomas: Uh, yeah, no, I do. You've got doc. You're just in a pile of documents with a, with a snorkel out of the top. I don't blame you for not hearing.

0:06:36 Andrew: Am. All right. Someone make that into a T-shirt. There we go.

0:06:41 Thomas: Oh, yeah.

0:06:44 Clip: The law breaking down

0:06:51 Thomas: We got updates. This South Carolina Senate bill that we already covered. What's the update here, Andrew?

0:06:56 Andrew: Yeah. I bad news and good news, but mostly bad news. So we talked about South Carolina Senate Bill 1 in Episode 466. As we predicted, that was signed into law by South Carolina Governor McMaster the very next day. And then one day afterwards was blocked by a federal judge in South Carolina. Right. So, look, this is something they know is unconstitutional. We talked about all of the sort of poison pills and mechanisms in episode four sixty six. It has at least been enjoined in its entirety from going into effect. So, you know, that's a that's an ice slim read upon which to hold our hopes.

0:07:41 Andrew: But but the moment that the Supreme Court acts to overturn Roe v. Wade, it will spring into effect so, like I said, a tiny bit of silver lining, but an awful lot of black cloud.

0:07:54 Thomas: Oh, I am so nervous. You know, we covered this a long time ago and I've covered it on my show. But just how many of those laws there are. You mentioned it, I think, last week that what, 20, 25 states have these laws that will go into effect the minute the Supreme Court, which might be a little hostile toward reproductive rights. Andrew, it's it's like this sort of Damocles, being held over all of us. It's terrifying. And it just goes to show that we need to get the right people in government. We need to better people at every level and undo this catastrophe.

0:08:12 Andrew: Yeah. Yeah. It I couldn't agree more.

0:08:26 Thomas: Oh, I've got good news. We're not banned in Australia anymore. So that was weighing heavy on my mind. Our Facebook page, we don't really use that much.

0:08:27 Andrew: OK. You know. As as you know, as it should have. I am actually going to link an article in the show notes because, I mean, this is less about the legal analysis now and more about the politics.

0:08:45 Thomas: More about us. Oh.

0:08:47 Andrew: Yeah, well, obviously about us. But it's a it's an article from the BBC online basically saying, you know, in in the war between Australia and Facebook, who blinked first and and their analysis? It's really good article like that. The the top line is, well, Facebook blinked first, which is true. Right. They did so after their initial response was just so ham handed and and stupid that, you know, that that they really had to back down. The net result is that Australia is not going to pass this law. The law was designed to push Facebook and Google into binding arbitration with Rupert Murdoch for compensation. And so since

0:08:48 Thomas: Huh. Wow. This whole thing

0:09:39 Andrew: The parties, yeah, it really does.

0:09:39 Thomas: Sucks. The whole thing sucked, Andrew.

0:09:41 Andrew: Yeah. And that's part of I would encourage folks to to read the article. Right. So they quote, I actually reached out to this guy, Benedict Evans. We'll see if we can get him on the show. But he is a tech consultant and venture capitalist in Silicon Valley. And his analysis, I thought, made total sense to me. He said, everybody involved, it was basically our take, right? Like everybody involved screwed this up, the bill was poorly framed and had a whole bunch of unrealistic elements to it. And then he said, Google caved into extortion too early.

0:10:19 Thomas: Yeah.

0:10:20 Andrew: And then, quote, I like this. Facebook stood on principle, but screwed up by blocking everything instead of just actual news. And that's true. You know, Australia wrote a law that was physically impossible to comply with and has now said, oh, well, it's been a success because we're not applying it to anybody. End of quote. So I just I thought that was that was perfect about that. But, yes, if you are in Australia, go back to sharing out the opening arguments Facebook page over Facebook, because apparently, although we're not good.

0:10:28 Thomas: Yeah.

0:10:56 Thomas: Because we're not paying Mark Zuckerberg to have him share it to our own fans. So if it Needs, if it should be shared, which it should, you, sorry, fans, you got to do it. So please help us out there because otherwise we have to just fork over money to Zuckerberg to get them to show our stuff to our own fans.

0:10:59 Andrew: Yeah, right. Yep.

0:11:12 Thomas: So dumb. Well, anyway, it was just nice of Australia to show us that other countries can be totally dumb as well. Like it's not just all us being stupid all the time. Thank you. Appreciate it. Feel better. All right. And a lessig update. Boy, that was a fascinating episode. I love that one.

0:11:13 Andrew: Yep, yep. Yep. Yep. Yep. It was a lot of fun, and I started, after getting really, really good questions, mostly on our Patreon page, I started digging into the Lessig methodology. So first, I want to give out a plug. I'm going to include the link in the show notes for Stephen Wolf at the Daily Kos, who did a really, really great mathematical analysis on what I would call the inherent Senate gerrymander, right? And we've talked about this, right, like, so gerrymandered congressional districts result in basically an R plus three environment, right? Democrats have to win by three nationwide in order to have a 50-50 split in the Senate, in the House, because of gerrymandered districts, um,

0:12:17 Thomas: I thought it was way more than that.

0:12:18 Andrew: Yeah. No, in the House it's like, it's like a three percentage, um, uh, in-house shift, um, in going back 15 elections, right? Because Senates are six-year terms, but they're staggered, so we elect different one-third of the Senate every two years going back to 1990, um, in terms of the population of states represented. If I told you that in those 15 elections, elections Republicans took control of the Senate out of 15 times, right, two-thirds of the time, how many times do you think, uh, they won overall the popular vote for Senate cast, right? That is, among the various populations of all the states sending folks to the Senate,

0:12:22 Thomas: Okay.

0:13:02 Thomas: Well, you would think it would track pretty closely with a presidential vote. Let's see, because it's by state and the winner of the... Yeah, you'd think it'd track pretty well with presidential vote, and so in 30 years, I think they've won the national popular vote... once. Holy crap, once! I think we've won. I popular vote for president once in that time. I could be wrong. Oh, wait, going back to 90. So then I guess in 90, maybe they might have won it then, you know, or something. I don't know. So I'm going to say once.

0:13:18 Andrew: Go back to 1990, yeah. Um, so once out of 15 is correct, but only barely. And that is from 1996, in which Bill Clinton won reelection. But the Senate races, which produced a 55-45 Republican Senate majority, were split 50.3 percent to the Republicans, 49.7 percent tothe Democrats. Every other race out of those 14, including eight others that produced margins ranging from a 50-50 tie all the way up to a 55-45 majority, the Democrats had majorities that ranged from just over 50 percent to 58 percent in 2000. So that so keep that right of Senate. Yeah.

0:13:57 Thomas: Wow. Slim margin.

0:14:20 Thomas: Jeez. Wait, 2000? What?

0:14:24 Andrew: In 2000. Remember, that's when George W. Bush, quote, won and the Senate was split and the senate was split 50 50 between Democrats and Republicans.

0:14:29 Thomas: Right. Yeah. Quote unquote won. We won 58%

0:14:38 Andrew: We won 58 percent of the Senate popular vote on a national basis, 58 to 42, and yet managed only 50 Senate Democratic Senate seats. So it's

0:14:38 Thomas: Of the popular vote Senate wise. Oh my God.

0:14:50 Thomas: God, this is infuriating. But what about 2004 is my question? Because 2004 was the one where I was kind of granting like, you know, Bush did win the popular vote that year.

0:14:52 Andrew: It's terrible. Yep. Split 50.5 to forty nine point five in favor of the Democrats. So A one percentage margin in favor the Democrats translated into a 10 seat advantage in the Senate. Fifty five forty five for Republicans. So and what it means is today, right, the the 50 members that are the Democratic senators represent fifty six point five percent of the population. Um, the 50 Republican senators represent 43.5 percent of the population. So uh, so there's your Senate gerrymandering. And and that is a jace, obviously the the Lessig presidential plan doesn't uh doesn't fix Senate gerymandering, but remembering that getting to a national winner, winner take all. Part of the goal of that was to diminish the the untoward strength of of small states.

0:15:05 Thomas: Huh.

0:15:55 Andrew: Not that small states, as as Lessig points out, not that they're all uniformly either Republican or Democratic, but that wind up with distorting effects. So If you could see and taste this bacon from moinkbox.com, you would order it right now. But for now, I'm the one who's seeing it and tasting it. It is delicious, and I am telling you, you have got to get moinkbox.com. Oh, Moink Box delivers grass-fed and grass-finished beef and lamb, pastured pork and chicken, and wild-caught Alaskan salmon all direct to your door, helping family farms become financially independent outside of big agriculture. Their animals are raised outdoors, their fish swim wild in the ocean, and Moink meat is free of antibiotics, hormones, sugar, and all the other junk you find prepackaged in the meat aisle. Moink, look, was founded by an eighth generation farmer who uh went on Shark Tank, um, they right said it was the best bacon they ever tasted. Look, I I gotta tell you, it's really really really good bacon. Um, and super sponsors.

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That paves the way for a fantastic question from Joshua T., who writes, complaint about the focus on fracking because of Pennsylvania was weird because Pennsylvania has 20 electoral votes. So even in a proportional system, candidates are still going to spend time there. They're also going to spent time in Texas, Georgia, Florida, Ohio, and Michigan, a.k.a. the current set of what people call swing states. All the proportional system does is guarantee nobody pays attention to Wisconsin, Arizona, Nevada and North Carolina. And I didn't really follow that. So I wrote back to Josh and I said, well, I think Lessig's argument is right now there are no incentives for the parties to play anywhere outside of the battleground states.

0:19:17 Andrew: Under a proportional model, you would look at, for example, Oklahoma Democrats with 32.3% of the vote would gain two of Oklahoma's seven electoral votes. But if they could increase that by a couple of percent, right, up to 35%, right, like, you know, they don't have to kill it in Oklahoma to get another electoral vote. Whereas, yeah, yep,

0:19:16 Thomas: Yeah, mm hmm. Yeah boy. Wouldn't that feel great if you're like in Oklahoma and you're, like, hey, if I'm a Democrat here, I get that I'm only, you know, 33% of the population or so. But if we rally, if I get active, if I get people to the polls, we could get that one extra electoral vote. And that's a very meaningful contribution to the national election. Wouldn't that be such a much better feeling for everybody involved? And by the way, same thing goes for Republicans in blue states. Like, wouldn't that feel so much better than the stupid system we have right now?

0:20:13 Andrew: Right. And so Josh wrote back and said, hey, what would the result have looked like under Lessig's system in 2020? And I was like, that's a great question. Let's go figure it out. And I was

0:20:26 Thomas: Well, you got to figure since Since we won by 8 million votes, that would mean Biden would win by more. But then again, who knows? Okay, I'm not sure where this would go.

0:20:34 Andrew: So that's what I thought, too. And as a result, if you use the Lessig system and the final result would have been Biden 276, Trump 261 and whoever the dipshit libertarian candidate won. Um, that's, that'S one electoral vote from California. Yes. Um, so no, cause of 55 electoral votes.

0:20:58 Thomas: Oh, damn, I thought that was Utah or something. Oh, California. Right.

0:21:03 Andrew: And so if you get 1%, that rounds up to one vote in California. Um. Now 276 is 51.3% of 538. That's exactly Biden's percentage of the popular vote where the overperformance comes from is from rounding errors in Trump's favor. So Trump should have gotten 252 electoral votes. That's 46.9% of 538. And I've uploaded my spreadsheet.

0:21:04 Thomas: Yeah, yeah, yeah. Gotcha.

0:21:22 Thomas: Yeah. Yeah. Mm-hmm.

0:21:33 Andrew: So math majors can double check me on this.

0:21:35 Thomas: You didn't tell me you were doing spreadsheets.

0:21:36 Andrew: But, oh, I

0:21:37 Thomas: Spreadsheets are my thing, man. I'm the best spreadsheet artist in the world. It's my job. I love it. Anyway, that's fine. I would have been too involved.

0:21:39 Andrew: Did this this morning. I got, I got.

0:21:44 Thomas: I would have done VBA programming and just, it wouldn't, it would have made any sense to you. It would have been, it's probably better that you left me out of it. It's fine.

0:21:44 Andrew: Right. Oh, so Trump takes advantage of nine bonus electoral votes that should go to third parties, but they all wind up rounding down to zero. Right. So you look at that and you're like, OK, well, that's only a 15 electoral vote margin. That seems like way more shenanigans. But now remember that unlike the current winner take all system, you can't get massive shifts.

0:21:56 Thomas: Yeah. Yeah. Yeah. No, that, that's a more secure win

0:22:18 Andrew: It's a way more secure win.

0:22:18 Thomas: Than the one we got. The different,

0:22:20 Andrew: Right. I

0:22:21 Thomas: You could do the, you, and this would be further math that I'm not sure you did. You could do same thing analysis I did and anyone can do to say what, what's the actual number of votes to get the quickest electoral college victory for Trump, which was around 40,000 votes in reality, which is, again, a fact that I cannot deal with in my brain.

0:22:40 Andrew: Know.

0:22:40 Thomas: The fact that we're 40, 000 votes away, that's 20, 000 people flipping their votes or more likely 40, 00 people in different states just in a couple of different states, just not getting, you know, getting it together to vote. We were that close. Can you imagine the world we'd be in right now? Everything you did made a difference. Anyway, you do the same calculation for the this system, and I bet you it would be way more than 40,00 votes as the tipping point. Yeah, millions of votes. Yeah. So it's more secure, even though on paper, it looks like a closer, oh man, that would be, you know, that, that'd be in, in Trump's favor to do this system. Yeah, but not really.

0:22:40 Andrew: Yeah. Yeah, it's it's millions. Yeah. So So Now, Where you might have interesting recounts are in states in which the electoral votes get allocated and then you have to break ties from throwing out third party votes. Right. So let me give you a real world example of that, where Republicans would be up in arms. And that is and they're they're Democratic examples of this that I flagged as well. But in Mississippi, because Mississippi has six electoral votes. You're Right. Thinking Mississippi. Right? Trump won by 16 percent. Right, 57.6 percent to 41 percent for Biden. Right. Nevertheless, under the Lessig plan, that would be three and three electoral votes. Because you round up, it would be 3.456 and 2.464. Neither one rounds up to the whole number until you throw out the third party votes, which are enough to put the Democrat over two and a half, but not the Republican over three and a halve. Yeah,

0:23:32 Thomas: So what are the, sorry, I don't remember the rules on throwing out the third party or under this system, what do we do there? Do we, why

0:24:26 Andrew: You you you have to. So what I'm using is I am using the same methodology. And this is actually where if this is reminding you of how delegates got awarded during the primary, that's the system that I used. Right. Yeah. So in other words, you basically throw out the non-viable candidates. Right. And then you look at the percentage of of allocable delegates, this case, allocable electoral votes.

0:24:41 Thomas: Oh yeah, right.

0:24:56 Thomas: But I didn't know that, it doesn't sound like you would have to do that, does it? I mean, that, that that's a result of our, you know, Democrat.

0:25:03 Andrew: If you don't do that, then you wind up with a situation where there are unallocable electoral votes, right, where it would round out. So, for example, the Mississippi, 2.46 rounds to two, 3.456 rounds to three in

0:25:03 Thomas: Oh, I'm sorry. You don't mean nationally viable. You just mean they didn't reach the threshold of a single electoral college vote in that state.

0:25:28 Andrew: That state. That's exactly right.

0:25:29 Thomas: Yeah. Yeah, sorry. My, my, my fault. I misinterpreted what you were saying.

0:25:30 Andrew: Yep. Yep. No, no, no. It made total sense. So there would be a handful of these kind of oddly anomalous results, right? West Virginia is another great example. Now you're thinking it can't be split 50-50. No, it isn't. West Virginia has five electoral votes. But Trump won West Virginia 68.6 to 29.7. And yet that would produce only a single electoral vote margin in the state. A few thousand more votes to the Republican, to Trump, and that's four to one instead of three to two. Same thing in Mississippi. Same things in a bunch of blue states, right? So, for example, yeah, yeah.

0:26:12 Thomas: Yeah. So he would have to go campaign in West Virginia and get to that margin to get that electric. God, this is, would be so much better. It would be such much, much better yet.

0:26:19 Andrew: It's a much better system. Now, the one area and I did not have time to to to fully run all the numbers, but you might think of this as a feature or a bug. But if you are one of our, you know, Jill Stein supporting friends, makes the threshold for winning a single electoral vote by a third party much, much lower. Right.

0:26:44 Thomas: Well, that's, I was going to say this, that in thinking it over, However, it puts a full-on victory further out of reach for third-party candidates, but it makes them more of a pain in the ass, doesn't it?

0:26:57 Andrew: Yeah, absolutely right. Right. And so I can see that swinging both ways. Right. Like on the one hand, I can see that being a much stronger argument if you are, you know, like us shills for the two party system, you Know, defending. But but on the other hand.

0:27:16 Thomas: Well, under the current, my, okay, sorry, just because we'll get the, I don't love the two-party system, but we would have to change the rules to change it. I absolutely detest the people who are trying to like, well, let's just vote for a third party now and that'll get us to, no. You have to change the voting system, which I would be in favor of. Ranked choice voting, some other reform like that. Then we could have some sort of three-party system. Until then, do not waste your stupid vote unless you are a Republican. Then by all means, please vote for the Libertarian candidate.

0:27:25 Andrew: Yeah. Yep.

0:27:46 Andrew: Please Please waste please waste your stupid vote.

0:27:47 Thomas: Absolutely waste your vote. Just want to clarify because we will get emails. There you go.

0:27:49 Andrew: Yeah. Yep. Yep, I know that was said with some sarcasm, but I appreciate the the clarity. So then as near as I can tell in 2016, because the libertarians, God help me, got three point three percent of the national popular vote and Jill Stein got one percent. Right. That allocation would be Jill Stein would have gotten one vote in California in 2016. Gary Johnson would have got two in California and one each in Florida, Georgia, Illinois, Indiana, Massachusetts, New York, Pennsylvania, Ohio and Texas. Texas, and this is my favorite part of all of this, person whose name you've otherwise forgotten, Evan McMullen would have gotten one electoral vote in Utah, yeah.

0:28:23 Thomas: Wow. Oh.

0:28:38 Thomas: I remember Elvin McMullen, yeah, right.

0:28:40 Andrew: He was, he was basically the Utah spoiler guy, right? That's 13 electoral votes to third parties, and then it is unclear, and I know. No, based on popular allocation, Clinton would have got two hundred and fifty nine electoral votes, Trump two hundred and forty eight. And then you have to deal with the rounding error, which is 18 more electoral votes. Would that have been enough to give 11 to Clinton? I don't know, I'd have to do the math. But all of that is a way of saying that the the Lessig plan makes it easier to throw the election to the House of Representatives, which is something to think about in terms of having a multipolar race. So go check my math. I just think there's so much interesting to think about with respect to the Lessig plan.

0:28:43 Thomas: Yeah.

0:29:33 Andrew: And I got distracted for like three hours running numbers, so I had to share that with you.

0:29:38 Thomas: Gosh, in non-Covid times, I would have flown over, we could have had a few brewskis, done some spreadsheeting together, you know, it just would have been so much fun, it's my idea of a good time, actually, you'd be like, hey, but can we play documents? I don't want to play documents, I want to play spreadsheets. Yeah, that would be our argument.

0:29:43 Andrew: Oh. Ah. That's my it's, that's, that is documents and

0:29:56 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no, I thought that was just a figure of speech. Case closed.

0:30:06 Thomas: Okay, time for some SCOTUS updates. We all saw this great news. You mentioned it earlier. Mazars.

0:30:15 Thomas: So, lots of documents going to Vance. And this is unambiguously good news, right? Is there any downside?

0:30:22 Andrew: Yep. Nothing. There is no downside, all the reporting you're seeing is is correct, it also helps explain, right, because, you know, people have have emailed us, you know, and I've sort of said like, hey, you guys were talking about, you know, there's going to be a flood of activity once Trump is no longer president, you know, what gives, and, you know, and I had to answer that with like, well, it's been three weeks, like, you know, but but still

0:30:23 Thomas: Okay, good. Whew.

0:30:46 Thomas: Well, and I specifically, if you remember, I specifically tried to ask about Vance, but I couldn't remember his name. I should have remembered Cy Vance of Vance Refrigeration. That would have been the way I would have remembered it. Anyway, it's reference you still don't get.

0:30:56 Andrew: That's right art fan delay. I don't yeah, so So we were waiting for the Supreme Court, which inexplicably sat on its hands for more than four months. As I said during one of the aisle 45 Q&A's, you know, on this show, I said after the Supreme Court's decision in this case came down in July, all of the major pundits were saying, well, that's going to you know that means that nobody is going to see Trump's taxes before the election. And I said, you know, look, I'm not saying that it's likely, but there is a path for Cy Vance to get those documents before the election. And I will tell you, Trump petitioned the Supreme Court for emergency relief on October 19th of 2020. And had the Supreme court, clearly it was capable of like meeting and in a day or two of being like, yeah, well, this is stupid. And again, this rule was 9-0, right? Like there was no dissent. There was no not even Clarence Thomas decided to go out on a limb on this one. Right.

0:30:59 Thomas: Yeah. Yeah. Yeah. Yeah. So they were just sitting on it for some reason.

0:31:59 Andrew: They just they just sat

0:32:00 Thomas: This is like when I get a bar question wrong, butI know why I got it wrong. This was like you with this prediction. You know, I think you were right in what you predicted, but you also predicted how you would be wrong and you were wrong, but it's all sound.

0:32:00 Andrew: On it. And and.

0:32:11 Andrew: Yep. And I that was that was then that was how it

0:32:15 Thomas: That's because you knew, you knew what was going on. You just were optimistic.

0:32:15 Andrew: Played out. Yep, yep. Exactly right. So we could have had this four months ago. We didn't. But now Cy Vance is free to go to the grand jury and picking up a question that we got asked in our stereo Q&A last night. If there's evidence of other criminality that goes beyond the scope of this grand jury that has been impaneled, Cy Vance can do one of two things. Number one, he can go back to the grand jury and get and seek an additional indictment, superseding indictment on additional charges. Right. And number two, if they're not related to to the specific scope of this grand jury, if their federal crimes, if there in another jurisdiction, he can absolutely 100 percent hand Off that information to another prosecutor. Cuter So, um, you know, times are about to get worse for for the ex-president.

0:33:09 Thomas: There's got to be stuff in there. There has, what are the odds that the guy is a squeaky clean financial record? We already know that he doesn't. Okay.

0:33:13 Andrew: Yeah. Zero. Yeah.

0:33:16 Thomas: So we're, I'm back to hoping I'm backed optimistic. Optimistic.

0:33:17 Andrew: Right, yeah, good. Good, good.

0:33:21 Thomas: Another update, this Students for Fair Admissions v. Harvard case. What's going on here?

0:33:26 Andrew: That's We have talked about that, that was the uh effort by uh right-wing hacks to piggyback on um the the distribution of Asian American students at Ivy League schools to try and eviscerate the last vestiges of affirmative action from our nation's institutions of higher learning. This argument has been solidly rejected by every court that's heard it and is now petitioned to go before the Supreme Court. And I just wanted to read to you the question presented in that cert petition, because it, I think, gives lie you to the balls and strikes argument.

0:34:13 Andrew: Right. Not that anyone needs it who listens to Opening Arguments. But this is the appeal in Students for Fair Admissions, Inc. versus President and Fellows of Harvard College, cert petition filed today to reconsider um and the number, the one question presented is: should this court overrule Grutter versus Bollinger, a 539 US 306, a 2003 case, right, and hold that institutions of higher education cannot use race as a factor in admissions, missions, period, you know, carriage return, end of sentence, end of argument. So, you know, to the extent that that folks were saying like, oh well, you know, this is about, it, no, this was, uh, calling it a Trojan horse is a, you know, an insult, uh, uh, To The Iliad.

0:35:03 Thomas: To Trojans. Yeah.

0:35:04 Andrew: Yeah, like, it, this was never, this was very, very thinly disguised, um, and and it was a Was A clear

0:35:13 Thomas: It's Trojan horse with all the soldiers are on the top of it. Like, let this horse in.

0:35:14 Andrew: Right. Yeah. Now Arthur. Lancelot.

0:35:20 Thomas: Why? Now that's just like a horse. It is not a Trojan horse. That That's just like a big horse that you're riding.

0:35:20 Andrew: And I jump Out Of the rabbit, yeah. Yeah. It's Just it's Just. Yeah, it just a big old horse.

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0:37:11 Andrew: Again, I mean, there it is, you know, you argue with me, but right there, uh, in the text is, hey, I know we had a super conservative Supreme Court in 2003, right, Chief Justice William Rehnquist, Scalia was still on the court, but we think the court is even more conservative and even more activist now, so we want to go back and gut out any ability for any school to care about the composition of its, of its incoming classes from a race-based perspective. And you are, we, we may have listeners, look, like I get the philosophical appeal of total race-based neutrality, I would ask you if you have not thought about the implications of what it does for incoming students to be the only African-American student in a class of 50.

0:38:10 Andrew: Um, think about that. Take a look at the literature and, and give it some additional thought. We've, um, done a bunch on affirmative action. And, you know, I know that our listeners know that, it is not the the quota system parody that conservatives pretend it is. But I, I would 100 percent defend from a social educational perspective that everyone's educational experiences are improved when you have a diverse classroom.

And the current methods so much to protect merit-based applications, something I feel really, really strongly about, tell you, I don't know if I've said this on the air before, but, like, right, I have, from history, uh, I could have, uh, applied and self-identified, uh, as Latino, uh, but, but I don't, Right, um, I don, because of my uh history and and and background in my family and um because I think that it is, it's important that that folks representative of that community, you know, are the beneficiaries of, to the extent that that that is a very, very minor factor in admissions. So anyway, cert petition before the Supreme Court. Hopefully the Supreme Court will not take it. We'll find out, you and we'll keep watching.

0:39:29 Thomas: Have no optimism with the Supreme Court. And speaking of that, let's transition to our third SCOTUS story, the Title 10 cases. But you are going to, Mr. Fantastic, your way out of this one into optimism?

0:39:31 Andrew: I know. I'm Gonna try. So uh this goes back to March, final rules promulgated by Trump's Department of Health and Human Services in March of 2019, we covered it in OA episode 258, um, it is probably outside the Congressional Review Act period, although it's worth looking at at Senate business days to see if we could get rid of this legislatively. If that's the case, then in order to get rid of this policy, Biden's Department of Health and Human Services will have to engage in independent fact finding and overturn it. What is this about? Title 10 is a federal grant program to poor people for family planning, and poor people are the, are those most in need of federally subsidized programs to help with family planning.

0:40:37 Andrew: Right, like all sorts. This is something that used to not be controversial. The abortion intersection is always going to be controversial, but it used to not be controversial. The idea that, like, hey, part of how we make society better is by helping those in poverty who have the hardest time getting access to to family planning services to to to do so. So, right.

0:41:05 Thomas: Mm-hmm.

0:41:06 Andrew: And so as part of that debate, Title 10 explicitly excludes funding for abortions. OK, so no Title 10 dollars can be spent on abortions, the question is, you know, no, no disagreement there. Right. Like it federally funded abortions would 100 percent be a better outcome, even if you are pro-life. Right. Even if you were on the anti-abortion side of the aisle.

0:41:21 Thomas: Which is stupid, by the way. Okay. Anyway, moving on. Well, and yeah, And it's hard because, and I know, you know, there's so much baggage in all the language here. You know, really what it should be is federally funded reproductive health or whatever. And that sometimes includes abort, like drawing a line, you know, it'd be like, if you chose some other medical area and said, okay, but you can't, you gotta help people's blood pressure, but you can't use this certain blood pressure medication. You'd be like, well, sometimes you need to, that doesn't, that's not, it's like such an arbitrary thing brought on by these culture wars, uh, over abortion. And it's it's really not a healthy way of looking at it. And, but we're stuck with it for now because of awful politicians. So, I just, just to clarify it, you know, it shouldn't be about like funding abortions, it should be about funding reproductive health. And that allows every option that your doctor might recommend. Yeah.

0:42:11 Andrew: Yep.

0:42:34 Andrew: And the way you have articulated it is is what animates the debate over regulations regarding Title 10. So let's put that into context. The law, it's now codified at 42 U.S.C. Section 300A-6, but you will see it referred to as Section 1008 because it was Section 1001 of the original bill. Bill, it states as following. It says, none of the funds appropriated under the subchapter, that is Title 10, shall be used in programs where abortion is a method of family planning. And as you're reading that, you're like, well, that seems kind of ambiguous, right?

0:43:21 Andrew: And I mean ambiguous in the legal sense here, capable of more than one interpretation. And certainly one One interpretation is majority interpretation for the majority of time that Title 10 has been in effect, which is, yeah, you can't use Title 10 funds in the program to provide abortion. But if you're counseling someone and they say, hey, do you do abortions? You can say, no, but here's a place that does. Right. That's literally what this fight is about. Out and and if you're thinking that seems like an incredibly narrow ground for this debate um that That's right.

I think to steal me on the other side. Right. The argument would be that in many cases. Right, Title 10 recipients are subgroups of Planned Parenthood. Right So they are essentially referring individuals to themselves. Right And, you know, you might say like, well, that seems like kind of a weird rigmarole that like, you You know, you'd have to say no in connection with this program. We don't do abortions, but, you know, Planned Parenthood does do abortions. And I can refer you to somebody who does. So, you Know, however much you want to credit that argument, let's credit that argument.

0:43:53 Thomas: Hey.

0:44:43 Andrew: But what has gone back and forth sort of between Democratic and Republican administrations is the question of in that ambiguity on Section 1008. Can HHS promulgate regulations that say, no, you can't talk about abortion? You can't answer that question. You can't refer somebody out to somebody who does It's a, you know, as as the Planned Parenthood calls it, a total gag rule. Right. Now layer on top of that, a very, very salient piece of legislation, the Affordable Care Act and under the Affordable Care Act, and and in particular subchapter six, which is codified at 42 USC 18114, this is now a legal requirement.

0:45:37 Andrew: It says, notwithstanding any other provision in this act, the Secretary of Health and Human Services shall not promulgate any regulation that, and here are the medical principles that the ACA protects. That one, creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care. That two, impedes timely access to healthcare services. That three, interferes with communications regarding a full range of treatment options between the patient and the provider. That four, restricts the ability of healthcare providers to provide full disclosure of all relevant information to patients making health care decisions, that five violates the principles of informed consent, the ethical standards of health care professionals, or that six limits the availability of health care treatment for the full duration of a patient's medical needs.

0:46:31 Andrew: Most of those are implicated by a physician having to pretend as though abortion is not a viable medical alternative for individuals who are pregnant.

0:46:46 Thomas: It is just so infuriating. It's small government, except, you know, we're for small government, accept we literally will stop a doctor from saying things that are good medical advice and

0:46:46 Andrew: Yeah, Yeah, that's right. So look, rules went into effect, multiple individuals sued in multiple jurisdictions to enjoin them from going into effect after they were promulgated. My state, Maryland, a permanent injunction preventing them from taking effect. And that was affirmed by the Fourth Circuit and then affirmed en banc by the Fifth Circuit. Right. So as as close to right as as as learned and thorough an opinion as you get when you get an en banc decision, that is Mayor and City Council of Baltimore versus Azar, state did the exact opposite.

0:47:43 Andrew: And the Ninth Circuit actually said, we think that that this is a permissible rule and declined to to enjoin it. And so you have a split among the circuits. Perfect timing for the Supreme Court to step in. And here's why. And I know you're thinking I know your thinking like it's abortion and it's the Supreme court. But this is an application of principles that it's going to make it very, very hard for anybody with pretensions of academic sophistication to rule in favor of the conservative outcome. Right. So in other words, I think they're going to lose Roberts and I think they could lose a Gorsuch or Kavanaugh. And, you know, we've yet to see what Amy Coney Barrett is going to do. We know what Amy Coney Barrett

0:48:01 Thomas: Ruin our lives yeah Yeah.

0:48:39 Thomas: Yeah.

0:48:39 Andrew: Is going to do, she's going to take the the pro-life position. But it could be a narrow 5-4 the other way. I don't think that it will be. I think that there's probably reasons to believe that the Supreme Court is everything I've warned you that it is. But here's the weird breakdown. The Right. Fourth Circuit opinion says that the HHS rule is arbitrary and capricious because it exceeds the authority that was delegated to HHS by Congress as amended by the Affordable Care Act.

And then also there were real problems in how this rule was pushed out. Right. That there wasn't sufficient fact finding. It was clear that it was just, you know, politically motivated and all that. I don't expect the Supreme Court to bite on any of that. Will tell you if they choose. Right. So if you back the Fourth Circuit, you are backing narrow delegation of authority to executive agencies from Congress. If you back the Ninth Circuit, which reached the pro-life outcome, you will be backing Chevron deference. You will be saying, we think that this is within the permissible scope of authority delegated to HHS by Congress. And then once we're looking at what's within the scope of authority, so long as the regulation is not impermissible or unreasonable, you defer to the agency's determination of their own authority. And that's how if you're sitting there thinking like, gosh, I thought the Ninth Circuit was a pretty liberal circuit.

0:50:13 Andrew: Yeah, they are a pretty literal circuit. As we keep pointing out, Chevron deference is not a liberal doctrine in the sense that you always reach liberal outcomes. Chevron deference is an appropriate doctrine in the sense that you default to what agencies determine under particular conditions. And mind you, Maryland court, the Fourth Circuit, did not say we think Chevron difference is bogus. They just said we think that the intervening act of passing the Affordable Care Act took this interpretation off the table. And so therefore, yeah, ordinarily we would defer to HHS, but we're not going to in this circumstance because this interpretation is unreasonable and impermissible because it violates a law that Hey, this is an ad for Honey. No, not the stuff that comes out of the bear's head. This is the free app that finds coupon codes and applies them online while you shop. So if you want to thank this sponsor for supporting the show, head on over to joinhoney.com slash OA. It's a free install. So here's the way Honey works. It automatically installs into your browser when you're shopping online at any of over 30,000 stores.

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0:52:42 Thomas: Do you think this is having our cake and eating it too? Or do you think this is valid reasoning here?

0:52:48 Andrew: Think it's valid reasoning. I think the arguments on the other side are really, really not good. Right. Like the efforts to try and distinguish the the Maryland decision essentially say, well, you know, there was this 1991 Supreme Court decision that predates the Affordable Care Act that upheld similar regulations. And we don't think the Affordable Career Act was meant to change the scope of delegation because, you Know, it doesn't specifically say it. But but the counter argument to that is and the argument for that from the dissent at the Ninth Circuit is the ACA says in its plain language, the secretary of health and human services shall not promulgate any regulation that, you know, does those six things that I read off.

0:53:38 Andrew: And legislators know how to curtail that, right? Like they could have written, "shall not promulgate any regulation pursuant to this act," right? If the ACA had said that, had been meant to just confine that language to what HHS can do to implement Obamacare, then yeah, we'd be in a tough spot. Then I think the Ninth Circuit would be correct as a matter of deference to administrative agency procedures. And we would be left with just having Biden's Health and Human Services overturn this rule. But it would nevertheless go into effect for several years while we do the fact finding and promulgating new rules and that sort of thing, which does real harm to real people who get pregnant over that time period.

0:54:26 Andrew: But I think I got to tell you, I think the statutory argument's really, really good here. And it feels like this is one of these cases where it's going to be a challenge to reach a conservative outcome that doesn't at least give us some good law in an area that is sorely needing good law. So, you Andrew is still right in the sense that this is a garbage Supreme Court and it's going to be garbage until we fix it. And if we don't expand the judiciary, that could be decades. But I keep looking for these cases. And this is why the second I saw this on Monday, I was like, oh, man, I know what I'm doing on away on Thursday. So so So here we go.

0:54:48 Thomas: Okay.

0:55:09 Thomas: Well, I just, I guess if I, I'm the eternal negatron here, I don't know what the value of good law is anymore. Really? I mean, say they do that and then there'll be another case where they're like, well, we don't care about that precedent and we're going to rule the other way on this thing. How much is this court still going to recognize precedent? I don't know. What do you think?

0:55:18 Andrew: I understand that.

0:55:28 Andrew: Look, there's a reason why this is, you know, item number three on the list and item number two was, you know, here's how litigants are out there nakedly saying, yeah, yeah. I know you decided this affirmative action case 17 years ago, but, you know, why not get rid of that? 17 years. That might as well be the 18th century. Yeah. So so there is plenty of space for negatron to operate. I'm not, I'm not going to be able to talk you out of that, um, I

0:55:47 Thomas: Yeah. Eternity. You're not putting me out of business anytime soon. Okay. Well, I think we've left ourselves just enough time for a quick wild card question here. Could Could the Senate have used a secret ballot for impeachment?

0:55:55 Andrew: Am not yeah. Think both you and I were on the same page of it would not have been a good idea even if they could, um, because the whole point of impeachment was to get senators on the record and, uh, and and pin them down for time and eternity. Um, yeah.

0:56:21 Thomas: Well, I mean, I would leave open the idea that if this would truly have freed enough Republicans up to convict, then I'll take it. I don't care how we can. We needed a conviction. So if this were to help, I don't know. Like, but maybe it would have helped. I don't know.

0:56:35 Andrew: Think calling witnesses and having another week would have done far more to shake loose more Republicans, uh, than a secret ballot we we could

0:56:44 Thomas: Yeah, I think I disagree with that, but that's fine. Well, we're out of time. It's wildcard.

0:56:47 Andrew: Yeah. Okay, fair enough. In any event, in any of it, it's a wild card segment. Um, the answer is, and I don't know why nobody else seems to take a definitive position on this, Roberts' rules of order say that in the Senate, any senator, after a call for a voice vote, can request a division, that is, a reading of the ayes and the nays, and the yays and the Nays. And so unless there was unanimous consent to proceed by secret ballot, which there would would not have been. There could not have been a secret ballot without, there could not have been a sacred ballot. It's just, it plainly violates the foundational rules of the Senate. And to change those rules would require a two thirds vote. And I don't know that you could do that in the middle of an impeachment hearing anyway. So I like everybody was saying, I think the way this kind of caught the public imagination is that A lot of lawyers, myself included, were saying as a general principle that like, yeah, the Senate sets the rules for what happens during an impeachment trial, which that's true. And Right.

That is consistent with, you in other words, the presiding officer, be it Chief Justice John Roberts in the first trial or Pat Leahy in the second. And the presiding officer isn't making rulings like a judge. It Right. Is whenever there was a ruling, it was essentially, OK, well, what's the vote? Oh, is there a vote for witnesses? There is. It's 5545. We can call witnesses. Right?

0:56:50 Thomas: Yeah. Hmm. Yeah. Yeah.

0:58:16 Andrew: Oh. Oh, we're not going to. OK, it's fifty five forty five to, you know, introduce this testimony. It's it's 53, 47, 55, 45 to go forward with having the trial in the first place on jurisdictional ground.

0:58:16 Thomas: Yeah.

0:58:29 Thomas: All right.

0:58:29 Andrew: So, yeah, yeah.

0:58:29 Thomas: But, but hear me out. Each Senator gets a buddy, secret buddy. No one knows who it is. You take your buddy's vote and they vote your vote. So there's still, it's not secret in the sense that you still know, Oh, Mitt Romney voted X direction, but you don't know who his buddy was. So it's one weird trick.

0:58:46 Andrew: So so how does Mitt Romney vote his buddy? I don't I don'T get that part.

0:58:50 Thomas: Well, you each get paired with a secret buddy and And you just switch votes. And so we don't know. So like what would happen is a bunch of Democrats would vote no. Some amount of Democrats would vote not to convict. And you wouldn't know like which Republicans they were buddies with. And, you know, yeah, no, there's that's true.

0:59:02 Andrew: But How Would you, how would you deal with faithless Buddies, right? Like If

0:59:08 Thomas: I mean, but it's it's

0:59:08 Andrew: I'm lower in the alphabet, you know, it's Like, oh, Yeah, Chris Coons is my buddy and I, am you Know, Senator Vandalay,

0:59:10 Thomas: Not a it'snot an anti. No, no. There would have to be trust involved. But like presumably this is like, well, the senators want to do the secret ballot, but they don't you know know, like they couldn't legally. So this is the way that they all kind of agree they want to do it. This is this would presume goodwill in the Senate like they want to actually do it. Yeah, it's not like hack proof. I'm just saying it would have been a constitutional, you know, buddy system.

0:59:16 Andrew: Okay.

0:59:35 Andrew: I, I think if you are presuming good faith in the Senate that It

0:59:41 Thomas: Well, you've talked about how this has happened with certain votes where they're like, well, we don't want to make you travel back. You're visiting your, you know, dying relative or something, and we're not going to make you travel back to do this vote. So I'll vote a certain way. Right. Right? Haven't you talked about that before?

0:59:44 Andrew: Does It Does Yeah,

0:59:55 Thomas: Yeah. So it's that, but the secret buddy system, it's my one weird trick. Will you give me this Andrew?

0:59:55 Andrew: I I have. I absolutely have. I will give it to you. There you go.

1:00:01 Thomas: Okay. Thank you.

1:00:04 Clip: And thank you, let's go!

1:00:06 Andrew: Uh-huh.

1:00:06 Thomas: Now it's time to thank our new patrons at patreon.com/law, enjoying all those goodies that we already talked about. A lot of movies. We got the free Britney episode. We've another Patreon Q&A coming your way pretty soon. And so it's my turn first. First, thank you to Nathan Burnett, Literal E, Antonino Picataggi, sorry, I don't know how to pronounce that, Brian, Nicole Heil, Shelby Mueller, Arne Fleisher, Optimus Prime, oh, there you go, and Micki Olivieri. Your turn.

1:00:40 Andrew: And thank you to Adra Pansa, to potatoface, to Windmills work in Antarctica but not in TX, to fnb997. Thank you to Brandon Martinez, Seth Kelter, and Justin Quam. Thank you all so much for supporting the show over at patreon.com/law. Throw us as little as a buck and we will read out your name, even if it's, you know, potatoface.

1:01:09 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:01:15 Thomas: And now it's time for T3BE. Uh, you know what? I don't know why I didn't think of this. I'm just going to get it right. Andrew. I've never tried this before. I have never said this last week. Also, I'm just going get it this time. Here we go. That's what I've decided.

1:01:28 Andrew: And All right, Thomas. To keep its public school expenditures under control in a time of increasing costs, a state passed a law providing that children who have not lived in the state for at least one year cannot attend public schools in the state. Which of the following statements about this law is most accurate as a matter of constitutional law?

1:01:44 Thomas: Oh. Boy, yeah.

1:01:52 Andrew: Yeah, this is I will tell you, this Is a tough question. A, the one year residence requirement is valid because it does not affect any fundamental right or suspect class.

1:01:55 Thomas: I bet. Okay. Okay.

1:02:03 Andrew: B, state durational residence requirements that are established for publicly funded services are constitutional because they relate to government operations reserved exclusively to the states under the 10th Amendment.

1:02:18 Thomas: Holy.

1:02:19 Andrew: C, because publicly funded education is a fundamental right, constitutional right, a state may not deny it to any class of persons who reside in that state. Or D, state durational residence requirements established for this kind of publicly funded service solely for the purpose of reducing state expenditures violate the Equal Protection Clause of the 14th Amendment.

1:02:43 Thomas: Crap. Which is the most accurate? This is wow, yeah.

1:02:48 Andrew: It's a tough one, but it's fair. Tough but fair.

1:02:51 Thomas: Tough but fair. Um, well, I feel like right off the bat I thought we We just had a discussion that education is not like a right or something. So like C is not it, I thought. So we got to see like what's the most – it says what's the most accurate. So it's not even necessarily about the outcome or anything like that. So what is the most accurate statement about this budgetary restriction? So right off the bat, it feels like this would be because it's like, what if you, you know, let's say you had to move for some reason every year, you would not be allowed. Like if every state did this and for some, you, it would essentially then not be allowed to move once a year, year, otherwise your kids couldn't have education, which seems problematic, so it seems like there should be something wrong with this, but I, you know, but who knows, maybe maybe the law just sucks, I don't know. Okay.

1:03:43 Thomas: Most accurate, let's see what we do here. A, uh, one-year residence requirement is valid because it does not affect any fundamental right or suspect class. I mean, honestly, that could be it, maybe. A A strikes me as something that could be right because I don't think education is a fundamental right in this country, unfortunately. And I don't think people who have moved recently would be a protected class, or could, let's see, could that be a protected? I don't think so. I don't think it would be a suspect class. There may be some other constitutional reason why this is bad. Well, it says the one-year residence requirement is valid, though. So, yeah, that would imply that it, there isn't another issue with it. Okay, so A is on the table, at least.

1:04:29 Thomas: B, state durational residence requirements that are established for publicly funded services are constitutional because they relate to government operations reserved exclusively to the states by the 10th Amendment. That could be. How would you say which is more right? There must be something wrong with one of them, I'm guessing. So we'll figure that out. C, because Because publicly funded education is a fundamental constitutional right, a state may not deny it to any class of persons who. See, I think C is the one that we all want to choose, but it's not right. Right. D, state durational residence requirements established for this kind of publicly funded service solely for the purpose of reducing state expenditures violate the Equal Protection Clause of the 14th Amendment. don'T I DON'T really see how D could be it, because like equal protection under the 14TH Amendment, it would imply that it it it wouldn't be protected if there was some other function like it like. If it was about something other than reducing expenditures, then you could do it.

1:05:27 Thomas: But because it's only about reducing expenditures. It violates equal protection. That strikes me as not right. Yeah, I don't like D. if that's the right answer that there's no way I'm getting that. So I don'T think I think I'm eliminating C or D and I'm looking at A or B. don't there's got to be some problem with this, but I don't know what it is. And A and B, I guess, are both, A and B, I guess are kind of both like yes answers. So maybe I've already painted myself into a corner here. Hate this, but I think it might be a God. God, I don't have any confidence. I just, I what even, I can't even think of how this might be even close to a suspect class because it's not, DON'T think new resident to the state is any sort of suspect class that we've, that's ever been, you know, like, I dunno. I think it's A. I'm going with A. I'm probably wrong and I can't wait to continue this streak and not pork it a final answer. And

1:06:15 Andrew: All 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 guess, your reasons. Therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:06:30 Thomas: And every. All right. That's our show. We'll see you next time.

1:06:33 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.

1:07:06 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.