OA615: Rep. Jared Huffman on the Health Share Transparency Act

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 615, I'm Thomas, that's Andrew Torres Esquire, how you doing?

0:01:24 Andrew: I am legitimately fantastic, Thomas, how are you?

0:01:29 Thomas: Same, I am also legit, what a day, Andrew, we got so much, we've got a congressman, Jared Huffman, from from my great state of California, his district is beautiful by the way, I don't think I'm going to take the time to admire it with him, because, you know, Congressman, you only get like five seconds with him, but beautiful district. It's actually the biggest district in California. It covers a lot of the beautiful land up north. I'm excited to talk to Congressman Jared Huffman for reasons that have nothing to do with what I just said, but also that's cool.

0:01:36 Andrew: Oh. Yeah. Yeah.

0:01:58 Thomas: But we're going to talk about Christian HealthShare Ministries because Mr. Torres went to Washington and helped lead lead to some actual change, some actual legislation. So excited to talk to him about that.

0:02:10 Andrew: Me. Too, and I can't wait, we're gonna do a little bit, of course the January 6th committee decided that their testimony was going to be uh in primetime Thursday evening, um, I think Liz Cheney specifically said, well, you know, that will teach those guys over at Opening Arguments to uh know I think

0:02:28 Thomas: We ask should Congressman Huffman about that? We should ask him, hey, can you get them? I know you're not in that committee. Can you get him to schedule this around our show? No, that's okay. We're doing a switcheroo. You know, we try to be flexible here. We're going to wait. Normally we do two in one day. We're gonna wait for our second one until we've seen that hearing, because we want to make sure there's nothing in there we, that's miss, you know, we want to make sure we get Andrew's take on it. So that's the other reason I'm so excited, Andrew. We get a primetime hearing. What's better than a primetime hearing on J6?

0:02:31 Andrew: Yeah right yeah Yeah.

0:02:51 Andrew: I'm a prime time hearing with documents.

0:03:01 Thomas: Oh, is that a teaser or are you just hoping?

0:03:05 Andrew: I am just hoping, but but I think we have good reason to hope so.

0:03:08 Thomas: Well, I'll tell you what they don't have is some Secret Service texts.

0:03:08 Andrew: Yeah. That is true.

0:03:15 Thomas: First question of the day, Andrew, listener Thomas S. asks, what in the world would the the Secret Service. What? What? There's too many questions. How could this happen? I know we don't have many details now, but how could this happened? Could somebody get in trouble for this? Why do you think this happened. What is happening? Go ahead.

0:03:34 Andrew: Let me answer the parts that I can answer about that. Right. So what I can't answer is, you, what happened with this thing that doesn't exist, and, you know, why, we can draw inferences. Right? I asked around on Twitter and to folks in the IT community, and they have confirmed it. And I think it was a useful exercise right, because sometimes your common sense intuitions are are not uh the case, are not backed up, and I I basically said, you what's the likelihood that every uh Secret Service text message from January 5th and 6th got destroyed with no backup uh just by crazy random happenstance, and pretty much everybody agrees that's zero, right, that that there's something that happened here, uh, that is potentially nefarious, uh, we're entering the um, maybe the cover-up is worse than the crime phase, and certainly the

0:04:17 Thomas: Yeah. Yeah, the crime was pretty damn bad. So that's saying a lot.

0:04:30 Andrew: Crime was real bad.

0:04:31 Thomas: It's one thing in Watergate when it was like, well, the prime was like you, you know, broke in a window and try to steal a file like crime was break into the Capitol and try to steal the democracy. It's a bit, yeah, more serious of crime.

0:04:31 Andrew: So Yeah. No. Here yeah yeah the crime was trying to overthrow the government, I agree. Yeah I agree

0:04:42 Thomas: How do they even know?

0:04:42 Andrew: With that.

0:04:45 Thomas: You know, I know this is probably a basic question, but I think this comes up in discovery a lot too, where I sometimes wonder as a normie, as a non-lawyer, how do they ever know that you're not giving them something? And I know with government, I have worked in government, different, obviously, not the Secret Service, but, but I guess usually there's records of everything. There's backups of everything. And so I'm wondering how they knew that there should be texts, but they don't have enough of a backup or a whatever to have them somewhere, that what

0:04:59 Andrew: Yeah. Yep.

0:05:14 Andrew: So let me tackle both parts of that. First, how in a civil case you come to understand that documents have been destroyed, right? That's called spoliation, or or illegally withheld, right? And that is, as you are piecing together your discovery, you see references to things in that discovery that would have been responsive that have not been produced to you. So, for example, I serve a set of document requests. That's the most useful thing in written discovery. Right? Give me your documents, and document request number five says, give me all company records in your possession, custody, or control that refer or relate to the subject matter of this litigation.

0:05:58 Thomas: Please tell me you send them the meme that's all your documents are belong to us, and that's how you request them.

0:05:58 Andrew: Right. Yeah, not quite. But, you know, and then and they send over thirty-four emails. And we're like, we're suing you about like a major acquisition. And you're telling us that, the board you never met. Nobody on the board of directors ever emailed somebody else on the Board of Directors about this hundred million dollar purchase. And they're like nope. And so then you go through those 84 documents or whatever, and you will see a line in there of something like, and, oh, you know, we've got next week's board meetings. Right.

0:06:05 Thomas: Yeah. Right. Right.

0:06:37 Andrew: And so then I write back a little email to the other side that says, confirming that you understood in a document request number five to include the production of all contemporaneous notes taken during any board meeting from the time period X to Y. And then they say, oh, yeah, no, we definitely did. And then, you know, and then I said, well, look, this document seems to indicate there were, in fact, such board meetings, things. So go back to your client and tell me why we don't have any documents and whether we're going to have to go to court for that. So, context clues from what you do have. Also, I may have an email from, you know, presuming my client was on the outside, right? Director of operations sent my client an email. Well, I've got my client's copy of that email, right.

0:07:27 Thomas: Yep.

0:07:27 Andrew: And if you don't turn around and produce that email to me, it's very easy for me to go into court and go, well, well, we know this document at least exists, and so whatever they did to search their records did not produce this obviously responsive document, make them go back and produce it again. Um, and uh, also you can, have it's not quite a taint team, uh, but you can, going, have the court, we saw this in the John Eastman stuff, uh, go back and say, yeah, and we're going to require you to pay for a third party to come in and review these, uh, particularly electronic documents for responsiveness. So part one is you piece the puzzle together, and lawyers are good at this, right.

0:07:37 Thomas: And This J6 committee is good at piecing puzzles together for

0:08:12 Andrew: Yeah. That is absolutely right. So they have lots of pieces of evidence of folks who ought, would potentially have been caught up in uh texts to the executive branch, uh, to know what, what ought to exist, right? And lots of different avenues to kind of figure out, uh, what that universe may contain from an IT, from a technical standpoint, the idea that, uh, you know, these are documents, this is important for the for the second half, for the for the criminal discussion, these are documents that belong to the public under the presidential records act

0:08:12 Thomas: Sure, yes.

0:08:43 Thomas: I was gonna say that I mean again, I I work for state of California, but all, if there, there was ever a probe, a lawsuit or whatever, they can get everything, all our email, everything, like everything we did, our emails, our browser history, I think there's some like horror stories of, you know, like stuff that happened in the state of California when, when there was a lawsuit and these things were opened up, and you that's even just if we deleted them on our end of things, which is what is really a mystery to me, I'm not understanding this.

0:08:45 Andrew: Right yep Yep, and I'm not either, other than to say, uh, folks have said, unless every physical device and backup was, you know, drilled through with a steel bit and then bathed in acid, that there are ways to recover these documents. Documents So

0:09:28 Thomas: Do we know I mean, is there a chance that someone was using a personal phone and that's why

0:09:33 Andrew: Interestingly enough, where I went back to for one of the sources in preparing for this segment was one of our most popular 2016 episodes, right, episode 13 on Hillary Clinton's emails, right, because that is one of the very many statutes that that would potentially apply to anyone who deliberately destroy text messages or other documents belonging to the public. So me set up kind of a couple of guidelines here that are sort of overarching principles that apply. The first is, all of these are records that belong to the public. All of of these are governed by multiple uh very very serious criminal statutes, and we're going to go through each of those, in addition to the criminal statures we talk about as being applicable to the overall one six conspiracy, right? Are you acting in furtherance of the conspiracy to defraud the United States, right? 18 U.S.C. 371, to engage in seditious conspiracy, 18 U.S.C. 2384.

0:09:44 Thomas: Hillary Clinton's damned emails, yeah.

0:10:36 Andrew: Clear. Is this part of a potential witness tampering by destroying a record, right, 18 U.S.C. 1512. So we've talked about all of those, but in addition to those statutes, there are a lot of of specific criminal provisions within the U.S. Code that could potentially cover any activity taken here to delete text messages. We're going to begin with 18 U.S.C. 641, which says whoever disposes of any record or thing of value of the United States shall be fined under this title or imprisoned not more than 10 years or both, right? Now I lied at a whole lot of stuff out of the, but like, that's the sentence, right, if you dispose of any record or thing of value of the United States, all you have to show here, right, is the intent to to destroy a thing and that being a thing of valor.

Okay, put a put a pin in that because there's a there's parallel statute, 18 U.S.C. 1361, that says whoever willfully injures or commits any depredation against any property of of the United States, or attempts to commit any of the foregoing offenses, if the damage or attempted damage to such property exceeds the sum of a thousand dollars, by a fine under this title or imprisonment not more than 10 years or both, or if it does not exceed a thousand dollars, a fine or imprisonment not more than one year or both. So both of those statutes require the thing of value to to have economic value, um,

0:12:07 Thomas: Yeah, what's the value of a J6 committee wanting it? Seems priceless to me, like

0:12:12 Andrew: It It does to me too. Right, you know, we had Beth uh Kingsley on to discuss election law a couple of years ago, right. A thing about oppo research is a thing of value, right? So, uh, would you say that that information has value exceeding a thousand dollars? Um, yeah, I personally would pay a thousand to see those text messages, uh, but, you want to cover all your bases. What if you're not sure that it has any value? Right, you say, okay, well, whoever did this, they're going to argue that, uh, it's just text messages that has no economic value whatsoever.

0:12:13 Thomas: Well, Yeah, I was gonna say, like what if we're, if we're just talking about stuff that incriminates someone, that could be totally economically valueless, you The mystery folder that has all the information. Well, it's just a piece of paper. That's not $1,000. Like, come on.

0:12:44 Andrew: Yep. Right. And so I would argue, if I were a prosecutor, the analogous sections of election law. Right. That says, look, have long recognized for purposes of complying with election law that a piece of paper may have tremendous value if it is, you oppo research, if it isthe candidate's signed confession, lots of things. But okay, you make that argument, I I see your "it's just text messages," and I raise you 18 U.S.C. 2071. Okay.

0:13:31 Thomas: Fold.

0:13:32 Andrew: Now now Again, this is because this is a catch-all statute. It is, uh, three years, right, mandatory maximum of three years in prison, so you'd like to get these guys for 10, uh, but you... but certainly would include his lesser included offense, 18 U.S.C. 2071, "whoever willfully and unlawfully conceals, removes, mutilates, obliterates, destroys, or attempts to do so, any document or other thing filed or deposited with any clerk or officer of any court of the United States or in any public office or with any judicial or public officer of the United States," okay, that's anything,

0:13:32 Thomas: I fold. I'm out.

0:14:07 Thomas: Yeah.

0:14:08 Andrew: Shall be fined under this title or in prison not more than three years or both. So now you do have the willful requirement, right? Like if I accidentally drive over something, you know, that doesn't meet that requirement. Seems unlikely in this case. And I went in and I took a little bit a look at the history, right. 2071 offenses typically apply in a couple of different areas, right, Right. So the first is concealment or destruction of records, which is what we're inferring here. Spoliation. The second is the attempt to do that. Don't remember. Right. Twenty seventy one is a catch-all. You don't have to succeed in destroying the text messages or any of them in order to be found guilty of it.

0:14:53 Andrew: And then the third is, I guess, kind of might what be in in between in terms of the conspiracy stage. And that would be removal of the record from the place where it belongs with the intent to destroy it.

0:15:08 Thomas: That's right. Like, you just put some evidence in a different file just hoping nobody will find it, maybe.

0:15:09 Andrew: Yeah. Yep. Yep. Exactly right. Or you have your Ocean's Eleven style conspiracy. Right? And you can get every person, not just for the conspiracy, but you can get every people involved at every stage, you even if they're just the person who picked up the file and dropped it off on someone else's desk. Right. The

0:15:35 Thomas: Hmm. What if they're the guy that folds themselves up into a suitcase to sneak in? Is that in the statute, Andrew?

0:15:39 Andrew: The gymnast. Yeah, Not quite. Um, and it also, uh, just make it clear subsection B is aimed at the custodian of the records, right?

0:15:42 Thomas: Yeah. No? Okay. Hmm.

0:15:51 Andrew: The person who's responsible for maintaining it. And any custodion who willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys any record shall be fined, uh, not more than two thousand dollars, from prison not more than three years, and shall forfeit his office and be disqualified from holding any office under the United States. So yeah, if there at was a wide-ranging conspiracy, which there would have to be, right?

0:16:15 Thomas: Yeah.

0:16:16 Andrew: Like this is not one person could not just like push the the delete button, you know, and a little clippy pops up and is like, "You're about to destroy presidential records, are you sure you want to proceed?" Like, me? No, it doesn't work that way. And, finally, uh, as I alluded to earlier, earlier, if any of this impacts the national defense, and I think it would be very hard to argue that this does not, right?

We have literally breaching the Capitol, that right is defending the Capitol against all enemies, foreign and domestic, right? So you do not have to show, you know, this is a wartime offense. If, if it impacts on the national defence, we're talking 18 U.S.C. Section 793, this is the provision we analyzed with respect to Hillary Clinton's emails, and it says gathering, transmitting, or losing defense information. Whoever, being entrusted with having lawful possession or control of any document, through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or having knowledge that the same has been illegally removed from its proper place of custody or delivered to any one in violation of its trust, shall be fined under this title or in prison not more than 10 years, or both. Right.

And we concluded that the standard articulated by James Comey at the FBI as to the the Clinton campaign's level of culpability in moving her emails to a private server did not rise to the level of gross negligence as the statute has been applied.

0:17:54 Andrew: It seems pretty clear though that destroying text messages almost certainly would rise to at least that level of gross negligence, right? And so, if you're concerned about the willful elements, as we've talked about in connection with the J6 committee more generally, uh, this is an area where you have multiple different avenues to sort of look at, uh, as this unfolds, uh, how can we go about holding the folks responsible for, uh, deleting what is obviously crucial information, uh,

0:18:27 Thomas: Well, if it comes, it to to mens rea. I mean, once again, I'm sorry, I keep bringing this up, I don't know if it's directly analogous, but for the state of California, when you work for the government, I mean, you don't just delete texts. Like just the fact that something was deleted, I think to my mind would be strong evidence of mens rea, you know. It's not like, "Oh, I was just deleting them for, you know, storage reasons." Like, no, there's all these rules about what you delete and when and how.

0:18:28 Andrew: Yeah.

0:18:50 Andrew: That's exactly right. And again, remember, you know, Michael Flynn chanting, "Can't lock her up." Hillary Clinton did not delete her emails from her time as a Secretary of State. She moved them to a segregated server with the intention of preserving those records. And so and

0:18:56 Thomas: Yeah. Yeah I wonder if we're missing Some basics, like, what do you even think this was? Like, my first thought was, oh, is this about the argument in the beast, the stupid, know, the fucking SUV or whatever, or is this about, do we know what it's about? Could it be about, on the day Trump trying to get someone to take him to the Capitol, and maybe there was an argument with Secret Service? I don't know, like, do we any, any, for sure what it is?

0:19:11 Andrew: Yep.

0:19:32 Andrew: We do not. Other than all of these texts have the possibility to corroborate or disconfirm various stories about what happened. Everybody who was involved here at the highest levels is somebody who is, uh, either themselves under Secret Service protection or was interacting with someone under Secret Service protection, you the president. And not, so not only would there be a report of, you what happened in the beast, and, you know, did the president in fact demand to be driven down to to the Capitol and try and seize the wheel and all of that, but all of the, and again, I I'm looking backwards now. We're only missing January 5th and January 6th data as of right now. But but for example.

0:19:54 Thomas: Mm-hmm. Oh, OK. For sure. On those days. OK.

0:20:20 Andrew: Right. But for example, certainly Secret Service data would confirm the activities at the White House on December 18th. That's right. The unhinged meeting. Yeah. You got to let Sidney Powell into the building. We saw it was poor Cassidy Hutchinson who had to walk drunken Giuliani back to his car. When you're talking about building an overall case. I would not expect to see, you know, smocking guns in the Secret Service text messages. What I would expect to say are indicia of reliability that confirm the rest of the testimony. Yeah.

0:20:31 Thomas: Right.

0:20:57 Thomas: Matching up timelines. Yeah. Well, then. OK, another basic question that I guess I was kind of assuming and didn't know. Is this a new development? Is I know we're just hearing about it now, but like, do you think these texts were deleted recently or were deleted right after they happened? But we're only finding out like, hey, there's a gap recently because they're trying to look for a certain thing.

0:21:19 Andrew: Just don't know. No, I think what we can reasonably infer is we know that the same time that these hearings are taking place and the January 6th Committee is downloading what it knows to the American public, that their research and investigation remains ongoing up to the minute? We saw them turn around Pat Cipollone in a week, right, in three days. So, right, I would suspect that the request has probably come pretty recently.

0:21:52 Thomas: Hmm.

0:21:53 Andrew: But in terms of whether the destruction was recent or old, I think we don't know. We just don't have the basis to to figure that out. And I would point out, again, if you're skeptical, we see this every day. They you know, no one is ever really going to be held accountable again. Think about why you would request Secret Service texts. If you want to pin everything on John Eastman and, you know, Ken Chesebro, you do not need the Secret Service texts that you want that information for people around the president. So it at least tells you the January 6th committee is gathering information with respect to people aroundthe president. And if you can't take that as a positive side, you're too cynical for this show. Bad bad cynicism I

0:21:59 Thomas: Gotcha. Yeah.

0:22:42 Thomas: Well, I guess final question. I mean, are you looking, do you Think they'll clarify tonight? Unfortunately, people already know we're asking about the, You know, the end of a show that we haven't seen yet, that other people, but do you think, do you think we'll get more info on this tonight? Oh,

0:22:48 Andrew: I we will I you have seen now that Liz Cheney likes to drop bombshells

0:23:00 Thomas: Yeah, tune into the end. After credits, you want the after credits J6 scene so I can see Blorco.

0:23:01 Andrew: Yeah hey I I I, Blorko?

0:23:08 Thomas: That's, sorry, deep reference, there's a, there's all meme about like a guy who doesn't like Marvel and he's like, my favorite thing about watching all these Marvel things is some guy comes on after the credits and says, yes, it is I, Blorko, and everybody cheers. And the idea is like he has no idea who that, that was me for a long time? You deep cut, sorry. I

0:23:24 Andrew: Yep, it. I think it's a great, yeah, it's great, great reference. Here's hoping we get a little cameo, a little walk on from Blorkko tonight. And with that in mind, that is, is that the perfect way to introduce a sitting member of Congress?

0:23:37 Thomas: I think so. I think that's absolutely true. We better do it.

0:23:38 Andrew: Yeah, Congressman Huffman is never coming back on our show again.

0:23:43 Clip: Hello! Operator! Give me the number for 911!

0:23:45 Andrew: It is my distinct pleasure to welcome onto the show to introduce to Congressman Jared Huffman, who represents the second district in California. He's a member of the congressional free thought caucus, the congressional progressive caucus, and he is here today to talk about the newest bill that that he has introduced. Congressman, pleasure to talk to you again. And, and thanks for coming on the show.

0:24:08 Thomas: Welcome to the show,

0:24:09 Jared: Well, thanks. It's a pleasure to be with you. And I look forward to a conversation about these health share ministry scams that we're all concerned about.

0:24:19 Thomas: Okay good, glad we're all on the same page on that, people

0:24:19 Andrew: Well, yeah, that that's how, you know, you've been invited on to the show and we're all we're all like minded. So, yeah. You have and sponsored H.R. 8 3 2 4, which is the Health Share Transparency Act of 2022. Why don't you just give our listeners an overview of of what the legislation is meant to do protect to folks.

0:24:43 Jared: Great. Well, thank you. So some of your listeners may have heard advertisements for these health sharing ministries. They're starting to pop up on like Sirius XM radio. I've seen some slick commercials even on cable TV, CNN, other other networks that are targeting people of faith, generally evangelical Christians, and promising them that there is a type of health coverage that is biblical, that is religious, and also will meet their needs and give them great health coverage. And so they're in dollars and subscribers. They now enroll over 1.5 million people in these so-called health share ministries. And it all, I guess, is very lucrative because these companies are growing, business is booming, they're advertising on CNN. You just hope you don't actually get sick and need health coverage because that's where it all breaks down.

0:24:55 Andrew: Yeah,

0:25:42 Thomas: Using religion to make money, I've never heard of that, Andrew

0:25:44 Jared: Yeah.

0:25:44 Andrew: No, We did a multi-part expose and you and I spoke when I gave the presentation in 2021, kind of outlining some of the problems behind these scam sharing ministries. Think you are correct to note that the advertising seems to have increased even more since then in terms of sort penetrating into the public consciousness. I know we when last spoke, they were advertised heavily on Christian radio programs, but not yet on CNN. I mean, they're sort of exploding into the mainstream. What does this bill do?

0:26:14 Jared: Yeah, well, first of all, think I we should go back a little bit and talk about how we came to have this proliferation of health sharing ministries, because Think most people are shocked to find out that this is legal, that it's actually a thing. But there actually was a carve out in the Affordable Care Act that left room for things, things like the Amish community, have Sort of principled religious-based objections to being part of traditional insurance and to have this alternative model of sharing each other's costs and essentially self-insuring. And from that seemingly narrow and obscure exception has sprung this big industry. And that's sort of where we are. Do you agree with that general description?

0:26:30 Andrew: Right. Oh, yeah, I think that's exactly correct as a carve out to the mandatory penalty from the ACA. And in fact, in a sort of no good deed goes unpunished, you saw was a variety of organizations merging with these tiny Amish and Mennonite institutions. Really, this was this was meant to be, conciliation that that should have just been a tiny, a aspect of the law.

0:27:32 Jared: Right. Yeah.

0:27:36 Thomas: If I'm remembering right, wasn't it that they took advantage of a company had to already exist, or a church or something, organization had to already exist at that time and so they'd Like Merge with them in order to make these new entities all

0:27:44 Andrew: Yep. Yep. That's exactly right. And so you will see, you know, example, for Charity, which has come under a tremendous amount of public scrutiny. I believe their operating entity is Charity Mennonite, health distribution of Western Pennsylvania or something, right? Right. Like you can you can kind of see these these roots contained within, you know, sort of a perverse incentive to escape from the the health care mandate from

0:28:15 Jared: But they're clearly operating beyond that Mennonite community. And I guess the question is, do you think the Mennonnites are getting a cut of all of this?

0:28:18 Andrew: Yeah, yeah.

0:28:19 Thomas: Yeah, yeah. Dude.

0:28:26 Jared: So that's what we're dealing with. And in terms of why this bill, well, Well, know, this thing has spiraled out of control. Nobody's regulating it. There are no rules. So what this bill is trying to do is that void by requiring some upfront disclosures so that consumers can be protected. So we require that very basic information is provided whenever they're selling these products, including the fact that they don't cover the same essential benefits that that traditional Affordable Care Act insurance is required to cover, that you probably, in many cases, cannot appeal a denied claim. There's just all these trap doors in these products. And that needs to be made clear to consumers up front in legible font and multiple languages, read out loud if somebody's buying this stuff over the phone, that, you know, the same kind of standards that you would require of an insurance product. So that's one reason for the bill.

0:28:27 Andrew: Mm hmm. Yeah,

0:29:07 Thomas: Oh.

0:29:21 Andrew: And think that's laudable. Have You used the language of buying the product. And I think we that should normalize talking about it that way, the right? Folks who are selling these products use the languageof sharing and voluntary gift And, you know, partnering with us and, you know, biblical commitment. Um, so I, I wanted to highlight that, the comparison, this this is a knockoff unregulated insurance product, Uh, you know, it may be styled as a donation, but, uh, if you fail to maintain your monthly quote donation, uh, you get dropped from the rolls, which sounds an awful lot like a premium to me. Um,

0:29:38 Thomas: Yeah. Can

0:29:50 Jared: Exactly.

0:30:02 Thomas: Talking about the roots of this problem, if, if there's a little bit of room, you know, for sympathy and empathy, given how bad the state of healthcare in our country is, I mean, it's one thing to tell a story of like, here are these bad guys trying to take advantage of people, and they are, but also, I think there's a reason that people are seeking out this kind of thing. Don't you think?

0:30:15 Jared: Yeah. You're exactly right. I mean, before the Affordable Care Act, there was a lot of junk insurance out there. And so, you know, the idea that there may be something better than some of these junk skinny plans that people were getting screwed by, frankly, before The Affordable Care ACT, sure, would make a lot sense. But that's not not allowed anymore. There are essential benefits that have to be covered now because of the Affordable Care Act. I mean, the whole point was to lift up the standards across the board. And unfortunately, these health sharing ministries are taking us backward in that regard.

0:30:25 Thomas: Well,

0:30:55 Andrew: It is there any movement sort you see among your colleagues towards reinstating, uh, the mandate, which was zeroed out during the Trump administration?

0:31:03 Jared: Yeah, I mean that's about politics, right? Would we have the votes to do that in this Congress? I'm sure we would not. But if this, depending on, yeah,

0:31:09 Andrew: Oh, Really, even In Even, In this Congress, as it, as currently constituted,

0:31:14 Jared: I think the mandate would probably muster enough no votes in the Senate that we couldn't codify it, In a way that the Supreme Court would allow. So, we'll see how the election goes and political windows open. And it is something that I think we need to do down the road. Of course, I I think we need to move toward Medicare for all, but that's another conversation.

0:31:34 Andrew: Well, Well, We will have you back on the show. Yeah.

0:31:36 Thomas: My question. Because I know, I mean, I have relatives in these things and I tried to talk to them it was hard for me to find the words to say, no, I know you think you're getting insurance right now. What you're getting is not really insurance. And also, why don't you go ahead and pay way more money than you have for real insurance? And they're like, well, I can't do that. So I'm going to pay this, lower amount of money for something that I think is insurance. You know, it was a hard argument to make.

0:31:37 Jared: Yeah, get out, right?

0:32:02 Jared: It is tough. And look, the upfront disclosures that are in this bill will help perhaps with a lot of people. The second piece of the bill that will help, though, is making sure that there are disclosers and reporting requirements to the government. Government, and that brings us into oversight and accountability, potentially regulation by government agencies that ought to be doing it right now, but they claim that they lack authority and they just haven't been willing to go there. So that's the second piece of the bill, is to really set in motion what hopefully someday will be a robust regulatory framework that these entities have to operate under.

0:32:40 Andrew: As we're sort of transitioning away from the disclosure to the consumer, I, I want to emphasize, because we made a point of this on the show, uh, that one of the disclosure to the customer requirements, it's in subsection C, is whether a participant in the program is going to be forced into arbitration. And usually these are massively one-sided arbitration entities like the Institute for Christian Conciliation, which, take a you wild guess as to whether they can decide with you or with the church, know, which conducts its arbitration out of a drop box in a strip mall. I want to emphasize that that disclosure to the public is real and covers some of the more, uh, crucial areas that that are being hidden.

0:33:10 Jared: Yeah.

0:33:23 Jared: Yeah. Financial information, who's on their corporate board, medical loss ratio. That's a biggie when we talk about insurance-like products, percentage of claims denied, other things that the government really needs to know.

0:33:25 Andrew: Yeah. Yeah.

0:33:29 Thomas: Yeah,

0:33:37 Andrew: That is just really critical, and then the, the second half, as you point out, in terms of when I went to try and uncover aggregate data, you asked me this question directly, you, how big is the market? How many people are we talking about? You know, I had to cobble together estimates, right? Because there is no centralization. There's no kind of single point of contact to formalize complaints, right, what you have is, unregulated. I can't believe it's not insurance.

0:34:06 Andrew: Are you viewing this as sort of first the step in, you we gather the information, we centralize it, we put it in one place, and that then helps direct subsequent action down the road?

0:33:54 Jared: Yeah. Yeah, think so, Andrew, because I think we have a sense that this information is going to tell a story, right? It's going to to tell us that a lot of people are buying this stuff, that a lot of People are getting screwed, that there is abuse and misconduct that I think will make a pretty strong case for regulation.

0:34:35 Andrew: And that, I think, dovetails with my earlier question about the ACA. How, how has this been received by your colleagues?

0:34:42 Jared: Well, I've got a lot of support. I've got, jeez, groups out there supporting this legislation. It is an awesome coalition of patient groups, LGBTQ, LGBTQ advocates, because as you might guess, religious, these health sharing ministries like to deny claims if it has anything to do with something that they think the LGBT community might be doing in its lifestyle, but also secular groups. And I've got a whole bunch of colleagues that have signed on as co-sponsors. So we're off to a great start.

0:35:15 Andrew: That's really encouraging. Um, I know there, there are no safe predictions in politics, but you, uh, think things are moving in the right direction?

0:35:22 Jared: I think we're starting the the conversation. I hope this is legislation that could actually make it out of the House and onto the, you know, nothing happens in the Senate, let's face it. But, you know, my job, the part of this government I can control is the House. And I think this is the kind of bill that we ought to be able to pass out of the House?

0:35:43 Andrew: We're allowed to say that on this show.

0:35:45 Thomas: You're not going to get a bunch of Senate stands, uh, show, yeah.

0:35:49 Andrew: We're here talking to a member of the legislature. And you're saying, well, it's not like we can pass legislation. That's not a stable long-term condition. And you think can be done about that?

0:35:56 Thomas: Oh.

0:35:58 Jared: No, no. Well, in the short term, we can elect two Democrats that are willing to dump the anti-democratic, you ossified rules of the Senate, and maybe they will begin to govern and be productive again. But right now, the Senate is just holding our country back. They're a mess. I mean, you can't even make the case, if you were starting this country from scratch, you would not have a U.S.

0:36:21 Thomas: No.

0:36:21 Jared: Senate. And you certainly wouldn't, you wouldn't have one that gives two senators to every single state. I means, that's absurd. Look around at state legislatures in this country. The ones that are bicameral, are proportionally represented, right? At least. Know, why we continue to have two senators for Wyoming and two senators per state, California, and think that that is somehow tenable. I mean, try explaining that to people people in Europe.

0:36:22 Thomas: Way. Yeah. I

0:36:41 Andrew: Yeah. We

0:36:47 Thomas: I bet you have several Wyomings in your district.

0:36:50 Jared: Yeah, I do. But I digress.

0:36:52 Andrew: And Can you confirm I did not coordinate, uh, with you beforehand to say exactly what we've been telling our listeners for several years now, yeah. No, it it are.

0:36:53 Thomas: Yeah, yeah. That's

0:37:00 Jared: Oh, I'm glad. Well, thank you. Because we got to at least start that conversation too. One of these days, we're going to have an opportunity to do some structural reform and improvement of this republic, and the US Senate needs to be on that list.

0:37:15 Andrew: You sound optimistic about that, that's, refreshing to hear from, the, the more optimistic half of, of the duo here. I

0:37:20 Jared: Well that's how I keep getting in the ring every day. That kind of optimism is better than the alternative. I'm sure you found the same.

0:37:27 Andrew: I couldn't agree more. If I could go one more sort of beyond, uh, the, subject matter we are preparing, we're couple hours out from the, the next, uh, House January 6th committee hearings. Um, any sort of word from among your colleagues, maybe your colleagues on the other side of the aisle, how, how these hearings are landing, and whether, uh, we're, we're making progress towards the rule of law, yeah.

0:37:44 Jared: Yeah. Well, we are drawing out facts that were not previously known. And in that sense, I think the January 6th committee is doing an incredibly great service to this country, to history. And, you know, we'll see what today brings. But I think it also is maybe dispelling this prevailing notion among people in my party that Republicans are always strategic geniuses, that Democrats can never get anything right. I mean, the fact that Republicans took a pass on participating, except for two really good ones, Kinzinger and Cheney, and are now left to watch with the rest of the country as this incredible story unfolds, shows you that they are not strategic geniusers.

0:38:31 Thomas: A good point. Do feel like we often on, on the left we're like, "Ah, if only we could be as, as brilliant as McConnell," and the Republicans over there. But it's, I don't know, I think it's just they have the advantage, it's easier to break things than it is to fix things. All

0:38:33 Andrew: Absolutely.

0:38:37 Jared: Yeah. Yeah. Well, folks, they are telling me I gotta, I gotta run to the floor to vote. So it's, I love this conversation. I hope we can do it another time.

0:38:48 Thomas: Right, thank

0:38:50 Andrew: Any time, and yeah, thanks for your time, Congressman.

0:38:51 Thomas: You so much.

0:38:53 Jared: All right, thanks for having me. Take, take care.

0:38:58 Thomas: This episode is brought to you by ClickUp. Imagine having one extra day every week. More time to cook healthy meals, work on that novel or creative project, or just binge some really good TV. Yeah, I would love to do all those things. I would have more time to watch, there's too much good stuff many good ones. I I would like another day, maybe Well, now that's all possible with ClickUp, the productivity platform that'll save you one day a week on work, guaranteed. ClickUp began with the premise that productivity is broken. There were too many tools to keep track of, too many things in entirely separate ecosystems. There had to be a more productive way to get through the daily hustle. Well, that's where ClickUp comes in. ClickUp is the one tool to house all your tasks, projects, docs, goals, spreadsheets, and more. ClickUp is built for teams from one to a thousand plus. It's packed with features and customization options that no other tool has. So the way you work best. Whether you're in project management, engineering, sales, marketing, or HR, ClickUp has easy to use solutions that create a more efficient work environment.

0:40:06 Thomas: Join the more than 800,000 highly productive teams using ClickUp today. Use promo code OPENING to get 15% off ClickUp's massive unlimited plan for a year, meaning you can start reclaiming your time for under $5 a month. Sign up today at ClickUp.com and use code OPening. Hurry, this offer ends soon. That's ClickUp.com, code OPENING. Enough time, I think due to emergency vote, probably enough time to squeeze in a C segment here, Andrew, saved by the bell of the house.

0:40:29 Clip: WOAH-

0:40:43 Andrew: Yeah.

0:40:43 Thomas: So we haven't gotten to talk about on the show yet. The first gun control legislation in two decades. Somewhat major news.

0:40:49 Andrew: This Is this, is major news? It is a major accomplishment. It is HR 7910, the Protecting Our Kids Act, and I want to tell you a couple of things here just at the top. First, this is an unambiguously good bill, right? This is not the, like Omnibus Crime Bill of 1996, right? Where, you know, okay, in order to get a semi-automatics ban, we, you know, we also had to, uh, you equip police with, uh, lasers and body armor and yeah, right.

0:41:15 Thomas: Tanks. Yeah, so there's no oil subsidies. In this gun control bill that mansion snuck in of

0:41:19 Andrew: There's there is nothing I'm I'm going to go through each of the major provisions. There's nothing in this bill to which any member of the, uh, let's say, Congressional Progressive Caucus could possibly object. So, every provision, does it go far enough? Of course it doesn't go far enough. But is it a good thing? It's a good thing. Let's run quickly through each of the seven provisions. Okay, so section one closes loopholes on age to buy a firearm. We saw this in the Kyle Rittenhouse case, for example. So now, uh, 18 USC 922 B1 is amended, uh, to read that it, uh, is prohibited to sell any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe has not attained 18 years of age. Okay, again, maybe we shouldn't have to say

0:41:34 Thomas: Course not should Should

0:42:13 Andrew: That, but we know that State laws can have gaps, can be insufficient. Effective with respect to the 21, subsection B, (B), "any semi-automatic centerfire rifle or semi-automatic centerfire shotgun that has or the capacity to accept an ammunition feeding device with a capacity exceeding five rounds to any individual the licensee knows or has reasonable cause to believe has not attained 21 years of age," and again, carve out for police, military, you know, that sort

0:42:14 Thomas: Be 21 but yeah, at least yeah

0:42:46 Andrew: Of thing

0:42:46 Thomas: We want 19 year old policemen to be able to shoot unarmed black people still, so

0:42:47 Andrew: Well provision one clarifies, no firearms, no ammo period to anybody, uh, under 18, and no semi-automatics, uh, with a capacity, uh, to accept more than five rounds. Right, so, uh, we avoid kind of the, we've talked about the definition laundry list of things. Now let's just define semi-automatic weapon, and we'll get to that definition, uh, at the point in the bill, and then says, yeah, this thing can take more than five rounds of ammunition, can't sell it to somebody who's under the age of 21. That seems like a good thing to me.

0:43:19 Thomas: Yeah.

0:43:19 Andrew: Section two is about preventing gun trafficking. This establishes new criminal offenses for people who engage in gun trafficking. Now, like drug trafficking, right, that, does not mean you, I'm a gun runner, I'll, uh, you know, the, no, this means it shall be unlawful for any person, or otherwise affecting interstate or foreign commerce, to knowingly purchase or acquire, or attempt to purchase or acquire a firearm for the possession of a third party, right? These are, as the headlined to the section describes, that straw purchases of firearms, right? I can't qualify under the Brady Bill, under the background check, so I get you to buy the gun for me, and you then pretend, oh, I am just a guy, was going to a gun show, I've, I've started up a side career as reselling firearms, and yeah, you're telling me that, yeah, right.

0:44:13 Thomas: Mm-hmm.

0:44:14 Andrew: There was a huge loophole, and now it's unlawful to buy a gun for the purpose of giving it to a third party. It shall be unlawful for any person to hire, solicit, command, induce, or otherwise endeavor to persuade another person to purchase or attempt to purchase any firearm for the purposes of obtaining the firearm, for the purpose of selling or transferring to a third party. That, again, these are not, uh, complicated, uh, regulations. There's additional stuff, and there's stuff about forfeiture and this and that, um, uh, but those two sections cover both ends. I can't buy a firearm for somebody else, I can't attempt, if, if I am a prohibited purchaser, well, it doesn't even matter. I can't, I can neither buy a firearm for someone else, nor can I get somebody or try to get somebody to procure a firearm from me.

0:45:02 Andrew: That moves us closer to a regime in which we are able at least to connect criminals up to the firearms that they purchase. And by the way, Brady background checks catch in their first years of operations. We're catching tens of thousands of people every year. I haven't seen updated numbers. I have to imagine that's gone down somewhat just by deterrence of behavior. But now people people get caught in background checks. Oh, yeah, that's right. I forgot. I'm four time convicted violent felon. It happens.

0:45:33 Thomas: Yeah. Yeah.

0:45:35 Andrew: So gun trafficking otherwise prohibits. This is an amendment to Section 18 U.S.C. 922(d), prohibits anyone who intends to sell or otherwise dispose of the firearm or ammunition in violation of a federal law, or to sell or otherwise dispose of the firearm or ammunition to a person in another state in violation of the law of that state. So that seems to me pretty strong in terms of trying to cover the landscape of preventing straw purchases of firearms to evade inspection. And if you violate, if you knowingly violate these sections, again, serious felony, imprisonment for not more than 10 years. So that's section two, preventing straw purchases. And straw purchases, because these are criminal statutes, are subject to forfeiture. So you go out, you buy a gun for somebody else, the police can seize that gun, get it off the streets.

0:46:33 Andrew: Section three is about the traceability of firearms, right, and this is establishing a regulatory framework for what have been described in the press as ghost guns. And ghost guns are not just the law and order, right, they've, they've filed off the serial number, but also replacing that part with 3D printed parts, right, otherwise making a gun not traceable back to, uh, for purposes of that chain of custody, to say, hey, we can link a gun to the person who uses the gun.

Okay, so first, cleaning up the definitions to reflect 21st century America, the term manufacturing firearms shall include assembling a functional firearm, or molding, machining, or 3D printing a frame or receiver, brings that under the law. The term ghost gun means a firearm, including a frame, a receiver, that lacks a unique serial number engraved or cast on the frame or receiver by a licensed manufacturer or importer. Okay, filling in all of those gaps. Doesn't matter how it got there, if you are in possession of a gun without a licensed serial number, no matter what clever way you are using it, because the previous criminal statutes talked about using methods to deface the serial

0:46:50 Thomas: Yeah. Mm. Yeah.

0:47:57 Andrew: Numbers and didn't take into account, oh, well, I could just print this piece. Right. And that's why, You know, a number of those 3D printer files got circulated, and it was not criminal to circulate those files for a period of time. Again, don't take criminal advice, don't take legal advice from this podcast. Certainly believe that would not be a good practice in light of this bill. So, uh, again, defining more of the terms of the components, subsection 39 says, uh, this is, uh, the term fire control component means a component necessary for the firearm to initiate or complete the firing sequence. Includes the hammer, bolt, breach block, cylinder, trigger mechanism, firing pin, striker, and slide rails. And then they define frame or receiver as the part of weapon that provides or intended to provide the housing restructure to hold or integrate one or more fire control components, even if pins or other attachments are required to connect those components to the housing or structure.

0:47:58 Thomas: File it off and yeah mm right

0:48:56 Andrew: And again, I pause on that just because you're seeing the efforts to sort of clean up the loopholes and say, look, like, yeah, can't litigate your way around this. It shall be unlawful for a person other than a licensed manufacturer to engrave or cast a serial number on a firearm. Arm Right, so not not only can you not have a gun with no number on it, uh, you can't put a fake number on. Okay.

0:49:20 Andrew: It shall be unlawful for a person other than a licensed manufacturer to knowingly possess a ghost gun. Well, there's your - I realize it's kind of buried in the middle, but there's your absolute prohibition.

0:49:31 Thomas: So, They must have gotten our friend Heath, who cheats at everything, to like try to -

0:49:32 Andrew: Yeah. How would you cheat around this? That is right. Yeah, um,

0:49:38 Thomas: He's like, well, what if I give the number of the code names clue, that is actually the number of letters, and they're like, no, sorry, we thought of that. Ah.

0:49:39 Andrew: Yep. It shall be unlawful to sell, offer to sell, or transfer - it shall become lawful to - right, again, I don't want to belabor the point, I want to tell you that they have Heath and right proofed, uh, the sale of, uh, and transmission mission of firearms without valid serial numbers. And, and that's a good thing. So that's section three. Um, there's also a provision on, uh, what is described as modernizing the prohibition on undetectable firearms, uh, and that's because, uh, 18 USC 922, again, I think was last, uh, modified in 1996, and we're talking about guns that do not show up on, uh, metal detectors, right?

0:50:26 Thomas: Oh.

0:50:26 Andrew: So think about it, both the kinds of scanning devices and the technology that goes into building those kinds of weapons have changed pretty radically in the past 25 years. So now it - it says an undetectable firearm, or any major component of which, when subjected to inspection by the types of X-ray machines commonly used at airports, does not generate - is what it used to say, right? And it's replaced with a major component of a firearm, which, if subjected to inspection by the types of detection devices commonly used at airports for security screening, would not generate detectable material.

And detectable material means any material that creates a magnetic field equivalent to more than two or more than three point seven ounces of seventeen-four PH stainless steel. I have no idea what that means, but I assume that's the threshold for setting off the metal detector. Right. That's section three, ghost guns, undetectable firearms. Section four is a bill that previously passed the House that was incorporated word for word into this. That's called Ethan's law. And I don't know if you know that story. That is Ethan Song, 15 year old who was staying at a friend's house. And the father had an unlocked firearm

0:51:18 Thomas: God. Oh.

0:51:45 Andrew: And the kid shot himself in the middle of the night. And because of the way the state law was written, they could not prosecute father the for failure to secure your gun properly. There was rightful outcry.

It again not outcry on the level of uh that the failure to store your firearm properly and your son's friend comes over and kills himself is not as bad as mass shooting but it's the kind of thing the law ought to prohibit and so it now says it shall be unlawful for a person to store or keep any firearm if the person knows or reasonably should know that a minor is likely to gain access to the firearm without the permission of the parent or guardian, or if a resident of the residence is ineligible to possess a firearm, right? So, you know, you yeah, have a convicted felon in the house and you fail to secure your firearm. There are a couple of provisions here. Now, the first is just kind of a general inspection provision. Nothing happens. You're just not storing the gun properly. But, know, no kids get it. No convicted felons get it That's a mattress tag kind of situation. You should

0:52:32 Thomas: Yeah.

0:52:55 Andrew: Be fined $500 per violation. And but you can be fined $500 for not storing Your gun Properly

0:52:55 Thomas: We're Taking the tag off my mattress, crap, I don't put them, put a fake tag back on - have they, have they written that into to the law? 3D print a tag to put back on my mattress.

0:53:07 Andrew: Quite Also if you violate those provisions and a minor or a resident of the household who is ineligible to possess a firearm causes injury or death to such minor, resident, or other individual, the person shall be fined under this title, in prison for not more than five years, or both. So, so right, in precisely this scenario, serious felony, up to five years imprisonment if you have failed to secure your gun and the gun is then used to hurt somebody. Additionally, there are provisions to try and replicate this law on Indian lands, right? The assistant attorney general shall make grants available to Indian tribes to assist the Indian tribe in carrying out the provisions of any tribal law that is functionally identical.

0:54:00 Andrew: And the attorney general shall also establish best practices related to safe firearm storage. So, promulgating national standards, attempting to make sure those are uniform, regardless of what state you live in, regardless if you are on tribal lands or not. That's Ethan's Law, that's Section 4. Section five is, uh, about bump stocks, prohibits bump stocks. Says bump stock means, and again, the shift away from recognizing what the Supreme Court is likely to do, the shift away from executive branch rulemaking and towards kind of plain language, bump stock means any manual power-driven or electronic device that is designed such that when the the device is attached to a semi-automatic weapon, the device eliminates the need for the operator of a semi-automatic weapon to make a separate movement for each individual function of the trigger. Well, that seems like a pretty good definition, right?

0:54:57 Thomas: Yeah, boy, good point. I didn't think about the fact that now we're legislating in a post Chevron world.

0:54:58 Andrew: Yep. And so the only criterion is, right, attached to semi-automatic weapon, uh, and materially increases the rate of fire of the semi-automatic weapon. Well, that's what bump stocks do. And it says any semi-automatic weapon that has been modified in any way that eliminates the need of the operator to make a separate movement for each individual function of the trigger, right? So if you - you make your homemade jury rigged trying to, you know, convert this to full auto, or just in any way, right, to increase the rate of fire of the weapon, that that is prohibited under the statute. Statute, again, to your point, the term semi-automatic weapon is defined as a weapon that one, utilizes a portion of the energy of a firing cartridge or shell to extract the firing cartridge case or shell casing and chamber the next round, and two, requires a separate function of the trigger to fire each cartridge or show. So again, the broadest possible definition of a semi-automatic weapon. Right.

0:56:02 Andrew: That is the escaping round. A portion of that energy is used to to facilitate the next round. The reason you can define it that broadly is because this doesn't ban semi-automatic weapons. Right. Right. So you can say, hey, we're not going to let you come up with some kind of convoluted argument that like this is or this isn't or whatever. And I know that goes kind of deep in in gun guy debates, but I'm not there. So I don't care.

And that's - you've got prohibiting bump stocks. If I asked you, is that a good goal of the congress? I think we would all agree, uh, that that's a good goal of Congress. Um, same thing for title six. Title six, uh, prevents the sale of large capacity ammunition feeding devices, right? That is the giant uh, again, I'm going to use the wrong language, and I apologize but, you 15 round magazines, uh, huge barrel drum clips that feed tons of ammo into a semi-automatic weapon, the kind that are used at virtually all mass shootings.

And this, this defines a large capacity ammunition feeding device as magazine, belt, drum, feed strip, helical feeding device, or similar device, including any device joined or coupled with another in any manner that has an overall capacity of, or that can be readily restored, changed, or converted to accept more than 15 rounds of ammunition. So, could, could we go further?

Know, we, you could go further, uh, uh, but I think it's a pretty good start to say, uh, large capacity magazines, anything over 15 rounds, uh, are now prohibited to own, prohibited to sell, prohibited to transfer in interstate commerce. And it includes

0:57:49 Andrew: Section 604, which is a buyback provision for existing large capacity ammunition feeding devices. So not only can you not make new ones, not only cannot buy and sell new ones, not only not transmit those across state lines, but the incentive to buy back existing ones. So, and that's section six. Section seven contains a reporting requirement. It requires the DOJ to report on the demographic data of persons who are determined to be ineligible to purchase a firearm because the background check, and then to keep that updated in the NICS, which is the National Instant Criminal Background Check System, upon which states rely when approving instant check for purchases that do not have cooling off periods.

0:58:38 Andrew: Again, I'm a fan of cooling off periods, but the point here, the continuing result is - everything, everything objectionable about this bill is it doesn't go far enough, right? There is nothing independently objectionable where, you know, okay, well, Democrats had to agree to let, you know, Republicans control a woman's right to choose for the next 50 years in order to get, right?

0:58:49 Thomas: Right. Yeah.

0:59:01 Andrew: There no, there was no give and take. You

0:59:03 Thomas: In well, our history, we absolutely have had bills that it's not that they didn't go far enough, it's that they were sabotaged or there were provisions in there that for one reason or another, they didn't realize were really bad, or you a bill that doesn't go far enough is better than a completely compromised bill that actually does nothing because we allowed a bunch of compromised provisions in there. So it sounds like a good legislation. Remind me, there'S been so much going on. Is Is this law? Are we waiting on a signature? This is law.

0:59:20 Andrew: Yep. This is law, this was passed into law June 8th. This is, you know, another example of the, uh, Biden administration's, I think, failure to conduct good PR. This is a thing he should be running on, that Democrats should be saying, hey, look, we got this done. Because, you know, if, if there were a Republican president, however insufficient you think this is, we know what the Republican response to gun violence is, right? Well, let's get more guns, right? If you agree with any of these kinds of, you know, minimal provisions, uh, you know, to be, be able to say, hey, we, we got something done, I didn't just, you know, campaign on, uh, rhetoric, but, but I actually, you know, brought a dozen Senate Republicans to the table to vote for a sensible starting point on gun control. That's a real accomplishment.

0:59:30 Thomas: Okay.

1:00:16 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:00:23 Thomas: And now it's time for T3BE. Each week I try to answer a bar question despite not actually being a lawyer, despite what you may have heard. Here we go. Oh, yeah. I'm coming off. I think they actually did make me a lawyer after last week. It was that good of a –

1:00:30 Andrew: I that I am I will sign the affidavit for your honorary law degree, Thomas. A man and a woman own neighboring pieces of land. The man wants to build an in-ground pool in his backyard. Good. Fearing that if not properly maintained, the pool could cause damage to her yard and attract unwanted plants and animals, the woman makes the man promise to have the pool cleaned and maintained by someone qualified once every two weeks while in use. The promise was reduced in writing and contained the following clause, quote, "It is our intent that this agreement will bind our successors unless an agreement is reached between the owners at that time," end of quote. The man and the woman had this written agreement added into the deeds of both pieces of property.

1:00:38 Thomas: Nice.

1:01:19 Thomas: Sorry. Is this just the real property bar exam now, Andrew? Is that

1:01:21 Andrew: One year later, the man granted his land to his son and the woman granted her land to her daughter. There were no discussions about the pool maintenance promise. Two months later, the daughter noticed that the pool was in disrepair, as no one had cleaned it since the son moved in, although he had been using it. The daughter filed for an injunction demanding that the son resume cleaning his pool. Who will prevail? A, the son, because there was no horizontal privity between the man and the women. B, the sun, because there, there was no horizontal privity between the son and the daughter.

1:01:56 Thomas: Horizontal Privity between the man and the woman is how Andrew did the birds and the bees talk with this. When a man and a woman enter into a horizontal privety, uh-oh.

1:02:08 Andrew: C, the daughter, because she is an original party to the contract and can enforce it against the other original party or any party in privity. Or D, the daugher, because the sought an injunction.

1:02:19 Thomas: I hate that - one you throw that one in just because that'll be some catch-all thing, they - oh, this dastardly bar - because she sought an injunction. That - so this is interesting. It seems like it's just a contract they're agreeing to, but then it does say that the man and the woman had this written agreement added into the deeds of both pieces of property. So then I guess that becomes part of the bundle of sticks, I think. I mean, if it's added into the deeds, I don't know what that means. It's like when you get a note in your file at work or something. They, I don't know if that means it officially attaches to, like, if anybody has the piece of property. So it says, it is our intent that this agreement will bind our successors unless an agreement is reached between the owners at that time.

1:03:09 Thomas: So, like, I guess they could agree to not have it bind to their successors at that time. I don't know. Let' s see. Man granted his land to the son. So when he grants the land to his son, does he still does his son have the obligation to clean the pool? Depends on what "added into the deeds" means. I mean, I think I could take that to mean it does. I can't remember what the word is, but it's a thingy that's added on. It's an easement. I don't know, it says something like that. It is a stick in the bundle. It's stick that you don't have he they change unless the man and the woman reached a new agreement, as is allowed by the contract. He there's astick that's no longer in the bundle, which is the stick that's labeled "doesn't have to clean the pool" or something, I don't know. Uh, possibly. So this seems really hard, let's figure this out. The Sun because there is no horizontal privity between the man and the woman what would that mean, horizontal privity?

1:04:07 Thomas: B, the son, because there was no horizontal privity between the son and the daughter. The daughter, because she is an original party to the contract and can enforce it against the other original party or any party in privity. Of the daughter, daughter because she sought an injunction, which is the worst, because that's saying why did, why who will prevail in the injunction? The daughter because she saw it if it's that answer, I'm truly mad at this test. I mean, sometimes there's the, like, generic answer becomes correct because of, know, like the other, whatever, it becomes like the default answer. But because she thought an injuction, that's that seems like weird wording. I mean, that's that's not the causal there. It's not, she wouldn't win, she wouldn't prevail because she sought it.

1:04:52 Thomas: She would prevail because like on the merits or something, you know, because it was meritorious. So I I have to at least eliminate D. And if the answer ends up being D, I'm very much in protest of this test. And hear expect to here from my lawyer. Have to say I'm pretty baffled at this. I can imagine horizontal privity would mean something like, you know, privity probably means something like you're also bound by a contract because of your relationship to the party that's in the contract. Like, I imagine it's something like that, but I can't quite, unlike last week, I canít, lightning's not going to strike twice, I don't think. I can't fully intuit what the horizontal privity would mean And the weird thing is the question, the answers are between the man and the woman or between the son and the daughter.

1:05:39 Thomas: It's not like horizontal privety between the men and the son versus the woman. So that's an interesting thing. I don't know what to make of that. I think I have to bail and just pick C and hope it's a no nonsense. I'd have no confidence in this. But C, which is the daughter because she's an original party. Well, original party? The daughter is definitely not an original parti. I thought I fudged the wording on that. So I think she could inherit that. Like be she a party. Maybe in privity, but I don't think she's an original party. That can't be right. All right.

I'm going to get, for that reason, I'm gonna guess B. I can't fully know what it means, but I think B makes more sense than A, because like maybe this just doesn't really transfer. Even though it says our successors will be bound to it, not, I'm not liking any of the other, if it's D, I'M JUST MAD. Like, that's stupid. It should be be the daughter. Could just be the daughter, you and not because she sought an injunction. If that's what they're doing to me, I'm very mad about that. So I'm gonna go B. I guess I'm between B and C. I'll go B, Final Answer.

1:06:10 Andrew: Uh, 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 real property fortune, which is an even better kind of fortune. Property fortune not guaranteed, indeed.

1:06:56 Thomas: Oh, dang I was hoping that kind would be guaranteed. Oh, well, and

1:07:02 Andrew: And

1:07:04 Clip: And thank you, Let's go!

1:07:06 Thomas: And now it's time to thank our new patrons at patreon.com/law and join the goodies, the ad-free episodes, the, by the way, another perk I don't talk about often enough on the Hall of Fame patron shout outs I switch aroo that and I put the bar exam stuff first and the patron shoutouts, uh, second I, I also due on Friday episodes if the shout outs are really long, but usually they're pretty short, so I don't, I don't bother, but uh, yeah, that's another little benefit that we don't talk about. It doesn't get talked about enough in today's society, I think. Uh, and I'll start us off. Thank you to Michelle Chandler, pritika Vig. The quality of the RSS OA logo gives me MySpace vibes. Well, that would not be on our end. That is on your end, whatever or pod catcher you're using. OA, the logo, it's in sterling 4K quality on our end. I don't know how that would happen. Jordan Norman, Heather Lutz, if we don't get stare decisis neither should you, Mr_MSDS, Paula Berry, Erin Seefeefos, Hunter Kinsey, and TJ, your turn.

1:07:53 Andrew: Thank

1:08:10 Thomas: And

1:08:08 Andrew: You to asterisk to Secret service subpoena says senate sees selective salacious serious sinful stripping of stupid supremacists segregationists, Corrine Cole, Queso Fresco, Robert Reichel, Steve Cuno, Jackson R, Not a Lawyer But I Play One at the Bar, keep, keep that up. Tom jackson, Kara Ssike, and Karina Casines. Thank you all so much for supporting the show over slash law.

1:08:39 Thomas: That's our show. Thanks so much for listening. I'm sure you've already seen the hearing, But we haven't. We're going to go get ready for it. Pop some popcorn. Can't wait. And I'm sure we will be talking about that hearing on an episode coming your way very soon. So excited for that. We'll see you then.

1:08:54 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.

1:09:28 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.