OA630: Court Says Employers Can Deny Even More Healthcare Because... Religion

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 630. I'm Thomas. That's Andrew Torres Esquire. How you doing?

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

0:01:25 Thomas: Doing great. I mean, it's been good news lately. I do have a hack judge ruining our lives, but other than that, we're just in the time of waiting for consequences that may actually happen, and I find it generally enjoyable. So, I'm doing well. Ah,

0:01:32 Andrew: Yeah.

0:01:41 Andrew: That's, that's right. That's good. This this is a, if we're two steps forward, one step back, this might be a one step back episode. You know, we kind of, all right, well,

0:01:48 Thomas: Dang it. All right, I'm out, everyone. Enjoy. No, I am always here for the long fight.

0:01:55 Andrew: Yeah, that's, that's exactly right. And knowing what they're doing, right, helps us understand how we mount our resistance. So, um, we had a really fun, uh, Q&A on Friday. That's up Yeah, That's up, uh, on the YouTube channel, and the audio goes out to all patrons, so

0:02:06 Thomas: Oh, yes, it was. They are getting better every time. No, the questions, the voting on the questions. It is really fun. It allows us really to know what you guys want to hear. And that helps us make a better product.

0:02:13 Andrew: Yeah. Um, We had a lot of participation, right? Multiple questions with over 60 upvotes and

0:02:24 Thomas: All that said, let's get to our episode today.

0:02:24 Andrew: Wow.

0:02:27 Clip: Treason is treason.

0:02:32 Thomas: So uh, last episode, obviously, the news broke right at the end of our recording that the uh DOJ is appealing the terrible, no good, ridiculous hack, uh, ruling. And so, give us, you've had a little time, we delayed again our recording to uh to again help have the best product possible for you folks. We waited to get more details, normally record back to back, but we want to get more details on that order for you. So what have you discovered, Andrew? So

0:02:32 Andrew: Yeah, so Four things that I want to go over just super briefly in terms of documents that have come out, you know, since Thursday, and we're recording this on a Saturday, so, you know, uh, only those four. The first is, uh, as you have noted, uh, right as we finished recording on Thursday, the uh DOJ noticed an appeal to the 11th Circuit. A panel has not yet been set. Um, that court has assigned a case number. It is case number 22-13005, but as of this record we do not know who the DOJ has drawn as a panel. And

0:03:37 Thomas: They haven't done the big balls and the thing, you know, the crank and the, I imagine that must be how they do it. Yeah would

0:03:37 Andrew: Yeah right it's Exactly, like the bingo drawing, yeah. Um, and again, seven to four, uh, conservative, uh, circuit, but these arguments are so bad you have some hope of persuading, uh, a conservative judge who is persuadable. Interesting thing about the appeal, really two things that I've noted. Uh, number one, the civil appeal statement is due in 14 days, right? That is the basis for challenging the underlying order. Prior to that, the government has, we're to talk about this in the next document, set its own date.

It has moved for a stay of Judge Cannon's order pending that appeal and has basically said to Judge Cannon, we're going to give you the opportunity to just stay this partially, right, with respect to the hundred plus documents that have security classifications and are undergoing the review for national security reasons. But if you don't grant us relief by Thursday, September 15th, we're going to go to the 11th Circuit and move to stay the entirety of your opinion. That, I should say, that last part is implied. Uh, they could do either, they could, take, they, a limited motion for relief, or they could take something more broadly than they've asked the court.

So really an interesting litigation strategy before a complete hack of, like, you know, hey, look, like we understand you're a hack, you know, we know you're a hack. We're going to give you every opportunity to back out of this slowly, but if you don't, this is, uh, this is what we're gonna do.

0:05:15 Thomas: You say they're not bringing a knife to a cannon fight. What about when Judge Cannon fires back? I wonder what she'll say. Okay, I'm done, so

0:05:18 Andrew: Very, very good. I like that. I think we know what show titles are going to look like over the next month or so.

0:05:25 Thomas: Yeah. Also, I noticed you said civil reply. That's interesting. A criminal.

0:05:32 Andrew: Yeah, you mean it's still not a criminal Case. Despite.

0:05:34 Thomas: Still not a criminal case.

0:05:35 Andrew: Despite the fact that Trump's relief is that he's seeking is from the Federal Rules of Criminal Procedure. That actually is the second thing I wanted to point out about, uh, the 11th Circuit docket. And again, you know, I've uploaded this, I, I'm, I surprised the government hasn't mentioned this, and I've chatted with a couple of other lawyers and I haven't gotten a good answer to this. You click on the court's docket on PACER, it says court of appeals docket number 22-13005, nature of suit 2890, other statutory actions, and that goes back to the fact that Donald Trump and his lawyers lied on the civil cover sheet. And and I, look, I know, I get it, the civil cover sheet is a bunch of check boxes you have your paralegal fill out before you file them, no one cares, and it's administrative and whatever, but this

0:05:35 Thomas: Weird. Okay.

0:06:23 Andrew: Is not just an immaterial, like, oh, I just picked a box, like they literally just marked a box that does not apply because there is no jurisdictional basis for any court to hear this crap.

0:06:36 Thomas: Should be a sign. That should have been a sign to you.

0:06:38 Andrew: Yeah If I were litigating this, certainly that fact would at least make it into a footnote in my pleadings in arguing that there is no subject matter jurisdiction for any court to hear the request, request for relief that Donald Trump has asked for. Um, we'll see what they tell the 11th Circuit. Again, you know, you're page limited on, uh, you were filing your initial, uh, statement, so, you know, you got to pick the arguments that you think are most likely to carry the day to me, right? If I want to win over a conservative judge, arguments about standing are generally the kinds of arguments that judges like, right?

Conservative judges like, right, because they keep litigants out of court, and you know, uh, keeping people out of court is typically a conservative gatekeeping kind of thing. So, uh, we will see, we will see that in the next two weeks, maybe sooner, right? We will get a preview of that if Judge Cannon does not stay the effect of her order by Thursday the 15th, which, of course, is when we next record the show. We will figure out by that time if the DOJ is going to go to the 11th Circuit for relief.

So those are the first two documents, the appeal and the motion for stay pending appeal. The third document, just to pause very briefly, the media party proposed intervenors have filed a three-page brief that says, we agree with the government that Judge Cannon should unseal the status of the filter review conducted by the government's privileged team, right, the taint team, and interestingly, after complaining about, you know, the secrecy of the process and everything, you don't see Donald Trump

0:08:21 Andrew: Conceding that to kind of relief, right? And I wonder why that is. Uh, and the reason why that is is because it's going to be a perfectly ordinary privilege review. They're going to detail exactly what they've went through, and they're going to say we didn't find any privileged documents because there aren't any. Um, the media has joined in the government, the government has, now and again, remember, Merrick Garland, the right, DOJ does not comment on pending cases, we speak through our court filings. Well, speaking through our court filings, we would like to tell you what our taint team discovered, and I, think there's a good reason why the Dojo would want to tell us what their team has discovered.

0:08:55 Thomas: Like before, you charging and trial and all that stuff they want us to know before.

0:08:58 Andrew: Yeah now in the in the context of, of, this ongoing investigation that that's right, because Donald Trump is speaking unilaterally, right? Like, yeah so

0:08:59 Thomas: Hmm right right right, you like like, pretend this whole nonsense hadn't happened, I imagine they wouldn't be, you know, they would want to keep everything close to the uh, to the vest, or the chest, I never know which, it's the same effectively thing yeah, uh, but because of the extreme situation here, they're like, all right, um, let's get this out there because you keep lying about what's happening. Oh,

0:09:07 Andrew: Right both could be both, yeah. Yep that's exactly right. And then there's the big boy that we were waiting for, and this is only an eight pager, but was, uh, an interesting read when it came in late last night. That is the party's joint brief, uh, as to what they agree on. Spoiler, it's almost nothing, with respect to the appointment of a special master, what, that who that special master should be and what that special master should do. So, uh, let's start off with the proposed candidates because this is interesting. Yeah.

0:09:52 Thomas: We got to see this, can't wait. Oh,

0:09:53 Andrew: Absolutely. Absolutely. So the DOJ proposes, and this is not going to be impressive because it is after the fact, but if you'd asked me to take one person and say, OK, who's, if we were doing a fantasy special master league?

0:10:11 Thomas: We should have done that ah and

0:10:12 Andrew: Yeah, we should have done it. The number one pick would have been the person they identified first in their brief. Judge Barbara Jones. Right. That was former Zuckerman Spader partner in New York. We've talked about her. She was the special master in the Michael Cohen case.

0:10:26 Thomas: She had a hell of a preseason, uh, her arm's looking good. She and

0:10:26 Andrew: Right. Yeah. She's in the best shape of her life.

0:10:31 Thomas: Her knee injury is behind her. Oh, you

0:10:31 Andrew: Yeah, yeah. Judge Jones, the Special Master in the Michael Cohen case, has adjudicated precisely these issues in the context of Donald Trump in a way that both parties found fair, there right? Was zero complaint from Trump's side or from Michael Cohen's side Barbara Cohen, improperly you disclosed privileged materials. I mean, this is as down the middle, no brainer of a pick that you could possibly make. And so, of course, there's no chance that that's whom Judge Cannon is going to appoint. Point DOJ's second choice here is, I think, illustrative of and why it's hard to game out playing an unfair game in front of a biased judge. Right, they have proposed Thomas Griffith, and Thomas Griffith is arch conservative George W. Bush appointee to the federal bench.

0:11:23 Thomas: He's on my dynasty team.

0:11:24 Andrew: He wrote the manifestly wrong opinion in the Mcgann subpoena case that we made fun of on the air and said, yeah, you know, he was like, how could a subpoena be enforced? And it's like, well, you know, like the Latin root, you know, under penalty, right? That and it was a 2-1 decision. He teamed up with fellow conservative Karen Henderson, uh, that went en banc to the full DC Circuit, and the full DC Circuit, uh, reversed seven to two, so he picked up zero votes from the rest of his judges.

0:11:37 Thomas: Oh. Yes. Wow.

0:11:55 Andrew: Including some conservative judges on the DC Circuit, yeah.

0:11:55 Thomas: Tell you. So He got lucky with his, uh, with his panel drawing, okay?

0:11:59 Andrew: Yeah. Leaned heavily, I would, I would infer, this is for context, uh, politically conservative Mormon who was general council of Brigham Young university University, uh, member of the Federalist Society. You're going, why in the hell, what's going on? Right, um, this is somebody that Joe Biden put on the presidential, the bipartisan presidential commission on the Supreme Court, and I attacked Griffith personally for being one of those members. And sure enough, he wrote one of the least defensible dissents. It was, it was, uh, included as, a you additional comments or whatever, uh, to the commission's findings. But remember, uh, that commission came out with the most, you know, milquetoast, lukewarm of, like, well, maybe we should think about having some kind of non-binding ethics code that, you know, and, rejected out of hand, you know, what has to be done, which is doubling the size of the federal judiciary. Uh, here's what Griffith said in, in connection with that, as a separate additional statement, right, so in addition to it's not, yeah, obviously, we're not packing the court.

He said, because the commission was charged with examining proposals by critics of the court, it might be lost on some that we are examining one of the most, if not the most, effective and justly admired of our institutions. He wrote this in 2021. Any proposal to change the role or structure of the court that fails to take into account its historic success in preserving the rule of law falls short of the mark. We are wary of such proposals, especially those that assume judging is little more than a political act to advance favored interests. Such

0:13:35 Thomas: What?

0:13:35 Andrew: Proposals misapprehend the role of a judge under the Constitution and do damage to public confidence in the Supreme Court and the courts more generally. In our view, most of the proposed reforms discussed in this report, including court packing and term limits, are without substantial merits. They are not related to any defect or deficiency in the court or its procedures, and they threaten judicial independence. We must not permit the Supreme Court to become collateral damage in the divisiveness that marks the current age, nor should we fundamentally alter the court because of disappointment in particular decisions of the court. There is far more at stake than the outcome of any case.

0:14:09 Thomas: Is he Bagdad Bob? Is that a reference anyone will understand that of

0:14:12 Andrew: I look I I got it, so you know, but other, other oldies who listen to it, yeah.

0:14:16 Thomas: Course. I know, you, yeah, of course, there's other people listening in Yeah.

0:14:20 Andrew: Okay, fair, fair enough. So all I can think of is maybe they think that that conservatism makes him not personally beholden to Trump. Uh, maybe they have some evidence that he hates Trump personally. I don't know. But it is a baffling decision from somebody who has been a conservative on the bench, has ruled in a pro-Trump way that was indefensible with respect to Don McGahn. And that was the DOJ's choice.

0:14:47 Thomas: Does, so it sounds like they might have been really trying to suggest people that might be agreed upon

0:14:52 Andrew: Trump could sign on to. Yeah, that's right.

0:14:53 Thomas: Yeah. Which I feel like they didn't have to do that, like they could have suggested you know, Hunter Biden, Biden, uh, Hillary Clinton, and AOC.

0:14:54 Andrew: Yeah. Yeah, I agree. Yep. Somebody tweeted at us today

0:15:03 Thomas: Who

0:15:04 Andrew: And said, and said, does Hillary Clinton still have the appropriate, uh, secret security classification to serve as special master in this case? And that would be epic, uh, trolling by the 11th Circuit. So, uh, those are your two DOJ candidates. Who did Trump put forward? You might think Don Trump Jr. Uh, you're not far off with the first candidate, Paul Huck Jr., uh, somebody who has never been a judge, uh, that's, his dad. Paul, Paul Hook, uh, senior has been, has a judge, um, he's a Florida lawyer, a Federalist Society weirdo, uh, he was deputy attorney general of Florida for like eight minutes. He's said to have founded the Huck Law Firm, but when I, and that, and that's a present biography point.

But when you Google the Huck Law Firm, you get zero hits. There right, are no pages where one could employ the Hick Law Firm. So that's a weird. But I haven't mentioned his most important characteristic, which is that he's married to Barbara Lagoa, a diehard Trump supporter who was appointed to the 11th Circuit by Donald Trump and who has a, you know, 40 percent chance of being on the appellate panel hearing this, hearing any appeal from this case. So a walking conflict of interest. I mean, like, literally an unbelievable joke. And I will not talk further about, if, if, if Huck is the choice by Judge Cannon, then, you know, she is both corrupt and stupid. And, you know, that very

0:15:28 Thomas: The heck is that? Huh?

0:15:52 Thomas: I think

0:16:33 Andrew: Well could be the case

0:16:34 Thomas: She might be both corrupt and stupid, that

0:16:34 Andrew: Yeah So that was their first choice. Their second choice is really troublesome to me, um, because I have zero evidence to the contrary, this, it is a 78 year old former judge named Raymond Deary, uh, who was the U.S. attorney for the Eastern District of New York under Ronald Reagan from 1982 to 1986, appointed to the bench by Reagan. So again, U.S. District Court for New York Eastern Division, February 1986, appointed to the FISA Court in 2012 by John Roberts, Chief, Chief Justice John Roberts, where he served until 2019, until retiring. And as people will point out, number one, was the judge who approved the FISO warrant for Carter Page to, to investigate the Donald Trump campaign, uh, connections to Russia, and, uh, you can find lots and lots of democratic lawyers right lawyers on the left uh who have nothing but good things to say about judge deary so strikes me as odd is yeah, well so a right the DOJ didn't say, okay, done, sold, right? We agree, Judge Deary.

0:17:41 Thomas: They didn't agree on, yeah. Mm-hmm.

0:17:48 Andrew: When I look at it, I go, boy, there's somebody who lived in Manhattan for an awful long time while Donald Trump was very active in the courts in Manhattan. And I started, I did, I'm not kidding, like 45 minutes of trying to read articles about Judge Deery that were archived from the 1980s. And I can't find a personal connection between him and Trump. So, you know, look, maybe, maybe they just happen to pick somebody that turns out to be great. Or maybe this is somebody Donald Trump has crossed paths with an awful lot, who is either personally beholden to, or, you know, subject to bribery by or blackmail by, uh, Donald Trump. Um, I hate to be that guy, you know, this, you know, the way we do the show, I have no evidence that, that runs to the contrary, given how corrupt the Huck suggestion is, I, I it

0:18:35 Thomas: Yeah it would be weird if there was one good one in there.

0:18:52 Andrew: Would be, it would be weird if they were just like, oh, and by the way, how about this totally straight shooter that is universally beloved by Democrats and for the DOJ not to take it, right? So not A lot of people are talking about that, other than sort of doing that first level of Democrats who have been before, Deary saying, "Yeah, no, he's a straight shooter." But boy, given what we know, am I skeptical? I'm skeptical. So are your candidates. Then the parties disagree on what they're going to do. Right. What the special master ought to do, to summarize very, very briefly: Donald Trump wants the special minister to review everything and take as long as possible. The government wants the especial master not to review the materials that are designated top secret and otherwise subject to review by the Department of National Intelligence. And that's why their candidates, none of those four candidates have the requisite clearance to review the classified materials, because the DOJ doesn't want them to and because Donald Trump doesn't care.

0:19:01 Thomas: Huh? Yeah, that is very weird.

0:19:59 Andrew: Trump wants unlimited ex parte communications without showing those communications to the government, which again is a determinant of how hacky is this ruling going to come down. Um, the government proposes to review the designations before they go to the special master, quote, "in order to minimize the number of disputes," end of quote, which is what any sensible judge would do, right? Like, you don't say, hey, I'm gonna have somebody review all this even if the parties would otherwise agree that certain material is or is not privileged. Right, usually you say, "Hey, hey, parties, get together, confer, look at the privilege logs, say, do we need the special master to review this or not?" And then the things you disagree over will send to the special master. That's how you do it.

0:20:45 Thomas: Yeah.

0:20:45 Andrew: That's what's done. Donald Trump, of course, wants everything to go to the special master and then to be able to back channel to the special master whenever they want. That's not how this is, how any of this works. But, you know, then the very weird thing, which is in Trump's proposed order. This is true across both proposals. I'm just going to read. This is for you. It says once the special master has completed the review process set forth in this order and any dispute has been fully adjudicated, any documents identified as presidential records will be returned to the archivist of the United States and the process under the Presidential Records Act, 44 U.S.C. 2204 will be followed to determine the assertion of any restriction on access. That's number one, as Cal McClanahan has noted, an admission that you have presidential records, right? Like, yeah.

0:21:33 Thomas: Yeah mm-hmm.

0:21:33 Andrew: And number two, that's what we want. Right. So it seems to be clear. And Alina Haba went on, I don't know, J. Jay Doofus McGuire's show on Fox or whatever uh that is, another trump connected lawyer who's not uh on this particular matter, but know natters, but off on TV about Donald Trump, and basically conceded, like, "Yeah, we got a special master to try and slow stuff down." So it's possible that the only directive here is uh to slow stuff done uh The the government has suggested that the uh special master should complete its interview by October 16th, uh which would be about two months. Right, Donald Trump wants three months, he wants 90 days, uh or more, given the volume of documents, which, which, interestingly enough, would put the completion of that review after the midterm elections.

0:22:19 Andrew: So, you know, know what the game is. The other humorous bit that's making the rounds is the party's position on who ought to pay for this. Donald Trump's position is it should be split evenly between the parties. I mean, you now there and the Department of Justice rather dryly notes that, you're you the one who wants the special master. You're the ones who should be footing the bill.

0:22:39 Thomas: Yeah. Classic. You go out to a restaurant with your criminal friend who does all the treason, and then it's like, let's split the bill, huh? Let's play 50-50.

0:22:42 Andrew: Yeah. Yeah, let's, let's go dutch. It'll be fun.

0:22:49 Thomas: Yeah I didn't eat any treason. You ate all the trees in here and

0:22:51 Andrew: Right. Yeah, exactly. So, uh there you go, we'll know more next week, but that's your top level guidance to to what's going on and uh all of the different levers and machinations that can come into play.

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0:26:03 Clip: YOU BETRAYED THE LAW!

0:26:06 Thomas: Now, now it's time to talk about what you've teased in the previous episode as Republicans wanting to literally be able to have churches kill us. That doesn't sound great, Andrew. How's that? How's dat happening?

0:26:17 Andrew: It's Uh, it's not great. It is is, this case came out just last week. It is Braidwood Management, Inc. versus Becerra. That is HHS Secretary Xavier Becerra. Just a trial court opinion, Northern District of Texas, 2022, but this is how trial court judges in conservative areas are starting to get, feel their wild oats again, you know.

Starting to get too big for their britches in terms of, oh, well, you know, why don't I make a crazy decision, because the likelihood that the Fifth Circuit upholds said crazy decision and then the Supreme Court doubles down is really great. So, um, I'm, things this is not the kind of case that any trial judge anywhere could have issued, you know, five years ago, but here it is. And when I say Republicans want churches to help make you dead, uh this is what I mean.

Um, this is with respect to 42 USC section 300 GG, that is the section of the Affordable Care Act that is regulating fair health insurance premiums. And specifically, through implementing regulations, the Affordable Career Act requires private health insurance to cover preventative care. You might recall, this is one of the major cost savings of the ACA, right? You have expanded health care coverage, and by covering preventative care that's way cheaper than expanding

0:27:40 Andrew: Access to, you know, treatments later on. So four things that are that are at issue here. So group health plans and health insurance issuers must provide coverage for and shall not impose any cost-sharing requirements for four different categories of preventive care, as defined the statute and by the implementing regulations. So, uh the not sharing out the costs is important, right? Particularly at the margins, if you know you get the vaccine for free, or you can, you have a jurisdiction where, you know, X vaccine costs twenty dollars, right? Economics will tell us, fewer people will get it when they have to pay for it, right?

So the ACA then empowers three agencies that are affiliated under HHS to determine what services fall within these four categories of preventive care. So first is something called the Preventive Services Task Force, and they recommend evidence-based items or services that have in effect a rating of A or B by the PSTF. Second is ACIP, the Advisory Committee on Immunization Practices, which recommends certain immunizations. OK. Third is the Health Resources and Services Administration, which issues, quote, comprehensive guidelines with respect to infants, children and adolescents for evidence informed preventative care and screenings.

0:27:40 Thomas: Mm hmm. Yeah.

0:29:03 Andrew: Stop me by the way when you when, when I'm, when I've gotten to the, you know, obvious, uh communism that any, uh, reasonable person would find objectionable. No. And all then fourth, comprehensive guidelines with respect to women for such additional preventive care and screenings. Right.

0:29:10 Thomas: Yeah. I imagine that one they will have religious problems with or something.

0:29:20 Andrew: Interestingly enough, this decision, I say, quote, interestingly enough, challenges the first three of those, not the fourth one. I know. Right.

0:29:28 Thomas: Oh, that is interesting.

0:29:30 Andrew: Yeah, so PSTF, the Preventive Services Task Force, makes recommendations. The purpose of Pstff is to review the scientific evidence related to, and again, I'm obviously reading from the implementing statute, effectiveness, effectiveness, appropriateness, and cost effectiveness of clinical preventive services for the purposeof developing recommendations for the health care community and updating previous clinical preventative recommendations. Again, stop me when I get to something objectionable, right? So by statute, by the ACA, the PSTF and its members shall be independent and, to the extent practicable, not subject to political pressure, believe it or not, that's going to come into play here. So I told you, this decision uh challenges three, uh the first three of these administrative agency determinations.

0:30:20 Andrew: Under number one, PSTF, here's what happened. In 2019, PStF recommended pre-exposure prophylaxis, that is abbreviated PrEP, capital P, lowercase r, uppercase e, upperkase p, PrEP drugs to prevent HIV infections.

0:30:32 Thomas: Hmm. Right, right, right. Those are a huge deal. Call

0:30:39 Andrew: They are a huge, huge deal. They got the A recommendation, right? Remember, A or B means that it is required to be covered, uh, without cost sharing. That, out, okay, so PrEP drugs must be covered under 42 USC Section 300 gg-13 A1. And, and again, let me say very, very quickly, um, PrEP drugs have a 99% success rate in preventing the transmission of HIV, right? If you are at risk of acquiring HIV, like PrEP drugs are the things you should be on, right? That's why I got the A rating. That's number one.

0:31:14 Thomas: Me a communist hippie, Andrew, but I feel like that's thing a for society to kind of help cover, make sure everybody's more healthy, and that there's less HIV traveling around.

0:31:23 Andrew: There's less HIV, AIDS. Yes, exactly. Right, under, yeah, number two. Starting, starting in 2007, a kip right, the Advisory Committee on Immunization Practices began recommending the human papillomavirus vaccine, HPV, for girls aged 11 to 12. And Akip now recommends the HPV vaccine for all children aged 11-12, plus various catch-up vaccination plans for older populations. So, yeah

0:31:25 Thomas: Yeah.

0:31:49 Thomas: That's interesting. I didn't know that. That, so is their problem going to be like that means they're having sex at 11 and 12 or something or okay usually

0:31:51 Andrew: Yeah we just you wait, so health insurance plans must cover the HPV vaccine under 42 USC 300gg-13 A2, right, because that's a vaccine recommendation. And then the third one, Health Resources and Services Administration, uh, promulgated a series of comprehensive guidelines for infants, children, and adolescents. They include counseling for alcohol abuse, screening and behavioral counseling for sexually transmitted infections, screening and behavior interventions for obesity, and counseling for tobacco use. And by the way, I am reading this from the opinion, right? Like, this is not just, you Andrew going off on, separate, this is what the court concedes is at issue, right? In 2011, HRSA promulgated additional guidelines requiring non-exempt employers to cover, quote, "all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity."

Health insurance plans must cover the services recommended by HRSA under 42 USC 300gg-13 A3 and 4. So happened, six individual plaintiffs, we will call them the assholes, yeah, for and they were just for defining it as a legal term within the document, provide health car coverage for themselves and their families. They want the option to purchase health insurance that excludes or limits coverage of PrEP drugs, contraception, the HPV vaccine, and the screenings and behavioral counseling for STDs, should be STIs, and drug use. They say that, neither their families, they are nor their families require such preventative care, and compulsory coverage for those services violates their religious beliefs by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman. And I know that's horrible, but, but just hold on, because

0:33:05 Thomas: You let me do that, but okay, this is so bad that you, yeah, yeah right

0:33:48 Andrew: Joining them is Plaintiff Kelly Orthodontics, which is a company that provides health insurance for its employees. It's Christian professional association that wishes to provide health insurance for its employers that excludes coverage of preventive care and contraceptives and PrEP drugs. Plaintif John Kelly is the owner of Kelly Orthoda. He's one of the assholes, is the owner of Kelly Orthodontic, says that providing such coverage violates his religious beliefs. Braidwood Management is a Christian for-profit corporation owned by Stephen Hotze. Braid Wood provides health insurance to approximately 70 employees through a self-insured plan, and Hotze wishes to provide health insurance for Braid Woods employees that excludes preventive care, such as contraceptives and PrEP drugs. And Hotze wants the option to impose co-pays or deductibles for preventive care in Braid woods self-ensured plan.

0:34:39 Andrew: And they argue correctly that the ACA prevents them from sticking additional costs on you to comply with your with the ACI.

0:34:50 Thomas: Now, can you remind me, we've gone through some of this before, wasn't this like the Hobby Lobby, uh, contraceptive thing, and I feel like that didn't go great, so is this building on that to be even, even worse? Or is there some reason they couldn't already do this because of whatever went on with that?

0:35:06 Andrew: We have talked about the Burwell versus Hobby Lobby decision. There are religious exemptions to contraceptives in the Affordable Care Act. And what Hobby Lobby said was, yeah, and you don't even have to fill out the paperwork. Remember how ridiculous that case was that as part of Obama having lost his filibuster proof majority in the Senate by the time that the ACA was finished, needed to sort of shop around for that 60th vote.

0:35:37 Thomas: Yeah.

0:35:38 Andrew: Vote and, uh, so, and, and wanted bipartisan, you know, look, this is one of the major, slight sidebar here for a second, um, this is one of the major criticisms of the Obama administration, by the way, raised by John McCain, and, and correctly so, which was, uh, Senator, you've been, you a senator for a week and a half, uh, and you have no large-scale executive experience.

And, and sure enough, being handed the presidency and 60 Democratic votes, and again, 60 Democratic voters, the way we have 50 Democratic votes right now, right, like there were plenty of conservative Democrats in that mix. And, you know, it's a, it's a hard bunch to kind of get to hang together. But nevertheless, handed that, really did not hit the ground running, let's say, uh, and I would attribute that to lack of executive managerial experience, and was just, you know, Mitch McConnell kind of run roughshod over, uh, Barack Obama for both of his terms. He learned, he got better, but, yeah, the Affordable Character, absolutely, uh, the rollout of that, the desire to have it be bipartisan, um, completely missed the idea that, uh, the other side, uh, even when they were not outright racists, was fueled enough by racists, uh, that they were never gonna compromise, that they were never gonna hand you victory.

And you had enough signs of that early on of, you know, Mitch McConnell going, we're gonna make Barack Obama one-term president. Well, how the hell did you think he was gonna impose that, we're, right, going to make a Barack Obama I'm one-term president by not letting him do stuff. Anyway, sorry, um, of that side rant, is the ACA built in every possible exemption

0:37:12 Andrew: For every goofball religious claim that anybody could come up with, including the ones that we've discussed at length that, uh, you know, you then drove a truck through, that have become the Christian health share ministries, right, that were pitched at the time of like, hey, uh, you're not gonna offend the Amish by, like, saying they can't do their little health sharing thing. Right. And Obama was like, yeah, add that to the list. Burwell versus Hobby Lobby said, by the way, having to apply for that exemption is too onerous of a discrimination against churches.

0:37:44 Thomas: Yeah. It's really hot out and it's just, it's gonna be really, I'm dehydrated. I don't want to have to move. Let me just be a bigot without effort, please. Thank you.

0:37:53 Andrew: Yeah. And, and in particular, extended that, I started to say churches, but extended that to for-profit corporations, administrations. Hobby Lobby, they're a giant store of crap, okay, they sell yarn and yarn does not have a sincerely held religious belief. You know who does, the people that own the store that sells yarn, and guess what, they get to represent themselves in an individual capacity.

And, and this, I mean, you ironic part know, part of of what I hate about this is, um, you look at this case and one, and of the named plaintiff assholes is also represented twice in the caption, right, John Kelly and Kelly Orthodontics, and I don't know a whole lot about like which number is bigger than the other, but, like, you shouldn't get two votes in a religious freedom case because you happen to own a business. Um, you should get the one vote like everybody else.

But in any event, um, that's how this all got teed up. Uh, yes, this is trying to expand, uh, the Hobby Lobby decision in a way that, um, is, is baffling, right? Because okay, fine, at least Christian churches have taken the position that abortion and some forms of contraception violate their religious doctrine, right? Like, at least you could say, I get why you're objecting, right? Like the answer should be, um, it's a democracy, suck it up, buttercup, we all fund stuff we don't like, uh, your religious beliefs don't give you, uh, extra votes in not funding stuff we don't like. Um, I get that, right, but you could at least kind of draw the line from A to B. Here, there is not a line. So let's be 100% clear about this. AIDS is not about being gay. HIV is not about being gay. PrEP reduces the risk of acquiring HIV by up to 99%, according to the CDC.

0:38:04 Thomas: Yeah, yeah.

0:39:43 Andrew: The medical guidelines recommend PrEP for any HIV prevention strategy for anyone who is HIV negative but has a higher risk of acquiring HIV. So that includes, uh, acquiring it via sexual activity, which is, uh, what they call serial discordant sexually active couples, um, you are married to somebody who has HIV. And by the way, plenty of heterosexual couples are serial discordent and sexually active, right? Like, you don't just have to be gay, uh, to have HIV.

0:40:18 Thomas: I want to make sure though, I mean, we're not doing the thing where we're like, hey, a lot of people have to take birth control for acne. Like, are we doing that kind of thing right now or, oh,

0:40:18 Andrew: No we Are not. What I am, what I am saying is PrEP is medically recommended, it is 99% effective at at preventing the risk of acquiring HIV, and we should initially reject the idea, the insinuation, it's not even made directly, we should, we should reject the insinnuation that oh yeah, but you know, for gay people, right? That's the bigot argument that's being made here, but it's factually wrong, right? PrEP is recommended for anyone who is at risk of acquiring HIV, and that is more than just gay males. So you can be straight, monogamous, married, everything these Christians say that they want and still be recommended PrEP. Um, and by the way, the HPV vaccine, right?

0:41:15 Thomas: Yeah.

0:41:15 Andrew: So. Yeah, this court did two, did things in a way that um, astonishing to me, so of course they uh, found in favor of RFRA on PrEP, which I'm going to discuss in a second. But the first thing they did, and I cannot emphasize how radical this is, and I cannot re-emphasize enough how far reaching this is. And this has been omitted from all of the coverage of this decision. And I kept that right, because if you're mainstream media, you don't have time to go through this. And like the big thing is, right, bigot judge upholds bigots' rights to, you know, be bigoted.

0:41:15 Thomas: Yeah, yeah.

0:41:48 Thomas: Yeah, kind.

0:41:48 Andrew: This district court judge struck down the PSTF itself, right, the Preventative Services Task Force, as violating the Appointments Clause of the Constitution. That argument was raised as one of a bunch of different arguments of, you know, in addition to, yeah, okay, we get that the like connections to uh, violating our sincerely held religious belief seem awfully tenuous, uh, but we don't think this PSTF has any right to to make recommendations. So I want to unpack that a little bit, because this is just lying about the law in a way that a district court judge ought not to do. So the Appointments Clause, we've talked about this before, this has come into play when we talk about which sort of officials require, require approval, you know that part.

0:42:39 Andrew: Right, the approval by the Senate, right, or which government officials can you just hire, right? So the Appointments Clause sets out the permissible methods of appointing officers of United States, that is Article Two, Section Two, Clause Two. Principal officers in the United States must be nominated by the president and confirmed by the Senate. But Congress can authorize the appointment of inferior officers by the President alone, by the courts, or by heads of departments.

0:43:06 Thomas: Of mean to call. Them that to their faces, though? Yeah.

0:43:08 Andrew: There are about 1,100 principal officers, and there are lots more inferior officers. You become an officer of the United States if you occupy, quote, a continuing position established by law. And number two, you exercise significant authority pursuant to the laws of the United States. And I just need to tell you, there is a principal officer here that oversees the PSTF. That is Xavier Becerra, the guy named As the defendant here, director of HHS, right? Subject to confirmation by the Senate, affirmed by the, the Senate, right? So um, I told you to put a pin in the statutory requirement that PSTF be politically independent, so one of the things that that was done administratively to try and retain the independence of PSTF is, there are the final decision, quote unquote, of whether something gets an A, B, C, D, or F is not independently reviewed and ratified by the Secretary of HHS. In other words, the Secretary may not direct the PSTF to give a specific preventative service an.

0:43:38 Thomas: Yeah.

0:44:23 Thomas: Hmm, they.

0:44:24 Andrew: A or a B rating. It's up to their independent judgment. That's because all PSTM members and any recommendations made by such members shall be independent, and to the extent practical, will not subject to political pressure, 42 USC 299 B-4 A6. Okay, that's the argument that this court ultimately bases the principal officer on, right? Like, says, well, look, like when they came up with the A or B, you know, nobody can tell them that they're wrong. The problem in getting there is it is abundantly clear that serving on the PSTF does not make you an officer at all, okay? Um, it does not meet either of the two tests that I just uh, set forth, so for example, prong number one, to be an officer at all, right, principal or inferior, you must have a continuing position established by law.

0:45:15 Andrew: I'm going to tell you that the PSTF serves part-time and meets occasionally, and now I'm doing to ask you to guess, in days, the the amount of time that the the PSTF spends meeting, right? How many work days a year do you think the PSTAF has?

0:45:32 Thomas: Geez, I don't know, 20?

0:45:34 Andrew: Two.

0:45:35 Thomas: Nothing?

0:45:36 Andrew: Now it's three different, so six, but like they meet three times a year for two days at a throw. And how much do you thing you're paid to serve on the PSTF? Zero. It's an unpaid advisory position where you gather together three times a year, and you look at a bunch of different drugs or recommendations and you put an alphanumeric label on them, right? This is like our long-standing ATF example of, you know, yeah, you're the bureaucrat who gets to decide whether the AR-15 looks like an AR-15B for purposes of the gun ban, right?

0:45:47 Thomas: Right. Right.

0:46:14 Andrew: Like this, Is a purely ministerial categorization function of the kind that government agencies do do all the time, they make no policy, right? Like they literally like just assign a letter, is this, is this, how do you feel about this, right? Like it could be ranked on smiles, right? Like, at, oh, I. Want to give an A, I want to give the big happy smile to these, I'm gonna give the the pretty good smile, the B, to these, you know, they're gonna be neutral to this one, right? Like that's all they do, it is is bonkers. But even if they were somehow officers, even if you could somehow say that this was a continuing position, they don't make any policy.

Inferior officers are officers whose work is directed and supervised at some level, that's all it says, by others who were appointed by the presidential nomination with the advice and consent of the Senate. And yeah, they are subject to the supervision of Javier Becerra. What do I mean subject to the supervision of? Of, no, Xavier Becerra cannot look at them and go, hey, you, you called that an A, that should be a B, but Xavier Becerra could bring in director Thomas Smith of the PSTF and go.

0:46:14 Thomas: Right. Yeah.

0:47:24 Andrew: Uh, hey man, uh, the last time you met you put all of these uh as A's, they should really be C's, so I am firing you from your job, get out, right? That's supervision. Every case that's ever analyzed the question of supervision has has held that right, there is just meant to be the tiniest bit of uh, insulation between a politically minded director of HHS overruling the evidence-based health determinations of a, of an agency that is subservient to it. This court blows up the entire PSTF because it wants who hate gay people and are stupidly wrong about the facts, um, it's it's terrifying, and.

0:48:10 Andrew: This goes to the Fifth Circuit, which uh, has been the most activist circuit in the country in anti anti-LGBTQ uh, activities, in taking the lead we talked about in terms of rolling back women's rights and and health care rights with respect to abortion, um, this is real bad. Um, the court says the PrEP mandate substantially burdens the religious exercise of Braidwood's owners, they're.

0:48:32 Thomas: Just.

0:48:33 Andrew: A for-profit corporation, they object to providing coverage for PrEP because he believes one, the Bible is the authoritative and inerrant word of God, don't give a shit, two, the Bible condemns sexual activity outside marriage between one man and one woman, including homosexual conduct, uh, don't care, three, providing coverage of PrEP drugs quote facilitates and encourages homosexual behavior, intravenous drug use, by the way, not in your book, and sexual activity outside of marriage between one man and one woman, and four, providing coverage of PrEP dogs in their self-insured plan would make him complicit in those behaviors, and then.

0:49:10 Thomas: Go.

0:49:11 Andrew: Then the court says, Yeah.

0:49:11 Thomas: Fuck. Yourself, God.

0:49:12 Andrew: Court says Braidwood is not merely alleging a traditional pocketbook injury, right, distinct from his risk of pecuniary harm having to fund it, Hotze asserts an ongoing dignitary harm, claiming. That merely.

0:49:25 Thomas: Yeah. I.

0:49:25 Andrew: Providing this coverage, right, in Braid with self-insured plan makes him complicit in behaviors that violate his religious beliefs, so he faces not only an injury economically by having to pay for it, but a current injury in the form of underwriting services that violate his religious beliefs.

0:49:40 Thomas: Got a question, Andrew, why wouldn't this even extend to, like, if I pay, I'm your employer, I pay you I could be like, well, I need to police all of your behavior because I have the money that I'm paying you as an employer, if you're using it for anything that goes against my sincerely held religious beliefs as a corporation, then that is an insult to my soul. What's the difference here? It's exactly the.

0:50:03 Andrew: Right.

0:50:03 Thomas: Same. In fact, health insurance, the crap you get for health insurance you have to declare as part of your compensation, at least in California anyway. So it's practically the same thing. It's like exactly the samething as saying, I'm payng you money, I can regulate now your your entire life to adhere to my religious beliefs.

0:50:09 Andrew: Yep. It.

0:50:21 Andrew: This complicit standard, right? I suffer a dignitary harm because I am complicit in stuff that I don't like. I do not see how you can draw that, that differentiation. Um, could give you a worse hypothetical in a, a minute, but but but first Uh, but first I'm going to articulate the the reason this court gives for ruling in favor of the plaintiffs, and that is because the defendants very, very sensibly did what I've been doing throughout the show, which is to say, you are completely insane, PrEP drugs are not gay drugs, there, this is ridiculous, you're killing people.

0:50:34 Thomas: Really? That's pretty bad.

0:51:00 Thomas: No, I don't. Yeah. I, that's the worst argue. I don't want to hear prep drugs aren't gay. What they, that has nothing to do with anything. That is the same argument as the, some people use birth control for acne. I don't I don't give a shit what they're for. They, it is probably more for gay people and who cares? You should still have to pay for it.

0:51:02 Andrew: Yeah.

0:51:18 Andrew: 100 agreement. Here's what the court said with response to that argument. "Defendants dispute Hotze's beliefs. They argue that Hotze's claim that PrEP drugs facilitate various kinds of behavior is an empirical one that requires factual support." Yeah, you might think that, it might, but anyway, "defendants inappropriately contest the correctness of his beliefs when courts may only test the sincerity of those beliefs. The Supreme Court has made it abundantly clear that under RFRA, HHS must, must accept the sincerely held complicity based objections of religious entities. Defendants may not tell the plaintiffs that their beliefs are flawed because the connection between the morally objectionable conduct and the complicity in the the conduct is simply too attenuated. In other words, if an employer has a religious objection to the use of a covered contraceptive and the employer has a sincere religious belief that compliance with the mandate makes it complicit in that conduct, then RFRA requires that that belief be honored."

0:51:38 Thomas: Oh my God. God.

0:52:16 Andrew: So your company has, it says has shown, but really it just means has alleged that the PrEP mandate substantially burdens its religious exercise. The burden then shifts to the defendant to show that that mandate furthers a compelling governmental interest, which it does, and is the least restrictive means of furthering that interest, which you can't possibly show. Defendants have not carried that burden. So far as I can tell, there is nothing to stop you as a plaintiff from saying, hey, I'm I'm Lutheran.

And as a Lutheran, we believe that we cannot be complicit in any association with extra dimensional beings, the stealth bomber is capable of intergalactic flight and might pick up extra dimensional beings. My tax dollars go to fund the stealth bomber. Therefore, I don't want to pay taxes anymore. Now, other than my tax dollars go to fund the stealth bomber, every word of that is false. And right? Not just false, but like demonstrable nonsense. But I defy you to differentiate it from the claims that are made in this case. Now look, we know what would happen if if I tried that, right, the court would just be like, yeah, you're not sincere. But that raises the question, and there is zero case law on this, right? We have Supreme Court guidance.

0:53:16 Thomas: Yeah. So we haven't done case law on how the hell you evaluate if this belief is actually sincerely held.

0:53:30 Andrew: Correct. How would you demonstrate someone's asserted religious belief is not sincere? No one.

0:53:35 Thomas: I don't know.

0:53:36 Andrew: Of course not. Because everything you could, you could be like well, yeah. Well, you know, now you're doubting my sincerity. And then, of

0:53:42 Thomas: I think the way it's done is how much does it align with my Christian beliefs as a judge?

0:53:47 Andrew: Course, that's the way it is. But like, so for example, Right. One of the ways in which I might test the sincerity of the belief is to say, OK, so you have asserted that this is based on the, you know, inerrant, infallible word of the Bible. Yes. Right. And that that you say prohibits abortion. We put a pin in that, the inherent, infallible, that's that's how I would go about, again, I'm not being facetious here, right, like that's how you would go about as a lawyer testing the sincerity of a belief that someone claims to hold. I defy you to do that in court. There is not a chance on earth that you could possibly

0:54:00 Thomas: So

0:54:35 Andrew: Do that and say you're a hypocrite, because right, they would just say the thing that they would do, right, which is, well yeah, but my sincerely held religious belief is also that we're all sinners and So you know, we, we fall short of the glory of God and can't, you know, uh, live up to these high standards I

0:54:45 Thomas: But I can only fund certain falling short of the glory of God and not others for some reason.

0:54:54 Andrew: I who the hell knows, this is what Antonin goddamn Scalia warned us against in employment division versus Smith. Right? To allow a religious-based objection to a law of neutral applicability is to allow every person to become a law unto themselves. I don't see how you cannot reach that decision that's Scalia wrote that in Employment Division versus Smith, baby yeah

0:55:00 Thomas: This is outrageous. Oh, he did? What?

0:55:15 Thomas: Antonin Scalia said that? Wow, that's surprising. But I imagine he contradicted himself over and over in other cases with that.

0:55:22 Andrew: Oh sure but employment division vs Smith was the case that struck down general religious exemption that led to the passage of Riffra, right, so he didn't have to, he didn't have to deal with with the consequences because the legislature immediately was like, wait a minute, um, we want bipartisan support for religious exemptions to commonly held laws and so they

0:55:27 Thomas: Yeah, okay. Yeah. Gotcha. Gotcha.

0:55:46 Thomas: There is so much that's outrageous about this, Andrew. This is outrageous. The worst thing is that you get to include factually incorrect claims as part of your sincerely held religious belief. So like, yeah.

0:55:47 Andrew: Yeah yeah you you can be sincerely wrong, and this

0:56:01 Thomas: And the remedy should be, oh, let me correct you on that. That's the remedy. I sincerely believe that X birth control is actually abortion.

0:56:01 Andrew: Court has said there is no remedy for that yep none yep

0:56:13 Thomas: And now that will, well, that's the next step. That's what's going to happen. I believe that X pill or whatever it is, is abortion. And what should actually happen is you say, no, you're just wrong about that. Let me help you with that sincerely wrong belief you have, but nope, it'll be all right. That sounds sincere. I guess no more. That is what will happen next.

0:56:32 Andrew: I read you the court's rationale, there is no ground to challenge the factual adequacy, and it does not say this, or lack thereof but is

0:56:42 Thomas: This is outrageous. Remind me what level of court this is and if this will be overturned.

0:56:45 Andrew: A federal district court that this opinion will be appealed to the Fifth Circuit, the most conservative circuit in the country the one that, uh, was out in front and ruled, for example, pre dobbs that, right, the Texas bill, was SB8, was consistent with Roe versus Wade and Planned Parenthood versus Casey, so um, uh, good luck, that's right why this judge felt comfortable issuing this completely insane decision, uh, because, uh, it's very likely going, going to get upheld by the Fifth Circuit

0:56:47 Thomas: Oh, great.

0:57:18 Thomas: We have to stay active,

0:57:19 Andrew: Yeah

0:57:19 Thomas: Folks, we have to take power back, we have to, this is, this is outrageous, all

0:57:20 Andrew: Yep not, it did not used to be this way, I, and I will add, like, this is a uniquely, you know, we, we try here, but when you ask things like, you know, why do we have Andrew Seidel on, um, why do you speak out about religious beliefs, uh, this is, why we do that, because, uh, um, this is a unique harm being propagated to allow bigots religious shielding for things that will lead to the death of children, the death of people in vulnerable populations, and, and this court was like, well yeah, but you know, they, they feel very strongly about their factually incorrect and morally bigoted beliefs, so what you're gonna do

0:57:35 Thomas: Who would ever ask that I reject your premise that anyone would ever question us having Andrew Seidel on and if they do question that, the Seidling will continue until morale improves, so that would be my response

0:58:11 Andrew: There you go I love it

0:58:18 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:58:24 Thomas: And now it's time for T3BE, Thomas takes the bar exam answer time. I don't remember last time I got one right. Oh, I think it was that insane trick question that I happened to guess right was last time I remember being correct. Let's see if I can, you know, be correct ever again.

0:58:24 Andrew: Yep so man's at his neighbor's house for a neighborhood gathering and and uh, kind of waits around and it's like, hey man, you got a hose, stretches stretches I don't I don't don't have one of those, yeah uh, stretches it across the yard to water his plants, uh, broke, broke the hose in half, such that it could not be repaired. I have repaired, like, you know, you use a little, little waterproof duct tape that'll, yeah oh every

0:58:41 Thomas: Oh, the hose question. You seen this hose, everybody? God, I never see these anymore. Yeah. Broke it in half. Not possible. Yeah, that thing from that infomercial, the guy slaps on the leak. Yeah.

0:59:12 Andrew: Time I see the flex seal commercial, I want to buy like eight cans

0:59:15 Thomas: I know. I want to buy it. I don't even have anything to seal. What is it about us?

0:59:16 Andrew: No of course there was zero chance that I would ever use it for anything other than like

0:59:21 Thomas: I might make a hole in something to just do that, actually.

0:59:22 Andrew: Yeah I would go out to the garage and be like, all, time to flex seal up some, you know, everything, and all right cool, so yeah let it, let us do that. Opening Arguments, brought to you by Flex Seal. Uh, so in a suit for damages, will the neighbor recover? You did the thing I always love when you do, you eliminated both no answers, uh, no becausethe the man did not intent to keepthe garden hose, Indeed, no because the man did not intend to damage the garden hose

0:59:30 Thomas: Let's go do that after this, Andrew.

0:59:48 Thomas: Yeah. I want to note that had there been a no answer that was no because what the F are you doing here? It's a hose. Get out of my court. This is pointless. I would have chosen that answer. But

0:59:55 Andrew: You would have you would have taken that one, well you eliminated those and good elimination, it is a yes answer so the only question is, is it for the actual damage to the hose or for the value of the garden host before the neighbor broke it, and you puzzled over that, but I think eventually kind of came up with the right measure, which is A is somewhat less than B, right, the, the, the cost of the damage is not the same as the initial value, uh, you went with B, and I want to tell you, Thomas, B is the correct answer

0:59:59 Thomas: Yeah, yeah. Like a materiality answer. Yeah. All right.

1:00:30 Thomas: All right!

1:00:30 Andrew: My friend, so sort of, okay so here's what this is testing, and this is one of these that I love, it, these, these only come up, pretty rarely, but they're, they're questions where the intuitive answer or gets you right to the right result, and lawyers who were struggling would be lawyers who are struggling to like fit things into the categories they've made in their study outlines can get tripped up because this question is designed to test, uh, is this a conversion, right, so conversion is the tort when a defendant seriously interferes with the personal property rights of another, other, for example, by stealing or destroying that thing, whereas trespass to chattels is present when you slightly

1:00:31 Thomas: Is it because it can't be repaired? Is that why? Okay.

1:01:20 Andrew: Interfere with the personal property rights of another by damaging it or depriving the owner of it for a short period of time. So when you take the hose and stretch it across the yard to go water your plants, you are committing trespass two chattels, but the moment that you've ripped it in half and it can't be repaired, it now becomes a conversion, and the difference in damages that you get is you get, uh, the actual damage when it is trespass two chattels, the lesser tort, and you get the value of the thing when it ist conversion, so none of this is important at all anymore because used to be the case that, when there were forms of action that you had to plead the right thing, um

1:01:25 Thomas: There

1:02:04 Andrew: And Yeah.

1:02:05 Thomas: It assumptions it. Yeah.

1:02:06 Andrew: No, that's exactly right. And so when somebody stole your stuff and you wanted the stuff back, right, you had to plead an action in conversion, and if you failed to specify conversion, the court could say, like, well, you know, you probably didn't steal your stuff, but you didn't call it the right thing that we want to get it back so, uh, you know, too bad on you. Uh, fortunately those days are long gone. Uh, know you do, you do need to know, I guess, for, uh, labeling your cause of action correctly in your complaint, uh, that a conversion is a is a major deprivation or total deprivation of rights. Usually what we think of of conversion version is I steal your stuff and I don't, and I don't give it back and you want me to give it back.

1:02:46 Thomas: So it sounds like it's because it can't get repaired, right?

1:02:49 Andrew: That's exactly, it's a long way of saying it can't be repaired in law, in, and I get to do my little detour about the forms of action, so there you go, all right, Thomas, most people were with you on rejecting C or D, and then, uh, the answers were split pretty evenly between A and B, uh, side note, definitely tag your answers with the hashtag T3b, that's what I sort from when we we pick a winner, so you're not using the hashtag, uh, we, we can't see you

1:02:55 Thomas: All right. Well, I won, but let's find out who else won this week. And T3B, who's our big winner?

1:03:16 Thomas: Yeah. Yeah. And share the show with that. You got to retweet the show. You gotta share it. Put your answer in there.

1:03:22 Andrew: Absolutely yeah so uh, complying with the rules of the engagement, uh, the first winning answer that I saw came from Dan Proctor, Dr. Dan the Moose, who writes, "first shot at T3b, well, you know, boy, to, to hit a three-pointer on your first shot, great great work

1:03:38 Thomas: Wow. Retire. George Costanza it out of here.

1:03:40 Andrew: Yep, leave it a high note. Seems the complainant must be made whole, and the best way to do that should be B. A implies fixing it, but the fact pattern said that it couldn't be repaired. You break it, you bought it. B for me. Well, again, awfully close, so uh, Dan, congratulates. Dr. Dan, congratulations. And everyone let's give them a follow. That is at D-R-D-A-N-T-H-E-M-O-O S-E, Dr. Dan the Moose, Dan Proctor, congratulations on being this week's winner.

1:04:12 Clip: Thank you for being a friend, yeah, travel down the road with me, say we started from the bottom now we're here girl,

1:04:20 Thomas: And now it's time to thank our hall of famers, our all time greats at patreon.com/law, enjoying all the goodies, the, uh, the extreme goodies as, as hall of framers, uh. And just the, the sheer reputational boost that you get from being a hall of Famer. Let me tell you. Why don't you start first?

1:04:29 Andrew: And A big thank you to Six Sick Hicks, Nick Six Slick Bricks with Picks and Sticks, the F Andino Reynolds Center for lawyers who can't lawyer good and want to learn to other to do other stuff good too, at Atomic Penguin Seven on Twitter's Patreon name has been scrubbed due to a scheduled Patreon donation as per U.S. protocol, James Heath, Trespassery, Terpsichore, Testator Dr. Scoop, Little Duck Doug and Heather, Mr. and Mrs. Pusher, and listeners like you, thank you, that thing in the attic, hand-woven sustainable textiles for your home and body at Kelly Wovit.com, don't bring a mullet to a knowledge fight, that's that's outstanding, for a fun fantasy story read The King's Own by W. Marshall, now on Amazon, check that out, this is not our all-time great Conrad Michaels, no, this is just a

1:04:45 Thomas: Nice. Nailed

1:05:31 Andrew: Tribute. Liberals own guns to support root cause mitigation, not effective gun, not ineffective gun control, well I support effective gun control, the Fat Jedi eating cake and drinking Emperor's Brewery beer in the Death Star canteen, OA Chicago live show, you bring the law talking guys, I'll bring nobody, that nobody sent, all right. Zach, Bloom, Daniel at Duncan 4SC on Twitter, a state politician getting around ad rates one month at a time, yeah good, work, and uh, serious good luck to you in the campaign, and Terry Cannon, take it away, Thomas, yeah.

1:05:51 Thomas: Okay. And Thank you to Tell Morgan Gattam's son, Ray Pizza Pizza School the Corgi, it's funny, every time, Pizza Pizza School to Corgi says, join our local canine union, alone we bark, again together we beg, legal eagle is so handsome, behind the Bastards four-part on Clarence Thomas is epic, oh I may have to check that out, praise be unto Hamilton, the Smiths, crazy animal lady has given up on changing her Patreon name, just take my money, love it, that's perfectly acceptable, budget botanist is alive and back on the Fiverr app for houseplant help, this time next year will hopefully be Dr. Budget Botanist.

1:06:16 Andrew: Okay. Wow.

1:06:42 Andrew: Awesome.

1:06:43 Thomas: That's incredible news. Well done. Go check out Budget Botonist on the Fiverr app. Shout out to Nubs, Boo Boo, Chucky, and their loving cat lady in training, Reva. Cats, not gats. Gats? What is that? No, I don't know.

1:06:54 Andrew: I don't know about all of those, if you'd asked I would have said those are Brett Cavanaugh high school friends, so uh, much much rather they be cats, so so

1:07:03 Thomas: Nice. Sparkle Donkey, Black Acre, Agave has a diagonal privity. B, indefensible, possible divestiture, C, disputed quick claim, D, verbal tendency. Listener Thomas F., stay safe and remember many police and military people are hardcore right-wingers who don't do the right thing, who won't dothe right thing. Yeah. One Smart Cookie sent Cutters celebrating a Johnson free future in the UK with some tasty at Emperor's Brewery beer. Woohoo. All right. Nice. GDT says everyone knows that the police can't arrest you without, page two of two, your consent. Accent, Maritime Laws, Freedom Menu, Les Deux, Les Biens, Fabuleux, Ben Ghazi and the Buttery Males, and Jennifer Tchaikovsky. Thanks so much. Hall of Famers, top patrons, you're the best.

1:07:16 Andrew: We Love you.

1:07:50 Thomas: And that's our show. Thanks for listening. We'll see you on Rapid Response Friday.

1:07:54 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.

1:08:28 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash 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.