OA Bar Prep with Heather! T3BE29

Transcript

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

0:00:46 Thomas: And welcome to another week of OA Bar Prep with Heather, also known as Thomas Takes the Bar Exam T3BE. We're gonna get the answer to question 28, last week's question about a woman bringing suit in State A in federal district court, and or not that suit belongs in federal court, or if it's too late, maybe, were were some of the answers and we'll find out which one was the correct one and we will announce the week's winners and then off course we will get a question 29, after which I'll do the patron shoutout, so that's the agenda, of course, so after this break, which which you can avoid if you go to patreon.com/law. Avoid all the ads, any breaks, any commercials, any crap. Avoid all that, patreon.com/law and get the goodies. Get a lot off of movies. This break, we'll get that answer for question 28 from Heather. Right, Heather, now it's time for the answer to last week's question. Why don't you remind us what we were dealing with?

0:01:42 Heather: We had a woman who was suing in a federal court and she was sueing in violation of a federal employment discrimination statute, her employer. The employer was trying to kick the lawsuit out by filing a motion to dismiss. And we're trying to figure out whether or not the federal court's going to grant the motion, right? So she's filing this suit for employment discrimination and the employer obviously wants to get rid of it. And We're we're trying to figure out what the federal court is going to do. And you said, and will you remind all of us what your answer was?

0:02:11 Thomas: Yeah, yeah. And it was dismissing it for lack of subject matter jurisdiction, importantly. I thought that since this is the law was what was in violation allegedly here, that we're in federal court and the amount of controversy and the diversity of citizenship stuff doesn't matter. So I won't see, no, because the woman's claim arises under federal law.

0:02:17 Heather: Yes.

0:02:33 Heather: Well, let's do the thing that we always do in which we're starting to figure it out. We'll start with what the subject is. So we can look back at our seven subjects that get tested on the bar exam, on the multiple choice question portion. So if you had to take a wild guess as to which one of those that being tested here, which one do do you think it would be?

0:02:50 Thomas: I would think it would be federal civil procedure based on my list of options.

0:02:57 Heather: And you'd be correct, right? And federal civil procedure is the procedure by which a person goes through in litigating a case in federal court. It's a foundational class that you take in law school, usually in your first year. And when you kind of start, there's like these cases, it can be kind of overwhelming. And it can become hard to wade through. But it really is just the procedure that you go through to litigate a case. So I'm glad that you spotted that right away. It sounds like you've got a lot of experience maybe handling some some of these kinds of questions.

0:02:58 Thomas: Right.

0:03:24 Thomas: I've tried several of these cases myself. Oh, the question.

0:03:26 Heather: Okay, good. What was your tip off that this was a civil procedure question?

0:03:27 Thomas: Yeah, true. State A. Yeah, pretty much right when you get state A, it's, I'm like, I can't, actually that, Yeah, that's interesting. While we're on the topic, I get think of Another Type of Question where you have the state A, state B, state C stuff. Like, I think pretty much, am I correct that when you see state A? Like, you're pretty much always talking about this kind of thing? Or is there another topic?

0:03:53 Heather: Yeah. No, this is pretty much the one in which you're seeing the different states and you're also trying to track them, like who's from where and what's happening in which state, right?

0:04:00 Thomas: Yeah. Yeah, because because of the diversity jurisdiction stuff. Stuff.

0:04:06 Heather: You also pointed out right away the subject that it was testing, which you kind of saw almost immediately, right? Do you remember what that was?

0:04:13 Thomas: Well, it's just whether or not we can, I don't know whether or not we're going to be in federal court or if we need, is it subject matter jurisdiction or whatever, or

0:04:20 Heather: That's exactly it, subject matter jurisdiction. Yeah. You spotted that right away, right, that the company made a motion to dismiss for subject matter restriction. And I always tell students this, listen, if you get to the call, the question, and it doesn't tell you that subtopic, it's okay to back up one sentence and to see if it's giving you any hints. Because one of the things that the bar our examiners test constantly with inside of civil procedure is jurisdiction. It's testing that so often.

And there's really two flavors of jurisdiction. One is subject matter jurisdiction, which is that the court has to have jurisdiction over the subject matter, right? It also tests personal jurisdiction, which is, you know, it's not just the court, it has to be the court. That the court must have jurisdiction. And it's testing that the courts have to have jurisdiction over their parties and federal court.

You also made a really good point a bit bit earlier, which you're talking that federal courts are kind of wanting to kick out or not take on all the cases that come before it, right? And that's definitely true.

Federal courts are referred of limited jurisdiction, right, so we limit the types of cases that they can hear, and again, that's why there's some of those rules around what kinds of cases that they can hearing, what kinds subject matter jurisdictions that they have, same thing with personal jurisdiction, right? Can come before the federal court, right. So that's why there's some limits in that area so that they're not just hearing every single case all the time, all

0:05:36 Heather: Day long.

0:05:35 Thomas: They're overworked. Yeah.

0:05:37 Heather: Yeah, they would definitely say that. And so you also had mentioned when you were walking through the question, you had talked a little bit about diversity. And I'll hit on that, which is there's two ways that when a person files their their lawsuit in federal court, that they can get subject matter jurisdiction, right? You had mentioned this as well. There's two ways to get there through federal question and through diversity actions, right. Let's walk through some of this part of the question. And I'll hit on this right away. You had talked a little bit about federal question. What was your memory a little Bit of the rule for federal question? Because I heard you talk about it a little little bit before. And I thought maybe you could remind us of what your memory was of that.

0:06:16 Thomas: Oh, I don't know what you're talking about. The rule of federal question. What is that?

0:06:20 Heather: Yeah. Okay. Well, it's rule is this, the federal courts have original jurisdiction over civil cases that, and under the Constitution, laws, or treaties of the United States, right? This means that the plaintiff's complaint or lawsuit must arise under federal law on the face of the complaint. So basically, when someone files their lawsuit in federal court, they've got to allege a federal right or interest. So if I file a lawsuit, I must do something like I've got an alleged violation of my First Amendment free free speech rights, or I've got to say there was a violation of the Americans with Disabilities Act, right? That's a federal law. So anytime we've got something like that coming up, we've Got a Federal Question, and that's how the federal court can have subject matter jurisdiction the case, right? We've You've also got diversity because that's the other way that you can reach subject matter jurisdiction. And you had talked a little bit about diversity. You had mentioned two things about diversity, do you remember what you were talking about?

0:07:11 Thomas: The The diversity, I get a little mixed up with that sometimes, but I think, knowing what I know, that knowing that the federal court kind of doesn't want stuff, I'm pretty sure if there's any kind of common, I state, whatever, you can give me the actual words, then I think we don't have diversity of citizenship. I think if it's like, okay, this corporation operates in several states, and With the, or whatever, then I think you longer have diversity of citizenship. But if you have truly, person in state A is suing person in state B for over $75 ,000, then I think we're in federal court. But there also might be the question of like what they're suing them for, which law. That always gets complicated too, and I, I always keep that, those rules straight all.

0:08:00 Heather: You're doing a good job by kind of grasping like the overarching, right? Of rules is called diversity of citizenship, right, and that second set of roles is called the amount in controversy, and we'll walk through both. So subject matter jurisdiction can be satisfied when the plaintiff meets both. Both. They have to meet both the amount of controversy requirement and the diversity of citizenship requirement in civil cases. Right. So this first answer toy says, yes, because the company is the citizen of several states, one of which is the same as the woman's state of citizenship. Right, so let's talk about the rule for diversity of citizenship, this first part of the rule, right? As you had mentioned, there must be complete diversity of citizenship between the parties, meaning that no plaintiff can be a citizen of the same state as any defendant, okay? Nobody on one side of the V can be the same citizen of any, yeah.

0:08:40 Thomas: Yeah. And. Now. That's the tricky thing I was remembering, if you have like multiple plaintiffs or defendants or whatever, it's any one of them having something in common, having it just one in common, then it kind of blows the whole operation. Yeah.

0:08:56 Heather: It does. It wrecks diversity. That's our fancy lawyer term. It wrecks adversity. I kind of like your term better than mine.

0:09:01 Thomas: Right.

0:09:05 Heather: Let's go with that. So we're going to start because we love complexity. We can't just have the same rule for everybody. So we've got different rules for different things. So we're gonna start with citizenship for individuals. Citizenship is determined by the state of domicile for individuals, yay! Individuals can be citizens of only one state, right? Like you and me, we can be citizens of only one state at a time.

0:09:27 Thomas: Even if we're like doing over a bridge and working in another state, interesting.

0:09:30 Heather: Yes. How do we determine domicile? Well, we through two things. First, there has to be physical presence in the state, right? I'm going to be physically present. For example, let's if use me, yay. Let's say I want to move to Washington state. Then I'm there physically. So I'm physically present and this other part is intent to remain. This is where it gets tricky and more fun, right? This is where fun increases.

0:09:31 Thomas: Okay, yeah.

0:09:53 Thomas: Super fun.

0:09:53 Heather: Yeah. Listen, listen. So intent to remain. So we look at some facts to help us to determine whether or not there's an intent to remain. Let's say I move to Washington. I'm physically there. Let'S say I sell my house in California. Buy a house in the state of Washington. Take a new job in the state of Washington. let'S say I bring my dog. I bring all my belongings, right, these suggest that I have an intent to remain. Maybe I also re -register to vote in the state of Washington so that I'm no longer a voter in California. These suggests that I had this intent to domain. That changes, for example, if, because let's get more fun, if I, instead of selling my house, that I sublet it, or sorry, that if I lease it, and then maybe in the city of of Washington. I rent or I have a six -month lease. Maybe I put my stuff in storage in California. Maybe my job is still in California, maybe I don't re -register to vote in the state of Washington, all which suggest that my heart is still California, right?

0:10:18 Thomas: It.

0:10:51 Thomas: By where your heart is it?

0:10:53 Heather: More or less, more or less. Right? Back to the fact pattern. In this one, we have hint, a or it just tells tells us, where the woman, the individual, is a citizen. Where is she a citizen in this fact pattern?

0:11:05 Thomas: Says state A, yeah.

0:11:06 Heather: We're just going to trust the fact pattern.

0:11:08 Thomas: Okay. We'll trust you question on this one.

0:11:11 Heather: Yeah. So I went through all that because I did want to explain some of the domicile stuff.

0:11:15 Thomas: Because, I mean, I have to imagine there's going to be cases of like, well, someone bought a house in state C to try to get out of something like.

0:11:23 Heather: And it's the bar exam. They love to test this kind of stuff. That's the other thing too. So if you maybe heard the question and you were wanting to try to figure out where the woman was a citizen, and state A wasn't something that came up right away, know that when you fight this kind of thing, it's going to make it harder to get through the question. So one of my studiers last week, he was telling me, and I hear this a lot, he goes, "Listen, I tried to litigate or fight some questions, and every time I did that, I got it wrong." So this is one of those times when you can trust it. So it's just telling you the woman is a citizen of state A, you could just trust that that's the.

0:11:26 Thomas: Mm-hmm. Yeah.

0:11:56 Heather: Case. So I know it can be hard to trust the process sometimes, but this is one of the times we just, We're we're going to trust it for this

0:12:01 Thomas: It doesn't trick you in those ways. It won't say like a thing and then it turns out like, ha, we lied.

0:12:03 Heather: Yeah, exactly. Usually the answer choices, right? Talk a little bit about citizenship for corporations because we've got this other entity, right, that it's part of the lawsuit. So of course, citizenship citizenship for corporations is going to look a little bit different than it will be for individuals, right? That for corporations, you can be a citizen in more than one state, right?

0:12:24 Heather: So unlike for individuals, this is where it gets, again, more fun. You can be a citizens of more than state. So know that corporations can be citizens in every state where the business is incorporated. Let's see here, what state is the business incorporated? Or what what state is the corporation incorporated here?

0:12:24 Thomas: Well, it says state B and then its headquarters are in state C and employees work in office in state A. just in corporation, though, it's a state B.

0:12:52 Heather: Yeah, exactly. So they're incorporated in state B. So we'll start there. Then the other rule that we've got is that they're also citizens in the state where the corporation has its principal place of business.

0:13:03 Thomas: If this were the only rule, then every corporation would be a citizen of Delaware. And I know that that's not how it works.

0:13:08 Heather: That's right. When we're looking at the principal, we're trying to figure out, what what is their principal place of business? Well, know that that's where managers direct, coordinate, and control corporate activities. This is also known as the nerve center or the headquarters. So here you had mentioned that it tells us where the headquarters are, and that's state C, right? So we've got the business incorporated in state B, and then it's also headquartered in state C. So we're the one, one we've got a Yeah.

0:13:38 Thomas: Interesting though.

0:13:39 Heather: A corporation is a citizen in more than one state, right?

0:13:42 Thomas: Okay. It doesn't matter if you just merely have a location somewhere.

0:13:46 Heather: Right, right. Because it says with most of its employees working at the office in state A, where the woman works, that doesn't fit with our rules, right? So it's just a kind of including that to check to see how well you know these rules, do they apply, or does it not apply, is it just extent, is it just irrelevant information In here?

0:13:47 Thomas: Okay, okay, OK, OK.

0:14:04 Thomas: So the only two corporation things are where they are incorporated and where their headquarters are, essentially.

0:14:11 Heather: Exactly. To your point a little bit before, we've got to make sure that have their headquarters, we've gotta make sure, that that doesn't overlap with where the individual has her citizenship in to meet this role. Now we'll look back at the answer choice, which says the company is a citizen of several states, right, that's a true statement because we know that the rule allows us to have the citizen, the company to be a citizenof several states. That's true, and right that is okay, but it also says one of which is the same as the woman's state of citizenship, right. That true?

0:14:12 Thomas: Oh, OK, based on what you're telling me.

0:14:45 Heather: Exactly. Exactly. So is this answer choice, is it, are we going to keep it or are we going to get rid of it?

0:14:50 Thomas: That one clearly is wrong. So we'll get rid of a sure.

0:14:54 Heather: A is wrong. We'll also do for this one is it's wrong for another reason, but we're going to come back to why it's wrong in so A is out. We also have B. you had mentioned when you were walking through the questions that the amount of controversy wasn't met, and you also talked about diversity of citizenship, right? Let's walk through, this is a good opportunity to walk through our other part of the requirement for diversity actions, which is the amount in controversy, the plaintiff, they have a good faith allegation that exceeds $75 ,000, right. By a penny. Even So if it's $75000, and one penny, you meet the requirement.

0:15:26 Thomas: So funny. I was actually going to ask that. Is it seventy five thousand dollars even or is it more than seventy five hundred?

0:15:32 Heather: More. More.

0:15:33 Thomas: Okay well good thing that didn't come up this time

0:15:36 Heather: And And sometimes it does. For the purposes of the bar exam, they often include an amount of money. That they're seeking. And again, it's always going to be some Listen, typically, you won't have to add or subtract with these questions. And it'll just give you a nice even number. And you're just trying to figure out whether or not it's more or less than that $75 ,000. So with this one, how How much was the woman, what was she looking for? What was the relief that she was seeking?

0:15:58 Thomas: Said solely 46 ,000 in back pay I

0:16:01 Heather: So that means that the amount in a controversy requirement is not met, right? See that the first part of B, which says there is diversity of citizenship, what does this tell us? That it says, B says, yes, because although there is diverse citizenship, the amount and controversy requirement is not met. Is Is this a true statement? Yeah, right. It is a true sentiment. Now we've got to figure out whether or not it's the best answer.

So We what we can do is, even though you didn't flag this a little bit earlier in your first pass, what we can do with this, because it's a true statement, we can also hang on to this and then kind of pop around To the other questions. Does go down, D, um, this was your, your second choice answer. Is this one said no because the company waived its objection by failing to assert it either in its answer or an emotion made before it served its answer, right? You were talking about, um, a little bit, and you are thinking it might be true, um, if it was done earlier, like maybe a timing issue. Did I understand that?

0:16:17 Thomas: Think it is a that Yeah. So I was doing some battle in my mind. I really wanted to pick the second best answer in case I blew it on the first answer. And so on one hand, I think it makes sense. It made sense to me that like, hey, if you're going to try to remove something from federal court, you got to do so early on. You don't, you wouldn't want it to be like, well, we're already in the process and we're in the middle of discovery.

You filed your answer in the middle of the discovery and now you want to do it. But then I'm always trying to think like how could I be wrong? How could the answer be wrong or right? I was thinking, well especially with something like the amount in controversy, I was think could it be that like in discovery you discover, for example, that one of the claims is bullshit. And so now all of a sudden the amount in controversy goes down.

The amount in controversy at least considered from a reasonable perspective or something. Maybe in Discovery, the party finds out that amount of controversy should actually be way less for whatever reason. Maybe there's a bad fact, there's about email, there is something.

Then I was thinking like, well, then in that case, would they allow you to move to do this later And I ultimately am not sure, but I think, I think I, for the sake of the question, I ended up just guessing that like, well, maybe they still won't let you do that. I don't know. Maybe it's still too late because would want you to just get this done earlier.

Maybe, maybe it would be different if there was some genuine change in the amount of controversy, but there wasn't that here. So I ended up going with they wouldn't let you do it late in my mind. That's my assumption. And so, therefore, D was my second best answer because in my might, it kind of trumps the other stuff.

Like if if amount of controversy and diversity of citizenship, even if those aren't met, what would matter first here is that they of waived it by not doing this earlier.

0:18:33 Heather: Well, and I think that's what you're trying to get at hits on what this answer choice is hitting on, which is this choice goes to, it's hitting on an issue, which is defensive motions, also known as Rule 12 motions. And Rule 12 goes to the, what I mean is the Federal Rules of Civil Procedure. Under the FRCP, we've got this list of Rule 12 emotions. And what they really do is they attack the validity of a complaint, right? You're trying to kind of hit at the complaint, and a lot of times you're trying to get rid of the lawsuit altogether. With those, often with most of them, if, to your point, if they're not raised in a timely manner, they're waived, and they cannot be raised at a later time, right? Like to call these the use it or lose it, because when you don't bring them up, you basically lose your opportunity, right?

0:18:55 Thomas: Hmm. Right. Yeah. Makes sense.

0:19:17 Heather: Yeah, for example, a party must object to personal jurisdiction at its first opportunity. So once you see that complaint, and you're the the defendant, the first thing that you have to do in order to successfully object to personal jurisdiction is in the first paper that you file with the court, you have object to personal jurisdiction. If you don't, it acts as a waiver and you can't object to personal jurisdiction at any time later, even on appeal. That's goodbye. It's gone. You can't do that.

0:19:45 Heather: So then what about subject matter jurisdiction? Is it the same, right? Party can object to subject matter jurisdiction at any time. It's not waivable.

0:19:53 Thomas: Even Okay.

0:19:53 Heather: Is the one that can't be waived. With this answer choice, It it's is an incorrect statement of law, and

0:19:58 Thomas: Like, sounds like my assumption, even though I considered it, my assumption ultimately was wrong because I guessed, oh, maybe this is one of the use it or lose it. And you're saying it's not. And so that seems to me plenty of reason to eliminate D, but

0:20:11 Heather: Then that leaves us with between B and C, right? C was your answer choice, right. Do you mind reminding all of us why C was your favorite?

0:20:16 Thomas: I just pretty sure based on my prior knowledge that if we're talking about federal law, we're just in federal court anyway. And I felt like that applied first really before for anything else

0:20:28 Heather: Yes. Yeah. And would also remind me what made you think that there was a federal law at issue?

0:20:37 Thomas: The question tells you. And of a federal employment discrimination statute.

0:20:43 Heather: Exactly it. Yes. Precisely it. That puts us in the federal question jurisdiction part of the rule, right, C is the correct answer. And you did a great job. Yes, you did all that and you got it right away. So you did an excellent job.

0:20:54 Thomas: After all that, yeah, I'm mad That I didn't get the second chance. I'm not going to lie, I'm a little upset because I tried hard on that second chance answer and I didn't even come close, actually, because I think it would have been between probably A and B. So I so I messed up on the diversity. That's a good thing to remember. So things I need to take away from this, the corporate diversity, the corporate citizenship doesn't depend on like where people work or the way, or even where the majority of your employees work, apparently, just depends on where you're incorporated and where you your headquarters, and also this a use it or lose it thing. So those are the two, two things I really, really I got wrong that I need to take away from this. What I got right was the question. That's right. Still got the question right. That's why this exam is just so easy because you can get so much wrong and still get the question right.

0:21:49 Heather: You and you were right, too, when you said initially that diversity doesn't matter, right? When federal law, when federal question jurisdiction applies, we diversity action rules because federal law applies. We don't have to worry about it, right, you can get your case into federal court under subject matter jurisdiction either under federal question or diversity. It doesn't have have to be both. You pick one, it to meet the requirements of the rule, and you're good.

0:22:11 Thomas: Well, I'm glad I successfully remembered that. And also my updated score now, I am 15 for 24. That is 62 .5 % in the new era. So I'm happy about that. And now I do feel way better armed to answer future federal jurisdiction -y things because of that breakdown. I mean, you could have taken the easy way out and just said, no, see, that applies first. But then we wouldn't have learned all the other things. So I really appreciate you giving us that deep dive through the question.

0:22:20 Heather: Yes.

0:22:39 Heather: You're welcome. And you did a great job. And and I'm going to tell you part of why as well, is because, and part of what makes these questions challenging is that they're reading comprehension questions. Being right, able to identify those key facts through the fact pattern and applying them to the rule, which you did very well, seeing right away in the question that that clause in violation of a federal employment discrimination statute was critical to being able to answer the question correctly, right? So that's a great, you just narrowed in on that and went right to that right away. Note too, that if you're a law student or you're studying for the bar exam, this is where it gets a little bit tricky because by the time you sit for the bar exam, you studied in law school for about three or four years, you've had 10 weeks of bar study and multiple choice day is the second day of the exam. You've had six and a half hours of essays.

0:23:23 Thomas: So I've already failed then. Okay.

0:23:25 Heather: No, no, no.

0:23:26 Thomas: I won't even get to this point. No, I don't know how you're going to teach me how to do essays. We'll see.

0:23:28 Heather: Listen, we'll get there. And sometimes what will happen is that when you're deep into answering the multiple choice questions, because you've got three hours in the morning, three in the afternoon, it can be easy to miss a question like this when you are exhausted. Losted. Because this is again, this is at the end of a very long road to your path to becoming a lawyer. So it's this is, again, really important to pay close attention to the facts. So how I that's like to remind folks is that these can be reading comprehension, you want to read really closely. And Thomas, you did a fantastic job. And like I said, narrowing in writing on those key facts there. So excellent.

0:24:02 Thomas: Oh, thank you so much. Right. Got some great winners this week. We'll start with Reddit, the first place to play, reddit .com R slash open args. So cool. Got this running score going. I love it so much. There are a lot of correct answers. There were also some incorrect ones. I think there was a good mix here. Some people were fooled by answer D. I think that was an attractive distractor. The idea that, you know, maybe you could miss out on the opportunity to challenge this.

I'm going to go with a pretty straightforward one, but it's a name I don't think I've shouted out before that I remember. So always good to give a new shout out, but this one covers all the bases and is totally correct, too correct. Perhaps maybe the textbook was involved in this. No, I'm just kidding. All right. So German death dash reggae. German death reggae, not sure what that name means, but they say answer C is correct.

For a federal court to have subject matter jurisdiction over a claim, the claim must either present a federal question, that is a claim arising under federal law, or a state question in which there's diversity among the parties and the amount in controversy exceeds $75 ,000, Here the woman's claim arises under a federal employment discrimination statute, so it satisfies the federal question requirement. Answers A and B are incorrect because the claim presents a federal question.

Therefore, diversity and amount and controversy are not required to grant subject matter jurisdiction. Answer D is incorrect because subject matter jurisdiction is always required and cannot be waived by failure to raise the proper objection, rejection. So that pretty much covered everything perfectly, almost too perfectly if you ask me, but we'll assume that German death dash reggae is just that good at the law and the bar exam.

So congratulations, German Death Reggae, and now we'll go to, uh, apologies to Redditors, but our even better winners over on patreon.com/law. We had a great one here that I think summed it up perfectly from Dr. Clark. Clarke says, the answer is C, for exactly the reasons Thomas said, but more importantly, he should know that subject matter jurisdiction is like Superman slash Wayne Gretzky, and that it can win at any time, no matter what.

I think of it as the, sir, this is a Wendy's issue, because it comes down to what the court, court is actually authorized to do. No matter, matter how much time you've spent litigating at Wendy's, it's still not the right place for resolving the claim. I love that. That'll help me remember. And truly, we have so many people I hear from actually studying from the bar who are benefiting from this.

So hopefully the, sir, this is a Wendy's rule for subject matter jurisdiction helps you remember as well when you're taking the exam. Congratulations to our winners, German Death Reggae and Dr. Clerk. Thanks so much for playing. I love this so much. Keep it up. After this break, we're going to get to question 29.

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0:28:22 Thomas: Right, Heather. Well, I'm on a real hot streak of two in a row. So with that in mind, let's have another question. Let's do it. I'm ready. I feel good. I feeling great. Question 29.

0:28:35 Heather: Right, here we go. Vaccination of children against childhood contagious diseases such as whooping cough, measles, and diphtheria has traditionally been a function of private doctors and local and state health departments. Vaccination rates have declined in recent years, the president proposes to appoint a presidential advisory commission on vaccination, which would be charged with conducting a national publicity campaign to encourage vaccination as a public health measure. Federal statute authorizes or prohibits this action by the President. Activities of the Commission would be financed entirely from funds appropriated by Congress to the Office of the President for, quote, such other purposes as the President may think appropriate, end Quote, "The creation of the commission by the President, a constitutional exercise of authority?

Yes, because the President has plenary authority to provide for the health, safety, and welfare of the people of the United States. Yes, because this action is within the scope of executive authority vested in the President by the Constitution, and no federal statute prohibits it. No, because the protection of children against common diseases by vaccination is a traditional state function, and therefore is reserved to the states by the Tenth Amendment." D, no, because Congress has not specifically authorized the creation and support of such a new federal agency. Sure.

0:29:16 Thomas: Oh boy.

0:29:57 Thomas: Okay, I like it. We're dealing with more, I guess, constitutional law, I think, because we got, you know, um, this is is not unlike two questions ago, we're talking about who has the power to do what and why and how and when and with what money and where, I guess, and I suppose, you know, if I were a good student I would have read the Constitution, but I haven't, uh, in a while, so I don't remember of anything about the president providing for the health, safety, and what, well, well, maybe, I don't know, man, they're going to get me with that one.

Okay. So we got, I love, I also love the relevance of these questions. They feel very contemporary, which I, which I love. So I think this is also a little tricky because obviously already have agencies for stuff like this. It seems like this could be done in different ways that would be totally fine, but got to stick to the world of the question. And such, I wonder if this will actually not be fine.

Okay, so it's setting up that vaccination of children is normally a function of private doctors and local and State Health Departments. But now it says vaccination rates have declined. So the proposes to appoint a Presidential Advisory Commission on vaccination. That an agency, commission is a commission, an agency, I guess, I gas a point. So is that like a panel of people? Crap. I don't know.

Presidential Advisory Commission on vaccination, which would be charged with conducting a national publicity campaign, which that strikes me as like, all right, not a lot of stakes there. They're not like going out and catching people and like giving them shots or something. They're just like doing publicity saying, hey, you know, it'd be great is if you used science to make decisions. Seems like not a big deal, but no federal statute authorizes or prohibits this action by the president.

OK, but then this part I love that the activities of the commission would be financed entirely from funds appropriated by Congress to the office of the president for, quote, such other purposes as the president may think appropriate, end quote. So now this, are they saying that already exists? Like, oh, the funds are already appropriated by Congress, and they quote something, like, is that saying that already happened?

Or is that saying like the president, part of the proposal is to to appropriate these funds over to the office of the president? Like, that's confusing to me. Activities of the commission would be financed entirely from funds appropriated by Congress to the Office of the President for, quote, such other purposes as the president may think appropriate. So does the president have a a little slush fund? Does Congress give them like petty cash?

Like, if you, you know, if you need to make some copies or something, you think this is frustrating because I can't tell from the wording if this is funds that already are there or if that's part of like what the president is proposing. But all right, I'll try to see if I can puzzle that out by the answers, answers maybe. So, is the creation of the commission by the president a constitutional exercise of authority? So, all right. This is tricky.

Let's go through the answers and see what we can figure out. Yes, because the president has plenary authority to provide for the health, safety, and welfare of the people of the United States. That doesn't seem right. Seems like it would authorize the president to do so much stuff. I think I'm a hard no on that one. That does not really make sense. Yes, because this action is within the scope of executive authority vested in the president by the Constitution and federal statute prohibits it. Okay.

Is interesting because A seems like, I just don't think that's right. But B is like, can't specifically remember what part of the Constitution might authorize this, but maybe there is a part. So I think I'm keeping B alive because there might be something I'm not not remembering that just gives the president authority to create agencies in ways that, or to create commissions. I don't know. No federal statute prohibits. It also could be another thing.

There is no rule that says a dog can't make a commission for presidential vaccination. I'm leaving Be alive. See, no, because the production of children against common diseases by vaccination is a traditional state function and therefore is reserved to the states by the 10th Amendment. That one is very interesting to me because on hand, yes, federalism, like there are things obviously that the government can't do that because the states, I don't remember if it's the 10th Amendment.

You know, this test could really screw with me by just naming the wrong amendment. And then I'm like, yeah, I'll assume that's the right one. I don't know know what any of them are by number, um, assuming the 10th Amendment is whatever that one is, it's like, hey, nothing here means states can't do something, I don't know, I can't remember what it is, anyway, assuming that's the right one, all he's doing is a publicity campaign, so he's doing a publicity, a campaign enough to be like, hey, man, stay in your lane, like states ought to to be able to do, that's the weird part to me because there is such a thing as the bully pulpit and, like, the president has the right to say whatever the hell he wants in his State of the Union, it's not like he can be like, hey, get vaccinated, and then, you know, he gets arrested by Congress police for doing something that he's not supposed to do, like, it, so is it, is the creation of this commission, to me this feels like just an extension of his, um, don't want to say like free speech, but like the of his office, kind of like his bully pulpit.

It kind of feels like that. Like he's just having, how much different is this from having spokespeople for your camp? Well, I guess it's the funding maybe. That's the difference. So if the activities are funded entirely, financed entirely from funds appropriated by Congress to the office of the president for such other purposes as the president may think appropriate. Think I have to assume those funds already exist. Otherwise. Cause that, that's not going to be what the question hinges on.

It would be weird if the answer was no, because Congress says no or something, like I have to assume those funds already exist, I think. I think that's, cause you, there's going to be a certain amount of funds in the same way the Supreme Court has a budget for crap that we forget about, like the building and coffee machines and whatever.

I assume, assume the president is also going to have a certain amount of funding just for operations of the White House and stuff like that, there may be some sort of slush -esque fund here. And if it's such other purposes as the president may think appropriate, I don't see why he couldn't do it. So I'm wondering if this is really not that big of a deal because all it's doing is a publicity campaign.

So, so can we think of it in terms of, it's just kind of him using the bully pulpit, but hiring people through this little fund to do what he wants to do. And by that logic, that's that kind of how I'm feeling about it. Cause they don't have any power, just doing. Okay. So no, because of protection. So I think, I think I'm going to say no on C because it, like, all he's doing is publicity. I don't really understand how that could be.

And then D, no, because Congress has not specifically authorized the creation and support of such a new federal agency. That a new agency? I know that, okay, when the president does stuff with the agencies, it's because Congress doesn't want to do anything anymore and never passes laws. And so it just tells the president to do stuff. It's like, hey, you do this. And then it's vested in the executive authority and here's the money for it. And it's, you complain about it because Congress doesn't do anything.

The president does it. The executive does everything. But like, I don't know if that wording is just trying to trick me, because like, if this was the president creating a new agency that had all these regulatory powers, then sure, it's just a publicity campaign. I think I'm, man, I'm a no on A and want to keep one of these no answers. So A was a yes answer. So A and B were yes answers. C and D were no answers.

I want to keep one of these no answers, but I'm not sure which, honestly, I'm not sure which one's better. I think D might be better. Just like if I'm wrong about that and the, this is like a new agency, then it is true that the, like, president needs authority to create agencies, but, also it's, I don't feel that strong about it. And C, I also don't feel that strong about it because all he's doing, again, is using publicity.

So it doesn't feel like it's infringing on states' rights to that. So I'm kind of meh on C and D. Honestly, I think I'm solidly going with B. If I were to pick a second best answer. Okay, so let's imagine I get this wrong. Tells me next week, hey, Thomas, you got this wrong, you idiot. What does she say? Why does she stay, what was the answer that she says?

She says, okay, fact that I don't like these no answers, I might almost just be between A and B, like maybe the president, no, no, that's not right. A is that's wrong. It has to be wrong. So I think my second best answer is going to actually be D. So, I'm between B and D, but I'm going with B. I think that this is not a deal. I think everyone should chill out about this new commission.

I think it's totally fine that the president is doing this. I think maybe Fox News is going nuts over it. But I that this is really just him. It's publicity, like whatever. This isn't regulating anything. This isn't telling doctors what to do or people what to do. It's just publicity. So I'm going to go B, final answer. And I guess D is my second favorite, though. I don't really feel great about it.

And so if you'd like to play along, I think I'm going to continue to say that Reddit is the best place for that. That subreddit is so cool with the scoring they have going and all that. And, and if you, if you submit your score, then like it'll automatically track it somehow. I don't know how computers work now. I do, but I don't know how that works.

And so if you want to play, I really think reddit .com slash r slash open args is the way to do that. There's a nice shiny new post every time there's one of these questions. And so that's a good place to play along. But of course, I will always also pick a patron winner on patreon.com/law. So if you're a patron, that's actually the best place to pay. I encourage you to do so.

Can't wait to pick a winner next week and see if I got it right or wrong. Right, Heather, well, I'm looking forward to finding out next week, so, um, until then, do

0:39:43 Heather: All right, well, we'll see you next week and see how You did. All

0:39:46 Thomas: Wait. She said "see" in a way that was... okay, does that mean answer C is right? No, I'm reading too much into Okay, I shouldn't do

0:39:57 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

0:40:06 Thomas: And now all we have left to do, of course, is to thank our patrons, the amazing patrons at patreon.com/law, who, in addition to avoiding commercials of any kind, also make the show happen and are amazing. Amazing. Start now with up on the new patrons. We're still in February, but we're getting to the latter part of February. I'm going about 30 at a time, you know, so we'll be done pretty soon. We'll be caught up, but again, that'll be boring. It'll be sad to only have a couple to shout out each week, that's okay. All right. In the meantime, let's catch up. Thank you so much to Adam Remesnik, Cass, John Lombardi, That's a lot of great things. I get all those references and I love it. Thank you so much.

0:41:05 Thomas: Theising, L. Mogul, Greg W. John, Russell Martin Jenkins, Pax Ongle, Some F 'ing Guy, Aleda Kraus, Charles Clayton, Jay, Eric Moblee, Jacob, Benjamin Danziger, Sam Ritter, Kelly, Quithan, and Craig Butler. Thank you so much for pledging at that crucial time in February. It really did matter so much. You're the reason I'm here today, as I keep saying. So finally, that leaves us with our top patrons, our Hall of Famers, our all -time greats on Patreon.com/law. These are the folks that pledge at the $5 level and above for at least a month. The very best. The best of the best of best, sir, with honors. We're on the third here we go. Thank you too.

I'm fast at guilty oh nice that was a fast guilty thank you I'm fast at guilty David Gould Thomas Freeman I love the goddamn cranberries and Matt and Tom at the same time and not in that order but the cranberries are not my favorite and then it cuts off I think probably banned but yes I love the cranberries as well excellent choice Cajunkilla fraud fishy hates everything Chris Simpson love the extra episodes protect Protect trans kids by throwing bricks at Texas politicians. Matt says this is legal advice.

0:42:22 Thomas: Liberal's own guns, too, support root cause mitigation, not ineffective gun control. Not a lawyer, but I play one in court. Physical Keyboard Guy from last month says, okay, you win. Swipe is the fastest, and I'm delighted that you call whatever your... I don't know. Sorry, cut off. I wish it allowed for more characters. Oh, well. Well, Stormy Decisus says, visit sharebandbooks.com. Definitely do that. Stormy is the best. That's a cool website that Stormy set up. Sharebandbooks dot com.

This isn't a Patreon name and I'm not reading anything right now. I just personally think Legal Eagle is so handsome. Mark Schultz, The Cincinnati Kid and Bob LaBas La podcast. Thank you so much, top patrons. Truly, you're the best I'm I'm having such a good time, especially with Heather giving us these cool breakdowns. In question, she's going to give us a little bit of a history breakdown, which I love. I always love getting the legal and procedural history and all that constitutional history, that kind of stuff. So that'll be a lot of fun. Thank you so much for listening. And finally I'm excited to talk to Matt again weirdly just because of the schedule stuff heard from Matt in what feels like way too long so happy to be with Matt for Rapid Response Friday in a couple days so we'll see you then thanks

0:43:38 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:43:55 Heather: It starting to sound a little familiar? Okay, good. Yeah, you said that when you attended.

0:43:57 Thomas: I'm remembering law school when I did. Yeah, exactly. My fake law school, which was answering a bunch of these questions.

0:44:07 Heather: Well, you're doing really well, because you were getting it right away. So I'm so glad to hear you say that you couldn't see my face like light up. And I was like doing jazz hands. Like, well, there's a first time for everything.

0:44:12 Thomas: I appreciate it. No one's ever done jazz hands for me. That's That's a first. Yeah.