OA Bar Prep With Heather! T3BE32

Transcript

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

0:00:46 Thomas: And welcome to Opening Arguments. This is T3BE32, and that means we're going to have the answer from question 31. That was a domain question. Have been a pretty tricky one. Wait to see what the answer was there. Then we'll get, of course, question 32. Can't think of any announcements really, except that Friday we'll be back to the regular rapid response with Matt schedule. On patreon.com/law, look out for that thread where you can suggest things that you want us to talk about or ask questions about those very same things patrons, look out for that. Well, I'm dying of suspense as to whether or not my improbable streak will continue to 5 or whether it will be killed at 4. Why don't we get on over to Heather for the answer to question 31 after this break.

0:01:33 Thomas: Heather, uh, week of T3BE, another question, and this one I am a little worried, did my streak carry on or not? So let's remind people what last week's question was, and then, uh, get to the answer. Yeah.

0:01:46 Heather: We had this landowner owning some, some rural land in place where pilots were having some vision problems as they're flying over. And so the county decided to install like an aviation light to fix that vision problem. The landowner was understandably unhappy when the county put a very big light pole on his land, and he asked the government to pay him. They said no. He sued. And we're trying to figure out whether or not the landowner is entitled to payment by the government. What we're looking at for today. So we're trying to figure out, too, whether or not what the topic is. And you, exactly, part of the reason why I think you had a little bit of trouble trying to determine what bucket this question fell into is because it's a little Bit of a crossover. It crosses right over between property and constitutional law.

0:02:27 Thomas: Yeah. Oh.

0:02:32 Heather: Think you felt that right away, right? Then you hit on exactly the sub issue, you hit right on eminent domain, this really hits right on the Fifth Amendment, which prohibits the government from taking private property for public use without paying the landowner first.

0:02:46 Thomas: There we go, okay, so It is more eminent domain rather than real property, are you saying it's still both?

0:02:47 Heather: Yeah. It's a constitutional law question, but for people who, yes, you

0:02:53 Thomas: I Think I got that One, because I did, I'll tell you, I Officially landed on constitutional law on there, but it does still have the real property hints, flavor, notes, notes of real property, especially

0:02:56 Heather: Did. Yes, if this was a wine, it would, it does.

0:03:06 Thomas: On The finish, yeah, it's Oaky, and that's real property, you know, yeah, exactly, terroir

0:03:12 Heather: Does. And apropos that's coming from someone who's from a wine country. So I really appreciate that. When we're looking at questions like these, I like to break this down. These are called the takings clause. Are they called takings questions?

0:03:12 Thomas: Yeah. Yep, okay.

0:03:29 Thomas: I almost said, I said take, I was like, is this a takings, and then Then I worried, like, wait, is that when the police take something? And I wasn't sure if that was like a different thing. So it is the takings clause, okay.

0:03:32 Heather: Yeah. It is. Yeah. And I like to break it down into three parts to make it a little bit more manageable. Knowledgeable, that I like to talk about it is to say that there's three parts: saying one's a taking for public use that requires just compensation. And all three parts have to be in alignment in order for the government's action to be constitutional, more or less. So we'll walk through each part. First part is a taking. It basically means that when the government physically appropriates or takes a person's property, that's a taking, it doesn't matter how small the portion is, and it doesn't matter whether or not the person uses or doesn't use that part of the property.

When we go through the answer choices, we'll take a peek to see whether and how that applies. Also got this portion that's about public use. The court really construes this part liberally as long as it meets the rational basis standard. And again, we'll talk about this in a little bit, but know that there's some standards of review that courts use when reviewing laws or government action to determine whether or not they're constitutional. The last part is that just compensation, meaning that when the government or uses someone's land, they have to pay them for it. They have to play fair market value at the time of the taking. Those are the rules that we use when we're looking at questions like this.

0:03:40 Thomas: Okay. Yeah.

0:04:48 Thomas: I'm worried, but we'll see. Yep.

0:04:51 Heather: That's okay. We're just going to take it one at a time. Let's start start with A. And if memory serves, this was your choice. Is that right?

0:04:57 Thomas: I chose A, no, because the light signal was installed on an unused portion, portion of the landowner's property, a worried about that, we'll see. I

0:05:05 Heather: See. So our rule says that in order for there to be a taking, the government has to physically use or take another person's property. So do we have that here? Has the government, or here that's the county, have they used or physically appropriated the land owner's property here.

0:05:19 Thomas: You'd probably have to say yes. Oh.

0:05:21 Heather: They installed this huge aviation light on a corner of his property, right? They were like, hey, we're having a problem. We're just going to, yeah, it's about 100 feet tall.

0:05:27 Thomas: Yeah. You know, my brain kind of went over that one pretty quickly. Yeah, it is pretty big, isn't it? Yeah. That's, that's very tall, okay, yep.

0:05:37 Heather: So what rule tells us here is that it doesn't really matter whether or not it's on a used or unused portion of the property. The law, kind of property law in the United States, it comes from, without getting too much detail, we take a lot of that from old England. And as anyone living in America knows, we love our property rights. When we buy a piece of property, it's ours. It's ours forever.

0:05:49 Thomas: Unless The police take it, then it's Fine, so That was the county's problem. They should have the police be like, that corner, your property's resisting, and then they take it, and then that's fine, yeah.

0:05:57 Heather: And then we're done. Here, he's on the unused portion. And it even says here on the corner that he did not use. And that's there specifically to kind of test the examinees or whoever's taking the question, to test whether or not you know whether that unused portion matters or doesn't matter. And here we know the rule tells us it's on your land. You own it. The government doesn't own it yet.

0:06:20 Thomas: If Ah. Yeah. Boy.

0:06:25 Heather: As a result, we know that since the government erected the structure on it, regardless of whether or not the landowner is using it, it's considered a physical taking. For that reason, A is unfortunately incorrect. Correct.

0:06:36 Thomas: Bad sign, was the first elimination, not, not looking good, but

0:06:40 Heather: We'll just take a peek at our answer choice B, which is no, because the county's action is rationally related to illegitimate government interest. And you brought up a really good point where you're talking about whether you get paid, and um, the language seeming like it's tied to the challenge. Um. And that's actually true. This is something, the burden is on the challenger, the person who's bringing the law to prove that the action or the law is arbitrary. So what we know here with standards of review is that, especially with rational is that it's a test of minimal scrutiny and laws are generally upheld under the standard of review. So whenever you see this, just presume that the government is going to win. So this is the floor and they're likely going to win here. Was exactly in the right place where it goes.

0:07:17 Thomas: I'm Thing I was thinking with B was like, it's not really the logic of it, didn't make sense, because it didn't seem like the, or not, he's compensated, didn't really seem to be whether or not it's rationally related to a government interest. Like, it, how I interpreted that, and tell me if I got it wrong. If it wasn't rationally relayed to a legitimate government interest, they wouldn't be, be able to even do it, right? It's not about whether or not he gets paid.

0:07:44 Heather: Well, they're I think of it this way, as each is a separate part, but all are required, meaning, and I hope this makes a little Bit of sense. And I hope that, see if I can get this. What this means is that that rational, this part, the rationally related, that gets to the public use. That's how the court determines whether or or not, the is taking something for public use. That's the test the court to determine whether or not there is public use by the government. Does that make any sense there?

0:08:08 Thomas: No, I got that. And it's pretty like that's a layup for the government usually.

0:08:08 Heather: Okay. Yeah. Is exactly it. And then when that happens, to answer a question about compensation, when there is a taking and when it is for public us, then the government has to pay. The third thing is that they have to pay if they don't, then they are in trouble and it is it's unconstitutional. If they do, the action is constitutional. Does that help? Yeah,

0:08:20 Thomas: Yeah.

0:08:29 Thomas: It does. I just don't know if that means that, so did I eliminate this improperly then or did I eliminate it for guess the confusion is they're saying we already took it and they're saying like, but you should pay me. Not like, it just struck me that this sounded like, hey, we're going to take this. And then you would fight it by saying whether or not it's related to a legitimate government interest is

0:08:50 Heather: It's exactly it. If I'm wrong, but I think part of the confusion here too is the first part, the no part, is what makes this wrong and the reasoning is right. And this happens with answer choices oftentimes where part of it is correct and the other part of is incorrect in here is that it is for public use. We do know that the county's placement of the light is there, um, been placed there

0:09:11 Thomas: That's right. I think that's the obvious point I'm not saying. I get the rational related thing, but if it is rationally related, that just means they get to do it. It doesn't mean they don't have to pay him. I yeah. Okay. So that, all right. I don't think I said that quite earlier. So maybe, yeah, now I understand. So it is a good elimination. And I I like mostly got that for the right reasons, but I'll have to go back and listen to how I do that. Okay,

0:09:11 Heather: Uh, That's Exactly It Yeah, Yes, No, Think you did Too, and you're right. B is eliminated. And like you said, for that reason, which is that you still have to pay, right? The payment's still required. Fired. Then that puts us in the C and the D category, right? Which you got to at one point, you were like, all right, so now I'm between the C in the D, right. Is it because the county installed a permanent structure or is it because The Action adversely affected the property interest?

0:09:34 Thomas: Okay, All Right. Mm- -hmm Well, Now it seems like it's C, so this was a whole, this was a failure, all right, no.

0:09:58 Heather: No, we don't have failure. We just have learning opportunities, right, I'm a teacher. That's what I say.

0:10:02 Thomas: Other Failures, I would like to start to correct you, minor error either made it's a failure, everybody, I don't want you spouting misinformation on my show, this was the failure, yeah, no, well, okay, look, I tried, tried, just take a stab, step in the dark, was I very close, either I was, I was like, I think it could just be a no-nonsense thing. Like if you do this, then you, but I was worried that there was a way they could install permanent structure that didn't result in having to pay. Like, I just thought there could be a possible way there. Like if there's something that, you know, like if it was just de minimis enough or something that it wouldn't really, you know, I thought, I was worried that C was too absolute about that, but it sounds like a possible, well, I'll let you go through it still. Maybe I, maybe I'm wrong.

0:10:42 Heather: No. And I think you did a really good job of highlighting. I think initially, you're highlighting that, that I think your initial instinct was that there's a a permanent structure, therefore they probably have to pay, right? If The government, yeah, I think your initial instinct was right. There, Just saying Yeah, So My like learning tip from this, my non-failure, is, um, that the learning tip, I think a lot of times is that when you're reasoning your way through these questions, consider that maybe your first instinct is right, because that's exactly right, right, our world of America, uh, property is really important, this property interests really come first, and we like to the laws protect A lot of that, right?

And so your instinct that if the government comes on and just says, hey, we're just going to dump this thing on your land, you and just have to take it, law the is going to protect that to say, sure, except that you've got to pay me, we're right, entitled to that phrase, just compensation, you've gotta pay, you gotta pay up. Part of how that we get to see, is right that it's telling us what this is saying, because the county installed a permanent structure, that's the part where it's tells us that it is a taking. That's

0:10:51 Thomas: Yeah, think it was. Yeah. I think that was my initial instinct. Yeah.

0:11:13 Thomas: Yeah.

0:11:38 Heather: Saying, ah, they've come in, they put this permanent structure, they physically permanently occupied the landowner's property, regardless of whether or not he uses that portion. So that's how OC ends up being a right answer.

0:11:48 Thomas: I think that makes I think the important lesson is always trust your first instinct unless that's wrong and then don't trust it, is a redundant way of just saying no, the right answer. But no, I hear you.

0:11:55 Heather: Exactly.

0:12:11 Thomas: I tiny I like pylon on your property to, I was trying to think like, could there be something that's so small that's still a permanent structure that they don't have to pay you for? And maybe that would make that answer too broad, but sounds like, nope, this is one of those times where it's just that broad. If they put a permanent infrastructure on your property, they got to pay for it. So I should have trusted that. You're right.

0:12:32 Heather: I also liked your observation, and I hadn't really heard this, but your observation about how sometimes the bar will kind of write answer choices that are a little bit boring. And they almost sound too good. They're the right answer. And that's also a really great observation. And definitely something that happens all the the time and definitely happened here. Yeah.

0:12:39 Thomas: Yeah. Yeah. And for sure, I would like the record to state that I did not fall for that. That's not why I eliminated C. I eliminated for a different wrong reason. But no, I found that. I've absolutely found that to be true. That's funny that... brought So, that up with you before. That not something that you have to be true? Or maybe it's just because I'm taking it from a very different standpoint than you would have taken the bar. I don't know.

0:13:07 Heather: I Think that's the observation is because it's out outside. Do you know, I mean, because of your outside perspective. It's really helpful to hear that that's exactly because the way that I approach it is a little, I see it as something a little bit different. Yeah. And but that's. Listen.

0:13:11 Thomas: Yeah. Yeah, yeah, yeah. Really interesting.

0:13:19 Heather: That is definitely definitely true.

0:13:19 Thomas: Thing. I definitely think the bar does this intentionally. I think the test makers want it to because like whenever you do any multiple choice test, there's always like, oh, there is the one answer that's so dumb you can easily get rid of it usually. Think that that often is it just a dumb sounding like, no, because he's a landowner or something, you know, and it's like I think the bar likes to do this tricky thing of making the right answer sound like it might be that really really dumb one just to, just to keep you on your toes so that people like me can't waltz in here and just pass your bar exam without going to law school, except jokes on them. I, maybe I will be able to someday. No, I won't. They don't let you. Can't take it without doing

0:13:21 Heather: Yeah. I Know. Yep.

0:14:00 Thomas: Some stupid, like, some apprenticeship you with a judge or whatever, or go to law School. And both those are too long. So I I can't do them, both of those take too much time, yeah,

0:14:08 Heather: This doesn't They don't sound like tons of fun to you. Oh.

0:14:12 Thomas: Well, all failure, didn't get the first choice, didn't even get the second choice, a rare total miss for me, excited to find out who got the right answer and give them a shout out, so I will do that after this. Folks, it is bittersweet here picking a winner, but more sweet than bitter. The bitter part is I got it wrong. I always hate when I get it wrong, that sucks. I'm not a fan of getting things wrong, just in general.

On the other hand, we had so much participation, it's getting more and more fun. I love seeing all the answers to the questions that you guys give. So on Reddit and Patreon, we had a ton of participation. And here's the thing, I ton of people chose D, vast majority of people choose D. Let's start first on reddit.com/r/open args. So many D answers. There were actually a lot of C answers as well.

I think I'm going to go with user Giglia, G-I-G-L-I-A, who said, answer C. This is a takings clause question. Takings require compensation. It does not matter that the area taken was not put to use by the landowner. The Supreme Court has held that but even the government installing a small cable box on an unused portion of someone's building is a taking that requires just compensation.

D is too broad because government action often adversely affects property interests without rising to the level of the taking. Giglia, well done, you're the winner of Reddit. It. I did want to take this opportunity to talk about kind of the logic there, because I'm interested in this. This is, again, because I don't have this education, I'm not a lawyer, I didn't go to law school, have to rely a lot on like just pure logical inferences and stuff.

I kind of disagree with your take on D, but I don't know if I' m wrong. So I'm curious if anyone has an opinion. So if you remember, I was kind of between C and D. The, the correct answer again was C, yes, because the county installed a permanent structure, just no nonsense on the landowner's property. No nonsense. D, yes because the County's action adversely affected the landowners' property interests. So here's my question.

Your logic on D, on eliminating D, is, well, the government can do lots of things that will adversely affect the landowner's property interest, and it doesn't have to compensate for those things. For example, maybe the government builds diverts interstate, an and that reduces the value of like a gas station that was on the old road or whatever. That wouldn't be a taking.

Now, logically, thinking was, well, not having access to the information, not being a lawyer, my thing was, okay, often the Supreme Court, you as even point out in your answer, when you said the Supreme Court has held that even the government installing a small cable box on an unused portion of someone's building is a taking that requires just compensation. Now imagine that ruling had gone a different way.

I have no idea how close that was or like what the decision was, if it was 5-4, if it was 9-0. I don't know. Let's say that Supreme Court case went a different way and it said, small cable box, really? That's not enough.

So imagine that the Supreme Court had formed a two-factor test at that point, or it's got to be some sort of permanent structure on the property, but also, it also has to have had a material effect of some kind adversely on the landowner's property interests. Let's just imagine, hypothetically, that doesn't seem impossible to me. It doesn't seem too insane that that could have been the way the Supreme Court went.

In that case, the answer D, yes, because the county's action adversely affected the land owner's property. I think logically speaking, that could still be the right answer because if it's a two -factor test and there's no argument about one of the factors, so we're all in agreement about factor one, which is, is there some sort of permanent structure being built on the property?

But say it's, it's factor two is the one that it kind of hinges on because factor you two in this case is like less clear, like factor one no one's arguing about, factor two totally clear, if that's the case I feel like the wording of D, yes because, you know, essentially factor two still works without saying, well, that would mean that any time just factor two happens without factor one, then the government would be required to pay. Does that make sense?

So like, I mean, I'm, I don't know, I'm not super sure about this, but that's how I think of it. Logically speaking, like if it's a two factor test and one of the factors is not in dispute. And so the answer is like, yes, because essentially factor two, I do not believe that means that every time factor one isn't present, but factor two is, that that would mean government would have to compensate someone. That's why I didn't logically eliminate D just based on that.

Think that was a little abstract. Can, I'm let, going to try one more pass just in case that was like too abstract, I don't know. If the reason you're eliminating D is D is too broad because government action often adversely affects property interest without rising to the level of a taking, and I would say, yeah, sure, sure, those instance, maybe they weren' t putting a permanent structure or on the property. So again, the idea would be, it's just hinging on that one of two factors.

Now, I want to note that this is all wrong because in actuality, of course, the answer was C. It doesn't hinge on adversely affecting the property, it just doesn't. I, anyway, I do have a doubt now because does the wording of yes, because the county's action adversely affected, does that imply that has to be the entire cause? Does that apply that that's one of the conditions that we weren't sure whether or not was satisfied and because it's satisfied, then the answer is yes.

That brings me to the patron winner of patreon.com/law, whose name, patron name, is Thomas. If you need a break, I'll never be mad at being charged for empty episodes, everyone deserves paid time off, which I think probably applies more to like where there's woke or something, but I very much appreciate it.

Don't worry, I'm not doing that, on, no way, everybody, but this person very astutely points out, I'm going with C because it seems fair to compensate the owner, so I want a yes answer, and and I don't think it's D because the fact pattern doesn't say anything about the landowner being adversely affected, unless there's a law thingy that says assume adverse effect, in which case I'm screwed. And you know what? That is a good point that I didn't think of.

I was just assuming, well, yeah, you're going to find that in foot tall aviation light is going to adversely affect the property. I was just assuming that, but the fact that that's not anywhere in the question, and there isn't even any dispute about that presented in the fact pattern of the question, should have been a tell to me that like, ah, that's not what it's going to turn on really. I Either way, you're our big winner on patreon.com/law. And thank you so much.

So many people played, and so, so many people that I feel as bad about getting this wrong. So I really appreciate y'all. Right, well, let's get to question 32 right after this.

0:20:33 Thomas: Show is brought to you by Rocket Money. Rocket Money is a personal finance app that finds and cancels your unwanted subscriptions, monitors your spending, and helps lower your bills so that you can grow your savings. Hey, here's the thing about me, I, uh, sign up for subscriptions all the time and forget about them all the time, and that's not good. And Rocket Money practically might as well be made for me. They must have studied me and been like, "Gosh, that guy needs an app for because, wow." When I got Rocket Money, it showed me all of my subscriptions in one place. And that's across multiple bank accounts, multiple cards, because there's no way I put them all on one card. Oh, that's silly. Do you hear yourself? Rocket Money handles that completely fine. It's not just me. Rocket Money has over 5 million users and has saved a total of 500 million in canceled subscriptions, saving members up to $740 a year when using all the app's features. So stop wasting money on things you don't use. Cancel your unwanted subscriptions by going to rocketmoney.com/opening. That's rocketmoney.com/opening. One more time, rocketmoney.com/opening.

0:21:46 Thomas: Right, Heather, I ended my streak, but, uh, to start a new one, um, see which kind of streak that is. But, uh, here we go. Let's, uh, what's question 32.

0:21:54 Heather: Senate Committee conducted an investigation into an alleged corruption in the Department of Transportation. After thorough investigation, the committee concluded that three DOT agents had significant illegal interactions with organized crime members over the course of four years. Soon after, Congress, on the advice of the Senate Committee, passed a statute that removed the agents from the DOT and barred them from any other federal employment. Three agents, whose employment permitted removal with or without cause, were named in the statute. The agent subsequently challenged the statute on the basis that it was unconstitutional.

0:22:54 Thomas: Brutal. Not relying on vocabulary. Damn. Okay. This is a, I love this one. This ist interesting. The Senate investigates corruption in Department of Transportation. That strikes me as a federal agency that is one of those things that probably exists due to some sort of congressional authority from way back when, but is then operated under the, by the executive branch, essentially. Interesting. A thorough investigation, the committee concluded, okay, so basically they're corrupt.

Then Congress passes a statute though, a statute that removes agents from the DOT and barred them from any other federal employment, specifically, huh? Yeah. The three agents whose employment permitted removal with or without cause were named in the statute. Right away that triggers there, there is the thing that's like, I do remember this from way back when, the Constitution is like, "Hey, you can't pass a law." That's like, um, Thomas Smith specifically. Like I think that's one of the things they can't do now.

What is that called? Is that called an ex post facto law? Or is that call the bill of attainder? I have to remember, or neither, I don't know. Um, this is, this strikes me as it's a little interesting because I, it is like Congress does have the the authority over DOT ultimately, I would think. Um, yeah, oh man, I hope I can get the right one. The agents subsequently challenge the statute, so they're saying it's unconstitutional, so right away constitutional law is probably what we're doing.

Will the agents' challenge the statute be successful? Okay, there isn't a secret answer. E, yes, it will be successful because the Supreme Court decided corruption doesn't exist, but we'll ignore that. No, because the agents could be removed with or without cause.

Okay, so does the fact that they could be, an interesting one, my, my instinct is that that shouldn't, a difference, like the rule is like you can't pass a law that's like, "Screw this guy." I don't think the fact, well, but that guy has an employment clause that says you can screw that guy. I don't think that would fix the fact that that kind of law is unconstitutional. I mean, how is this different from, I, Congress could dissolve the Department of Transportation if it wanted to.

I feel like it has ultimately, – it has ultimate authority over it in terms of the mandate to the executive branch. I think if not, like the DOT is in the Constitution, it's just like a thing that was created by some sort of authorization through Congress. It is weird that they could do that. But on the other hand, that makes sense. I mean, it is a different thing to like target an individual versus, well, we're downsizing and this whole department is gone.

Like, I guess that could, – yeah. Yeah. So, I think, I don't like A for now. I'm not like 100%, but I don't really like it. Okay. B, no, because the statute does not subject the agents to criminal or penal measures. Now, that is interesting because I am worried that, like, oh, does that mean criminal stuff? So, I do remember vaguely this rule that you can't just say, pass a law that's like, "This guy sucks," or whatever.

Was the rule like, you can't just pass a a law that's like, "This guy's guilty of a crime," or something? Would also say that not being able to be hired by any other federal agency or any federal employment, that does seem like a penal measure. Seems like a penalty to me. So yes, it's not criminal, but hard to say that it's, that's a penalty of some kind, unless penal measure has some very specific meaning, like that has to involve, like, some sort of criminal law context.

So I also don't really like B. Yes, because the statute constitutes an ex post facto law. Now, I thought ex post facto meant somebody does something and then you pass a law that says that thing is illegal and then you arrest them. And it's like, well, that's ex post fact. That's after the fact. I'm pretty certain that's what that means.

And so I think that's, this unless you somehow make the argument that, like, oh, the corruption they were doing wasn't previously illegal, I don't think you can do that because the fact pattern says DOT agents had had significant illegal interactions. So that's already illegal. Don't think this is an ex post facto law. I think that's just a distraction.

That's a, that's meant for a me who couldn't remember what the term was, but I can't remember exactly the term if it's bill of attainder, but I'm pretty sure it's not ex post facto. So I, I I'm, am pretty certain that that means making something illegal after the fact and then, you, someone in trouble for it.

0:27:12 Thomas: And C. Then finally, D, yes, because the statute constitutes a bill of attainder. Now, that word certainly doesn't sound like the thing we're talking about. Of attainder. That what that's called when you pass a law that specifically targets a person? Think it is. There's also these other complications. I think of that, seems much more to be like private citizens, like, oh, we're passing a law that says this person can't own property or can't run for something.

That seems like a law targeting a person, the term for which might be bill of attainder. I don't know about like, Like, oh, these are actually federal employees, you know? So like, so they do have ultimate authority, but I think what they would have needed to do is pass a bill that just targets the activity and not the people. Says they're named in the statute.

I'm going to just have to assume that means more than like incidentally, like more than just like, oh, you know, for example, these people would qualify under this provision. You know, like that might be different than like the following people cannot work here. Think what they would have had to do is pass a bill that says anyone of like this kind of corruption, whatever it may be, is not allowed to be employed by a federal agency or something.

And then done it in a non -targeted way like that. I think that's what they were supposed to do. I think my answer is D, but I'm going to try to pick the, I like between A or B. It's going to be tough. I'm pretty sure it's not C. I think I'm like pretty solid on that. But D, yes, because the statute constitutes a bill of attainder.

I think that is the term for this, even though it, bill of attainer, I don't know why that sounds more like passing a bill that says we get all of Thomas Smith's stuff. Stuff that sounds like you're, but that's like obtained, so I don't know. Attainder is just a weird word. I don't know what that is, actually. Um think that is the term, so I think D is the answer. I think you can't pass a statute that says screw these individuals in particular.

I'm wrong so if I were wrong, how would I be wrong? Well, A, does the fact that the agents could be removed without cause, so I I don't think it's A, because presumably that's saying like, yeah yeah, your boss could remove you without cause or something. Like, if I had a job, forget that it's the federal government for a moment. If I had any job that's at will employment, that I could be removed with or without cause, and the government's like, you're fired, that's still inappropriate.

It's like, well, yeah, but you can't do it. It's not like anyone gets to fire me without cause, it should just be the people in charge of that. Now, is it complicated? Because ultimately I do think Congress is, you know, the authority for why DOT even exists. Does that complicate it? God, I hope not. No, because statute does not subject the agents to criminal or penal measures.

I I think if I were to choose a second chance answer, I think it would be B, just because maybe that was about crime, and this isn't really, like, it isn't really a crime. Like, yeah, it's a penalty, to I consider it a penalty in the loose sense to not be able to be employed federally.

But if I'm wrong, I could see it being that maybe that's not like a criminal thing, and bill of attainder thing about criminal law and like targeting people and putting them in jail or something, like imprisoning them by by saying, hey, this is the bill we passed, you're in jail, you're you're something like that. So my final answer is d D. Second chance answer is B. And let's hope I can turn this thing around. Let If you'd like to play along, you know what to do.

Make sure to go to, if you're a patron, patreon.com/law and put the answer in a comment on this very enclosure. And if you're not a patron, or if you are a patron and you also want to answer on Reddit, make sure to do that at reddit .com slash r slash open args. You Find the post for this T3BE, comment with your answer, and make sure you use the spoilers tag.

I don't really know how that works, but it tells you how to do it so that your answer is like blurred out until somebody clicks on it. It's kind of cool. And I think that little Reddit robot will track your score, which is also cool, which Which is why I encourage, if you're a patron, you can do both if you want. And I'll select a winner from each of those things next week. So thanks so much, Heather. Forward to finding out the answer and our big winners on next week's show.

0:31:16 Thomas: Show is brought to you by Factor. Director, here's another one that I was a customer of before they became a sponsor. I am always looking for ways to spend less time and money thinking about meals to eat, because here's the thing about meals and days, is they just keep coming one right after the other. You figure out what you're gonna have for dinner one night and you think, I should be good for about a year, that's next day, you gotta do it again.

It's crazy, I don't know who has time for that, I certainly don't. I'm always looking for a way to shortcut that, but that is still good food, quality stuff. Not that's where Factor's no prep, no mess meals really check those boxes for me. First off, you can get chef chef-crafted meals with all kinds of options like CalorieSmart, Protein Plus, or Keto. Their fresh, never frozen meals are dietitian approved and ready to eat in just two minutes. That is absolutely true.

It's crazy, I check the box and every time I'm like, two minutes can't just be, there's no way, must take longer than that. I do, two minutes, done. Done. No matter how busy you are, you'll always have time to enjoy nutritious, great tasting meals. Got 35 different meals and more than 60 add -ons to to choose form from every week, you'll always have new flavors to explore. Treat yourself to restaurant -quality meals that, ingredients like filet mignon, shrimp, and blackened salmon. Go to factormeals.com/opening50 and use code OPENING50 to

0:32:32 Thomas: 50% off your next month. That's code OPENING50 at factormeals.com/opening50 to get 50% off your next box plus 50% off your next month while your subscription is active. One more time, factormeals.com/opening50.

0:32:50 Thomas: Show is brought to you by Bespoke Post. Your summer just got a heck of a lot more awesome thanks to Bespoke Post. You want to drink and eat more awesome, dress and travel more awesome, or explore more awesome, Box of Awesome has you covered. Get started, take the quiz at boxofawesome.com. Will help them pick the right box of awesome for for you. Free to join, and they release new items every month across a ton of different categories.

When you become a member, you'll have access to stellar discounts across a ton of products, as much as 30% off or more. Sometimes the spoke Post makes a great gift gift as well, if you're not quite sure what to get somebody. You go to boxofawesome.com, take, definitely going to see something pretty cool. Doesn't love getting things in the mail? I absolutely love it, and hey, my kids also love it.

Example, I I got, had some really cool gadgets and a really well -made bag, it's quality stuff. Plus, with each box of awesome, you're supporting small businesses, 90% of everything that comes in your Box of Awesome is from a small up -and -coming brand. And, three, to sign, sign up, and you can skip a month or cancel any time. So get a free mystery gift with your first monthly shipment when you sign up at boxofawesome.com and enter code OPENING at checkout. That's boxofawesome.com. code OPENING for a free mystery gift with shipment. boxofawesome.com. Code OPENING.

0:34:18 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

0:34:27 Thomas: Now it's time to thank our patrons, starting with the new patrons at patreon.com/law. And we are catching all the way up today. We're getting into, let'S see, May. Ooh, so we're closing in after that initial rush in February. So thank you to Conrad Most, Patrick Gormley, William Moran, Merwin, William Porter. Hello, Dr. Nick. Hello, Dr. Nick. Teresa Wright. Dillian McPickleson. Doubt that's a real name, but if it is, that's really cool. Do they call you Dill for short? Dill MacPickleston. Mark Thomason. Democratize the law. Phoebe needs coffee. Well, not my Phoebe. She doesn't need that yet. James Hayes. Save the post office from DeJoy. Danielle Riley. And we got a cake -no -crat in the mix. Jordan Stolen Valor you are now a cake -no -crat. Hmm. That's a reference reference for another show? Either way, thank you for pledging. Arnold. Bovril. D'Souza. Phil. Rebecca Bickfacy.

0:35:25 Thomas: Raskino. I'll add something witty when the amount of caffeine in my system reaches critical mass. William Jeffrey. Liz Cole.

0:35:37 Thomas: Thank you so much, folks, for being new patrons. If that was a couple of months ago, we're rapidly catching up to present day. Now, of course, it's time to thank our Hall of Famers, our all -time greats on Patreon.com. These are the amazing folks, the saints who pledge at the level and above for at least a month. Folks are amazing. And I am going to read off and thank the second quartile. Thank you too. Justice is a dish best served with cold hamburgers.

It's good to be back, Mr. Smith. You. Nick Fish. Love Nick Fish, of American Atheists, of course. Negative phenomenon. On. Corrals are a litmus test, I agree. I have to put my shopping cart back or I'll die. So yeah, don't I know what that is. But I, I hope I pass your test. Got to fight for your right to ex parte.

Jason, that judge in Georgia did not fight for his right to ex parte, and that's why he's now not the judge in that case anymore. Jsync, E.T., Terry Cannon, no relation. Thomas, if you need a break, I'll never be mad at being charged for empty episodes. Everyone deserves PTO. Oh, hey, you are the T3B winner and get your shout out in the same show. That is like that DVD menu hitting that corner perfectly. Oh, a Chicago live show.

You bring the law and I'll bring the baptized Italian beefs. I will maybe bring the Law Show if someone can bring a vegetarian version of that, like a fake meat or something, or I'll just eat something else. That's fine. Either way. Oh, great. Now I have to go back to changing my name every month. I'm fasted guilty.

0:37:07 Thomas: Thomas Freeman, Cajunkilla and Fraud Fishy Hates Everything. Love that one. That one always sticks in my head. Some of your patron names, actually a lot of them always just stick in my head forever. And that's why I'm so happy to be back doing this. It's so much fun. Yeah. Fraud fishy hates Everything. I don't know why that just like sticks in a weird earworm. Thank you you so much. Top patrons, hall of famers, all time greats at patreon.com/law. You are the best. Right. That's the show. Thanks so much for listening and definitely thanks so much for playing along folks. I love the participation. A lot of fun. Tell your friends and we'll see you for rapid response Friday.

0:37:41 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.

0:37:58 Thomas: That corner your property's resisting and