Month: March 2019

Today's breaking news episode contains a long interview with everyone's favorite former prosecutor, Randall Eliason, who helps answer some nagging questions about what we do know about the Mueller Report (alongside all the things we don't).

We begin, however, with a brief Andrew Was Right (about the Barr Summary and the news cycle!) and Wrong (about the specifics of the Assange indictment).

Then, it's time for our main segment with Professor Eliason; you won't want to miss it!

And if all that isn't enough for you, well, we end, as always, with a brand new Thomas Takes the Bar Exam Question #120 involving touching a very sensitive woman on the bus.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

AppearancesAndrew was recently a guest on Episode 19 of the Glass Box podcast discussing Utah referendums, and Episode 188 of God Awful Movies (reviewing "Dead Man Rising").  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

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On March 19, 2019, the Supreme Court decided Washington State Department of Licensing v. Cougar Den, Inc., a case involving the 1855 Treaty between the United States and the Yakama Nation of Indians, and whether the “right to travel” granted within the treaty preempts the state’s fuel tax on the importation of fuel.
Cougar Den, Inc. is a wholesale fuel importer that is owned by a member of the Yakama Nation. Cougar Den imports fuel from Oregon via Washington public highways to the Yakama Reservation where it is sold to Yakama-owned gas stations within the reservation. In 2013, the Washington State Department of Licensing, because Cougar Den imports the gas by using Washington public highways, assessed the importer $3.6 million in taxes, penalties, and licensing fees. Cougar Den appealed to the Washington Superior Court, claiming that the 1855 Treaty between the United States and the Yakama Nation preempts this tax, since it reserves, among other things, the “right, in common with citizens of the United States, to travel upon all public highways.” The Washington Superior Court held that the tax was preempted by the Treaty, and the Washington Supreme Court affirmed that judgment on appeal.
Washington then petitioned the U.S. Supreme Court for certiorari, arguing that the 1855 treaty does not forbid the State from imposing a state-wide tax on all fuel importers who transport fuel via ground transportation, including those members of the Yakama Nation. The Supreme Court granted certiorari to consider whether the 1855 treaty preempts this importation tax on members of the Yakama Nation.
By a vote of 5-4, the Supreme Court affirmed the judgment of the Supreme Court of Washington, but without a majority opinion. Justice Breyer, joined by Justices Sotomayor and Kagan, concluded for a plurality that “the ‘right to travel’ provision of the 1855 Treaty between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation.” Justices Gorsuch and Ginsburg filed an opinion concurring in the judgment--thereby providing the necessary additional votes to affirm the lower court--but on a different rationale. Unchallenged factual findings as to the Yakamas’ understanding of the 1855 treaty terms, they reasoned, indicate that the treaty “does not permit encumbrances on the ability of tribal members to bring their goods to and from market.” Chief Justice Roberts dissented, joined by Justices Thomas, Alito, and Kavanaugh. Justice Kavanaugh also filed a dissenting opinion, which was joined by Justice Thomas.
To discuss the case, we have Tom Gede, Principal at Morgan Lewis.