Opening Arguments - OA293: My Deference & Auer Deference (Kisor v. Wilkie)

Today's episode revisits a narrow area of administrative law we last discussed in Episode 266, namely, Auer deference. Andrew made a bold prediction in that episode, and find out where he was wrong -- and where he was right now that the Supreme Court has ruled in Kisor v. Wilkie. We also discuss the recent unsealing of court records thanks to a CNN reporter and we witness the return of listener favorite segment "Are You A Cop?" with a fabulous question about drinking and driving. Buckle up!

We begin, however, with a look at a recent request made by CNN's Katelyn Polantz regarding certain court proceedings and records relating to the Mueller Investigation. Does this mean that "BILL BARR KILLED 7 OPEN INVESTIGATIONS?" (No.) But it is significant, and you won't want to miss why.

Then, it's time for a deep-dive explainer that starts with a reminder on the principles of agency deference. Don't remember the exact difference between Chevron deference and Auer deference? We've got you covered -- including, in particular, how the latter came under attack in Kisor v. Wilkie, a case involving a retired servicemember challenging the internal agency regulations governing disability pay. Should the courts defer to an agency's interpretation of its own rules, or should it be wildly activist and defer to Neil Gorsuch's interpretation of those rules? Kisor gives us a slightly different answer than you might expect, all while angling us towards the day soon to come in which the Supreme Court greatly expands the power of the judicial branch.

After that, it's time for Are You A Cop? featuring some truly terrible advice for how to beat a DUI arrest. (Please do not do this.) We talk about standards of evidence while debunking the notion that you should... drink more when you're pulled over? (It's a weird question.)

As if that wasn't enough, we end with the answer to Thomas Takes The Bar Exam #132 about an escaped, de-fanged, venomous snake. Who's responsible? Listen and find out!

Appearances

Andrew will be a guest at the Mueller She Wrote live show in Philadelphia, PA on July 17, 2019; click that link to buy tickets, and come up and say hi! And remember: if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. This is the Raw Story article we criticize during the "A" segment, and to verify what we've said is correct, you can read (a) Polantz's request; (b) the Court's order; (c) Exhibit A (Search Warrants); (d) Exhibit B (Wiretapping); and (e) Exhibit C (Pen Register/Trap & Trace). Phew!
  2. We previewed Kisor v. Wilkie (read decision) in Episode 266. And, in breaking down Justice Roberts's holding in Kisor, we also expose shoddy journalism like this Daily Beast article.

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-And finally, remember that you can email us at openarguments@gmail.com!

The Nod - Conscious Rap: The Birth and the Backlash

The turbulence and violence of the late 1980s pushed hip-hop away from its party music roots, giving birth to a new subgenre: conscious rap. Groups like and Public Enemy and artists like KRS-One became stars, creating music that emphasized pro-Black political messaging. But just as conscious rap was reaching its height, one song threatened to bring the whole movement crashing down.

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The Gist - Groaning Through Dad Jokes

On The Gist, the South Bend shooting and Pete Buttigieg.

In the interview, Jason Zinoman recently wrote about dad jokes for the New York Times so he’s here to talk with Mike about his grand theories, why we love to hate dad jokes, and if they really are as low-brow as people consider them to be. 

In the Spiel, the choice the Democrats face.

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The Intelligence from The Economist - Armoured Khartoum: Sudan’s bloody transition

Protesters returned to the streets of Khartoum this weekend, again with deadly consequences. We look back to last month’s violent crackdown, and consider Sudan’s troubled push for democracy. China’s swine-flu outbreaks threaten hundreds of millions of pigs—but might spark long-overdue reforms in the country’s pork industry. And, we examine San Francisco’s e-cigarette ban: if vaping is safer than smoking, should it be stubbed out?

The Best One Yet - Budweiser acquires Babe / White Girl Rosé, The RealReal surges 45% on its IPO, and Velodyne is the startup making self-driving possible

With beer sales falling, Budweiser’s parent company AB InBev acquires the maker of Babe canned rosé and White Girl Rosé as its summer makeover. The RealReal is leading the re-commerce industry by pulling an Airbnb on thrift stores — and it just surged 45% on its IPO. And Velodyne is our “Pre-IPO of the Day,” using an anti-Tesla technology to make self-driving happen for a bunch of key carmakers (and tech giants). Learn more about your ad choices. Visit podcastchoices.com/adchoices See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Start the Week - Epic quests and Greek myths

The playwright David Hare is adapting Ibsen’s Peer Gynt, an epic story of vanity and egotism. He tells Tom Sutcliffe his radical new working keeps the mountain of trolls but becomes a contemporary reflection of toxic masculinity in the age of the selfie.

The writer Lucy Hughes-Hallett reincarnates ancient myths and folklore in her collection of short stories, Fabulous. Old tales from Orpheus to Mary Magdalen and Psyche, find new homes in the lives of a people-trafficking gangmaster and a well-behaved librarian.

The great story-teller Stephen Fry breathes fresh life into the Greek myths as he prepares to embark on his first UK tour for forty years. From the creation of the Cosmos and the feuding of the Gods, to the extraordinary battles and epic journeys of the heroes, these tales still echo for audiences today.

Alison Balsom is a world-renowned trumpeter who moves seamlessly through different periods of music in her curation of this year’s Cheltenham Music Festival. She explains her deep passion for the world of baroque music and the excitement of playing a new piece for the very first time, as she prepares for the premiere of Thea Musgrave’s Trumpet Concerto.

Producer: Katy Hickman

Strict Scrutiny - Sipping My Tea

In the inaugural episode of Strict Scrutiny, Leah, Melissa, Jaime, and Kate recap two of this term's biggest opinions--partisan gerrymandering and the census. They also walk through a theme of this term (stare decisis) before talking about the podcast's role in Supreme Court legal culture. It's Strict Scrutiny's test pancake, so enjoy the show!

Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 

  • 6/12 – NYC
  • 10/4 – Chicago

Learn more: http://crooked.com/events

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