Category: 3-LawSometimeCommentary

Today's episode is a timely impeachment-themed deep dive into the testimony of George Washington University law professor -- and legitimate legal scholar -- Jonathan Turley before the House Judiciary Committee. How should you evaluate his arguments? We walk you through them, of course!

We begin, however, with a new segment: the Wingnut Lightning Round(TM), in which we evaluate -- or rather, make fun of -- two preposterous new lawsuits filed this week by two complete idiots.

After that, it's time for an #AndrewWasWrong about Ronald Burris, the interim Senator nominated by Rod Blagojevich to fill Barack Obama's unexpired Senate seat. Find out the twists and turns to this rather fascinating story as a side bonus to Andrew's well-deserved comeuppance.

Then, it's time for the main segment: the news that the House is going to draft articles of impeachment against President Trump despite the testimony of Jonathan Turley. How do the lone Republican-called witness's arguments stack up? (Hint: they're not good.) Surely the Republicans wouldn't have called someone who's on the record saying the exact opposite of what he's presently saying 20 years ago, right? (Guess.)

After all that, it's time for a fiendishly hard #T3BE about a trial, a videotape, and a jogging plaintiff. You won't want to miss it -- and you'll want to play along!

Appearances

Thomas was just the main guest on Episode 498 of the Cognitive Dissonance podcast, and Thomas and Andrew make additional appearances to roast and be roasted for Vulgarity for Charity. If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. Oh man, you just have to read batshit-crazy Rep. Devin Nunes's eleventy million trillion dollar lawsuit against CNN.
2. For more of the Roland Burris story, check out Wikipedia.
3. Click here to read Turley's testimony for yourself.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

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

Today's episode takes a deep dive into the nondelegation doctrine in light of a recent Kavanuagh comment on a case... in which the Supreme Court didn't even grant certiorari. Is Andrew panicking? (No.) Listen and find out why not!

We begin, however, with a brief Andrew Was Wrong on taxation that calls back to OA 336. How exactly is stock income taxed? Listen and find out!

Then, it's time for the main segment, which is a deep dive into the "administrative state" and specificially the "nondelegation doctrine" at issue in U.S. v. Gundy. Why did this last week signal the beginning of the end for Andrew & Thomas? Listen and find out!

After all that, it's time for a listener question/comment on LIHEAP that helps contextualize how this program works in low-income communities. You won't wan't to miss it!

Then, of course, it's time for #T3BE -- the answer to Thomas Takes the Bar Exam #155 about a tenant who takes possession of an apartment only to find the previous tenant still inside. How can.. the landlord win? Listen and find out!

Appearances

Thomas was just the main guest on Episode 498 of the Cognitive Dissonance podcast, and Thomas and Andrew make additional appearances to roast and be roasted for Vulgarity for Charity. If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. For an update on Chevron deference, check out our Episodes 40 and 136.
2. In terms of Auer deference, check out our explainers in Episode 266 and 293.
3. To get up to speed on the nondelegation doctrine, read Gundy v. U.S., 139 S.Ct. 2116 (2019).

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

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

Leah and Kate discuss a case that isn’t even a real case involving a real law, as well as the very real and very important Affordable Care Act case on the Court’s December calendar. They also recap some Federalist Society Gala happenings and developments in the cases involving subpoenas for the President’s financial records.

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

• 6/12 – NYC
• 10/4 – Chicago

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

Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes

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A special bonus live episode from the National Constitution Center. Dahlia Lithwick in conversation with Jeffrey Rosen about his new book Conversations With RBG: Ruth Bader Ginsberg on Life, Love, Liberty, and Law. 

Podcast production by Sara Burningham, with thanks to the National Constitution Center.

Slate’s Amicus on Facebook https://www.facebook.com/amicuspodcast/

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Share this episode with your (open-minded) Republican friends, family, and co-workers! We're happy to bring you this Thanksgiving Special a day early in which we break down the latest "trial balloon" defense of Trump's conduct: that Trump was actually encouraging a legitimate investigation into a top-secret conspiracy in Ukraine to hack the DNC servers in 2016 and throw the election to Hillary Clinton. If you don't know what "CrowdStrike" and "Chalupa" mean, you won't want to miss this one!

We begin on that key issue, breaking down the sole legal issue at stake in impeachment -- bribery -- and exactly what Congress needs to show in order to impeach and remove the President from office. From there, we turn to the next likely defense from Trumpland and explain exactly why it is bananas-in-pajamas-level bonkers.

After that lengthy breakdown, it's time to check in on the status of various lawsuits seeking to compel witnesses to appear before various House committees. What's going on, and is there any cause for optimism? Listen and find out!

Then, as always, it's time for #T3BE, in which Thomas tackles a curious fact-pattern involving a landlord, a new tenant, an old tenant who won't move out, and a surprising legal result. Can he figure out why? Can you?

Appearances

Thomas was just the main guest on Episode 498 of the Cognitive Dissonance podcast, and Thomas and Andrew make additional appearances to roast and be roasted for Vulgarity for Charity. If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. Please do participate in our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice.
2. We broke down Amb. Sondland's testimony in Episode 335. But don't just take our word for it! You can read the federal bribery statute, 18 U.S.C. § 201(b)(2), for yourself and figure out what it takes to prove bribery.
3. We also cited to (a) ADNI Joseph Maguire's testimony before Congress; (b) the whistleblower's complaint (which we previously broke down in Episode 318 and a special bonus episode); (c) internal evidence as reported in the New York Times that Trump's lawyers briefed him on the whistleblower complaint in late August, before aid to Ukraine was restored; (d) the TELCON (edited transcript) of the July 25 Trump-Zelensky call released by the White House; (e) the CrowdStrike report from their own website; (f) Trump's April 2017 press interview in which he began peddling the CrowdStrike conspiracy; (g) Fiona Hill's opening statement in her testimony to Congress; (i) the reporting surrounding Sen. Kennedy's appearance on Fox News Sunday; (j) the 2017 Politico story upon which Sen. Kennedy purported to rely; and (k) Vol. 2 of the Senate Intelligence Committee Report on the 2016 Election, authored by Republican Sen. Richard Burr (R-NC). Phew!
4. In the closing segment, we referred to Rubin v. U.S., 524 U.S. 1301 (1998).

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

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

In this special bonus episode, Melissa and Kate are joined by co-editor Reva Siegel to discuss their book "Reproductive Rights & Justice Stories," in a conversation moderated by Rebecca Traister and hosted by the Brennan Center for Justice at NYU School of Law.

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

• 6/12 – NYC
• 10/4 – Chicago

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

Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes

Follow us on Instagram, Threads, and Bluesky

Today's episode takes a deep dive into Elizabeth Warren's wealth tax. Is it constitutional? How will the arguments shape up? Listen and find out!

We begin, however, with an interesting proposal for a "Congressional Review Act" for the Supreme Court by law professor -- and professional Supreme-Court-fixer -- Ganesh Sitaraman. Will this proposal meet with more approval than Sitaraman's previous "lottery" idea?

Then we do a deep dive into the history of taxes in this country, looking at two very old cases -- one from 1895 (Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429), and one from way back in 1796 (Hylton v. U.S.). We also cover the Wilson-Gorman Tariff Act of 1894, as well as check in on the most recent Supreme Court tax ruling from Chief Justice John Roberts, the NFIB v. Sebelius 2012 Obamacare decision.

What do we learn from all that? Well, you'll just have to give it a listen!

After all that, it's time for the answer to what some are calling the easiest #T3BE question ever about falling off a ladder. Are they right? Was Thomas? There's only one way to know for sure!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. Please do participate in our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice.
2. You can read Prof. Sitaraman's latest article in The Atlantic suggesting a "Congressional Review Act for the Supreme Court." (We previously broke down the Congressional Review Act way back in Episode 61.)
3. We last touched on Prof. Sitaraman's "How to Save the Supreme Court" lottery proposal somewhat less favorably in Episode 294.
4. Head on over to Elizabeth Warren's campaign site to read her "Ultra-Millionaire Tax" proposal.
5. Resources for tax law: Hylton v. U.S. (1796); Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895), and NFIB v. Sebelius (2012).
6. Finally, you can check out the scholars letters submitted in support of Warren's tax plan as well as the Johnson & Dellinger law review article, "The Constitutionality of a National Wealth Tax."

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

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

Dahlia Lithwick wants to know what’s next in the impeachment process, so she asks Professor Michael Gerhardt, an expert on constitutional law and the relationship between congress and the president. Then, former Secretary of the Department of Homeland Security Janet Napolitano takes us through the details of the DACA arguments at the SCOTUS. Napolitano rolled out DACA under President Obama and is now suing the federal government for rescinding it on behalf of thousands of students at the University of California, where she is now president.

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Today's episode breaks down the significance of a packed week in Republican witness testimony before the House Intelligence Committee about the potential impeachment of Donald Trump. We continue to place everything in the context of proving that Donald Trump committed impeachable bribery in violation of 18 U.S.C. § 201(b)(2), including evaluating the (increasingly desperate) defenses being raised by House Republicans.

We begin, however, with a slight Andrew Was Wrong and some really interesting listener feedback about the 2019 Ukraine election.

Then, it's time to take a look at the week in impeachment, with a particular focus on Amb. Gordon Sondland, a Trump donor who was hand-picked to help run the "shadow foreign policy" in Ukraine, and exactly why he's such a devastating witness. We also tease apart the legality of the OMB hold and the crafting of the narrative to show the elements of bribery.

Then, it's time for a brief update on the Trump v. Mazars litigation and the significance of the administrative hold put in place by the Supreme Court. Does that mean John Roberts is 100% in the tank for Trump? (No.)

After all that, it's time for a NEW ERA in #T3BE as we move to a new set of questions! This one asks about a potential lawsuit for a guy who falls off his ladder. Did Thomas get it right? Listen and find out -- and play along with us on social media!

Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. Please do participate in our favorite charity event of the year, Vulgarity for Charity! To participate, just donate $50 or more to Modest Needs, and then send a copy of the receipt to vulgarityforcharity@gmail.com along with your request for a roast. You can even request that Thomas & Andrew roast the victim of your choice.
2. Remember that this is all about Trump's bribery in violation of 18 U.S.C. § 201(b)(2).
3. Oh, the lies! We debunked the insane "the government secretly changed the whistleblower form" conspiracy back in Episode 320 and even created a handy link for you to share with Uncle Clarence to help convince him!
4. On Trump v. Mazars, you can check out Trump's brief requesting a stay and the order issued by Chief Justice Roberts.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

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

On Nov. 5, 2019, the U.S. Supreme Court heard argument in Allen v. Cooper, which involves a dispute over the way state sovereign immunity and federal copyright law interact when an author alleges state infringement of that author’s federal copyright.
Petitioner Frederick Allen and his company, Nautilus Productions, contend that North Carolina violated their federal copyrights by publishing video and photographic footage that Allen had taken of the pirate Blackbeard’s sunken flagship, Queen Anne’s Revenge. Allen also challenges the validity of a recently passed North Carolina statute providing that photographs and video recordings of shipwrecks in the custody of North Carolina are public records. This law, he contends, was enacted in bad faith to undermine his copyright claim.
Allen and Nautilus sued North Carolina and various of its officials in federal district court. Although the district court rejected defendants’ invocation of sovereign immunity from suit, the U.S. Court of Appeals for the Fourth Circuit reversed that judgment, concluding that the Copyright Remedy Clarification Act does not validly abrogate Eleventh Amendment sovereign immunity, which ultimately shields respondents from all of Allen’s and Nautilus’s claims.
The U.S. Supreme Court subsequently granted certiorari to consider whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states.
To discuss the case, in this special panel episode, we have Zvi Rosen, Visiting Scholar and Professorial Lecturer in Law, George Washington University School of Law, Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law Houston, and our moderator, Kevin R. Amer, Deputy General Counsel at the U.S. Copyright Office.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.