Folks, this whistleblower is big news. Andrew Torrez has put in some OT to research the law behind the big news. In this bonus breakdown, we find out: what we know so far, the statute that "protects" the whistleblower and ensures congress should get to hear the complaint, who is currently breaking the law in order to cover for others who are breaking the law, what is currently being done about it, and what can and should be done about it. Listen and share!
Show Notes & Links
Don’t forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!!
On March 19, 2019, the Supreme Court decided Nielsen v. Preap (and its companion case Wilcox v. Khoury), both of which consider the extent to which the mandatory detention provision of the Immigration and Naturalization Act applies to defendants who were not arrested by immigration officials immediately upon their release from criminal custody. Aliens who are arrested in order to be removed from the United States typically can seek release or parole on bond while any dispute about their removability is being resolved. Title 8 U.S.C. § 1226(c)(1), however, creates an exception: aliens who have committed certain crimes or have a connection to terrorism must be arrested when released from custody relating to their criminal charges, and almost always held without bond until the question of removal is settled. The U.S. Court of Appeals for the Ninth Circuit interpreted this mandatory detention provision to apply only when the alien is arrested immediately after release from prison. If a short period of time intervenes, the court concluded, the alien must be allowed the chance to apply for release on bond or parole. By a vote of 5-4, the Supreme Court reversed the Ninth Circuit’s judgment and remanded the case. Respondent aliens who fall within the scope of § 1226(c)(1), the Court held, can be detained even if federal officials did not arrest them immediately upon release. Justice Alito announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-A, III-B-1, and IV, and an opinion with respect to Parts II and III-B-2, in which Chief Justice Roberts and Justice Kavanaugh joined. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined. To discuss the case, we have Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck.
Today's Rapid Response Friday spends a lot of time high atop Yodel Mountain, pondering the latest developments in the Trump Administration's efforts to keep the underlying grand jury materials (and redacted portions of the Mueller Report) from being disseminated to Congress. Oh, and we also check in on Trump's taxes, emoluments, that crazy whistleblower case and so much more from this corrupt administration.
We begin, however, with few little self-congratulatory remarks and some further information about #Brexit that we covered in Episode 315.
Then, it's time to tackle In re Application of the House Committee on the Judiciary regarding the unsealing of grand jury testimony. Learn how this argument interacts with McKeever v. Barr, which we last discussed in Episode 272.
After that, we pause briefly to discuss the latest ruling on emoluments from the Second Circuit Court of Appeals, as well as the latest apportionment lawsuit that may have been inspired by a previous episode. And we discuss Corey Lewandowski's sideshow, and the four pending lawsuits involving Trump's taxes, and so much more....
That gives us a brief amount of time to talk about the latest whistleblower case and what we do (and don't) know.
Upcoming 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
Don’t forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!!
We, of course, first discussed McKeever v. Barr way back in Episode 206 when we debunked the conspiracy theory angle, and we were proven right in Episode 272.
On March 20, 2019, the Supreme Court decided Frank v. Gaos, a case raising the question whether, or under what circumstances, a cy pres award that provides no direct relief to class members fulfills the Federal Rules of Civil Procedure 23(e) requirement that a class action settlement be "fair, reasonable, and adequate." In a class-action suit with three named plaintiffs, Google was accused of violating the Stored Communications Act by sharing user search terms and other information with the server hosting whatever webpage that user clicked to via Google Search results. A settlement was reached that would require Google to include certain disclosures on some of its webpages and would distribute more than $5 million to cy pres recipients, more than $2 million to class counsel, and no money to absent class members. The district court approved the settlement over the objections of several class members, and the U.S. Court of Appeals for the Ninth Circuit affirmed. The Supreme Court then granted certiorari to address petitioners’ challenge that this cy pres settlement did not satisfy the Rule 23(e) requirement that class action settlements be “fair, reasonable, and adequate,” but did not ultimately reach the merits of that question. In a per curiam opinion, the Court vacated the judgment of the Ninth Circuit and remanded the case for further proceedings to determine whether the class action plaintiffs even had standing to bring their class action in light of the Supreme Court’s 2016 decision in Spokeo v. Robins. That case held that “Article III standing requires a concrete injury even in the context of a statutory violation.” Here, the Court indicated, the lower courts needed to resolve “whether any named plaintiff has alleged [Stored Communications Act] violations that are sufficiently concrete and particularized to support standing.” If not, the lack of standing would deprive the federal courts of subject matter jurisdiction in this case. Justice Thomas dissented. To discuss the case, we have Theodore "Ted" Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute - and one of the named petitioners in this case.
Don't forget Opening Arguments LIVE in Los Angeles, CA on October 12, 2019. Here is the link!!
In this week's Deep Dive Tuesday, we take a look at two crazy stories -- one from last week, and one from... 2016. Yes, it's time for OA finally to tackle the mess that is Brexit now that we have various court rulings around the concept of "prorogation." What the hell is that? Listen and find out! And, as a bonus, we'll also talk about the craziest story out of North Carolina -- and believe us, that title has a lot of contenders!
We begin, however, with a brief update on the settlement reached with Purdue Pharma in the Ohio MDL that we discussed in Episode 311. Hint: Andrew was definitely right about this one!
Then, it's time for an absolutely bonkers story involving state legislators in North Carolina tricking Democrats into celebrating a 9/11 memorial... so that they could have a stealth session to override a gubernatorial veto. Did that really happen??!? (Yes.) How?!? And what happens next? Listen and find out!
After that, it's time for the OA explainer on Brexit just in time for today's UK Supreme Court oral argument. Find out what court said what and how that all interacts!
Then, it's time for #T3BE. Can Thomas stop a show-worst six-question losing streak? With a real property question??!? Listen and find out!
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.
On March 19, 2019, the Supreme Court decided Air & Liquid Systems Corp. v. Devries, a case addressing the liability of a manufacturer under maritime law for injuries caused when asbestos was incorporated into their product by a third party after sale. The Air & Liquid Systems Corporation (ALS) produced equipment for United States Navy ships. Parts of the equipment required asbestos insulation and asbestos parts in order to function but the manufacturers delivered the equipment without asbestos and the Navy added it later. Two Navy veterans, Kenneth McAfee and John DeVries developed cancer and died after being exposed to asbestos while stationed on the ships. Their families sued manufacturer ALS in federal district court, alleging that it had negligently failed to warn about the dangers of asbestos in the integrated products. ALS countered that it should not be held liable for asbestos that was added later by a third party, an argument known as the “bare metal” defense. The district court ruled in favor of ALS but the U.S. Court of Appeals for the Third Circuit vacated that judgment and remanded the case, concluding that a “bare metal” manufacturer could still be held liable if it was foreseeable that the materials in question would have been used with later-added asbestos-containing materials. The Supreme Court then granted certiorari to resolve a split among the circuit courts of appeals on whether the “bare metal” defense is valid under maritime law. By a vote of 6-3, the Supreme Court affirmed the judgment of the Third Circuit. Justice Kavanaugh delivered the opinion of the Court, holding that, in the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger. The majority opinion was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Gorsuch filed a dissenting opinion, in which Justices Thomas and Alito joined. To discuss the case, we have Karen R. Harned, Executive Director, NFIB Small Business Legal Center.
Dahlia Lithwick is joined by Professor Sonja West of the University of Georgia School of Law and Professor Jamal Greene of Columbia Law School, both former clerks to Supreme Court Justice John Paul Stevens. They discuss his life, legacy, and the lessons they learned from the late justice.
Today's episode breaks down a 7-2 decision by the Supreme Court to stay the decision of the District Court enjoining the Trump Administration's new asylum rules from going into effect. What happened and why? Listen and find out! It's bad news -- but to balance that out, we spend a lot of time high atop Yodel Mountain, where we discuss the ongoing march towards impeachment and the latest in the Michael Flynn saga.
We begin, however, with a brief Andrew Was Wrong(TM) segment about two casual (but wrong) comments Andrew made in previous shows. As it turns out, Devin Nunes isn't the beneficiary of gerrymandering -- we knew that, honest! -- he's... wait, why do people vote for Devin Nunes again? We're not sure.
Then it's time for the main segment, which breaks down the tragic significance of the court's recent order on asylum. It's only a single paragraph long, but... it speaks volumes. Find out what's going to happen next with expedited removal proceedings and undocumented immigrants. It's a tough segment, but you need to know.
Next, it's time for our weekly visit to Yodel Mountain! Find out why the most conservative Democrat in Congress thinks impeachment is "inevitable!" And while we're there... what's the deal with Lt. Gen. Michael Flynn and his crackpot lawyer? We'll tell you!
After all that, it's time for #T3BE. Can Thomas snap a career-worst six-question losing streak? If so, he'll have to do it on a dreaded real property question involving the sale of land. Keep your fingers crossed!
On March 26, 2019, the Supreme Court decided Sturgeon v. Frost, a case considering whether the Alaska National Interest Lands Conservation Act (ANILCA) prohibits the National Park Service from exercising regulatory control over state, native corporation, and private land physically located within the boundaries of the National Park System in Alaska. Congress, through ANILCA, created ten new national parks, monuments, and preserves with 104 million acres of federally owned land. When selecting the boundary lines, Congress chose to use the natural features of the land rather than strictly the federally owned land. The state, private, and Native lands within the boundary lines became in-holdings totaling 18 million acres. To protect the landowners, Congress included Section 103(c) which, in part, states that only federally owned lands within a conservation reserve unit were to be considered a part of the unit and that no state or private land is subject to regulations pertaining to federal land within the unit. Petitioner John Sturgeon, a hunter, had been using a hovercraft to navigate up a portion of the Nation River that runs through the Yukon-Charley Preserve, a conservation unit in Alaska. The National Park Service (NPS) informed Sturgeon of a regulation prohibiting the operation of a hovercraft on navigable waters within the boundaries of any national park regardless of in-holdings. Sturgeon sought an injunction against the National Park Service arguing that the land he was using was owned by the state of Alaska and NPS had no authority to enforce its hovercraft ban there. After an initial round of litigation resulting in remand by the Supreme Court for further consideration, the District Court again ruled against Sturgeon, interpreting Section 103(c) to limit NPS’ authority to impose Alaska-specific regulations on property inholdings--but not its authority to enforce nationwide regulations such as the hovercraft rule. The U.S. Court of Appeals for the Ninth Circuit affirmed, but the Supreme Court again granted certiorari and rejected that interpretation as implausible, directing the Ninth Circuit on remand to consider whether the Nation River qualifies as “public land” (thereby subjecting it to NPS authority)--and if not, whether some other theory afforded NPS regulatory power over the river in question. The Ninth Circuit found that the Nation River did qualify as public land, ruling against Sturgeon yet again. For the third time, the Supreme Court granted certiorari to review that court’s judgment. By a vote of 9-0, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Justice Kagan, the Court unanimously held that Nation River is not public land for purposes of ANILCA--and like all non-public lands and navigable waters within Alaska’s national parks, is exempt under Section 103(c) from NPS’ ordinary regulatory authority. Justice Sotomayor filed a concurring opinion, in which Justice Ginsburg joined. To discuss the case, we have Tony Francois, Senior Attorney, Pacific Legal Foundation.
Today's episode takes a deep dive into the latest bizarre lawsuit filed by perhaps America's most-despised Trump sycophant, California Rep. Devin Nunes. Learn all about Nunes's thrice-disciplined lawyer and the theory so crazy it must be heard (and read) to be believed.
We begin, however, with an incredibly insightful listener question regarding the bill of attainder doctrine and whether it would apply to the hypothetical Poke Ted Cruz Act of 2021 discussed during our latest live show.
Then, it's time to break down Devin Nunes's lawsuit piece by piece, in which you'll learn all about civil RICO lawsuits ... and why they don't remotely apply to the paranoid conspiracy theory connecting Robert Mueller to Fusion GPS to the Daily Caller to... the Center for Accountability? It's a wild ride, so strap in!
After that, it's time for another listener question regarding the guys' views on policy debates vs. "scorched earth" during the Democratic primary.
And then, it's time to see if Thomas can turn around his recent losing streak with a #T3BE question involving an offer to sell a pickup truck, acceptance via mail, and revocation by phone. Who wins? Listen and find out!
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.
