In the Slate Plus segment, Mark Joseph Stern takes us through arguments in the faithless electors case, the big religious freedom case that most people missed, and why you shouldn’t read too much into the Supreme Court’s latest order regarding the Mueller Report. Sign up for Slate Plus now to listen and support our show.
Today's episode checks in on all the latest goings-on in the Trump administration that probably don't violate the law but do undermine the norms of 200+ years of government, from firing Inspectors General that are potentially interested in government accountability to the DOJ's refusal to turn over the unredacted Mueller Report to the House Judiciary Committee to the collusion between Bob Barr and Michael Flynn. You won't want to miss it.
We begin with some pre-show news about Cory Wilson, the latest completely insane, hyper-partisan (and 49-year-old) Trump nominee for the U.S. Court of Appeals.
After all that, it's time for a brand-new #T3BE about a man, his yacht, and insurance fraud -- in which Thomas tries to figure out if the issue is privilege, hearsay, or something else entirely.
On May 6, 2020, the U.S. Supreme Court heard argument in Barr v. American Association of Political Consultants Inc., a case involving a dispute over whether the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute. To discuss the case, we have Kevin Walsh, Professor of Law at the University of Richmond School of Law. As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
Three cases before the Supreme Court consider the ability of grand juries and congressional committees to subpoena the personal tax records of the President. In Trump v. Mazars USA and Trump v. Deutsche Bank, three House committees subpoenaed the President’s tax records. In Trump v. Vance, a local grand jury has subpoenaed these tax documents as well. There are several issues at play in determining if these subpoenas are valid. The Supreme Court has also asked the parties to brief whether these congressional subpoenas are the kind of dispute between the branches that the court should avoid. To discuss the case, we have Devin Watkins, Attorney at the Competitive Enterprise Institute. As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
On April 27, 2020, the Supreme Court held by a vote of 8-1, in the case Maine Community Health Options v. United States, that The Patient Protection and Affordable Care Act’s now-expired “Risk Corridors” statute—which set a formula for calculating payments to healthcare insurers for unexpectedly unprofitable plans during the first three years of online insurance marketplaces—created a government obligation to pay insurers the full amount of their computed losses; and the petitioners properly relied on the Tucker Act to sue for damages in the Court of Federal Claims. The judgment reversed and remanded the case to the courts below. The opinion was written by Justice Sotomayor on April 27, 2020. Justices Thomas and Gorsuch joined the court's opinion except for Part III-C. Justice Alito filed a dissenting opinion. To discuss the case, we have Julia Mahoney, Professor of Law at the University of Virginia School of Law.
On May 11, 2020, the U.S. Supreme Court heard argument in the consolidated cases Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, which involves a dispute over whether the First Amendment's religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against her religious employer when the employee carried out important religious functions. In 2012, the case Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, the Supreme Court, unanimously held that, under the First Amendment’s Religion Clauses, “it is impermissible for the government to contradict a church’s determination of who can act as its ministers.” Accordingly, the Court recognized that there is a “ministerial exception” that precludes the application of employment-discrimination laws to claims concerning the relationship between a religious institution and its ministers. But who qualifies as a minister? The Hosanna-Tabor Court refused “to adopt a rigid formula,” but found that the employee at issue, in that case, was a minister in light of several “considerations”—the formal title given to the employee by the church, the substance reflected in that title, the employee’s own use of that title, and the important religious functions the employee performed. Eight years later, the question of “who’s a minister?” is back before the Court in Our Lady of Guadalupe v. Morrissey-Berru, and St. James School v. Biel. In each case, teachers at Catholic schools brought discrimination claims, and the Ninth Circuit concluded the ministerial exception did not apply. Now before the Supreme Court, the schools contend that the Ninth Circuit has adopted the “rigid formula” that the Hosanna-Tabor Court eschewed, and they argue that in most cases a “religious functions” test is sufficient. To discuss the case, we have Nathan Chapman, Associate Professor of Law at the University of Georgia School of Law. As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
On Feb. 24, 2020, the U.S. Supreme Court heard argument in Opati v. Republic of Sudan, a case involving a dispute over whether the Foreign Sovereign Immunities Act authorizes punitive damages for terrorist activities that took place before Congress amended the statute to provide an express cause of action contemplating such damages. Following the 1998 al Qaeda bombing of American embassies in Kenya and Tanzania, victims and their families brought suit against the Republic of Sudan, alleging that it had assisted al Qaeda in carrying out the attacks. In doing so, plaintiffs invoked a terrorism exception to the Foreign Sovereign Immunities Act (FSIA)--but there was uncertainty as to whether, even in the absence of an immunity bar, Congress had provided a federal cause of action for claimants such as plaintiffs. In 2008, however, Congress amended FSIA to provide an express cause of action and directed that claims such as plaintiffs’ be treated “as if ” they had been originally filed under the new cause of action. Congress also made punitive damages available under the new cause of action and authorized the filing of new claims that arose out of the same incident as earlier claims. Plaintiffs amended their complaint accordingly and, following a bench trial, obtained a multi-billion dollar damages award, including more than $4 billion in punitive damages. Sudan challenged the punitive damages award on appeal, arguing that Congress had not expressly authorized punitive damages based on conduct that predated its 2008 legislation. The U.S. Court of Appeals for the Second Circuit agreed, but the Supreme Court subsequently granted certiorari to consider whether, consistent with its decision in Republic of Austria v. Altmann, 541 U.S. 677 (2004), FSIA applies retroactively, thereby permitting recovery of punitive damages under 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute. To discuss the case, we have Roger Alford, Professor of Law at the University of Notre Dame As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
Today's episode features an interview with one of our favorite recurring guests, Andrew Seidel, who returns to warn us of new regulations pursuant to the CARES Act that are permitting churches to take PPP money. Yes, that means your tax dollars are literally paying the salaries of ministers, priests, imams, and the like.
We also discuss what just happened in Wisconsin, where the Supreme Court invalidated Gov. Evers's stay-at-home order. Is it bad? Listen and find out! (Yes.)
After that, it's time for the answer to #T3BE about when & where double jeopardy attaches.
None! If you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at openarguments@gmail.com.
On April 27, 2020, the U.S. Supreme Court released its opinion in New York State Rifle & Pistol Association Inc. v. City of New York, a case involving a dispute over whether New York City rules limiting transportation of licensed firearms to ranges within New York City limits (and certain state-designated hunting areas) violate the Second Amendment, the dormant Commerce Clause, and the constitutional right to travel. Under New York state law, possessing a firearm without a license is prohibited. New York City issues “premises” licenses that permit possession of a pistol or revolver at a particular address, and under city “Rule 5-23” such firearms may not be lawfully removed from that address except for transport directly to or from authorized shooting ranges within New York City limits (as well as certain state-designated hunting areas). Plaintiffs, who hold New York City premises licenses, wished to transport their firearms to shooting ranges, competitions, and/or homes outside of New York City. They sued for injunctive relief in federal district court, alleging that Rule 5-23’s restrictions violated the Second Amendment and were otherwise invalid under the dormant Commerce Clause, the First Amendment right of expressive association, and the fundamental right to travel. The district court rejected all these claims and dismissed the case. The U.S. Court of Appeals for the Second Circuit, applying intermediate scrutiny to the Second Amendment claims, affirmed. The Supreme Court, however, subsequently granted certiorari to address whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel. The case was vacated and remanded with a 6-3 vote in a per curiam opinion on April 27, 2020. Justice Kavanaugh filed a concurring opinion. Justice Alito filed a dissenting opinion, in which Justice Gorsuch joined in full and Justice Thomas joined except for Part IV-B. To discuss the case, we have David Thompson, of Cooper & Kirk and Amy Swearer, Legal Fellow at the Meese Center for Legal and Judicial Studies As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
Leah and Kate break down the major arguments in the presidential immunity and subpoena cases as well as the major (?) social media and supporter updates for the podcast! They also discuss McGirt v. Oklahoma and the ministerial exemption cases. And enforcing the Voting Rights Act too (of course).
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