Category: 3-LawSometimeCommentary

Today's episode is the second half of our double-length episode in which we tackle your questions about the coronavirus and the law. If you haven't listened to Episode 370 (Part 1) first, go check that out!

We tackle:

• The extent of federal and state powers during emergencies, including the National Emergency Act, 50 U.S.C. Ch. 34, the Stafford Act, 42 U.S.C. § 5121, and 42 U.S. § 264;
• And we contrasted that with state powers, such as 2018 Maryland Code, Public Safety Art., Title 14, Article 3.
• Whether the House of Representatives has to vote in chamber, or whether they can use technology;
• Whether restrictions on gatherings violate the First Amendment;
• Whether you can be charged with a crime for spreading coronavirus;

And much, much more!

No #T3BE this week as we jam-pack 2.5 hours of content for your self-quarantining listening pleasure!

Patreon Bonuses

If you’re at the $2 level or above, we have an amazing new Law’d Awful Movies featuring the Larry Klayman/Roger Stone deposition that must be heard to be believed! Cucker Carlson!

Appearances

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.

Show Notes & Links

1. As an overview to states of emergency, we began with Ex parte Milligan (1866).
2. Federal powers: 50 U.S.C. Ch. 34, the Stafford Act, 42 U.S.C. § 5121, and 42 U.S. § 264; the federal government has enumerated powers as per the 10th Amendment.
3. Check out the Rules of the House of Representatives.
4. On time, place & manner we cited Ward v. Rock Against Racism, 491 U.S. 781 (1989).

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

-Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials!

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

Just what you need for quarantine-- a whole episode recapping the arguments in June Medical Services v. Russo. Plus, our suggestions for making the justices WFH, and rumors on who President Joe Biden's SCOTUS picks might be.

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On Jan. 14, 2020, the U.S. Supreme Court heard argument in Kelly v. United States, a case asking whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not that official’s subjective “real reason” for making the decision.
In 2013, in a New Jersey scandal known as “Bridgegate,” petitioners William E. Baroni, Jr. and Bridget Anne Kelly manufactured a grid-lock traffic jam in Fort Lee, New Jersey after the mayor refused to endorse then-Governor Chris Christie’s re-election campaign. Under the guise of a “traffic study” the two limited Fort Lee motorists’ access to the George Washington Bridge--the busiest bridge in the world--over the period of four days coinciding with the local school district’s first week of school.
Baroni and Kelly were indicted in 2015 for conspiracy to obtain by fraud, knowingly convert, or intentionally misapply property of an organization receiving federal benefits, the underlying offense itself (codified at 18 U.S.C. § 666(a)(1)(A)), conspiracy to commit wire fraud, actual wire fraud, and conspiracy against civil rights. A jury convicted both defendants on all counts. The U.S. Court of Appeals for the Third Circuit reversed and vacated the civil rights convictions, but affirmed all other judgments of conviction. The Supreme Court subsequently granted certiorari, however, to consider whether a public official can “defraud” the government of its property by advancing a public policy reason for an official decision that was not actually the public official’s subjective reason for making the decision.
To discuss the case, we have Erin Sheley, associate professor of law at the University of Oklahoma College of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On Nov. 25, 2020, the U.S. Supreme Court issued a summary opinion in Thompson v. Hebdon, a case involving campaign-finance law. Specifically at issue was whether Alaska’s political contribution limits are consistent with this Court’s First Amendment precedents.
Currently, Alaska’s law imposes (among other things) a $500 annual limit on individual contributions to a political candidate and to any group other than a political party.
The 9th Circuit U.S. Court of Appeals upheld the limits, ruling that they were drawn narrowly to prevent quid pro quo corruption or the appearance of such corruption.
The Supreme Court, in an per curiam opinion, granted the petition of cert, vacated the decision below and remanded the case back for the 9th Circuit to revisit. Justice Ginsburg filed a statement.
To discuss the case, we have Derek Muller, Professor of Law at Pepperdine University Caruso School of Law.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Today's episode begins with a discussion of the recent dismissal of charges by the Department of Justice against Concord Management & Consulting, LLC (and Concord Catering) with prejudice. Is this another example of Attorney General Bill Barr's meddling? We explain that it... probably... isn't. Probably.

After that, it's time for the first part of a double-length episode in which we tackle your questions about the coronavirus and the law. First up are all the questions involving elections, including whether and how Trump can suspend or eliminate the election, and what would happen if he did. If you've always wanted Vermont Senator Pat Leahy to be President, well, this is the episode for you!

No #T3BE this week as we jam-pack 2.5 hours of content for your self-quarantining listening pleasure!

Patreon Bonuses

If you’re at the $2 level or above, we have an amazing new Law’d Awful Movies featuring the Larry Klayman/Roger Stone deposition that must be heard to be believed! Cucker Carlson!

Appearances

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.

Show Notes & Links

1. On Concord Management: you can check out the 2019 Motion alleging that Concord was abusing the discovery process as well as the 3/16/20 motion to dismiss.
2. As an overview to states of emergency, we began with Ex parte Milligan (1866).
3. On primaries: Check out the Ohio Supreme Court's denial of the writ of mandamus to hold the March 16 primary, as well as the lawsuit filed by the Ohio Democratic Party. Oh, and if you want to be depressed, read Nixon v. Herndon, 273 U.S. 536 (1927).
4. Election statutes: 2 U.S.C. §§ 1, 7 (“Time of Election”) and 3 U.S.C. §§ 1 et seq. And of course, don't forget Bush v. Gore, 531 U.S. 98 (2000), which we broke down way back in Episodes 3, 4, and 5 of the show!
5. Presidential succession is governed, inter alia, by the 20th Amendment and the Presidential Succession Act, 3 U.S.C. § 19, and the Speaker of the House is required by Art. I, Section 2 of the Constitution and implemented by the House Rules.
6. Pat Leahy as President was first proposed by journalist Ian Millhiser.

-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

-Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials!

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

Today's episode features two deep dives: first, we have an interview with David Williamson of the Central Florida Freethought Community to discuss their successful (!) five-year lawsuit to permit humanist, atheist & non-clergy invocations before the Brevard County council meetings. Find out how this case developed and learn some strategies for successful grass-roots activism even in the age of Trump!

We also take one more deep dive into the amazing Spirit/Led Zeppelin lawsuit, this time taking a look at the recent en banc decision by the full 9th Circuit that reverses the earlier panel opinion (and is a win for Led Zep). The 9th Circuit has some interesting things to say about the "inverse ratio" rule that really brings out discussion from the past two weeks (see episodes 365 and 367). We know you'll enjoy it!

After that, it's time for the answer to #T3BE 170, which matched Thomas up against the dreaded REAL PROPERTY QUESTION. Can he slay the beast? Listen and find out!

Patreon Bonuses

If you're a patron at any level, you can ask a coronavirus question to be answered on the next two episodes, and if you're at the $2 level or above, we have an amazing new Law'd Awful Movies featuring the Larry Klayman/Roger Stone deposition that must be heard to be believed!

Appearances

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.

Show Notes & Links

1. Check out the Central Florida Freethought Community
2. We first took a "Stairway to the Supreme Court (?)" back in Episode 236 and then did a follow-up in Episode 288. Of course, we also covered Riehl and Rubin’s project in Episode 365 (“Every Melody Ever, Part 1”) and interviewed Riehl and Rubin themselves in Episode 367.
3. Finally, you can read the recent en banc decision by the full 9th Circuit 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

-Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials!

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

On Tuesday, in a 5-4 decision in McKinney v. Arizona, the Supreme Court of the United States issued a landmark death penalty and criminal procedure opinion about the division between direct and collateral review and the jury requirements that the Court had previously explicated in the Apprendi line of cases, including Ring v. Arizona and Hurst v. Florida. At issue was an Arizona Supreme Court opinion that conducted an appellate reweighing of aggravation and mitigation after a remand from the En Banc Ninth Circuit for a supposed error in treatment of certain mitigation on direct appeal.
Writing for the majority, Justice Kavanaugh clarified or confirmed several important criminal and death penalty procedure issues. First, the majority affirmed the ongoing validity of Clemons v. Mississippi and the availability of appellate reweighing of aggravation and mitigation. Second, the Court confirmed that a jury need only find the existence of an aggravating factor, and need not conduct the weighing of aggravation and mitigation or impose the particular sentence in a death penalty case. Third, the Court affirmed that a state court conclusion as to the collateral nature of a state appellate proceeding was not subject to dispute by the Court.
To discuss the case, we are joined by Oramel H. (O.H.) Skinner, Solicitor General for Arizona.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Dahlia Lithwick is joined by Professor Michele Goodwin, Chancellor’s Professor of Law and Director of the Center for Biotechnology and Global Health Policy at the University of California Irvine School of Law. Professor Goodwin unpacks the oral arguments in this term’s big reproductive health case, June Medical Services, and delves into the history of racism and civil-rights trampling in the name of public health. 

For plus members, Mark Joseph Stern joins Dahlia with what to expect from a SCOTUS closed to the public, the Obamacare case, and which record was met at the Supreme Court this week. 

Podcast production by Sara Burningham.

Sign up for Slate Plus now to listen and support our show.

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Dahlia Lithwick is joined by Professor Michele Goodwin, Chancellor’s Professor of Law and Director of the Center for Biotechnology and Global Health Policy at the University of California Irvine School of Law. Professor Goodwin unpacks the oral arguments in this term’s big reproductive health case, June Medical Services, and delves into the history of racism and civil-rights trampling in the name of public health. 

For plus members, Mark Joseph Stern joins Dahlia with what to expect from a SCOTUS closed to the public, the Obamacare case, and which record was met at the Supreme Court this week. 

Podcast production by Sara Burningham.

Sign up for Slate Plus now to listen and support our show.

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Today's episode continues our discussion from Episode 366 on the political, criminal, and civil legal issues surrounding coronavirus and COVID-19 in the United States, including whether the CDC has the authority to waive the fees associated with testing for the virus (they do!) and how this is going to affect civil society (badly). You won't want to miss it -- and you'll be stuck inside your house anyway, so you'll have all the time in the world to listen!

We begin, however, with some nuance regarding An Andrew Was Right, the line of Presidential succession, the 12th and 22nd Amendments, and whether Barack Obama can be Joe Biden's Vice-President. Learn that... apparently there's an argument that he could?

After that, it's time for the main segment, which covers COVID-19 and the coronavirus, specifically (a) Rep. Katie Porter's amazing cross-examination of the CDC Director and the legal authority; (b) lawsuits against con artists like Jim Bakker and Alex Jones; (c) Congress's response; (d) more on private lawsuits and the specific example of SXSW; and (e) a really interesting question about jury duty and the future of jury trials.

After all that, it's time for a dreaded REAL PROPERTY #T3BE. Can you get it right? Just share out this episode on social media, include the hashtag #T3BE, your guess, and your reasons therefor and we will shower the winner with... well, you know.

Appearances

Andrew was just a guest speaker at Houston OASIS, and we’ll be working to bring you the audio of his speech from that event. And 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.

Show Notes & Links

1. In the "A" segment on Presidential succession, we referenced this law review article from Peabody & Gant.
2. Check out the video of Katie Porter's blistering cross-examination of the CDC Director as well as the text of 42 CFR § 71.30.
3. And, of course, you'll want to listen to our original coverage back in Episode 366.

-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

-Remember to check out our YouTube Channel  for Opening Arguments: The Briefs and other specials!

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