Category: 3-LawSometimeCommentary

On April 19, 2017, the Supreme Court heard oral argument in Trinity Lutheran Church of Columbia v. Comer. The Learning Center is a licensed preschool and daycare that is operated by Trinity Lutheran Church of Columbia, Inc (Trinity). Though it incorporates religious instruction into its curriculum, the school is open to all children. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants to organizations that qualify for resurfacing of playgrounds. Trinity’s application for such a grant was denied under Article I, Section 7 of the Missouri Constitution, which reads “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity sued, arguing that DNR’s denial violated the Equal Protection Clause of the Fourteenth Amendment and the First Amendment’s protections of freedom of religion and speech. The district court dismissed for failure to state a claim. Trinity moved for reconsideration, amending its complaint to include allegations that DNR had previously funded religious organizations with the same grant, but the district court denied again. The U.S. Court of Appeals for the Eighth Circuit upheld the decision, agreeing with both the dismissal and denial of motions. -- The question before the Supreme Court is whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has, according to the petitioner church, no valid Establishment Clause concern. -- To discuss the case, we have Hannah C. Smith, who is Senior Counsel of the Becket Fund for Religious Liberty.

In this episode, Thomas begins a choose-your-own-adventure in which two well-meaning trains collide, producing the so-called "Selling The Internet" Bill, S.J.R. 34.  How did this happen? First, though, Andrew revisits a very difficult TTTBE question (#18), and answers a question from long-standing friend of the show Eric Brewer about the differences between a corporation and an LLC. In the main segment, Thomas gets to choose between the well-meaning FCC and the well-meaning FTC in boarding his doomed train.  Choose along with Thomas and figure out where we're headed! After that, Closed Arguments looks at the Fearless Girl statue and moral rights associated with copyright. Finally, we end with a brand new Thomas Takes the Bar Exam question #21 about repealing gay marriage.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew was a guest on Episode 209 of the Phil Ferguson Show; please give it a listen! Show Notes & Links

1. This is the single sentence text of S.J.R. 34.
2. And these are the 2016 FCC Internet Privacy rules (all 399 pages!) that S.J.R. 34 overturned.
3. This is the earlier 2010 Open Internet Order promulgated by the FCC...
4. ...and this is Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014), which struck down those rules.  This is the case we discuss in depth in this part of the story.
5. And, as a special hint to our listeners who read the show notes, Part 2 of this story airing next week will focus on the case of FTC v. AT&T Mobility, a 2016 decision from the 9th Circuit.

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In this episode of Opening Arguments, Andrew and Thomas invite on Phil Ferguson, host of the cleverly-titled Phil Ferguson Show, to discuss why only suckers save money for college.

First, Andrew discusses the scuttlebutt surrounding whether Ivy Tech will appeal the decision in Hively v. Ivy Tech that the guys discussed in Episode 60.

After that, we look at the best(?) potential educational bill that might come before Donald Trump's desk:  H.R. 529, which would make modest expansions to so-called "529" college savings plans.  This, of course, is to set up our "C" segment, in which the guys interview Phil Ferguson and find out what he really thinks of 529 plans in specific and saving for college in general.  How clickbaity is our episode title?  You'll have to listen and find out!

Finally, we end with the answer to Thomas Takes the Bar Exam Question #20 about whether a law prohibiting hiring those undergoing drug treatment or with prior drug convictions would violate the equal protection clause.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew was also a guest on Episode 209 of the Phil Ferguson Show; please give it a listen!

Show Notes & Links

1. So-called "529 plans" are governed by 26 U.S.C. § 529, which you can read here.
2. You can see the text of H.R. 592 (no relation) by clicking this link as well as read the endorsement from The Hill here.

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In this episode, Andrew goes through five of the worst, most embarrassing cases in Supreme Court history. First, though, the guys tackle a question from Scott, who's considering becoming a patron of the show (good!) but has some questions about a standard form indemnification clause in the Patreon agreement. In the main segment, we look at the worst of the worst in Supreme Court history.  From the embarrassingly racist to the embarrassingly activist, come visit the Supreme Court's "Hall of Shame" with Andrew and Thomas. After that, fan favorite Breakin' Down the Law returns with an examination of a new mandatory arbitration provision for civil cases in Cook County, Illinois. Finally, we end with a brand new Thomas Takes the Bar Exam question #20.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew was a guest on Episode 209 of the Phil Ferguson Show; please give it a listen! Show Notes & Links The worst cases in Supreme Court history, in chronological order, are:

1. Dred Scott v. Sanford, 60 U.S. 393 (1857)
2. Plessy v. Ferguson, 163 U.S. 537 (1896) (not discussed in this episode)
3. Lochner v. New York, 198 U.S. 45 (1905)
4. Buck v. Bell, 274 U.S. 200 (1927)
5. Korematsu v. US, 323 US 214 (1944)
6. Bowers v. Hardwick, 478 U.S. 186 (1986); and, of course,
7. District of Columbia v. Heller, 554 U.S. 570 (2008) (not discussed in this episode)

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In this episode of Opening Arguments, the guys look at both United Airlines and an obscure law from 1996 that could threaten the "administrative state" held in such disdain by our newest Supreme Court Justice, Neil Gorsuch. First, of course, Andrew breaks down the legality of the recent decision by United Airlines to forcibly remove a passenger.  How badly is United going to get sued?  You know we deliver the goods. Then, Andrew and Thomas discuss a little-known law passed in 1996 as part of the Republican Revolution and Newt Gingrich's "Contract With America":  the Congressional Review Act.  What is it, and why does it matter?  Listen and find out! In the "C" segment, Andrew answers a question from his mom.  Really! Finally, we end with the answer to Thomas Takes the Bar Exam Question #19 about diversity jurisdiction.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew was recently a guest on the Embrace the Void podcast, Episodes 5 and 6.  Listen and enjoy! Show Notes & Links

1. The Congressional Review Act is 5 U.S.C. § 802.
2. ...and the Brookings Institute study can be found here.
3. Finally, you can read Todd Gaziano's efforts to beef up the CRA here.

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Newly sworn-in Justice Neil Gorsuch gets his first chance to make his mark on the Court at this week’s oral arguments for Trinity Lutheran v. Comer. The important case asks whether the First Amendment’s Free Exercise Clause compels the state of Missouri to provide public grant money directly to a church. Holly Hollman, general counsel for the Baptist Joint Committee for Religious Liberty, joins us to discuss BJC’s amicus brief in the case, which argues that religious institutions are actually freer if they are barred from accepting government funds.

We also sit down with Jeffrey Toobin, whose piece in this week’s The New Yorker examines the enormous influence that the Federalist Society – and especially its executive vice president Leonard Leo – have on the American judiciary. Toobin argues that with the ascension of Neil Gorsuch to the Supreme Court, Leo can now be credited with the selection of one-third of the nation’s most powerful judges. 

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In this episode, we take a look at a landmark decision by the 7th Circuit Court of Appeals, Hively v. Ivy Tech Community College of Indiana. First, though, we tackle a question from listener Justin Wilder who wants to know about serving a subpoena on Amazon for evidence in a civil case related to information that might be stored on your Echo.  We love that our listeners are becoming civil procedure geeks! In the main segment, Andrew walks us through the landmark Hively decision and discusses what it means and what the likely future of the case will be. After that, fan favorite Breakin' Down the Law returns with an examination of South Dakota SB 149 which extends protections to adoption agencies in the state with (wait for it) sincerely held religious or moral beliefs. Finally, we end with a brand new Thomas Takes the Bar Exam question #19 that asks about diversity jurisdiction in federal court between two companies.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew just recorded a two-part episode of the Embrace the Void Podcast; you can (and should!) give Episode 5 a listen right here. Show Notes & Links

1. FRCP 45 governs subpoenas.
2. This is the Supreme Court's Opinion in Hively v. Ivy Tech Community College of Indiana.
3. And here is the link to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
4. This is the text of South Dakota SB 149, which allows adoption agencies to discriminate on the basis of a sincerely held religious or moral belief.

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In this highly unlikely episode of Opening Arguments, the guys run through three segments in which they defend President Donald J. Trump.  Sometimes truth is stranger than fiction First, listener T.Sp. asks about the just-invoked "nuclear option," and whether that vote itself could have been filibustered, thus triggering an endless loop of filibusters...  Obviously the answer is no -- but why?  We learn about some arcane Senate procedures and the guys conclude that the Democrats probably would have done the same thing if the situation were reversed. In the main segment, Andrew and Thomas break down the recent use of force by President Trump in Syria.  Does it violate the Constitution?  The War Powers Act of 1973?  Some other law?  (No.)  Yet again, the guys defend President Trump. In the "C" segment, our beloved Yodelin' Trump returns and the guys break down a popular video by Robert Reich that lays out five grounds for impeaching Trump.  How good are they?  Hint: check out the title of this show. Finally, we end with the answer to Thomas Takes the Bar Exam Question #18 about a crazily unconstitutional law regarding clothing.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew was recently a guest on both the Embrace the Void podcast and The Phil Ferguson Show; links will go up when those shows release. Show Notes & Links

1. The War Powers Act of 1973 is 50 U.S.C. § 1541 et seq.
2. ...and the 60-day provision is found in section 1544.
3. This is the document prepared by President Clinton's lawyers defending the 1994 invasion of Haiti.
4. Here is the 2001 Authorization for the Use of Military Force post-9/11.

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  Today's episode is part two of a two-part series in which Thomas and Andrew walk through the short-lived history of the USFL, an alternative football league that ran into the bulldozer that is Donald J. Trump.  Along the way, we learn about jury nullification, antitrust law, and get some insight into Trump's legal strategies that just might have some relevance today.... First, though, "Breakin' Down the Law" defines "antitrust" in order to get you prepared to tackle the rest of our main story.  Afterwards, we answer a question from listener Eric Johnston, who wants to know what exactly "laches" and "estoppel" are. Finally, we end with a brand new Thomas Takes the Bar Exam question #18 that asks about the Constitutionality of an oppressive new law restricting clothing.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew just recorded a delightful and moderate discussion of the law of God's Not Dead 2 with the hosts of the "Is This Reel Life?" podcast. Show Notes & Links

1. This is the AmLaw article Andrew mentions in which lawyers second-guessed Donald Trump's choice of litigation tactics way back in 2009.

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On March 27, 2017, the Supreme Court heard oral argument in Advocate Health Care Network v. Stapleton, which is consolidated with Saint Peter’s Healthcare System v. Kaplan and Dignity Health v. Rollins. The Employee Retirement Income Security Act of 1974 (ERISA) requires that employee retirement plans contain certain safeguards, but exempts “church plan[s]” from these requirements. Under 29 U.S.C. 1002(33)(A), the term “church plan” means “a plan established and maintained… by a church or by a convention or association of churches which is exempt from tax….” After a controversy involving an Internal Revenue Service determination that the church plan exemption did not encompass pension plans established and maintained by two orders of Catholic sisters for the employees of their hospitals, Congress amended the statute to add subsection (C), which provides: “A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches.” -- Plaintiffs in this case are a group of employees who work for Advocate Health Care Network (Advocate) and are members of Advocate’s retirement plan. Advocate is affiliated with a church, though it is not owned or financially operated by the church. Plaintiffs sued Advocate, arguing that the Advocate retirement plan is subject to ERISA, and therefore, by failing to adhere to ERISA’s requirements, Advocate has breached its fiduciary duty. Defendants moved for summary judgment, but the district court denied the motion because it determined that a plan established and maintained by a church-affiliated organization was not a church plan within the meaning of the statutory language. The U.S. Court of Appeals for the Seventh Circuit affirmed. -- The question now before the Supreme Court is whether the Employee Retirement Income Security Act of 1974's church-plan exemption applies so long as a pension plan is maintained by an otherwise-qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan. -- To discuss the case, we have Eric Baxter, who is Senior Counsel of the Becket Fund for Religious Liberty.