Category: 3-LawSometimeCommentary

For today's show, we revisit the topic first discussed in Opening Arguments Episode #60, namely, whether Title VII of the Civil Rights Act of 1964's prohibition of discrimination on the basis of "sex" implicitly extends to prohibiting discrimination on the basis of "sexual orientation" as well. First, however, fan favorite "Breakin' Down the Law" returns with an explanation of civil and criminal asset forfeiture and a new policy announced by Attorney General (for now) Jeff Sessions. In the main segment, we contrast the amicus brief filed by the U.S. Department of Justice in Zarda v. Altitude Express with the 7th Circuit's opinion in Hively v. Ivy Tech Community College of Indiana.  Find out why your government just submitted a brief arguing that employers have the right to hang a sign that says "no homosexuals need apply." After that, Patron Jordan Keith explains a bit more about the TOR browser as a follow-up to Opening Arguments Episode #88's discussion of U.S. v. Matish. Finally, we end with the answer to Thomas Take the Bar Exam Question #34 regarding the rape shield law, FRE 412.  Listen and find out if Thomas makes it back to .500!   And 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 just a guest on Episode 15 of Molly Unmormon's "Doubting Dogma" podcast -- give it a listen! Show Notes & Links

1. The relevant statutes for asset forfeiture are 18 U.S.C. § 983 and 21 U.S.C. § 853, and you can also read the 2015 Holder memorandum prohibiting "adoptive forfeitures" by clicking here.
2. We first discussed Hively v. Ivy Tech Community College of Indiana in Episode #60.
3. And here is the link to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
4. Here is a link to the U.S.'s amicus curiae brief in Zarda v. Altitude Express.
5. This is the text of the opinion in U.S. v. Matish, which we first discussed in Episode #88.
6. And finally, you can read Rule 412 of the Federal Rules of Evidence by clicking here.

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In today's episode, Andrew definitively opines that the Presidential pardon power includes the right to self-pardon. We begin, however, with "Andrew Was Wrong."  This time, he was wrong about Thor Heyerdahl, but right about the fate of Ken Ham's Ark Encounter. In our main segment, the guys analyze the recent claims by Laurence Tribe, Richard Painter, and Norm Eisen that Donald Trump does not have the power to pardon himself and find it less than persuasive. Next, Andrew briefly discusses the legality of Trump's tweet regarding transgender individuals serving in the military. Finally, we end with an all-new Thomas Takes the Bar Exam Question #34 about introducing a rape victim's sexual history into evidence.  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew's talk before the Lehigh Valley Humanists is now up on YouTube. Show Notes & Links

1. We first discussed AIG's Ark Encounter land sale in Opening Arguments episode #88.
2. This is the press release from Answers in Genesis regarding their Ark Encounter fraud, and here is one news account of how the City suspended the tax breaks for the Ark Encounter and the subsequent revocation of the sale.
3. This is the Tribe/Painter/Eisen article in the Washington Post arguing that Trump doesn't have the power to pardon himself.
4. Here is a link to the 1974 Lawton memo.
5. This is a link to the Autobiography of Charles Biddle; you'll want to turn to page 306-08 for the Aaron Burr story.
6. This is "The Law as King and the King as Law" from the Hastings Law Quarterly 20:7.
7. Schick v. Reed, 419 U.S. 256 (1974).
8. Chisholm v. Georgia, 2 U.S. 419 (1793).
9. Here is a link to Gov. Stevens's self-pardon in 1856.
10. This is a link to Mayor James G. Woodward's self-pardon for public drunkenness in 1901.
11. Finally, this is the Newsweek article referenced on the show that discusses self-pardons.

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On June 22, 2017, the Supreme Court decided Maslenjak v. United States. At the close of the Bosnian civil war, Divna Maslenjak sought refugee status for herself and her family in the U.S. due to fear of persecution regarding their Serbian identity in modern-day Bosnia and the threat of reprisal against her husband, who she claimed had evaded military conscription in the Bosnian Serb militia. After the family was granted refugee status and Maslenjak became a U.S. citizen, a U.S. court convicted Maslenjak’s husband, Ratko, on two counts of falsifying claims regarding Serbian military service on U.S. government documents, since Ratko had in fact served in the Serbian military. When Ratko applied for asylum to avoid deportation, Divna Maslenjak admitted to lying about her husband’s military service and was charged with two counts of naturalization fraud. At her trial, jurors were told that a naturalization fraud conviction could be carried out for false claims in Maslenjak’s application process, even if the claims did not affect whether she was approved. Convicted on both counts, Divna Maslenjack was stripped of her citizenship. The Sixth Circuit affirmed her conviction. -- By a vote of 9-0, the Supreme Court vacated the judgment of the Sixth Circuit and remanded the case. In an opinion by Justice Kagan, the Court held that (1) the text of 18 U.S.C. § 1425(a) -- which prohibits "procur[ing], contrary to law, the naturalization of any person" -- makes clear that, to secure a conviction, the federal government must establish that the defendant's illegal act played a role in her acquisition of citizenship; (2) when the underlying illegality alleged in a Section 1425(a) prosecution is a false statement to government officials, a jury must decide whether the false statement so altered the naturalization process as to have influenced an award of citizenship; and (3) measured against this analysis, the jury instructions in this case were in error, and the government's assertion that any instructional error was harmless if left for resolution on remand. Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Gorsuch filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined. Justice Alito filed an opinion concurring in the judgment. -- And now, to discuss the case, we have Vikrant P. Reddy, who is Senior Research Fellow at the Charles Koch Institute.

On June 19, 2017, the Supreme Court decided Ziglar v. Abbasi, which was consolidated with the cases Ashcroft v. Abbasi , and Hasty v. Abbasi. Ziglar v. Abbasi was part of a series of lawsuits brought by Muslim, South Asian, and Arab noncitizens who were detained after the terrorist attacks on September 11, 2001, and treated as “of interest” in the ensuing government investigation. These plaintiffs contended, among other things, that the conditions of their confinement violated their constitutional rights to due process and equal protection. The defendants included high-level officials in the Department of Justice (DOJ) such as Attorney General John Ashcroft, FBI director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, as well as various detention officials. Some of the parties reached settlements, and the district court eventually dismissed some of the allegations against the DOJ officials for failure to state a claim. The U.S. Court of Appeals for the Second Circuit affirmed the lower court’s dismissal of plaintiffs’ Free Exercise claims, but otherwise reversed most of the district court’s judgment. Plaintiffs, the Second Circuit held, had adequately pleaded claims for violations of substantive due process, equal protection, the Fourth Amendment, and civil conspiracy, and Defendants were not entitled to qualified immunity. Defendants then sought, and the Supreme Court granted, a petition for writ of certiorari. -- By a vote of 4-2, the Supreme Court reversed in part, and vacated and remanded in part, the judgment of the Second Circuit. In an opinion by Justice Kennedy, the Court held that (1) the limited reach of actions brought under Bivens v. Six Unknown Federal Narcotics Agents informs the decision whether an implied damages remedy should be recognized in this case; (2) considering the relevant special factors in this case, a Bivens-type remedy should not be extended to the "detention policy claims" -- the allegations that the executive officials and wardens violated the detainees' due process and equal protection rights by holding them in restrictive conditions of confinement, and the allegation that the wardens violated the Fourth and Fifth Amendments by subjecting the detainees to frequent strip searches -- challenging the confinement conditions imposed on the detainees pursuant to the formal policy adopted by the executive officials in the wake of the September 11 attacks; (3) the U.S. Court of Appeals for the 2nd Circuit erred in allowing the prisoner-abuse claim against Warden Dennis Hasty to go forward without conducting the required special-factors analysis; and (4) the executive officials and wardens are entitled to qualified immunity with respect to respondents' civil conspiracy claims. -- Justice Kennedy delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which the Chief Justice and Justices Thomas and Alito joined. Justice Kennedy also delivered an opinion with respect to Part IV–B, in which the Chief Justice and Justice Alito joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justices Sotomayor, Kagan, and Gorsuch took no part in the consideration or decision of these cases. -- To discuss the case, we have David B. Rivkin, who is a Partner at Baker & Hostetler LLP.

Today's show features an in-depth interview with Kirstin Beswick and Ben Knight of NorthPod Law UK, often referred to (by us) as the "Opening Arguments of England."  Join all four of us as we discuss media, politics, Brexit, and maybe -- just maybe -- reasons for optimism about the future of politics. Due to the length of the interview, we don't have any other segments, but we do end, as always, with the answer to Thomas Take the Bar Exam Question #33 regarding reasonable suspicion to search an auto after a traffic stop.  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: None!  Have us on your show! Show Notes & Links

1. You can check out NorthPod UK's blog by clicking here.

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On June 26, 2017, the Supreme Court decided Hernandez v. Mesa. In 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, died after being shot near the border between El Paso, Texas and Juarez, Mexico by Jesus Mesa, Jr., a U.S. Border Patrol Agent. Hernandez’s parents, who contend that their son was on Mexican soil at the time of the shooting, sued Mesa in federal district court in Texas, alleging violations of the Fourth and Fifth Amendments. After hearing the case en banc, the U.S. Court of Appeals for the Fifth Circuit ultimately ruled in favor of Mesa, concluding that Hernandez could not assert a Fourth Amendment claim and that Mesa was entitled to qualified immunity on the parents’ Fifth Amendment claim. -- In granting certiorari, the U.S. Supreme Court directed the parties to address whether Hernandez’s parents could even raise their claims under Bivens v. Six Unknown Federal Narcotics Agents, which, sovereign immunity notwithstanding, recognized an implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights. Ultimately, the Court vacated the judgment of the Fifth Circuit and remanded the case. -- In a per curiam opinion, the Court underscored that a Bivens remedy is not available when "special factors counsel[] hesitation in the absence of affirmative action by Congress," and noted that the Court had recently clarified in Ziglar v. Abbasi “what constitutes a special factor counselling hesitation.” The Fifth Circuit, the Court directed, should on remand resolve in the first instance the extent to which Abbasi may bear on this case. The Court acknowledged that the Fifth Circuit did not address the Bivens issue because that court had concluded that Hernandez lacked any Fourth Amendment rights to assert--but the Supreme Court considered it imprudent to resolve such a consequential question without a resolution of the Bivens issue first. Finally, the Court indicated that the Fifth Circuit had erred in finding qualified immunity for Mesa regardless of any Fifth Amendment violation because the Fifth Circuit had relied on facts about Hernandez’s nationality and ties to the United States that were unknown to Mesa at the time of the shooting. -- Justice Thomas filed a dissenting opinion. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justice Gorsuch took no part in the consideration or decision of this case. -- To discuss the case, we have Steven Giaier, who is Senior Counsel, House Committee on Homeland Security.

In today's episode, we discuss a recent court case involving an individual's expectation of privacy while browsing the Internet. We begin, however, with the question so many of our listeners wanted to know:  Is it legal for Ken Ham to sell his Ark Encounter theme park to his own non-profit ministry in a presumed effort to evade taxes? In our main segment, the guys break down a recent court case involving search & seizure over the internet.  Do you have an expectation of privacy for the stuff you do on your computer?  The answer will surprise you. Next, Yodel Mountain returns with an in-depth examination of what it means to be a "thing of value." Finally, we end with an all-new Thomas Takes the Bar Exam Question #33 about search and seizure, coincidentally enough.   Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None!  Schedule us to appear on your show! Show Notes & Links

1.  Here is the article from the Lexington (KY) Herald-Leader on the sale of the Ark Park land.
2. This is a link to the U.S. v. Matish decision discussed during the main segment.
3. The relevant election law statute is 52 U.S.C. § 30121, which prohibits a foreign national from giving any "thing of value" to a candidate for public office.
4. The two cases Andrew discussed interpreting that phrase "thing of value" are U.S. v. Schwartz, 763 F. 2d 1054 (9th Cir. 1985) and U.S. v. Sun-Diamond Growers of California, 941 F. Supp. 1262 (D.D.C. 1996).

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On May 22, 2017, the Supreme Court decided Cooper v. Harris, formerly known as McCrory v. Harris. In this case, the Court considered a redistricting plan introduced in North Carolina after the 2010 census. Plaintiffs argued that North Carolina used the Voting Rights Act’s “Black Voting Age Population” requirements as a pretext to place more black voters in two particular U.S. House of Representatives districts in order to reduce black voters’ influence in other districts. A three-judge panel of the U.S. District Court for the Middle District of North Carolina determined that the redistricting plan was an unconstitutional racial gerrymander that violated the Fourteenth Amendment's Equal Protection Clause because race was the predominant factor motivating the new plan. -- Appellants contend the lower court decision against them erred in five critical ways: (1) presuming racial predominance from North Carolina's legitimate reliance on Supreme Court precedent; (2) applying a standard of review that required the State to demonstrate its construction of North Carolina Congressional District 1 was “actually necessary” under the VRA instead of simply showing it had “good reasons” to believe the district, as created, was needed to foreclose future vote dilution claims; (3) relieving plaintiffs of their burden to prove “race rather than politics” predominated with proof of a workable alternative plan; (4) clearly erroneous fact-finding; and (5) failing to dismiss plaintiffs' claims as being barred by claim preclusion or issue preclusion. -- By a vote of 5-3, the Supreme Court affirmed the judgment of the district court. In an opinion by Justice Kagan, the Supreme Court held that (1) North Carolina's victory in a similar state-court lawsuit does not dictate the disposition of this case or alter the applicable standard of review; (2) the district court did not err in concluding that race furnished the predominant rationale for District 1's redesign and that the state's interest in complying with the Voting Rights Act of 1965 could not justify that consideration of race; and (3) the district court also did not clearly err by finding that race predominated in the redrawing of District 12. Justice Kagan’s majority opinion was joined by Justices Thomas, Ginsburg, Breyer, and Sotomayor. Justice Thomas filed a concurring opinion. Justice Alito filed an opinion concurring in the judgment in part and dissenting in part, in which the Chief Justice and Justice Kennedy joined. Justice Gorsuch took no part in the consideration or decision of this case. -- And now, to discuss the case, we have Hans A. von Spakovsky, who is Manager, Election Law Reform Initiative and Senior Legal Fellow, The Heritage Foundation.

On June 26, 2017, the Supreme Court decided 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 Lutheran). 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 Lutheran’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 Lutheran 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 the suit and a divided panel of the U.S. Court of Appeals for the Eighth Circuit affirmed, concluding that the First Amendment’s Free Exercise Clause did not compel the State to disregard the broader anti-establishment principle reflected in its own constitution. -- By a vote of 7-2, the United States Supreme Court reversed the judgment of the Eighth Circuit and remanded the case. In an opinion by Chief Justice Roberts, the Court held that the DNR’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status. -- Justices Kennedy, Alito, and Kagan joined the Chief Justice’s majority opinion in full, and Justices Thomas and Gorsuch joined except as to footnote 3. Justice Thomas filed an opinion concurring in part, in which Justice Gorsuch joined. Justice Gorsuch filed an opinion concurring in part, in which Justice Thomas joined. Justice Breyer filed an opinion concurring in the judgment. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined. -- And now, to discuss the case, we have David A. Cortman, who was lead counsel in Trinity Lutheran Church of Columbia v. Pauley and is Senior Counsel and Vice President of U.S. Litigation, Alliance Defending Freedom.

On May 30, 2017, the Supreme Court decided Esquivel-Quintana v. Sessions. In 2009, Juan Esquivel-Quintana, who was then 21, pleaded no-contest to a California statutory rape offense after engaging in consensual sex with a 17-year old. California criminalizes “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator,” and for this purpose considers anyone under the age of 18 to be a minor. The Department of Homeland Security then initiated removal proceedings against Esquivel-Quintana under the Immigration and Nationality Act (INA), which allows for the removal of any alien convicted of an aggravated felony, including “sexual abuse of a minor”--though it does not define that phrase. The Board of Immigration Appeals (BIA) denied Esquivel-Quintana’s appeal, concluding that the age difference between Esquivel-Quintana and the minor was sufficiently meaningful for their sexual encounter to qualify as abuse of a minor. The U.S. Court of Appeals for the Sixth Circuit, deferring to the BIA’s interpretation, denied Esquivel-Quintana’s petition for further review. -- The question before the Supreme Court was whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA. -- By a vote of 8-0, the Supreme Court reversed the judgment of the Sixth Circuit. In an opinion by Justice Thomas, the Court held that in the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of "sexual abuse of a minor" requires the age of the victim to be less than 16. Because the California statute of conviction did not fall categorically within that generic federal definition, Esquivel-Quintana’s conviction was not an aggravated felony under the INA. All other members joined in Justice Thomas’s opinion except Justice Gorsuch, who took no part in the consideration or decision of this case. -- To discuss the case, we have Vikrant Reddy, Senior Research Fellow at the Charles Koch Institute.