Category: 3-LawSometimeCommentary

In today's episode, we take a look at President Trump's Supreme Court nominee, Neil Gorsuch.  The main segment was recorded before the announcement and reflects our guess (correctly!) that he would be the nominee, so you'll hear some speculative language. We begin, however, with a question from David Durman who wants to know if a citizen can bring a private civil suit against President Trump while he's in office.  The answer may surprise you! During our main segment, we also discuss Gorsuch's originalism and some of the opinions and dissents he issued while serving on the U.S. Court of Appeals for the 10th Circuit.  Oh, and he also wrote a snottly little editorial for the right-wing mag National Review. After our main segment, "Closed Arguments" returns with a question about Jared Kushner and the anti-nepotism law.  Is Trump violating the law?  The answer will probably not surprise you. Finally, we end with a brand new Thomas Takes the Bar Exam question #9 which is the single hardest question so far, in that it involves real property.  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)! Show Notes & Links

1. This is a link to the Washington Post article referenced by David.
2.  If you read only one thing from the show notes, it should be this sarcastic, nasty little article Gorsuch wrote for the National Review before he joined the bench.
3. Then, if you have the stomach for it, check out Gorsuch's opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016), in which he openly muses in the text of the opinion about repealing Chevron deference.  Still think he's not an activist judge?
4. This is the anti-nepotism law, 5 U.S.C. §3110.

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Today's episode revisits a question we tackled way back in Episode #16, namely, whether President Trump has the authority to enact his Muslim Ban. We begin with an examination of the recent CREW lawsuit seeking a declaratory judgment that President Trump has violated the Emoluments Clause.  Is that lawsuit likely to prevail?  What could it accomplish?  Listen and find out. In the main segment, we consider not only the recent Trump Executive Order restricting the entry of aliens from seven majority-Muslim nations (the "Muslim Ban").  We address questions of legality and constitutionality, as well as break down the recent injunction handed down by the Southern District of New York in response to the ACLU's lawsuit. After our main segment, we turn to a question from a conservative listener about abortion and whether Roe v. Wade was an "activist" decision. Finally, we end with the answer to Thomas Takes the Bar Exam question #8 about a landowner's duties regarding trespassers who accidentally fall into the landowner's murder lake.  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)! Show Notes & Links

1. The CREW lawsuit is here.
2. We reference two decisions on the "political question" doctrine:  Baker v. Carr, 369 U.S. 186 (1962) and Nixon v. U.S., 506 U.S. 224 (1993).
3. We initially discussed the Muslim Ban way back in OA Episode #16, which is worth another listen!
4. The authorizing statute (the "1952 Law") is 8 USC §1182(f).
5. The "1965  Law" is 8 USC §1152(a).
6. In light of those two provisions, we think you can spot the errors in David Bier's op-ed in the New York Times.
7. I wrote a lot on Facebook about the ACLU lawsuit and the injunction handed down by the court on Saturday, so you can check that out if you want the relevant documents.

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Today's episode is part two of our two-part series on pending changes to the Fair Labor Standards Act ("FLSA").  As we've previously mentioned, in 2016, the Obama Department of Labor promulgated new rules requiring that employees who are "exempt" from the FLSA's overtime requirements must earn at least $47,476 per year.  A district court judge issued an injunction blocking those rules from going into effect; that decision is currently pending on expedited review before the 5th Circuit Court of Appeals.  In this episode, Andrew continues his explanation as to why he thinks those rules are going to eventually go into effect and what that means for employers and employees. We begin, however, with a thoughtful question from friend of the show Noah Lugeons regarding how the FLSA's tipping rules interact with Title VII of the Civil Rights Act of 1964.  Is it illegal for employers to rely on tips knowing how inequally tips are handed out to men and minorities?  Listen and find out! After our main segment on the FLSA, we answer a delightfully mad question from Robert Rautio regarding the supposed "right to travel" in the Constitution.  Answering this doozy takes us back into the weird and wonderful world of "sovereign citizens" -- you won't want to miss it! Finally, we end with a brand new Thomas Takes the Bar Exam question #8 about whether a company dumping toxic waste has a duty to warn trespassers.  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)! Show Notes & Links

1. The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees).
2. Title VII of the Civil Rights Act of 1964 begins at 42 USC § 2000e and can be found here.
3. This is the original rule promulgated by Obama's Department of Labor.
4. Here is the judicial injunction blocking the implementation of the rule.
5. And here is the judge's decision not to overturn his own injunction after a motion for reconsideration.
6. Please laugh at -- but DO NOT FILE! -- this suggested "brief" by the weirdos at The Lawful Path who think you can get out of a traffic ticket by filing this nonsense.  (You can't.)
7. And here's another absolutely bonkers list of random string-cites that purports to show that you have an absolute right to travel guaranteed by the Constitution.  (You don't.)

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Today's episode is part one of a two-part series on pending changes to the Fair Labor Standards Act ("FLSA").  As we've previously mentioned, in 2016, the Obama Department of Labor promulgated new rules requiring that employees who are "exempt" from the FLSA's overtime requirements must earn at least $47,476 per year.  A district court judge issued an injunction blocking those rules from going into effect; that decision is currently pending on expedited review before the 5th Circuit Court of Appeals.  In this episode, Andrew explains why he thinks those rules are going to eventually go into effect and what that means for employers and employees. We begin, however, with a listener correction regarding the FLSA and tipped employees.  As it turns out, Andrew mis-spoke on a prior episode and employers must ensure that an employee's total compensation (including tips) meets the federal minimum wage. After our main segment on the FLSA, the much-beloved "Are You A Cop?" segment returns with a myth about President Trump revoking the commutation of Chelsea Manning's prison sentence. Finally, we end with the answer to Thomas Takes the Bar Exam question #7 about hearsay.  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)! Show Notes & Links

1. The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees).
2. The DOL Fact Sheet #15 referred to listener Victoria McNair is here.
3. This is the original rule promulgated by Obama's Department of Labor.
4. Here is the judicial injunction blocking the implementation of the rule.
5. And here is the judge's decision not to overturn his own injunction after a motion for reconsideration.
6. Finally, here's the New York Times story about President Obama commuting Chelsea Manning's sentence.

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Can a group of wrongfully-detained noncitizens sue high-ranking Bush Administration officials for violating their rights in the days following 9/11? That’s the central question in Ziglar v Abbasi, which was argued this week at the Supreme Court. On today’s episode, we hear from Rachel Meeropol of the Center for Constitutional Rights, who represented the former detainees. 

We also consider Lee v. Tam, another big case argued at the high court on Wednesday. It centers on a trademark claim by the Asian-American dance-rock band The Slants. That claim was denied on the grounds that the name was disparaging towards “persons of Asian descent.” Simon Tam joins us to tell the story of his band’s name, and to make the case that the government isn’t equipped to be deciding who is and isn’t using language disparagingly.   

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Can a group of wrongfully-detained noncitizens sue high-ranking Bush Administration officials for violating their rights in the days following 9/11? That’s the central question in Ziglar v Abbasi, which was argued this week at the Supreme Court. On today’s episode, we hear from Rachel Meeropol of the Center for Constitutional Rights, who represented the former detainees. 

We also consider Lee v. Tam, another big case argued at the high court on Wednesday. It centers on a trademark claim by the Asian-American dance-rock band The Slants. That claim was denied on the grounds that the name was disparaging towards “persons of Asian descent.” Simon Tam joins us to tell the story of his band’s name, and to make the case that the government isn’t equipped to be deciding who is and isn’t using language disparagingly.   

Transcripts of Amicus are available to Slate Plus members. Consider signing up today! Members get bonus segments, exclusive member-only podcasts, and more. Sign up for a free trial here.

Amicus is brought to you by The Great Courses Plus, a video learning service that offers lectures on all kinds of topics. Get the first full month FREE when you sign up by going to TheGreatCoursesPlus.com/amicus.

And by Blue Apron. Blue Apron’s meal kits are delivered right to your door, and make cooking at home easy. Get your first THREE meals FREE by going to BlueApron.com/amicus.

Please let us know what you think of Amicus. Our email is amicus@slate.com. Follow us on Facebook here. Podcast production by Tony Field.

---

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Today's episode is part two of our two-part series on whether the Emoluments Clause of the Constitution applies to incoming President Donald Trump. We begin, however, with a listener question from Erik Alsman who asks whether the Supreme Court has the power to declare an amendment to the Constitution unconstitutional.  Along the way we'll learn a little bit about the history of judicial review in the United States. In our main segment, we conclude our interview with Lecturer Seth Barrett Tillman of the Maynooth University Department of Law, exploring Tillman's thesis that the Emoluments Clause does not apply to President Trump because the Presidency is not an "office... under the United States" for purposes of Constitutional analysis.  Afterwards, Thomas and Andrew break down the argument and offer their views on the issue. Next, we air some listener comments and questions regarding the difference between a "barrister" and a "solicitor" in UK law. Finally, we end with a brand new Thomas Takes the Bar Exam question #7 about the admissibility of a hearsay statement during a civil trial.  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)! Show Notes & Links

1. This is the text of Marbury v. Madison, 5 U.S. 137 (1803), in which the Supreme Court articulated -- some say, invented! -- the doctrine of judicial review.
2. Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page.
3. In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause.
4. This 2009 Memorandum from the President's Office of Legal Counsel assumes -- without argument or citation -- that the Emoluments Clause applies to the President.
5. In December of 2016, Norm Eisen, Richard Painter, and Laurence Tribe wrote a paper for the Brookings Institution arguing that the Emoluments Clause does apply to the President.
6. Zephyr Teachout's law review article, The Anti-Corruption Principle sets forth her argument that the Constitution, including the Emoluments Clause, enshrines a fundamental principle to protect against corruption of our highest offices, including the Presidency.
7. Tillman's Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle is here.
8. Teachout's specific response to Tillman on the Emoluments Clause is here.
9. Tillman's reply to Teachout can be found here.
10. Teachout's final reply to Tillman can be found here.

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Today's episode is part one of a two-part series on whether the Emoluments Clause of the Constitution applies to incoming President Donald Trump. We begin, however, by addressing another Trump-related question:  Does a recent report claiming that 50+ Trump electors are ineligible provide the relief of preventing Trump from assuming the Presidency?  We delve into the report and answer the question in a way that may surprise you. Our main interview segment is with Lecturer Seth Barrett Tillman of the Maynooth University Department of Law.  Tillman's thesis is that the Emoluments Clause does not apply to President Trump because the Presidency is not an "office... under the United States" for purposes of Constitutional analysis. Next, we answer a listener question from William Stemmler about officeholders in the line of Presidential Succession who are themselves ineligible to become President.  Could Donald Trump nominate George W. Bush to be Secretary of State?  Find out! Finally, we end with the answer to Thomas Takes the Bar Exam question #6 about pre-nuptial agreements.  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)! Show Notes & Links

1. Here's the Raw Story report on disqualified Trump electors, and the full text of the report can be downloaded from Alternet.
2. Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page.
3. In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause.
4. This 2009 Memorandum from the President's Office of Legal Counsel assumes -- without argument or citation -- that the Emoluments Clause applies to the President.
5. In December of 2016, Norm Eisen, Richard Painter, and Laurence Tribe wrote a paper for the Brookings Institution arguing that the Emoluments Clause does apply to the President.
6. Zephyr Teachout's law review article, The Anti-Corruption Principle sets forth her argument that the Constitution, including the Emoluments Clause, enshrines a fundamental principle to protect against corruption of our highest offices, including the Presidency.
7. Tillman's Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle is here.
8. Teachout's specific response to Tillman on the Emoluments Clause is here.
9. Tillman's reply to Teachout can be found here.
10. Teachout's final reply to Tillman can be found here.

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On November 29, 2016, the Supreme Court heard oral argument in Moore v. Texas. In 1980, Bobby James Moore was convicted of capital murder for the shooting of James McCarble, a seventy-year-old store clerk, in Houston, Texas. Moore was convicted and received a death sentence, which was affirmed on appeal. After a federal court granted habeas corpus relief, a new punishment hearing occurred in 2001, and Moore was again sentenced to the death penalty. His sentence was again affirmed on appeal. Moore sought state habeas relief and argued that, under the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia he was exempt from execution, because he was intellectually disabled. The state court granted habeas relief based on Moore’s Atkins argument, applying a definition of intellectual disability used by the American Association on Intellectual and Developmental Disabilities (AAIDD). The Court of Criminal Appeals of Texas reversed the grant, noting that the Texas legislature had not yet passed Atkins legislation and that the AAIDD definition of intellectual disability diverged from that previously adopted by Texas courts in the wake of Atkins--a 1992 definition used by AAIDD’s predecessor the American Association on Mental Retardation (AAMR), as well as the Texas Health and Safety Code. Moore, the Court of Criminal Appeals held, ultimately failed to establish by a preponderance of the evidence that he was intellectually disabled within the meaning of Atkins, as applied by Texas courts. -- The question before the U.S. Supreme Court is whether it violates the Eighth Amendment and the Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed. -- To discuss the case, we have Kent S. Scheidegger who is Legal Director and General Counsel for the Criminal Justice Legal Foundation.

Today's episode is a mini-masterclass on Copyright.  We begin by answering a question from listener Sue Barnum who asks if a simple list can be copyrighted. After that, we move to the main discussion over the Copyright Act and the "fair use" defense, using as an illustration the recent story where CNN appropriated the graphic from the hit videogame Fallout 4 to illustrate a story about Russian hacking.  Did this violate copyright law?  Or was CNN's activity "fair use" of the game screen? Next, we answer a fun listener question from Damian Kumor about the portrayal of law in media.  What's Andrew's favorite obscure legal TV show?  Listen and find out! Finally, we end with Thomas Takes the Bar Exam question #6 about prenuptial agreements.  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 quoting the tweet that announces this episode along with your guess and reason(s)! Show Notes & Links

1. Here's the text of Feist Publications v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991).
2. This article from cnet explained CNN's use of the Fallout 4 graphic.
3. The Copyright Act of 1976 is codified at 17 U.S.C. § 101 et seq.
4. Learn about the incredibly low-rated cancelled TV show "Justice" at its IMDB page.

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