Versus Trump

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Latest Episodes:

The Fiduciary Rule Comes And Goes May 24, 2018

Show notes

On this week's episode of Versus Trump, Easha, Charlie, and Jason discuss the Fifth Circuit's recent decision striking down the so-called "Fiduciary Rule" that would have required those who sell retirement investment products in 401(k) plans to act in the best interests of their clients. As usual, you can listen online below, and subscribe via this page with any podcast player or here in iTunes.

They start the episode by discussing how Congress has regulated the management of retirement accounts, and they explain why many employees receive advice on where to put their retirement savings from advisors that have a potentially hard-to-discover financial incentive to sell employees certain high-cost products. They then discuss the Obama Administration's efforts to change this by classifying many more investment advisors as fiduciaries that would be required to look out for their clients' best interests. The trio then discuss the recent ruling by the Fifth Circuit that struck down the rule. That leads into a discussion of the Trump Administration's somewhat unusual position in this litigation: the Administration defended the rule on appeal, but have since then failed to appeal the adverse ruling, and they seem unlikely to take the case to the Supreme Court. That segues into a discussion about the role of the executive branch in enforcing the law and defending laws and rules in court—even those, like here, that the Administration might not like as a policy matter.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com You can buy t-shirts and other goods with our super-cool logo here.

And, of course, we'll be live and on stage at the ACS National Convention on the afternoon Saturday, June 9, at the Capitol Hilton! You can find our more information and register here. More details next week about who are our special guests will be.

Notes

You can find our more information and register here for the ACS National Convention. Join us!
The Fifth Circuit's ruling is here.
Jason mentioned a Take Care blog post by Danielle D'Onfro. That's here.
The States' motion to intervene is here. It was denied here.
Here is an article that Easha mentioned about the dispute in the Department of Labor over this rule.
The White House issued this memo to the Department of Labor asking it revisit the rule.

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Preventing The Prevention Of The Teen Pregnancy Prevention Program May 17, 2018

Show notes

This week, Easha, Charlie, and Jason discuss a series of recent rulings that have stopped the Trump Administration from revoking federal grants to entities that have been working to reduce teen pregnancy.

They start the episode by discussing the creation of the Teen Pregnancy Prevention Program in 2010, and then they explain how the Trump Administration last summer stopped renewing grants that were supposed to last until 2020. They then analyze the recent rulings that have found the Trump Administration's actions to have been arbitrary or contrary to the rules of the Department of Health and Human Services. That leads to a larger discussion about the ability of new administrations to reverse rules and policies of prior administrations.

The episode ends with a round of Trump nuggets about lawyer misconduct and new—and then revoked—rules from the Bureau of prisons. And then they turn to listener feedback and respond to several listener questions and comments.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com You can buy t-shirts and other goods with our super-cool logo here. And, of course, we'll be live and on stage at the ACS National Convention on the afternoon Saturday, June 9, at the Capitol Hilton! You can find our more information and register here. More details to come on who are our special guests will be.

Notes

You can find our more information and register here for the ACS National Convention. Join us!
The Maryland decision can be found here. The D.C. decision is here.
Reveal has done excellent reporting on this issue. One recent article is here.
Jason mentioned this article at NBC News that details how political appointees who are abstince-only advocates overruled career staff at HHS on this issue.

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So, What's New? May 10, 2018

Show notes

On this week's episode of Versus Trump, Easha and Jason reveal their big announcement: we're doing our first ever live show! We'll be on stage on the afternoon of Saturday, June 9, at the ACS National Convention in Washington, DC. After that excitement, they get into a handful of updates about cases about auto emissions, HUD programs, the ban on military service by transgender individuals, and more.

First things first: we'll be live and on stage at the ACS National Convention on the afternoon Saturday, June 9, at the Capitol Hilton! You can find our more information and register here. More details to come on who are our special guests will be.

Then, Easha and Jason get into recent developments. Jason mentions a new suit by California and other states about auto emissions standards, and he says the Trump Administration may have a tough time defending the suit because of their heavy reliance on industry data. Easha then mentions a new lawsuit contending that the Department of Housing and Urban Development unlawfully suspended a requirement that local and state governments document their efforts to combat segregated housing patterns as a condition of receiving HUD funding. The list then goes on, as Easha and Jason discuss the status of the ban on military service by transgender individuals, what's going on at the Supreme Court, and a new filing in an Emoluments Clause case.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com.

Notes

You can find our more information and register here for the ACS National Convention. Join us!
The auto emissions rule that California and other states are challenging is here. A useful post on The Verge dissecting the rule is here.
The HUD lawsuit Easha mentioned is discussed here at the website of one of the counsel to the Plaintiffs. That page also links to court filings.
The AP reported on recent deveopments in one of the transgender ban cases here.
Joshua Matz blogged about the filing of the opening brief in the Second Circuit Emoluments Clause case here.

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The Great Marijuana Debate May 03, 2018

Show notes

This week, Easha, Charlie, and Jason continue their investigation of the relationship between federal and state law by debating the Trump Administration's reversal of Obama-era guidance about marijuana enforcement.

The three start the conversation with a recap of the law with respect to recreational marijuana. While possession, sale, and distribution of the drug is illegal under federal law, several states now have in place comprehensive regimes permitting the sale and regulation of marijuana for recreational use. The Obama Administration issued several memos that indicated to states that it would not enforce federal law against individuals and businesses that complied with state law. But, in January, the Trump Administration revoked that guidance. That leads to a discussion of whether state laws permitting recreational use of marijuana are preempted by federal law, and whether the states should be permitted to continue operating these schemes. The debate concludes with all three acknowledging that this is a difficult legal question—and Jason even admits that his mind has been somewhat changed by points that Charlie and Easha made.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. And you can buy t-shirts and other goods with our super-cool logo here.

Notes

The Sessions memo from January 2018 that rescinded the Obama-era guidance on marijuana enforcement is here.
At the Marijuana Law, Policy, and Authority blog, Robert Mikos discusses the takeaways from Sessions' 2018 memo here.
Here is a very helpful Congressional Research Service Report that outlines the arguments on either side of this question.

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Trump Versus California Apr 26, 2018

Show notes

This week, Easha, Charlie, and Jason discuss the Trump Administration's lawsuit against California. The lawsuit seeks to prevent the state from enforcing three new state laws that the federal government says will undermine enforcement of immigration law.

The three start the conversation with a summary of the law of federal preemption, which provides that federal laws must trump—no pun intended—conflicting state laws. They then proceed to analyze each law at issue. The first California statute, which is called the “Immigrant Worker Protection Act,” prevents private employers in California from voluntarily cooperating with federal officials who seek to ensure compliance with federal immigration laws in the workplace. The trio agrees this is the most vulnerable law, but they disagree about whether California might have viable defenses. They then discuss the two other laws, and Jason maintains his general pro-preemption stance while Charlie and Easha think California is on fairly strong legal ground.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. And you can buy t-shirts and other goods with our super-cool logo here.

Notes

The Complaint and the federal government's motion for a preliminary injunction are all here. California's brief is due on May 4, with a hearing set for June 20.
Easha mentioned a post by Ilya Somin about whether there is a legal principle that states cannot discriminate against the federal government. That's here.
Vox has this useful article with some quickie reactions to the lawsuit.

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The View From 10,000 Feet (Joshua Matz Speech) Apr 19, 2018

Show notes

On a new episode of Versus Trump, we bring you a podcast version of the speech that Take Care publisher Joshua Matz gave at Harvard Law School on April 3, 2018. The talk, titled "The Legal Resistance to Trump," describes themes, achievements, and limitations of various lawsuits challenging the Trump Administration and its policies. Joshua's forthcoming book, which is co-written with Laurence Tribe, is called To End a Presidency: The Power of Impeachment, and it will be released on May 15. As usual, you can listen online below, and subscribe via this page with any podcast player or here in iTunes.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. And you can buy t-shirts and other goods with our super-cool logo here.

Links and Notes

A video of Joshua's talk can be found here.
Thanks to Joshua and to the Harvard Law Forum and Lark Turner for allowing us to use the audio of this talk as a podcast.

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Movin' Right Along Apr 12, 2018

Show notes

In this week's episode, Jason and Charlie revisit two lawsuits in which the Plaintiffs have recently successfully fought off motions to dismiss and been allowed to proceed. And in a new installment of "Sanctions Corner with Uncle Charlie," Charlie answers questions about the FBI raid on the office of Trump lawyer Michael Cohen.

Jason and Charlie start the discussion by discussing DC and Maryland v. Trump, an Emoluments Clause case. They discuss the district court's recent decision holding that the state plaintiffs there had standing to proceed, and they explain why parts of the decision make good sense, while other aspects are a bit harder to understand. They then move on to the New York state court case of Summer Zervos v. Trump, in which former Apprentice contestant Summer Zervos has sued Trump for defamation. A trial court judge in New York recently denied Trump's request to kick the case out of court on the grounds that Zervos could not litigate in state court against a sitting President, and Jason and Charlie have good things to say about the court's concise and elegant opinion. Finally, Uncle Charlie—always on the lookout for lawyer misconduct—answers a few questions about the recent FBI raid on Michael Cohen's office, even though he has to rely on press reports because the search warrant has not yet been made public.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com. And you can buy t-shirts and other goods with our super-cool logo here.

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The Citizenship Question Apr 05, 2018

Show notes

On a new episode of Versus Trump, Jason and Easha discuss lawsuits challenging the Trump Administration's decision to ask a question about citizenship on the 2020 census.

Jason and Easha start the discussion by explaining the purpose of the decennial Census and the history of the Census Bureau's collecting information about citizenship. They then discuss how and when the Trump Administration decided to add a question about citizenship on the next Census, and they explain why the addition of this question may result in a substantial undercount of people in areas with high immigrant populations—and they explain why that would be bad for diverse states like California. That leads to a discussion of the merits of the two claims in the lawsuits: that the Administration's action violates the Enumeration Clause, which requires an accurate count of all "persons" in the U.S., and that the government's actions are arbitrary and capricious. They also wonder why the challengers have not added a third claim explicitly alleging discrimination on the basis of race or national origin.

You can find us at @VersusTrumpPod on twitter, or send us an email at versustrumppodcast@gmail.com.

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Voting Wars and Justice Scalia, with Rick Hasen Mar 29, 2018

Show notes

On a new episode of Versus Trump, Jason talks to Rick Hasen, a leading election law scholar and purveyor of the Election Law Blog, about what's going on at the voting booth, possible campaign finance law violations by both Trump and Clinton in the 2016 cycle, and Justice Scalia, who is the subject of Rick's new book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.

Jason and Rick start the discussion by looking at this Administration's record on voting rights, including its positions on Voter ID laws and voter registration laws. They then discuss possible campaign finance law violations in three "scandals" arising out of the 2016 presidential campaign cycle: the Trump campaign's contacts with Russians, the Clinton campaign's funding of the Steele dossier, and Trump's attorney's $130,000 payment made in October 2016 to Stormy Daniels as part of a non-disclosure agreement. The discussion concludes with a close look at the jurisprudence of Justice Scalia. Rick explains why he thinks Scalia was a justice full of contradictions, and why Scalia's decisions were not necessarily as consistently guided by neutral principles as the Justice often claimed they were.

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Can The Government Execute Drug Dealers? Mar 22, 2018

Show notes

This week, Easha and Charlie take a quick gander at Donald Trump's proposal to seek the death penalty for drug dealers.

For starters, Easha and Charlie walk through what the Constitution has to say about imposing the death penalty (hint: surprisingly little). They then explain the concepts of felony murder and conspiracy, two theories under which a drug dealer might be found guilty of murder. Charlie gives a quick overview of what the federal death penalty statute already authorizes, and they conclude by deciding that the President probably didn't mean what he said and, in any event, the specter of someone being executed merely for selling opioids would probably lead to the Supreme Court stepping in.

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