Ruchit is in India. AJ is in Texas. Tom is in California. Can we still have an episode?

Everything We Know about the Previous Episode(s)

“Passengers on a domestic flight deplaning in New York were asked to present ID by Customs and Border Protection agents—a likely unenforceable demand that nevertheless diminishes freedom”

• What is a Terry stop?
• Pretextual stops are constitutional.
• Mitt Romney is for self-deportation.

538’s Harry Enton also wonders whether John McCain is really a Maverick. We assume this article was written in response to our podcast, Everything We Know about John McCain.

Tom Udall has a plan to confirm both Gorsuch and Garland. Probably cribbed from West Wing, Season 5, episode 17.

The three justices that Udall proposes should retire:

• Kennedy
• Ginsberg
• Breyer

Esquivel-Quintana v. Sessions

We take about this case, which before the Supreme Court currently. We also make predictions about this case.

• Chevron Deference.
• The rule of lenity.
• Slate Amicus interview with counsel for Esquivel-Quintana
• Judge Gorsuch thought’s on Chevron Deference.

I don’t like the racism

George W. Bush says that he doesn’t like the racism.

• Bomb threats at Jewish Community Centers
• Warned to leave, the Kansas shooting victim refused to abandon the “country he loved,” his wife said, according to the Washington Post
  • The 911 Call: “I’m a bartender at Applebee’s and I had this guy come into the bar and he told me that he had done something really bad and he was on the run from the police, and he asked if he could stay with me and my husband and he wouldn’t tell me what he did,” the 911 caller continued. “I kept asking him. He said he would tell me if I agreed to let him stay with me. I finally got him to tell me and he said that he shot and killed two Iranian people in Olathe and I looked it up on the news and there was a shooting three hours ago.”
• Obama says that sometimes we take two steps forward, and one step back.

As an aside, the Onion reports that children are sociopaths.

• The New York Times letter from Dr. Allen Frances, who was the chairman of the task force that wrote the DSM IV.
• The Goldwater rule

What is structural racism?

• Morgan Spurlock Inside Man

Everything We Know about this Supreme Court

Here, we make predictions about what the Supreme Court will do. We record our predictions and hold ourselves accountable.

• Endrew F. v. Douglas School District
  • The Individual with Disabilities Education Act
• Goodyear Tire & Rubber Co. v. Haeger
  • The different standards of reviews that courts have.
• Lewis v. Clarke
  • What is sovereign immunity?

Sidebar

In this segment, we offer random, unrelated tidbits.

• AJ: Ben Eller on YouTube: What if Metallica’s Kill em All album was all major key?
• TJ: Atlas Obscura, curious and wondrous travel destinations.
• RKS: the Gene: an Intimate History by Siddhartha Mukherjee.
  • Gregor Mendel

Today we discuss everything we know about guns and then some stuff we know about Planned Parenthood. We start with some follow up from Episode 4: Everything We Know About John McCain.

• Jim Jeffords of Vermont
• Chief Justice Marshall’s opinion on the prosecution of Aaron Burr for treason

The Right to Bear Arms

The Fourth Circuit recently issued an opinion holding that assault weapons are not protected by the Second Amendment.

• Slate article on this case
• The M16 vs. the AR-15
• The court analyzes these cases using one of three standards:
  • Strict Scrutiny, is often thought of as strict in theory, fatal in fact.
  • Intermediate Scrutiny, including gender discrimination
  • Rational Basis Review, which is how the court reviews laws affecting same-sex relationships
• As an aside, what are law clerks?
• One of the most common ways criminals get guns is using straw purchases.
• Women are buying more guns.

Reproductive Rights

In the second part of the show, we discuss a case where Judge Sam Sparks issues a preliminary injunction barring Texas from removing Planned Parenthood from Medicaid.

• The original Planned Parenthood undercover video controversy and the fact check
• Time published an article on this case.
• According to the Austin Chronicle, the philosophy professor whose testimony failed to impress Judge Sparks was actually testifying in support of a separate state action to require funerary services for aborted fetuses.

Aftershow

The Third Amendment has been applied to the states through the Fourteenth Amendment by the Second Circuit in Engbloom v. Carey.

In this episode, we talk about everything we know about Senator John McCain.

Supreme Court Predictions

But first, we have a short Supreme Court Predictions segment. In it, we examine the Expressions Hair Design v. Schneiderman case. The issue is:

Does the New York General Business Law’s prohibition of credit card surcharges violate the Free Speech Clause of the First Amendment or the Due Process Clause of the Fourteenth Amendment?

• The Lochner era
• Eric Schneiderman is the current New York Attorney General
• Strict Scrutiny is thought to be strict in theory, but fatal in fact. But rational basis is a much more lenient standard that favors the Government regulation. This framework was created by the most famous footnote, Footnote Four, in Carolene Products

John McCain: Hot or Not?

John McCain gives a speech in Munich; or if you’d rather watch the video.

• William Faulkner’s speech
• John McCain’s tasteless joke about Chelsea Clinton
• McCain’s voting record
• John McCain says he will vote for Rex Tillerson when pigs fly. But then pigs flew and McCain voted for Tillerson.
• FiveThirtyEight: Tracking Congress in the Age of Trump
• New York Mag profile on John McCain
• John McCain promises to block any Hilary Clinton Supreme Court Nominee
• LA Magazine publishes an article: John McCain utterly annihilated the Trump agenda in 4 minutes
• When we’re discussing a “Jim Johnson” switching parties, Ruchit and AJ are actually thinking of Jim Jeffords of Vermont. In 2006, Sen. Jeffords retired from Congress, and his Senate seat was won by Bernard Sanders.

After Show

In the after show, we talk about Mike Flynn & Treason:

• Washington Post broke the news about Mike Flynn. The Post also has a timeline of the events surrounding the Flynn scandal.
• Chief Justice Marshall’s opinion on the prosecution of Aaron Burr for treason (Note: This was actually a Circuit Court opinion, not a Supreme Court opinion.) For the relevant Supreme Court precedent, see Ex Parte Bollman.

The United States Court of International Trade has ruled that Snuggies are blankets, not priestly vestments. As a result, import tariffs are reduced by nearly half. The full opinion is available here.

Is a tomato a vegetable or a fruit?

Supreme Court Predictions

In this section, we take three random cases that are before the Supreme Court and predict the outcome. We are holding ourselves accountable by keeping track our predictions on our website.

• Lee v Tam (whether the government has to trademark something that is disparaging?)
  • Walker v. Texas Division, Sons of Confederate Veterans, Inc.
• Nelson v. Colorado (whether the government has to give the money back to an individually wrongfully convicted?)
  • Civil Forfeiture is when law enforcement take money/property from people suspected a crime without always charging the owners a crime.
• Midland Funding v. Johnson (whether you can sue under the FDCPA when someone files a barred claim in a bankruptcy proceeding.)

Everything We Know About Secrets

Trump conducting foreign affairs in public at Mar-A-Lago, via CNN and Politico

• John Cook from the Intercept on how they handle secret documents.

Border Searches

Finally, everything we know about border searches.

• Everything We Know About the Ninth Circuit
• Ninth Circuit Order [pdf].
• New York Times article on border searches and Ars Technica article on border searches
  • Department of Homeland Security paper outlining its policies [pdf]
  • Payton v New York, where the New York statute authorizing warrantless arrests and searches is struck down.
  • U.S. v. Flores-Montano, where customs officers did not need reasonable suspicion at an international border to remove, disassemble, and search a vehicle’s gas tank for illegal material.
  • U.S. v. Montoya de Hernandez, the Supreme Court held that a traveler can be detained at an international border for four days constitutionally.
  • Tom on when police can stop, detain, or arrest you.
• Riley v. United States [pdf], where the Supreme Court says that cell phone searches are not incident to arrest.
• In Colonial America, Writs of Assistance created tensions between the colonials and the British.
• Persian Gulf naming dispute

After Show

Anyone can be Speaker of the House, including Hillary Clinton.

Bonus Content: where we review & unbox the Audio-Technica ATR2100-USB Cardioid Dynamic USB/XLR Microphone.

• Abrams nixed
• 9th Circuit Order
• Trump later tweeted: “LAWFARE: “Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute.” A disgraceful decision!”
  • Trump is refering to this Lawfare article
• Eric Posner said: “Trump’s tweets will haunt him for all national security actions going forward, interfering even with legitimate gov action”