Advisory Opinions - Eviction Moratorium Faces Legal Challenges

Episode Date: August 5, 2021

In today’s episode, David and Sarah discuss the Biden administration’s flip-flop on extending the eviction moratorium and how it’s almost certainly an unconstitutional violation of the nondelegation doctrine. They then take on the legal implications of Andrew Cuomo’s sexual harassment controversy, with Sarah explaining why Cuomo’s office was a textbook case of a severe and pervasive hostile work environment. Next, our hosts review a ruling from the 7th Circuit upholding Indiana University’s vaccine mandate and discuss how Twitter posturing on vaccines doesn’t always hold up in court. Finally, David and Sarah talk Facebook and antitrust law—something that, according to Sarah, may just be made up anyways. Show Notes: -7th Circuit vaccine mandate ruling -Poland wins first 4x400 mixed relay gold of Olympics Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker, and we really hope you enjoyed our first special August podcast on Monday, where we talked to Avi Loeb, where we heard about aliens and the airing of his grievances against his critics. It was awesome in so many ways, but now we're having a normal podcast there. We're doing law today because there's just so much that's happened. We've got the eviction moratorium. We have the attorney general's report out of New York. We're

going to talk about that from a legal perspective on the Dispatch Pod, which you should listen to. We talked about it much more from a political perspective. We've got a Seventh Circuit vaccine case. We've got problems with the FTC antitrust case against Facebook. And if we've got time, we might talk about why the Ninth Circuit in the state of California might be making your bacon more expensive, if not absent from the shelves. Wow. Okay, that's a lot. So let's start.

Eviction moratorium. What say you? All right. We've gotten so many emails about this. I don't... I love when y'all email. I do have questions on how you thought we wouldn't cover the eviction

moratorium. We got these like, hey, are y'all going to maybe you could talk about this thing that's going on? Yes, obviously. Okay. So first of all, the moratorium that Trump first did back a year ago was extended twice, including by Biden. So we have sort of two administrations doing this. Then it expired. That moratorium expired on July 31st. This is a new moratorium. Now, is it really new? I'll quote Ilya Soman, a professor and guy who writes on Reason blog. New moratorium, same as the old moratorium. Right. So legally, it's not going to make much of a difference,

but let me go over a few things about it. One, where is this authority coming from? So Section 264A authorizes the Secretary of HHS, quote, to make and enforce such regulations as in his judgment are necessary to prevent theHS, quote, to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the states or possessions or from one state or possession into any other state or possession, end quote. So just to put that in some lay terms, the secretary of HHS can do anything to prevent the spread of any communicable

disease that might come from a foreign country. So for instance, there's nothing really that prevents any economic activity from falling under HHS to prevent the spread of the flu next year. So there's no real limitation baked into this statutory language. That, if you read it that broadly, is unconstitutional because there's a non-delegation doctrine saying that basically Congress can't just tell the executive, hey, you be Congress. Yes. Now, like the non-delegation doctrine has been shrunk pretty far. Congress can hand over a lot of its authority to the executive. Think the birth control mandate, right? It says, I don't know, find a way to make birth control possible in insurance and hands that to HHS. HHS then gets to make all the rules to put like muscle on that bone, but they literally can't say like,

go make law. And so if it literally, you know, if you read that section 264A as what it says, it's basically the secretary of HHS just became dictator of the country, like can do anything all the time because everything could result in the transmission of a communicable disease like the cold. And you can do like everything could prevent it. So that's a problem. That's a problem. Okay. So the new ban does limit it to counties with substantial or high COVID-19 transmission rates. So the ban currently applies to 82% of US counties and 90% of the population. So that wasn't a limiting factor. No uh and then another question before we're just going to stay on the legality of this for a second before we get to takings and stuff like that um another question we've gotten is like how fast can this move like as how much of a delay did the biden

administration really buy themselves here so this morning u. District Judge Dabney Friedrich, who had had this case previously, just ordered the Justice Department to respond by 9 a.m. Friday, tomorrow. Right. So this is going to move pretty quickly. Originally, in the case that went to the Supreme Court that she had, she issued her order in May. It went to the D.C. Circuit then. And then the Supreme Court opinion was handed down June 29th. I actually expect this to move more quickly. So regardless, you know, two months would sort of be the maximum. And just to remind folks what Justice Kavanaugh said when this went up the

first time, and they did not have enough votes to stay the eviction moratorium at that point. It was Gorsuch, Barrett, Alito, Thomas said they would stay it. And Kavanaugh wrote, I agree with the district court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium. Okay. So this, by the way, is like the best example I've ever seen of my two axis Supreme Court. Okay. So on the conservative axis, like no authority here. Cool. Delegation doctrine. Check. But now let's go to the institutionalist axis.

Because the CDC plans to end the moratorium in only a few weeks on July 31st, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I voted this time to deny the application to vacate the district court's stay of its order. Okay, so to be clear, on the law and the facts, yeah, this doesn't pass muster, but there's these other factors that he considered. That's the institutionalist line, and therefore, he voted against whatever, against getting rid of the eviction moratorium. Now, the question is,

how did the other judges feel who we didn't hear from? Did Roberts agree with Kavanaugh? We don't know. Or did he actually think the CDC has the power to do this? And then, of course, the three liberals, we don't know from them either. Overall, if we judge from the circuit courts that have looked at this, no question a majority have found that the CDC exceeded its authority. But the D.C. Circuit, for instance, which is a pretty good stand in for the Breyer, Kagan, Sotomayor, Triumvirate, they actually said that the CDC, they believed, did have the authority to do it. said that the CDC, they believed, did have the authority to do it. Although again, having the authority back a year ago in the initial eviction moratorium may feel quite different than summer

of 2021. All right, David, that is the legal primer for the eviction moratorium before we get to some of the other ephemera. What say you? Yeah, i have two thoughts one it really is interesting this is just sort of broadening out from this a bit how many um how shall i say this little um constitutional bombs are found in federal statutes. So this is a remarkable statute granting remarkable authority to HHS. Just remarkable. You know what it reminds me of? It's even more remarkable and breathtaking,

but what it reminds me of is, remember the breathtakingly broad statute granting the President of the United States authority to prevent any alien or class of aliens from entering the country, the nation, basically on his proclamation, an unbelievable congressional delegation of power. I mean, and we went through a lot of litigation and angst over the course of the last several years over the breadth of the president's emergency powers, how many existing states of emergency exist.

And this one kind of puts them all to shame. This is wild. Yeah. I mean, there's just no limiting factor here. And the fact that the government is going to have to argue that there is no limit in order to have the eviction moratorium, that's what's tough. If they could come in and say, yeah, yeah, we know what the text says, but actually how we interpret this, and remember, we defer to their interpretation if it's reasonable, that's Chevron, is here's the limiting factor. But they're going to have

to walk in and say, nope, there's no real limiting factor here at all. And the fact that President Biden said in advance that he did not believe he had the authority to do this, then even after he signed it, said the majority of constitutional scholars say that I don't have the authority to do this. But Larry Tribe says I do. And so we're gonna try it. I find it a little frustrating

and kicking the can down the road because there's no downside at this point for either political party to punt things to the court so that the courts are the heavy. Um, it's sort of like, you know, a mom and dad thing when like dad always gets to be the fun parent and mom's the one who's like, no, I'm sorry. You can't shatter glasses on the kitchen floor and then dance on them. And it was like, oh, mom. And the dad's like, sorry, your mom said we can't. I mean, that's what's happening here.

And then you wonder why the Supreme Court's approval rating is dropping precipitously. Both parties are doing this. And I actually think it's a little short-sighted on the Biden administration because the pressure is then going to ramp up for them to, quote, do something about the Supreme Court. So I hope that Breyer et al. see the game that's being played here and that perhaps they find a way to have a unanimous opinion because I think that would really help in this situation. Yeah, yeah.

Well, you went straight to my second point. The first was the anti-constitutional little bomblets in the federal code. The other one is, once again, what we're doing is we're asking the courts to be the adult in the room here and try to restore some semblance of constitutional order. And it's really bad for the courts. It's really bad for the courts. And that brings us to the familiar villain of Congress. I mean... The actual villain here.

The actual villain. I mean, and this isn't a new villainy. It's old villainy and new villainy. Because the old villainy is this dreadfully written statute. Old villainy, same as the new villainy. Yes, exactly. Brings us to the new villainy because the old villainy is this dreadfully written statute. Old villainy, same as the new villainy. Yes, exactly. Brings us to the new villainy. What's your thought on the takings argument? I don't know that the court will even go there necessarily. Not on this case, but there's other cases that are percolating up on the takings issue.

percolating up on the takings issue. And pre-Cedar Point, that was the union case that the Supreme Court just decided at the end of the term, they were losing these takings arguments because the standard pre-Cedar Point was that unless it took all of the value from your property, the taking was complete. It was not a taking. Post-cedar point? Nope, that rule's gone. So all of a sudden, this takings argument, I mean, slam dunk is probably too strong, but it's pretty close. Also, the temporary nature of it in the midst of like an, oh my gosh, we don't know what's going on pandemic, The temporary nature of it in the midst of like an, oh my gosh, we don't know what's going on pandemic, very different than a August 2021 eviction moratorium in terms of the takingsness of it and how permanent it is, right? When it looked really temporary the first time,

I think that their argument was weaker. It's more than a year. You have lost the value of your property to be able to rent it at all or to even use it. You can't move back into your house and you have to continue to pay taxes on it and do the upkeep on it and all of the other habitability issues. I just don't think it's a close call that it's a taking. Now, damages are going to be harder to prove than I think people recognize. You're going to have to go apartment by apartment, house by house, and show that you would have evicted them, but for how much rent you would have been able to get. It's not just what that person owed you. Whether that person would have been able to pay, but for the eviction moratorium,

or you would have kicked them out, then you would have had some period of time where no one could have moved in maybe because maybe no one had the money to move into your apartment. So anyway, the damages part of this is going to be different than I think people think. It's not just that you get the rent on that apartment for the whole time of the eviction moratorium, and you're going to have to go apartment by apartment. It's a very individualized thing. But the National Apartment Association has filed that lawsuit. Expect it to wind its way up. And post Cedar Point, that case made a huge difference at the exact right time for the National Apartment Association. I don't know. I find the eviction moratorium case pretty interesting. I mean, largely on the non-delegation thing, actually.

And if that comes out that way, that would be sort of one of the few non-delegation cases that we'll have. Now, the problem is it's like so on the extreme, it doesn't really provide a lot of guidance down the road, but I don't know. Pretty fun. Yeah. What i found interesting was kavanaugh says and the quote here is that uh i agree that with the district court that app and the applicants that the centers for disease control and prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium so what i find interesting about that is he did not say that the statute exceeded constitutional limits, but that they exceeded statutory authority. As in he sees a limit there. I'm not sure what he sees that we don't. Where's the limit?

Yeah, exactly. To quote Mean Girls, the limit does not exist. Yeah, exactly. To quote Mean Girls, the limit does not exist. So let's move on to the other big legal story, which has been mainly talked about as a political story. And that is the Attorney General of New York's investigation of Andrew Cuomo. Haven't heard a lot of analysis about this as to whether or not Andrew Cuomo broke the law. There's been a lot of analysis that says Andrew Cuomo behaved horribly. Andrew Cuomo behaved terribly. But did Andrew Cuomo break the law? And that's what we're here to decide, to render our advisory opinion on this very question, Sarah. And of the allegations is the allegation of groping, that he grabbed women.

One woman claims he grabbed her breast, and other women claim that he grabbed them from behind. And so that sort of groping, is that illegal? Is that a violation of criminal law? And then also there is an allegation of a hostile environment harassment, which includes multiple elements. And I'll just run through some of them. So it says one of them, this is from a Charlotte Bennett, that the governor made inappropriate and offensive comments of a sexual nature, talking about potential girlfriends for him, telling her that he would be willing to date someone who was as young as 22, knowing she was 25 at the time, asking her whether she'd been with older men, saying to her during the pandemic that he was lonely and wanted to be touched, telling her that he wanted to ride his motorcycle into the mountains with the women, asking whether she was monogamous and what she thought about monogamy, joking about the size of his hands, telling her that she should get a tattoo on her butt where it could not be seen, asking whether she had any piercings other than her ears, had a lot of communications, talked to her a lot about her experience with sexual assault, conversations that made her feel like he was grooming her. Now, this is not the full statement of all that he did.

So let's just sort of take this in reverse order and deal with the groping stuff last because that's simplest. When you read this, did you think, yep, hostile environment, sexual harassment? Or did you think, not quite? No, textbook, hostile, and pervasive. So the part that is often very hard is the pervasiveness. Hostile is actually not particularly hard to prove. You know, someone makes a comment or grabs your butt or something like that's hostile, but you've also got to prove that it's like pervasive,

that you can't get away from it, that it's constant, that it's every day. That's what the report to me solidified. Um, you already knew sort of the hostile part was going to be true, but, uh, And you already knew sort of the hostile part was going to be true. But Attorney General James did a great job in explaining the pervasiveness.

And that will help them in their civil suits. Yeah. Yeah. This is the kind of thing when you're talking about numbers one, two, three, four, five, six, seven, eight. And then describing things like numerous conversations. There's a little question that this was unwelcome. Now there's a little question that it's pervasive. When you've got it unwelcome, it's hostile, it's pervasive. Then the last part is so that it essentially becomes like a term or condition of employment. And the interesting thing about this, and I wonder what you think about this, I wonder if Cuomo kind of hurt himself a little bit by...

Whatever you're about to say, the answer is yes. I mean, his... Just please, yes. Yes, he did. Yes. By emphasizing how handsy he is and familiar he is and that's just the way i am i'm thinking he went out and said yeah this is pervasive the way i interact with people this is pervasive um yeah because then all they have to do is say it's unwelcome exactly by the way the like i do it to men too is not the defense he thinks it is. No, no. And there is not an, I'm a, I'm just, what, what can I say? I'm just a handsy Italian exception to title seven. Like, you know, this is, this is the kind of thing that you're, I was watching him and

I was thinking, uh, how does this help? Really? I mean, and doesn't everybody know the difference between like cupping Al Sharpton's face in public and, you know, doing that with 25 year old assistants with the door shut? Right. And just the overall difference between doing it to someone at your power level. That's what Al Sharpton is. Al Sharpton is able to shove you away and say, dude, ugh. Whereas your assistant is not.

And I think that's where the pervasiveness in the report also helps the civil lawsuits a lot. Because it's not just that for an individual woman who was working for him, that for her, it was pervasive. Although to be clear, that would be enough. But it is also that it was so pervasive for all of the women that nobody was going to be able to help you. You couldn't go to someone else in the office and say, hey, you know what? He's making me uncomfortable with this. I don't know why me. I think he maybe thinks I'm not uncomfortable. I don't know. Maybe you could say something to him. Maybe you could help protect me a little. That can't happen when he's doing it

to everyone. It was both height and width. Yeah, yeah, exactly. And so in his defense where he says, I couldn't possibly have kissed that woman in my office because my executive assistant was right outside my door. Well, if she's also one of the people who's saying that you were sexually harassing her, what is she supposed to do if she knows that you're sexually harassing that woman in your office? She can't run in and help because she is also being sexually harassed. So his defenses were strange. The photo array was actually pretty damning. It's not the defense he thinks it is to say that he does it to men and women. It's not the defense he thinks it is to say he does it to like a goes to,

I know he didn't say that exactly, but it was sort of implied like, look, I do it to old women. Like, no, that's no, that's not what you think it means. It's one of those things. And every now and then you have this where a politician does something quite intentionally and prepared that you think, where was the dissenting voice in the room? So this is really interesting because I don't know if you've seen this, but the head of the human rights campaign or their general counsel, his last name's David, and one of the chief lawyers at times up, you know,

two of these organizations that are really supposed to be fighting against sexual harassment. Like times up is the me too movements, you know, nonprofit arm. And they were arguably helping Cuomo with his defense. I did not see that. Yeah, so the Cuomo team sent their initial defense letter,

not this latest round this week, but previously where they were trying to undermine and push back on these victims, sent it to some of them and asked for their feedback. Now, I think you can defend them by saying like, look, what the Cuomo team was saying is like, are we attacking these women? Are we phrasing this in a way that is inclusive of women or whatever maybe? And that that's what they thought they were reviewing it for. But certainly that is not what the Cuomo team was asking for their input for.

They wanted the stamp of approval from the Me Too movement and the human rights campaign. Not good. And it just goes to show you, if you're these women, that's how powerful Andrew Cuomo is. Not only is he your boss, not only is he the governor of New York,

he can go to the organization that is meant to protect me to victims and get them to help him attack you. That's actually nuts. That's actually nuts. And it, you know, it demonstrates and I, you know, that you hit the nail on the head with power and because because for him, it's power and also the way he exercised it in a very domineering and intimidating way. And he also became, as we all know, something of a symbol of, and this was the most mystifying thing to me sort of from the beginning of the COVID situation, how he became the symbol of competent, compassionate response to COVID as compared to Donald Trump's crass and incompetent response. When, you know, that should have been blown up and any sense of him as any sort of symbol

of governmental competence should have been blown up for months and months and months. And yet here, you know, some people I think still had some lingering affection for him for who knows why. I mean, remember the Cuomo sexuals? Yeah. Oh my gosh. That was just ridiculous. That term now has a whole new spin to it. was just that term now has a whole new spin to it doesn't it though um but yeah i mean in in the way he exercised power in these stories that came out and and you know we've talked a lot about this because we have an ag report and it's thoroughly researched and you know so it's it really's got a lot of meat on its bones and you can really sort of figure out, you've got a much better sense

of what it was like to work with him than even some of the more comprehensive news reports. But I also think he might be under some criminal jeopardy here, Sarah. New York criminal law has a statute that prohibits what it calls forcible touching, which is defined as when a person intentionally and for no legitimate purpose forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person or for the purpose of gratifying the actor's sexual desire. think that's gonna qualify i mean if you're grabbing somebody's butt or you're grabbing a breath grabbing breasts i pretty sure that's gonna qualify or you're certainly in the neighborhood of

that now do they want to press charges can they prove it beyond a reasonable doubt that's the problem and that civil suit you need to get to 51 and the criminal you need to get to 51%. In the criminal, you need to get beyond a reasonable doubt. That's going to be pretty hard. Yeah, yeah. That's why we, in spite of the allegation existing, we may not see prosecution for it, depending on how much corroboration exists. Although, man, Westchester's DA looks hot to trot on that front yeah i mean this is

this is the interesting thing because he's been so domineering and he's been such an ass for so long that as soon as that armor cracks as soon as the weakness shows there's a lot of people out there with very little affection for him that you might start to see some consequences rather quickly. Yeah, I also think it'll be interesting. Do these women want to go through the hassle, trauma, etc. of a civil suit? We'll see. Yeah. hassle, trauma, etc. of a civil suit. We'll see. And I hope people understand why they may not. And that doesn't mean that they're not

telling the truth. Right. Exactly. Exactly. Alright. Shall we move on? Yeah, although should we take over under on how long it takes them to impeach him? So you think it's going to happen? I do.

Okay. Yeah. I kind of think it does as well. Because what's the downside? It would be different if this were the state of Pennsylvania or Ohio or something where a Republican had a chance of capturing the governor's seat or something in the next election because they could use this as a,

what, no, not really. Not really. And the other thing. Yes, governors do win New York. I know, folks, but like, I think that they feel pretty confident that they can get rid of the bad guy and hold onto this and that it gets them political points. Not, it doesn't lose them much. Yeah. And then the other thing, this is sort of a perfect storm. If you can't have partisan accountability here, can you have it anywhere? Because this is the Democratic attorney general who has launched a broadside against the Democratic governor. The media has exposed problems with him for a long time. But here you have a Democratic elected official who's really sent the torpedo below the waterline here. And so this is, you know, this is about as good a scenario as you're going to find in these United States of America for a party to purge one of its own.

Which, as I said before, like the worst thing that happened to Andrew Cuomo is that he didn't have a Ken star. He had Letitia James. For someone who's so close to Clinton, always tried to emulate Clinton. By the way, he is no Bill Clinton on any metric, actually. But the one time where it really needed to help him was he needed a partisan bulldog that he could really turn into a foil. Ooh, and Letitia James, she ain't that man. And so he never could get a foothold on the narrative of why this is happening to him other than he's a lech. And that's not a great great narrative right so one style guide point okay this sounds weird but i was interested in that in the report itself which is written in you know classic legalese it consistently just said the word but not as a quote but it was, that was the proper anatomical description

was, but. I thought that was like, is that what we do now? I thought it was, you know. Buttocks? Buttocks,

you know, but like, that doesn't sound great either. I mean, I don't know. Is that formal legalese now, Sarah, that if you're going to write a brief

and you're going to describe contact with someone's behind, would you say, but is that what you do? Is that the style guide? I have not given this a lot of thought until you have raised it. But yeah, I'm lacking another clear term. And you want to write for the common man? Yeah, I guess. I guess. That just stood out to me

because that was always kind of a word I wasn't allowed to use. Yeah. Like that was gross. Like, you know, that was not table language. And here it is. Here it is in legal reports now. Like, that was gross. Like, you know, that was not table language. And here it is. Here it is in legal reports now.

The degradation of our culture, Sarah. Speaking of the Star Report. All right, what's next? All right, what's next is we have the Seventh Circuit is not going to enjoin Indiana University's vaccine mandate, which requires students to be vaccinated or, if they invoke a religious or medical exception, wear masks and be tested. This is one of many cases that's winding its way through our legal system. And I think it's worth just pausing for a moment on a couple of points. And this is something that came to my attention through the invaluable Gabriel Malor. Do you pronounce it Malor? Malor? Do you know? I'm

sure you know Gabriel. I do, but I've always pronounced it Malor. Well, Gabriel, if you're listening, please tell us. We're sorry. Mailer, Malor. But literally, if there is any Twitter account you want to follow that is on it for interesting developments of the law in the circuit court level, that's a great Twitter account. It's at Gabriel Malor, M-A-L-O-R. And look, Sarah, we don't need to spend a lot of time on this,

but there's just a couple of quotes that Gabriel pulled and highlighted that I think are worth talking about. You kind of get the impression sometimes when you read some of these challenges to vaccination requirements where judges are puzzled a little bit, like, where are you coming from? Here's a quote, vaccination requirements like other public health measures have been common in this nation. This case is easier than the Jacobson case. This is the one we've talked about a lot, Jacobson v. Massachusetts, that was a vaccination requirement in a smallpox outbreak in Massachusetts in 1905.

By the way, David, do you know who wrote the majority decision in Jacobson? I have forgotten. That would be one John Marshall Harlan delivering the decision for a 7-2 majority. So that's fun. Our nice, wonderful friend, Justice Harlan. Oh, interesting. Fun fact on that case, if you refuse the vaccine, you were fined $5, which is like the equivalent of $150 today. And then you didn't have to take the vaccine. Sort of interesting. You know, that's like, that's certainly punitive. But it's also not so insane.

It's not like, and then you have to pay $10,000 a day that you refuse to be vaccinated. Right, right, exactly uh that's interesting i had not i had forgotten that it was harlan yeah all right so jacobson had a vaccine requirement that lacked any exceptions for adults but indiana has exceptions for people who declare vaccination incompatible with their religious briefs and persons for whom that vaccination is medically contraindicated. And they just need, and he says, they just need to wear masks and be tested. And that really gets to the nub of it, Sarah, because they don't want to wear masks either.

So what we're talking about are people who essentially are wanting to say in the middle of a pandemic that is ongoing in part because people are not getting vaccinated, that they enjoy a legal right to be clear of any sort of not just vaccination requirement, but any sort of mitigation, meaningful mitigation measure, because this was vaccine or masks and be tested. It wasn't vaccine or out of the school, vaccine or wear masks and be tested. And so part of me looks at that and there's one, this is just sort of like basic black letter, constitutional law, public health, blah, blah, blah blah and another part of me is like who do you really think you are here when more than 600 000 people have died more than 600 000 people have died people are desperate for these schools to open. We have a way to make this process safe for people. And we've even allowed you to opt out of the single best public health measure we know of for COVID and move into a lower category of protection for you. And you go, nope, nope. I don't want that either. I don't want that either.

I'm just super confused legally. So you already had to have a vaccine, proof of vaccine for measles, mumps, rubella, diphtheria, tetanus, pertussis, varicella, meningitis, maybe influenza. So wait, the only difference here I would think is that the FDA has not done its full approval process for this vaccine. But to your point, David, then you need to attack the mask and testing regime because you don't have to take the vaccine while still attending the school. Very strange lawsuit that had no chance of success. No chance. And we're going to see these things crash and burn around the country. Very strange lawsuit that had no chance of success. No chance.

And we're going to see these things crash and burn around the country. Because what sounds great when you're posturing on Twitter doesn't sound so awesome when you're moving into federal court and dealing with precedent and a court saying, wait a minute, we're in a pandemic. You're not challenging background, all of the other vaccine requirements. You're challenging this requirement. And you don't even have to take the vaccine. You don't even have to take the vaccine. You just don't want to wear a mask. That's what this is about. Yikes. about. Yikes. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it.

I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best selling frame. That's a-u-r-a-frames.com. Use code advisory at checkout to save. Terms and conditions apply. All right. Now, this is interesting. This is interesting. So we have covered the antitrust case against Facebook from the FTC.

And we've talked about the trial court dismissing the case, dismissing it because the FTC had not been able to offer even sufficient proof of Facebook's market share to get past a motion to dismiss phase. And so the FTC has to go back to the drawing board. It has to present economic evidence. It has to present and make an economic case to the district court regarding Facebook's market share. You just can't claim monopoly. And the word monopoly is not just a synonym for big. It's not a synonym for wealthy. So to just say Facebook has a lot of market value or that it has a lot of market share or that it has a lot of revenue is not the same thing as saying that Facebook is a monopoly. This is a hard kind of case to prove. And at this point, we should say, as longtime listeners and readers know, we are a fact-check partner with Facebook.

And the economist, the lead economist for the FTC's antitrust suit, has parted ways with the agency. Gone out just a couple of weeks before there's a deadline for the FTC to refile its case. As Politico reports, and of course true, the FTC retains the economist's work, but a lot of that work, depending on what state it's in, will have to be redone by a new economic team. And here's what's interesting.

The FTC had paid out $5.7 million to that economist economist consulting firm. And he's out, gone. It turns out that the new FTC commissioner has a sort of a history. Lena Kahn is her name. She has a very aggressive, she's very aggressive in her antitrust um approach and she has um doesn't necessarily like sort of the traditional economics focused approach um so yeah there's a lot of talk in the air about a new aggressive

approach to antitrust but making uh saying you've got a new aggressive approach and making it happen are two different things. I just kind of wanted to pull this little story out and highlight because I consistently am around people who talk now about antitrust laws, if it's a club that can be wielded against country companies you don't like and i'm just it's harder than it looks sarah and i just wondered if you had any thoughts and then i've got a closing observation about it as well give your closing observation because i want to do the bigger antitrust is all made up stuff the bigger what antitrust is all made up my thesis oh that's right yeah that's right okay um yeah you know the the closing observation on this here is that essentially when we're talking about a lot of this um and i've made this point before and i but i want to make it again it's very interesting how right and left are united against big tech

and only in their animosity against big tech. That's the only common thread is the animosity because after that, it all breaks down because what is the reason for the animosity? It starts to diverge pretty sharply. On the left, broadly, when it comes to social media moderation, they have a lot of animosity because big tech is not censoring more, that it's not doing more to get rid of misinformation. On the right, broadly, they want the big tech to be censoring less, to be doing less interference in speech. If you're talking about antitrust and what really bothers people about big tech in an antitrust

concept, so on the left, they're saying, well, these companies are just too powerful and the power itself is the problem. On the right, it is these companies are too powerful, but the power itself isn't the problem, the ideology is. In other words, if Amazon, if Jeff Bezos was the biggest contributor to Donald Trump and the Amazon workforce was just peppered with MAGA hats, there would not be the same kind of animosity because the animosity about big tech from Republicans is almost, the vast majority of it is ideological. It is not really truly connected with size. And I think it's really important to understand when you're talking about the shared American animosity to big tech. Well, yeah, there's animosity,

but it comes from different motivations, profoundly different. All right. So I'm going to just give a brief overview of my thesis, antitrust, colon, it's all made up. A lot of you emailed after I said that several months ago and said, what do you mean it's all made up? Tell us more. Now, part of this is because it's all made up, it is hard for me to really expound on my it's all made up theory. So first, appeal to authority.

on my it's all made up theory. So first, appeal to authority. One lawyer emailed who has his JDMA in law and economics. He says this involved quite a lot of antitrust work. And he agrees with me as someone who does mostly antitrust work. I wanted to say that your comment that antitrust law is made up is completely right. Thank you. So let's back up here. The Sherman Antitrust Act, the thing that this is all based on. Section one, every contract combination in the form of trust or otherwise or a conspiracy in restraint of trade or commerce among the several states or with foreign nations is declared to be illegal. So every contract in restraint of trade is illegal. So every contract is in restraint of trade. That's usually what a contract is, right? If I have a contract with you, David, that you will only provide your widgets to me in exchange for an amount? Well, that's in restraint of trade

because you now can't trade your widgets to someone else because we have a contract for your widgets. But that's not illegal because that's what contracts are. And so the Supreme Court, by the way, Section two, every person who shall monopolize or attempt to monopolize any part of the trade or commerce shall be deemed guilty of a felony. That's the point of going into business. By the way, you don't need to conspire with anyone else. This is just you personally are attempting to monopolize, as in do well in your business. And that, by the way, depends on how we define what your product is.

And that goes back to that case we were talking about out of Colorado, David, where they said that because she is an artist who produces websites, she is a monopoly of one. Well, my God, that violates theerman antitrust act because and that's not even if she is a monopoly that's if she's just attempted to be a monopoly through her wily artwork what so yo-yo ma is a monopoly now of cello playing by yo-yo ma. Okay. So A, the statutory language makes no sense. It would ban all contracts and really end capitalism. So the courts know this. And by the way, this is back in Harlan's day. Harlan is like big up into the Gilded Age and antitrust law and all of that. big up into the Gilded Age and antitrust law and all of that, again, highly recommend the book,

The Great Dissenter. You too can read all about how antitrust law is made up in the second half of the book. But there's this thing that they come up with called the rule of reason. This is the cornerstone of antitrust law. And the rule of reason, and I'm going to paraphrase in my own words here, is, I don't know, does it make sense? Does that seem reasonable? That, my friends, is made up law. When you start with a statute that by its language cannot be enforced or it would apply to everything, therefore you need a limiting principle of some kind, and your limiting principle is called the rule of reason? No, it's made up. Sorry, the whole thing's made up. An entire section of the law, totally out of whole cloth. I reject it. There, David. And so, what I found very interesting

about the, because we've gotten a lot of emails about this, which is great. It's fun to get emails from people who, you know, this is what they do. This is the world in which they live. And if I had to sum up the kind of the dispute, one is if you go back, and I really enjoyed that email because it had had the thing I liked about it was I began with the classic. This is what I do for a living, madam. And you're right. Normally, normally when it begins, this is what I do for a living, sir or madam. The next thing is and you are full of it.

You know, this was like this is what I do for a living and you are correct. So you're going sort of back to first principles to say, look at this statute. This statute here is not, I mean, if you look at it, just going back, similar to the CDC discussion we just had, if you just read the words on the page, my goodness. And by the way, doesn't this show that Congress has had many generations of doing a crappy job and drafting important laws? So the case is, look, this is all made up. Look, if you apply the words on the page, my goodness, what are you going to do? Okay, we're going to do the rule of reason. The case that it's not made up is, well, now that we've done the rule of reason, we have

all of this case law that now defines antitrust and shapes antitrust in specific ways so that it is not the case that I could just walk into court and make any kind of antitrust type argument and have a ghost of a chance of succeeding. That there is a body of case law constructed out of this rule of reason that's real, that it's substantial, that has specific doctrines, et cetera, et cetera, et cetera. And yeah, I get that. And yeah, I get that. But what we're talking about is going back to the actual statutory language, which is dot, dot, dot, my goodness, look at that statutory language. Is that a fair enough way to describe the dispute. I think that's right. And let me just read another question from a listener. Isn't all law essentially made up in the sense that it's human beings agreeing to constructs

they've made up? Well, yeah, but totally, totally see your point. But in this case, the current antitrust law is not based on statutory text passed by congress it is now a judge-made concept this rule of reason that is totally apart from the text because the text itself is either so vague or so all-encompassing as to be legally meaningless. So that's what I mean by made up. Not that like, yes, as we create laws among men, they are made up in some sense, but at least you can follow the laws. In this case, like there's this great story I remember from Wayside Story, Sideway Stories from Wayside School. If folks remember that, I think I'm a very specific age for this series of books, where like a smelly kid

shows up to school and the teacher keeps telling him to remove his coat, but underneath there's just another coat and then another coat and then they remove that coat. Anyway, at the end of the story, there's a rat. That's it. There's just a rat wearing a bunch of coats who they think is a kid. But like, that's what antitrust is to me. You keep removing these judicial opinions on the rule of reason that kept building on what the rule of reason means and how to apply it. And as you keep taking off those stinky coats, what you're going to find in the end is nothing, a statute that's meaningless. Right. So yeah. Right. Well, and the question is, who is making up the law? And when you're saying it's made up, it's all somebody has to write the law in the first instance. And typically, a legislature should write the law in a way that normal, ordinary

people can understand what it means. And in this case, they wrote their behavior there, too. That is the rule of law. Exactly. Exactly. And that is not what happened with this act. So last thing he says, okay, do we repeal our laws, modify our laws, something else? I don't know because I don't actually understand how this could work. That's where antitrust experts who know that they're dealing in a made up universe could maybe actually be most helpful. Let's get rid of the Sherman Antitrust Act, which serves no purpose now anyway. It is the rat beneath a thousand coats. And instead, how could we create a law that actually is targeting its intended problem in our society? I'm very open to that. Of course, I'm against government-made monopolies and government-assisted monopolies and government assisted monopolies and maybe other types of monopolies.

But the Sherman Antitrust Act doesn't get to it. There. All right. So I got a question for you to end on. What is your favorite? What's your favorite Olympic moment so far? favorite Olympic moment so far? I mean, this is just recency bias,

but I loved the shot put last night. That was amazing. It was the curling of the Summer Olympics in the sense that you see these guys and you're like, you look like you're pounding beers and yet you are throwing a 16-pound ball so freaking far. And there was so much joy in what they were doing, and they looked like they were having so much fun,

and Americans won gold and silver. So what more could you want in an olympic sport yeah that that i have to admit that was a lot of fun um i so you know i've got any number of sort of yay america moments i mean some of our uh you know the well seeing simone biles come back out and compete that was great but as far as just sort of this sheer delight, it was Poland winning the 4x400 mixed relay. So I didn't even know that this was a thing, that we had a two men, two women, 4x400 mixed relay. I had no idea that that was in the Olympics. Sh shows you how much i follow track and field but then i'm watching it and i'm thinking okay america america's winning this and then i see poland is in the finals i'm thinking poland i mean poland track power poland and then at the very end it's like here comes poland and they won this and there's this still photo of the guy, their anchor, runner crossing the finish line. And the look of absolute sheer exuberance on his face is just like,

do you remember the old ABC News wide world of sports, the thrill of victory? Yeah. Do you remember the old ABC News wide world of sports, the thrill of victory? Yeah. That's the thrill of victory right there. So I'll put in the show now and put in the show notes the story of the win. And it's got that picture. And you just got to take a look at that. That was fantastic.

But yeah, I'm with you on the shot put. That was a blast. When candidates ask me for advice on running for office, one of the things I tell them is don't go hire the best in every category. That's actually a recipe for disaster. And it's, I think, what the Romney 2012 campaign did, for instance. It had the best pollster, the best... I'm not trying to call out people by name, but for all... Media buyer and all these things like best consultants in every category, but didn't actually have the best team and the best, um, you know, foundation to advise the client,

the candidate and run a campaign. That is the problem precisely with us relays. That is the problem precisely with U.S. relays. So as they mentioned last night, the Chinese pick their four people like a year ago and all those four people do is practice handing off a baton to each other for a year. Whereas our guys are picked like a week ago and are like, hey dude, hope you can catch this baton. And lo and behold, every four years, they don't.

And so our guys didn't even make the final, the semifinal. They didn't even make the semifinal in the men's 100 relay. Heartbreaking. The interview afterwards broke my heart because it's not their fault. They're incredibly talented. But it's the same thing we do with our Olympic basketball team. We just pick some good players and then throw them together instead of actually having a team.

And it makes it less fun to watch, honestly. Yeah. Well, I will say this. It makes it a white knuckle experience to watch because you're just waiting for the disaster. I remember it was several years ago when there was this incredible rivalry between the U.S. men's 4x100 relay and France. France had this 4x100 relay team that was ridiculously good.

But I don't know that any one of their four could make a 100-meter final. But they were just absolutely perfect in their handoff and the relay. And with the men, it was our guys is like rocket fuel. And then they get to the handoff is like here. No, wait, no. Hey, oh crap. And yeah, it's, it's awful to watch because, you know, you really want the guys to win. They're incredibly ridiculously talented.

And then they dropped the baton. Yep. Yep. And I didn't know that that could be analogized to the 2012 Romney campaign. Oh, it's so exactly the same. Yes. Thereby, thank you for ripping open that old wound, Sarah. You're welcome.

You're welcome. On that dreadful note, we shall end the Advisory Opinions Podcast. Please go rate us on Apple Podcasts. Please subscribe. Please check out thedispatch.com. And we'll be back with a special episode on Monday, and we will talk to you then.