Advisory Opinions - Mootness and Munsingwear

Episode Date: January 25, 2021

The Supreme Court “munsingweared” several cases in its Monday orders, including two Trump emoluments cases. After a deep dive into the legal history of munsingwear precedent—a modern mootness doctrine—David and Sarah discuss a Texas deportation case filed by Texas Attorney General Ken Paxton, pretrial release conditions for those who were arrested during the January 6 Capitol siege, and a Supreme Court original jurisdiction case. A special guest also joins the show to chat about Wendy’s chicken sandwiches! Show Notes: -United States v. Munsingwear, Inc. and Trump v. Citizens for Responsibility and Ethics in Washington. -“The Great Chicken Sandwich (Meal) Wars, Settled” by Sarah Isgur in The Dispatch. -Take our podcast survey Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. We've got a unique pod today, a unique pod. We're going to talk about Munsingware, which some people might know of as underwear, but it has another meaning. So we're going to talk about Munsingware. We're going to talk about a Texas deportation case filed by the Attorney General of Texas, Ken Paxton. It's the first of what will undoubtedly be a tsunami of lawsuits filed against Biden administration executive actions. This one's filed in Texas. It's the first one.

It's got an interesting twist to it. We're going to talk a little bit about pretrial release conditions on those people who stormed the Capitol. And we're also going to talk about a Supreme Court original jurisdiction case. And if that isn't enough, and already you're on the edge of your seats, if that isn't enough, And already you're on the edge of your seats. If that isn't enough, we're going to talk to the person who was, Sarah, what? The number, former number two marketer and no, not marketer, number two something in all of Wendy's. Yeah, I'm very excited about this. In all of Wendy's.

This is, is this a promotion from comment board to advisory opinions podcast? I mean, at least in our back and forth, he was very honest about Wendy's pluses and minuses, their consumer research, and what I found to be the most fascinating little fact nugget about red onions. Interesting. Interesting. nugget about red onions. Interesting. Interesting. So this is just an example of how if you're really ridiculously impressive in the comments on the dispatch, then the sky is the limit. I like experts, David. I love people who are the best at what they do and have really spent the

time to learn their craft. And that craft can be dinosaurs. That craft can be board games. And as we will learn today, that craft can be quick service restaurants. It's QSR. That's what they're actually called in the biz, David. Oh, I'm so all about it. In the green room before the podcast, I talked about how I had a friend who used to run McDonald's Europe. And I remember one evening, I was at a retreat. It was supposed to be like a Bible study retreat. And we were talking in one afternoon, and I grabbed him and talked meta fast food strategy for hours. And it was one of the most fascinating conversations of my life.

But we're holding that to the end. We're going to begin with a little SCOTUS stuff. What should we begin with? I kind of want to go Texas. Munsingware, David. Munsingware. The Supreme Court today issued its orders for the day. They don't have another conference until February 19th, I think.

So this has to hold us over for a while, David. You are an anaconda out in the Amazon. You need to eat this whole capybara and enjoy it because it's going to have to last you. So there was actually very little in today's orders and opinions. There was one opinion that was digged, as we've talked about before, what that term means. And the thing that's capturing a lot of attention this morning, though, is there was a lot of Munsingware vacatur everywhere. Munsingware you, and you get a Munsingware, and you get a Munsing wear. So two of the cases that got Munsing wear were Trump's emoluments cases. These were the cases brought by one was brought by crew citizens for responsibility and ethics in Washington. And one was brought by DC and the

state of Maryland. But both were the same idea. This was that the president had violated the emoluments clause of the Constitution, which says that prohibits the president from accepting, quote, emoluments from foreign and domestic governments. It reads, no title of nobility shall be granted by the United States and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present emolument, office, or title of any kind, whatever, from any king, prince, or foreign state. There's a domestic one as well, but I don't think we need to read that. The point is, they were arguing that his hotel properties, et cetera, when foreign entities would stay there and foreign governments that he was violating the emoluments clause. Lo and behold, a couple courts agreed with that argument.

But as these things were making their way up to the Supreme Court and pending there, hanging out, one from the Fourth Circuit and one from the Sixth Circuit. The Supreme Court wasted no time, David. Yep. In their first set of orders since Biden's inauguration, they Munsing-weared these. So what does that mean? Munsing-wear means, we'll get to what the actual case is, but it's this 1950 precedent about mootness. But it's not just that the case is moot now, which would be interesting on its own, although entirely predictable. He's no longer the president. Therefore, he can no longer violate the emoluments clause. The issue in Munsingware is that the lower court opinions disappear because the president basically now

can't appeal them because of mootness. It would be like unfair. It's an equitable doctrine, so it's not mandatory. But the idea is it would be unfair to leave this adverse opinion on the books when then because it's moot, you can't advocate and be victorious at the Supreme Court or even back at the lower court again. The Supreme Court has not given the circuit courts any room to maneuver here. They have ordered the circuit courts to dismiss the case as moot and vacated their judgment. So that's not to say it like disappears off the internet. Obviously you can still go look at the fourth circuits opinion, but it has no precedential value whatsoever. Uh, although David one wonders whether down the road, you and I might be talking

about some litigant, uh, citing those for their sort of persuasive, interesting tidbit arguments, citing those for their sort of persuasive, interesting tidbit arguments, etc. Because again, they certainly still live on the internet. They live in the F3rd. But Munsingware, this fun little thing, it doesn't come up all that often. Yeah. And so this was a fun day. It was Munsingware day at the court, David.

Well, and if it lives on the internet and it lives on F3rd, it's only mostly dead. I mean, it's only mostly dead. Someone will use it, try to use it, obvious, probably with very little success. I think there's a practical application here as well. And that is if you really want to know what the emoluments clause does and means and whether the Supreme Court will even really take it up, you're kind of going to have to have a two-term precedent. You're just going to kind of have to have a two-term precedent. This issue is going to work a little too slowly through the court system. It's not going to be the kind of injunction heavy case. It's going to rock it all the way up. And Munsing Ware prevents,

means it's once again one of those doctrines that prevents the court from providing, in essence, an advisory opinion. That's right. You got to go to this podcast for those. Super pumped today because I learned for the first time that Munsing Ware, the 1950s case,

is Munsing Ware, the underwear company. It was a price-fixing scheme case, David. Interesting. Yeah. So it's an underwear company out of Minnesota. And following World War II, the United States sued Munsingware for a price-fixing scheme. I have questions. The case itself does not really include any of the, like, the opinion itself at the Supreme Court doesn't really include any of the factual background that got it there. It's really just about this, like, vacatur doctrine. But basically, while the case was on appeal, the commodity was decontrolled.

And so the case was mooted out. And then the question was what happens to the appellate court opinion since it was pending at the Supreme court, there are, and basically the Supreme court said in general, when that happens and a case becomes moot on its way or pending a Supreme Court decision, the court should reverse, vacate the judgment below and remand with directions to dismiss to the lower court. But there are exceptions, David. The big exception. Let's hear them. The big exception is if you're the one who mooted the case. And right like this,

it makes sense. You can't basically benefit like you can't moot your own case for the purpose of getting rid of a circuit court opinion that you don't like. Right. But when it's your, like when it's your fault is like a big question. That is the still out there 70 years later, muncing where zombies wandering around is, uh, when it's your fault. So for instance, uh, like, especially in a government party, you know, if you're the president, but Congress passes a law, well, you're the government, so you're the one who vacated it,

or who, sorry, mooted it, but like you, the president, didn't moot it. Yada, yada. You see the problem. None of that's applicable here, though, because President Trump did not, as we've so learned, want to leave office.

Therefore, this is squarely within Munsingware. And David, tell us about Munsingware underwear. What do you think about it? I don't know anything about Munsingware underwear. I just know that it's underwear. And I'm incredibly curious how underwear can be so vital that there could be price-fix and conspiracies and scandals surrounding underwear. Like now you made me want to dive into the original Munsingware case.

I mean, is underwear is underwear in a commodity? What's the commodity here? I mean, this is. According to Wikipedia, the company was started by George D. Munsing, who came to Minnesota from New York in 1886 to set up a textile factory. And they were off to make woolen long underwear, essential in cold climates and itchless. Living the American dream until the price fixing scandal. fixing scandal. But as fascinating as Muntingware is, I'm really interested in this Texas deportation case, Sarah. Let's do it. It's kind of an onion. It's got layers. When you peel it, it has layers.

layers um and what's so on the one hand okay here's the obvious joe biden puts a freeze on deportations um for 100 days 100 days not not permanent 100 days the question is there's a sort of straightforward statutory question does he have the power under the stat relevant statute sort of straightforward challenge of this exercise of presidential discretion that you would expect normal, this kind of thing we're going to see all the time, every regulatory action that is deemed to negatively impact the rights of red states or individual conservative or, you know, Republicans, aggrieved individuals under the order, you're going to see a lot of litigation. Okay, so that's not surprising at all. But this has a little bit of a twist. Not a little bit of a twist. It has a lot of a twist. It turns out that before the Trump administration left office on January 8th, it entered into an agreement with the state of Texas that did a couple of things.

It said that the Department of Homeland Security, now remember, the Department of Homeland Security is an entity that exists. It's not as if DHS exists under Trump is then dissolved and reformed under Biden. It's an entity that exists through administrations. And it says that DHS must, quote, consult with Texas before taking any action or making any decision that could reduce immigration enforcement or increase the number of removable or inadmissible aliens in the United States. And so, in other words, what it did is it entered into an agreement that the Department of Homeland Security, before it does anything, they could substantially address immigration enforcement. It's got to consult with Texas. And then Texas has the

ability under this agreement to sue in Texas. It grants Texas the standing to sue or the ability to sue in Texas. And so what did Texas do? It sued in Texas under this agreement in the Southern District of Texas Victoria Division. I don't know anything about the Victoria Division of the Southern District of Texas. I believe that there's only one district judge there, so they were guaranteed who they were going to get. Yeah, this is forum shopping. Hey, look, this forum shop, there's an ancient and hallowed tradition of forum shopping. It was all over the judicial resistance to Trump. So this is round one.

And now here's why this is interesting. This is round one. And now here's why this is interesting. Can the Trump administration, could the Trump administration do this? Could it enter into an agreement that would bind to the hands of the Biden administration? Does the Biden administration have to, in essence, either comply with the agreement or comply with its revocation provisions before it can take independent action. Can it do this? And you know what it reminds me of, Sarah? It reminds me of an old practice called sue and settle. And wasn't this something that

was a real, your old boss really disliked? Yeah, so he actually issued a memorandum ending the practice of sue and settle in the Department of Justice, more or less. This is the idea that you basically do not have adverse parties in a lawsuit. You have a friendly organization sue your department so that you can settle with an agreement that is binding on your department that you actually wanted all along but couldn't accomplish policy-wise or through the regulatory system, but you could through litigation agreements. It's not that dissimilar from some consent decrees. Yeah. For instance, during the Obama administration, they had consent decrees with some police departments, for instance. Same idea. Those are, in fact, they're a little different than litigation settlements. But again, really similar. Something that you maybe can't do

through policy means you can do through what's supposed to be an adverse adversarial process when, in fact, you're both on the same team. Right. Exactly. It's a it's an end run around the Administrative Procedures Act. Often it's exactly as you say, it's if I want a policy objective and I don't think I can achieve it through the normal means. I'm Sue. And if I'm by the way, not just normal means of congressional legislation, this is when you can't even achieve it through just the administrative state regulations. Yeah, not even promulgate a regulation, not even get an executive order or a memoranda. So, yeah, this sue and settle is kind of scandalous.

It really is, especially when you have a friendly party suing a friendly opponent. Is it even the adversarial process? So this was interesting. So kind of a clever move, a classic be careful what you wish for sort of move, because if the outgoing Trump administration can cleverly bind the hands of the incoming Biden administration by entering into a series of agreements with friendly states, an outgoing Biden administration can bind the hands of an incoming, I don't know, administration and bind their hands and can kind of allow their policies sort of to exist in a zombified state for a while. Anyway, I think this case is interesting.

Sarah, what do you think? Well, we've got some issues to discuss. Yes, let's discuss them. Let's start at the very beginning. There's a standing question whether Texas has standing to sue the Biden administration over immigration enforcement. That was largely litigated in the DAPA case back in the Obama years, whether the increased burden on Texas through healthcare costs or education costs would count as a Article III injury for standing purposes on the federal government's failure to enforce certain immigration laws.

So by and large, Texas probably does have standing under the DAPA precedent. Okay, good, good. So then we move to this agreement. All sorts of issues here. So let's start with the first one. The agreement was signed by Ken Cuccinelli. Now, he does something pretty cool here, I guess, except I think it will have no actual legal significance, where he says that he's signing on behalf of, you know, everyone, and it doesn't matter how long he's there. So, footnote, signed individually and collectively as used here

indicates that the agency is entering into this agreement both for itself independently and along with the other entities that comprise DHS collectively. Should one agency for whatever reason cease to be a party to this agreement, this agreement shall still survive for all other parties and be read and interpreted as if the removed party had never been a party to this agreement uh cool cool but if you remember uh back just so so long ago uh march of this past year so less than a year ago a federal court held that ken cuccinelli was unlawfully appointed to his position. Right. And I do not believe that the administration ever appealed that ruling. So that's potentially a big problem with this agreement. There's then whether the agreement itself, you know, is real. Can you that into this agreement on january 8th not that the date matters exactly except what it tells us is that they were out of time to do something like

sue and settle david yeah uh and so they had to do it this way and you're right that's like sue and settle except again on the like hardship so a law hardest executive order next maybe we'll put that as a tie with a regulation that goes through the apa process uh then you could file this like these sort of friendly lawsuits let's call them yep and then at the very bottom of things that are hard to do you could just on word on your computer, write up a like on the back of a napkin, a little buddy agreement with the attorney general of a state that you're friendly with right before you're about to leave office and say that this agreement cannot be terminated without 180 days notice. Right. Huh.

Interesting. So that's a problem with it. Right. Huh. Interesting. So that's a problem with it. Okay. Yeah. But let's say, for instance, that Ken Cuccinelli was not lawfully appointed, that the agreement, therefore, is not worth the paper it's written on. worth the paper it's written on. There's still this issue, David, about whether an administration can pause something more or less universally for 100 days. It's a little like the DACA issue. They have this enforcement pool, and they have discretion on enforcement, certainly. But what if their discretion is

we're not going to do it at all? I think that the 100 days certainly is a saving issue for all this, but could they have made it 180 days? Could they have made it a year? It's sort of like pandemic law in that sense. Certainly, they have some discretion to review their policy priorities, but what is that discretion? How far does it extend? What will the courts think of it? And could, for instance, the Trump administration, or let's do a future administration instead, say, yeah, totally. We're not enforcing any environmental fines. You can still get tagged. You still have the like the administrative review

about like you can get charged with those administrative violations. You can go through the system. But then if you're found guilty by an administrative court for those violations and you're fined $6 million, we're just not going to collect that for uh let's call it four years yeah could you do it with federal election law could you say

that you're not enforcing any federal election law violations that are found by the fec for however long for the 60 days 30 days preceding an election and 30 days following an election. Right? Right, right, exactly. I mean, this is what, I remember the issue in DAPA and DACA that really got people amped

was what felt like a deliberate distortion or abuse of the prosecutorial discretion doctrine to accomplish policy and to change policy, as opposed to the traditional use of prosecutorial discretion, which is an individualized determination based on the facts and the evidence at issue with the individual. And in fact, DAPA and DACA in some ways even tried to kind of throw a fig leaf in the direction of individualized determination. But you're right, Sarah. If you have a statute that has legal provisions that mandate a particular penalty

for their violation, when can I just say, nope, not enforcing it? And for how long can I say nope, not, because their defense is going to be, I'm not saying nope, not enforcing it. Their defense is going to be, and with an incoming administration, we're just hitting the pause button to sort of figure out the state of things, reorder our priorities and go forward. sort of figure out the state of things, reorder our priorities and go forward. But let me throw out another problem. Yeah. So in DACA, for instance, one of their best arguments on that to push back against this idea that it was a blanket policy decision is and I'm going to make up numbers here, obviously, Congress has only given us enough money to deport 1,000 people a year. We are still deporting 1,000 people a year. It's just that none of those 1,000 are going to

fall into this category, and that is our prosecutorial discretion. Fine. Now, Congress, provided by statute, there's some shall language here, David. So shall language is pretty hard to work around. Yep. But 100 days. So let's say that Congress provided enough money to deport 1,000 people a year, per my DACA example. And the Biden administration goes into court and says, per my DACA example. And the Biden administration goes into court and says, okay, totally. We're still going to deport a thousand people a year. We're just not going to do any of them in the first hundred days. So we're basically going to pick up enforcement for the last 265 days, just not these first hundred. Or is the Biden administration going to walk in and say, no, you see, we not only do we have sort of a financial resources issue, but there's also just it takes time to do these.

So Congress has provided us money to deport a thousand people a year. But in order to do that, we have to sort of space them out over time. So the hundred days actually does, to do that, we have to sort of space them out over time. So the 100 days actually does, you know, in the fraction sense, also mean that we're only deporting roughly 700 people this coming year. And so that money that Congress appropriated and the shall language that's in the statute, we're pausing. We have to pause that as well, basically. I think that is where they could come into some trouble. I actually think they don't have a lot of trouble if they say, yep, we're doing all of this. We're still going to support, you know, we're going to use all the resources the Congress gave us.

We're just backloading it. Right. Yeah. You know, this reminds me that when you're talking about a giant Byzantine administrative state and a thicket of laws, there are so many different ways to approach policy objectives. There are so many different ways. And I think what all eyes will be on this injunction ruling, Sarah, because just as a matter of reality, if the injunction is denied and Paxton appeals, the 100 days is rolling. I mean, that 100 days is moving. So, you know, if the injunction is denied, I think in essence Biden's going to win. It may well be moot unless he decides to extend the deportation pause. But this raises just a host of issues surrounding the ability, what hymns in executive authority in enforcing

statutes with shall language in them. I mean, there are a lot of things that sort of where law enforcement has taken its foot off the gas in ways that we kind of take for granted and don't think much about. For example, marijuana enforcement at the federal level. It has really diminished. Enforcement of marijuana laws has really, really diminished to the point where if you live in a state that legalizes marijuana,

you walk around feeling like marijuana is legal. There's entire grow operations just operating out, you know, open and notorious. But federal law still prohibits the use of marijuana and the sale and distribution of marijuana. And so there are things that where successive administrations have sort of just sort of said we're not enforcing this law and it's kind of laid out there because there's sort of broad american consensus around it but the law hasn't changed what you have here is an administration saying we're not enforcing a law in the absence of that broad consensus not to enforce that law and And therefore, you have this litigation. I think it's a fascinating case. I'm going to have both eyes squarely on the judge's ruling. And I would honestly be surprised

if the judge upholds this agreement. There's a lot of ways to not uphold this agreement, as I said, like Ken Cuccinelli himself, the agreement itself, parts of the agreement being sort of bonkers town, the obvious nature of what it was trying to do. But then there's the executive. Yeah. So to to your point, David, the posture of this is that they're sinking an injunction against the Biden administration on this. So that's the first thing we're going to see from this judge. The judge held a hearing on this on Friday. We do not have the order yet, but I would expect that probably before we talk again on Thursday. So we'll have more on this.

But there's also the executive order itself and whether that needed to go through APA rulemaking, whether it's arbitrary and capricious. There's a lot of problems here. I'm not sure that this, to your point, is in a great posture to get it done before the 100 days rolls. Yeah, but I could easily see a judicial decision that says there's no agreement, but the pause is unlawful anyway. I could easily see the outcome like that. We'll see. While we were talking,

could easily see the outcome like that. We'll see. While we were talking, I spoke too soon on ending the emoluments discussion because one of our colleagues, our esteemed advisory opinions research intern, because we had forgotten to in previous advisory opinions to acknowledge in addition to the invaluable work of producer Caleb, we have a research intern who has been agitating behind the scenes for greater recognition, Jonah Goldberg, just sent me a tweet asking about this. And this is a tweet from Nicholas Grossman about emoluments. I'll leave legal analysis to lawyers. The practical effect of POTUS, is the POTUS practical effect of these Munson wearing these cases, is that POTUS can unconstitutionally pocket dollars from federal governments, run out the clock with the courts, and face no consequences if he has enough allies in Congress to block impeachment. Yes, basically.

Yeah, I think that's exactly right. One of the things about the Trump administration is that it's been a giant civics lesson and how political solutions to presidential misconduct, once political solutions to presidential misconduct have been sort of neutered while the president is in office, there's not a huge number of legal solutions to presidential misconduct. Yeah. The Constitution assumed that we would elect good people to become president, and that if for some reason a person turned out not to be good, that Congress would be only too happy to do something about it. To the extent that isn't true. Yeah, there's that they did not intend for the courts to be sort of impeachment light arbiters of this. So and I'm not even particularly upset about that. It is Congress's job. Do your job or don't do your job. But don't be mad at the courts because they were never intended to play that role in the first place. Yeah, the courts are not are doing what are not are fulfilling the role more or less. I mean, I've had my critiques of the courts, but more or less are fulfilling the role delegated to them by the Constitution. There is a branch that is not. And that puts a strain on the whole rest of the system. And we live with the consequences of that strain. In fact, to the extent that the courts have stepped outside of

their bounds, really post-Warren Court, I think the Warren Court was sort of its own deal and how much it sort of stepped outside of its bound. But post-Warren Court, much of what's going on here is you have a Congress that has sort of fallen apart as a lawmaking body. And yet a nation still needs laws, and it still needs legal structures to respond to cultural developments. And so what's ended up happening is people have flowed to where the power remains, the executive branch and the judicial branch. to where the power remains, the executive branch and the judicial branch. And Congress is, in too many ways, exactly what research intern General Goldberg has accurately described as a parliament of pundits. And it is a group of people who, instead of fulfilling their constitutional duty, are knocking each other over in the race to get on Fox or MSNBC and opine.

And that's where we are right now. So yeah, that tweet is exactly accurate. Oh, eco-friendly towels? And they're quick-dry. Yeah, you know, HomeSense always has a lot of great towels. Let me see that. Quick-dry? Will it dry quickly enough that I won't notice when you use my towel?

Okay, that happened once. Maybe more than once. Anyways, these are only $13. $13? Okay. Let's get you this navy one, and for me, this soft beige one. Deals so good, everyone approves. Only at HomeSense.

All right, Sarah. You have more fun stuff for us don't you i do so uh do you remember david um it was a while ago but uh a bunch of people stormed the u.s capital oh did that happen yeah uh their stated goals were to prevent Congress from counting the electoral votes for Joe Biden, paving the way legally for his inauguration. Anyway, so the FBI has been pretty good about finding those people in large part because they took a lot of pictures and videos of themselves and posted them some even saying like basically look me do crime uh those cases are now winding their way through our criminal justice system and when you are arrested for a crime you can be held in jail you can be freed on your own recognizance, or there can be something like bail with pretrial release conditions. That's obviously on the bail front where you provide money as a guarantee that you'll show back up again. And the judge can impose pretrial release

conditions saying like, look, you don't have to go to jail, but if you choose not to go to jail, you have to abide by these conditions. And some people, like, let's use some common sense here. There's two ways that you can think about this. One, if you are not in jail and you have not been convicted of a crime, this. One, if you are not in jail and you have not been convicted of a crime, your rights really can't be infringed upon at all on pre-trial release conditions. On the other side of the argument is if I could put you in jail and just hold you there where you had basically very, very few rights, then anything I do short of holding you in jail and allowing you to go is totally fine as infringing upon your rights

because you only have the rights that you would have if you were sitting in jail, basically. Thus enters the pretrial release conditions of some of our protesters. I'm going to use Robert Bauer as an example. His pretrial release condition is that he not attend or participate in any public rallies or protests. As a condition of his release, he is also barred from entering any state or federal Capitol grounds. If someone said that to you or me, David, who was a state actor, they would hilariously be violating our First Amendment rights. Like it would be like they took the First Amendment

and then said, I will use these words, but say you can't do those things. Right. So no question that this implicates Mr. Bauer's First Amendment rights. The question is, does he have First Amendment rights when it comes to pre-trial release conditions and believe it or not uh and i'm relying heavily on eugene volokh here

which is a always that readers i mean listeners if there's somebody you want to be able to rely on for some very very intelligent commentary on constitutional law e Eugene Volokh is a very good person to rely on. He is outstanding. Hey, David, you want to hear something funny? Yes. I know Eugene Volokh. Okay, I'm going to say I kind of know him. Like we've corresponded for years.

Went to junior high and high school with his little brother's wife and clerk with her. Okay. So you know her better. You know him better. Always. I don't know if Hana's listening to this. Dahlia is her little sister who was actually my grade. Hana was in a couple grades ahead of me. And yeah,

fun, happy memories. But Eugene has run through a lot of the cases on this and like, there's not a whole lot directly on point and there's not a whole lot that has gone to the appellate level. So I want to start by saying, we don't know a lot about this. And I think at least one of these cases will go up on the pretrial release conditions because it's interesting and because we probably should have better rules around this. In the end, the current rule of the courts seems to be that if the pretrial release conditions are quite specific to the crime that has been alleged to have been committed, that that's probably okay. So for instance, these hackers were indicted and the pretrial release condition barred them from using internet relay chat because that's what they use to coordinate their attacks.

And while that could also implicate some free speech issues, they basically said that this is fine because the condition does not impose any burden greater than associational and other First Amendment impacted restrictions routinely imposed by courts as a condition of pretrial release, citing a 1986 Eighth Circuit opinion. release citing a 1986 Eighth Circuit opinion. It strikes a reasonable balance between the legitimate and yet competing interests of the parties. In this case, basically the victims of these attacks and the folks who had been indicted. Now, the indictment's important, of course, because there is some level of evidence that you have to have to get into court in the first place. You know, the arrest is probable cause, but it's not beyond a reasonable doubt. So you have this gap when it comes to your First Amendment rights. So I just think it's a really interesting question, David, because a lot of these folks are getting interesting pret-trial release restrictions on their First Amendment rights to assemble, to post things about, you know, the government. You know,

we'll see where these go. Yeah, it is very interesting, especially if their charges are related to, say, for example, trespassing. And then you're saying you can't post about Biden. Hmm. If you were charging people with seditious conspiracy and you narrowly tailored your release conditions to seditious communication, that would make a lot of sense. But if you're arresting someone for violent, unlawful entry and telling them don't speak, I'm dubious about that's 2-1. Alex Kaczynski, a pretty well-known judge, writes the panel majority opinion. But then there's seven judges dissenting from the denial

of rehearing on Bonk. It's about the defendant's Fourth Amendment rights. So this is warrantless random drug testing and warrantless home searches of people on pretrial release. And they basically go through, like, obviously, post-conviction release, parolees, conditional release after conviction is totally different because of, quote, the transformative changes wrought by a lawful conviction and accompanying terms of conditional release, severe and fundamental disruption in the relationship between the offender and society, along with the government's concomitantly greater interest in closely monitoring and supervising conditional releasees occasioned by a conviction and imposition of release conditions. But pre-conviction is a totally different world.

And the fact that the Ninth Circuit of all places isn't quite sure where they fall on this, to me, says this is ripe. Ripe, David, for a pellet review. Well, you know, this opens up, and not that we need to really dive fully into this because we need to get to Wendy's. And I'm already, like, I'm already tasting the burger almost as we were about to begin this conversation. But if you're talking, this opens up a really big issue in American life regarding how do we treat people more globally who have been accused of a crime but not convicted of a crime. And this is particularly relevant in the mass incarceration context

because at any given day in the United States, we might have about a half a million people in jail who've not been convicted of a crime. And if arrest alone is enough to limit your First Amendment rights, if that is all the evidence that you need, then we've got a problem. Right. So, you know, we have long had a posture that says an arrest alone is enough in many circumstances not to just limit your First Amendment rights, but almost entirely deprive you of your liberty pending trial. arrested. They might be flight risks, for example. They might be dangers to a community, and there's sufficient evidence presented at pretrial hearings or evidentiary hearings that would mandate much stricter reconfinement. But we have long kind of as a people sort of taken these individuals who are in this gray area between arrest and conviction

individuals who are in this gray area between arrest and conviction and granted the state an enormous amount of latitude, just an enormous amount of latitude in dealing with them, up to and including confinement for extended periods of time before trial. And this is where I think you're going to agree with Judge Kaczynski's majority opinion in this case that was hotly batted about in the Ninth Circuit. I'm going to read you the sort of the paragraph that matters here. It follows that if a defendant is to be released subject to bail conditions that will help protect the community from the risk of crimes he might commit while on bail, the conditions must be justified by showing that a defendant poses a heightened risk of misbehaving while on bail. The government cannot, as it is trying to do in this case, short circuit that

process by claiming that the arrest itself is sufficient to establish that the conditions are required. Prior convictions and other reliably determined facts relating to dangerousness may be relevant to a constitutionally adequate individualized determination that might justify certain conditions, but the mere fact that the defendant is charged with a crime cannot be used as a basis for determination of dangerousness. Yeah, I agree with that. So in this case, for instance, it's not that you were arrested for taking part in what happened at the Capitol would be enough to then curb your First Amendment rights on pretrial release that you can't protest somewhere. But if you then were posting on Twitter, for instance, I'm going to do it again. I want to go kidnap so-and-so.

These people need to be held to account. We need to reform. We need to, you know, those are the types of additional particularized individual evidence that I think you could use to show that this specific person needs different pretrial release conditions, not because he was arrested for a crime, but because he specifically poses a threat that requires curbing of his First Amendment rights for a brief time. The Speedy Trial Act still applies and he can demand a quick trial to reinstate his full First Amendment rights. For example, if you had that Texas real estate agent who went on a date in a private jet to sack the Capitol. If she posted, say, on, I don't know how this works. If you put what you're looking for on, say, Tinder, looking for private jet date to re-sack Capitol, you might trigger a DOJ intervention at that point. You might.

Yeah. But the blanket prohibition on clearly First Amendment protected activity as a pretrial release condition, you know, this gets into why it is that so many of our criminal laws and so many of our doctrines surrounding criminal law are bad, because often we look at a situation where the facts are bad. These guys Instagrammed their insurrection. The evidence of their guilt is open, obvious and pretty darn overwhelming. They're going to get a trial, but they're not walking into that courtroom with a very strong legal position. And in those circumstances, we often sort of say, well, we know they're guilty. We know they're guilty, so what's the harm in kind of treating them that way prior to their trial?

But there is harm. There is harm. It doesn't work like that. Because then what happens is you institute a doctrine, a legal doctrine. And the legal doctrine isn't that, well, when they seem pretty darn guilty already, you can kind of get them before the conviction. That's not the legal doctrine. The legal doctrine applies to all

people in a pre-trial confinement or a pre-trial release kind of situation. And then it sweeps with this broad brush. And for example, with mass incarceration of people awaiting trial, it ends up contributing to a giant cultural and social problem that we have in the united states um but man that's a long conversation but don't we can we can abhor what happened on january 6th seek the vigorous prosecution of individuals who that where there's evidence that they were there on january 6th and committed unlawful. But let's not start messing with their constitutional rights just because we think we got them. That's not what we need to be doing. Okay, Sarah, you have a little bit more Supreme Court goodness for us, don't you?

Just a little bit. So the states of Massachusetts and New Hampshire touch each other. And little known facts here for those who don't live up there. There's actually a lot of people who live in New Hampshire and commute into Boston, for instance, to work. There's a ton of reasons for this. One, New Hampshire is lovely. The White Mountains, the leaf peepage is A++. Two, New Hampshire doesn't have any income tax. It is the land of live free or die. If you've ever seen their license plates, a fun time is had by all. So here's how taxation works. If you live in New Hampshire but commute into Massachusetts to work, you pay Massachusetts

income tax on that salary. But if you live in Texas and work at a Massachusetts-based company but never go to Massachusetts to work at that company, you don't pay Massachusetts income tax. You pay Texas income tax, which, like New Hampshire, is zero. Enter COVID-19, David. Nobody is going into work anymore. So all of these people in New Hampshire

now are just like the people in Texas who also work at the same Massachusetts company. Nobody's going into Massachusetts. But Massachusetts has said that while the Texas people still don't owe them any money, the New Hampshire people do. Their rule is that if you used to commute into Massachusetts to work in a Massachusetts company, they can still tax your 2020 income. New Hampshire has said no thank you to that request by Massachusetts and enter New Hampshire v. Massachusetts. If you remember back from when Texas tried to sue Pennsylvania, this is a case of original jurisdiction, meaning you do skip go, you do collect $200,

and you go straight to the Supreme Court when it is a case between two states. What makes this particularly interesting is, A, pandemic law, David. It is really interesting because Massachusetts is basically claiming that this is like a weird just pandemic rule that they're doing. They're not trying to do this for the Texas people, for instance. They're just trying to recapture some of the revenue that they quote should have. Number two, that's interesting about it is that New Hampshire is the one suing here clearly for the purpose of getting original jurisdiction, because the real people withstanding should be the individuals who are trying to be taxed by Massachusetts. But New Hampshire has said that, in fact, there's this problem because Massachusetts

is infringing on New Hampshire's taxation sovereignty, which is super interesting and fun from a standing argument. This implicates two parts of the Constitution, the Dormant Commerce Clause, which basically prohibits this is it's called, by the way, the Dormant Commerce Clause listeners because it doesn't exist. So the idea is it's like in the numbers and emanations of the Commerce Clause and emanations of the commerce clause that lack of commerce also is protected type idea that like you can't discriminate against states. And it's kind of a messy clause in part because it doesn't exist. This idea that states can't regulate and tax economic activity beyond their borders. States can't regulate and tax economic activity beyond their borders.

So like Texas can't reach into Pennsylvania on a regulatory or taxation issue. And we know that because Congress doesn't give them the power to do it. Therefore, there's nothing that the Constitution says about it. And therefore, we will enforce that nothingness. And that's why it's called dormant. There's also a due process issue that New Hampshire is raising here. I think this is going to be like my faithless electors case, David. I think this might be my favorite case of the term. I'm very excited about it. Yeah, this is like every nerd thing that I want in one case. Super constitutional issue,

kind of a weird one-off with the pandemic. But I don't see Massachusetts doing very well here because while pandemic law might give you some leeway on some even constitutional rights, we've talked about free exercise, mask mandates, all sorts of things to prevent the spread of the virus. I don't think you get to keep taxing people and claim that it's an emergency state power because of a pandemic. Yeah. No, I'm with you. I'm fascinated by this case as well.

I think it's going to be very, very interesting. And you did trigger some bad memories of struggling with the dormant commerce clause in law school, in con law, and just thinking, when, when can we get past this to get to the good stuff? No, I like the Dormant Commerce Clause. I'm all for it. You are no fun, David. I know, I know. I'm no fun. I like the Bill of Rights and the Civil War amendments, and the Dormant Commerce Clause, just no, no. Rights in the Civil War amendments and the Dormant Commerce Clause just, no, no. 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.

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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 bestselling frame. That's A-U-R-A frames.com. Use code advisory at checkout to save. Terms and conditions apply. Well, luckily, our next segment is super fun. It is indeed. This is a passion subject of mine, but Sarah is the person who made the get on the guest. This is the first ever dispatch commenter elevation to dispatch pod,

and not just to any dispatch pod. The flagship. The flagship, the flagship, the flagship, the HMS Queen Elizabeth of the dispatch. Okay, Sarah, introduce our guest and then let's go. So David, you and I talked about my hot date that I had with my husband where we decided to try all of the chicken sandwiches in this quarter mile stretch in Warrington, Virginia. Yes, folks, I've heard your complaints that we didn't include Zaxby or Bojangles or Shake Shack, Waterburger, Culver's. Yeah, those aren't in the quarter mile in Warrington, Virginia. I'm gonna, we're gonna do it. We are. And the spicy chicken sandwich problem i'm aware of i'll see

what i can do at some point though i do need to like not have a heart attack but at some point i had taken all these pictures and i treated this like a real you know science data driven thing and so i with the permission of steve hayes which I am still stunned I got, published my results on the Dispatch website. And it led the page all weekend and got the most traffic that we've ever gotten on a weekend on the website. It was amazing. I looked at the traffic numbers late Sunday night, and I sent a message to Sarah, and I said, have you seen this? This is amazing and amazing. This is amazing and amazing. And it had one of my favorite lines in it in a dispatch written product.

Let me see if I can find it. It is, I reminded me of middle school cafeteria food and not in a good way. Some people have fond memories of like the Frito, you know, the Frito pie. That was like where they put chili and cheese on top of a bed of Fritos. I just wanted to be clear that this wasn't nostalgia junior high. This was like, oh God, I wish I did not have to be here at junior high. Yeah. That was all of junior high.

So publish this lots of comments. People had many, and it was great. So I spent some of the weekend in the comment section, but one person's opinion was not an opinion. It was expertise. And that person is Brendan Hodge, who joins us today. Brendan, tell us your expertise in the chicken sandwich wars. Well, my expertise is I've been a professional pricer for the last 15 years. And I spent two of those years at Wendy's headquarters here in Columbus, Ohio. So I was the menu pricing manager for corporate Wendy's and then present recommendations to all the franchisees. So I dealt with pricing all of our products. And so when you talked about the great value of the Wendy's chicken meal, and one of the things I spent a lot of time and

passion on was, were our value meals the right value? Were they too much value? Were they not enough values? How do you price a meal right compared to just a sandwich? And how much do you discount the fries and the drink when you add them on and make it a meal? So I posted about that. So let's start. I mean, there is so much great content that I want to go through with you. But I said that the fries were better than I remembered them from childhood. Am I right? You are right. So unless you were super, super young, about 10 years ago, there was an overhaul of the Wendy's menu. And at that point, they brought in the new natural cut sea salt fries.

So that has, it's a natural cut. It's got some potato skin on there, which adds a little bit of richness to it. And it is now sea salt on the fries as opposed to wherever else they get salt. And it is now sea salt on the fries as opposed to wherever else they get salt. And actually, and sea salt became a big marketing thing. And we got lots of consumer feedback that they believed that the sea salt was clearly a lot more healthy than the other salt. I don't know of any actual evidence for that, but consumers believed it. So I've got a question for you.

You said in one of the comments something that is, as soon as I read it, I thought, yep, that's me. And that is that consumers consistently rated the Wendy's food better than the McDonald's food, but went to McDonald's anyway. And I was sitting there sort of thinking through my own experience. I was like, yeah, I think I go to Wendy's. I mean, McDonald's maybe two to three times more than I go to Wendy's, but I really like Wendy's food. I really like it. And so I have my theory, but I'm just an amateur. You're the professional. What was the reason why that you guys figured out or thought you figured out as to why people would go to McDonald's when Wendy's food was better? to why people would go to McDonald's when Wendy's food was better? That remains a tough question.

There are some known things. So for instance, Wendy's have been trying to break into the breakfast space for, gosh, 15 plus years. And it is documented that McDonald's has put a lot of work into putting their stores where people are on their drive to work and making sure that they start their day with McDonald's. McDonald's has mainlined on breakfast for a long time. I remember my grandparents taking me to McDonald's for breakfast when I was a little kid.

So, and that gives you background. People think of that as a connection. And so it has been very hard for other QSRs to break into the breakfast space, partly because of placement. You're not going to move a store across the street in order to get better position for breakfast. So that's a clear issue. But I mean, it's also just an overall customers have deep, deep habits on this stuff. And so you can get feedback on what people say they like and what they say they value. But then what people go out and do is often a different thing. QSR, by the way, quick service restaurant term of art that I will now use in my life to pretend that I also am an expert. Yes. I love having acronyms that convey expertise without actual expertise. That's fantastic. So by the way, I have read a book on the history of salt. It is called Salt,

a World History. Listeners, so if you want to know the difference between sea salt, why phrases like worth his salt came into existence, it's not the best history book I've ever read. But I love weird history and salt, a world history is that. love weird history and salt a world history is that. Brendan, other things that were really important to me that you discussed was this red onion issue. So this was utterly fascinating to me. So I mentioned that the fries underwent a metamorphosis 10 years ago. There was an overall menu kind of step improvement that they were going through at the time. And one of the programs was called Dave's Hot and Juicy, which is, of course, the name of the classic headline hamburger at Wendy's, Dave's Hot and Juicy Hamburger. And this was an effort to kind of get back to basics and also just improve things. So it's when they added butter fryers to all the restaurants so that

the bun goes through a little, it gets dipped in butter and then toasted and gets sort of just the right butter toast on the bun. But one of the things they decided to do was switch from white onions to red onions. And they had done a lot of taste testing. They decided that red onions were the right way to go. They were in the middle of this change when I started there 10 years ago. And the thing that utterly fascinated me was when I heard that, yes, we've decided this is where we're going to go, but we will not have this nationally for another year and a half because we had to give the onion growers two years notice so that we could get that many red onions. It turns out that switching a major fast food chain, and Wendy's is the number two fast food chain in

the country, from white onions to red onions is such a big thing that it takes two years to actually up the crop that much. You cannot just go to the store and buy red onions for Wendy's. that much. You cannot just go to the store and buy red onions for Wendy's. I mean, that just, I will have that fact with me for the rest of my life. That's incredible. So can I share with you a couple of things that I learned from my incredible conversation with my McDonald's executive friend? And I'd love to get your reaction. One, exactly hit on what you said earlier. He was talking about how critical real estate was to get your reaction. One, exactly hit on what you said earlier. He was talking about how critical real estate was to McDonald's success. That some people have called it a real estate company

that sells hamburgers. That its placement of its stores is absolutely critical. And I started to think about that after I went to McDonald's. And one time when I was going to McDonald's, I was realizing it's always the most convenient location. And he said, wherever you go in the world, it's not going to be hard to find a McDonald's. Like if you're on the Champs Elysees in Paris, there's going to be a McDonald's. You're thinking, how's a McDonald's here? But there's McDonald's.

So that was one point. And the other thing that he said that was very interesting, he said, at least from his perspective, he really valued Wendy's and he valued the competition because it pushed the company. And his view was you could not have a good company without good competition. The precipitous decline of Burger King for a period wasn't necessarily a cause for celebration as a sort of a triumph, but it was something that actually ended up causing others to suffer as well because the absence, the diminishment of competition meant a loss of quality. And I thought that was fascinating and how he looked at the Wendy's experience as pushing McDonald's to be a better company. I thought that was fascinating. Yeah, that is really interesting.

And it strikes me also that if you think about it slightly wider, I mean, the big threat to fast food or QSRs has been fast casual. So which is everything from Panera to Quiznos, Five Guys, kind of all these concepts that are not quite fast food, but they're pretty quick. And if you look at a lot of the innovation that fast food has done in the last 10 to 15 years, it's been trying to level the field with those guys, whether it's bringing in bakery items or better coffee or salads or all these different things. They're being pushed to try to compete with these slightly step up kind of restaurants and

yet still provide the fast food value now and your pricing i mean i guess you left wendy's before the fast casual sort of really came into play but it seems to me that's still your giant edge i mean we go to five guys a lot and when when we have everyone in the house, like my son in law and all my kids, and then maybe bring in the parents, the grandparents. Well, wait, I'm a grandparent now. So the great grandparents. I mean, I feel like if I'm getting Five Guys, I got to ask for the payment plan. It's a lot. It seems that that's your edge. You know, it seems that that's your edge. I mean, how much did you think through? Is there such a thing as just putting aside profit and loss?

Is there such a thing as too cheap? Is sort of conveying a lack of quality? Or is there what was sort of your philosophy and approach? So one of the things that sort of distinguishes fast food at this point in almost every case is that they have a two-tier menu. They've got a value menu and then they've got their full-size sandwich menu. So like at a Wendy's, your value menu is, back when I was there, it was a 99-cent menu only. And while I was there, you had some of these value sandwiches move off. So you

had the double stack move up, the junior bacon cheeseburger move up. And the reason is because we had commodity inflation on things like beef and bacon. And in order to run a successful fast food restaurant, you need to keep your total food cost as a percent of revenue down around 35% or less because you need to pay people, you need to pay rent, you have all these other expenses. And if you're going to make money at the end of the day, food can't be your biggest expense. So you have a menu which is set up to appeal to people who want to spend like a dollar or a dollar 50 and get something that's moderately filling. And so that's your value fry, your value burger, which at this point might be just like a junior cheeseburger. Then you've got your dollar 50. You can get a junior bacon cheeseburger. So that's a

smaller patty. It's an eighth of a pound patty, roughly speaking, versus your quarter pound patty that goes in the full size sandwiches. Or you can get like a chicken wrap, which is often like half of the chicken breast that would be in a full size chicken sandwich. You can get a few nuggets. So those are kind of your inexpensive proteins. If you're looking for maximum nourishment or at least maximum calories per dollar at a fast food, you go to your value menu and that's probably about the cheapest nourishment you're going to get served hot anywhere in the U.S. And then you've got your full-size sandwiches and salads.

Those are higher margin, but those are where you're starting to more compete with your fast casual kind of places. And so fast food plays both ends, and that both end strategy is really, really important. About half of orders have at least one item off the value menu on them. And you'll see that often with the split in families where you'll have like a mom go through and she'll get a salad, and then she'll get maybe the teenager has a full-size hamburger, and then the kids are getting a small hamburger off the value menu and a Frosty. And so you can split that whole thing out. Whereas if you take a whole family to Panera, you're about to drop 50, 60 bucks.

Yeah. No. Well, okay. I have a lot of kids, so maybe I'm inflating. I think that's where Wendy's has always, as a market niche, done really well. Your salads, you're just known for having more stuff that isn't hamburger fries. And so if you're taking a lot of people, Wendy's, like when I was in campaign world and I would have a van full of people I needed to take somewhere, we actually always went to Wendy's because I figured that was sort of maximizing utility for everyone. Whereas like some of the other places, you know, you're just not going to take a van full of people to Burger King.

There's that's not going to happen. Yeah. Burger King is like the teenage boy to young male. Oh, my college dorm was next to a 24 hour Burger King. And over four years, I only ate there twice and both times was ill afterward. Oh man. And it was 24 hours. So not going there every night was a choice when i when we lived in ithaca and uh new york and which was sort of on the outskirts burger king was by far the closest fast food and we would drive double the amount of time to get to the

wendy's or mcdonald's sorry burger king And I know there might be a Burger King listener. If you've got a case to make, make it in the comments. Make it in the comments. And if you're as good as Brendan, who knows? The sky's the limit. So Brendan, here's now where we're at the zenith of your expertise. And that comes to the meal deal. You have research about the meal deal. You spent a lot of time thinking about the meal deal. How

much of a deal should it be when I want to add fries in a drink or frosty and fries or frosty and apple slices, whatever it might be. When I want to create a meal out of just my, for instance, chicken sandwich, there was a lot of pushback in the comments over my process here, but I think I was transparent about my process and you can disagree with it, but I at least was consistent. I felt like I don't go and just want a chicken sandwich anywhere. I want, I'm hungry. I want a full meal. I want lunch. Lunch to me includes a drink and a side, always French fries. And so I was looking when I priced priced this out, at the meal. And Wendy's meal for their chicken sandwich, fries, and a drink was unbeatable.

Yeah, so Wendy's, and now I've gone from watching this every day to going through the drive-thru when we're on family trips. But it does not seem to have changed. So Wendy's upsell from just the sandwich to the meal, depending on your location, whether it's a franchise, it's about $2, which if you think about it, you're going to pay a little more than a buck 50 in general each for fries and a small drink, as opposed to like the value fry and value drink that are smaller. So you're getting about a dollar off the fry and drink combination. And when I was there, we would do these price comparisons. And if you think about it, like it's easy online to do a price comparison. You can just

log on to Amazon or Best Buy or whatever it is you're trying to do a comparison. With fast food, there are actually services you can hire where they will send out through social media a whole bunch of people. They'll go through a drive-through, they'll buy like one thing for a dollar, and they will take a picture of the menu and email you the picture. So I would get back, you know, a hundred different menu pictures and they would have had someone go through and do data entry and take down the price of every item and every meal at my competitors so I could figure out around the country what were different prices like. So based on that research, Chick-fil-A has the lowest discount. If you go through a Chick-fil-A and you look at the price of waffle fry and a drink, and then you put that together

with a sandwich and compare the meal price to the a la carte price, the savings is just a few cents. They just kind of round down. McDonald's has a savings, but it's about 15 to 20 percent. And Wendy's was offering about a 30 to 40 percent savings on the price of the fry and drink that you're adding on. So is that right or is it too much? Well, the thing is that fries and drinks are really high margin. I mean, drink especially, it's just water and syrup. So great margin there. And fries are also pretty high margin. And you also need to turn your fries frequently because if your fries aren't selling fast enough, you have to throw them out.

So you want to maximize that. Uh, so you want to, you want to maximize that, uh, at the time, uh, the goal was, as I recall, about 80% and, and a good stores could get 80% meal attachment on their full size sandwiches. And that was kind of industry leading. Now the question is, um, could you be a little bit more profitable if you didn't discount it quite so much? Maybe you'd be a 75 percent meal attach. And would you be more profitable if you weren't discounting quite so much? But it's also kind of a balance because on the one hand, someone like me who is just obsessed with pricing because I do it is always trying to total those numbers up and see what the best deal is, whereas for a lot of people, they're

looking at the total price of the meal. I mean, fast food places are very good. When you look at that menu board, it's very easy to see the price of the meal and the price of the sandwich is kind of tucked down in a corner sometimes. So when you're looking at it and you saw you had a $6.99 meal there, you just thought $6.99, that's a pretty good price. That compared to $7.99 at McDonald's. I feel like that McDonald's fell down a little bit. I mean, just right down the good price. That compared to $7.99 at McDonald's. I feel like that McDonald's fell down a little bit. I mean, just right down the street, they should have been paying better attention to that one, especially given what we all know about their chicken sandwiches, which is that they're not as good.

I mean, nothing spooky. It's just they're not as good. So the balance here is between your – I mean, it's a classic pricey elasticity kind of equation. And pricey elasticity is when you change the price, how much does the demand change? And so if you took that meal upcharge up a little bit and it was $7.49, would you have been just as likely to buy it? Yeah, probably. But it is an awfully good deal.

And Wendy's commands really high meal attachment. But you had this consumer research also that was fascinating because, and I talk about this in my newsletter on campaign stuff, basically, I don't trust polling that ask people about their policy preference because what you said, basically, people will say one thing in a poll, but they vote quite differently than the polling. It's this very artificial way to get people's actual opinions. And when it comes to value meals, it sounds like you don't necessarily trust your consumer research on this either. Yeah, so the consumer research that we did, we asked consumers what they thought the savings was. And the feedback was mostly that they thought it was a few cents.

They thought it was rounding. But the meal upsell is so important. It was very, very hard to convince anyone you should charge more for the meal upsell. And like, guys, this is our key metric and we're at 80%. We can't have it go down. Am I going to take that 50 cents? Yeah, the 50 cents would be great. But if I go to 75%, it's going to kill my metrics. So, I mean, part of this is you just build a culture around that where people believe that one of the most important things about their store is what their meal attach rate is. And they're very hesitant to do anything that would change that. And fast

food stores, they tend to be really conservative in how they change because Wendy's locations are 80% franchise owned. And so you're having to convince not just your 20% of corporate stores, but the 80% owned by hard-nosed small business people who've been doing fast food for 20 years to do their business differently. And that's not easy. And I mean, you said this and I thought like,

gosh, that's absolutely my experience. My likelihood to get the meal deal is really based on the advertising around the meal deal. How prominent is it? How easy is it? Because, yeah, I guess I think I'm saving about 50 cents, which is interesting because sometimes I actually would probably pay the 50 cents for either the exact size drink that I want or a Frosty, for instance, or a bigger fry or a smaller fry. If I got exactly what I wanted, I might actually save money. But the reason I'm at a QSR is the convenience and I just need food quickly. And so the meal deal in some ways, I mean, yeah, I guess if there were some weird price oddity, I might notice. But more likely, I'm just getting the number one

and I'm moving on with my life, even though it's not even exactly what I want. So, since you are sometimes a McDonald's girl, I will just say, having done the research, they will have the summer deal where they go on all drinks for a dollar. When they do that

at McDonald's, because they don't discount the meal as much, it is often cheaper to say, I want a sandwich and a small fry and a drink of whatever size drink you want. You will sometimes save a few cents if you do that. Well, I have a takeaway from this conversation that's very important. And that is the next time I'm going to Wendy's or, sorry, Brendan McDonald's, I'm going to say to my family, I'm going to a QSR and I'm going to do a meal attach. Oh, Nancy's already annoyed. I can, I can feel her annoyance. I love it. I love the lingo. I'm going to do a meal. And I'm the bad guy in all this because I don't drink soda. So I always just get the prize.

I'm the bad guy in all this because I don't drink soda, so I always just get the fries. Oh, wow. Okay, so, Brennan, you said you have a large family. You're all packed in the car. It is a Saturday afternoon. Where do you all go? Usually, honestly, it's only when we're on family road trips that we go through QSR because I have seven kids. And so getting all of those kids fast food takes some spending. So Wendy's is the easiest to find. That's usually the one that we hit up.

And then if we can find a Chick-fil-A while we're traveling, we'll definitely do Chick-fil-A. Interesting. Fascinating. Thoughts on Popeyes. Thoughts on Popeyes. You know, after reading Sarah's piece, I really need to go try Popeyes. I have never done that, though I've always been tempted because the way that the letters land, it always looks to me like it's saying Popeyes. And so I feel like kind of to show the Catholic flag, I should go consume a sandwich there. Yes, that's fantastic. Are you interested in McDonald's rollout of their new chicken sandwich? Do you think that this will be real competition for Wendy's chicken sandwich?

I always find it fascinating. When Domino's did this, I found it fascinating. But when a restaurant says, our food hasn't been very good, we're sorry about that, and we're fixing it. Like just full on as a marketing strategy to say that your food wasn't good, but now it's going to be good. It worked really well for Domino's. I'm curious to see how well it works for McDonald's, depending on how good this chicken sandwich is on February 24th. I will be curious to see. I mean, it seems like chicken sandwiches have been stable for a bit in

the main chains. I mean, I was surprised since I never go to Burger King to read your thing, discovered that Burger King still has not renovated their chicken sandwich eight years after I left the industry, and it was bad then. So, yeah, I'm going to be really curious to see it. I mean, I think that chicken sandwich is, it has become more and more important

in QSR, and it's fascinating the way that has actually become the battleground sandwich. I think the same weekend that you had your thing out, chicken was on the mind because the Wall Street Journal had a chicken sandwich battle article out about how that was kind of the big QSR battleground. Yeah. Yeah. It's like changed the whole market a lot, actually, is that people now go for chicken

sandwiches instead of hamburgers which is different uh well brendan thank you so much for lending your expertise to our podcast you have made my week it has been a blast thank you so much for having me so sarah while we were talking qsrs and meal attach uh we had some developments out of the Texas case. Do you want to fill us in? We did. The judge has issued an order to the Department of Justice, basically asking for clarification. So Texas said that they had an email that had circulated internally instructing Immigrations and Customs Enforcement officials

to, quote, release them all immediately. And the Justice Department told the court that while some undocumented immigrants with removal orders have been released from custody, that has been part of separate litigation relating to COVID-19. from custody. That has been part of separate litigation relating to COVID-19. There are going to be times that the Department of Homeland Security uses its discretion in manners that Texas disagrees. Texas has different views about immigration policy than the current administration. So the judge has asked for clarification about that, saying news reports aren't evidence. So they want to know whether this, the judge wants to know if this email exists. So we don't have an answer yet, but I still, I think we're still going to hear something by Thursday. The judge is clearly

engaged. It is Monday, you know, morning-ish, late morning, and we're starting to have orders. We'll have DOJ respond. This is going to move pretty quickly. Yep, absolutely. And so before we close in this topic, Rich, Advisory Opinions Podcast, you've got a final note on books. Yeah. So do you remember we were talking about your newsletter? I talked about masculinity and cultural changes and shifts in masculinity and about how Grant was practicing for his role in Othello as a woman. And I got a lot of emails asking me what book I was talking about. It is called Shakespeare in a Divided America by James Shapiro. David, I do want to stress that I read a lot of books, some of which I don't even like that much, some of which I do like a whole lot. Some of which I disagree with parts,

but find other parts interesting. This Shakespeare book is really interesting. I did enjoy reading it, but there are large portions I find hilarious and not quite there. Also that salt book I mentioned, Salt World History by Mark Kurlansky. Sort of same thing, right? Like,

I read the book. I enjoy the book. I think the beginning is better. And then it kind of maybe should have been a long-form article. So I will try to be better at saying which books I'm talking about or putting them in the show notes. Sorry, listeners. Yeah, that's a good idea. And maybe a brief note whether you actually liked it. I have a page on The Dispatch back from January 2020 before I knew anything that was going to happen for the rest of that year about sort of my top 10, I think it's 10, favorite books from sort of the last decade or so. So those are books I vouch for entirely. I am probably going to update it with some of my reading from Pandemic Life, but there were no books I'm not, I can't think of any books I read this year that would break into that top 10, but I read some good ones. Yeah, absolutely. Well,

I'm just starting a book that I've had, I don't know, 200 people recommend to me called Jesus and John Wayne, and it is about the masculinity issue within the evangelical church. And I rarely have I had a book universally recommended to me from people across the theological and ideological spectrum. So. So this is fascinating because I'm reading a book called The Bible With and Without Jesus, How Jews and Christians Read the Same Stories Differently. Fascinating. We might need to compare notes, Sarah.

Yes, our books with Jesus in the title. Yes, exactly. Well, that ends this super topic-diverse Advisory Opinions podcast. And we thank you for hanging in through all of it and we also thank you for continuing to rate us on apple podcasts um we've been getting lots of great feedback and we really appreciate it once again before we sign off i gotta thank producer caleb and research intern jonah and for all of their contributions to this podcast especially producer caleb uh research intern Jonah.

Eh. Eh. Marginal. Marginal. But we still appreciate it. He's inconsistent, I'd say. I'm sorry? He's inconsistent.

Like, his research has been inconsistent. Very inconsistent. Very inconsistent. But we do appreciate it. We're not denigrating the research. We're just... No, maybe he'll get better. Yeah, possibly.

With encouragement. Yeah. We thank him. We thank y'all. And we will be back on Thursday. At Real Canadian Superstore, our colleagues collectively speak over 100 different languages and counting. We pride ourselves on items from different parts of the world. From heart-defying specialties to tastes that will remind you of childhood. So welcome everyone.

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