UNBIASED - April 30, 2024: States Sue Biden Over Title IX Expansion, DEA to Recommend Marijuana Reclassification, Democrats Voice Support for Speaker Johnson, and More.

Episode Date: April 30, 2024

1. Nine States Sue Biden Administration Over Expansion of Title IX (0:40)2. Supreme Court Allows Texas to Enforce Law Requiring Age Verification on Adult Entertainment Websites (9:14)3. House Democrats Issue Statement Showing Support for Speaker Johnson Should Motion to Oust be Introduced (11:29)4. Reports: DEA to Recommend Reclassifying Marijuana; How Drugs Are Classified and Why the Recommendation Wouldn't Be Surprising (12:52)5. QUICK HITTERS: Trump Held in Contempt for Violating Gag Order, Campus Protests Ramp Up Overnight (16:26)Get EXCLUSIVE, unbiased content on Patreon.Watch this episode on YouTube.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Tuesday, April 30th, and this is your daily news rundown. As a reminder, if you love the unbiased approach that this episode provides and you feel more informed after listening, please go ahead and leave my show a review on whichever platform you listen, share the show with your friends, and if you're watching on YouTube, please just go ahead and hit that thumbs up button and subscribe to the channel if you haven't already. All of those things really help support my show, and I very much appreciate them. So without further ado, let's get right into today's stories, starting with an update to one of last week's stories about the expansion of Title IX.

So as of today, at least nine states have sued the Biden administration, arguing in part that the new rule exceeds the Education Department's authority. Those states that have filed lawsuits include Texas, Louisiana, Mississippi, Montana, Idaho, Alabama, South Carolina, Georgia, and Florida. So Title IX is a federal civil rights law, which was enacted as part of the education amendments in 1972, and it was just expanded by the Biden administration. But let's back up a little so that we have a full scope look at what Title IX is. Obviously, we know that there was a time in the not-so-distant past where blacks, whites, women, and men were not treated equal under the law.

One of the consequences of this was the Civil Rights Act of 1964. And the Civil Rights Act of 1964 was enacted to address this sort of discrimination. Initially, the act was intended to address racial discrimination and segregation, but it also extended to discrimination based on race, color, religion, national origin, and sex. But here's how the relevant titles have evolved over the years. So when the Civil Rights Act was passed in 1964, it had 11 titles within it. Title IV specifically banned discrimination and segregation in federally funded educational institutions, but it did not specifically cover sex discrimination

in educational institutions. When Title IV was enacted, it concerned discrimination and segregation based on sex, color, religion, or national origin, not sex. Similarly, Title VI, which prohibited discrimination in federally funded programs, also prohibited discrimination based on race, color, or national origin. Sex was not included. Title VII, however, did apply to sex discrimination, though only when it came to employment. So specifically, Title VII addressed discrimination based on race, color, religion, national origin, and sex by private sector and federal government employers. But there was this gap when it came to sex discrimination in federally funded educational institutions, right? Because we had Title IV and Title VI and Title VII, but none specifically prohibited sex discrimination in educational institutions.

So protections were offered for sex discrimination in the workplace, but again, not in federally funded schools and universities. So eight years later, under the Nixon administration, the Education Amendments of 1972 were enacted. And these amendments are best known for Title IX, which was part of the amendments. And Title IX bridged the gap that I just spoke of, and it officially prohibited discrimination on the basis of sex in federally funded educational institutions. And over time, Title IX has evolved, but sex discrimination has sort of always been understood as being discrimination based on whether you're male or female. So for instance, in the 80s and

90s, the Supreme Court clarified that sexual harassment and assault are forms of sex discrimination. Later in 2011, President Obama issued guidance clarifying Title IX protections for LGBTQ students, but that was guidance that was not a final rule. So then in building on that guidance, the Biden administration last week issued this final rule that adds discrimination on the basis of not only sex stereotypes, but sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. So all of those are now encompassed in what is prohibited under Title IX. And what the argument is from these nine states as per their lawsuits is that this new rule went outside the administration's authority. There are really two main arguments

from the states. One has to do with the rule being arbitrary and capricious. The other has to do with the spending clause. So let's break down each of those arguments briefly and also in the simplest way possible, because these can both be pretty complex topics, but I want to make them very, very easy to understand. First, the arbitrary and capricious argument. The Administrative Procedure Act, or the APA, is what governs the procedures of administrative law. In other words, it governs how executive agencies make rules. And what the APA says in part is that courts shall hold unlawful any agency action that is arbitrary, capricious, in abuse of discretion, or otherwise not in accordance with law. So to put this simply, an agency action will be deemed

arbitrary and capricious if the decision is baseless, impulsive, unreasonable. There has to be some sort of reasonable connection between the facts found and the rule made. Given this, the states argue that the administration's final rule fails the arbitrary and capricious review because it is not only internally inconsistent, but it fails to define key terms, it disregards evidence submitted, the education department has made decisions that are counter to the evidence presented, the rule fails to properly balance all relevant interests, and because the Department of Education routinely offers what these states call conclusory statements rather than real responses to valid concerns. And specifically, this is in regards to those concerns submitted during the

public comment period that is required in that rulemaking procedure. So that is the arbitrary and capricious argument. Now for the spending clause argument. The spending clause of the Constitution says that Congress has the power to pay debts and provide for the common defense and general welfare of the United States. Incident to this power, though, Congress can attach conditions on the receipt of federal funds. But, as the states argued, these conditions are not unrestricted. So in support of that argument, the lawsuit cite to specific Supreme Court precedent where the court has held that conditions on the receipt of federal funds

must be unambiguous so that states know what they're getting themselves into, right? States can make their choice knowingly and cognizant of the consequences of their participation. The Supreme Court has also held that conditions on federal funding have to be related to the federal interest in the project, that spending cannot induce states to engage in activities that would themselves be unconstitutional, and that spending must not be so coercive as to pass the point at which pressure turns into compulsion. The lawsuits argue that this new final rule from the Biden administration fails each one of those four requirements and therefore must be invalidated. Then there's this

third argument that I'm really not going to go too much into detail because it's not complex. It's more straightforward. It's that the executive branch does not have the authority to redefine the word sex. So the lawsuits say that this is the legislature's job. It is not the job of the Department of Education, and therefore they exceeded their authority in that way as well. So that's really the basis of these lawsuits. Now, there are other arguments thrown in across the three separate lawsuits, but that's the general gist. This does sound like a case that will eventually make its way to the Supreme Court, especially because between the three lawsuits, two different

circuits will be deciding this issue. So the Texas case will ultimately go in front of the Fifth Circuit Court of Appeals, as will the case filed by Louisiana, Mississippi, Montana, and Idaho. But then the case that was filed by Florida, Georgia, Alabama, and South Carolina will end up before the 11th Circuit Court of Appeals. And as we've talked about, the Supreme Court will typically intervene when multiple circuits hear the same issue, more so when there's conflicting rulings out of two different circuits. But we will see what happens with time. This is just one of those issues that I could see before the Supreme Court. So we have time until we get there.

It likely won't end up there for a while, but we'll see what happens. Moving on, earlier today, the Supreme Court allowed Texas to enforce age verification requirements for porn sites over objection from the adult entertainment industry. Let's give some background. As I typically like to do, Texas enacted a law that imposes new standards on commercial porn websites. So these commercial porn websites now have to verify the age of website visitors to ensure that they don't have minors going to the website, and also they have to display health warnings about the effects of the consumption of porn. Once this law was enacted, there was a trade group representing the adult entertainment industry that sued the state of

Texas on First Amendment grounds. Ultimately, on appeal, the Fifth Circuit issued a two-to-one decision finding that Texas had a legitimate interest in preventing minors access to pornography, and therefore the law as it pertains to age verification can stand. However, the law cannot stand as it pertains to the display of health warnings. That was compelling speech that violated the First Amendment. So following that decision, the trade group put in an emergency appeal with the Supreme Court seeking to put the appellate court's age verification decision on hold while the appeal proceeds. So while they petitioned the

Supreme Court to actually review the merits of the case. However, the justices refused to do so. They refused without an explanation. There was no noted dissent, but neither of those things are really expected when it comes to orders from the court, which are not to be confused with opinions from the court. Orders from the court are much shorter and to the point than opinions. But what this rejection from the justices means is that the Supreme Court can still decide to take up this case on the merits and actually decide the issue. They don't have to, but they can. But for now, while that appeal is pending, Texas can enforce the law as it pertains to the age verification requirement,

but cannot enforce the law as it pertains to requiring displays of health warnings. So that is what's going on in Texas. Now let's move on to what's happening in the House. House Democrats announced today that they would work together to kill an effort to oust Speaker Johnson. We know that Representative Marjorie Taylor Greene has been threatening a motion to oust Johnson for months now, and it was thought that the Democrats would help keep Johnson in his position if that motion was ever brought to the table. But today was the first time that Democrats actually voiced their support for Johnson and said that they would fight back against such a motion. House Democratic Leader Hakeem Jeffries, Democratic Whip Catherine Clark, and Democratic Caucus Chair Pete Aguilar issued a statement following this morning's caucus meeting,

and that statement said in part, quote, From the very beginning of this Congress, House Democrats have put people over politics and found bipartisan common ground with traditional Republicans in order to deliver real results. At the same time, House Democrats have aggressively pushed back against MAGA extremism. We will continue to do just that. At this moment, upon completion of our national security work, the time has come to turn the page on this chapter at pro-Putin Republican obstruction. We will vote to table Representative Marjorie Taylor Greene's motion to vacate the chair. If she invokes the motion, it will not succeed, end quote.

And in other news, sort of towards the end of the day today, multiple reports surfaced that said the DEA is expected to recommend marijuana be rescheduled as a Schedule 3 controlled substance versus a Schedule 1 controlled substance. And while this is certainly news worth talking about, I will eventually tell you why this move isn't really all that surprising. And if you've been here with my podcast for a while, you know this, but I'll go over it again. This all started when President Biden last year asked the Department of Health and Human Services Secretary as well as the Attorney General to review how marijuana is scheduled. And the way that they conduct this review is by looking at certain factors. So they'll ask, is the drug currently accepted in medical use treatment? Does the drug have abuse potential? If so,

to what extent? And how likely is the drug to cause dependence if it's abused? And then based on those answers to those questions, the drug will then be classified accordingly. If a drug currently has no accepted medical use in the United States, as well as a lack of accepted safety for use under medical supervision and a high potential for abuse, that drug will be scheduled as a Schedule I controlled substance. This is drugs like heroin, LSD, ecstasy, and yes, marijuana. If a drug has a high potential for abuse and can lead to serious dependence, whether that's psychological or physical dependence, that drug is classified as a

Schedule II controlled substance. These are drugs like oxycodone, fentanyl, methadone, opium, and codeine. If a drug has a potential for abuse, but less than Schedules I and II, and abuse would only lead to moderate or low dependence rather than severe dependence, that drug would be classified as a Schedule III controlled substance. And these are drugs like ketamine, anabolic steroids, as well as Tylenol that contains codeine. Schedule IV controlled substances have a low potential for abuse relative to Schedule III, and this includes drugs like Xanax, Valium, and Ativan. And then finally, Schedule V controlled substances have an even lower potential for abuse and contain limited quantities of certain narcotics. Think cough syrups with less than

200 milliliters of codeine per 100 milliliters, so Robitussin. That is how the classification system works. And even though Schedule 3 clearly is not the most lax of classifications, a reclassification of marijuana from Schedule 1 to Schedule 3 would certainly be the most significant cannabis reform in modern history. But the reason that I say the expected recommendation from the DEA isn't too surprising is because last September, less than a year after President Biden had asked these agencies to review the classification, the HHS secretary issued his recommendation that marijuana be reclassified. So it was really only a matter of time before

the DEA followed suit, and today we're getting those reports. Attorney General Garland supposedly plans to submit a draft rule to the White House Office of Management and Budget as soon as today, which would then have to follow the standard rulemaking process set forth by the APA, which could take months to finalize. But if and when that rule is finalized, marijuana would officially be reclassified as a Schedule 3 drug. So that's what you need to know about that. And we're going to finish this episode just by telling you about two things, not necessarily lengthy stories or big stories, just two things that I feel you should know that kind of touch on some episodes

from the past. So Donald Trump was held in contempt for violating Judge Merchant's previous gag order with seven social media posts and two statements on Trump's campaign website. Merchant ordered Trump to pay $9,000, $1,000 for each violation and also threatened jail time if Trump continues to violate his order. That gag order bars Trump from publicly commenting about witnesses, jurors, and other people involved in this case. And today, Judge Merchant only ruled on 10 of the 14 alleged violations sought by the prosecution, a whole rule on the remaining four as early as Thursday when a hearing takes place. So that is Judge Merchant's ruling. And then finally, let's just touch on the campus protests that sort of escalated overnight as Columbia's deadline of 2 p.m. passed and other universities also asked their students to go home.

Columbia protesters began occupying an on-campus building last night called Hamilton Hall, and they erected a sign that read Heinz Hall from one of the windows, which references a six-year-old killed in Gaza. Another sign hanging from Hamilton Hall reads, quote, liberation education, end quote. Columbia has threatened expulsion against the students who continue to protest, though they seem to be staying in place. And at Virginia Tech, at least 82 protesters have been arrested. At UT Austin, at least 79 people have been arrested. And at Northwestern University, the school announced that it reached a deal with protesters, that agreement requiring protesters to end their encampment, and also requires the school to answer questions from any internal

stakeholder about holdings currently held or held within the last quarter. It requires the school to reestablish an advisory committee on investment responsibility, and It requires the school to reestablish an advisory committee on investment responsibility and also requires the school to allow students to conduct peaceful demonstrations through June 1st. So those are some updates out of the campus protests. I hope you enjoyed tonight's episode. Have a great rest of your night and I will talk to you tomorrow.