Advisory Opinions - Ducklings Have Come Home to Roost

Episode Date: August 19, 2021

In today’s episode, Sarah takes listeners along on a wildlife rescue mission that involves a baby turtle, a surprise rain storm, and mosquito netting. But don’t worry, it has a happy ending. Our hosts then turn to the Biden administration’s proposal to tie mask mandates to civil rights law and the latest development on the “remain in Mexico” policy. Finally, Sarah and David discuss the Texas Supreme Court ruling that is bad news for Texas Democratic lawmakers trying to avoid arrest. Show Notes: -The Dispatch Live on Afghanistan -New York Times story on Biden administration’s move against mask bans -Texas federal judge's ruling on “remain-in-Mexico” -Texas Supreme Court ruling on Texas Democratic lawmakers Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And we're going to have an interesting podcast today. We've got some legal stuff to cover. The Biden administration yesterday indicated that it was going to try to use federal civil rights law to mandate masks in schools with outbreaks. Now, a lot of details are unknown about that, but we're going to talk about that. We're going to talk about an interesting ruling on the Trump administration's remain in Mexico policy, where it looks like some law that was used against Trump is now being used against Biden to nobody's surprise. Sarah's going to update us on shenanigans in Texas. But before all of that, Sarah, you fought a battle yesterday.

You fought a battle and you were trying to bring a tiny bit of good news and humanity into a really bleak week and month. And tell us about that fight. Did you win it? What is going on? So David, I think I might've unwittingly starred in an M. Night Shyamalan movie about ducks yesterday. Oh, no. Okay. So, like in the movie Signs, we need to back up to my childhood. My mother was a licensed wildlife rehabilitator

in Texas for 10 or 15 years when I was growing up. She specialized in raptors, hawks, owls, and deer, but we took in everything. We had a nutria, we had a coyote, tons of baby rabbits. And one time we got a little duckling. I was very into the duckling. He was terribly cute. We have pictures of me and the duckling. And I came home from school one day and a snake had gotten the duckling he was terribly cute we have pictures of me and the duckling and I came home from school one day um and a snake had gotten the duckling oh this is not uncommon where I lived snakes were snakes took out a lot of our critters um I'd already want to talk about what happened to our chickens that we had when I yeah yeah anyway so um fast forward for no particular reason uh we've been trying to teach nate like duck say quack like that's the animal we've all honed in on this past couple weeks here

we're down in florida um also relevant to this is that my husband came in the house after having been in the pool in this little house that we're at and did not dry himself off because he went to the fridge to like get a drink or something. And so then I, who did not know any of this, came zooming by a few minutes later, slipped, fell and like really hurt my foot and my knee. And like I'm sort of, you know, battered and bruised. All right. Oh, no. So yesterday we decide to take Nate to the wildlife rehabilitation, uh,

sanctuary because they're permanent residents. It's, um, save our seabirds, a great organization here in Sarasota. Uh, they put their permanent residents on display. So like you can walk through and see,

you know, 20 pelicans who have a life sentence um you know they generally were juveniles who became pure rats and get tangled up and so they are now living out their lives uh in what amounts to like something between a frat house and a day spa for pelicans and they've got a whole bunch of other birds and anyway we pack up the car and we're heading there and there's a road closure that has like backed up traffic in sarasota like spa for pelicans and they've got a whole bunch of other birds. And anyway, we pack up the car and we're heading there. And there's a road closure that has like backed up traffic in Sarasota, like horribly, like we're just sitting there. And so we're like, you know what? This isn't like,

this is not fun for anyone. Let's call an audible and just go to the public park down the street. So we go to the park. Um, now because of my injury, I can't wear shoes and um it's not like i can't crawl around after nate and stuff so uh i'm like sort of like sitting off into the sidelines watching him have fun and i hear this woman say hey kids do you want to see a baby turtle and i was like what so she hands these like five to seven year old like gang of marauders like a quarter-sized turtle and of course these kids like literally you could squeeze it to death oh these kids are like oh my gosh so I walk over and I'm like hi can I see the turtle and so they hand it to me and I do not give it back and I'm like do you, can I see the turtle? And so they hand it to me and I do not give it back. And I'm like, do you want to show your moms the turtle or anything like that? They're like, yeah. So whatever. And then I'm like, all right, there's the turtle. I'm going to go release the turtle.

And there's a little pond nearby. So shoeless me, I go to the pond, sort of enjoying my break from kid watching for a moment and like make sure that the baby turtle makes his way. for a moment and like make sure that the baby turtle makes his way. After like maybe two minutes, I look over and there's three baby ducks. And I'm like, that's weird. Ducks, unlike a lot of other birds and mammals for that matter, like if you find baby rabbits and mom's not there, no problem. That's what mom does. She leaves the baby rabbits. You know, obviously lots of, That's what mom does. She leaves the baby rabbits. Obviously, almost all baby birds are left behind while parents go get food, but not ducks. Ducks should always be with their mother. So I'm like, well, maybe they're not ducks. There's a blue heron next to them. And I'm like, I guess I don't have a lot of experience with seabirds. So I'm Googling blue heron babies.

Do they look like ducks? I'm like, no, that doesn't. All of a sudden, I'm like, wait a second. No, no, no. The bill's totally different. These are ducks. So then I start looking for mom and way across the pond, I see a matching duck and I go over mom's not in good shape. Mom definitely has a broken wing, but probably more than that. Cause mom's not moving away from me. So mom's maybe been hit by a car, has some head injury maybe. So I'm like, oh no. Oh no, what am I supposed to do? I have training for this, right? Right. But I don't have any equipment. I don't have a cardboard box. I don't have a towel. I got nothing. I literally don't even have shoes. So I call 311. They connect me to the sheriff. The sheriff connects me, gives me phone numbers for a bunch of their local rehabbers. So I call 3-1-1. They connect me to the sheriff. The sheriff connects

me, like gives me phone numbers for a bunch of their local rehabbers. So I start calling through the rehabbers and, uh, it's rush hour and no one wants to come help. So I finally get to like the organization and we talk through it. Like mom is stable. She's not going to move. They can easily find her later. The baby ducks are very strong. Someone passes by. I know they've been out there for at least a day because this person saw them by themselves yesterday. But all in all, they're very healthy looking. And so the rehabber and I decide they'll come get them in the morning. I give them the location. Great. In the meantime, Nate has thrown a fit. He's very tired. He doesn't want to be there anymore. And so I tell Scott and my dad to take

Nate home and I'll call them to come back and pick me up. So after all of this, the rehabbers aren't going to come. I call Scott to come pick me up. Then there is a torrential downpour. I mean, torrential. And you're out there. Just out there. And I'm out there. And there's no cover, which is not a problem. I'm not a witch.

I don't melt in water. But my iPhone can. And so I'm trying to shield my iPhone. So I find this big tree that has a bunch of roots. And I kind of like create a little tent out of my shoes for my iPhone. But I also need glasses. And if you wear glasses, you know that like when it rains and your clothes are soaking wet, you kind of can't see anymore. So I'm like over in the parking lot. Uh, you know, the, the ducks are at sort of

like 12 to two o'clock. I'm now at like five to six o'clock on the lake, the pond. And, um, to six o'clock on the lake, the pond. And all of a sudden I hear this woman yelling and I look over and there is an off leash dog where the mother duck was, but now in the water. Oh no. So David, my shoes, my phone, and I run back over to the other side of the pond. I can't really see.

And then all of a sudden in the water, I see this black thing, but it's like not. The dog, you know, pushed the duck into the reeds so that the duck is now submerged and trapped about, I don't know, 20 feet into the water. So yeah, I just, I jumped in the pond. Now, Sarah, nature is red in tooth and claw. And were you, did you consider you might've been interfering with the food chain here

or was this more like- No, it was a golden retriever. So this was not a meal the golden retriever needed. This was- No, it was a fluffy, well-groomed golden retriever with some Karen who went to a pond full of shorebirds and didn't put her dog on a leash. I was really pissed off. and didn't put her dog on a leash,

I was really pissed off. And at this point now, covered in pond muck and mud and scum, my iPhone is soaking wet. I've also got another problem, which is my husband has been told that he's just coming to pick me up and now I am holding a duck. Oh my goodness.

And the duck, by the way, is in worse shape than I thought. You know, ducks don't get wet. You know, water off a duck's back. That's because of these oils that they preen themselves. They preen themselves for a lot of the day. That oil prevents water from ever penetrating. This duck is soaking wet to the bone.

So like if water penetrates into a duck's skin, they can get hypothermia pretty quickly. So now I am clutching the duck to me to try to keep the duck warm and waiting for Scott. We are both soaking wet, me and the duck. It is still raining pretty heavily. And now, I mean, there's so many problems that I now have, right? Because I'm holding a duck. My husband's coming to pick me up. I can't call because if every time a water drop hits the phone, it like dials that number. It thinks it's my finger or something. Um, and I've got three ducklings that are still out there. Can't leave the ducklings. Okay. So Scott pulls up. He's not amused, David, not amused, little confused.

We have no cardboard box, no towel still. Cause I didn't tell him to bring one. Um, so I use the, the, they, he had still left the stroller in the back of the car. So I use the stroller to create a small space in the back of my car. And I put mother duck in that small space, blocking her from moving too much using the stroller. None of the rehab numbers are answering the phone anymore. Now I've got three again, I remembered that I had brought a mosquito net for the stroller. We had never used it here because it's like this weird, you know, it's weird, but it came with the stroller. So I dig through the car and find the mosquito net. And I get my annoyed husband to come round up ducklings with me. If there is some CCTV camera out there at Payne Park in Sarasota, like this was humorous.

This is just me chasing ducklings with a net, throwing myself at the ducklings. I get the biggest duckling. That is always the key. You want to get the ringleader. He is freaking out. I keep telling him that I have no intention of eating him, that nobody wants to eat him.

He's not a very tough duckling. Does he not understand? He is still quacking very loudly at me, fighting, until I get him to the back of my car and he sees his mother, who he has not seen we know, in at least a day,

probably a couple days at this point. And it is the cutest, sweetest. You know, ducklings have like a sweet little chirp that they use when they're near their mother. If you've ever heard ducklings following their mother, it's very different than quacking. And he goes straight into his mom noises. Now I've got to get the two siblings. Scott, I mean, we're using like military symbols of like moving around shrubbery. There's nowhere to corner the ducks. It's just like a pond. And the last thing you want is the ducklings to go in the pond because I don't want to go swimming again. We get the ducklings, David.

And then we go to Save Our Seabirds, the place that we were trying to go in the first place. Amazing. It is after hours at this point, but I like stand at this gate and just like keep calling for someone. Cause you know, someone's in there. I mean, I know how rehab works. You can't leave the animals. You're feeding them every two hours and someone comes out and the mom and the three ducks are all together in their rehab facility. And, and I feel like it was a series of events that had to happen. I had to have the rehabber's background. The baby turtle had to be found and handed off to the kids. I needed to be injured so that I couldn't really help with Nate at all.

It was providential, Sarah. It was providential. Now the question is, what purpose, what larger purpose in the world do these ducks have? Because like they're the ones, you know, like it's their story really. Well, we do know one purpose. It is to give us a 14 minute and 20 second break from news about Afghanistan. So, you know, that's one purpose. I gave the ducklings like as I was waiting for Scott to pick me up, I was like, they probably have a 40% chance of surviving because they've got to survive through the night. Then the rehabbers have to actually come, have to find them, et cetera. But they're

pretty strong. The mom, I did not give a very high percentage chance. But you know what? Those ducklings, they're great. They're going to live just fine. I don't know how the mom will do. She's obviously quite injured. But at least the ducklings got to spend a night with their mother again. And I feel like, yeah, it's this really happy story. And clearly, those ducklings have been anointed by God. They are the chosen ducklings. They're going to go live out their lives somewhere and have some grand purpose of ducks they are destined for greatness i think there's very little doubt about that yeah that's pretty amazing that is pretty amazing when you told me in slack that this had happened i didn't i for some reason i didn't imagine a fluffy golden retriever being the homicidal dog. Yeah. You know what? The good guys are the bad guys in this story, for sure.

The golden retriever is definitely the bad guy. Although, you know what? The golden retriever plays an important role because I would have left them all. But for the golden retriever, I don't hop in the pond and then I'm holding a duck. So really, maybe they owe the golden retriever a thanks. Yeah, could be. So are you going to call the rehabbers later today and ask how the duck did? You know, we had a policy in Texas Wildlife Rehabilitation Coalition, which is where my mother worked.

You don't ever give updates. So I'm not going to call because I assume they have the same policy. Interesting. You know, you don't want to tell people that there was a sad ending to their story for a couple of reasons. A, you don't want to tell people that there was a sad ending to their story for a couple of reasons. A, you don't want to make it a downer, but also B, you don't want them to think that next time they shouldn't bring it to the rehab facility, that they should try on their own or something.

Like maybe the rehab birds didn't care enough or something like that. You don't want people going all vigilante, you know? Yeah. Yeah, exactly. So moral of the story, that's what 311 is for guys. Two, there are in, I think every community in the United States at this point, licensed wildlife rehabilitators that you can call. And they're incredibly well-trained, empathetic, wonderful people who love all animals, except my mother who refused to take squirrels and raccoons.

Oh, is that right? Yep. Straight up refusal. Wouldn't do it. Oh, that's funny. That's funny. Well, thank you for sharing that story. That's, I'm just putting myself in the Scott position. Yeah, that's the real, yeah. He wasn't, but you know what? Caveat emptor. He knew, he knew what he was marrying. That's right. That's right.

At any moment, he's going to drive. You never know when you're going to, that's right. At any moment, he'll drive up and you're cradling an injured animal. I mean, it's just. That's right. Frankly, he's lucky it was a duck. It could have been an alligator. That's right. I mean, you're cradling an injured animal. I mean, it's just. That's right. Frankly, he's lucky it was a duck. It could have been an alligator.

I mean, you're in Florida. That's right. I did have this thought of like when I jumped in the pond that like, boy, that's going to be crappy if someone has to explain to Nate that he lost his mother to like one of those Florida pythons. Yeah. Much less an alligator. Yeah. Yeah. Much less an alligator. Yeah. Okay. Well, that's a good change of pace for

advisory opinions. It is August after all. Yeah. And change of pace for this week, quite frankly, which has been ugh. But if you want to, I will say i do want to make a recommendation before we move on to the rest of the podcast last night steve tom jocelyn and i had a um dispatch live which is going to be released as our dispatch podcast and which you can already see if you're a dispatch subscriber about afghanistan and i highly it. I highly recommend it. As far as granular knowledge of what is going on, the history, the dynamics of the situation, you're just not going to get better than Tom Jocelyn on this. He was fantastic. It was the best commentary I've heard about the situation. And by best, I don't mean best takes.

I mean, best informed. I mean, it was really, he was so, so informed. So I highly recommend that. Well, let's move on to the latest round of the endless domestic mask culture war. My town, Sarah, and I can't remember if we talked about it uh a little bit or not previously i don't think we did but my town yep my town went viral um president mentioned my town because we had a really dreadful uh incident um oh i think we talked about it in the Dispatch podcast, but we had a really bad incident. We had a whole bunch of people show up to talk about masking policy in the local schools in our school system. And overwhelming numbers of those who showed up in person were

anti-mask. Interestingly, the large majority of the people who wrote in to express their opinion were pro-mask. So the anti-mask people showed up in force. The pro-mask people tended to keep their comments written. And after a very raucous meeting where there was a lot of heckling and shouting and shouting down of some of the pro-mask parents. Some folks went out and actually threatened some of the pro-mask parents and medical professionals who testified in favor of masks. It was caught on video, as everything's caught on video now. It went very, very, very viral. It was very ugly it was something that was really um just out of character well let me put it this way two years ago i would have said now this is really out of character for our

community now unfortunately i don't have that same opinion and um it was just another part of these escalating wars going on over masking. And now in Florida, there are counties in Florida that are openly defying Governor DeSantis's order that there be no mask mandates in schools. And it's a mess. It's a mess. President Biden jumped in yesterday and he, I will just begin by reading the first couple of paragraphs of the story from The New York Times. President Biden escalating his fight with Republican governors who are blocking local school districts from requiring masks to protect against the coronavirus said Wednesday that his education department would use its broad powers, including taking possible legal action to deter states from barring universal masking in classrooms. He's directed Miguel Cardona, his education secretary, to, quote, take additional steps to protect our children, including against governors who he said are setting a dangerous tone and issuing executive orders banning mask mandates. Our governor issued an executive order essentially granting parents the ability to opt their kids out of a mask mandate. So what's happening is if a local school district is doing something that a lot of people don't want done, they're going to escalate to the state. The state is then reversing the local school district

and then people are going to the federal government and saying, can the governors reverse these local school districts? And Biden is saying that he's going to look into a mask mandate. Now, Sarah, when you heard that, what was your first legal thought? thought? I thought, hmm, there is going to be a civil rights statute out there. I wonder what it says. And you would be correct. Now, they are talking about Title VI, which is the Title VI of Civil Rights Act of 1964, which prohibits discrimination based on race, color, and national origin. And that is a stretch, I think. That is a stretch. Now, there is definitely evidence that school closings have disproportionately impacted minority students. That's absolutely the case. disproportionately impacted minority students that's absolutely the case um but at title six that's that i that one that's a reach but but but section 504 of the rehabilitation act of 1973 which is an act prohibiting discrimination against individuals on the basis of their disability in federally funded programs. So here is the question, Sarah.

If you are an immunocompromised person, if you're a person who has your disability renders you more vulnerable to disease, your disability renders you more vulnerable to disease, and a school is refusing to impose a mask mandate, does this law apply? And quite honestly, it's a very interesting question, I have to say. Now, there are people who are listening to this podcast right now because there is no conversation about masks that can be undertaken at a decibel level of less than 120 who are screaming at the top of their lungs, the science doesn't indicate that masks protect kids and schools. Okay. It strikes me like this,

and you tell me where my reasoning is flawed. If the CDC has determined, now we can fight about whether the CDC's determination is correct, that kids should be masked, that their recommendation is that kids should be masked for reasons of public health. It strikes me that if you're going to argue that this statute does not apply when there are individuals, qualified individuals with disabilities who are immunocompromised in schools who have a right to receive education in this federally funded program, that it is,

that you might have an uphill climb, you might have an uphill climb in arguing that this statute doesn't protect them in these circumstances. Tell me if I'm wrong. So this reminds me a little, just a little, of the CDC's eviction moratorium argument, that there is very broad statutory language

that they then want to apply very broadly. If you remember in the CDC's eviction statute argument, um, you know, they can do quote unquote anything, uh, to prevent the spread of a communicable disease. Well, that has no limiting principle whatsoever. Um, and that's a problem for any legal argument and any statutory argument. I do think you have a problem here where yes, section 504, um, the purpose is to eliminate discrimination on the basis of disability, but there's no obvious limiting principle. So for instance, if there were, you know, one student in a school district, uh, who I'm trying to think of a, you know, one student in a school district, uh, who I'm trying to think of a, you know,

very extreme example, um, you know, would benefit from every other student wearing a full hazmat, you know, costume or whatever, uh, then by not having every other student in the school district where that, are you discriminating against that one student? No, I think that clearly is not part of Section 504's protection. There has to be a reasonableness requirement. So then the question is, let's say you read in the reasonableness. read in the reasonableness, um, our masks, a reasonable thing. So for instance, uh, we mandate vaccines for all sorts of things for students, the most highly communicable diseases, not all of which by the way are deadly. A lot of schools, uh, mandate at this point, the chicken pox vaccine, uh, an example I've used on this podcast before as someone who had chicken pox twice, uh, before it was just like, someone who had chicken pox twice. Before it was

just like you'd have chicken pox parties and you'd make sure your kid got chicken pox early on and that was that. But some of us get it a second time. And by the way, the second time really sucks. It's worse the second time. So I think this is a losing argument, but it might provide enough legal cover and delay that you will allow some school districts to say that they're between a rock and a hard place. The federal government says that they must have a mask mandate. The state government says that they, in fact, are prohibited from have a mask mandate. The state government says that they, in fact, are prohibited from having a mask mandate. The school district then is actually in a pretty good position legally to do what they want at that point until a judge orders them to do something else. And that may be the whole idea behind this. So yeah, there's a couple of aspects about this. One, I think you hit the nail on the head as far

as the reading reasonableness into the statute. And so then you're going to end up with a giant food fight over the reasonableness from a scientific basis of a mask mandate in schools, which is what is being fought out school district by school district in a lot of places right now, or state by state in a lot of places right now, with a lot of furious disagreement on both sides. And I think the reality of the matter is,

and I'm not going to, on this podcast, adjudicate the science, okay? So you can continue screaming at your iPhone right now, but I'm not going, adjudicate the science. Okay. So you can continue screaming at the, uh, at your iPhone right now, but I'm not going to adjudicate the science. And as a general matter, as a general matter, I don't think the courts are necessarily going to adjudicate the science either. They're going to adjudicate the reasonableness on the, of the reliance on whatever science the CDC is relying upon. That is exactly right and worth emphasizing. It is the reasonableness of someone else's view of the science, not of the science itself. Yes, exactly. So in that circumstance,

that's why I think if you're going to talk about, so for example, if the Biden administration said, you know, look, to protect immunocompromised individuals, every single person who is eligible for a vaccine must be vaccinated. I think that would pass legal muster as long as you had, for example, some of the religious exemptions, but with the religious exemptions, you could require masking and testing and frequent testing as in Indiana University. So that would be something that would be, I think would, would meet legal muster. So then you're going to just get into the reasonableness of masking itself. And, and this is something that, uh, you know, it's going to be, if he follows through with

it, if he follows through with it, heck yeah, it's going to be fought out in court with a lot of forum shopping going on and some competing court rulings I can easily imagine. Um, so let's, let's put a pin in this. We don't, we don't know what'll happen quite yet. and some competing court rulings, I can easily imagine. So let's put a pin in this. We don't know what'll happen quite yet. You know, David, the other thing that I think is worth noting here is, you know, okay, so we have students with a health-related disability, so to speak, high-risk students.

Those are the ones that are being targeted by Section 504 that the Department of Education is going to take up the mantle for. But it sort of misses the point on school mask mandates. Let me tell you why. Because I mentioned this on the other Dispatch podcast, and I've gotten a lot of tweets and emails from angry, angry people. As you said, decibel level 120. I know. So I want to explain the issue here in my view. And again, I got a lot of emails about the science. Totally understand, you know, one person correctly.

I don't dispute, you know, that COVID is the 10th cause of death among those 1 through 17. Injury, suicide, cancer, homicide, congenital anomalies, heart disease, influenza, COVID, way down there. Totally agree. Here's the problem. One, unlike adults with children, particularly children under the age of 12 who cannot be vaccinated, we often don't know which ones are at high risk. You won't know if your kid has a heart condition oftentimes until they're in high school or college, as we have tragically seen, as I experienced in my own time in high school, not me, obviously. So A, you don't actually know. B, there could be someone at home, you know, even if these kids all

spread COVID amongst themselves and they're perfectly fine, they live with their grandparents. And we know the vaccines are wearing off in effectiveness. Can that kid go to school if the grandparents are at high risk and the grandparents are their primary caregivers? are at high risk and the grandparents are their primary caregivers. And bucket number three, again, aside from these obviously high risk kids, is the hospitals. Okay. Yes, not death. But the problem again for young children is things can move pretty quickly in terms of needing medical attention. And we do not have the hospital capacity to look after everyone who might need medical attention because of COVID right now. So we need to minimize the number of people who have COVID symptoms. ERs are overwhelmed. Alabama has negative ICU beds. There was reporting reporting on that. That is part of this whole issue. Now, if you can show that masks do nothing

to prevent the spread of COVID, then you have failed a different reasonableness standard. Fine. But if the CDC has evidence that masks do anything to help prevent the spread of COVID, yeah, I think David's absolutely right. You're going to have forum shopping. You're going to have dueling district court opinions. I think you might even have dueling circuit court opinions. I think this one could be a good one for SCOTUS if the time allows, if that makes sense. Right, right.

And hopefully, the continued spread of vaccinations, hopefully by lifting the age limits on allowing younger kids to be vaccinated, hopefully the spread will be so reduced that it effectively moots out these cases. That's what we would hope. But as of right now, there is no sign of that. There is no sign of that. hope. But as of right now, there is no sign of that. There's no sign of that. And by the way, it is worth clarifying. Of course, a state that says you cannot mandate every student wear a mask does not mean that individual students can't wear a mask. And I am curious how school districts are dealing with, you know, Sally comes to school with a note that says, I mandate that Sally wear a mask. Please enforce Sally, who's only six, that she needs to wear a mask all day. Are the schools going to be capable of, willing to? And I think that's

probably just going to be school to school. And the other thing is there's a practicality element of this as well, the younger the kids get. It's less a mask mandate than it is a best efforts advisory because, yeah, a six-year-old, a seven-year-old wearing a mask all day, that is a tall order. That is a tall order. Yeah. And if Sally's primary caregivers are her grandparents and we know that vaccine effectiveness wears off over time, they can't get their third booster shot yet, et cetera, et cetera, they have a really hard choice to make of whether to send her to school. And schools then, at this point, I think, are going to have to offer hybrid learning and allow

kids to stay at home. Allow, not force kids to stay at home like they did last year, which again, will just have societally wide effects that I don't think we can begin to understand yet. stay at home, allow, not force kids to stay at home like they did last year, which again, will just have societally wide effects that I don't think we can begin to understand yet. It is bad. All of it is bad, bad, bad, bad. But don't forget there's three ducklings who are alive today. So. Yeah. Well, you know, it's interesting. So my, my youngest, she is 13. She, so she spent her whole sixth grade year and we were very fortunate. We did not miss a day at her school because of COVID. Her school was open the whole school year, last school year. And she wore a mask every single

day. And I did not hear, she did not complain one time, not one time. And then school year starts and the rule at our school is very reasonable in my view. If you're a vaccinated age, if you're vaccinated, you don't have to wear a mask. If you're not vaccinated, you do. She wore a mask in solidarity to make

those kids who are not vaccinated yet feel less isolated. She voluntarily wore it. I was very proud of her ever been a more french family gesture she is she is a sweet through and through yeah she is a sweet kid um shall we move Immigration? Yes. Live by the APA, die by the APA. Yeah. So this is a case coming out Biden administration's suspension of the migrant protection protocols. This was the, just reading from the district court opinion,

migrant protection MPP was a program implemented by the Department of Homeland Security that returned some aliens temporarily to Mexico during the pendency of their removal proceedings. Plaintiffs allege that DHS's two-sentence, three-line memorandum that suspended enrollments in the Migrant Protection Protocol's pending review of the program was a violation of the APA and a binding agreement between Texas and the federal government. Now, shall we rewind the clock just a tiny bit before we talk about this?

That whole opinion felt like a troll of the Chief Justice. It didn't, though. It really did. So, rewinding the clock a little bit, loyal advisory opinions listeners will remember that the Trump administration attempted to repeal DACA. DACA, which is the program implemented via memorandum during the Obama administration, not by regulation, but via memorandum, which was an exercise of quote-unquote prosecutorial discretion designed to protect childhood illegal immigrants from deportation. Kids who are brought in to the United States, protecting them from deportation. Dreamers. So this was a very popular policy, but it was not one enacted by statute or regulation, the Trump administration decided to revoke it

with really not a two or three sentence revocation, but a relatively short explanation, essentially saying, we don't think this is lawful, we're gonna revoke it. Case goes all the way up to the Supreme Court of the United States, and the Supreme Court says that the Trump administration's revocation of DACA

doesn't say that DACA was lawful, but it says that the revocation of DACA violated the Administrative Procedure Act. So by being arbitrary, capricious, and abuse of discretion, et cetera. You and I talked about this. And my conclusion- We don't even need to talk about this case because we should just like cut and paste from our conversation about that one because the same

my exact same criticisms apply yeah so uh what the arbitrary and capricious standard has become is can you read a judge's mind and it's actually maybe worse than that because what actually in reality ends up happening is that the judge looks at what you've done comes up with something you didn't do because they now already get to see what you did do and says ah uh you did uh these five things but there was a sixth thing you could have done, and I want to strike this down. Therefore, because you did not do thing number six that I have come up with, your actions were arbitrary and capricious, and therefore, you must continue or stop doing this thing that you were doing. or stop doing this thing that you were doing. The chief justice used this and the DACA case. And I mean, truly, truly, David, this opinion felt like it was like, oh, I just thought this was how the APA worked now. Thank you, Mr. Chief Justice.

And you know what? I think it's a good example of why the APA cannot work this way. It's a bad way for this to work. Administrations should be able to undo the actions that were just done through executive order. These weren't even done through executive order often. The, the DACA, um, was a guidance. Yeah. Memorandum. Yeah. Mem. Yeah, memorandum. So the idea that we're going to delay those things from happening, it was bad when it happened in the Trump administration, even if you disagreed with the policies. And you see why now, because if you were rooting for DACA to continue for as long as it could, you're seeing your ducklings come home to roost? Yeah. I mean, it really is. And just to give you a sense of the distortion of the law here, and this is something we talked about before,

is that the arbitrary and capricious standard is supposed to be, and this is another thing that is kind of humorous as we watch the courts completely change its meaning, highly deferential. And when you say highly deferential, you mean highly deferential. I mean, arbitrary and capricious review across the board in American jurisprudence, I mean, you've got to be, you have to have lost your mind to lose under arbitrary and capricious review. It's got to be something like, we're going to have a remain in Mexico policy so that migrants can enjoy the unicorns in Mexico. Like, what? Unicorns in Mexico?

That sounds arbitrary and capricious to me. It's true, though. And don't forget, in the DACA case, not only did the Trump administration, and full disclaimer per usual, I was in the Department of Justice when the letter was issued, rescinding, attempting to rescind the DACA memorandum. And I was there during the litigation. Okay. Disclaimer over. Not only though, David, was there the initial letter attempting to rescind DACA because the attorney general had said that it was most likely unlawful and was going to be found unlawful by the courts after its DACA ruling. But there was a second letter that said, also as a matter of policy, and after lots of consideration, I've decided this is bad public policy for the United States. And the court said, ah, the second letter doesn't count because of the first letter. And the first letter, we don't know whether DACA is unlawful. You were relying on a fifth circuit opinion. Meh. And therefore that's arbitrary and capricious. It was like,

you had to want it so badly. And it was a very outcome driven opinion. And then you go to this remain in Mexico policy. First of all, I think I even said this at the time, David, that this was a tax, a stupid tax on the Trump administration because future administrations like the Biden administration surely would have lawyers paper the whole thing up really nice and neatly. I am stunned that the Biden administration after all of this and after DACA thought that their recension of the Remain in Mexico policy was remotely OK. What lawyers, dear lawyers in the Biden administration, what the what were you not paying attention? Yeah, a two sentence, three line memorandum that that is that suspended enrollments in the migrant protection protocols. That is that suspended enrollments in the migrant protection protocols after what the Supreme Court did in DACA.

Two letters, multi-page letters. I mean, please refer to exhibits A through M. I mean, yeah. So I guess I'm happy about it because I think at this point that case will go up and perhaps I guess I'm kind of hoping it goes to the Supreme Court and they're like, JK, JK, we're setting a new arbitrary capricious standard. Here are the actual factors to consider. It is highly deferential because, you know, I'm mocking this Judge Kaczmarek a little for his troll of the chief. But you know what? There's an argument

that he is simply following the precedent of the Supreme Court. The chief showed the way. I mean, you know, that's the thing is these decisions have consequences. And it's something we again, we talked about before is it felt to us that the chief was over it. He was over the Trump administration. Trump administration. The census case where there was some deceptive litigation in the lower courts, the DACA case where he felt like the administration didn't dot its I's, cross its T's, and it felt like the chief was just over it. He was over it. But there's no such precedent that says, I am over the Trump administration. No it's, no, there's got to be something more than that. And the more than that was this, you know, basically pumping steroids and human growth hormone into the arbitrary and capricious standard

to the point where it's now striding onto the field like late career Barry Bonds. And it's just, he can knock, you can use it to knock any kind of regulatory change you want right out of the park. So, man, I love that. I love that analogy. My goodness, I'm proud of that one.

I just, I want to pause for a minute. And bask in your own glory. I want to just bask in my own glory, yes. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos.

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Use code ADVISORY at checkout to save. Terms and conditions apply. All right, so can we stay in Texas and you tell us what the heck? Okay, so I've been following this really closely and nobody else has. And we haven't discussed it on advisory opinions because it's August and we've been doing off topics. And I'm really glad we have it because this whole thing has now come to its conclusion. And now it's a more exciting story to tell.

So. As many people did notice, the Texas state House Democrats fled the state to prevent the House from having a quorum. So in Texas, it's sort of like the Senate filibuster. You know, in the Senate, you have to have 60 votes to move forward on a piece of legislation. Now, if you don't have the 60 votes, you just go do other business. In Texas, you have to have two thirds present to have a quorum. And if you don't have that, then nothing happens. So it's more like a real filibuster. As far as I know, this was first used or most dramatically first used in 1979 with the killer bees, they were called. This does not refer to our little buggy friends, but rather to the Texas legislators who fled the state in 1979. So then fast forward in the

2000s, once again, they fled, this time over redistricting into Ardmore, Oklahoma and New Mexico. And then now they fled to D.C. So per usual, every time this happens, they're basically an arrest warrant of sorts goes out and says, if you find these people, you have the authority to arrest them and bring them back to the chamber where we will lock them inside and make them vote on things. bring them back to the chamber where we will lock them inside and make them vote on things. Well, our House Democrats in Texas got clever and two lawsuits were filed. One was an insane person lawsuit. It was filed by a former congressman who had had his license suspended for all sorts of legal client-related shenanigans. He claimed, interestingly, David, going back to the mask mandate conversation,

he claimed a civil rights violation because the members were targeted based on their race, religion, and national origin. And how did he argue that? Because some of them were of different races and religions and national origins. Not how that works, dude. He also filed it in federal court, which was a weird move. And it turned out that he did not have any of these Texas House members permission to file a lawsuit on their behalf. Certainly several of them have raised their hands and said, whoa, whoa, whoa, we've never seen this before. This is a sanctionable brief. No, no. Okay.

Not that lawsuit. There's a different lawsuit that was filed, this time in state court, this time making real arguments. And it was filed as a application for a temporary restraining order. And it was filed as a application for a temporary restraining order. They had four arguments. One, the Texas Code of Criminal Procedure provides that a licensed peace officer may arrest a person only for a crime. under the House rule that they passed that he could go and get them, could only be used to execute subpoenas and other process to request their attendance at the Capitol, but not arrest.

Three, the Texas Constitution says, quote, senators and representatives shall, except in cases of treason, felony, or breach of the peace, be privileged from arrest during the session of the legislature and in going to and returning from the same and forth due process under the Fourth and Fourteenth Amendment.

Okay, I'm going to really focus on this third one, though, because I read that and thought, well, golly gee, has Texas just gotten this wrong for the last 40 years? Senators and representatives shall, except in case of treason, felony or breach of the peace, be privileged from arrest during the session of the legislature and in going to and returning from the same, meaning if the session is going on, wherever they are, they can't be arrested. And if they're on their way to session or going home from session, even if the session has been adjourned or it hasn't started yet, that to me looked pretty definitive. So a judge grants the TRO saying that they are privileged from arrest. But like everyone's scratching their head because this has been part of Texas's history. And by the way, if you get rid of that threat

so that it just that you don't have to show up if you don't like what they're voting on, that ends the Texas filibuster as we know it. And they'll have to change all the rules because like there's no bar to make that harder. Yes, it makes it a lot more like the U.S. Senate's filibuster, but the U.S. Senate can then continue with other business. In Texas, it would just be the end of state legislature. So which, by the way, given polarization and animosity and all of that, people would do that. Oh, 100 percent. I think they'll do this. So here's the problem.

They left out a pretty relevant part in their argument because the Texas state constitution also says-thirds of each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day and compel the attendance of absent members in such manner and under such penalties as each house may provide. Wah, wah, wah. side. Wah, wah, wah. Yeah. So the Texas Supreme Court's like, literally the Justice Blacklock delivered the opinion of the court. That is what starts the opinion, is just him quoting Texas Constitution Article 3, Section 10. So obviously, yes, they can arrest members. They can use any such penalties as each house may provide as chosen by the people who are still there. So you need the quorum to do business, but a lesser number can choose the manner in which to compel attendance. The Texas Supreme Court, though, goes out of its way to say, hey, by the way,

this is what's wrong with ex parte TROs. You granted this pretty massive political question without ever having heard from anyone but the Democratic members themselves. So, David, I think that's like a really good example of why we don't do things ex parte, meaning ex parte, by the way, means that you just have the one party in front of the judge instead of both. Ex parte TROs are used correctly in my view when there is sort of eminent danger. You know, you need literally an ex parte TRO because you've, you know, fled your house and your abusive husband says he's going to come kill you. So you run to court to get a TRO as quickly as possible. So that way the police have something

to enforce. It is not for this. And it's embarrassing, frankly, both for the judge who signed it, obviously a Travis County judge. There was a lot of foreign shopping here, but also for the Democratic members who did this. Y'all, you knew it because it's literally part of the quorum rule that you're citing to leave the state in the first place to prevent them from doing business. Come on. Yeah, it's the ex parte element of this. Yeah, just come on. The ex parte element is,

I have gotten ex parte orders, but my goodness, they were extreme circumstances. I got an ex parte order once. And judges are very disinclined to do them. Like you need to sort of overcome a huge barrier to not hear from the other side. They could have had a hearing on this two days later and it would have been just fine.

Yeah, yeah, exactly. I tell you, if you want to understand, it's interesting to me the extent to which Texas politics, interestingly enough, has sort of forecasted some of our extreme polarization. You guys will indict politicians you don't like. Going back to Tom DeLay, I mean, Governor Perry was indicted for, what was it, for threatening a veto or for an actual veto? God, I don't even remember now because it's not considered, it's like, yeah, everyone has an indictment against them. The forum shopping in Texas has gotten so out of control.

You're not a real politician in Texas unless you've been indicted in a political prosecution. Yeehaw. Oh my goodness. All right. Well, before we leave, I have a pop culture recommendation. I think I've said it before, but I've now finished the entire six-season arc of the series.

Line of Duty. It's on Amazon Prime, I believe. Maybe the first few seasons. I have BritBox. It's a BBC crime drama about an internal affairs unit, what they call anti-corruption there. And it is so good. It is so good. It is so good. I got an email from a listener because I had said on a previous podcast that I really have been enjoying British crime dramas, Broadchurch,

Happy Valley. And they said, you have to watch Line of Duty. Started watching it. I later found out, you know who else loves Line of Duty? Queen Elizabeth second loves line of duty so that's interesting because i've been watching a show that deals directly or indirectly uh with her ascension to the throne i've been watching the spanish princess which is uh you know henry the eighth story through the eyes of catherine of aragon no no that's okay I'm talking the current Queen Elizabeth. No, but the current Queen Elizabeth, like, she is part of a long lineage. Oh, oh, so you're, okay, so you're going way back to the dynastic line. I mean, truly, but for Henry, you know, divorcing Catherine and taking up Anne Boleyn,

Elizabeth I is Anne Boleyn's daughter. I mean, this is how I think of my ducklings. Like, you don't know what events you are putting into play with even small choices, like the fact that you want to marry your mistress. Didn't even think about that. Didn't even think about that. Didn't even consider that. So my ducklings might start a whole dynasty.

But I will say this about Line of Duty. I've been watching it where in all these British crime dramas, I've been watching them so much. It's I'm now getting American and British criminal procedure mixed up. Oh, David. Near as I can tell, you would rather be a criminal in Britain than in the U.S. because the odds of a draconian punishment and or a deadly force used by the police are less.

But where you really don't want to be a criminal defendant in Britain compared to America is once the legal system gets rolling. Yes, obviously so. Yeah. But anyway, Line of Duty, start watching it. And if you haven't seen it, I envy you because you've got six great seasons of TV

to see for the first time. And I've already, I've seen it all. I'll watch it again, but I'll never have that opportunity to see it all for the first time ever again, Sarah. So anything else for the good of the group? No, we've got some more good August episodes upcoming. Yes, we do. So tune in on Monday. And before then, please rate us on Apple Podcast.

Please subscribe on Apple Podcast. And also, as I said, and I say, check out thedispatch.com, but especially check out the Dispatch Live that we did last night on Afghanistan. As I said before, Tom Jocelyn was outstanding. You will learn a lot if you listen to it. But buckle up because it's pretty grim. There is much less hopeful than how we started this podcast, let's just say. But please listen to it. Seriously, it was very, very good, fantastic content. And I was really proud to be a part of that because just hearing

Tom concisely explain what has occurred and we utilize his vast experience, it's well worth your time. So check that out and then come back to hear us on Monday. And thank you for listening.