OpenArgsWiki

24 January 2019

Listen to the Episode

From The Official Website:

Today’s episode tackles the recent Supreme Court orders in the Trump ban on transgender service members. How did we get here and what’s next? Listen and find out.

We begin, however, with a brief Andrew Was Wrong segment regarding the history and modern politics of the State of the Union.

After that, it’s time for the main segment, which dives deeply into the history of trans service in the U.S. military, including a discussion of what it means to bring a case pursuant to the equal protection clause and what the future likely holds.

Then, it’s time for a rapid-fire round of questions about Trump’s shutdown. Why is Congress still getting paid? Who can sue, and why haven’t they? Find out the answers to these questions and more!
We end, as always, with a brand new Thomas Takes the Bar Exam Question #111 regarding the delivery of water bottles.

Show Notes & Links

1. The must read Advocate Article interviewing long-standing friend of the show Alice Ashton.
2. 2016 Open Service Directive: Directive-type Memorandum (DTM) 16-005, "Military Service of Transgender Service Members"
3. 2017 Trump Memorandum rescinding the Open Service Directive
4. 2018 Mattis Policy: Military Service by Transgender Individuals
5. Mattis “Study”: Dept of Defense Report and Recommendations on Military Service by Transgender Persons
6. We last discussed Hively v. Ivytech (7th Cir.) and Zarda v. Altitude Express (2nd Cir.) in Episode 152
7. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011)
8. FLSA lawsuit regarding the Shutdown
9. Federal Judiciary extended to February 1st
10. 31 U.S.C. § 1350 – Criminal penalty

Law Talkin' Stuff

It's in the Constitution

• Fifth Amendment
• Fourteenth Amendment
• State of the Union

Lawsplaining

• 31 U.S.C. § 1350
• Anti-Deficiency Act
• Carter Policy
• Civil Rights Act (1964)
• Clear Statement Rule
• Executive Memorandum

Law Court Thingies

• Bolling v. Sharpe, 347 U.S. 497 (1954)
• Glenn v. Brumby, 724 F. Supp. 2d 1284 (N.D. Ga. 2010)
• Hively v. Ivy Tech, 853 F.3d 339 (7th Cir. 2017)
• Mississippi University for Women v. Hogan, 458 U.S. 718 (1982)
• Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
• Stone v. Trump, 1:17-cv-02459-MJG (2017)
• United States v. Virginia, 518 U.S. 515 (1996)
• Zarda v. Altitude Express (2018)

Magic Law Words

• Certiorari before judgment
• Doctrine of Reverse Incorporation
• Equal Protection
• Incorporation Doctrine
• Intermediate scrutiny
• Quasi-Suspect Class
• Rational Basis
• Strict Scrutiny
• Suspect Class

Organizations

• Second Circuit
• Seventh Circuit
• Eleventh Circuit
• US Supreme Court

People

• Donald Trump
• James Mattis

References

• Alice Ashton
• Barack Obama
• Belt & Braces Lawyer
• Blank Boxman
• Don't Ask Don't Tell
• John Roberts
• Nancy Pelosi
• Opening Arguments Wiki
• Originalism
• President Elizabeth Warren
• William Pryor

Topics

• 2018 - 2019 Shutdown
• Trans Bathrooms
• Trump's Trans Ban

Content

• [00:00:00] Intro
• [00:04:39] Andrew Was Right: History of the State of the Union
  • [00:06:01] Trump backs down on the State of the Union
• [00:11:08] Main Segment: Transgender Military Ban
  • [00:17:40] Don't ask, don't tell
  • [00:20:54] The medical cost of trans personnel
  • [00:23:38] Suicidal ideation
• [00:26:44] Commercial
  • [00:28:22] Mattis's deferment of the policy and ban
  • [00:28:59] Lawsuits
  • [00:29:17] Stone v. Trump (2017)
  • [00:33:13] The Doctrine of Reverse Incorporation
  • [00:34:34] Equal Protection
  • [00:39:20] Equal Protection and Trans men and women
  • [00:44:13] Mattis review
  • [00:54:22] What's coming next?
  • [01:01:50] The Take Away
• [01:04:33] Commercial
• [01:05:45] Trump Tweets (Listener Questions): Who has standing to bring a challenge an order to bring them back to work?
  • [01:08:25] If the Federal Courts are shut down will the cases ever be heard?
  • [01:09:40] Are there any more expedient ways to enforce the anti-deficiency act?
  • [01:10:28] Is there any mechanism to prevent the administration making very aggressive exemptions to the ADA?
  • [01:11:25] Who would be held liable for violating the ADA?
  • [01:12:36] Why does Congress still get paid?
  • [01:14:09] Should a liberal President shutdown the government for a liberal ideal?
• [01:19:06] Patron Hall of Fame
• [01:26:22] Thomas Takes the Bar Exam: 100,000 empty bottles sitting on a wall (question)
• [01:33:30] Outro

(The time stamps above are derived from the audio provided on the official website; they may vary from audio without ads that are provided through the patreon feed.)

Follow up

• Episode 261: More on the Trans Ban