Celebrate Thanksgiving this year with "Coale Mind," which examines the legal underpinnings of our country's national holidays. Somewhat surprisingly, they are grounded in a fairly obscure part of the U.S. Code that sets vacation policy for federal employees, rather than one of the more well-known portions of that Code or the Constitution. From there, I examine some interesting lessons that the scheduling of Thanksgiving, in particular, has to teach us about (1) the growth in the power of the fed...
Nov 21, 2021•10 min•Season 2Ep. 9
In 1895, the Supreme Court affirmed a contempt conviction against Eugene Debs, the leader of a nationwide strike by railroad workers. The conviction arose from a federal-court injunction, obtained by federal prosecutors to prevent private actors from infringing on activity protected by the U.S. Constitution. Both the United States and the State of Texas rely on that opinion, In re Debs , in the ongoing litigation about the constitutionality of the new Texas abortion statute. The strength of the ...
Oct 30, 2021•12 min•Season 2Ep. 8
This episode reviews the new Texas law (Tex. Educ. Code sec. 28.0022(a)(4)(A), (C)) about teaching "Critical Race Theory" in the state school system. My special guest is my friend of more than thirty years, Dr. Michael Hester of the University of West Georgia, who teaches in its communications school, coaches the debate team, and serves as a special advisor to the university's Chief Diversity Officer. In this episode we consider: What is "Critical Race Theory?? Where does it come from? What ques...
Oct 10, 2021•42 min•Season 2Ep. 7
A few weeks ago, I considered whether the new Texas abortion statute, the "Texas Heartbeat Act," violated the "Separation of Powers" Clause of the Texas Constitution of 1876. This week I examined whether the Heartbeat Act may violate the "Open Courts Clause," another unique feature of the 1876 state constitution, which also has no direct equivalent in the U.S. Constitution. While the application of that clause to the Act would raise some novel questions, the near-shutdown of abortion services in...
Oct 03, 2021•7 min•Season 2Ep. 6
"Treason!" cry former President Trump and supporters, criticizing calls made by General Mark Milley to his counterparts in China and other countries during the waning days of the Trump Administration. This episode considers the validity of that claim, both under the Constitution's definition of "treason," as well as general principles about civilian-military relationships in the United States.
Sep 26, 2021•10 min•Season 2Ep. 5
I talk "the state of the State" with Matt Rinaldi, the new statewide chair of the Texas Republican Party. We succinctly talk about the Governor's emergency powers, the power grid, border security, SB8 -- and, a special bonus topic that you must listen all the way to the end to hear!
Sep 19, 2021•13 min•Season 2Ep. 4
Building on an insightful op-ed in today's Boston Globe about the Supreme Court's 1981 Grendel's Den case, this episode considers whether the Heartbeat Act's delegation of enforcement authority to millions of private citizens may violate the Texas Constitution's separation-of-powers clause -- a clause that does not appear in the U.S. Constitution.
Sep 08, 2021•9 min•Season 2Ep. 3
In this episode I interview my old friend Chrysta Casteneda, a well-known oil-and-gas litigator in Texas who ran for a position on Texas's powerful Railroad Commission in 2020. She describes why the "lights went out" in Texas in February 2021 as several things went wrong at once, and examines whether we have done enough to protect ourselves against another epic failure of our electrical grid as the state continues to grow.
Sep 05, 2021•23 min•Season 2Ep. 2
Welcome to the second year of Coale Mind! In a previous episode of this podcast, I questioned whether the U.S. Court of Appeals for the Fifth Circuit – the federal appellate court for Texas, Louisiana, and Mississippi – may have grown more conservative than the U.S. Supreme Court under the leadership of Chief Justice Roberts. In particular, I looked at two Fifth Circuit cases that the Supreme Court reviewed in the last term— Collins v. Yellen , about the structure of the regulator for Fannie Mae...
Aug 22, 2021•9 min•Season 2Ep. 1
Various speakers associated with the "Q" phenomenon have recently claimed that Donald Trump can be "reinstated" as President, based on the hoped-for outcome of ongoing "audits" of 2020 election ballots in battleground states. This episode reviews the relevant text of the Constitution, noting that (1) voters choose Presidential electors, not candidates, and (2) the 20th Amendment speaks directly to the time that a new President and Vice-President takes office, and concludes that no "reinstatement...
Jun 06, 2021•9 min•Season 1Ep. 30
Special guest! Jason Bloom, one of the nation’s leading jury consultants, talks about his experiences with jury selection during the COVID-19 pandemic. From that foundation, he and I talk about issues likely to arise as jury trials return to reopening courthouses across the country. They include: - A surprising eagerness of people to show up and serve on juries, in part driven by widespread feelings of frustration after months of shutdown; - Concern about what Jason calls the “massive exercise i...
Apr 18, 2021•30 min•Season 1Ep. 29
The Constitution protects economic liberty, but only against regulations that lack a rational foundation in a legitimate governmental interest. Two recent cases from the U.S. Court of Appeals for the Fifth Circuit show how slippery this principle can be in practice. The underlying principle is alive and well, but "rationality" is a fairly easy burden for a regulator to satisfy. In one, a Louisiana ban on the making of funeral caskets by Catholic monks was struck down (in no small part, because t...
Mar 21, 2021•9 min•Season 1Ep. 28
Despite the disappearance of the shadowy "Q," and the failure of the long-promised "Storm" to occur, followers of "QAnon" still hold out hope. Some believe that President Trump will return to power on March 4, 2021, in the reversal of an 1871 that turned the US into a "corporation" (spoiler alert--it didn't). Another view is that "NESARA," a secret package of economic reforms, will kick into gear in the summer of 2021, bringing about the return of President Trump and at last triggering the "Stor...
Feb 28, 2021•12 min•Season 1Ep. 27
In just the first few weeks of his Administration, President Biden has issued 20-plus executive orders--a noticeably faster pace than his immediate predecessors. What exactly is his authority to issue such orders? And what are the limits on it? This episode of Coale Mind examines the text and structure of the Constitution to identify some answers--both substantive, and procedural.
Feb 07, 2021•10 min•Season 1Ep. 26
The Senate plans to begin a second impeachment trial of Donald Trump. Can it do so under the Constitution? This episode looks at the Constitution's text, evidence of the framer's intent, two historical impeachment cases, and the Constitution's structure. It concludes that the answer is likely a matter of political will and consensus, which the two historical examples (former Senator William Blount in 1798 and former Secretary of War William Belknap in 1876) show is hard to actually sustain all t...
Jan 24, 2021•11 min•Season 1Ep. 25
The pardon provision in Article II of the Constitution is broad -- but so are other clauses that describe other aspects of the Presidency. This episode of Coale Mind reviews those terms of the Constitution, and considers how our debate about them reflects our society's broader debate about what we want the United States to be.
Jan 10, 2021•7 min•Season 1Ep. 24
Sixth Street in Austin is one of the nation's most famous "party streets." But is also the location of a Texas-style showdown between the governor, on the one hand, and the local mayor and county judge, on the other, about the regulation of bars and restaurants during the COVID-19 pandemic. This episode looks at the laws underlying their dispute (which just reached the Texas Supreme Court in its first case of 2021), and examines how those laws help explain the broader structure of our modern loc...
Jan 03, 2021•12 min•Season 1Ep. 23
The Supreme Court's recent rejection of the Texas v. Pennsylvania lawsuit has produced some muttering on the far right wing about the concept of secession. This episode examines Texas v. White , the 1869 Supreme Court case that held -- once and for all -- that a state cannot secede from the United States. The case arose from shady dealings by the Confederate government of Texas involving millions of dollars (1860 dollars, mind you) in U.S. bonds. The desperation of the Texas government in 1865 s...
Dec 13, 2020•10 min•Season 1Ep. 22
The Presidential election of 1876 was spectacularly fouled up. Three states certified dueling slates of electors; Congress resolved the resulting confusion with a political compromise about the end of Reconstruction, and then passed laws to try to avoid a similar crisis in future years. While we have been lucky since 1876 to not have another election with so many technical problems, the laws passed by Congress are not imperfect. Many of their nuances are very much alive today, and form a big par...
Dec 06, 2020•20 min•Season 1Ep. 21
The issue in Roman Catholic Diocese of Brooklyn v. Cuomo was whether a governor's order about maximum gathering size unfairly restricted religious liberty; by a 5-4 margin, the Supreme Court found that it likely did. The reasoning of the Court, and the concurring and dissenting Justices, suggests ways that the Court may examine future cases about COVID restrictions. It also shows the immediate impact that Justice Barrett's appointment has had on the Court, particularly on the issue of protecting...
Nov 29, 2020•9 min•Season 1Ep. 20
President Trump's die-hard supporters are calling on his lawyers to "Release the Kraken," in the form of (as-yet-unknown) evidence showing alleged election fraud. This episode looks at the history of the mythic Kraken, and notes that the sailors who created the myth were afraid to say its name because it was such an alien and powerful force. Accordingly, the Kraken may not be the wisest myth to incorporate (or "syncretize") into our modern Constitutional dialogue about election law....
Nov 22, 2020•8 min•Season 1Ep. 19
This episode looks at Bogert v. Secretary, the first U.S. Circuit-level case to result from the aftermath of the 2020 election. The case focuses on the concept of "standing"--a limit on judicial power that flows from the words "case or controversy" in the Constitution--to find that two important election-related issues had not been presented in a manner that the federal court system could address.
Nov 15, 2020•6 min•Season 1Ep. 18
In 1603, Sir Walter Raleigh was convicted of treason and executed based on an out-of-court statement by Lord Cobham -- despite Sir Walter's objection that "[Lord Cobham] is in the house hard by, and may soon be brought hither." The result of Raleigh's trial is a rule against "hearsay" testimony, and that rule was dispositive of a vote-counting case in Michigan last week. Raleigh is best known for introducing tobacco-smoking to Europe, but his legacy is also directly relevant to our ongoing elect...
Nov 08, 2020•11 min•Season 1Ep. 17
Last week in Pool v. City of Houston , the Fifth Circuit confronted a "zombie statute"--a law that nominally remain in the law books even though they are unenforceable after having been found unconstitutional. (There are dozens of such laws across the country, including many old Jim Crow-era segregation laws, as well as the ordinance against same-sex marriage that was struck down in Obergefell v. Hodges .) The plaintiffs, who wanted to circulate petitions in Houston to begin the citizen referend...
Oct 25, 2020•8 min•Season 1Ep. 16
Abbott and Costello struggled to answer, "Who's on first?" In election cases today about the COVID-19 pandemic, that same question--applied to the specific defendants who have been sued--can resolve the case, and implicates basic principles about how our government is organized. This episode considers Mi Familia Vota v. Abbott, a recent Fifth Circuit case about election law, in which the Court concluded that the plaintiffs had sued the wrong defendants (Texas's Governor and Secretary of State)--...
Oct 18, 2020•10 min•Season 1Ep. 15
A Texas statute allows registered voters, age 65 or older, to request an early-voting ballot that may be returned by mail. In a 2-1 decision, the Fifth Circuit recently rejected a claim that this statute impermissibly "abridged" the rights of younger voters in violation of the 26th Amendment. The majority and dissent used the same basic approach to review the case--first, identifying a baseline level of protection for the right to vote, and then, measuring whether the Texas law was an "abridgeme...
Oct 11, 2020•10 min•Season 1Ep. 14
For many years, state legislatures chose the Presidential electors, and popular vote played no role. Since the 1830s, though, legislatures have chosen to allocate electors based on the results of the popular vote for President. The Constitution still gives state legislatures broad power to appoint electors, however, and the COVID-19 pandemic could create situations where a legislature will want to intervene in the elector-appointment process. This podcasts considers the source of that power, the...
Oct 04, 2020•14 min•Season 1Ep. 13
Are Judge Amy Coney Barrett's religious beliefs off-limits for her upcoming confirmation hearings? At first blush, yes, particularly given the long and unpleasant history of anti-Catholicism on the national political stage. But on a second look, and considering the well-settled concept from trial practice about "opening the door" to evidence on a particular issue, there is a distinct and important role for questions about religion. Judge Barrett's first law review article as an academic suggeste...
Sep 26, 2020•12 min•Season 1Ep. 12
How does the Constitution limit the power to appoint a Supreme Court justice in the last year of a Presidential term? By putting one-third of the Senate, which must consent to the new appointment, up for re-election. If the electorate in the key Senate races believes that no nomination should be made to replace Ruth Bader Ginsburg in 2020, the voters can exercise their power and even deny the President's party a Senate majority. And if the voters are unpersuaded that the issue is important, then...
Sep 19, 2020•11 min•Season 1Ep. 10
A Presidential election in the United States is a process, not a date. The Constitution and federal statutes set six key dates for that process in 2020. This episode reviews their history, and considers how each date could lead to conflict in a highly polarized climate: November 3, 2020. Election Day -- the end of vote collection , but the start of vote counting ; December 8, 2020. "Safe Harbor Day" -- the day a state's resolution of a dispute about electors becomes binding (the date that drove ...
Sep 19, 2020•11 min•Season 1Ep. 11
