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you know we filed a lawsuit in the city

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of New York late last week challenging

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mayor de Blasio's latest edict that

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all-out or you know protest activity

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First Amendment fundamental first

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mentality is banned in the city of New

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York yet he's got this open streets

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initiative where you know groups of

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people can cycle and and walk and do

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other things on these public streets

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that aren't constitutionally protected

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but yet if you're if you're a protester

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with a sign and you're even maintaining

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social distancing it's forbidden

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I mean they've essentially suspended the

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First Amendment in the city of New York

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and when you have all these exceptions

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and that's one of things when you look

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at so many of these lawsuits and Arce

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lawsuits as well one of the things we

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highlight typically is how irrational

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these decisions are in michigan for

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example you you have this random

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selection of which businesses are going

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to be open which ones aren't going to be

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open and I saw some one of the

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legislators made a comment in the news

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of the effect that you know you show up

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at one of the governor's press

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conferences and you wait for her to call

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your name that your business is open and

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okay now we're magically open it doesn't

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explain the decision-making that's going

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into this you know and we know that

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Tesla just filed you know filed a

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lawsuit in California and it's really

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going to that point you have different

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counties who are issuing different

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orders based on what it's it's just

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irrational how this is all being played

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out why one business and why one car

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factory in one County can operate

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successfully and safely but then you

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know in another County it can't white

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what was that what was the justification

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why'd these two counties have different

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different rules when when actually it's

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the governor's executive order that was

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issued that that you know should Trump

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over everything so it's just irrational

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way that all this is being handled is

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what I think is very upsetting to to

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most people and quite frankly is also

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the strongest position we have as a

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marital law challenging all these

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provisions whether they restrict

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fundamental liberties or whether they

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restrict property interests or any other

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liberty interests that we might have and

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what about these emergency orders that

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are giving these governors

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mayor's County officials this carte

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blanche to be making the decisions I

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looked into it here in California and it

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appears that there's no time limits to

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the governor's declaration of a state of

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emergency you would think at some point

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legislature comes in and can weigh in on

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it but as far as I can tell and talking

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to a couple of California attorneys

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about it and in me doing a little bit of

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my own research couldn't find any limit

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in California now in Michigan I think

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you guys did have a limit there and tell

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us about the battle between the state

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legislature and the governor there where

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they're trying to put checks on her

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yeah that's Michigan's and interesting

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an interesting example and I agree with

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your concern about in California like

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when do these emergency powers ending

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even like in Michigan there was a of a

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28 day you know state of her declaration

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of a state of emergency but then can you

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renew that on you know they 27 for

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another 28 days

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what's various thing about Michigan and

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you know we had this conversation the

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last time that we spoke that Michigan

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has in place a measure for legislative

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oversight for the governor as there

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should be and every way and hopefully if

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there's one of the after action items at

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the end of all this is every state

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legislature needs to go back and look at

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what their emergency orders are and

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whether or not they put in place

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provisions that there is legislative

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oversight there has to be one person we

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don't have a king or a queen one person

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cannot be the one that's the sole had

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the sole discretion of whether it should

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be it should not be open when when this

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blue and this you know erupted and here

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in Michigan

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the governor was principally relying on

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the Emergency Management Act which was a

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1976 Act which gives her authority she

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declares a state of emergency has 28

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days after 28 days she has to go back to

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the legislature and get an extension

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which that makes a lot of sense to be

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able to do and so she did in the

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legislature gave an extension for 23

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days and this is what we then we had

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talked about it and it was interesting

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to see that Michigan had a provision for

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legislative oversight but I said you

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know there's gonna be a constitutional

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crisis that's gonna be happening real

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soon when that second when that

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extension runs out and lo and behold we

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are now in a crisis because now the

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governor's relying on a 1945 order which

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statute which is the emergency powers of

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governor act and so she's claiming that

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she had now

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as authority independent of the

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legislature virtue by virtue of this

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emergency governor's powers act as

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opposed to the Emergency Management Act

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and it's gotten so bad that actually

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many of the local County prosecutors and

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even law enforcement saying the

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governor's orders are invalid our

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Michigan Attorney General who is in the

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same camp as our governor she's a

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left-wing progressive had to issue

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guidance on May 4th saying that look

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under under the emergency governor's

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prevent governor's powers act these

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orders are lawful and she expects them

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to be enforced as the top law

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enforcement officer of the state

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well the legislators have now sued the

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governor and so this is in the court of

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claims they've got a lawsuit going with

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as a battle going on between our

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legislature a legislative branch and the

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executive branch of whether or not which

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is the act that's actually going to that

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controls the and when you read the

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language of the two acts the Emergency

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Management Act the one that gives the

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legislative oversight gives broader plot

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powers and by its plain language it it

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would apply to a situation presented

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here a large public health crisis where

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you know extraordinary measures need to

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be taken by understanding you're gonna

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take these extraordinary measures you

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have legislative oversight the emergency

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governor's powers act of 1945 when you

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read it it was it was designed to be

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focused on really limited civil unrest

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right you have a riot that breaks out in

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Flint Michigan or Detroit Michigan or

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somewhere and there's a limited you know

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a short period of time a short duration

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public crisis that the governor needs to

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act and there's the john resources may

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be shut down roads shutdown travel do

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different things that might be strict

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Liberty but it was certainly for a short

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duration now we've reached the point

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that she said well it's not the

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Emergency Management Act I'm relying on

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it's the governor's Powers Act and it's

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unlimited I don't have this legislative

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oversight I'm in control I'm gonna do

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what I want to do and Michigan compared

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to the other three states we mentioned

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you've got some check on power there

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because you've got a Republican

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legislature do they does the Republicans

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that have both houses yes right so in

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the other three states you don't even

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have that but but but you wouldn't you

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would think that why is the governor

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fighting the legislature over this don't

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you want the legislature the legislature

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is the one that

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since the people in all the different

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districts why is she so invested in her

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wanting it to be her alone making the

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decisions why not allow the legislature

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to decide it those are the ones that

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represent the people it makes it makes

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zero sense to me even politically right

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because it she's certainly taken a lot

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of hits here in Michigan whoever's

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advising her politically this isn't this

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isn't helping the Rising Star at all as

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you you know your listeners and viewers

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may recall she's the one that gave the

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response to the Trump State of the Union

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address so she's was considered a rising

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star in the Democrat Party but she's

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she's taken a lot of hits here and there

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was an online I think it was a petition

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for recall and they had like 300

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thousand online signatures not granted

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they're gonna have to go out and canvass

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and get those in fact I also saw

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somebody sent they a post where she has

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a fundraiser going called stop the

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recall so in Michigan has a way to you

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know to recall a governor so that could

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very well be taking place but it makes

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it makes zero sense to me if you look at

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the national level we discussed this a

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little bit before as well you know

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there's always the the conflict when

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you're dealing with use of the military

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the president's the commander in chief

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the Congress is one that declares war

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they created this you know this War

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Powers Act that you got to go to

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Congress after a certain amount of time

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and in that way it's you know at that

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point you can get the the approval of

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Congress and for many for many of the

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you know for the presidents they do that

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because it makes it make sense in some

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respect cuz you're getting now the

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Congress to be vested in this and and to

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kind of be on the same team whereas it

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doesn't it doesn't even make sense

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politically while you would why you

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would shun that the legislators and all

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the people that they represent Michigan

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is a very very diverse state in so many

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ways it's kind it's a very interesting

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state politically because we have all

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the unions you know the automotive

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unions in Detroit and so nationally

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there's a lot of money that comes in on

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the national level and tend to our

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national level politicians the state

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senators and the congressmen tend to be

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more liberal and from the Democrat side

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and I think that's largely from again

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from the unions and the likes

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whereas locally and at the state level

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aside from our governor now it's it's

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been for a long time

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conservative in the in the legislature

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and why

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would should just be so dismissive of

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them and the way she the way she is it

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doesn't make sense in terms of how the

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government should run and how it should

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function and it doesn't make sense

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politically and now we've got a you know

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the the legislators have sued her and

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we've got the third branch of government

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the judiciary that's going to be

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weighing in on the and it's a mess

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has she restated what the objective is

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because I'm not sure I've seen any of

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these governor's who told us that this

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was about flatten the curve don't

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overwhelm the hospital's they got us all

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to buy in on the idea of flattening the

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curve so we don't overwhelm the

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hospitals none of us wanted to see

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people outside and lying in sidewalks

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and so on without beds available to them

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but as we talked about before the

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hospital's clearly are not overwhelmed

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in fact they're laying off employees and

282
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so on so what is the new standard

283
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clearly the standard is no longer not

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overwhelming the hospital's otherwise

285
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you would have started getting people

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back a lot sooner it would have happened

287
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weeks ago and certainly would be

288
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happening in a big big time now so has

289
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she announced any new standard no it's

290
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it's totally unclear to me it's it's

291
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there's no rational basis for the

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decisions that that she's making and I

293
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know you wrote an article recently about

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Governor Cuomo making the comment about

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you know it's every life is precious

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precious and and intimate value and so

297
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so now I guess the standard is you know

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not we don't want to lose one life

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because of kovat 19 which is I mean

300
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that's it's granted I you know I totally

301
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respect life I'm pro-life and Governor

302
00:10:38,270 --> 00:10:36,510
Cuomo's pro-abortion so it's kind of an

303
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interesting the economy but you can't

304
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use that as a standard if that's the

305
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case and this thing's never going to end

306
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I've had I haven't heard the governor

307
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say this but I've seen others saying it

308
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that we shouldn't have a full open

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backup of the economy until we have a

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vaccine for this right we don't always

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have vaccines we don't have a vaccine

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for AIDS you don't have a vaccine for

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the regular flu right you know it means

314
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not a you know I a cure you can you can

315
00:11:01,340 --> 00:11:00,000
get the flu shot but it's not a so I

316
00:11:03,230 --> 00:11:01,350
kind of guarantee that you're not going

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to get the flu that the standards that

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the goalposts you mentioned the

319
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goalposts and I they just keep

320
00:11:10,699 --> 00:11:08,939
moving when I do interviews about

321
00:11:11,989 --> 00:11:10,709
governor Wigner I got to get a scorecard

322
00:11:14,779 --> 00:11:11,999
to keep track of where we are on

323
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executive order number 77 since this

324
00:11:17,929 --> 00:11:16,709
started out they've amazing they've

325
00:11:20,299 --> 00:11:17,939
moved and we don't know where they've

326
00:11:22,549 --> 00:11:20,309
moved to that's the problem

327
00:11:23,719 --> 00:11:22,559
you know it give us okay that's fine if

328
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you decided it's no longer about

329
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overwhelming the hospital's then what is

330
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it now about because it seems to me

331
00:11:31,249 --> 00:11:29,279
there's only three ways this thing gets

332
00:11:34,549 --> 00:11:31,259
resolved you could get it down to

333
00:11:36,739 --> 00:11:34,559
absolutely zero cases and also turn off

334
00:11:38,799 --> 00:11:36,749
all travel so that no new cases could

335
00:11:41,149 --> 00:11:38,809
come in okay then the things

336
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theoretically done that doesn't seem

337
00:11:45,229 --> 00:11:43,019
practical that America could get down to

338
00:11:48,799 --> 00:11:45,239
zero cases and cut off all travel right

339
00:11:51,379 --> 00:11:48,809
the other is you can stay lockdown until

340
00:11:54,229 --> 00:11:51,389
there's a vaccine that's 12 to 18 months

341
00:11:56,749 --> 00:11:54,239
away no certainty that'll ever be found

342
00:12:00,349 --> 00:11:56,759
no certainty as to how effective the

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00:12:03,019 --> 00:12:00,359
vaccine will be or you can go with herd

344
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immunity Sweden appears to be going with

345
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herd immunity they think that they're

346
00:12:09,049 --> 00:12:06,419
very close to it that means that sorry

347
00:12:11,449 --> 00:12:09,059
but this thing is ultimately going to

348
00:12:13,009 --> 00:12:11,459
sweep the country let's make sure it

349
00:12:16,279 --> 00:12:13,019
doesn't do it so quickly so that we

350
00:12:18,649 --> 00:12:16,289
overwhelm the hospitals but otherwise

351
00:12:20,059 --> 00:12:18,659
that's the plan is hurting me that does

352
00:12:22,309 --> 00:12:20,069
appear to have been what we originally

353
00:12:23,840 --> 00:12:22,319
was the plan was again looking at those

354
00:12:26,449 --> 00:12:23,850
charts that they showed us showed us

355
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tons of people getting it over an

356
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extended period of time

357
00:12:33,739 --> 00:12:31,409
so governor's tell us what are you

358
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trying to achieve now with your orders

359
00:12:38,629 --> 00:12:35,309
are you trying to get us down to zero

360
00:12:40,789 --> 00:12:38,639
cases and cutting off all travel are you

361
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waiting you want us to wait 18 months

362
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and stay locked down until we get this

363
00:12:49,669 --> 00:12:47,909
possible vaccine or is the objective

364
00:12:50,779 --> 00:12:49,679
herd immunity because I think those are

365
00:12:52,579 --> 00:12:50,789
the only three options and if the

366
00:12:56,349 --> 00:12:52,589
objectives hurt immunity then we need to

367
00:12:59,569 --> 00:12:56,359
start letting people out yesterday I

368
00:13:01,369 --> 00:12:59,579
totally agree with you and and then once

369
00:13:04,339 --> 00:13:01,379
we could figure out where those goal

370
00:13:05,479 --> 00:13:04,349
posts are then I think the reason why

371
00:13:07,519 --> 00:13:05,489
they don't want to they don't want to

372
00:13:09,889 --> 00:13:07,529
cement those goal posts in is because

373
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then now they have to justify how their

374
00:13:14,179 --> 00:13:12,149
restrictions are gonna you know put that

375
00:13:16,340 --> 00:13:14,189
football through the post as it were

376
00:13:17,929 --> 00:13:16,350
saying with this this analogy but they

377
00:13:19,549 --> 00:13:17,939
keep moving the goalposts so their

378
00:13:21,110 --> 00:13:19,559
restrictions are as random is what

379
00:13:22,610 --> 00:13:21,120
they're they're you know they're

380
00:13:24,950 --> 00:13:22,620
objectives are I don't know if they even

381
00:13:26,960 --> 00:13:24,960
know I mean it's just well I hope

382
00:13:28,430 --> 00:13:26,970
leaders there they're just the harmony

383
00:13:30,769 --> 00:13:28,440
ders I don't know what to say they just

384
00:13:32,870 --> 00:13:30,779
they they don't they don't certainly

385
00:13:35,060 --> 00:13:32,880
exude confidence in the end the people I

386
00:13:37,880 --> 00:13:35,070
think people when you see Tesla suing

387
00:13:39,950 --> 00:13:37,890
government officials in California you

388
00:13:43,130 --> 00:13:39,960
know there's a problem going on well I

389
00:13:44,510 --> 00:13:43,140
hope that your cases somehow can help

390
00:13:46,760 --> 00:13:44,520
try to root that out I hope that you

391
00:13:50,180 --> 00:13:46,770
really pressed them to basically say hey

392
00:13:52,700 --> 00:13:50,190
you need a fundamental compelling

393
00:13:55,519 --> 00:13:52,710
government interest and don't just tell

394
00:13:57,500 --> 00:13:55,529
me it's health you know or don't just

395
00:14:00,320 --> 00:13:57,510
tell me all life is priceless and we

396
00:14:03,230 --> 00:14:00,330
want to save all lives tell me precisely

397
00:14:04,490 --> 00:14:03,240
what is your objective here so let me

398
00:14:06,800 --> 00:14:04,500
ask you from a legal perspective I mean

399
00:14:08,360 --> 00:14:06,810
is that a fair question to ask them in

400
00:14:11,930 --> 00:14:08,370
court and require these states to come

401
00:14:15,110 --> 00:14:11,940
back and tell us what exactly precisely

402
00:14:22,250 --> 00:14:15,120
are you trying to achieve not just

403
00:14:24,800 --> 00:14:22,260
broadly public health yeah and it blends

404
00:14:26,720 --> 00:14:24,810
with not only stating the interest but

405
00:14:28,190 --> 00:14:26,730
how what it is the restriction they have

406
00:14:29,750 --> 00:14:28,200
how it promotes that interest was then

407
00:14:30,980 --> 00:14:29,760
requires them to narrow down

408
00:14:32,720 --> 00:14:30,990
specifically what it is that they're

409
00:14:34,670 --> 00:14:32,730
trying to accomplish and that the goal

410
00:14:36,560 --> 00:14:34,680
that they that they put in place is a

411
00:14:38,949 --> 00:14:36,570
least restrictive means of doing so and

412
00:14:41,210 --> 00:14:38,959
I mean it's long-standing in

413
00:14:42,350 --> 00:14:41,220
constitutional jurisprudence that when

414
00:14:43,519 --> 00:14:42,360
you're applying strict scrutiny in

415
00:14:44,810 --> 00:14:43,529
particular and when you like for example

416
00:14:47,090 --> 00:14:44,820
in New York when you're shutting down

417
00:14:50,150 --> 00:14:47,100
all first lemon outdoor up to our First

418
00:14:51,650 --> 00:14:50,160
Amendment activity you're you're now in

419
00:14:53,930 --> 00:14:51,660
strict scrutiny standard it's the

420
00:14:55,940 --> 00:14:53,940
highest level of scrutiny that the

421
00:14:58,970 --> 00:14:55,950
government has to satisfy and it's their

422
00:15:01,610 --> 00:14:58,980
burden their burden alone to convince

423
00:15:04,490 --> 00:15:01,620
the court that not only is the interest

424
00:15:08,120 --> 00:15:04,500
compelling and but that the that their

425
00:15:09,949 --> 00:15:08,130
means of achieving that also satisfy the

426
00:15:12,170 --> 00:15:09,959
the least restrictive measure

427
00:15:13,730 --> 00:15:12,180
requirement and and that's it's very

428
00:15:15,170 --> 00:15:13,740
high there's a reason why when usually

429
00:15:17,240 --> 00:15:15,180
if you're applying strict scrutiny it's

430
00:15:19,160 --> 00:15:17,250
almost fatal in fact to begin with

431
00:15:22,490 --> 00:15:19,170
because the government has a very very

432
00:15:24,949 --> 00:15:22,500
heavy burden to satisfy and whenever you

433
00:15:27,620 --> 00:15:24,959
have these exemptions and the numerous

434
00:15:28,490 --> 00:15:27,630
exceptions that that are in place and

435
00:15:30,350 --> 00:15:28,500
you're dealing with the fundamental

436
00:15:32,240 --> 00:15:30,360
Liberty you lose you lose strict

437
00:15:34,130 --> 00:15:32,250
scrutiny almost as a matter of law and

438
00:15:35,240 --> 00:15:34,140
that's what we have here like in New

439
00:15:37,670 --> 00:15:35,250
York you you

440
00:15:41,780 --> 00:15:37,680
engaging group you know First Amendment

441
00:15:43,820 --> 00:15:41,790
activity protesting mayor de Blasio's

442
00:15:45,500 --> 00:15:43,830
policies on the on the streets outside

443
00:15:47,030 --> 00:15:45,510
of City Hall but you can you know ride

444
00:15:49,070 --> 00:15:47,040
your bikes and do any other things out

445
00:15:49,460 --> 00:15:49,080
there let me just there's just those two

446
00:15:52,670 --> 00:15:49,470
things

447
00:15:54,080 --> 00:15:52,680
don't come don't don't comport and and

448
00:15:57,410 --> 00:15:54,090
it is I don't see how this is gonna

449
00:16:00,620 --> 00:15:57,420
survive five screws so let's talk about

450
00:16:02,570 --> 00:16:00,630
what court rulings there are so far out

451
00:16:04,010 --> 00:16:02,580
there I know you've got brought some

452
00:16:07,040 --> 00:16:04,020
cases that resolved in some very

453
00:16:09,710 --> 00:16:07,050
favorable settlements in Michigan but

454
00:16:12,950 --> 00:16:09,720
what about actual Court rulings thus far

455
00:16:14,930 --> 00:16:12,960
about this pandemic yeah I you know I'd

456
00:16:17,000 --> 00:16:14,940
have to do a survey so much of these

457
00:16:18,950 --> 00:16:17,010
things are so quick they're usually in t

458
00:16:20,570 --> 00:16:18,960
arrows and the two cases that we have we

459
00:16:22,910 --> 00:16:20,580
got stipulated court orders the first

460
00:16:27,100 --> 00:16:22,920
one totally resolved itself on behalf of

461
00:16:29,990 --> 00:16:27,110
a pro-life demonstrator when she had to

462
00:16:31,610 --> 00:16:30,000
concede that her order has to permit

463
00:16:33,980 --> 00:16:31,620
outdoor force women activity and the

464
00:16:36,110 --> 00:16:33,990
criminal complaint against was dismissed

465
00:16:37,370 --> 00:16:36,120
yeah let's let's talk about that one

466
00:16:39,410 --> 00:16:37,380
just for a second because it ties to New

467
00:16:41,780 --> 00:16:39,420
York when so bottom line governor

468
00:16:43,220 --> 00:16:41,790
basically back down and said I get it

469
00:16:45,590 --> 00:16:43,230
you gotta allow First Amendment

470
00:16:49,850 --> 00:16:45,600
protesting it wasn't a court ruling it

471
00:16:53,450 --> 00:16:49,860
was the governor stepping away from that

472
00:16:55,010 --> 00:16:53,460
right well but we to make sure there

473
00:16:57,110 --> 00:16:55,020
wasn't going to be any waffling in

474
00:16:59,180 --> 00:16:57,120
moving of the goalposts on this we put

475
00:17:00,950 --> 00:16:59,190
it into a stipulated order between the

476
00:17:04,100 --> 00:17:00,960
parties signed by the order signed by

477
00:17:05,990 --> 00:17:04,110
the parties and signed by the judge so

478
00:17:09,230 --> 00:17:06,000
that it would be an order that was

479
00:17:10,670 --> 00:17:09,240
enforceable and not just you know so

480
00:17:14,210 --> 00:17:10,680
your case against DeBlasio is very

481
00:17:15,860 --> 00:17:14,220
similar to that it is but same thing

482
00:17:17,390 --> 00:17:15,870
with de Blasio because when you're suing

483
00:17:20,929 --> 00:17:17,400
a governor they have Eleventh Amendment

484
00:17:22,819 --> 00:17:20,939
immunity in in federal courts and so all

485
00:17:24,590 --> 00:17:22,829
you can get is prospective and in Joe

486
00:17:27,079 --> 00:17:24,600
spective relief an injunction or a

487
00:17:29,480 --> 00:17:27,089
declaration sometimes these cases can be

488
00:17:31,550 --> 00:17:29,490
mooted you know what the goal posts keep

489
00:17:33,440 --> 00:17:31,560
moving and then they'll you know they'll

490
00:17:35,930 --> 00:17:33,450
try to dismiss it on mootness grounds

491
00:17:38,240 --> 00:17:35,940
the issue with DeBlasio he's a city

492
00:17:40,400 --> 00:17:38,250
official he did this as his authority as

493
00:17:41,660 --> 00:17:40,410
the as the mayor he doesn't have

494
00:17:43,610 --> 00:17:41,670
Eleventh Amendment immunity we have a

495
00:17:46,490 --> 00:17:43,620
nominal damage claim so we're gonna get

496
00:17:47,780 --> 00:17:46,500
a final resolution on this on this one

497
00:17:49,370 --> 00:17:47,790
way or the other he's not going to be

498
00:17:50,930 --> 00:17:49,380
able to moot it out by

499
00:17:52,640 --> 00:17:50,940
by backing away from it because that