Stock photo: Tvirbickis, Getty Images
This week’s topics: Medical marijuana; executive privilege; benchsplaining
Welcome to Session/Law Sound-off, the weekly current events quiz where we approach smart folks from across the political spectrum and they tell us what’s on their minds. Their views are entirely their own.
Query 1: A state worker’s comp law mandate that employers reimburse injured workers for medical marijuana was killed by the Supreme Court this week. The majority said it conflicts with federal law and could lead to aiding and abetting charges against companies—though the dissent highly doubts that. Legal nuances aside, do you think employers should be required to cover the costs of medical marijuana for injured workers suffering chronic pain?
Ember Reichgott Junge, attorney, former DFL state senator: I’ve honestly never thought about this question. But it would seem to me that current law should remain the same and be continued.
Erick Kaardal, government watchdog attorney: I don’t personally object to it. But the federal and state government need to get on the same page so that we can move forward on these public policy issues.
Asad Zaman, political activist, Muslim imam: Probably. If it’s a medical expense, it should be a medical expense. Employers are not supposed to be able to choose and say we only cover penicillin but we don’t cover Tylenol. They’re not supposed to have those rights. The issue here is, does that constitute medical care? The legislature needs to step in and answer that question. The Supreme Court is doing this because the federal legislature has not done its job and there is now a mismatch between the federal and the state laws. At the end of the day, the law should be clear. It isn’t—that is part of the problem. And then employers need to stay in their lane. Your job is to run your business, make money and stay out of other people’s lives.
Jennifer DeJournett, conservative political operative: No, I think the federal government needs to make a decision so we don’t have a piecemeal policy all across the country, putting the judiciary, employers and employees in this awkward situation.
Floyd B. Olson, retired former Hennepin County senior attorney: Probably. When it’s ordered by a doctor, it should be paid for.
Query 2: Ex-Trump officials and advisors are subject to congressional subpoenas demanding they appear before a special committee investigating the Jan. 6 Capitol seige. The former president tells them not to comply, citing executive privilege, which could result in Congress actually jailing people for refusing to cooperate. It’s all very dramatic, but let’s go high level here: Just philosophically, do you think ex-presidents should retain executive privilege?
Reichgott Junge: A few years ago I would have said executive privilege should extend into the post-presidency. But now that politics has trumped truth, I think it is important that documents be made available post-presidency when circumstances such as national security or possible criminal or ethical misconduct warrant it. I believe President Biden made the right decision to release the documents to the committee. What we really need is a definitive framing of “executive privilege,” both during and after presidential service. However, I’m not sure who has authority to define it!
Kaardal: No. There is no reason for it. Even in national security matters, there can be other protections of the information. After a president has left office, with respect to public matters Congress should be able to investigate whatever the ex-president has done. Now, of course, that power can be abused for political reasons. But it’s an important aspect of democracy that Congress gets to investigate the former administration for its conduct.
Zaman: Definitely not. I have a strong feeling about that one. And not just this ex-president. No ex-president should. There needs to be oversight. Yes, Congress can and does behave melodramatically and some Congress people are conceited little brats, I get that. But at the end of the day, we have to have a tool to hold the executive accountable. Just signing a blanket privilege and escaping questioning, that is not acceptable.
DeJournett: I think the only winners are the lawyers in this. They’re all going to make a ton of money. If I agree with whoever is making the executive call, I think they should have the privilege. And when I don’t agree with them, I don’t think they should. [Laughs.]
[Editor’s note: That last answer reminds us of the folksinger Phil Ochs’ description of mid-1960s liberals: “Ten degrees to the left of center in good times; ten degrees to the right of center if it affects them personally.”]
Olson: I don’t think they should retain executive privilege. I think any president who attempts to use executive privilege after he’s no longer in the service of the country should be keelhauled.
Query 3: Supreme Court Justice Sonia Sotomayor said Wednesday that studies showing that female justices got interrupted more often than either male justices or advocates led to recent changes in the oral argument format. Chief Justice John Roberts will now play referee to prevent interruptions. Scale of one to 10: How shocked are you that female SCOTUS justices got talked over?
Reichgott June: [Laughs.] I am not shocked at all. So it is a zero. You don’t need a survey to observe this, it happens all the time. But the bigger issue is that we don’t have enough females in the federal judiciary. So I have been actively supporting a group called the Infinity Project to get more female justices, particularly in the 8th Circuit where we only have one female judge on the entire circuit.
Kaardal: I’d give it a 7. I’m shocked that people in the co-ed legal system are still having these sorts of problem. Men and women are working side by side all over the place. So I’m surprised that there are vestiges of unequal treatment.
Zaman: I’m not shocked at all—1. It’s completely in line with the reality that is being observed by anybody with eyes.
DeJournett: Zero, because I’m mansplained all the time. So it doesn’t surprise me that women on the judiciary are interrupted as well.
Olson: I’d give that a 1. I’m sorry that they do it, but I’m not shocked. I think that it’s other male justices interrupting female justices. I haven’t kept count of all who interrupts who, but I think that the judges actually would serve the country better if they exercised a little more humility.