Speaker 1: Welcome to the Bloomberg Law Show. I'm June Grosso. The
Speaker 1: focus is on Supreme Court decisions. This week, the Court
Speaker 1: curbed federal agency power, striking down a forty year old precedent.
Speaker 1: It limited obstruction charges against January sixth defendants, including Donald Trump,
Speaker 1: and the Court allowed emergency abortions in Idaho for now.
Speaker 1: In a blockbuster ruling that will constrain environmental, consumer and
Speaker 1: financial watchdog agencies, A divided Supreme Court upended a forty
Speaker 1: year old legal doctrine that empowered federal regulators to interpret
Speaker 1: unclear laws. Conservatives have long targeted the Chevron doctrine in
Speaker 1: the so called War on the Administrative State, and the
Speaker 1: court's conservative justices reverse Chevron this week, effectively taking power
Speaker 1: away from executive branch agencies and shifting it to the courts.
Speaker 1: The Court has been chipping away at Chevron for years.
Speaker 1: As Chief Justice John Roberts pointed out in the oral arguments, how.
Speaker 2: Much of an actual question on the ground is this.
Speaker 1: I saw some study that said we haven't relied on
Speaker 1: Chevron for fourteen years. The three liberal justices dissented. Justice
Speaker 1: Elaina Kagan wrote that in One Fell Swoop, the majority
Speaker 1: today gives itself exclusive power over every open issue, no
Speaker 1: matter how expertise driven or policy laden. Kagan had emphasized
Speaker 1: the importance of the Chevron doctrine during the arguments.
Speaker 3: You know, the best option is to listen carefully and
Speaker 3: to defer if it's reasonable and if it's consistent with
Speaker 3: everything that we know that Congress has said. To defer
Speaker 3: to people who actually know things about these things, but
Speaker 3: you know, to people who understand the way particular questions
Speaker 3: fit within a broader statutory and regular time skiam.
Speaker 1: Joining me is Michael Darff, a professor of constitutional law
Speaker 1: at Cornell Law School. Mike tell us about the Chevron
Speaker 1: doctrine and its importance for federal regulation.
Speaker 4: Sure, so, as listeners probably know, the federal government includes
Speaker 4: not only Congress, the President, and the courts, but an
Speaker 4: alphabet soup of administrative agencies. The Federal Aviation Administration, the
Speaker 4: Environmental Protection Agency, Homeland Security, the Justice Department, Education Department.
Speaker 4: All of these various departments each staff by a political
Speaker 4: appointee at the head, unless it's the so called independent agency,
Speaker 4: in which case it's somebody who's appointed but then has
Speaker 4: various protections. And then with lots of experts, people who
Speaker 4: have expertise in the particular field, so scientists at the
Speaker 4: Nuclear Regulatory Commission. Congress right statutes that are hundreds of
Speaker 4: pages law, giving power to the agencies to regulate. So
Speaker 4: the National Highway Traffic Safety Administration, which is lies within
Speaker 4: the Department of Transportation, writes rules governing safety mechanisms for
Speaker 4: new automobiles. These statutes are often pretty detailed, but it
Speaker 4: is in the nature of the complexity of life and
Speaker 4: the limitations of human language that invariably situations arise in
Speaker 4: which it's not entirely clear what some term in a
Speaker 4: statute meant. The Chevron case announced the principle which it said,
Speaker 4: and I think persuasively was not new in that case,
Speaker 4: but it became the canonical citation. Announced the principle that
Speaker 4: said that when Congress uses an ambiguous term or leaves
Speaker 4: a gap in a statute, and it could be interpreted
Speaker 4: in a range of possible ways, when an agency acts
Speaker 4: to fill that gap or to resolve the ambiguity, so
Speaker 4: long as it does so reasonably, the courts will not
Speaker 4: invalidate what the agency has done. This was known as
Speaker 4: the Chevron deference. Doctrine deference because agencies got deference, that is,
Speaker 4: a court's deferred to their reasonable interpretations of ambiguous statutes.
Speaker 1: Chief Justice John Roberts wrote the majority opinion for the court,
Speaker 1: saying Chevron was a judicial invention that required judges to
Speaker 1: disregard their statutory duties. Explain his reasoning and why the
Speaker 1: Conservative supermajority finally reverse Chevron.
Speaker 4: So the Chief Justice points to two main principles. First,
Speaker 4: he says that going back to Marborie against Madison in
Speaker 4: eighteen oh three, famous case that establishes the principle of
Speaker 4: judicial review of federal statute, Chief Justice John Marshall in
Speaker 4: that case said that it is quote emphatically the province
Speaker 4: and duty of the judiciary to say what the law is.
Speaker 4: And so Roberts says that by deferring to agencies construction
Speaker 4: of ambiguous statutes, the judiciary was advocating its responsibility to
Speaker 4: say what the law is. It was giving that power
Speaker 4: over to the administrative agencies, which are either housed in
Speaker 4: the executive branch or quasi independent of the executive branch,
Speaker 4: suggesting that there is a problem there in terms of
Speaker 4: the checks and balances or the separation of powers set
Speaker 4: up by the Constitution. But that's the first basic idea,
Speaker 4: that it's the judiciary's function to say what the law is,
Speaker 4: not that of administrative agencies. The second claim he makes
Speaker 4: is he says that the Administrative Procedure Act, which is
Speaker 4: a federal statute that governs basically judicial review of agency action,
Speaker 4: says that courts are supposed to review decisions of agencies
Speaker 4: with respect to the law. And that means he says
Speaker 4: that it's up to the court, not the agency, to
Speaker 4: say what the law is. That is to say, he
Speaker 4: interprets this provision of the APA to give effect to
Speaker 4: what he says is this principle from Marbarie against Madison,
Speaker 4: And therefore he concludes, for the last forty years, the
Speaker 4: courts have not been living up to their obligation. They've
Speaker 4: been giving away authority that is properly invested in the
Speaker 4: judiciary to administrative agents.
Speaker 1: The three liberal justices in Descent, Justice Elena Kagan wrote,
Speaker 1: the majority disdains restraint and grasps for power is. She
Speaker 1: write that with this case the descent the three liberal
Speaker 1: justices in Descent, Justice Elena Kagan wrote, the majority disdains
Speaker 1: restraint and grasps for power. Is she right that with
Speaker 1: this case the Supreme Court is giving more power to
Speaker 1: itself and to federal courts.
Speaker 4: Yeah, I think she has a pretty good point right.
Speaker 4: The theory behind Chevron was never that agencies should be
Speaker 4: saying what the law is. It was always that when
Speaker 4: Congress says what the law is, it doesn't have perfect
Speaker 4: foresight and so it leaves open certain questions. And then
Speaker 4: the question is when Congress has done that, either through inadvertence, incompetence,
Speaker 4: sometimes deliberately because there was a compromise, sometimes deliberately because
Speaker 4: they didn't trust themselves. Whenever it's done that, who should
Speaker 4: it be assumed, was meant to be the recipient of
Speaker 4: the discretion to fill in the statutory gaps and ambiguity.
Speaker 4: And what Justice Kagan says and what Chevron had been
Speaker 4: based on for the last forty some MyDD years, was
Speaker 4: that we should assume Congress would prefer that an expert
Speaker 4: agency decide what these often technical terms mean using their expertise,
Speaker 4: and in some circumstances, insofar as these ambiguities implicate policy questions,
Speaker 4: because the agency is ultimately accountable through the secretary of
Speaker 4: the agency and then to the president, there'd be a
Speaker 4: political input as opposed to judges who typically don't know
Speaker 4: much about the underlying regulatory issue and who are not accountable.
Speaker 4: And just to give you a kind of poignant example
Speaker 4: of this issue, the Supreme Court just issued an opinion
Speaker 4: in a case called Ohio against EPA, in which Justice Gorsuch,
Speaker 4: in his majority opinion, incorrectly referred to one of the
Speaker 4: key chemicals as nikes oxide, which is laughing gas, rather
Speaker 4: than the correct chemical name, showing that judges are not
Speaker 4: experts in all of the scientific and technical questions that
Speaker 4: regulators are experts in how could they be, and that
Speaker 4: therefore it's not surprising that sometimes the judges will get
Speaker 4: it wrong, and we are better off when they are
Speaker 4: these ambiguities having the experts at the agency's fill them out,
Speaker 4: and if they get it wrong in some sense or objectionable,
Speaker 4: Congress can always amend the statue.
Speaker 1: Chevron was initially applauded by conservatives like the late Justice
Speaker 1: antonin Scalia. Why did conservatives come to loathe it so much?
Speaker 2: So?
Speaker 4: I think there are three things worth saying about that. First,
Speaker 4: the original Chevron case upheld a deregulatory environmental program by
Speaker 4: the Environmental Protection Agency under the Reagan administration. That is
Speaker 4: to say, there was a rule by the Reagan EPA
Speaker 4: construing the statutory term stationary source in a way that
Speaker 4: allowed more pollution than had been allowed under the previous
Speaker 4: Parter administration, and what the Chevron case did was to
Speaker 4: say that rule was okay. So you're right that as
Speaker 4: a basic matter, there is nothing inherent in the Chevron
Speaker 4: doctrine that conservatives would dislike. There are cases in which
Speaker 4: it actually helps them get to the results they want,
Speaker 4: which is if we assume generally conservatives are more skeptical
Speaker 4: of regulation than liberals. The second thing I'll say, though,
Speaker 4: is that over the long run, if you sort of
Speaker 4: average out over all cases, it's probably true that Chevron
Speaker 4: leads to more liberal results than conservative results. Because most
Speaker 4: of the cases that end up going to court coming
Speaker 4: from agencies are cases in which somebody from industry is
Speaker 4: challenging a regulation of them, and then the question is
Speaker 4: do you defer as a court to the agency's regulation.
Speaker 4: That is to say, Chevron was an unusual case in
Speaker 4: which there was deference to a deregulatory action. In most cases,
Speaker 4: it's a matter of deferring to regulation. And so conservatives,
Speaker 4: insofar as they have an objection to regulation in general,
Speaker 4: came to dislike Chevron because they saw it as building
Speaker 4: up the administrative state. Think about, you know, Steve Bannon's
Speaker 4: attacks on the administrative state or even the so called
Speaker 4: deep states from Donald Trump by this idea that we
Speaker 4: are being regulated by bureaucrats. So in so far as
Speaker 4: Chevron gave some additional power to bureaucrats, to experts, to
Speaker 4: the agencies who are not necessarily directly controlled by politics
Speaker 4: and who are going to be regulating, they didn't like that.
Speaker 4: Third thing I'll say is I don't think it is
Speaker 4: from the perspective of the conservatives who support this move
Speaker 4: I don't think it is a bug so much as
Speaker 4: it is a feature. That it gives more power to judges,
Speaker 4: because if they look around, they will observe that conservatives
Speaker 4: dominate the federal judiciary in a way that they certainly
Speaker 4: don't dominate the executive branch. During a democratic administration, and
Speaker 4: even during Republican administrations, agencies can take actions at lower
Speaker 4: levels that are regulatory. So all of that suggests that
Speaker 4: a tightly disciplined conservative movement that is opposed to regulation
Speaker 4: would want to get rid of Chevron. And you saw
Speaker 4: that even before this decision in efforts by Republicans in
Speaker 4: Congress to introduce bills to elimination Chevron deference.
Speaker 1: I've heard a lot of doomsday scenarios about the end
Speaker 1: of the Chevron doctrine. That it will paralyze federal agencies,
Speaker 1: that will undermine important protections for the public, from the
Speaker 1: environment to workplace, that will open the floodgates of litigation.
Speaker 1: And that's just to name a few of the warnings.
Speaker 1: What do you think the effects will be?
Speaker 5: So?
Speaker 4: I think the concern is a little bit overblown, but
Speaker 4: mostly because the Supreme Court at least was already raining
Speaker 4: in the agencies using other tools, the most powerful of
Speaker 4: which was created a while back but has been transformed
Speaker 4: in recent years, and that's the so called Major Questions doctrine,
Speaker 4: which was used, for example, to strike down the Biden
Speaker 4: administration OSHA mandate or vaccinations in the administration. They used
Speaker 4: the Major Questions to do that. They've used it to
Speaker 4: strike down environmental regulations, and that basically says that if
Speaker 4: Congress doesn't give an agency specific marching orders and the
Speaker 4: agency tries to do something quote major, then the courts
Speaker 4: will assume that's beyond the power of the agency, and
Speaker 4: that was already in place without overruling Chevron. Moreover, as
Speaker 4: to Justice Roberts says in his opinion, the Supreme Court
Speaker 4: itself hasn't applied Chevron deference in several years anyway, so
Speaker 4: they were already in effect not deferring to the agency.
Speaker 5: Now.
Speaker 4: That is not to say that this decision won't have
Speaker 4: any impact. After all, not every regulation that gets reviewed
Speaker 4: by the court goes up to the Supreme Court. And
Speaker 4: even though the US Supreme Court hasn't used Chevron to
Speaker 4: defer to agencies in several years, lower courts have. So
Speaker 4: I do think that this is going to have two effects.
Speaker 4: One is it will license lower court to invalidate agency
Speaker 4: actions a bit more frequently, and the other is it
Speaker 4: will have some kind of a chilling effect on the
Speaker 4: issuance of regulations by federal agents. I'll just say one
Speaker 4: further thing about it, which listeners que interesting that can
Speaker 4: find my write up of this point on my blog
Speaker 4: that's Scorf on law, and that is that there is
Speaker 4: some ambiguity in the majority opinion as to what the
Speaker 4: basis for the ruling is, as I said earlier, it's
Speaker 4: at least clear that Chief Justice Roberts and the Majority
Speaker 4: think that Chevron was inconsistent with the text of the
Speaker 4: Administrative Procedure Act. But Justice Thomas writes a concurrence in
Speaker 4: which he says not only that Chevron was unconstitutional. The
Speaker 4: Majority doesn't reject that, but they don't endorse it either.
Speaker 4: And the reason why it matters is if Chevron is unconstitutional,
Speaker 4: then that's it. There can never be deference to agencies
Speaker 4: under general principle. Again, however, if the Majority was only
Speaker 4: relying on this inconsistency with the statute and throwing in
Speaker 4: the constitutional points about Marbury against Madison merely as rhetoric,
Speaker 4: then there's a possibility that in the future a Congress
Speaker 4: could pass a law reinstating Chevron. That's extremely unlucky to
Speaker 4: happen with either House of Congress controlled by Republicans or
Speaker 4: with the Republican president, but you could imagine a future
Speaker 4: Democratic Congress and Democratic president wanting more robust power pre
Speaker 4: agencies and enacting such a statute. And we don't know
Speaker 4: after this decision whether a statutory requirement of deference would
Speaker 4: be upheld or not.
Speaker 1: Stay with me, Mike. Coming up next, I'm going to
Speaker 1: continue this conversation with Professor Michael Dorff of Cornell Law School.
Speaker 1: We'll discuss the court limiting obstruction charges against January sixth defendants.
Speaker 1: I'm June Grosso and you're listening to Bloomberg. The Supreme
Speaker 1: Court sided with a January sixth in a decision that
Speaker 1: will likely upend many capital riot prosecutions and perhaps even
Speaker 1: the DC criminal case against former President Donald Trump. The
Speaker 1: justices ruled six to three that the charge of obstructing
Speaker 1: an official proceeding enacted in response to the Enron collapse
Speaker 1: must include proof that defendants tried to tamper with or
Speaker 1: destroy documents During the oral argument. Several conservative justices like
Speaker 1: Neil Gorsuch had expressed skepticism about the scope of the
Speaker 1: obstruction charge and the kinds of conduct it could criminalize.
Speaker 2: Would a sit in that disrupts a trial for access
Speaker 2: to a federal courthouse qualify? Would a heckler in today's
Speaker 2: audience qualify? Or at the State of the Union address?
Speaker 2: Would pulling a fire alarm before a vote qualify? For
Speaker 2: twenty years in federal prison.
Speaker 1: The case divided the court along unusual lines, with liberal
Speaker 1: Justice Aie Brown Jackson joining the conservatives in the majority
Speaker 1: and conservative Justice Amy Cony Barrett joined the two other
Speaker 1: liberals in descent. I've been talking to constitutional law expert
Speaker 1: Michael Dorf, a professor at Cornell Law School, Mike tell
Speaker 1: us about the main issue in the case.
Speaker 4: So this is a case called Fisher against the United States.
Speaker 4: So Fisher was charged with participating in the January sixth insurrection,
Speaker 4: and he was charged under a number of statues, one
Speaker 4: of which is at issue in this case, and that
Speaker 4: is a provision that says that he was obstructing from
Speaker 4: an official proceeding. I'll read you the exact text. It says,
Speaker 4: whoever corruptly and then it has a bunch of examples alters, destroys, mutilates,
Speaker 4: or can feels a record, document or other objects, etc.
Speaker 5: Etc.
Speaker 4: Or quote otherwise obstruct, influences, or impedes any official proceeding,
Speaker 4: shall guilty of the crime. Fisher was charged under the
Speaker 4: second part, which says somebody who otherwise obstruct and official proceeding.
Speaker 4: And the question in the case was whether what Fisher did,
Speaker 4: which was basically to participate in mob violence, including against
Speaker 4: Capitol police, whether that counts as otherwise obstructing and official proceeding. Now,
Speaker 4: everybody in the case acknowledges that if you just take
Speaker 4: that language in isolation otherwise obstruct. Well, sure Fisher obstructed
Speaker 4: an official proceeding because he participated in this mob action,
Speaker 4: and the mob action delayed the certification of the electoral
Speaker 4: votes on January sixth, twenty twenty one. But Chief just
Speaker 4: As Roberts writes for a six to three majority that
Speaker 4: you can't read that term obstructs and official proceeding in isolation.
Speaker 4: You have to read it in conjunction with the previous
Speaker 4: sub paragraph part one, which is all about destroying records, documents,
Speaker 4: other physical items that are going to be used in
Speaker 4: an official proceeding, and not generally about obstructing. Now, one
Speaker 4: thing I should say is when I say it was
Speaker 4: six to three, listeners might assume that that was the
Speaker 4: usual six to three. It wasn't quite. Justice Katanji Brown
Speaker 4: Jackson joined in the majority, whereas Justice amy Cony Barrett
Speaker 4: wrote the descent for herself and Justices Soto, Mayor and Kagan.
Speaker 4: So in that sense, two justices sort of flipped from
Speaker 4: what you might think of as their usual ideological or
Speaker 4: partisan alignment. But it basically comes down to a case
Speaker 4: decided on ideological lines, and in.
Speaker 1: The dissent, Justice Barrett wrote, the majority simply cannot believe
Speaker 1: that Congress meant what it said when writing this statute.
Speaker 1: So who do you think makes the better argument, meant
Speaker 1: the Chief or Barrett.
Speaker 4: I think it's actually a hard case. So if you
Speaker 4: put aside that this case involves January sixth, and just
Speaker 4: think about the statute, there's I think a decent argument
Speaker 4: on either side. Chief. Just as Robert invokes two Latin
Speaker 4: maxims which I won't try to pronounce, that basically say
Speaker 4: that if you have a list of things and then
Speaker 4: you have a catch all, the catch lol is limited
Speaker 4: by the idea behind what the specifics are. And he
Speaker 4: gives a couple of sort of amusing examples. One involves football,
Speaker 4: another involves sign at a zoo about not disturbing the animals,
Speaker 4: and he says that you take the specifics and then
Speaker 4: the catch lol means other things that are like the
Speaker 4: specifics but not too far distant. Now, what Justice Barrett
Speaker 4: does in it does not to deny the general principle,
Speaker 4: but to deny that the structure of the statutory provision
Speaker 4: parallels the examples that Chief Justice Roberts gives, and she
Speaker 4: says that language of otherwise obstruct really does stand more
Speaker 4: alone than he acknowledges that they're in two separate sub
Speaker 4: paragraphs that if you parse the language, are a little different.
Speaker 4: So I think she's right that, taken at face value,
Speaker 4: the language does cover what Fisher and other people did
Speaker 4: on January sixth, But I think the majority is also
Speaker 4: right that you can't take it just at face value.
Speaker 4: And so the hard question is on that sort of
Speaker 4: second level of disagreement, which is, to what extent does
Speaker 4: this statute fit the paradigm that the Chief Justice adopt
Speaker 4: where it's a casual at the end of a specific list.
Speaker 4: Because it doesn't fit it exactly, but it's kind of
Speaker 4: like that, And so I think reasonable minds could differ
Speaker 4: on that.
Speaker 1: Question, reasonable minds that are textualists. I mean, is this
Speaker 1: a showdown between textualist interpretations. Barrett wrote that the majority
Speaker 1: does textual backflips to find some way anyway to narrow
Speaker 1: the reach of the obstruction law, and Barrett has also
Speaker 1: recently disagreed with the way Justice Clarence Thomas has analyzed
Speaker 1: a case.
Speaker 4: I think it's fair to say that there is a
Speaker 4: developing risk between Justice Barrett and the other conservatives. She's
Speaker 4: still quite conservative overall, but there's a developing rerip over methodology.
Speaker 4: And you see this not only here where she says,
Speaker 4: you know, you're not really doing textualism, You're relying an
Speaker 4: awful lot on these Latin maxims rather than looking closely
Speaker 4: at the structure of the statue. But you also see
Speaker 4: this in her current in last week's Raheemi case. This
Speaker 4: is the case where the court upheld, as against a
Speaker 4: Second Amendment challenge, the federal statute that forbids people who
Speaker 4: are under domestic violence protection orders from obtaining firearms, and
Speaker 4: the Court upheld that eight to one. But there's a
Speaker 4: series of concurrences. And one of the things that Justice
Speaker 4: Barrett says in her concurrence is she distances herself from
Speaker 4: the so called tradition approach, which I think is more
Speaker 4: closely associated certainly with Justice Thomas and to some extent
Speaker 4: with Justice Kavanaugh. And she wants to say that no, no,
Speaker 4: we really as originalist textualists, want to focus on the
Speaker 4: meaning of the word and you know what laws were
Speaker 4: around at the time, what people's subjective intentions and expectations
Speaker 4: that might have been might be relevant in figuring out
Speaker 4: what the words mean, but they're not relevant in and
Speaker 4: of themselves in the way that some of the other
Speaker 4: more history and tradition focused conservatives seem to think. Now,
Speaker 4: I should say that that disagreement doesn't necessarily make her
Speaker 4: likely to be less conservative overall, but I do think
Speaker 4: it shows her to be somewhat more principled than some
Speaker 4: of the other conservatives, and really thinking through the consequences
Speaker 4: of her jurisprudential methodological commitment, and that in so being principled,
Speaker 4: she's likely more often to reach results that might be
Speaker 4: surprising ideologically. So I do think there is some prospect
Speaker 4: that we are going to see her be less reliably
Speaker 4: conservative over the coming years, not so much because she's
Speaker 4: becoming a liberal, but because she's sort of really sticking
Speaker 4: by the implications of her methodology, which will sometimes few liberal.
Speaker 1: In particular case, this case got a lot of attention
Speaker 1: because the charge has been used against Trump, but Special
Speaker 1: counsel Jack Smith has said that Trump's conduct would still
Speaker 1: be covered even under a narrower interpretation of the statute because,
Speaker 1: for example, it involved efforts to interfere with the electoral
Speaker 1: college certificates arriving at the desk to be counted.
Speaker 4: Yeah, I think there's something to that. The court sends
Speaker 4: even Fisher's case back to the lower courts to figure
Speaker 4: out whether he can be charged under the narrower reading,
Speaker 4: because you know, you could say that all of the
Speaker 4: January sixth rioters were interfering with the arrival or counting
Speaker 4: or something to do with the physical certificates. In that case,
Speaker 4: then this case would be a bit of a sport right,
Speaker 4: having no real bearing on the January sixth prosecutions, but
Speaker 4: potentially having bearing on other cases rise under this statute
Speaker 4: in totally different setting. I think Smith has a stronger
Speaker 4: argument that Trump himself was obstructing with respect to the
Speaker 4: particular certificates in light of the allegations about the so
Speaker 4: called fake electors scheme, because there the goal was to
Speaker 4: get before Congress certificates from people purporting to be electors
Speaker 4: who really weren't, and you could say that then what
Speaker 4: they were doing was obstructing the official proceeding with respect
Speaker 4: to the availability for use of the real certificates. I
Speaker 4: don't think it's a slam dunk, but I think it's
Speaker 4: Smith has a pretty good case that even after the
Speaker 4: Fisher decision, the allegations against Trump's stand. And it's important
Speaker 4: to remember that Smith has charged Trump under other statutes
Speaker 4: as well, So it's not just that even if under
Speaker 4: this narrower view those counts against Trump are thrown out,
Speaker 4: there's still a case. Again. Of course, all of that
Speaker 4: would depend on the outcome that's coming down on Monday
Speaker 4: in the immunity case, the.
Speaker 1: Last day of the term, and the decision we've all
Speaker 1: been waiting for on whether or not Trump will win
Speaker 1: any part of his claim of presidential immunity. Now, as
Speaker 1: far as the hundreds of January sixth defendants who were prosecuted,
Speaker 1: the US Attorney's Office says this decision will most significantly
Speaker 1: affect about fifty two people convicted of obstruction and no
Speaker 1: other felony, with twenty seven of those defendants now serving
Speaker 1: a prison sentence. So will their lawyers now go to
Speaker 1: court and try to get the charges dismissed?
Speaker 4: Undoubtedly? Right, that is, you know, it would be incompetence
Speaker 4: not to that is to say, anybody serving any time
Speaker 4: for a conviction arising out of the January sixth events
Speaker 4: under this statute, their lawyer, would you know, now make
Speaker 4: a motion to have the conviction in sentence. They now
Speaker 4: at that point it would be open to the Justice
Speaker 4: Department to seek a new indictment, either under some other
Speaker 4: statute there are lesser offenses that can be charged, or
Speaker 4: potentially to ask to retry the defendants under this particular statute.
Speaker 4: But trying to meet the narrower definition given.
Speaker 1: In the Fisher case, this decision is certainly going to
Speaker 1: make a lot more work for the prosecutors. Thanks so much,
Speaker 1: Mike for taking us through these two major decisions this week.
Speaker 1: That's Professor Michael Dorf of Cornell Law School coming up next.
Speaker 1: The Supreme Court allows emergency abortions in Idaho for now.
Speaker 1: I'm June Grosso and you're listening to Bloomberg. The Supreme
Speaker 1: Court will allow Idaho hospitals to provide abortions in medical
Speaker 1: emergencies for the time being. Over three descents, the Court
Speaker 1: reinstated a trial court order that insures Idaho hospitals can
Speaker 1: perform a urgency abortions to protect the health of the mother.
Speaker 1: Despite the state's ban on abortions unless the mother's life
Speaker 1: is in danger. During the oral arguments, Justice Elena Kaigan
Speaker 1: explain the clash between Idaho's strict abortion law and federal
Speaker 1: law the Emergency Medical Treatment and Labor Act known as MTELLA.
Speaker 3: Where the woman is her life is not imperiled, but
Speaker 3: she's going to lose her reproductive organs, she's going to
Speaker 3: lose the ability to have children in the future unless
Speaker 3: an abortion takes place. Now, that's the category of cases
Speaker 3: in which I'm talis, says, my gosh. Of course the
Speaker 3: abortion is necessary to assure that no material deterioration occurs,
Speaker 3: and yet Idaho says, sorry, no abortion here.
Speaker 1: The justices dismissed the case as improvidently granted, meaning they
Speaker 1: shouldn't have taken it in the first place. But this
Speaker 1: procedural order leaves key questions unanswered and likely means the
Speaker 1: issue will come back to the court again. Joining me
Speaker 1: is reproductive rights expert Mary Ziegler, a professor at UC
Speaker 1: Davis Law School. Mary, this is just a temporary victory
Speaker 1: for abortion rights. What's the importance of this decision.
Speaker 5: It's short term significance is that it allows emergency procedures
Speaker 5: in Idaho to continue pursu into an injunction that the
Speaker 5: district court issued, other than that it primarily takes the
Speaker 5: can down the road. So questions about emergency access are
Speaker 5: going to continue to unfold in courts across the country,
Speaker 5: and they may eventually return to the US Supreme Court.
Speaker 1: So this case fractured the court three three and three,
Speaker 1: sort of illustrating the three wings of the court. The
Speaker 1: three liberal justices joined the three moderates in supporting the
Speaker 1: decision to allow emergency abortions, and the three most conservative
Speaker 1: justices dissented. And the Court as a whole didn't explain
Speaker 1: its decision. So what can we glean from this split?
Speaker 5: Well, I mean, I think that we have the best
Speaker 5: clues from the the opinion offered by Justice Barrett that
Speaker 5: the three kind of swing conservative justices believed that the
Speaker 5: terms of the litigation had changed in what they saw
Speaker 5: as consequential ways since the Court agreed to hear the case.
Speaker 5: And I think the three were interested in this spending
Speaker 5: clause theory that Idaho had raised, but believed that it
Speaker 5: had never been heard by the lower courts. So I
Speaker 5: think it stands through the proposition that maybe those justices
Speaker 5: are willing to side with Idaho, maybe they're also interested
Speaker 5: in some kind of what they would view as a
Speaker 5: compromise ruling, but that in either case they weren't ready
Speaker 5: to reach a final conclusion before the election.
Speaker 1: The opinion by the three liberals talked about what's happening
Speaker 1: to women in Idaho who need abortions and didn't get them,
Speaker 1: sort of echoing what Justice Kagan said during the oral arguments.
Speaker 5: From what I've gathered, there's evidence that there have been
Speaker 5: significant harms in Idaho, that patients have been, you know,
Speaker 5: airlifted to other states in a handful of circumstances. We
Speaker 5: know that there have been knock on effects in terms
Speaker 5: of people not choosing Idaho for their medical residencies, that
Speaker 5: having further effects on access to care for pregnantatients across
Speaker 5: the state. I think, obviously, in terms of scholarly documentation
Speaker 5: of that were just at the beginning. But there is data,
Speaker 5: I think, including data cited by Justice Jackson in her opinion,
Speaker 5: to the effect that even allowing the law to goat
Speaker 5: into effect when it did has had real world effects.
Speaker 1: And so it was only the three liberals who said
Speaker 1: that Imtala requires hospitals to provide abortions that Idaho's law prohibits.
Speaker 1: That you know, Idaho's laws preempted by the federal law.
Speaker 5: Yeah, I mean, I think Justice Jackson clearly wanted to
Speaker 5: reach that conclusion. The other two liberals were willing to
Speaker 5: go along with the idea that it was okay to
Speaker 5: defer a decision essentially that the petition had been improvidently Granted,
Speaker 5: it's probably fair to assume that that was, you know,
Speaker 5: a compromise on the part of those liberal justices. But
Speaker 5: Justice Kagan did take it upon herself to respond to
Speaker 5: some of the conservative usice's points on preemption, and we
Speaker 5: can certainly gather from that that she doesn't think that
Speaker 5: the preemption arguments that Idaho had raised were very good.
Speaker 1: Just as Samuel Alito wrote the Descent in part, echoing
Speaker 1: his questioning during the oral arguments.
Speaker 6: How can you impose restrictions on what Idaho can criminalize
Speaker 6: simply because hospitals in Idaho have chosen to participate in Medicare.
Speaker 6: I don't understand how this swears with the whole theory
Speaker 6: of the spending clause.
Speaker 1: So tell us about his descent.
Speaker 5: Well, there was a lot there, and the justice Alito
Speaker 5: wrote about the spending clause argument, he also spent a
Speaker 5: lot of time on the fact that Antala uses the
Speaker 5: language unborn child, which Alito suggested created express protection for
Speaker 5: the unborn child, as he put it, and would by
Speaker 5: definition need no emergency access to abortion for patients. That's
Speaker 5: obviously an interesting and significant conclusion because the statue just
Speaker 5: used the word on warnchet didn't say anything more about
Speaker 5: unborn children than that. So Alito's conclusion seems to be
Speaker 5: if a statute uses language like that, it suggests a
Speaker 5: belief that an unborn child is an equal rights holding
Speaker 5: person or patient, at least for statutory purposes. So that's
Speaker 5: a pretty revealing reading of the statute again, even though
Speaker 5: that isn't going to be the legal upshot, at least
Speaker 5: for now.
Speaker 1: Well, Alito has suggested in oral arguments and elsewhere this
Speaker 1: concept of fetal personhood before, hasn't he Yeah, I.
Speaker 5: Mean he's used personhood adjacent language in Dobbs, so we
Speaker 5: know that he's been at least open to this kind
Speaker 5: of question. He hasn't, of course, addressed constitutional questions of
Speaker 5: personhood in the sense of the conclusion that fetuses have
Speaker 5: Fourteenth Amendment rights clearly in any of these cases, but
Speaker 5: the way he's approaching the question certainly suggests that he
Speaker 5: may be open to that kind of argument.
Speaker 1: He also chided the court. He said, the Court has
Speaker 1: simply lost the will to decide the easy, but emotional,
Speaker 1: and highly politicized question that the case present. And on
Speaker 1: the other side, Justice Katanji Brown Jackson said the Court
Speaker 1: was punting on the issue. Quote, while this court dawdles
Speaker 1: and the country weights, pregnant people experiencing emergency medical conditions
Speaker 1: remain in a precarious position as their doctors are kept
Speaker 1: in the dark about what the law requires.
Speaker 5: Right. I mean, you do see that coming from both
Speaker 5: Jackson and the conservatives, essentially that the Court took this
Speaker 5: case and should have had the courage to definitively resolve it.
Speaker 5: Of course, you know, neither of those wings of the
Speaker 5: Court has the power to make that call. Though it's
Speaker 5: a reminder of kind of where the power in the
Speaker 5: Court lies at the moment.
Speaker 1: The Justices took two abortion cases this term, and in
Speaker 1: neither did they reach the merits. In the mif of
Speaker 1: pristone abortion pill case, they went off on procedural grounds.
Speaker 1: So I mean, why take the cases, especially this case
Speaker 1: where they made an unusual move bypassing the Ninth Circuit.
Speaker 5: It's it's hard to know why the Court took the case.
Speaker 5: I imagine that at least at some point the conservative
Speaker 5: justices thought they had the votes to side with Idaho
Speaker 5: and then realized that they didn't, potentially because the oral
Speaker 5: argument in the case was such a disaster for the
Speaker 5: state of Idaho. I think obviously Chief Justice Roberts has
Speaker 5: been concerned with the Court's reputation and the damage to
Speaker 5: it in the years since Dobbs, and may have argued
Speaker 5: that the time was not right given the procedural problems
Speaker 5: and complexities of both cases, And he may have found
Speaker 5: a more receptive audience in Justices Barrett and Kavanaugh than
Speaker 5: he had previously. Not only that because this is an
Speaker 5: election year, but also because there were procedural and strategic
Speaker 5: mistakes made by the conservative attorneys in both of these cases.
Speaker 1: So explain what happens now what this decision actually does.
Speaker 5: Well, in the short term, this decision has the effect
Speaker 5: of reinstating an injunction that a district judge put in
Speaker 5: place in Idaho permitting emergency access. That litigation will continued
Speaker 5: through the Ninth Circuit Court of Appeals. The decision does
Speaker 5: nothing to disturb a ruling by the Fifth Circuit Court
Speaker 5: of Appeals upholding an injunction against the Biden administration and
Speaker 5: allowing Texas's law to be enforced as written with its
Speaker 5: very narrow abortion exceptions, and it doesn't do anything to
Speaker 5: change the situation on the ground in other states with
Speaker 5: very narrow exceptions, although there is some in Pala related
Speaker 5: litigation potentially proceeding in some other states, like Oklahoma, So
Speaker 5: essentially all of that will continue as if none of
Speaker 5: this ever happened. The Supreme Court may come back into
Speaker 5: the picture. Then again, it may not, because if polls
Speaker 5: are correct and Donald Trump wins the twenty twenty four
Speaker 5: presidential election, a Trump administration would almost certainly withdraw the
Speaker 5: Santala guidance and not really try to intervene on behalf
Speaker 5: of patients facing life threatening emergencies.
Speaker 1: In fact, in her opinion, Justice Jackson says that the
Speaker 1: United States has already petitioned for CIRT in the Fifth
Speaker 1: Circuit case.
Speaker 5: Yeah, and I think that will be going up to
Speaker 5: the court, and I think the case from the Ninth
Speaker 5: Circuit may too again unless Biden lose the twenty twenty
Speaker 5: four election and Trump stops interpreting in Tala in this
Speaker 5: way and the case becomes moot.
Speaker 1: Do you surmise that in these cases the justices or
Speaker 1: some of the justices are considering that there's an election
Speaker 1: coming up and they don't want to rock the vote
Speaker 1: At this point, it's hard.
Speaker 5: To say certainly that's a reasonable assumption, given that John Roberts,
Speaker 5: the Chief Justice who is in all of these coalitions,
Speaker 5: is a well known institutionalist to spend concerned about the
Speaker 5: hit the Court's reputation has taken since the Dobbs decision.
Speaker 5: At the same time, there were actual flaws in all
Speaker 5: of these cases that gave the Court an out. There
Speaker 5: were actual grave standing problems in the Alliance for Hipocratic
Speaker 5: Medicine case. There were reasons that this litigation was unsettled
Speaker 5: enough for the Court to refrain from intervening early. So
Speaker 5: I think this is a scenario where the Court had
Speaker 5: plausible deniability, although it's reasonable to assume that the election
Speaker 5: definitely played a part.
Speaker 1: What conclusions can we draw from this term where the
Speaker 1: Court took two abortion cases and decided neither on the merits.
Speaker 5: Well, we can't conclude a lot about what's going to
Speaker 5: come from the Supreme Court. You know, we know that
Speaker 5: there are some divides within the court about abortion, but
Speaker 5: they concern primarily how much further to the right to
Speaker 5: move the court and how much federal intervention to limit voters'
Speaker 5: ability to decide for themselves which abortion rights protections they want.
Speaker 5: How much in that direction the court is going to head.
Speaker 5: We know that that's on the table. We don't know
Speaker 5: which way the court ultimately is going to go, because again,
Speaker 5: so many of these substantive questions were deferred. We can
Speaker 5: conclude obviously that the federal courts are not going to
Speaker 5: remove themselves from the equation. This is not a question
Speaker 5: that is going to be returned to the states. It's
Speaker 5: a question that the federal courts and the executive branch
Speaker 5: are very much going to have a say in. And
Speaker 5: beyond that, I think much remains to be seen.
Speaker 1: So as far as looking back at this term, what
Speaker 1: conclusions can we make about abortions.
Speaker 5: Well, I think we can conclude. You know, we know
Speaker 5: that there are some divides within the court about abortion,
Speaker 5: but they concern primarily how much further to the right
Speaker 5: to move the court and how much federal intervention to
Speaker 5: limit voters' ability to decide for themselves which abortion rights
Speaker 5: protections they want. How much in that direction the court
Speaker 5: is going to head. We know that that's on the table.
Speaker 5: We don't know which way the court ultimately is going
Speaker 5: to go, because again, so many of these substantive questions
Speaker 5: were deferred.
Speaker 1: Speaking about voting, which states have abortion measures on the
Speaker 1: ballot for November?
Speaker 5: There I think are four states that have confirmed ballot initiatives. Colorado, Florida, Maryland,
Speaker 5: and South Dakota are all guaranteed to be on the ballot,
Speaker 5: and there are several others where they have submitted signatures
Speaker 5: to get on the ballot and where they're further signatures
Speaker 5: being gathered. So several other possible, including Arizona, Arkansas, Missouri, Montana, Nebraska, Nevada,
Speaker 5: and Pennsylvania.
Speaker 1: And voters have sided with abortion rights every time the
Speaker 1: issue has been directly on the ballot. Thanks so much, Mary.
Speaker 1: That's Professor Mary Ziegler of UC Davis Law School. And
Speaker 1: that's it for this edition of the Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
Speaker 1: and at www dot bloomberg dot com, slash podcast slash Law,
Speaker 1: and remember to tune into The Bloomberg Law Show every
Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso
Speaker 1: and you're listening to Bloomberg