WEBVTT - High Court Likely to Allow Trump Citizenship Question

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. This morning, the

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<v Speaker 1>Supreme Court heard one of the biggest cases of the

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<v Speaker 1>term and one of the most politically divisive, the Trump

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<v Speaker 1>Administration's addition of a citizenship question to the census. In

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<v Speaker 1>Bloomberg New Supreme Court reporter of Greg Store was there

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<v Speaker 1>and he joins me, now, so, Greg, this is the

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<v Speaker 1>case that has been talked about more than probably just

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<v Speaker 1>about any other set. The scene, was it crowded? Were

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<v Speaker 1>their protests? I didn't see any protest June, but it

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<v Speaker 1>was certainly proud of very long lines outside the court

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<v Speaker 1>to get in and claim one of the few seats

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<v Speaker 1>for it. The Court, as you know, generally does not

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<v Speaker 1>release the audio of an argument on the same day

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<v Speaker 1>and again said it wouldn't do it this time. So

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<v Speaker 1>the only way you get to or what what was

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<v Speaker 1>happening today is if you had one of those a

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<v Speaker 1>few hundred seats in the courtroom. So what was the

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<v Speaker 1>main legal question as far as the justices were concerned.

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<v Speaker 1>There are a multitude of legal questions in the case,

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<v Speaker 1>but the core of it seemed to be whether under

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<v Speaker 1>the federal law that that governed administrative agencies, the Commerce

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<v Speaker 1>Secretary Wilbur Ross acted in a in a reasonable manner

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<v Speaker 1>by saying, I reject the recommendation of the Census Bureau.

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<v Speaker 1>The Census Bureau said, if we add a question about

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<v Speaker 1>citizenship that will reduce participation, it will lessen the accuracy

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<v Speaker 1>of the responses we do get, and we're actually better

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<v Speaker 1>able to figure out how many people are are in

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<v Speaker 1>the country and whether they are citizens through other means.

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<v Speaker 1>The Commerce Secretary rejected that recommendation and that analysis, and

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<v Speaker 1>the question was whether the core question was really whether

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<v Speaker 1>he had any real basis for doing so. So there

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<v Speaker 1>were three Federal Court judges who heard this case, and

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<v Speaker 1>all three ruled against the administration, and some were very

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<v Speaker 1>critical of Commerce Secretary Ross's actions. Did their opinions count

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<v Speaker 1>for anything in the arguments? Well, it's certainly there with

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<v Speaker 1>the court's liberals. So the case that is before the

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<v Speaker 1>Court is one that came out of New York. UH

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<v Speaker 1>several hundred page opinion by Judge Jesse Furman there, who

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<v Speaker 1>said that Ross committed a quote veritable smortgage board violations

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<v Speaker 1>of the Administrative Procedure Act. You know, there were certainly

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<v Speaker 1>a lot of questions for the Trump administration's lawyer, Solicitor

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<v Speaker 1>General Noel Francisco about the things that we're in Furman's opinion,

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<v Speaker 1>but there was really no evidence that had had any

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<v Speaker 1>impact on the likely swing justices in the case. Who

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<v Speaker 1>are Chief Justice Roberts and Justice Kavanaugh? What did you

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<v Speaker 1>see from the justice's questions as to which way they're leaning? So,

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<v Speaker 1>as I alluded to, there was really no indication that

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<v Speaker 1>either Roberts or Kavanaugh were especially bothered by all these

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<v Speaker 1>violations that Judge Furman found, basically to set the scene

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<v Speaker 1>a little more, there's a lot of evidence in the record.

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<v Speaker 1>What Judge Furman found was that Secretary Ross really wanted

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<v Speaker 1>to put as citizenship question on the census and was

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<v Speaker 1>sort of shopping around through the Homeland Security Department of

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<v Speaker 1>Justice Department for some entity that would ask formally ask

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<v Speaker 1>the Commerce Department to put a question on there, and

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<v Speaker 1>eventually got the Justice Department to say, hey, it would

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<v Speaker 1>help us enforce the Voting Rights Act. And there's no

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<v Speaker 1>indication that that either roberts or Kavanaugh were bothered by

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<v Speaker 1>that process or agreed with Judge Furman that those purported

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<v Speaker 1>reasons that Ross gave for putting the question on there

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<v Speaker 1>were a pretext. They seem perfectly comfortable letting the administration

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<v Speaker 1>ask the question. So then does that indicate a five

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<v Speaker 1>for split in the administration's favor? You know, I'm often

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<v Speaker 1>wrong when I predicted arguments will come out a lot

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<v Speaker 1>sometimes right, this one sure felt like a five to four.

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<v Speaker 1>It's hard to say. We already have some evidence from

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<v Speaker 1>some preliminary rulings on some earlier questions that there will

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<v Speaker 1>be a split. The more conservative justices have staked out

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<v Speaker 1>some ground and made pretty clear they don't think this

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<v Speaker 1>case has any merit to it based on the questions.

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<v Speaker 1>It's awfully hard to see how they are not joined

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<v Speaker 1>by Robertson and Kavanaugh to make a five four decision.

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<v Speaker 1>So then would that flip the Court's usual divide when

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<v Speaker 1>it comes to administrative agencies and how much weight they

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<v Speaker 1>give them. Yeah, it's sort of would You know, We've

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<v Speaker 1>been talking a lot about, especially with Kavanaugh and Neil

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<v Speaker 1>Gorser's joining the Court about how they are justices who

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<v Speaker 1>tend to be skeptical of giving too much difference to

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<v Speaker 1>administrative agencies like the e PA, for example, and so

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<v Speaker 1>there's an expectation this court will limit the power of

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<v Speaker 1>administrative agencies in those contexts. Here, however, Justice Kavanaugh, for example,

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<v Speaker 1>said that the statute that governs the taking of the

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<v Speaker 1>senses gives huge discretion to the Commerce Secretary. So in

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<v Speaker 1>this context, it didn't seem like those limits on administrative

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<v Speaker 1>agencies that they might apply elsewhere. We're going to carry

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<v Speaker 1>the day here. So this is the court's first look

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<v Speaker 1>at a min inistration initiative since the Justice upheld President

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<v Speaker 1>Trump's travel band last year. Are there any implications beyond

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<v Speaker 1>the census question here, for example, two questions of presidential power?

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<v Speaker 1>You know, there could be it could be a case

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<v Speaker 1>that's very limited to the census, but certainly there It

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<v Speaker 1>does suggest for those who are critical the Trump administration

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<v Speaker 1>worried about the Supreme Court, I think ruling, if it's

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<v Speaker 1>what I am anticipating it will be, will stoke those

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<v Speaker 1>fears that this is a court that is not very

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<v Speaker 1>eager to stand up to the Trump administration when it

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<v Speaker 1>violates the law. And of course the Trump administration says,

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<v Speaker 1>we're not violating the law. We had perfectly good reasons.

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<v Speaker 1>And we will debate all that after the opinion comes up,

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<v Speaker 1>but right now it does seem like the Conservatives are

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<v Speaker 1>inclined to let the Trump administration do what it wants

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<v Speaker 1>to do. So, Greg did the administration stick with its

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<v Speaker 1>argument that Will Burrow said they were doing this so

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<v Speaker 1>they could enforce the Voting Rights Act? It did, yes,

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<v Speaker 1>And it also said that the evidence I talked about

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<v Speaker 1>the Census Bureau had made its recommendation and and said

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<v Speaker 1>it would depress participation. And Ross said, you know, I'm

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<v Speaker 1>not buying their case. I'm not buying what they're saying

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<v Speaker 1>about about reducing participation, at least not to the extent

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<v Speaker 1>that the Census Bureau was concerned about it. Essentially, the

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<v Speaker 1>administration's cases look in a lot of the fact that

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<v Speaker 1>it's not totally clear that it would or even how

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<v Speaker 1>much it would to press participation, and that we had

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<v Speaker 1>this other concern about the Voting Rights Act. Balancing those factors,

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<v Speaker 1>it was a reasonable decision for the Secretary to make

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<v Speaker 1>to include the question one of the quick point I'll

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<v Speaker 1>make is just that the administration is really pounding hard

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<v Speaker 1>on the notion that there's a long history of asking

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<v Speaker 1>about the citizenship in the census, not always in the

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<v Speaker 1>same way and not of every person, but there's a

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<v Speaker 1>history that may matter a lot when the Court reaches

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<v Speaker 1>its decision before about yes yes. Now, you know, what's

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<v Speaker 1>one potentially significant difference, at least for the liberals, will

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<v Speaker 1>be that it wasn't the questions were directed to the

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<v Speaker 1>household rather than each individual person. And you know, questions

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<v Speaker 1>about citizenship are still had been over the past several

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<v Speaker 1>decades asked on another survey. Thanks so much, Greg, That's

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<v Speaker 1>Bloomberg New Supreme Court Report at Greg's store. Thanks for

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<v Speaker 1>listening to the Bloomberg Law Podcast. You can subscribe and

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<v Speaker 1>listen to the show on Apple Podcasts, SoundCloud, and on

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<v Speaker 1>Bloomberg dot com Slash podcasts. I'm June Grasso. This is

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<v Speaker 1>Bloomberg