WEBVTT - Supreme Court May Limit SEC's Power 0:00:03.200 --> 0:00:08.719 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.720 --> 0:00:13.640 The case before the Supreme Court is about a challenge 0:00:13.640 --> 0:00:16.759 to the powers of the SEC to bring legal actions 0:00:16.800 --> 0:00:20.880 in house, and it's another example of the conservative justices 0:00:21.120 --> 0:00:25.720 targeting the administrative state. During the oral arguments, Chief Justice 0:00:25.840 --> 0:00:30.120 John Roberts expressed concerns over the power of federal regulators. 0:00:30.800 --> 0:00:36.640 The extent of impact of government agencies on daily life 0:00:36.720 --> 0:00:42.480 today is enormously more significant than it was fifty years ago. 0:00:43.440 --> 0:00:46.920 The Jocracy case could strip the SEC of a key 0:00:47.080 --> 0:00:52.279 enforcement tool, and Conservative justices like Brett Cavanaugh suggested that 0:00:52.400 --> 0:00:56.320 people accused of fraud by the SEC have a constitutional 0:00:56.400 --> 0:00:59.200 right to have their cases decided by a jury in 0:00:59.320 --> 0:01:03.400 federal courts instead of by the SEC's in house administrative 0:01:03.440 --> 0:01:04.120 law judges. 0:01:04.840 --> 0:01:10.000 That seems problematic to say the government can deprive you 0:01:10.080 --> 0:01:15.080 of your property, your money, substantial sums in a tribunal 0:01:15.959 --> 0:01:20.160 that is at least perceived as not being impartial. 0:01:20.400 --> 0:01:22.680 A change in the law by the Court here could 0:01:22.720 --> 0:01:27.840 have effects far beyond the SEC, because roughly two dozen agencies, 0:01:28.000 --> 0:01:31.959 including the EPA, the CFTC, and the Federal Trade Commission, 0:01:32.319 --> 0:01:37.120 have similar enforcement schemes, as Liberal Justice Sonya Sotomayor pointed 0:01:37.160 --> 0:01:40.400 out to Jocasy's attorney Michael McCulloch. 0:01:40.280 --> 0:01:48.400 All of those agencies we'll have to go to court. Correct, Well, 0:01:48.720 --> 0:01:53.320 you are, all of their proceedings are now nullified unto 0:01:53.360 --> 0:01:53.960 your theory. 0:01:54.080 --> 0:01:57.720 And Liberal Justice Elena Kagan pointed to a nineteen seventy 0:01:57.800 --> 0:02:01.960 seven Supreme Court ruling at La Roofing, telling McCulloch it 0:02:02.120 --> 0:02:04.440 settled the issue and there was no right to a 0:02:04.560 --> 0:02:05.880 jury trial here. 0:02:05.920 --> 0:02:09.240 In a case where Congress has given an agency the 0:02:09.320 --> 0:02:14.520 power to enforce something and the agency is bringing the charge, 0:02:14.520 --> 0:02:18.600 if you will that you know that that's just not 0:02:19.360 --> 0:02:20.679 it's that's settled. 0:02:21.080 --> 0:02:23.840 Well, it's settled only to the extent no one's brought 0:02:23.840 --> 0:02:27.600 it up and forced this issue since Atlas Roofing in his. 0:02:27.760 --> 0:02:34.919 Chorea is contact. Nobody has had the you know, kutzpa 0:02:35.000 --> 0:02:38.959 to quote my people to bring it up since Atlas Roofing. 0:02:39.800 --> 0:02:42.399 My guest is Harold Krent, a professor at the Chicago 0:02:42.480 --> 0:02:46.800 Kent College of Law. How this involves George Jarcasy, a 0:02:46.840 --> 0:02:50.880 former hedge fund manager and conservative radio host, and the 0:02:50.919 --> 0:02:54.600 SEC found that he had committed securities fraud in twenty 0:02:54.680 --> 0:02:59.320 thirteen for misleading investors. Hell tell us about the case 0:02:59.520 --> 0:03:01.120 and what's at stake here. 0:03:01.919 --> 0:03:06.280 This started ten years ago and the variety of challenges 0:03:06.720 --> 0:03:12.680 against the SEC proceedings, and finally, after first losing in 0:03:12.720 --> 0:03:15.359 the DC Circuit, he tried and found more success in 0:03:15.480 --> 0:03:19.240 the Fifth Circuit, and the Fifth Circuit decided on three 0:03:19.280 --> 0:03:24.359 distinct constitutional violations. First that there was a non delegation 0:03:24.520 --> 0:03:28.359 violation in the fact that Congress had not given sufficient 0:03:28.400 --> 0:03:31.240 guidance to the Security Change Commission about whether to bring 0:03:31.760 --> 0:03:35.320 a security fraud action before an alj as opposed to 0:03:35.680 --> 0:03:39.120 in front of a court. And second, that the SEC 0:03:39.400 --> 0:03:44.200 proceedings weren't constitutionally constructed because the administer of law judges 0:03:44.360 --> 0:03:47.200 in the Security is a Change Commission are protected from 0:03:47.200 --> 0:03:52.000 that will removal and thus violate Article two. And the 0:03:52.320 --> 0:03:56.440 third problem was that the fraud charges that the SEC 0:03:56.520 --> 0:04:02.080 successfully brought against Charc echoed those of fraud cases at 0:04:02.080 --> 0:04:05.000 common law and that therefore that duct should have been 0:04:05.000 --> 0:04:09.440 granted a jury trial. If the Supreme Court decides all 0:04:09.480 --> 0:04:13.200 three issues against the SEC, they would have enormous ramifications 0:04:13.240 --> 0:04:16.599 on the administrative state. That's not likely after listening to 0:04:16.640 --> 0:04:20.680 the oral argument, but nonetheless, the consequence of dramatic and 0:04:20.839 --> 0:04:25.200 briefly they are that almost every particular individual or firm 0:04:25.240 --> 0:04:27.839 performed agency, many at least, would have the right to 0:04:27.880 --> 0:04:29.800 a jury trial and not have to go before an 0:04:29.800 --> 0:04:33.040 administrative tribunalism is currently the case. That would be one 0:04:33.080 --> 0:04:36.720 fundamental change. The second would be that all administrative law 0:04:36.800 --> 0:04:39.680 judges would have to be subject there outwill removal, which 0:04:39.720 --> 0:04:45.800 would undermine the independence, ironically of these administrative determinations. And third, 0:04:46.080 --> 0:04:50.240 there would be some kind reinvigoration of the non delegation doctrine, 0:04:50.240 --> 0:04:55.120 which was mimit Congress's ability to delegate issues for administry 0:04:55.120 --> 0:05:00.400 of agencies to resolve. So very consequential case, very usual 0:05:00.440 --> 0:05:03.440 what happened at oral arguments or the stakes couldn't be higher. 0:05:03.760 --> 0:05:06.719 So, now, before we go into the oral arguments, explain 0:05:06.839 --> 0:05:10.799 the difference between an administrative law judge and a federal 0:05:10.839 --> 0:05:13.680 district court judge known as an Article three judge, and 0:05:13.760 --> 0:05:16.839 the difference in the proceedings in the different forums. 0:05:17.240 --> 0:05:20.800 So the two different tracks of litigation when the government 0:05:20.960 --> 0:05:24.400 is involved. The first would be before an Article three 0:05:24.480 --> 0:05:28.479 judge in a federal trial court, and those proceedings are 0:05:28.800 --> 0:05:31.599 very similar to anything one would see on TV in 0:05:31.720 --> 0:05:35.080 terms of having rules of evidence. You'd have a judge 0:05:35.080 --> 0:05:39.680 who is protected from any kind of diminution and salary 0:05:39.839 --> 0:05:45.440 or removal. You'd have attorneys for both sides arguing subject 0:05:45.480 --> 0:05:49.080 to delineated rules, and at times you'd have a jury 0:05:49.080 --> 0:05:52.960 trial as well if there were money damages at stake. 0:05:53.560 --> 0:05:57.680 In contrast, in a typical administrative proceeding, of which there 0:05:57.720 --> 0:06:01.240 are hundreds of thousands a year, you would have an 0:06:01.240 --> 0:06:05.400 Administry of Law judge who is appointed by the agency 0:06:06.000 --> 0:06:09.080 and is subject to remove by the agency, but at 0:06:09.160 --> 0:06:13.599 least currently only for some kind of misconduct. The proceeding 0:06:13.600 --> 0:06:16.400 would go before this Administry of Law judge. The rules 0:06:16.400 --> 0:06:19.760 of evidence would be much more flexible, in other words, 0:06:19.839 --> 0:06:23.159 more information could be submitted. In addition, there would be 0:06:23.160 --> 0:06:25.960 no jury, and so the case would first go before 0:06:25.960 --> 0:06:28.680 the Ministry of Law judge, but then can be appealed 0:06:28.720 --> 0:06:32.440 to the administrative agency itself in this case the Securities 0:06:32.440 --> 0:06:35.640 and Exchange Commission, and of course those are political actors. 0:06:36.040 --> 0:06:39.120 But then only after these Securities and Exchange Commission would 0:06:39.160 --> 0:06:42.440 make a decision, then judicial review would be opened up 0:06:43.000 --> 0:06:47.800 and a court would determine whether the agency reasonably acted 0:06:48.240 --> 0:06:52.640 in terms of deciding upon a fine or discouragement, as 0:06:52.680 --> 0:06:57.039 indeed both happened in this case. So they're very different tracks. 0:06:57.240 --> 0:07:01.400 There's judicial involvement in both of them. One the judiciary 0:07:02.000 --> 0:07:05.600 has a review function over the agency and cancy agency 0:07:05.680 --> 0:07:08.440 some difference in how it conducts the proceedings, and the 0:07:08.520 --> 0:07:13.160 other it's much more protective of individual rights and the 0:07:13.280 --> 0:07:16.160 individual would have the ability to have a jury check 0:07:16.280 --> 0:07:20.680 upon any kind of zeal or overreaching by the government 0:07:20.720 --> 0:07:21.880 and bringing these charges. 0:07:22.840 --> 0:07:23.000 Now. 0:07:23.120 --> 0:07:27.800 Jocasy contends that defendants in SEC cases have a constitutional 0:07:27.880 --> 0:07:30.600 right to make their case to a federal jury, and 0:07:30.680 --> 0:07:35.720 the oral arguments focused almost entirely on that one issue 0:07:35.720 --> 0:07:39.280 on the Seventh Amendment, which provides that in suits at 0:07:39.280 --> 0:07:42.640 common law, the right of trial by jury shall be preserved. 0:07:43.120 --> 0:07:46.560 So tell us about the argument over the Seventh Amendment. 0:07:46.960 --> 0:07:49.240 Well before the argument of the amendment. What I think 0:07:49.360 --> 0:07:52.560 is extraordinary about this case is the two other very 0:07:52.600 --> 0:07:57.760 significant constitutional arguments that we discussed were hardly mentioned it 0:07:57.800 --> 0:08:01.000 all during oral argument and or argumently in almost two hours. 0:08:01.040 --> 0:08:03.200 And so the question is why, And I don't know 0:08:03.240 --> 0:08:07.400 the answer. You only speculate that either the justices were 0:08:07.480 --> 0:08:11.200 convinced that the other two arguments were not very weighty 0:08:11.480 --> 0:08:15.040 and therefore they knew what the result would be, or 0:08:15.200 --> 0:08:18.080 they might have decided that they were going to throw 0:08:18.160 --> 0:08:21.440 this case out on the Seventh Amendment grounds anyway, and 0:08:21.480 --> 0:08:24.000 so they didn't have to decide either the non delegation 0:08:24.360 --> 0:08:28.760 argument or the alga removability issue. But it is extremely 0:08:29.440 --> 0:08:34.439 unusual for the Court to ignore two very important constitutional 0:08:34.520 --> 0:08:37.800 challenges in a case of this nature, So that to 0:08:37.840 --> 0:08:40.560 me is the biggest mystery of this case. But turning 0:08:40.600 --> 0:08:44.640 to the difficult question about the Seventh Amendment, the question 0:08:44.720 --> 0:08:49.720 is how broad the Seventh Amendment should be construed to extend. 0:08:50.040 --> 0:08:53.040 On the one hand, an individual has a right to 0:08:53.080 --> 0:08:56.000 a jury trial, but the courts for one hundred and 0:08:56.000 --> 0:09:00.160 fifty years, if not more, have said that the very 0:09:00.240 --> 0:09:03.000 trial right does not exist if there is a public 0:09:03.080 --> 0:09:06.600 right involved, And so much of the argument discussed from 0:09:06.600 --> 0:09:10.640 different perspectives what is a public right? And the Supreme 0:09:10.640 --> 0:09:13.959 Court held fifty years ago in a case called Atlas Roofings, 0:09:14.160 --> 0:09:17.040 that a public right would include not only issues between 0:09:17.120 --> 0:09:22.240 individuals and the government directly, such as taxes and claims 0:09:22.280 --> 0:09:26.679 like social security benefits, but also would include anything under 0:09:26.840 --> 0:09:32.040 a comprehensive congressional scheme that was devised in order to 0:09:32.080 --> 0:09:36.439 protect the public. So in that case, Congress had created 0:09:36.440 --> 0:09:42.120 a mechanism to allow a federal agency OOSHA, to inspect 0:09:42.120 --> 0:09:47.520 workplaces and find individual companies for failure to maintain a 0:09:47.600 --> 0:09:52.240 healthy workplace. And then the court said, yes, these kinds 0:09:52.240 --> 0:09:55.960 of finds are a little bit like negligence claims or 0:09:56.240 --> 0:09:59.520 wantful death claims that could be launched against employers. But 0:09:59.640 --> 0:10:03.040 when the government brings such an action, it does so 0:10:03.480 --> 0:10:06.000 for a different purpose. It brings the action to protect 0:10:06.000 --> 0:10:10.080 the public and to try to prevent these kind of 0:10:10.120 --> 0:10:14.520 workplace accidents. And therefore, in light of this unique public nature, 0:10:14.600 --> 0:10:16.599 there is no right to a jury trial, and that 0:10:16.679 --> 0:10:20.240 therefore the government can recover fines even outside of the 0:10:20.400 --> 0:10:24.480 jury context. So this is the precedent that the government 0:10:24.520 --> 0:10:28.880 relied upon, and it has been cited in lots of 0:10:28.920 --> 0:10:34.240 cases since involving finding immigration proceedings, in customs proceedings and 0:10:34.280 --> 0:10:37.680 so forth. So the stakes are very high in this case, 0:10:37.720 --> 0:10:41.200 and indeed, much of the argument was talking about line drawing. 0:10:41.600 --> 0:10:46.920 What is to distinguish the fraud claim under the Securities 0:10:46.960 --> 0:10:52.640 Act in the Jerxi case from a case involving taxes, 0:10:53.040 --> 0:10:55.800 involving customs duties and so forth. 0:10:55.960 --> 0:10:58.400 Coming up next, we'll talk about what the decision might 0:10:58.480 --> 0:11:01.280 look like. I'm June gram So when you're listening to Bloomberg, 0:11:01.840 --> 0:11:04.199 I've been talking to Professor Harold Krant to the Chicago 0:11:04.320 --> 0:11:08.160 Kent College of Law about Supreme Court oral arguments this 0:11:08.240 --> 0:11:11.160 week over a challenge to the power of the sec 0:11:11.320 --> 0:11:15.520 to bring legal actions in house. The Conservative Justice is 0:11:16.000 --> 0:11:18.800 seem to be very concerned about the right to a 0:11:18.920 --> 0:11:22.520 jury in this case, and it struck me as a 0:11:22.559 --> 0:11:26.640 bit odd because jury trial isn't something they've historically cared 0:11:26.679 --> 0:11:30.439 about very much, right, They've always pushed forced arbitration they have. 0:11:30.679 --> 0:11:34.440 I mean, certainly, it's true. And what is clear out 0:11:34.440 --> 0:11:38.280 of this discussion is that they have circled back to 0:11:38.880 --> 0:11:43.199 the importance in seventeen ninety one of the ratification of 0:11:43.240 --> 0:11:46.960 the Seventh Amendment to think that this is a hallmark 0:11:47.160 --> 0:11:51.960 right that should be preserved by any individual, not only 0:11:52.000 --> 0:11:55.720 if they're litigating against another company or another individual, but 0:11:55.760 --> 0:12:00.600 also when they're litigating against the government itself. And that's 0:12:00.720 --> 0:12:04.520 not how we've recognized that right in the last seventy 0:12:04.559 --> 0:12:07.679 five years. So the Court is I think using this 0:12:07.760 --> 0:12:11.880 now is a lever to try to either cut down 0:12:12.320 --> 0:12:16.640 or diminish the power of these administrative agencies that operate 0:12:16.679 --> 0:12:20.800 in so many sectors of our lives, from transportation into immigration, 0:12:21.400 --> 0:12:26.080 to workplace safety, to environmental safety, and so much more. 0:12:26.400 --> 0:12:29.560 And so by focusing on the Seventh Amendment in a 0:12:29.600 --> 0:12:34.080 way that they haven't before, they will effectively force agencies 0:12:34.120 --> 0:12:38.240 to go to court to collect penalties, and that will 0:12:38.280 --> 0:12:40.200 slow down the administrative process. 0:12:41.040 --> 0:12:45.360 Justice is Elena Kagan and Katanji Brown Jackson said that 0:12:45.440 --> 0:12:49.640 the at Liss ruling settled the issue here, So would 0:12:49.720 --> 0:12:54.599 the Court have to overrule that nineteen seventy seven precedent 0:12:54.960 --> 0:12:57.280 in order to rule for jocracy here. 0:12:57.960 --> 0:13:00.959 Likely they would do so, at least in substance, if 0:13:00.960 --> 0:13:04.319 not inform I mean. Chief Justice Roberts himself said, well, 0:13:04.600 --> 0:13:07.280 you know that pathless was fifty years ago, and we've 0:13:07.280 --> 0:13:09.839 seen a lot of that's happened in the last fifty years, 0:13:09.920 --> 0:13:13.960 including the increasing power of administrative agencies. So it's time 0:13:13.960 --> 0:13:16.480 for us to take a good look back at it 0:13:16.600 --> 0:13:19.160 to see if it makes sense today. And to be fair, 0:13:19.480 --> 0:13:23.320 some of the more conservative justices, particularly Justice Barrett, was 0:13:23.400 --> 0:13:27.280 struggling to figure out a limiting principle about how you 0:13:27.280 --> 0:13:30.960 could make the determination of when the Seventh Amendment right 0:13:31.000 --> 0:13:33.720 would be triggered. For instance, is it just because there's 0:13:33.720 --> 0:13:37.240 a civil penalty that would be at least one easily 0:13:37.280 --> 0:13:41.439 administrable remedy to say, as opposed to say a discooragement 0:13:41.520 --> 0:13:44.560 penalty or something else, or a cease and desist order. 0:13:44.760 --> 0:13:47.920 So is that line important? So there was at least 0:13:47.920 --> 0:13:51.439 some kind of wrangling amongst some of the conservative justices, 0:13:51.880 --> 0:13:55.200 not Justice Alito, not Justice Thomas, but the others about 0:13:55.240 --> 0:13:59.120 this kind of line drawing. Is if they extend the 0:13:59.320 --> 0:14:02.960 Seventh Amend, how far will the extension be? And at 0:14:03.040 --> 0:14:08.200 least they were concerned that a literal interpretation of what 0:14:08.280 --> 0:14:11.280 Darshi was arguing might extend very far. 0:14:11.320 --> 0:14:17.319 Indeed, the Assistants Elicitor General said the government was protecting 0:14:17.320 --> 0:14:20.280 the rights of the public generally, and when the public's 0:14:20.360 --> 0:14:22.680 rights are at issue, the right to a jury trial 0:14:23.200 --> 0:14:26.560 guaranteed by the Seventh Amendment in suits that common law 0:14:26.640 --> 0:14:30.120 did not apply. Do you agree or disagree that the 0:14:30.120 --> 0:14:32.760 Seventh Amendment applies to this situation. 0:14:33.240 --> 0:14:35.720 I think that the President is extremely strong that the 0:14:35.720 --> 0:14:40.600 Seventh Amendment does not apply when Congress allows individuals to 0:14:40.680 --> 0:14:43.920 sue each other before a federal form. That's where the 0:14:44.160 --> 0:14:47.360 interest and concern of the Seventh Amendment should be at 0:14:47.360 --> 0:14:49.920 its strongest. And those are the examples I think the 0:14:49.920 --> 0:14:52.840 Court should be focusing on. But I don't think the 0:14:52.880 --> 0:14:56.400 Court is correct to be concerned about is when the 0:14:56.840 --> 0:15:00.280 actual challenges not between two private entities, but the between 0:15:00.280 --> 0:15:04.120 a private entity and the federal government itself. That's really 0:15:04.120 --> 0:15:07.400 the essence of what a public right is. That's what 0:15:07.680 --> 0:15:10.600 Justice Scotias said years ago, and that should be the 0:15:10.640 --> 0:15:13.160 focus here. And so in this case, when we have 0:15:13.840 --> 0:15:18.120 the government saying that we're not suing on behalf of 0:15:18.120 --> 0:15:22.320 a private party. We're suing because you have rattled confidence 0:15:22.360 --> 0:15:26.840 in the securities markets, that's absolutely permissible, and the jury 0:15:26.880 --> 0:15:29.160 trial right and the serf of Amendment should not be triggered. 0:15:29.360 --> 0:15:30.640 How do you think they're going to rule? Is it 0:15:30.640 --> 0:15:32.640 going to be a six ' to three ruling, whatever 0:15:32.680 --> 0:15:33.080 it is. 0:15:33.680 --> 0:15:36.840 You know, again, it's so difficult to judge from in 0:15:36.880 --> 0:15:39.000 our a argument. How of course finally going to come 0:15:39.040 --> 0:15:42.200 out but I would guess that they will try to 0:15:42.320 --> 0:15:46.840 articulate a fuzzy line, but a line that is more 0:15:47.160 --> 0:15:52.160 restrictive of Congress's ability really to determine what kind of 0:15:52.800 --> 0:15:55.920 suits can be presented before administrative agencies. I doubt they 0:15:55.960 --> 0:15:59.520 will go as far as to say that Congress can't 0:16:00.000 --> 0:16:02.840 allow such suits to go before, but they'll probably talk 0:16:02.920 --> 0:16:08.160 about Congress is limited when the suit is either in 0:16:08.200 --> 0:16:12.800 all respects similar or echoes or derivative of a common 0:16:12.880 --> 0:16:14.760 law right. So what the court we'll want to do 0:16:14.840 --> 0:16:18.200 is say, use the touchstone of a common law right 0:16:18.600 --> 0:16:19.880 and say, if you have the right to have a 0:16:19.920 --> 0:16:24.040 jury trial in a similar case in seventeen ninety one 0:16:24.120 --> 0:16:28.880 and a court to Westminster, then Congress cannot effectively deprive 0:16:28.960 --> 0:16:31.880 you of that right by calling it something else, by 0:16:32.000 --> 0:16:35.720 changing it slightly and vesting it before an administrative agency. 0:16:35.880 --> 0:16:37.400 That'd be my educated guess. 0:16:37.680 --> 0:16:42.400 Let's talk about the ramifications of a decision against the SEC. Here. 0:16:42.840 --> 0:16:46.840 For example, will the decision affect the Federal Trade Commission, 0:16:47.040 --> 0:16:50.160 which uses in house judges as well. 0:16:50.320 --> 0:16:54.960 The decision is likely to affect Federal Trade Commission. It 0:16:55.040 --> 0:17:00.200 may affect OSHA, It may affect the customs duties ends 0:17:00.240 --> 0:17:03.200 on the exact test for how to determine whether this 0:17:03.760 --> 0:17:08.280 particular right of action brought by the government is similar 0:17:08.480 --> 0:17:12.720 to the suited common law in seventeen ninety one. I mean, 0:17:12.760 --> 0:17:16.640 that is a very archaic way of understanding what Congress 0:17:16.680 --> 0:17:18.760 can do and can't do in terms of deciding where 0:17:18.880 --> 0:17:22.760 these particular claims can be brought. But I think that's 0:17:22.800 --> 0:17:26.399 where the court is headed. And that was the concern 0:17:26.440 --> 0:17:30.240 that was recognized by counsel for Darsi that depending upon 0:17:30.320 --> 0:17:34.920 the line drawing, the case may either have a modest 0:17:35.359 --> 0:17:41.119 impact or a tremendous impact. And so even if the court, 0:17:41.280 --> 0:17:45.240 as it seems, will lean towards DARKSI, the real question 0:17:45.480 --> 0:17:50.000 is how broad the decision and that's something they wrestled 0:17:50.000 --> 0:17:53.000 at it. And indeed, just as Sodhamoyor said, look, this 0:17:53.080 --> 0:17:56.800 is a big issue. Neither side has litigated how broad 0:17:57.160 --> 0:18:00.359 the impact will be of a decision if we strike 0:18:00.440 --> 0:18:03.679 down the claim in this case. Shouldn't we have more 0:18:04.320 --> 0:18:07.720 briefing on the issue in recognition of how important it was, 0:18:07.800 --> 0:18:09.800 And I doubt they we'll do that, But I mean 0:18:09.880 --> 0:18:13.159 her point was, you know, we're just reaching in a 0:18:13.240 --> 0:18:16.560 darker we don't know exactly how broad of an impact 0:18:17.080 --> 0:18:18.560 a room for darcy would have. 0:18:19.400 --> 0:18:22.080 This is part of a Supreme Court term that could 0:18:22.080 --> 0:18:26.880 have broad implications for federal regulators. The justices heard arguments 0:18:26.920 --> 0:18:30.879 in October over whether the Consumer Financial Protection Bureau's funding 0:18:30.920 --> 0:18:34.720 system is constitutional, and in January it will consider whether 0:18:34.760 --> 0:18:38.439 to overturn the Chevron doctrine, which is a precedent that 0:18:38.560 --> 0:18:44.960 gives agencies leeway when they interpret ambiguous congressional commands. Why 0:18:45.000 --> 0:18:49.280 this focus and do you think federal regulators should be 0:18:49.440 --> 0:18:51.439 afraid of what's going to happen this term? 0:18:52.080 --> 0:18:55.080 Well, it's plain that the focus has arisen from a 0:18:55.200 --> 0:18:58.400 deep distrust of the administrative state, and the Court has 0:18:58.480 --> 0:19:01.560 signaled in a variety of cases is that it wants 0:19:01.600 --> 0:19:04.720 to pair down the size of government, and it thinks 0:19:04.760 --> 0:19:08.720 Congress has gone too far in an empowering administrative agencies 0:19:08.720 --> 0:19:13.960 with the ability to investigate and to proceed against mostly 0:19:14.040 --> 0:19:18.720 companies who violate the regulations that these agencies have promulgated 0:19:18.800 --> 0:19:23.680 in order to enforce a congressional mission. And so these cases, 0:19:23.920 --> 0:19:28.680 together with the appointments cases and removal cases that the 0:19:28.720 --> 0:19:33.080 Court previously has articulated, is trying to take another look 0:19:33.320 --> 0:19:37.600 at how broadly administrative agencies have influence over our lives. 0:19:37.840 --> 0:19:41.000 But that being said, I think that the Court is 0:19:41.320 --> 0:19:44.200 proceeding probably a little more slowly now than it thought 0:19:44.200 --> 0:19:47.440 it might two years ago. My guess is that they 0:19:47.480 --> 0:19:52.199 will take some steps to curve the power of administrative agencies. 0:19:52.440 --> 0:19:55.520 But by ignoring the non delegation argument today, for instance, 0:19:55.760 --> 0:19:59.399 they have bypassed an opportunity that would really stick a 0:19:59.440 --> 0:20:04.040 stake in the most administrative agencies directly, because that could 0:20:04.040 --> 0:20:08.359 have had an incredibly dramatic impact upon administer of agencies 0:20:08.400 --> 0:20:12.000 had they held that Congress has to be incredibly clear 0:20:12.359 --> 0:20:16.800 before an agency can't exercise any power whatsoever. Indeed, because 0:20:16.840 --> 0:20:19.640 the question in this case was so minor, they had 0:20:19.640 --> 0:20:22.840 to do with whether the agency could use the judgment 0:20:22.880 --> 0:20:26.879 to decide whether to bring a fraud case before an 0:20:26.960 --> 0:20:30.520 Article three judge or before an agency. And the argument 0:20:30.560 --> 0:20:33.760 that the Fifth Circuit bought was because Congress didn't give 0:20:33.800 --> 0:20:37.520 any guidance as to inform the agency's choices to which 0:20:37.640 --> 0:20:42.080 route to take, that itself violated the Constitution. A decision 0:20:42.080 --> 0:20:45.720 to uphold that understanding of the non delegation doctrine we 0:20:45.840 --> 0:20:49.160 have done far more to dismantle this administrative state than 0:20:49.240 --> 0:20:52.400 with the self of the amendment issue that the court 0:20:52.480 --> 0:20:56.520 spent two hours on that oral argument. So yes, they 0:20:56.560 --> 0:21:00.399 are thinking about curving the power of the administrative state, 0:21:00.880 --> 0:21:04.719 but they're doing so not in a as aggressive manner 0:21:05.160 --> 0:21:07.840 as they might have if they had just seized upon 0:21:07.920 --> 0:21:11.040 the non delegation doctrine as a lever in which to 0:21:11.040 --> 0:21:12.159 accomplish that result. 0:21:12.520 --> 0:21:15.200 We'll see how these decisions come out. Thanks so much, Hal. 0:21:15.480 --> 0:21:18.240 That's Professor Harold Krant of the Chicago Kent College of 0:21:18.320 --> 0:21:22.800 Law coming up the racketeering trial of a famous rapper. 0:21:23.119 --> 0:21:25.960 I'm June Grasso. When you're listening to Bloomberg, who is 0:21:26.040 --> 0:21:29.680 Grammy winning rapper Young Thug. Is he the ruthless leader 0:21:29.720 --> 0:21:33.639 of a violent street gang that terrorized Atlanta neighborhoods. Or 0:21:33.720 --> 0:21:37.199 is he an inspiring success who pulled himself out of 0:21:37.280 --> 0:21:41.080 poverty to stardom. Those are the competing narratives presented by 0:21:41.080 --> 0:21:44.240 the prosecution of the defense as the rapper's trial got 0:21:44.320 --> 0:21:48.879 underway this week. Young Thug, whose given name is Jeffrey Williams, 0:21:49.280 --> 0:21:52.560 is charged in a sprawling indictment that accuses him in 0:21:52.600 --> 0:21:56.760 more than two dozen others of conspiring to violate Georgia's 0:21:56.760 --> 0:22:00.520 anti racketeering law. He's also charged with gang, drug and 0:22:00.560 --> 0:22:03.360 gun crimes and a standing trial with five of the 0:22:03.400 --> 0:22:06.640 others and dotted with him. Joining me is former US 0:22:06.720 --> 0:22:09.440 Attorney for the Middle District of Georgia, M Michael Moore 0:22:10.040 --> 0:22:14.119 Apartment Moore Hall. Even before the opening statements, there have 0:22:14.160 --> 0:22:18.000 been almost ten months of jury selection in courtroom drama. 0:22:18.560 --> 0:22:22.919 It started with twenty eight alleged street gang members as defendants. 0:22:22.920 --> 0:22:26.440 The trial is down to six. Do all these months 0:22:26.480 --> 0:22:29.679 of problems have any impact on the trial? 0:22:30.200 --> 0:22:32.880 Well, I think it could, And I mean we started 0:22:32.880 --> 0:22:37.160 with an extraordinarily long jury selection, and you know, trying 0:22:37.200 --> 0:22:39.160 not only to find people who may not have some 0:22:39.680 --> 0:22:43.800 familiarity with the case, but some famility with witnesses and otherwise, 0:22:43.800 --> 0:22:46.359 but also folks who may just have the time to 0:22:46.600 --> 0:22:49.199 sit for this long in a trial like this, it 0:22:49.200 --> 0:22:51.639 can be difficult. And so I think that started the 0:22:51.680 --> 0:22:54.360 case off with some problems. And then you've seen other 0:22:54.440 --> 0:22:56.720 issues that have come up, with some issues with some 0:22:56.760 --> 0:22:58.520 of the lawyers and things that have happened in the 0:22:58.520 --> 0:23:00.480 court room and whether or out there have been rents, 0:23:00.480 --> 0:23:03.240 and you know, it's been a little bit of a circus, 0:23:03.400 --> 0:23:06.199 I think at this point and may continue through the 0:23:06.280 --> 0:23:07.359 duration of presentation. 0:23:07.760 --> 0:23:11.080 Tell us about the Rico indictment, about the case, what 0:23:11.200 --> 0:23:12.639 the prosecution is charging. 0:23:13.320 --> 0:23:18.679 RICO really deals with racketeer influenced corrupt organizations, and if 0:23:18.720 --> 0:23:21.080 you think about it, maybe in Layman's term, that's really 0:23:21.160 --> 0:23:24.080 talking about things like organized crime. And so you saw 0:23:24.119 --> 0:23:27.720 some RICO cases that is going after these organizations the 0:23:27.800 --> 0:23:30.800 mob basically where they would try to take down the 0:23:30.840 --> 0:23:35.199 mob leader by essentially attributing the bad conduct of his 0:23:35.359 --> 0:23:38.199 underlings to him. In other words, they didn't have to 0:23:38.240 --> 0:23:42.399 find the mafia don pulled the trigger. They could actually 0:23:42.440 --> 0:23:44.720 have a murder committed by somebody else, but they could 0:23:44.840 --> 0:23:47.080 talk about this was a goal and an effort of 0:23:47.119 --> 0:23:50.680 this criminal enterprise to either obtain money or property, and 0:23:51.000 --> 0:23:53.680 that's how they went after the organization. Recently, you've seen 0:23:53.760 --> 0:23:57.359 RICO cases used not only in drug cases and drug 0:23:57.359 --> 0:24:00.760 conspiracy type cases, but also there was one relatively well 0:24:00.840 --> 0:24:03.600 known case in Atlanta where a RICO case was used 0:24:03.640 --> 0:24:07.000 involving public schools and the cheating scandal that went on 0:24:07.080 --> 0:24:09.679 some of those people. I think indications may've got some 0:24:09.720 --> 0:24:12.800 of them reversed that some certainly were convicted, And probably 0:24:12.800 --> 0:24:14.440 the most famous one right now that we're hearing about 0:24:14.520 --> 0:24:17.720 is a Trump campaign. But it's a prosecutor's dream really 0:24:17.760 --> 0:24:21.800 because it allows them to basically paint everybody with the 0:24:21.880 --> 0:24:25.320 negative brush, and so they can bring in a lot 0:24:25.320 --> 0:24:28.440 of evidence. They get to attribute all the bad conduct 0:24:28.560 --> 0:24:31.159 of your Code defendment to you if you're a defendant, 0:24:31.200 --> 0:24:34.200 and it's more of a I guess the case involving 0:24:34.280 --> 0:24:37.400 either directions to do wrong or involvement to do wrong, 0:24:37.480 --> 0:24:40.159 or sometimes just knowledge of people who are doing wrong. 0:24:40.359 --> 0:24:41.879 All that evidence gets to come in, and at the 0:24:41.960 --> 0:24:43.879 end of the day, the prosecution has the jury to 0:24:43.960 --> 0:24:48.040 convict you because you were part of this organization. So 0:24:48.640 --> 0:24:52.280 it's not an uncontroversial statute. Many people think that it 0:24:52.320 --> 0:24:56.280 allows prosecutors too much leeway in bringing cases that they 0:24:56.320 --> 0:24:59.439