1 00:00:00,160 --> 00:00:04,120 Speaker 1: This is Bloomberg Law with June Grosso. Monday was a 2 00:00:04,200 --> 00:00:07,400 Speaker 1: historic day at the Supreme Court. For the first time, 3 00:00:07,440 --> 00:00:11,160 Speaker 1: the country could hear Supreme Court oral arguments live, and 4 00:00:11,240 --> 00:00:15,280 Speaker 1: another first, the arguments were done by telephone. The issue 5 00:00:15,320 --> 00:00:18,120 Speaker 1: in the case was whether businesses can get federal trademark 6 00:00:18,160 --> 00:00:21,599 Speaker 1: protection for website names such as booking dot Com that 7 00:00:21,760 --> 00:00:24,760 Speaker 1: center on a commonly used word. Will hear argument this 8 00:00:24,840 --> 00:00:30,280 Speaker 1: morning in case the United States Patent and Trademark Office 9 00:00:30,680 --> 00:00:35,120 Speaker 1: versus Booking dot Com. Chief Justice John Roberts started the 10 00:00:35,159 --> 00:00:38,440 Speaker 1: session as usual by announcing the case, but then rolled 11 00:00:38,479 --> 00:00:42,120 Speaker 1: out a new format, calling on the jostices by Seniority 12 00:00:42,159 --> 00:00:45,640 Speaker 1: in an orderly fashion, unlike the usual free for all. 13 00:00:46,520 --> 00:00:51,920 Speaker 1: Justice Brier the same question of Justice Thomas's question, good 14 00:00:51,960 --> 00:00:55,400 Speaker 1: morning anyway, There are just a few glitches. Justice Stephen 15 00:00:55,440 --> 00:00:58,800 Speaker 1: Brier's audio at one point was garbled, and Justice Sonia 16 00:00:58,840 --> 00:01:01,440 Speaker 1: Sotomayor seemed to to get her mute button was on. 17 00:01:02,160 --> 00:01:12,800 Speaker 1: Justice Soda Mayor, Yese Soda Mayor, I'm sorry, Chief ms 18 00:01:12,880 --> 00:01:16,800 Speaker 1: Ross picking up on where you were right now. The 19 00:01:16,880 --> 00:01:20,800 Speaker 1: one surprise, Justice Clarence Thomas asked a question for the 20 00:01:20,880 --> 00:01:25,839 Speaker 1: first time in more than a year, Justice Thomas, Yes, 21 00:01:26,280 --> 00:01:32,360 Speaker 1: Ms Ross. The couple of questions, Um, the could booking 22 00:01:33,000 --> 00:01:37,679 Speaker 1: uh acquire an eight hundred number? For that's a vanity number, 23 00:01:37,720 --> 00:01:41,560 Speaker 1: one eight hundred booking for example. Uh, that is similar 24 00:01:41,680 --> 00:01:46,279 Speaker 1: to for one eight hundred plumbing, which is a registered mark. 25 00:01:46,640 --> 00:01:49,639 Speaker 1: Even though the Chief trying to keep the questioning on time, 26 00:01:50,600 --> 00:01:54,280 Speaker 1: Thank you, thank you, Miss Black. Justice Ginsburg, the argument 27 00:01:54,360 --> 00:01:58,400 Speaker 1: ran fifteen minutes past the normal hour long session. Joining 28 00:01:58,520 --> 00:02:02,000 Speaker 1: now is Bloomberg, Supreme Court Reporter Greg Store, how would 29 00:02:02,040 --> 00:02:06,640 Speaker 1: you rate the first live oral arguments? Well, it went 30 00:02:06,680 --> 00:02:10,920 Speaker 1: pretty smoothly. Wasn't like the usual oral arguments in the courtroom. 31 00:02:10,960 --> 00:02:13,760 Speaker 1: But for what it was, there weren't any major glitches. 32 00:02:14,040 --> 00:02:16,320 Speaker 1: Justices were all able to be heard, They could hear 33 00:02:16,360 --> 00:02:17,920 Speaker 1: the lawyers. And you know, we had a couple of 34 00:02:17,960 --> 00:02:20,320 Speaker 1: moments where, for example, Justice and you said, of myr 35 00:02:20,400 --> 00:02:22,359 Speaker 1: seemed to have the new button on. So when Chief 36 00:02:22,360 --> 00:02:24,280 Speaker 1: just As Roberts turned to her for her turn to 37 00:02:24,320 --> 00:02:26,600 Speaker 1: ask questions, she wasn't there. And that happened with one 38 00:02:26,600 --> 00:02:29,000 Speaker 1: of the lawyers as well. And then there were a 39 00:02:29,040 --> 00:02:31,840 Speaker 1: couple of minutes where very hard to hear Justice Brier. 40 00:02:32,200 --> 00:02:34,600 Speaker 1: The audio was just bad. But that only lasted a 41 00:02:34,600 --> 00:02:36,600 Speaker 1: few seconds, and then he must have walked to another 42 00:02:36,639 --> 00:02:38,760 Speaker 1: part of the room or something and we were able 43 00:02:38,760 --> 00:02:40,560 Speaker 1: to hear him. But for the most part it went 44 00:02:40,680 --> 00:02:45,720 Speaker 1: relatively smoothly. And when Chief Justice Roberts said, Justice Thomas, 45 00:02:46,000 --> 00:02:49,000 Speaker 1: we heard a question from Justice Thomas, we did. That 46 00:02:49,080 --> 00:02:51,240 Speaker 1: was the first time we've heard Justice Thomas in an 47 00:02:51,320 --> 00:02:53,839 Speaker 1: argument in more than a year. In fact, that one 48 00:02:54,120 --> 00:02:57,000 Speaker 1: point went ten years without asking a question. He has 49 00:02:57,080 --> 00:02:59,600 Speaker 1: said that he said various things, but among the things 50 00:02:59,600 --> 00:03:02,840 Speaker 1: he has it is I don't like the way the 51 00:03:03,000 --> 00:03:05,880 Speaker 1: arguments go. We asked too many questions. We don't let 52 00:03:05,880 --> 00:03:08,680 Speaker 1: the lawyer get an answer out. He really doesn't seem 53 00:03:08,680 --> 00:03:10,880 Speaker 1: to like the free for all nature of most Supreme 54 00:03:10,880 --> 00:03:13,440 Speaker 1: Court arguments. Well, this was not a free for all argument. 55 00:03:13,520 --> 00:03:16,040 Speaker 1: It was much more structured, and perhaps he felt much 56 00:03:16,040 --> 00:03:19,720 Speaker 1: more comfortable with the format. I think it's also the case, though, 57 00:03:19,800 --> 00:03:22,000 Speaker 1: that it would have been striking for him not to 58 00:03:22,040 --> 00:03:25,560 Speaker 1: ask a question. This was a very structured affair where 59 00:03:25,720 --> 00:03:28,240 Speaker 1: John Roberts went from the most senior justice down to 60 00:03:28,280 --> 00:03:31,600 Speaker 1: the most junior justice. Everybody had their turn, everybody had 61 00:03:31,639 --> 00:03:34,040 Speaker 1: their three or four minutes, and it would have been 62 00:03:34,120 --> 00:03:36,600 Speaker 1: very notable if the one and only justice who didn't 63 00:03:36,640 --> 00:03:39,920 Speaker 1: take advantage of that opportunity was Clarence Thomas. And so 64 00:03:40,360 --> 00:03:42,320 Speaker 1: in some ways maybe this was actually the path of 65 00:03:42,400 --> 00:03:46,480 Speaker 1: least resistance form a person who hasn't heard or seen 66 00:03:46,880 --> 00:03:50,440 Speaker 1: oral arguments before. Was this a fair representation for them 67 00:03:50,560 --> 00:03:52,760 Speaker 1: or are they missing a lot? In some ways, it 68 00:03:52,920 --> 00:03:56,960 Speaker 1: was because it highlighted how some Supreme Court arguments are 69 00:03:56,960 --> 00:04:01,840 Speaker 1: actually pretty dry and technical, and the justices actually do 70 00:04:02,000 --> 00:04:05,480 Speaker 1: get into the weeds about federal statutes and a hundred 71 00:04:05,520 --> 00:04:09,120 Speaker 1: year old precedent, and they're not all the attention grabbing 72 00:04:09,160 --> 00:04:12,160 Speaker 1: abortion and gun rights cases. On the other hand, you 73 00:04:12,200 --> 00:04:16,240 Speaker 1: didn't have the kind of running narrative that you usually 74 00:04:16,240 --> 00:04:18,960 Speaker 1: have in a Supreme Court argument. He did to some degree, 75 00:04:19,000 --> 00:04:22,600 Speaker 1: but you really didn't have justices jumping in and saying, hey, 76 00:04:22,760 --> 00:04:24,520 Speaker 1: you didn't do a very good job of answering that 77 00:04:24,600 --> 00:04:28,160 Speaker 1: other justices question, or say, jumping in and trying to 78 00:04:28,200 --> 00:04:30,600 Speaker 1: help out a lawyer who was floundering a little bit. 79 00:04:30,839 --> 00:04:34,960 Speaker 1: You didn't have that, And because each justice got two 80 00:04:35,000 --> 00:04:38,680 Speaker 1: minutes to ask questions, it meant that chief had more 81 00:04:38,720 --> 00:04:41,599 Speaker 1: of a role of cutting off the lawyers and moving 82 00:04:41,600 --> 00:04:45,320 Speaker 1: them along which he doesn't usually do. Yeah, he usually 83 00:04:45,480 --> 00:04:47,560 Speaker 1: has to do that only maybe at the end of 84 00:04:47,600 --> 00:04:50,000 Speaker 1: the argument when a lawyer is running out of time. 85 00:04:50,040 --> 00:04:52,479 Speaker 1: But even then, when they're in the courtroom, there's a 86 00:04:52,560 --> 00:04:56,120 Speaker 1: like system, a visual system that the lawyers have where 87 00:04:56,360 --> 00:04:58,159 Speaker 1: they see a yellow light when they're running out of 88 00:04:58,160 --> 00:04:59,600 Speaker 1: time and a red light when they're out of time. 89 00:04:59,760 --> 00:05:02,680 Speaker 1: He or it was up to Chief Justice Roberts not 90 00:05:02,760 --> 00:05:05,000 Speaker 1: only to tell the lawyer at the end, your time 91 00:05:05,120 --> 00:05:07,680 Speaker 1: is expiring. You need to wrap up, but also to 92 00:05:07,760 --> 00:05:10,719 Speaker 1: make sure that none of the answers went so long 93 00:05:11,120 --> 00:05:14,680 Speaker 1: that other justices would lose their questioning time. As it was, 94 00:05:14,800 --> 00:05:18,000 Speaker 1: the argument went longer than it was supposed to supposed 95 00:05:18,000 --> 00:05:20,200 Speaker 1: to be sixty minutes, it win seventy five minutes. And 96 00:05:20,240 --> 00:05:22,839 Speaker 1: part of that was it was actually difficult for John 97 00:05:22,920 --> 00:05:25,320 Speaker 1: Roberts to have to cut in over and over and 98 00:05:25,360 --> 00:05:28,239 Speaker 1: over again to interrupt the lawyers so that another justice 99 00:05:28,279 --> 00:05:31,159 Speaker 1: could ask questions and the argument could move alone. Gregg 100 00:05:31,240 --> 00:05:34,640 Speaker 1: looking forward when the justices returned to the bench, will 101 00:05:34,680 --> 00:05:37,880 Speaker 1: they be pressure to continue the live streaming. I'm sure 102 00:05:37,880 --> 00:05:40,200 Speaker 1: there will be public pressure, But part of the question 103 00:05:40,279 --> 00:05:43,360 Speaker 1: is when is this going to happen? There's no guarantee 104 00:05:43,400 --> 00:05:47,760 Speaker 1: that when new term starts in October, that these many 105 00:05:47,760 --> 00:05:49,720 Speaker 1: of them elderly justices are going to be able to 106 00:05:49,760 --> 00:05:52,640 Speaker 1: go back into a courtroom and here arguments like usual. 107 00:05:52,720 --> 00:05:55,760 Speaker 1: So this may last for a while. From the court standpoint, 108 00:05:55,800 --> 00:05:58,320 Speaker 1: no doubt. Part of it will depend on what happens 109 00:05:58,360 --> 00:06:01,400 Speaker 1: with these arguments and the line long ago. Thanks Gregg, 110 00:06:01,600 --> 00:06:04,960 Speaker 1: that's Bloomberg New Supreme Court reporter Greg Store coming up 111 00:06:05,000 --> 00:06:09,880 Speaker 1: next on Bloomberg law that justices appeared divided over religious exemptions. 112 00:06:11,400 --> 00:06:15,880 Speaker 1: The fractious debate over the contraceptive mandate in Obamacare returned 113 00:06:15,880 --> 00:06:19,360 Speaker 1: to the Supreme Court on Wednesday, and the Justices seemed 114 00:06:19,400 --> 00:06:23,200 Speaker 1: as divided as ever. The issue was the Trump administration's 115 00:06:23,240 --> 00:06:26,440 Speaker 1: broad expansion of the types of employers who can opt 116 00:06:26,480 --> 00:06:29,839 Speaker 1: out of the Obamacare requirement that they offer free birth 117 00:06:29,880 --> 00:06:34,120 Speaker 1: control coverage in their healthcare plans. Chief Justice John Roberts, 118 00:06:34,160 --> 00:06:37,680 Speaker 1: the possible pivotal vote, suggested that the Trump exemption might 119 00:06:37,720 --> 00:06:41,039 Speaker 1: sweep too broadly and seemed frustrated that neither side wanted 120 00:06:41,080 --> 00:06:43,560 Speaker 1: to work the problem out well. The problem is that 121 00:06:43,680 --> 00:06:47,040 Speaker 1: neither side in this debate wants the accommodation to work 122 00:06:47,320 --> 00:06:49,400 Speaker 1: the one side doesn't want it to work because they 123 00:06:49,440 --> 00:06:52,120 Speaker 1: want to say the mandate is required, and the other 124 00:06:52,160 --> 00:06:54,560 Speaker 1: side doesn't want it to work because they want to 125 00:06:55,080 --> 00:06:58,880 Speaker 1: uh impose the mandate? Uh? Is it really the case 126 00:06:58,960 --> 00:07:02,719 Speaker 1: that there is no way to resolve those differences? Justice 127 00:07:02,800 --> 00:07:06,320 Speaker 1: Ruth Vader Ginsburg, who called in from Johns Hopkins Hospital, 128 00:07:06,520 --> 00:07:09,720 Speaker 1: where she was being treated for a gallbladder condition, said 129 00:07:09,720 --> 00:07:12,760 Speaker 1: the exemption would come at a cost to women. At 130 00:07:12,800 --> 00:07:16,560 Speaker 1: the end of the day, the government is throwing into 131 00:07:16,640 --> 00:07:23,360 Speaker 1: the wind the women's entitlement to seamless no cost to them. 132 00:07:23,400 --> 00:07:27,920 Speaker 1: It is requiring those women to pay for contraceptive services. 133 00:07:28,440 --> 00:07:31,760 Speaker 1: But Justice Brett Kavanaugh seemed to suggest the exemption was 134 00:07:31,800 --> 00:07:35,280 Speaker 1: an appropriate balance. Why isn't that the way to look 135 00:07:35,280 --> 00:07:37,120 Speaker 1: at the case? And if we get down to the 136 00:07:37,160 --> 00:07:42,360 Speaker 1: bottom line of is this reasonable? Not maybe everyone's preferred choice, 137 00:07:42,360 --> 00:07:44,679 Speaker 1: but at least within the bounds of reasonable, why isn't 138 00:07:44,680 --> 00:07:46,960 Speaker 1: this a reasonable way to balance it? Joining me? Is 139 00:07:47,040 --> 00:07:50,520 Speaker 1: Richard Garnett, a professor at Notre Dame Law School, explain 140 00:07:50,560 --> 00:07:53,280 Speaker 1: the issue here? The real issue, the real issue in 141 00:07:53,280 --> 00:07:57,160 Speaker 1: this case is probably not what a lot of people 142 00:07:57,200 --> 00:07:58,840 Speaker 1: think it is. It's got a bunch of layer. So 143 00:07:59,080 --> 00:08:03,080 Speaker 1: the issue here is whether the administrative agency in question, 144 00:08:03,400 --> 00:08:09,600 Speaker 1: HHS has the authority to create the accommodation that it created. 145 00:08:09,840 --> 00:08:11,840 Speaker 1: So that tells us what the issue is not. The 146 00:08:11,880 --> 00:08:16,640 Speaker 1: issue is not whether the Constitution requires this accommodation. It's 147 00:08:16,720 --> 00:08:21,800 Speaker 1: not whether the Religious Freedom Restoration Act requires this accommodation. 148 00:08:21,920 --> 00:08:25,720 Speaker 1: It's really a question of administrative law. Did the agency 149 00:08:26,200 --> 00:08:29,720 Speaker 1: create this accommodation in the correct way? And was it 150 00:08:29,840 --> 00:08:33,679 Speaker 1: acting within its authority when it did. During the oral arguments, 151 00:08:33,760 --> 00:08:36,680 Speaker 1: I thought that some of the justices seemed to be 152 00:08:36,800 --> 00:08:39,960 Speaker 1: talking about or trying to relitigate questions that I don't 153 00:08:40,000 --> 00:08:42,719 Speaker 1: really think are the ones that are presented. So you know, 154 00:08:42,760 --> 00:08:46,000 Speaker 1: this case isn't supposed to be about whether the contraception 155 00:08:46,320 --> 00:08:49,640 Speaker 1: coverage mandate is a good idea or whether the hobby 156 00:08:49,640 --> 00:08:52,480 Speaker 1: Lobby case was correctly decided. What happened here is that 157 00:08:52,559 --> 00:08:57,400 Speaker 1: a federal agency determined to change its own rules, and 158 00:08:57,440 --> 00:09:00,760 Speaker 1: then some states decided that because I didn't like that 159 00:09:00,840 --> 00:09:02,440 Speaker 1: change in the rules, they were going to say that 160 00:09:02,440 --> 00:09:05,040 Speaker 1: the agencies lacks the power to change them. And I 161 00:09:05,240 --> 00:09:09,000 Speaker 1: suspect that the Court is not going to agree with 162 00:09:09,040 --> 00:09:11,520 Speaker 1: that claim. And then you have some other additional fun 163 00:09:11,679 --> 00:09:15,280 Speaker 1: kind of law geek technical questions like does a federal 164 00:09:15,320 --> 00:09:18,400 Speaker 1: district court have the power to issue a nationwide injunction 165 00:09:18,440 --> 00:09:20,120 Speaker 1: on a policy or does it have the power only 166 00:09:20,160 --> 00:09:23,920 Speaker 1: to issue an injunction within its jurisdiction? And do states 167 00:09:24,240 --> 00:09:29,760 Speaker 1: have what's called standing to challenge changes to federal regulations 168 00:09:29,760 --> 00:09:33,160 Speaker 1: simply because they predict that those changes will result in 169 00:09:33,240 --> 00:09:36,439 Speaker 1: some cost to them. So from a law professor or 170 00:09:36,480 --> 00:09:39,160 Speaker 1: you know, law geeks perspective, is all kinds of things 171 00:09:39,160 --> 00:09:42,760 Speaker 1: swirling around in this case, But it's not really about 172 00:09:43,280 --> 00:09:47,640 Speaker 1: whether or not one believes that the contraception coverage mandate 173 00:09:47,800 --> 00:09:51,080 Speaker 1: is a good idea. Some of the justices seem to 174 00:09:51,160 --> 00:09:55,720 Speaker 1: be talking to a broader audience perhaps, and to Justice 175 00:09:55,800 --> 00:09:59,320 Speaker 1: Ruth Bader Ginsburg kept coming back to the costs of 176 00:09:59,440 --> 00:10:03,240 Speaker 1: exams gens to women, saying that this would be tossing 177 00:10:03,280 --> 00:10:06,920 Speaker 1: to the winds. Congress is intent that women have seamless 178 00:10:06,920 --> 00:10:10,319 Speaker 1: and no cost coverage. Yes, she used the tossing to 179 00:10:10,400 --> 00:10:12,599 Speaker 1: the wind image I think three different times, so that 180 00:10:12,679 --> 00:10:15,120 Speaker 1: might be a good example of what I'm talking about. 181 00:10:15,160 --> 00:10:18,280 Speaker 1: I mean, it's clear that Justice Kinsburgh thinks that the 182 00:10:18,360 --> 00:10:22,480 Speaker 1: change in regulations that the HHS adopted are are bad policy. 183 00:10:22,720 --> 00:10:25,880 Speaker 1: But you know, the question of what Congress's intent was 184 00:10:26,080 --> 00:10:28,160 Speaker 1: is I think a little more complicated. I mean, after all, 185 00:10:28,200 --> 00:10:32,360 Speaker 1: the Affordable Care Act itself didn't contain a contraception coverage 186 00:10:32,400 --> 00:10:35,720 Speaker 1: mandate that was created by the administrative agencies that have 187 00:10:35,800 --> 00:10:39,520 Speaker 1: now decided to recraft the accommodation insense. The agency is 188 00:10:39,600 --> 00:10:42,320 Speaker 1: changing it's its own rules. That's not going against what 189 00:10:42,440 --> 00:10:46,360 Speaker 1: Congress actually said. And there have been exemptions from the 190 00:10:46,440 --> 00:10:49,400 Speaker 1: coverage mandate from the very beginning that it's it's never 191 00:10:49,440 --> 00:10:52,880 Speaker 1: been a blanket requirement. There have always been employers who 192 00:10:52,880 --> 00:10:55,480 Speaker 1: are exempted. It's been a balancing act. So I think 193 00:10:55,559 --> 00:10:59,640 Speaker 1: the claim that these latest regulations are a dramatic departure 194 00:11:00,160 --> 00:11:05,439 Speaker 1: from what Congress did is difficult to maintain. The better complaint, 195 00:11:05,440 --> 00:11:08,360 Speaker 1: it seems to me, is this kind of administrative law 196 00:11:08,480 --> 00:11:13,000 Speaker 1: complaint that the agency crafted these new accommodations in a 197 00:11:13,040 --> 00:11:16,720 Speaker 1: way that sort of might not have followed the strict 198 00:11:17,080 --> 00:11:21,319 Speaker 1: requirements for notice and comment and outside consultation and so on. 199 00:11:21,400 --> 00:11:24,360 Speaker 1: But at the same time, there's plenty of precedent which 200 00:11:24,520 --> 00:11:26,880 Speaker 1: states that so long as the agency does get that 201 00:11:27,000 --> 00:11:29,880 Speaker 1: input at some point it's permissible. I think you're exactly 202 00:11:29,960 --> 00:11:32,040 Speaker 1: right to pick up on the fact that Justice Ginsberg 203 00:11:32,160 --> 00:11:35,120 Speaker 1: was speaking to a larger audience about the broader policy question. 204 00:11:35,600 --> 00:11:38,240 Speaker 1: But I don't really think that broader policy question is 205 00:11:38,280 --> 00:11:41,200 Speaker 1: the legal question that's before the Court in this particular case. 206 00:11:41,600 --> 00:11:44,360 Speaker 1: Let me ask you something that's a broader policy question, 207 00:11:44,440 --> 00:11:50,640 Speaker 1: because according to the States, the Trump exemption allows more 208 00:11:50,640 --> 00:11:55,600 Speaker 1: publicly traded companies and large universities to get the exemption, 209 00:11:55,960 --> 00:11:59,800 Speaker 1: and also expands it to include not just religious but 210 00:12:00,120 --> 00:12:03,640 Speaker 1: moral reasons. You know, the Court had already ruled in 211 00:12:03,679 --> 00:12:06,960 Speaker 1: the Hobby Lobby case several years ago that the Religious 212 00:12:07,000 --> 00:12:11,480 Speaker 1: Freedom Restoration Act required an exemption for a publicly traded corporation, 213 00:12:11,559 --> 00:12:14,839 Speaker 1: so it is theoretically possible, although as the lawyers pointed 214 00:12:14,840 --> 00:12:18,040 Speaker 1: out in this case, it's not particularly likely that a 215 00:12:18,120 --> 00:12:21,440 Speaker 1: large publicly traded corporations could try to invoke this exemption. 216 00:12:21,480 --> 00:12:23,800 Speaker 1: That is, they're not categorically ruled out, but they would 217 00:12:23,800 --> 00:12:27,680 Speaker 1: have to assert a sincere religious or moral objection to 218 00:12:27,760 --> 00:12:30,880 Speaker 1: providing the coverage in question. And I don't think we 219 00:12:30,960 --> 00:12:33,640 Speaker 1: have much evidence that there's a whole lot of publicly traded, 220 00:12:33,720 --> 00:12:36,480 Speaker 1: large corporations that are lining up to do that. On 221 00:12:36,559 --> 00:12:40,280 Speaker 1: the opposite side of Justice Ruth Bader Ginsburg, we had 222 00:12:40,360 --> 00:12:44,280 Speaker 1: Justice Alito, who wrote the Hobby Lobby case. What were 223 00:12:44,320 --> 00:12:47,480 Speaker 1: some of the points that he was trying to make well. 224 00:12:47,640 --> 00:12:51,240 Speaker 1: I think Justice Alito's main point to be that the 225 00:12:51,360 --> 00:12:55,560 Speaker 1: Religious Freedom Restoration Act, as the Court had already held, 226 00:12:55,840 --> 00:12:59,760 Speaker 1: requires religious accommodations in some cases, and that what had 227 00:13:00,080 --> 00:13:02,720 Speaker 1: been here with this accommodation was not that the agency 228 00:13:02,760 --> 00:13:05,760 Speaker 1: had decided that it was required, but that it's permissible. 229 00:13:06,160 --> 00:13:09,560 Speaker 1: And I think in Justice Alito's view, it's consistent with 230 00:13:09,640 --> 00:13:14,360 Speaker 1: longstanding American traditions to try to accommodate religious objections when 231 00:13:14,440 --> 00:13:17,480 Speaker 1: one can, and the Religious Freedom Restoration Act kind of 232 00:13:17,520 --> 00:13:19,720 Speaker 1: an expression of that policy. And I think he believes 233 00:13:19,760 --> 00:13:22,440 Speaker 1: that this rule is as well, and that, you know, 234 00:13:22,480 --> 00:13:26,960 Speaker 1: since it complies with the relevant administrative law principles that 235 00:13:27,120 --> 00:13:29,960 Speaker 1: the States are on. Pretty I think he would say 236 00:13:30,280 --> 00:13:34,319 Speaker 1: weak ground in trying to insist that somehow the accommodation 237 00:13:34,440 --> 00:13:38,200 Speaker 1: is impermissible. It might well be bad policy, but the 238 00:13:38,240 --> 00:13:41,680 Speaker 1: issue here is whether the agency is authorized to make 239 00:13:41,800 --> 00:13:44,440 Speaker 1: this change. I took Justice Aldo's point to be that 240 00:13:44,640 --> 00:13:47,120 Speaker 1: not only is the agency authorized to make this change, 241 00:13:47,160 --> 00:13:50,200 Speaker 1: but that the change, in his view, is consistent with 242 00:13:50,360 --> 00:13:54,000 Speaker 1: the policy of accommodation. That's the Religious Rate Restoration Actents. 243 00:13:54,640 --> 00:13:58,880 Speaker 1: Next on Bloomberg Lawford Decide, I've been talking to Professor 244 00:13:58,960 --> 00:14:01,880 Speaker 1: Richard Garnett, have noted Dame Law School about the Supreme 245 00:14:01,920 --> 00:14:05,840 Speaker 1: Court's arguments over the Trump administration's expansion of the religious 246 00:14:05,840 --> 00:14:10,319 Speaker 1: exemption to the Obamacare contraceptive mandate. Several of the justices 247 00:14:10,400 --> 00:14:14,439 Speaker 1: seemed dismayed that the parties couldn't work the problem out themselves. 248 00:14:14,480 --> 00:14:18,800 Speaker 1: Here's Justice Stephen Bryer. The point of the religious clauses 249 00:14:19,440 --> 00:14:23,120 Speaker 1: is to try to work out accommodations because they can 250 00:14:23,160 --> 00:14:26,000 Speaker 1: be some of the most difficult to resolve disputes, and 251 00:14:26,040 --> 00:14:29,960 Speaker 1: they can substitute a kind of hostility for harmony. So 252 00:14:30,040 --> 00:14:33,280 Speaker 1: from that point of view, I really repeat, there's anything 253 00:14:33,280 --> 00:14:37,080 Speaker 1: you want to add the Chief Justice's question, I don't 254 00:14:37,200 --> 00:14:40,840 Speaker 1: understand why this can't be worked out. So we have 255 00:14:41,000 --> 00:14:44,320 Speaker 1: the Chief who some people will look at as a 256 00:14:44,360 --> 00:14:47,960 Speaker 1: middle ground here, perhaps a deciding vote in these kinds 257 00:14:48,000 --> 00:14:52,080 Speaker 1: of cases. And right off the bat he questioned whether 258 00:14:52,480 --> 00:14:56,800 Speaker 1: the Trump exemption might sweep too broadly, and then later 259 00:14:56,800 --> 00:15:01,800 Speaker 1: on in the argument, Justice Elena Kagan re asked that question. Yeah, 260 00:15:01,840 --> 00:15:04,640 Speaker 1: I think both of them wanted to have that issue 261 00:15:04,720 --> 00:15:06,960 Speaker 1: kind of out in the conversation. That is, had the 262 00:15:07,240 --> 00:15:10,200 Speaker 1: you know, in its effort to accommodate, had the agency 263 00:15:10,320 --> 00:15:12,600 Speaker 1: kind of gone bigger than it needed to. But I 264 00:15:12,600 --> 00:15:15,040 Speaker 1: guess my own read, which certainly could be wrong, is 265 00:15:15,040 --> 00:15:19,200 Speaker 1: that once that's the discussion, then the accommodation is going 266 00:15:19,240 --> 00:15:22,280 Speaker 1: to be upheld, because you're still talking about the broad 267 00:15:22,520 --> 00:15:26,520 Speaker 1: range of discretion that agencies have within which to move. So, 268 00:15:26,720 --> 00:15:29,080 Speaker 1: you know, whether or not has a policy matter. A 269 00:15:29,120 --> 00:15:32,600 Speaker 1: particular justice might think that this accommodation is broader than 270 00:15:32,680 --> 00:15:36,600 Speaker 1: the Religious Freedom Act would require. That's perfectly consistent with saying, 271 00:15:36,640 --> 00:15:39,040 Speaker 1: but the agency has the authority to do it if 272 00:15:39,080 --> 00:15:41,360 Speaker 1: it wants. That was kind of how I read it. 273 00:15:41,400 --> 00:15:45,000 Speaker 1: And you know, even Justices Kagan and Brier and I'm 274 00:15:45,000 --> 00:15:47,920 Speaker 1: not suggesting that they're gonna side with the Little Sisters. 275 00:15:47,960 --> 00:15:50,640 Speaker 1: I wouldn't predict that so much, but I took them 276 00:15:50,960 --> 00:15:53,920 Speaker 1: in a similar way to be acknowledging that this is 277 00:15:53,960 --> 00:15:58,000 Speaker 1: a case really about the power of administrative agencies to 278 00:15:58,040 --> 00:16:01,400 Speaker 1: act within the broad describe shi that Congress has given them. 279 00:16:01,400 --> 00:16:03,280 Speaker 1: And it seems to me that once that's the terrain 280 00:16:03,960 --> 00:16:07,120 Speaker 1: that the justices are arguing about, that that points in 281 00:16:07,120 --> 00:16:09,480 Speaker 1: the direction of of a win for the Little Sisters 282 00:16:09,480 --> 00:16:12,440 Speaker 1: in this particular case. Well, Justice Brier said, can't you 283 00:16:12,480 --> 00:16:15,440 Speaker 1: work it out? And isn't that what the Supreme Court 284 00:16:15,520 --> 00:16:18,480 Speaker 1: asked them to do? The Yeah, in the zoo Bic case. 285 00:16:18,640 --> 00:16:20,440 Speaker 1: You know, if you remember, it was right after Justice 286 00:16:20,400 --> 00:16:23,320 Speaker 1: Scalia passed away and the Court was down to eight people, 287 00:16:23,800 --> 00:16:27,200 Speaker 1: and rather than issue a four four opinion that kind 288 00:16:27,200 --> 00:16:29,680 Speaker 1: of really cut to the heart of the matter, they 289 00:16:29,720 --> 00:16:32,160 Speaker 1: put together a kind of an to nothing ruling that 290 00:16:32,280 --> 00:16:35,600 Speaker 1: didn't really do much but basically said, go fix this. 291 00:16:36,040 --> 00:16:39,640 Speaker 1: And I think the litigation position of the government, the 292 00:16:39,680 --> 00:16:42,000 Speaker 1: federal government and of the Little Sisters is that, well, 293 00:16:42,280 --> 00:16:44,840 Speaker 1: that's what we did after the zoo Bic case, said 294 00:16:44,840 --> 00:16:46,720 Speaker 1: go work it out. We did, and the way we 295 00:16:46,720 --> 00:16:49,920 Speaker 1: worked it out was with these new regulations which provide 296 00:16:50,480 --> 00:16:54,480 Speaker 1: a pretty generous accommodation for those companies, those employers who 297 00:16:54,600 --> 00:16:57,440 Speaker 1: have objections to this. And this litigation has been going 298 00:16:57,480 --> 00:16:59,720 Speaker 1: on now for close to a decade and this is 299 00:16:59,760 --> 00:17:02,480 Speaker 1: an for on our part too to kind of put 300 00:17:02,520 --> 00:17:05,760 Speaker 1: this litigation to a to a halt and to move on, 301 00:17:06,080 --> 00:17:10,800 Speaker 1: recognizing that very few employers have actually tried to invoke it, 302 00:17:11,280 --> 00:17:13,719 Speaker 1: and that you know, for the vast majority of employers 303 00:17:13,760 --> 00:17:16,320 Speaker 1: the contception coverage mandates not a problem. But that's a 304 00:17:16,359 --> 00:17:19,560 Speaker 1: new broad accommodation means that a lot of the litigation, 305 00:17:19,600 --> 00:17:22,000 Speaker 1: which has occupied so much time of court, can kind 306 00:17:22,000 --> 00:17:24,000 Speaker 1: of be put to rest. So I guess that's that's 307 00:17:24,040 --> 00:17:26,159 Speaker 1: what the federal government would say in this case. We 308 00:17:26,160 --> 00:17:27,639 Speaker 1: we did what the court told us to do. In 309 00:17:27,680 --> 00:17:31,520 Speaker 1: the Zoobic opinion. Obviously, there's always a range of options. 310 00:17:31,640 --> 00:17:35,240 Speaker 1: The decision can even either be very narrow or very broad. 311 00:17:35,720 --> 00:17:38,000 Speaker 1: Tell us what some of the options are. I don't 312 00:17:38,040 --> 00:17:41,600 Speaker 1: think there really are any sort of sweeping broad outcomes 313 00:17:41,640 --> 00:17:43,760 Speaker 1: that are on the table. This isn't a case where 314 00:17:43,760 --> 00:17:47,280 Speaker 1: the courts being asked to create a new constitutional right 315 00:17:47,520 --> 00:17:50,560 Speaker 1: or to reverse the precedent having to do with religious 316 00:17:50,600 --> 00:17:52,399 Speaker 1: freedom and so on. I think from the perspective of 317 00:17:52,440 --> 00:17:54,880 Speaker 1: the Little Sisters and of the national government, really all 318 00:17:54,920 --> 00:17:58,320 Speaker 1: they're asking is for the Court to reaffirm that agencies, 319 00:17:58,320 --> 00:18:01,879 Speaker 1: when they're acting within the scope of the authority that 320 00:18:01,920 --> 00:18:05,840 Speaker 1: Congress has given them, have a wide range of discretion. Again, 321 00:18:05,880 --> 00:18:08,360 Speaker 1: the issue here is not whether the religious freedom restoration 322 00:18:08,359 --> 00:18:11,719 Speaker 1: that requires this particular accommodation, but whether it permits it. 323 00:18:11,800 --> 00:18:14,280 Speaker 1: And I think it's likely that it does. Some of 324 00:18:14,320 --> 00:18:18,760 Speaker 1: the arguments against the accommodation, if they were accepted, would 325 00:18:18,840 --> 00:18:21,560 Speaker 1: be a pretty big deal. So there's the arguments that 326 00:18:21,720 --> 00:18:24,399 Speaker 1: made that the First Amendments established from clause does not 327 00:18:24,600 --> 00:18:29,240 Speaker 1: permit governments to accommodate religion if those accommodations would impose 328 00:18:29,280 --> 00:18:32,280 Speaker 1: any substantial costs on third parties, and law professors like 329 00:18:32,320 --> 00:18:34,920 Speaker 1: me and others argue about that position, but I don't 330 00:18:34,920 --> 00:18:37,080 Speaker 1: believe that's the laws that stands, And I think if 331 00:18:37,280 --> 00:18:39,160 Speaker 1: if a majority of the Court were to adopt that, 332 00:18:39,160 --> 00:18:41,600 Speaker 1: that would pretty interesting change. But I don't think that's 333 00:18:41,640 --> 00:18:43,640 Speaker 1: going to happen. So my own view is that there's 334 00:18:43,720 --> 00:18:46,440 Speaker 1: certainly a lot of interest in this case. It's been 335 00:18:46,560 --> 00:18:48,840 Speaker 1: bouncing up and down a long time in the Supreme 336 00:18:48,840 --> 00:18:50,840 Speaker 1: Court and has kind of culture war dimensions and so 337 00:18:50,960 --> 00:18:55,360 Speaker 1: on that as a legal matter, regardless of which side wins, 338 00:18:55,720 --> 00:19:01,920 Speaker 1: it's likely to be on relatively narrow, relatively technical grounds. Now, 339 00:19:01,960 --> 00:19:05,359 Speaker 1: there are some really intriguing possibilities the Court could change 340 00:19:05,400 --> 00:19:08,800 Speaker 1: the rules about standing, for example, whether state governments have 341 00:19:08,960 --> 00:19:12,159 Speaker 1: standing to sue for reasons like the ones the states 342 00:19:12,160 --> 00:19:15,159 Speaker 1: have invoked here. There's an interesting question, like I said earlier, 343 00:19:15,160 --> 00:19:18,600 Speaker 1: about the power of federal courts to issue injunctions that 344 00:19:18,680 --> 00:19:21,600 Speaker 1: cover the whole country. Get A lot of academics and 345 00:19:21,640 --> 00:19:23,919 Speaker 1: others have been thinking a lot about this, But in 346 00:19:24,040 --> 00:19:27,320 Speaker 1: terms of the religious freedom dimension, this case doesn't really 347 00:19:27,440 --> 00:19:31,280 Speaker 1: hold out the prospect of any sweeping changes or innovation. 348 00:19:31,520 --> 00:19:34,800 Speaker 1: Thanks rich That's Richard Garnett of Notre Dame Law School 349 00:19:35,119 --> 00:19:39,240 Speaker 1: coming up next on Bloomberg Law, robot calls and toilet flushes. 350 00:19:39,359 --> 00:19:44,560 Speaker 1: At the Supreme Court arguments, everyone seems to agree that 351 00:19:44,720 --> 00:19:49,000 Speaker 1: no one likes robocalls. Chief Justice John Roberts expressed that 352 00:19:49,119 --> 00:19:52,919 Speaker 1: sentiment during a case on Wednesday in which political groups 353 00:19:52,960 --> 00:19:56,240 Speaker 1: are challenging the exemption to the ban on robo calls 354 00:19:56,359 --> 00:19:59,400 Speaker 1: that allows the collection of government debt. And it's an 355 00:19:59,400 --> 00:20:03,520 Speaker 1: extremely popular law. Nobody wants to get robocalls on their 356 00:20:03,560 --> 00:20:07,680 Speaker 1: cell phone. The idea that Congress would embrace that result 357 00:20:08,119 --> 00:20:13,000 Speaker 1: simply to save this government debt collection, Uh, they'd have 358 00:20:13,080 --> 00:20:17,840 Speaker 1: to be very anxious to be more unpopular, uh than 359 00:20:18,000 --> 00:20:21,400 Speaker 1: they otherwise would be. The court almost made it through 360 00:20:21,520 --> 00:20:25,560 Speaker 1: four live oral arguments by phone without a major mishap, 361 00:20:25,800 --> 00:20:28,359 Speaker 1: but towards the end of these arguments there was the 362 00:20:28,520 --> 00:20:33,000 Speaker 1: unmistakable sound of a toilet flushing live. But the FEC 363 00:20:33,160 --> 00:20:35,840 Speaker 1: has said is that when the subject matter of the 364 00:20:35,840 --> 00:20:40,119 Speaker 1: fault ranges the topic, then the call is transformed. But 365 00:20:40,240 --> 00:20:43,240 Speaker 1: the justices completely ignored the distraction and went on with 366 00:20:43,280 --> 00:20:46,240 Speaker 1: the arguments. Joining me to talk about the substance of 367 00:20:46,320 --> 00:20:49,440 Speaker 1: this case under the Telephone Consumer Protection Act or t 368 00:20:49,600 --> 00:20:53,160 Speaker 1: c p A is Christine Riley, a partner Manette, Phelps 369 00:20:53,160 --> 00:20:56,320 Speaker 1: and Phillips. So Christine tell us about the main issue 370 00:20:56,320 --> 00:20:59,920 Speaker 1: in the case. And the interesting issue about this particular 371 00:21:00,119 --> 00:21:02,520 Speaker 1: argument is it is about the t c p A 372 00:21:02,880 --> 00:21:06,200 Speaker 1: and it is about a specific exemption, but there are 373 00:21:06,200 --> 00:21:10,480 Speaker 1: far broader implications of this particular case. So going back 374 00:21:10,520 --> 00:21:13,640 Speaker 1: to the first question, we're really looking at a very 375 00:21:13,720 --> 00:21:18,640 Speaker 1: specific exemption that was created by Congress in two thousand fifteen, 376 00:21:19,000 --> 00:21:22,240 Speaker 1: and specifically, there was an exemption put into the t 377 00:21:22,400 --> 00:21:25,440 Speaker 1: c p A that would allow calls made to cell 378 00:21:25,560 --> 00:21:30,800 Speaker 1: phones if they concerned federal debt collection, and that was 379 00:21:30,880 --> 00:21:34,560 Speaker 1: carved right into the automated calling the restrictions. The question 380 00:21:34,600 --> 00:21:37,840 Speaker 1: that came up from a political group a a PC 381 00:21:38,440 --> 00:21:41,760 Speaker 1: was basically asking why is that fair? Why is it 382 00:21:41,960 --> 00:21:46,040 Speaker 1: fair to have this exemption that is in favor of 383 00:21:46,080 --> 00:21:50,119 Speaker 1: the federal government debt collection, and that's the exclusion of 384 00:21:50,240 --> 00:21:53,760 Speaker 1: other types of call such as, for example, political calls. 385 00:21:54,160 --> 00:21:58,040 Speaker 1: If political agencies or organizations want to make calls, they 386 00:21:58,080 --> 00:22:01,080 Speaker 1: need special consent under the u c p A if 387 00:22:01,080 --> 00:22:04,399 Speaker 1: they're using some type of automated system. So the question 388 00:22:04,440 --> 00:22:08,560 Speaker 1: in front of the Supremes was is that government debt 389 00:22:08,600 --> 00:22:13,240 Speaker 1: collection exemption constitutional? Is it a violation of the First 390 00:22:13,280 --> 00:22:16,840 Speaker 1: Amendment free speech? And if the answer to that question 391 00:22:17,080 --> 00:22:21,399 Speaker 1: is yes, it is unconstitutional, is the remedy then to 392 00:22:21,600 --> 00:22:24,919 Speaker 1: basically just cut that piece out of the statute and 393 00:22:25,000 --> 00:22:28,840 Speaker 1: go back to the status quo. The broadom implication, of course, 394 00:22:29,119 --> 00:22:33,080 Speaker 1: is an argument being made by the political consultant here 395 00:22:33,520 --> 00:22:37,560 Speaker 1: who say that even if you find this particular exemption 396 00:22:37,720 --> 00:22:42,119 Speaker 1: is unconstitutional, the remedy that they're asking for is that 397 00:22:42,160 --> 00:22:46,200 Speaker 1: the Supreme Court get rid of the entire provision on 398 00:22:46,359 --> 00:22:51,240 Speaker 1: automated calling, rather than just cutting out the part that's bad. 399 00:22:51,680 --> 00:22:54,159 Speaker 1: And that's really where the fight is. Give us a 400 00:22:54,200 --> 00:22:57,800 Speaker 1: feel of what the justices seem to be concerned about. 401 00:22:58,240 --> 00:23:03,160 Speaker 1: There definitely seems to be a pretty prominent concern on 402 00:23:03,240 --> 00:23:07,160 Speaker 1: this particular exemption and whether or not it's what we'd 403 00:23:07,200 --> 00:23:10,560 Speaker 1: consider to be content based, meaning are you making some 404 00:23:10,600 --> 00:23:15,240 Speaker 1: restriction on free speech based on the content of that message? 405 00:23:15,359 --> 00:23:17,639 Speaker 1: And there are lots of questions that get to that 406 00:23:17,760 --> 00:23:20,879 Speaker 1: particular issue, and that's going to be a problem for 407 00:23:20,960 --> 00:23:24,000 Speaker 1: the government because they're going to get in this situation 408 00:23:24,119 --> 00:23:26,919 Speaker 1: where if the Supreme Court is going to say that 409 00:23:26,960 --> 00:23:30,520 Speaker 1: the standards going to be one about strict scrutiny and content, 410 00:23:30,920 --> 00:23:33,560 Speaker 1: there is a good chance of the Supreme Court is 411 00:23:33,600 --> 00:23:37,880 Speaker 1: going to hold that that is fun constitutional, and that's 412 00:23:37,960 --> 00:23:41,439 Speaker 1: really going to be something that then leads itself to 413 00:23:41,480 --> 00:23:44,719 Speaker 1: the second and bigger question on sever ability. Well, this 414 00:23:44,800 --> 00:23:48,359 Speaker 1: Court is known for broad views of the First Amendment. 415 00:23:48,840 --> 00:23:52,400 Speaker 1: So did any of the justices talk about sever ability? 416 00:23:53,000 --> 00:23:56,440 Speaker 1: I think almost every single judge, if not every judge, 417 00:23:56,920 --> 00:24:00,560 Speaker 1: did ask about that particular question. You know. I think 418 00:24:00,640 --> 00:24:03,680 Speaker 1: Justice Alito really put a nice spin on it when 419 00:24:03,720 --> 00:24:08,040 Speaker 1: he came out and said I find the severability question fascinating, 420 00:24:08,440 --> 00:24:11,399 Speaker 1: and Justice Kavanaugh came and said, this case, you know, 421 00:24:11,440 --> 00:24:14,800 Speaker 1: really is about severability. It's about leveling up or leveling 422 00:24:14,880 --> 00:24:18,520 Speaker 1: down on speech. Justice gor Vitch that said, well, why 423 00:24:18,520 --> 00:24:21,240 Speaker 1: can't we just go back to the status quo? Lots 424 00:24:21,280 --> 00:24:24,159 Speaker 1: of justices were noting that the t c p A 425 00:24:24,280 --> 00:24:28,920 Speaker 1: is an extremely popular statute, and Chief Justice Roberts noted 426 00:24:29,000 --> 00:24:33,200 Speaker 1: that in particular, extremely popular statute, and they wondered why 427 00:24:33,200 --> 00:24:36,240 Speaker 1: a statute that's been on the book for over twenty 428 00:24:36,320 --> 00:24:39,440 Speaker 1: years where there has not been this challenge that goes 429 00:24:39,480 --> 00:24:41,440 Speaker 1: to the heart of the t c p A. And 430 00:24:41,640 --> 00:24:45,439 Speaker 1: the question they're asking and grappling with is why not 431 00:24:45,560 --> 00:24:48,399 Speaker 1: just cut it? If there really is a problem on 432 00:24:48,640 --> 00:24:52,520 Speaker 1: it being a content based distinction and that it's not 433 00:24:52,720 --> 00:24:56,440 Speaker 1: in conformity with the Constitution, why is the remedy not 434 00:24:56,560 --> 00:24:59,359 Speaker 1: to just cut it out? And I think that's really 435 00:24:59,400 --> 00:25:02,240 Speaker 1: where the the biggest fight seems to be leaning from 436 00:25:02,240 --> 00:25:05,400 Speaker 1: the justices. Well, there are a lot of controversial cases 437 00:25:05,440 --> 00:25:08,200 Speaker 1: before the court, and this case isn't that well known. 438 00:25:08,359 --> 00:25:12,959 Speaker 1: But you can bet that if the justices allowed robo calls, now, 439 00:25:13,320 --> 00:25:15,960 Speaker 1: that would be one thing that consumers across the country 440 00:25:15,960 --> 00:25:19,880 Speaker 1: would be really upset about. Absolutely. And you know, I've 441 00:25:19,880 --> 00:25:23,360 Speaker 1: always said that this case no matter who you are, 442 00:25:23,760 --> 00:25:26,800 Speaker 1: what work you do, and as a lawyers say, whatever 443 00:25:26,840 --> 00:25:31,040 Speaker 1: side of the vur on, there is a general distaste 444 00:25:31,160 --> 00:25:36,080 Speaker 1: for having unwanted, unexpected calls to your cell phones. And 445 00:25:36,119 --> 00:25:40,679 Speaker 1: I think that theme really resonated with the justices. Many 446 00:25:40,720 --> 00:25:43,439 Speaker 1: of them were making comments like, no one wants to 447 00:25:43,480 --> 00:25:46,000 Speaker 1: get robo calls on their cell phones, and that's from 448 00:25:46,000 --> 00:25:49,680 Speaker 1: the Chief Justice, so don't. Mayor made a whole number 449 00:25:49,720 --> 00:25:52,920 Speaker 1: of comments about how she doesn't like scam robo calls. 450 00:25:53,400 --> 00:25:57,199 Speaker 1: These are issues that everyone can relate to, and I 451 00:25:57,240 --> 00:26:01,120 Speaker 1: think that's really going to pose an issue with this 452 00:26:01,200 --> 00:26:05,040 Speaker 1: particular Supreme Court and deciding whether they take the nuclear 453 00:26:05,080 --> 00:26:08,600 Speaker 1: option of just cutting the guts and the heart out 454 00:26:08,640 --> 00:26:10,639 Speaker 1: of the t c p A. Because you have a 455 00:26:10,640 --> 00:26:14,199 Speaker 1: statue on the book that is extremely popular. It is 456 00:26:14,480 --> 00:26:18,680 Speaker 1: the source of many private class action litigations across the country. 457 00:26:19,200 --> 00:26:23,120 Speaker 1: Consumers rely on it, and the really big debate here 458 00:26:23,240 --> 00:26:26,480 Speaker 1: is are you going to get rid of a statute that, 459 00:26:26,760 --> 00:26:30,120 Speaker 1: for many people in the country is something that they 460 00:26:30,160 --> 00:26:34,359 Speaker 1: feel is very important to their privacy considerations. And that's 461 00:26:34,440 --> 00:26:36,640 Speaker 1: really going to be a tough pill for the Supreme 462 00:26:36,640 --> 00:26:40,840 Speaker 1: Court to swallow the idea of just undoing this portion 463 00:26:40,880 --> 00:26:42,960 Speaker 1: of the t c p A that has been in 464 00:26:43,000 --> 00:26:47,199 Speaker 1: existence for decades now. So how do you think the 465 00:26:47,320 --> 00:26:50,840 Speaker 1: court would be able to get around the obvious First 466 00:26:50,840 --> 00:26:55,600 Speaker 1: Amendment concerns with the A. I think that it's going 467 00:26:55,640 --> 00:26:58,600 Speaker 1: to be difficult for this court to get out of 468 00:26:58,880 --> 00:27:02,240 Speaker 1: the First Amendment is us. There is certainly an appeal 469 00:27:02,440 --> 00:27:06,080 Speaker 1: to the idea that by making a special exception for 470 00:27:06,160 --> 00:27:10,680 Speaker 1: the federal government and debt collection, that you are somehow 471 00:27:10,840 --> 00:27:14,239 Speaker 1: judging the content of those calls. And there is an 472 00:27:14,240 --> 00:27:17,200 Speaker 1: appeal to the idea of why should that be, Why 473 00:27:17,200 --> 00:27:21,160 Speaker 1: should the federal government get a special exception for their 474 00:27:21,200 --> 00:27:24,840 Speaker 1: own debt? What about other commercial actors or even state 475 00:27:24,920 --> 00:27:28,520 Speaker 1: governments that have collection of debt concerns and want to 476 00:27:28,560 --> 00:27:31,919 Speaker 1: make outreach. I think it's going to be difficult for 477 00:27:31,960 --> 00:27:36,080 Speaker 1: them to look at that question and find that that 478 00:27:36,200 --> 00:27:39,000 Speaker 1: it's not on constitutional or another way of saying it is. 479 00:27:39,280 --> 00:27:41,639 Speaker 1: I think it's going to be difficult for them to 480 00:27:41,760 --> 00:27:44,760 Speaker 1: not rule that it is in its violation of First 481 00:27:44,760 --> 00:27:48,359 Speaker 1: Amendment unless they come up with a different way of 482 00:27:48,480 --> 00:27:51,480 Speaker 1: addressing the issue, either or not signing a different standard, 483 00:27:52,000 --> 00:27:55,560 Speaker 1: or as justice of a mayor noted there was also 484 00:27:55,640 --> 00:27:58,520 Speaker 1: this idea of maybe we should remand it back to 485 00:27:58,560 --> 00:28:02,080 Speaker 1: the Fourth Circuit as looking at some alternatives that the 486 00:28:02,119 --> 00:28:04,840 Speaker 1: Fourth Circuit didn't look at. So if they want to 487 00:28:04,920 --> 00:28:08,920 Speaker 1: punt on the constitutional issue, there are ways to do that, 488 00:28:09,080 --> 00:28:11,520 Speaker 1: and one is to throw it back to the Fourth 489 00:28:11,520 --> 00:28:14,399 Speaker 1: Circuit and say, look at another issue and try again, 490 00:28:14,680 --> 00:28:16,639 Speaker 1: tell us a little bit more about what the Fourth 491 00:28:16,640 --> 00:28:20,399 Speaker 1: Circuit decided here. So the Fourth Circuit, just like the 492 00:28:20,480 --> 00:28:25,920 Speaker 1: Ninth Circuit, has decided that this particular exception for federal 493 00:28:26,080 --> 00:28:30,760 Speaker 1: debt collection is unconstitutions it's content based. There's no reason 494 00:28:30,800 --> 00:28:33,760 Speaker 1: why the federal government should be able to get a 495 00:28:33,800 --> 00:28:37,720 Speaker 1: special exemption that other parties don't get to have. That's 496 00:28:37,720 --> 00:28:40,760 Speaker 1: it a violation of free speech. But both of these 497 00:28:40,760 --> 00:28:43,760 Speaker 1: circuits have looked at the same question of what the 498 00:28:43,840 --> 00:28:47,000 Speaker 1: remedies and they both have said the same thing. Just 499 00:28:47,240 --> 00:28:50,680 Speaker 1: sever out the bad part and leave the rest. And 500 00:28:50,720 --> 00:28:54,080 Speaker 1: that's really, I think what the Supreme Court justices are 501 00:28:54,160 --> 00:28:57,800 Speaker 1: looking at. Chief Justice noted that not only is it 502 00:28:57,800 --> 00:29:01,520 Speaker 1: a popular statute, but isn't the the obvious solution here 503 00:29:01,600 --> 00:29:03,719 Speaker 1: just to cut it? But why can't we just go 504 00:29:03,800 --> 00:29:06,840 Speaker 1: back to the status quo? That's really where I think 505 00:29:07,080 --> 00:29:09,960 Speaker 1: we likely end up coming to and where this case 506 00:29:10,080 --> 00:29:14,240 Speaker 1: really gets decided. The political consultants say that they want 507 00:29:14,280 --> 00:29:17,360 Speaker 1: to take surveys and things, how would you do that 508 00:29:17,440 --> 00:29:21,240 Speaker 1: by robocall? So where this question becomes an issue for 509 00:29:21,320 --> 00:29:25,160 Speaker 1: the political consultants is they want the ability to make 510 00:29:25,200 --> 00:29:29,320 Speaker 1: political calls, surveys, or even just delivery of messages to 511 00:29:29,400 --> 00:29:33,920 Speaker 1: your cell phones by using certain automated means, including prerecorded 512 00:29:34,000 --> 00:29:37,520 Speaker 1: voice messages and what we call autodials messages. And the 513 00:29:37,560 --> 00:29:40,000 Speaker 1: reason they want to do that is because it's far 514 00:29:40,080 --> 00:29:42,880 Speaker 1: more efficient to be able to reach a larger number 515 00:29:42,880 --> 00:29:47,040 Speaker 1: of people by using some automation. The problem that they're 516 00:29:47,080 --> 00:29:51,280 Speaker 1: running into is the ccp A has certain restrictions on 517 00:29:51,560 --> 00:29:55,600 Speaker 1: when you can contact folks by phone, And unlike popular beliefs, 518 00:29:55,600 --> 00:29:59,160 Speaker 1: it is not the case that it's just about marketing calls. 519 00:29:59,160 --> 00:30:03,880 Speaker 1: That's actually in correct. There are restrictions on informational or 520 00:30:04,000 --> 00:30:07,160 Speaker 1: political calls made to cellphone. If you want to use 521 00:30:07,280 --> 00:30:10,680 Speaker 1: an autodialer to make a political message to a cell phone, 522 00:30:11,080 --> 00:30:14,240 Speaker 1: you need to have what we call prior express consent. 523 00:30:14,560 --> 00:30:16,640 Speaker 1: In other words, you need to have gotten that phone 524 00:30:16,680 --> 00:30:20,120 Speaker 1: number from someone and they need to have voluntarily provided 525 00:30:20,160 --> 00:30:22,760 Speaker 1: it to you within the scope of why you're calling. 526 00:30:23,160 --> 00:30:25,560 Speaker 1: That's what they're upset about. They don't want to have 527 00:30:25,680 --> 00:30:27,920 Speaker 1: to comply with that. They just want to be able 528 00:30:27,960 --> 00:30:31,520 Speaker 1: to make calls anyway they want without having to worry 529 00:30:31,520 --> 00:30:35,080 Speaker 1: about the ccp A. Thanks Christine, that's Christine Riley, a 530 00:30:35,200 --> 00:30:38,600 Speaker 1: partner Manette Phelps and Phillips. Thanks for listening to the 531 00:30:38,600 --> 00:30:42,000 Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the 532 00:30:42,000 --> 00:30:45,920 Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com 533 00:30:46,000 --> 00:30:50,160 Speaker 1: slash podcast. I'm June Brasso. This is Bloomberg