WEBVTT - When the Judge Cries at Sentencing 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.480 --> 0:00:14.520 I was astonished when you began your examination by commenting 0:00:14.560 --> 0:00:17.599 on the defendant's post arrest silence. 0:00:18.079 --> 0:00:20.840 That's basic law. It's been basic law in this country 0:00:21.160 --> 0:00:24.360 for forty years, fifty years. We're used to seeing judges 0:00:24.560 --> 0:00:29.040 yelling in court, reprimanding, even berating. What we're not used 0:00:29.040 --> 0:00:32.440 to is judges crying in court, especially when telling the 0:00:32.520 --> 0:00:34.960 defendant the good news that he doesn't have to go 0:00:35.000 --> 0:00:38.280 to prison. But that's what happened when Brooklyn Federal Judge 0:00:38.320 --> 0:00:43.839 Pamela Chen sentenced Alejandro Burzaco, a banker turned sports marketing 0:00:44.000 --> 0:00:49.200 executive turned star witness at two FIFA corruption trials. Joining 0:00:49.200 --> 0:00:52.199 me is Bloomberg Legal reporter Patricia Hurtado, who was in 0:00:52.240 --> 0:00:55.320 the courtroom. Patty tell us about Brazaco. 0:00:55.360 --> 0:01:00.000 He has been one of the most prolific and helpful witness, 0:01:00.120 --> 0:01:03.760 says the US government has ever had. I've never covered 0:01:03.840 --> 0:01:07.040 a case where at the sentencing, the federal judge who 0:01:07.080 --> 0:01:10.880 presided over two trials and saw Berzakos on the stand 0:01:11.000 --> 0:01:13.920 for fourteen days as a witness for the government, she 0:01:14.040 --> 0:01:17.240 actually cried and had to stop and grabbed the tears 0:01:17.280 --> 0:01:19.920 away as she told him how proud she was, some 0:01:20.080 --> 0:01:23.440 privilege she was to see and hear his testimony, and 0:01:23.480 --> 0:01:26.120 then she continued, but as you were speaking, mister Brazaco, 0:01:26.240 --> 0:01:28.920 I felt some bit of privilege and pride about being 0:01:28.959 --> 0:01:32.480 able to participate in this role in this system, because 0:01:32.520 --> 0:01:34.800 this is a great justice system, and I think the 0:01:34.840 --> 0:01:37.360 finest in the world, and it does, I hope, always 0:01:37.360 --> 0:01:40.440 reward people for doing the right thing. And it was extraordinary. 0:01:40.560 --> 0:01:43.679 As a reporter for decades of experience, I've never seen that. 0:01:44.120 --> 0:01:46.679 I haven't either. It's stunning what the. 0:01:46.680 --> 0:01:50.920 Government said he did is he helped them basically uncover 0:01:51.520 --> 0:01:56.720 the fraud and rampant bribery that was in international soccer. 0:01:57.160 --> 0:01:59.640 That there always been these rumors but no one had 0:01:59.680 --> 0:02:03.040 ever been willing to come forward, and that Brazaco had 0:02:03.040 --> 0:02:07.320 helped the US government disclose the actual fraud that was 0:02:07.400 --> 0:02:11.720 involved in bribery. And after the trials has happened, there 0:02:11.800 --> 0:02:14.800 was one in twenty seventeen that went on for weeks 0:02:14.800 --> 0:02:18.120 and weeks, and the second trial that just finished was 0:02:18.160 --> 0:02:21.360 like a twelve week trial. Earlier this year, she said 0:02:21.400 --> 0:02:24.840 that now the truth is out that was bribery in soccer. 0:02:24.919 --> 0:02:28.480 People couldn't deny it any longer. After all these witnesses testified. 0:02:28.840 --> 0:02:30.160 What was he accused of. 0:02:30.680 --> 0:02:34.000 Brazoco was accused and pled guilty to paying tens of 0:02:34.040 --> 0:02:38.639 millions of dollars in bribe. Is sports marketing executive. It's 0:02:38.639 --> 0:02:41.600 a very odd world. But basically, if you want to 0:02:41.600 --> 0:02:46.079 get access to events, players, and you want to broadcast 0:02:46.120 --> 0:02:49.680 those rights and endure certain teams, these bribes were paid 0:02:49.880 --> 0:02:52.200 to the soccer bosses that were the heads of these 0:02:52.240 --> 0:02:56.800 different soccer entities. So basically, these soccer bosses were taking 0:02:56.840 --> 0:03:02.680 bribes from these corporations in exchange for are extraordinarily lucrative broadcast. Right. 0:03:03.360 --> 0:03:06.320 So the judge said that by cooperating, he put his 0:03:06.400 --> 0:03:07.240 life in danger. 0:03:07.760 --> 0:03:11.000 Yeah, And the first trial actually had all the trappings 0:03:11.040 --> 0:03:15.240 of a mafia case where witnesses, especially Brazaco, who were 0:03:15.280 --> 0:03:20.399 basically escorted to and from court under guard of SBI agents. 0:03:20.440 --> 0:03:24.119 The jurors were anonymous and their identities were not disclosed, 0:03:24.160 --> 0:03:26.680 which is what you see in a mafia trial, you know, 0:03:26.760 --> 0:03:32.160 a terrorism case. And he testified that because he was cooperating, 0:03:32.280 --> 0:03:35.280 he was terrified for his own safety as well as 0:03:35.320 --> 0:03:38.480 the safety of his family. His family was still living 0:03:38.520 --> 0:03:41.160 in Argentina and some of his children still live there. 0:03:41.240 --> 0:03:45.040 So in fact, his sentencing memo and the government's memo 0:03:45.560 --> 0:03:48.280 everything is under steal and the court has refused to 0:03:48.320 --> 0:03:51.480 release it. The allegation was that he and his family 0:03:51.520 --> 0:03:54.360 had actually received death threats. So here's a guy that 0:03:54.560 --> 0:03:57.200 basically can never return home to Argentina. 0:03:57.280 --> 0:04:00.360 So he was on the stand a total of fourteen days, 0:04:00.720 --> 0:04:03.360 two trials. What was he like on the stand? 0:04:03.960 --> 0:04:06.680 He has a phenomenal memory, and because it was a 0:04:06.680 --> 0:04:10.040 former businessman in banker, he knew about all the transactions 0:04:10.040 --> 0:04:12.640 and he could talk about the financing. But then he 0:04:12.720 --> 0:04:15.280 was I thought extraordinarily smart and down to earth guy 0:04:15.760 --> 0:04:20.600 that knew how to communicate two jurors. He remembered people's conversations. 0:04:20.680 --> 0:04:23.400 You remember the nicknames of some of these soccer bosses. 0:04:23.520 --> 0:04:27.720 One of the guys in Argentina ran the empire from 0:04:27.800 --> 0:04:31.400 a gas station and he was called in Spanish the Pope, 0:04:31.520 --> 0:04:34.240 and he wore a big signet ring and people he 0:04:34.400 --> 0:04:36.560 used to come and pay tribute to him and they 0:04:36.560 --> 0:04:38.359 would have to kiss his ring, just like you have 0:04:38.440 --> 0:04:40.720 to go when you see the Pope. So you can 0:04:40.800 --> 0:04:45.200 see that there's all these anecdotes that Burzaco had at 0:04:45.200 --> 0:04:48.640 the tip of his fingertips just off his memory, and 0:04:48.720 --> 0:04:52.960 he could recite whole parts of conversations. He remembered details 0:04:53.000 --> 0:04:56.320 about sitting in a restaurant and where they were sitting 0:04:56.680 --> 0:04:59.880 Seventh Avenue in Manhattan near the News Court building. When 0:05:00.000 --> 0:05:04.200 when were twenty first century Fox executives talked about paying 0:05:04.480 --> 0:05:08.840 bribes to get lucrative broadcast rights, including some of the 0:05:08.880 --> 0:05:12.560 allegations the government alleged was the rights to the twenty 0:05:12.640 --> 0:05:14.080 twenty two World Cup. 0:05:14.360 --> 0:05:18.040 How many people were convicted because of his testimony. 0:05:17.880 --> 0:05:22.880 Dozens, more than two dozen were convicted. The soccer bosses 0:05:23.000 --> 0:05:26.760 were convicted three a trial, two were acquitted. So of 0:05:26.839 --> 0:05:30.560 five that went to trial, dozens and dozens pled guilty. 0:05:30.800 --> 0:05:34.440 Sports marketing companies pled guilty. One of them is actually 0:05:34.480 --> 0:05:37.480 trying to get out got convicted at the first trial. 0:05:37.760 --> 0:05:41.080 Some of the biggest guys in the sports were ousted also, 0:05:41.240 --> 0:05:44.800 like step Blatder, who was the boss of FIFA. He 0:05:44.920 --> 0:05:48.400 was president for seventeen years and was kicked out of 0:05:48.440 --> 0:05:52.839 the job. So prosecutors said that without Brazaco's help that 0:05:53.240 --> 0:05:58.760 international soccer the true dirty underbelly would have never been exposed. 0:05:59.480 --> 0:06:01.919 Tell us who he was in the courtroom for his sentencing. 0:06:02.400 --> 0:06:04.960 It was kind of wild because he not only had 0:06:05.040 --> 0:06:09.200 his lawyer, all of his family was there from Argentina, 0:06:09.320 --> 0:06:13.479 his children, I understand, maybe two x wives and his 0:06:13.760 --> 0:06:17.960 fiance and then you know, as reporters who cover courts, 0:06:18.440 --> 0:06:21.600 you always hear these people that suddenly do good deeds 0:06:21.680 --> 0:06:24.520 just ahead of their sentencing, where you know they're working 0:06:24.520 --> 0:06:27.200 in a soup kitchen or working with a homeless or 0:06:27.200 --> 0:06:30.839 something like that. Right, well, Brazaco actually had some of 0:06:30.839 --> 0:06:34.039 the co workers from the food pantry he works with, 0:06:34.360 --> 0:06:37.880 and there was a soup kitchen he works with where 0:06:38.000 --> 0:06:41.960 he's so vigilant about working with him. From the description 0:06:42.040 --> 0:06:45.520 of his lawyer, Jim Walden, it sounded like he had 0:06:45.560 --> 0:06:50.000 felt so responsible after turning rogue as the former City 0:06:50.040 --> 0:06:53.640 Group banker you know, turns bag man paying money millions 0:06:53.680 --> 0:06:56.240 of dollars in Bride. He decided to turn over a 0:06:56.240 --> 0:06:58.640 new leaf and cooperate with the government. But it didn't 0:06:58.720 --> 0:07:01.440 just end there with help being in testifying as a 0:07:01.480 --> 0:07:03.960 government witness. Here he is doing this good work for 0:07:04.080 --> 0:07:06.640 years and years and years. So it's been eight years 0:07:06.680 --> 0:07:10.600 since that raid at the five star hotel in Switzerland 0:07:10.600 --> 0:07:14.160 when all the FIFA bosses got arrested, right he somehow 0:07:14.240 --> 0:07:17.960 was in the dining room, but they didn't get him 0:07:18.320 --> 0:07:21.640 for some reason. I don't know why. But he walked 0:07:21.640 --> 0:07:25.000 out the back door and immediately went to the Swiss 0:07:25.000 --> 0:07:29.200 Italian border and called his lawyers and immediately came in 0:07:29.400 --> 0:07:32.560 and offered to help and then secretly pled guilty and 0:07:32.680 --> 0:07:35.720 has been on Team America right helping the government. But 0:07:35.840 --> 0:07:38.440 here he is for eight years. He's also been working 0:07:38.680 --> 0:07:42.040 in the suit kitchens and food pantries, and he wanted 0:07:42.080 --> 0:07:45.320 to make amends in such a way that when he 0:07:45.440 --> 0:07:49.920 saw another guy at the soup kitchen getting attacked and 0:07:50.000 --> 0:07:55.280 somebody was stealing his motorbike or his bicycle, Brazaco stepped 0:07:55.280 --> 0:07:58.240 in to stop the crime and stopped to protect the 0:07:58.320 --> 0:08:02.800 man it was getting hit by chains and call the cops. 0:08:02.840 --> 0:08:06.520 And then when the DA found out who the witness was, 0:08:06.720 --> 0:08:10.400 she had to tell the Manhattan Die's office who exactly 0:08:10.720 --> 0:08:13.880 they wanted to call as a witness, that they couldn't 0:08:14.040 --> 0:08:17.360 use him because they would interfere with their criminal case. 0:08:17.680 --> 0:08:21.840 So Brazaco found another witness and convinced that guy to 0:08:21.920 --> 0:08:26.720 come forward and testify against the wrongdoer. So his lawyer 0:08:26.800 --> 0:08:30.120 called him the Superman of cooperators, and it really did 0:08:30.160 --> 0:08:32.839 make him sound like Superman of all this good deeds 0:08:32.880 --> 0:08:35.679 that he'd done that weren't just idle. You know, let's 0:08:35.679 --> 0:08:38.560 do it for a weekend on Thanksgiving, and let's get 0:08:38.679 --> 0:08:41.320 done with our public service. This is a guy who's 0:08:41.360 --> 0:08:43.760 been committed for the last eight years to helping people. 0:08:44.120 --> 0:08:48.720 Patty, besides family members and co workers at the food 0:08:48.800 --> 0:08:52.160 kitchens he's worked at. Who else was at the sentencing. 0:08:52.679 --> 0:08:56.599 That was the other extraordinary thing to see Rose and 0:08:56.840 --> 0:09:00.520 rose of former prosecutors who've been on the case for 0:09:00.559 --> 0:09:03.560 eight years and left the US Attorney's office and they're 0:09:03.600 --> 0:09:07.240 sitting there and FBI agents I haven't clapped eyes on 0:09:07.320 --> 0:09:10.400 in years, and they're sitting there, and all of them 0:09:10.440 --> 0:09:12.760 had worked in the case, and they all came and 0:09:13.160 --> 0:09:16.959 show support to him. And everyone said to me afterwards, 0:09:17.000 --> 0:09:19.880 you know that you don't often see a federal judge crying, 0:09:20.080 --> 0:09:22.880 And there she was crying about how proud she was 0:09:23.400 --> 0:09:26.800 to have seen his testimony, and she noted that some 0:09:26.840 --> 0:09:31.720 of the defense lawyers availed his credibility and called into 0:09:31.800 --> 0:09:36.240 question his motives. He was assailed as a liar who 0:09:36.280 --> 0:09:40.080 was fingering these other upstanding members of the community in 0:09:40.120 --> 0:09:43.680 the soccer world just to get even or to hide 0:09:43.679 --> 0:09:46.440 his crime. But you know, the judge said she had 0:09:46.480 --> 0:09:49.320 not seen evidence of that and these guys, I mean, 0:09:49.360 --> 0:09:51.480 it was just I've never seen anything like it. It 0:09:51.520 --> 0:09:52.559 was quite the spectacle. 0:09:52.880 --> 0:09:55.160 So tell us about what he said at the sentencing. 0:09:55.440 --> 0:09:57.960 It was very emotional, you can tell you know that 0:09:58.080 --> 0:10:01.960 this whole aspect of leaving one's country and his family 0:10:02.280 --> 0:10:05.320 behind and trying to do the right thing and make 0:10:05.400 --> 0:10:08.080 up for his crime weighs really heavily on him. He 0:10:08.160 --> 0:10:12.720 seems a man who's very tortured and affected by the 0:10:12.760 --> 0:10:17.160 remorse he feels. It was definitely palpable. He has to pause. 0:10:17.320 --> 0:10:19.760 He reddened in the face at some points in time. 0:10:20.200 --> 0:10:23.520 I mean, he got very emotional and his voice choked 0:10:23.600 --> 0:10:27.559 up with emotion trying to talk about how horrified and 0:10:27.600 --> 0:10:31.959 remorseful he was about the crimes he committed. And you know, 0:10:32.280 --> 0:10:36.359 he had to live alone in the US and facing 0:10:36.520 --> 0:10:39.400 the prospect and then imagine that you're on hold, you 0:10:39.480 --> 0:10:42.000 have everything to put on hold. Well, you wait for 0:10:42.080 --> 0:10:44.880 these two trials to go through the system, and so 0:10:44.920 --> 0:10:49.240 the first one started in May twenty fifteen. The first 0:10:49.280 --> 0:10:53.199 trial started in November twenty seventeen, so we're talking two 0:10:53.280 --> 0:10:56.480 years later, and the second trial didn't happen un till 0:10:56.480 --> 0:10:59.719 twenty twenty three because of the pandemic. So imagine having 0:10:59.760 --> 0:11:02.200 your life and being put on ice like that, and 0:11:02.240 --> 0:11:05.480 then you're having to stand by. He thanked everybody, you know, 0:11:05.559 --> 0:11:07.400 He says, I want to say to all the victims, 0:11:07.440 --> 0:11:10.600 I fully accept to take responsibility for the crimes I've committed. 0:11:11.000 --> 0:11:13.600 I understood it was bad, and no one forced to 0:11:13.600 --> 0:11:15.360 do me to do it, and I know my conduct 0:11:15.400 --> 0:11:18.160 was wrong, it was very wrong. He apologized to the 0:11:18.200 --> 0:11:20.960 soccer world, to the members of the soccer clubs in 0:11:21.000 --> 0:11:24.240 South America, who he called the real shareholders of these clubs, 0:11:24.320 --> 0:11:26.960 and these people who loved the sport, who were basically 0:11:27.000 --> 0:11:30.240 betrayed by this fraud. Talked about how was his motivation, 0:11:30.360 --> 0:11:33.160 why did he engage in this fraud. My conclusion is 0:11:33.200 --> 0:11:35.360 that at the beginning of my career in the soccer 0:11:35.400 --> 0:11:37.640 in industry, I was motivated by a desire to be 0:11:37.640 --> 0:11:40.400 close to the people in the industry and He basically 0:11:40.440 --> 0:11:42.960 wanted to get in where all the decisions were made 0:11:43.000 --> 0:11:46.360 in big soccer. And of course what happens is when 0:11:46.440 --> 0:11:51.560 he joined this company, Torneo Si Comenthensius, the soccer management company, 0:11:51.880 --> 0:11:53.880 the people were paying bribes and it was sort of 0:11:53.920 --> 0:11:55.880 like the way you had to do business to succeed. 0:11:56.040 --> 0:11:59.040 So he saw firsthand what was going on, and then 0:11:59.160 --> 0:12:02.360 he knowingly went along with it. So, you know, he said, 0:12:02.480 --> 0:12:06.079 I was motivated by greed, and I deeply regret my actions, 0:12:06.120 --> 0:12:08.360 and I was selfish, and I am ashamed of it, 0:12:08.400 --> 0:12:10.520 and I'm still ashamed of it, and I want to 0:12:10.520 --> 0:12:13.160 tell the victims. I've dedicated my last eight years to 0:12:13.240 --> 0:12:16.240 repair this. It just was extraordinary. You don't most of 0:12:16.280 --> 0:12:19.959 the time. I call it the Great American Apology. Mistakes 0:12:19.960 --> 0:12:23.120 were made, things happened, but I don't have anything to 0:12:23.200 --> 0:12:25.439 do with it, because that's the way some people act 0:12:25.600 --> 0:12:29.439 after getting caught and pleading guilty. You know, they minimize 0:12:29.520 --> 0:12:32.000 their role. He was definitely not that kind of guy. 0:12:32.240 --> 0:12:36.280 It sounds like it was an extraordinary sentencing. Thanks so much, Patty. 0:12:36.520 --> 0:12:41.680 That's Bloomberg Legal reporter Patricia Hurtado. The Supreme Court upheld 0:12:41.720 --> 0:12:46.520 California's new humane pork law, rejecting an industry challenge in 0:12:46.600 --> 0:12:50.320 a ruling buttressing the power of states to impose rules 0:12:50.320 --> 0:12:53.320 that have a broad economic impact on other parts of 0:12:53.320 --> 0:12:57.480 the country. The ruling could force pork producers to implement 0:12:57.640 --> 0:13:00.600 costly changes to keep selling in the world rol's most 0:13:00.640 --> 0:13:06.160 populous state. The industry argued, unsuccessfully that California is violating 0:13:06.160 --> 0:13:11.679 the Constitution by regulating commerce outside its borders. Justice Neil 0:13:11.720 --> 0:13:15.880 Gorsuch wrote for the five justice majority, saying the poork 0:13:15.920 --> 0:13:20.120 industry would have us cast aside caution for boldness by 0:13:20.240 --> 0:13:24.240 intervening where Congress had declined to act. The ruling cut 0:13:24.280 --> 0:13:28.400 across the Court's left right divide Justice as Clarence Thomas, 0:13:28.400 --> 0:13:32.920 Sonya Sotomayor, Elena Kagan, and Amy Coney Barrett joined Gorsuch 0:13:33.000 --> 0:13:36.520 in voting to toss out the lawsuit. Although the majority 0:13:36.600 --> 0:13:40.240 splintered in some of its reasoning, for Justice's Chief Justice 0:13:40.320 --> 0:13:45.000 John Roberts and Justices Samuel Alito, Brett Kavanaugh, Katanji Brown 0:13:45.120 --> 0:13:47.800 Jackson said they would have kicked the case back to 0:13:47.840 --> 0:13:51.480 a federal appeals court for more scrutiny. My guest is 0:13:51.520 --> 0:13:54.640 Harold Krant, a professor at the Chicago Kent College of Law. 0:13:55.000 --> 0:13:58.839 First of all, tell us about California Proposition twelve, which 0:13:58.880 --> 0:14:03.600 is one of the nation's strongest farm animal welfare laws. 0:14:04.080 --> 0:14:08.280 California's PAS Proposition twelve to ensure sort of humane conditions 0:14:08.320 --> 0:14:11.200 for pigs, and the problem was that pigs are usually 0:14:11.200 --> 0:14:14.559 put in and tends very close to other pigs. There 0:14:14.600 --> 0:14:18.160 can be violence, pigs don't get exercise, and so in 0:14:18.240 --> 0:14:20.920 terms of cruelty, made people think that those kinds of 0:14:20.960 --> 0:14:24.680 conditions should be banned. And California is not alone. There 0:14:24.720 --> 0:14:29.000 are laws against cruelty in terms of raising food in 0:14:29.040 --> 0:14:32.640 Massachusetts and Florida and other states. But this one is 0:14:32.680 --> 0:14:36.000 noteworthy because California is such a large market and so 0:14:36.320 --> 0:14:40.479 it decides that pigs have to be housed in humane conditions. 0:14:40.800 --> 0:14:43.320 That's going to cause a huge ripple effect into the 0:14:43.360 --> 0:14:44.720 pork industry as a whole. 0:14:45.160 --> 0:14:48.560 The argument in this case is about this arcane constitutional 0:14:48.600 --> 0:14:53.040 doctrine called the dormant Commerce clause. Explain what that is. 0:14:54.000 --> 0:14:56.800 So we have a commerce clause in the Constitution which 0:14:56.880 --> 0:15:01.760 gives Congress the ability to regulate amongst the states, and 0:15:01.800 --> 0:15:05.120 that's not at state care and that's not controversial. But 0:15:05.200 --> 0:15:08.840 the Supreme Court later in its history decided to read 0:15:08.880 --> 0:15:13.600 a negative implication into that clause, suggesting that some kinds 0:15:13.640 --> 0:15:18.240 of state regulatory actions, even if they're based upon public policy, 0:15:18.680 --> 0:15:24.280 can't have the impact of interfering with interstate commerce. And 0:15:24.360 --> 0:15:28.120 so the Court on its own will sort of judge 0:15:28.160 --> 0:15:34.000 whether a state regulatory effort is discriminatory against out of 0:15:34.080 --> 0:15:38.800 state commerce and therefore violates the spirit of the Constitution 0:15:39.280 --> 0:15:44.400 by picking and choosing which kind of producers to value 0:15:44.960 --> 0:15:47.440 from which states there should be an accepted commerce in 0:15:47.520 --> 0:15:47.960 the states. 0:15:48.480 --> 0:15:51.680 And what was the argument here by the pork industry. 0:15:52.120 --> 0:15:55.680 The pork industry had two or three different arguments, depending 0:15:55.760 --> 0:15:58.800 upon how one counts. The first might be called an 0:15:58.840 --> 0:16:02.720 extra territorial print, so that any kind of state regulation 0:16:02.800 --> 0:16:07.320 that has the impact that is felt mostly externally should 0:16:07.440 --> 0:16:10.760 as a per se matter be found to be unconstitutional. 0:16:11.000 --> 0:16:13.640 A variant of that is the fact that in this 0:16:13.760 --> 0:16:17.800 case it wasn't just a state regulation, it was a 0:16:17.880 --> 0:16:22.480 moral regulation. And both and Mikai as well as the 0:16:22.560 --> 0:16:26.240 park industry said, look, if you allow California to impose 0:16:26.680 --> 0:16:30.640 a kind of moral principle in terms of humane treatment 0:16:30.680 --> 0:16:34.760 for pigs. What's the stop California from men saying is 0:16:34.760 --> 0:16:37.600 a moral issue. We only want to deal with employers 0:16:37.800 --> 0:16:40.680 who are fair to their employees, or we only want 0:16:40.720 --> 0:16:43.640 to have products from employers that are fair to employees. 0:16:43.680 --> 0:16:47.320 So we only want to deal with products in companies 0:16:47.640 --> 0:16:52.920 which bide by the privacy rights of their female employees. 0:16:53.360 --> 0:16:56.760 So the fear was that this kind of case opened 0:16:56.800 --> 0:16:59.920 up the Pandora's box and giving sort of a green 0:17:00.240 --> 0:17:04.560 like to states to impose all sorts of regulations that 0:17:04.720 --> 0:17:07.399 have ability to do with the morals of the state 0:17:07.800 --> 0:17:13.440 as opposed to any kind of legitimate protection for their citizens, 0:17:13.440 --> 0:17:17.679 such as from poison or pollution or something along those lines. 0:17:18.280 --> 0:17:22.160 So that was one argument, and as probably that's why 0:17:22.200 --> 0:17:26.600 this case got so much attention because of this extraterritoriality 0:17:26.720 --> 0:17:29.200 aspect of it. The second one was just a plain 0:17:29.320 --> 0:17:33.119 balancing test, and in prior cases the court had held 0:17:33.560 --> 0:17:38.440 that when the burdens of a state regulation are excessive 0:17:38.480 --> 0:17:43.240 in comparison to the in state benefits, that that state 0:17:43.359 --> 0:17:46.800 rule also violates the dormant commerce clause of which we've 0:17:46.840 --> 0:17:51.080 been speaking with the second argument, there are some the 0:17:51.080 --> 0:17:53.000 court that want to get rid of it, and this 0:17:53.160 --> 0:17:57.000 balancing test was severely limited by the court. It wasn't 0:17:57.000 --> 0:17:59.720 by a majority of the court, but three members of 0:17:59.720 --> 0:18:02.000 the court or suggested that they'd get rid of this 0:18:02.119 --> 0:18:05.240 balancing test in a proper case, and other members of 0:18:05.280 --> 0:18:08.240 the court enough to get a majority, said that the 0:18:08.320 --> 0:18:12.679 port producers had not demonstrated such a huge excessive burden 0:18:12.760 --> 0:18:16.760 in this case. So that coalition, which led on the 0:18:16.800 --> 0:18:20.560 second point this balancing which is called the pipe test, 0:18:21.040 --> 0:18:24.080 led to the court ruling against the pork industry on 0:18:24.119 --> 0:18:24.920 that one as well. 0:18:25.320 --> 0:18:29.800 This was a weird lineup that cut across ideological divides 0:18:29.840 --> 0:18:34.520 and resulted in five separate opinions. So what was the 0:18:34.560 --> 0:18:36.000 strand in the majority? 0:18:37.000 --> 0:18:40.600 Well, its trand. Majority held that you cannot parse a 0:18:40.680 --> 0:18:44.160 state regulation and say that it's having to do mostly 0:18:44.200 --> 0:18:47.560 with morals as opposed to protection for the citizens of 0:18:47.600 --> 0:18:50.800 the state. So that distinction that was forwarded by the 0:18:50.800 --> 0:18:55.040 port producers was clearly rejected by a majority of the court, 0:18:55.280 --> 0:18:58.000 Which is the controversial aspect of the decision, because then 0:18:58.040 --> 0:19:03.280 it does open up states to enact morals legislation, which 0:19:03.280 --> 0:19:06.320 has an impact upon out of state commerce. Because again, 0:19:06.680 --> 0:19:12.320 on the face this regulation Proposition twelve is neutral because 0:19:12.320 --> 0:19:15.720 it would apply to pork producers in California as well 0:19:15.760 --> 0:19:19.119 as pork producers outside. It's just that there are almost 0:19:19.320 --> 0:19:23.479 zero pork producers in California, so obviously this had a 0:19:23.520 --> 0:19:26.399 great out of state impact. So at least on the 0:19:26.440 --> 0:19:29.879 first question, it's whether, if you have this kind of 0:19:30.119 --> 0:19:33.199 huge impact, is that a per se violation of the 0:19:33.320 --> 0:19:38.399 negative commerce clause. The court clearly came down no. On 0:19:38.440 --> 0:19:41.679 the second issue, it had to do with this balancing 0:19:41.800 --> 0:19:45.919 of in state benefits versus out of state burdens, and 0:19:45.960 --> 0:19:49.600 that's where the court was fractured. On that case. Three 0:19:49.640 --> 0:19:52.160 of the justices said, we get rid of this balancing test. 0:19:52.520 --> 0:19:57.200 It's inappropriate for courts. How can you balance benefits and costs? 0:19:57.400 --> 0:20:00.320 And then two members of the court said, well, we 0:20:00.400 --> 0:20:03.080 need to keep the test, but it's a narrow test 0:20:03.640 --> 0:20:08.560 and the Portunustry did not demonstrate the excessive burden in 0:20:08.600 --> 0:20:12.560 this case, and to dissenting justices, they would have at 0:20:12.680 --> 0:20:16.360 least held that the pro producers did make a facial 0:20:16.600 --> 0:20:21.119 claim as to a substantial burden and that should be 0:20:21.160 --> 0:20:24.000 remanded back to the court to make that kind of 0:20:24.640 --> 0:20:28.040 balancing tests. Though they agreed that the test of balancing 0:20:28.080 --> 0:20:31.840 burdens and benefits was difficult, but they said it wasn't impossible, 0:20:32.280 --> 0:20:34.480 and that's what the lower court should undertake. 0:20:34.960 --> 0:20:39.399 Do you have any inkling as to why this opinion 0:20:39.680 --> 0:20:43.480 was so fractured and cut across ideological lines? 0:20:44.240 --> 0:20:47.480 Well, I think in terms of ideology, what's interesting is 0:20:47.480 --> 0:20:50.639 you have the kind of liberals who you might think 0:20:50.960 --> 0:20:54.000 would be in support of California and this kind of 0:20:54.040 --> 0:20:58.159 moral legislation. But then again you have the traditional stage 0:20:58.240 --> 0:21:02.440 writers who believe that the dormant commerce clause should be 0:21:03.080 --> 0:21:06.800 very limited if it exists at all, and therefore because 0:21:06.920 --> 0:21:09.440 now would give more power to the states as well. 0:21:09.520 --> 0:21:13.200 So you have two different types of movements which would 0:21:13.200 --> 0:21:17.119 suggest that the states should get more power than they 0:21:17.160 --> 0:21:20.040 have in higher commerce clause challenges. And of course the 0:21:20.840 --> 0:21:24.359 line up on the other side cuts across ideological lines 0:21:24.400 --> 0:21:28.440 as well, with Justice and Jackson agreeing with Chief Judges 0:21:28.600 --> 0:21:31.359 Roberts saying that we ought to keep the balancing test. 0:21:31.840 --> 0:21:36.800 That's the proper way to understand limits on state authorities, 0:21:37.000 --> 0:21:39.919 and if the state action does have a disproportionate impact 0:21:40.000 --> 0:21:43.440 outside the state, then that measure runs a follow dormant 0:21:43.480 --> 0:21:46.160 commerce clause, and so again you had both Chief Justice 0:21:46.440 --> 0:21:50.159 Roberts as well as Justice Alito and Justice Jackson, all 0:21:50.200 --> 0:21:51.240 on the same side. 0:21:51.359 --> 0:21:54.679 You don't often have the Supreme Court making decisions in 0:21:54.760 --> 0:21:59.040 the animal welfare area. Is this a victory for the 0:21:59.080 --> 0:22:02.920 animal welfare movement in more ways than one? 0:22:03.560 --> 0:22:07.159 Well, it's absolutely theigory formal welfare sanctioning any kind of 0:22:07.160 --> 0:22:10.960 state efforts to try to ensure that animals are housed 0:22:11.080 --> 0:22:14.959 or slaughtered in a humane manner. You know, there are 0:22:15.200 --> 0:22:18.920 states that ban the stale of horse meat, and obviously 0:22:19.040 --> 0:22:21.360 states if they want to take other kinds of measures 0:22:21.359 --> 0:22:24.280 to protect animals, they can do so. And maybe there's 0:22:24.280 --> 0:22:26.200 true for fish farming too, but who knows. 0:22:27.240 --> 0:22:30.399 Do you buy the pork producers saying that this is 0:22:30.440 --> 0:22:34.520 going to increase prices for consumers and drive small farms 0:22:34.560 --> 0:22:38.159 out of business and increase consolidation in the industry. 0:22:38.440 --> 0:22:41.920 Because California is such a large market, its impact will 0:22:41.960 --> 0:22:44.199 be felt in the industry. And I do think that 0:22:44.320 --> 0:22:48.639 Proposition twelve US will give rise to higher prices because 0:22:48.720 --> 0:22:50.520 you know, once you have to spend more money in 0:22:50.600 --> 0:22:54.760 terms of housing pigs and ensuring exercise and so forth, 0:22:54.880 --> 0:22:57.840 that is going to raise costs on doing business. So 0:22:58.200 --> 0:23:00.800 how big of an effect is unknown, but it is 0:23:00.920 --> 0:23:04.000 logical economically to think that this is going to drive 0:23:04.160 --> 0:23:05.040 court prices up. 0:23:05.600 --> 0:23:10.120 Also, just as Kavanaugh referred to the slippery slope argument 0:23:10.200 --> 0:23:14.399 in his opinion, And there are some concerns that the 0:23:14.480 --> 0:23:17.960 reasoning here, you know, the core issue the ability of 0:23:18.000 --> 0:23:22.439 states to take actions with impacts beyond their borders, could 0:23:22.600 --> 0:23:26.480 also be used by states in their efforts to restrict 0:23:26.920 --> 0:23:28.560 or expand abortion access. 0:23:28.920 --> 0:23:31.560 I'm skeptical that there'll be a direct impact here on 0:23:31.960 --> 0:23:34.240 the question about what states can do in terms of 0:23:34.359 --> 0:23:38.639 either ensuring the delivery of the abortion pill or precluding it. 0:23:38.800 --> 0:23:41.520 That has to do with the Privileges and Immunities clause 0:23:41.560 --> 0:23:44.000 and how that's developed in terms of the rights between 0:23:44.160 --> 0:23:46.359 those in one state and another state. I think the 0:23:46.440 --> 0:23:49.520 commerce issue here is distinct enough that there won't be 0:23:49.520 --> 0:23:53.640 any spillover into the more contentious issue of what kind 0:23:53.720 --> 0:23:57.920 of impact can one state have on citizens of another 0:23:57.960 --> 0:24:01.800