1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloombird Law with June Brusso from Bloomberg Radio. 2 00:00:09,160 --> 00:00:12,399 Speaker 1: Remember the Colorado baker who refused to make a cake 3 00:00:12,520 --> 00:00:16,560 Speaker 1: for same sex couples because of his religious objections. Now 4 00:00:16,600 --> 00:00:20,520 Speaker 1: a Colorado website designer doesn't want to create pages for 5 00:00:20,680 --> 00:00:24,120 Speaker 1: same sex weddings for the same reason, and the Supreme 6 00:00:24,160 --> 00:00:27,639 Speaker 1: Court is taking her appeal. Joining me is Steve Sanders, 7 00:00:27,680 --> 00:00:31,800 Speaker 1: a professor at Indiana University's Mars School of Law. Steve, 8 00:00:31,840 --> 00:00:34,080 Speaker 1: what was your reaction when you learned the court was 9 00:00:34,159 --> 00:00:38,479 Speaker 1: taking this case? Well, night reaction was that the social 10 00:00:38,520 --> 00:00:43,279 Speaker 1: conservative legal organization that has brought so many of these cases, 11 00:00:43,320 --> 00:00:48,040 Speaker 1: so many of these religiously based challenges to LGBT rights laws, 12 00:00:48,400 --> 00:00:51,920 Speaker 1: may finally, at long last, have found a winner. The 13 00:00:52,000 --> 00:00:57,280 Speaker 1: circumstances are sufficiently different from the Masterpiece cake Shop case 14 00:00:57,360 --> 00:01:00,720 Speaker 1: of several years ago that the fact of this case, 15 00:01:01,200 --> 00:01:04,919 Speaker 1: combined with some changes in the court since the Masterpiece 16 00:01:04,920 --> 00:01:08,119 Speaker 1: cake Shop case was decided to suggests to me that 17 00:01:08,200 --> 00:01:10,960 Speaker 1: this one is going to be a tougher case and 18 00:01:11,040 --> 00:01:14,680 Speaker 1: will be a case where the plaintiff here, the person 19 00:01:14,800 --> 00:01:18,400 Speaker 1: challenging the law, is more likely to prevail. Let's go 20 00:01:18,480 --> 00:01:22,520 Speaker 1: back to the Masterpiece cake shop case for a moment. 21 00:01:22,880 --> 00:01:26,400 Speaker 1: So the court they're ruled in favor of the Colorado baker. 22 00:01:26,760 --> 00:01:29,399 Speaker 1: But the court did it on very narrow grounds. Just 23 00:01:29,520 --> 00:01:32,120 Speaker 1: explain what happened there, that's right. That was a twenty 24 00:01:32,200 --> 00:01:35,560 Speaker 1: eighteen decision. So you had a baker and also Colorado 25 00:01:35,720 --> 00:01:38,160 Speaker 1: that cases are coming from the same state. Oddly enough, 26 00:01:38,480 --> 00:01:40,800 Speaker 1: you had a baker in Colorado who said, I am 27 00:01:40,840 --> 00:01:44,120 Speaker 1: perfectly happy to serve gay people. I just won't provide 28 00:01:44,160 --> 00:01:47,040 Speaker 1: a cake for a same sex wedding. And there was 29 00:01:47,080 --> 00:01:49,920 Speaker 1: never any issue of the message on the cake or 30 00:01:50,000 --> 00:01:54,120 Speaker 1: writing on the cake, even just a generically decorated wedding cake. 31 00:01:54,200 --> 00:01:56,240 Speaker 1: He said, I can't provide that for a same sex 32 00:01:56,240 --> 00:02:00,320 Speaker 1: wedding because essentially I speak through my cakes. Mike, cakes 33 00:02:00,320 --> 00:02:03,840 Speaker 1: are my artistry, and the First Amendment prevents the State 34 00:02:03,840 --> 00:02:09,040 Speaker 1: of Colorado from essentially common deering my artistry and forcing 35 00:02:09,040 --> 00:02:13,080 Speaker 1: me to in effect endorse a wedding by providing a 36 00:02:13,160 --> 00:02:16,919 Speaker 1: cake that I can't in good conscience endorse. People criticize 37 00:02:16,960 --> 00:02:19,639 Speaker 1: that reasoning and said, look, a cake is a commercial product. 38 00:02:19,760 --> 00:02:21,880 Speaker 1: Nobody goes to a wedding and thinks that you know, 39 00:02:21,919 --> 00:02:24,200 Speaker 1: the baker has blessed this wedding when they look at 40 00:02:24,200 --> 00:02:28,240 Speaker 1: the cake. But the court ended up dodging that First 41 00:02:28,280 --> 00:02:32,640 Speaker 1: Amendment speech argument by ruling on narrower grounds. Essentially, it 42 00:02:32,800 --> 00:02:37,480 Speaker 1: picked out some difficult and sort of sarcastic comments that 43 00:02:37,560 --> 00:02:40,720 Speaker 1: had been made by the authorities in Colorado who had 44 00:02:40,760 --> 00:02:45,040 Speaker 1: initially adjudicated that case. It was a state civil rights commission, 45 00:02:45,080 --> 00:02:48,480 Speaker 1: and basically the court said that civil rights commission had 46 00:02:48,520 --> 00:02:53,320 Speaker 1: shown hostility toward the Baker's religion. So, in essence, it 47 00:02:53,320 --> 00:02:55,200 Speaker 1: was a way of saying he didn't get a fair hearing, 48 00:02:55,560 --> 00:02:58,840 Speaker 1: his religion was treated with a sort of contempt by 49 00:02:58,880 --> 00:03:02,840 Speaker 1: state officials, and that's enough to say he prevails on 50 00:03:03,040 --> 00:03:06,280 Speaker 1: his claim that his free exercise religion was violated. But 51 00:03:06,400 --> 00:03:09,280 Speaker 1: the court, in doing that void at having to decide 52 00:03:09,320 --> 00:03:12,600 Speaker 1: the much more novel First Amendment theory that the Baker 53 00:03:12,639 --> 00:03:16,280 Speaker 1: and his lawyers had put forward. Steve explain why the 54 00:03:16,360 --> 00:03:20,079 Speaker 1: baker and the web designer are making free speech claims 55 00:03:20,280 --> 00:03:24,120 Speaker 1: instead of free exercise claims, and explain in more depth 56 00:03:24,240 --> 00:03:28,120 Speaker 1: what they sidestepped. Steve so that the Baker had invoked 57 00:03:28,520 --> 00:03:32,840 Speaker 1: both the free exercise of religion and the freedom of 58 00:03:32,840 --> 00:03:35,960 Speaker 1: speech to different parts of the First Amendment. The problem 59 00:03:36,120 --> 00:03:41,160 Speaker 1: for religious challengers to civil rights laws is that the 60 00:03:41,240 --> 00:03:45,360 Speaker 1: doctrine of the free exercise claws is relatively weak when 61 00:03:45,360 --> 00:03:48,880 Speaker 1: it comes to challenging laws that are just general laws 62 00:03:48,920 --> 00:03:52,720 Speaker 1: that apply to everybody, like civil rights laws. There was 63 00:03:52,760 --> 00:03:56,240 Speaker 1: no evidence that the Baker's religion had been singled out 64 00:03:56,320 --> 00:04:01,760 Speaker 1: or targeted for disadvantageous treatment, so the free exercise clause 65 00:04:01,840 --> 00:04:06,000 Speaker 1: does not provide a very powerful weapon for attacking civil 66 00:04:06,080 --> 00:04:10,360 Speaker 1: rights laws. That's why organizations like the legal group that 67 00:04:10,480 --> 00:04:14,320 Speaker 1: represented both Jack Phillips, the baker, and now the web 68 00:04:14,360 --> 00:04:17,719 Speaker 1: designer in the new case, have really gone to the 69 00:04:17,839 --> 00:04:20,840 Speaker 1: part of the First Amendment that deals with speech, and 70 00:04:20,920 --> 00:04:25,360 Speaker 1: particularly a line of cases called the compelled speech doctrine, 71 00:04:25,600 --> 00:04:29,880 Speaker 1: which basically stand for the principle that government can't force 72 00:04:29,960 --> 00:04:33,800 Speaker 1: you to express a message that you don't seek to express, 73 00:04:33,880 --> 00:04:37,080 Speaker 1: that it would violate your conscience or just your political 74 00:04:37,120 --> 00:04:41,880 Speaker 1: beliefs or your preferences to express. And the innovation here 75 00:04:42,320 --> 00:04:45,600 Speaker 1: is that they've made the argument that the provider of 76 00:04:45,640 --> 00:04:48,600 Speaker 1: a commercial product like a wedding cake or in this case, 77 00:04:48,640 --> 00:04:53,680 Speaker 1: a web designer, that their speech, their creativity, their expression, 78 00:04:54,320 --> 00:04:58,599 Speaker 1: is being compelled commandeered by the government when they have 79 00:04:58,800 --> 00:05:02,200 Speaker 1: to provide a service US to a same sex wedding 80 00:05:02,320 --> 00:05:04,960 Speaker 1: because they don't want to do that because it violates 81 00:05:05,000 --> 00:05:08,599 Speaker 1: their religion. But their their claim is more about speech 82 00:05:08,680 --> 00:05:11,400 Speaker 1: than about religion. In fact, in the case that the 83 00:05:11,440 --> 00:05:15,080 Speaker 1: Supreme Court has now decided to hear, they have basically said, 84 00:05:15,200 --> 00:05:19,080 Speaker 1: we're not interested in the free exercise clause arguments. We're 85 00:05:19,080 --> 00:05:22,640 Speaker 1: not opening up that can of worms. Were just interested 86 00:05:22,720 --> 00:05:25,760 Speaker 1: in the First Amendment speech arguments that you have to make. 87 00:05:26,480 --> 00:05:29,760 Speaker 1: Steve explain why the baker and the web designer are 88 00:05:29,880 --> 00:05:34,560 Speaker 1: making free speech claims instead of free exercise claims. The 89 00:05:34,680 --> 00:05:40,200 Speaker 1: problem for religious challengers to civil rights laws is that 90 00:05:40,240 --> 00:05:44,239 Speaker 1: the doctrine of the free exercise claus is relatively weak 91 00:05:44,400 --> 00:05:47,679 Speaker 1: when it comes to challenging laws that are just general 92 00:05:47,760 --> 00:05:51,840 Speaker 1: laws that apply to everybody, like civil rights laws. There 93 00:05:51,920 --> 00:05:55,240 Speaker 1: was no evidence that the Baker's religion had been singled 94 00:05:55,279 --> 00:06:01,120 Speaker 1: out or targeted for disadvantageous treatment. So that's why organizations 95 00:06:01,279 --> 00:06:04,400 Speaker 1: like the legal group that represented both the baker and 96 00:06:04,440 --> 00:06:07,440 Speaker 1: now the web designer in the new case have really 97 00:06:07,480 --> 00:06:10,360 Speaker 1: gone to the part of the First Amendment that deals 98 00:06:10,400 --> 00:06:14,680 Speaker 1: with speech, and particularly the principle that government can't force 99 00:06:14,760 --> 00:06:18,440 Speaker 1: you to express a message that you don't seek to express, 100 00:06:18,520 --> 00:06:21,720 Speaker 1: that it would violate your conscience or just your political 101 00:06:21,760 --> 00:06:26,520 Speaker 1: beliefs or your preferences to express. And the innovation here 102 00:06:26,920 --> 00:06:30,240 Speaker 1: is that they've made the argument that the provider of 103 00:06:30,240 --> 00:06:33,239 Speaker 1: a commercial product, like a wedding cake or in this case, 104 00:06:33,279 --> 00:06:37,960 Speaker 1: a web designer, that their speech, their creativity, their expression 105 00:06:38,360 --> 00:06:42,479 Speaker 1: is being compelled, commandeered by the government when they have 106 00:06:42,640 --> 00:06:46,400 Speaker 1: to provide a service to a same sex wedding because 107 00:06:46,800 --> 00:06:49,240 Speaker 1: they don't want to do that because it violates their religion. 108 00:06:49,839 --> 00:06:54,039 Speaker 1: It sounds like the web designer case is exactly the 109 00:06:54,080 --> 00:06:58,320 Speaker 1: same as the baker's case. What's different about it? It's 110 00:06:58,360 --> 00:07:02,839 Speaker 1: a little different because, you know, again Jack Phillips basically said, 111 00:07:02,920 --> 00:07:06,520 Speaker 1: you know, I'm no different them a web designer or 112 00:07:06,560 --> 00:07:09,080 Speaker 1: a singer or somebody. You know, I I use my 113 00:07:09,279 --> 00:07:14,320 Speaker 1: artistry in my work. And again, the I think a 114 00:07:14,360 --> 00:07:17,080 Speaker 1: lot of people said, well, you know, yes, the government 115 00:07:17,120 --> 00:07:21,000 Speaker 1: couldn't force him to bake a rainbow colored cake that 116 00:07:21,120 --> 00:07:24,400 Speaker 1: said God bless this gay wedding, that that would be 117 00:07:24,440 --> 00:07:28,160 Speaker 1: going too far. But he wouldn't even provide just a 118 00:07:28,200 --> 00:07:32,680 Speaker 1: generic wedding cake to a same sex wedding. He still said, 119 00:07:33,240 --> 00:07:36,520 Speaker 1: I speak through my artistry and and and you know, 120 00:07:36,600 --> 00:07:39,040 Speaker 1: many people sort of disagreed and said, well, you can 121 00:07:39,080 --> 00:07:43,080 Speaker 1: only go so far and saying a commercial product like 122 00:07:43,120 --> 00:07:48,000 Speaker 1: a wedding cake represents your speech. But a web designer 123 00:07:48,280 --> 00:07:51,920 Speaker 1: is different. I mean, the web design for this wedding 124 00:07:52,040 --> 00:07:56,800 Speaker 1: is presumably going to celebrate the couple, a same sex couple. 125 00:07:56,960 --> 00:08:00,680 Speaker 1: I should add, this case is being brought by the 126 00:08:00,720 --> 00:08:04,200 Speaker 1: web designer on the anticipation that she will be charged 127 00:08:04,240 --> 00:08:07,960 Speaker 1: with violating the law if she goes through with her plans. 128 00:08:08,320 --> 00:08:11,400 Speaker 1: There is actually no one that she has denied service too. 129 00:08:12,000 --> 00:08:15,800 Speaker 1: But she's saying, look, you know, inherently, if I design 130 00:08:15,880 --> 00:08:20,080 Speaker 1: a website for a wedding that is going to celebrate 131 00:08:20,160 --> 00:08:24,040 Speaker 1: that particular wedding, it's going to send a message about 132 00:08:24,120 --> 00:08:27,360 Speaker 1: a same sex couple that is one of joy and 133 00:08:27,440 --> 00:08:31,160 Speaker 1: celebration and endorsement. And I can't do that as a 134 00:08:31,160 --> 00:08:35,880 Speaker 1: matter of my conscience. So it's more like the situation, 135 00:08:35,960 --> 00:08:39,280 Speaker 1: which was not the case in Masterpiece. But where if 136 00:08:39,320 --> 00:08:43,000 Speaker 1: if a if if if a customer requested a specific 137 00:08:43,200 --> 00:08:46,920 Speaker 1: message on a cake, I think many people were more 138 00:08:46,960 --> 00:08:50,920 Speaker 1: willing to say Okay, that involves the baker's conscience and 139 00:08:50,960 --> 00:08:53,640 Speaker 1: he can't be forced to do that. That's why I 140 00:08:53,679 --> 00:08:57,640 Speaker 1: think the wedding web page designer is a much more 141 00:08:57,679 --> 00:09:02,920 Speaker 1: attractive plaintiff for that argument, because a web design a 142 00:09:02,960 --> 00:09:07,720 Speaker 1: website is inherently a medium of communication in a way 143 00:09:07,800 --> 00:09:11,160 Speaker 1: that that wedding cake is the best kind of disputable 144 00:09:11,400 --> 00:09:15,320 Speaker 1: whether that's a medium of communication or not. A website is, 145 00:09:15,400 --> 00:09:17,760 Speaker 1: and inevitably this website is not going to be some 146 00:09:17,880 --> 00:09:20,200 Speaker 1: generic thing. It's going to have pictures of the couple 147 00:09:20,320 --> 00:09:24,280 Speaker 1: and again endorse the idea in some sense that this 148 00:09:24,400 --> 00:09:27,400 Speaker 1: gave the same sex wedding is a good thing, and 149 00:09:27,760 --> 00:09:32,360 Speaker 1: that's what the web designer says. Look in good conscience. Respectfully, 150 00:09:32,480 --> 00:09:35,320 Speaker 1: I just can't do that. I will refer you to 151 00:09:35,360 --> 00:09:37,440 Speaker 1: somebody else who can do that. If you're a gay 152 00:09:37,480 --> 00:09:40,319 Speaker 1: person who wants a website for your birthday party, I'm 153 00:09:40,360 --> 00:09:43,400 Speaker 1: happy to do that. Um. What what she's saying is, 154 00:09:43,480 --> 00:09:46,800 Speaker 1: I can't get on board with the idea of using 155 00:09:46,920 --> 00:09:54,120 Speaker 1: my writing, artistic skills, technical skills to create something which 156 00:09:54,320 --> 00:10:00,160 Speaker 1: communicates a message of approval and endorsement and celebration for 157 00:10:00,280 --> 00:10:04,600 Speaker 1: something that violates my religious conscience. So the ten Circuit 158 00:10:04,679 --> 00:10:08,000 Speaker 1: ruled against the web designer, and the Supreme Court often 159 00:10:08,080 --> 00:10:12,040 Speaker 1: takes cases in order to reverse the results. And the 160 00:10:12,080 --> 00:10:14,960 Speaker 1: Court has changed a great deal since the Masterpiece Cake 161 00:10:15,000 --> 00:10:19,280 Speaker 1: Shop case. Two justices who championed gay rights, the late 162 00:10:19,360 --> 00:10:23,440 Speaker 1: Justice Ruth Bader Ginsburg and Anthony Kennedy, are no longer 163 00:10:23,480 --> 00:10:26,440 Speaker 1: on the court. Do those factors point to what the 164 00:10:26,480 --> 00:10:29,000 Speaker 1: result may be in this case? I think they do 165 00:10:29,040 --> 00:10:31,760 Speaker 1: it because of the way the Court chose to resolve 166 00:10:31,800 --> 00:10:34,439 Speaker 1: the Masterpiece Cake Shop case that was a seven to 167 00:10:34,600 --> 00:10:37,640 Speaker 1: two decisions. Even some of the more liberal justices such 168 00:10:37,640 --> 00:10:41,280 Speaker 1: as Justice Kagan and Justice Brian joined the outcome theres 169 00:10:41,280 --> 00:10:44,800 Speaker 1: So we don't know what Briar and Kagan would have 170 00:10:44,920 --> 00:10:48,600 Speaker 1: done on those pure First Amendment speech questions that the 171 00:10:48,640 --> 00:10:52,400 Speaker 1: Court didn't adjudicate. But the Court is more conservative than 172 00:10:52,440 --> 00:10:55,600 Speaker 1: it was. Justice Sparitt is sort of known to be 173 00:10:55,880 --> 00:11:01,040 Speaker 1: especially interested in and sensitive to questions of religious liberty, 174 00:11:01,360 --> 00:11:04,000 Speaker 1: and so I think, yes, it does make a difference 175 00:11:04,040 --> 00:11:07,320 Speaker 1: that it's a somewhat more conservative court. I don't know 176 00:11:07,360 --> 00:11:10,040 Speaker 1: that it makes a huge difference, because again, we didn't 177 00:11:10,040 --> 00:11:13,440 Speaker 1: really get a decision on the same question as Masterpiece 178 00:11:13,480 --> 00:11:15,720 Speaker 1: it's not as though the court is being asked to 179 00:11:15,760 --> 00:11:20,880 Speaker 1: now reconsider something it decided in that case, but unbalanced. Yes, 180 00:11:20,920 --> 00:11:24,640 Speaker 1: it is an even more conservative court, and this, again, 181 00:11:24,679 --> 00:11:29,120 Speaker 1: I think, is a more attractive vehicle if you're going 182 00:11:29,200 --> 00:11:32,760 Speaker 1: to challenge gay rights laws on the basis of a 183 00:11:32,800 --> 00:11:36,440 Speaker 1: First Amendment claim of right. So now let's turn to 184 00:11:37,040 --> 00:11:42,320 Speaker 1: another issue involving transgender bathroom rates. What is the issue 185 00:11:42,360 --> 00:11:46,000 Speaker 1: in this case before the Eleventh Circuit Court of Appeals. 186 00:11:46,720 --> 00:11:50,520 Speaker 1: Law is really now grappling in a very serious way 187 00:11:50,600 --> 00:11:55,480 Speaker 1: with the different forms that discrimination against transgender people can take. 188 00:11:55,520 --> 00:11:58,199 Speaker 1: That there have been cases about employment, there have been 189 00:11:58,240 --> 00:12:00,800 Speaker 1: cases about the right to medical care, and there have 190 00:12:00,920 --> 00:12:05,720 Speaker 1: been cases about access to certain gendered public facilities such 191 00:12:05,720 --> 00:12:09,480 Speaker 1: as bathrooms and locker rooms. This case involves a high 192 00:12:09,480 --> 00:12:13,960 Speaker 1: school student who was anatomically and at birth assigned the 193 00:12:14,240 --> 00:12:18,840 Speaker 1: gender of female, who transitioned and now identifies as a 194 00:12:18,880 --> 00:12:22,880 Speaker 1: gender identity of male, presents to the world as a male, 195 00:12:23,040 --> 00:12:27,960 Speaker 1: is undergoing medical care to facilitate a gender transition to 196 00:12:28,080 --> 00:12:31,680 Speaker 1: being male, and this student said, I am male. That 197 00:12:31,840 --> 00:12:34,559 Speaker 1: is my identity. I dress as a male. I feel 198 00:12:34,600 --> 00:12:36,760 Speaker 1: I am a male, and so I should be able 199 00:12:36,800 --> 00:12:39,840 Speaker 1: to use the male washroom at school, in the male 200 00:12:40,040 --> 00:12:42,880 Speaker 1: locker room, that's who I am. And even though it's 201 00:12:43,000 --> 00:12:47,080 Speaker 1: different from my anatomical or the sex on my birth certificate, 202 00:12:47,400 --> 00:12:51,280 Speaker 1: how I identify now is what matters. In a similar 203 00:12:51,320 --> 00:12:55,560 Speaker 1: case involving of Virginia high school student, the Fourth Circuit 204 00:12:55,600 --> 00:12:59,360 Speaker 1: Court of Appeals basically agreed and said in not letting 205 00:12:59,400 --> 00:13:03,200 Speaker 1: that student use the facilities that were consistent with his 206 00:13:03,360 --> 00:13:07,360 Speaker 1: gender identity, in saying, you have to use a separate, 207 00:13:07,440 --> 00:13:11,680 Speaker 1: private bathroom, that's our way of accommodating you, the Fourth 208 00:13:11,679 --> 00:13:15,520 Speaker 1: Circuit said, in that case, a transgender boys writes under 209 00:13:15,559 --> 00:13:20,079 Speaker 1: both the Constitution and federal sex discrimination law type of 210 00:13:20,160 --> 00:13:23,880 Speaker 1: nine were violated, and so here in Florida, involving another 211 00:13:23,920 --> 00:13:27,760 Speaker 1: case involving a transgender boy, the lower courts and the 212 00:13:27,840 --> 00:13:30,880 Speaker 1: Court of Appeals had come to the same conclusion. Had 213 00:13:30,920 --> 00:13:35,240 Speaker 1: basically said, in not allowing this student to express their 214 00:13:35,360 --> 00:13:40,240 Speaker 1: gender identity and use facilities consistent with their gender identity, 215 00:13:40,480 --> 00:13:44,360 Speaker 1: it was a form of discrimination that violated the anti 216 00:13:44,440 --> 00:13:49,359 Speaker 1: sex discrimination provisions of both Title nine and the Constitution's 217 00:13:49,400 --> 00:13:54,559 Speaker 1: Equal Protection clus But the Full leven Circuit decided to 218 00:13:54,679 --> 00:13:58,439 Speaker 1: rehear the case on bank and it's a court where 219 00:13:58,520 --> 00:14:04,200 Speaker 1: conservative judges out number liberal judges. The hearing that took place, 220 00:14:04,200 --> 00:14:08,240 Speaker 1: the arguments that took place, suggested that this full on 221 00:14:08,480 --> 00:14:12,360 Speaker 1: bunk court maybe coming to a different conclusion than the 222 00:14:12,400 --> 00:14:16,160 Speaker 1: panel had come to, and might decide either that the 223 00:14:16,240 --> 00:14:20,560 Speaker 1: school is entitled to require students to use one facility 224 00:14:20,680 --> 00:14:23,360 Speaker 1: or the other boys or girls based on their anatomical 225 00:14:23,480 --> 00:14:26,720 Speaker 1: sex or their sex at birth, or the court might 226 00:14:26,840 --> 00:14:31,200 Speaker 1: say letting them use a private, gender neutral bathroom is 227 00:14:31,240 --> 00:14:34,920 Speaker 1: a sufficient accommodation, that we not only have to worry 228 00:14:34,960 --> 00:14:38,600 Speaker 1: about the rights and the dignity of the transgender student, 229 00:14:38,920 --> 00:14:42,200 Speaker 1: but we also have to be concerned about the privacy 230 00:14:42,560 --> 00:14:46,120 Speaker 1: concerns that other students might have, and that cases like 231 00:14:46,200 --> 00:14:49,760 Speaker 1: this call for a more delicate balancing than say, an 232 00:14:49,760 --> 00:14:53,160 Speaker 1: employer who simply wants to fire an adult transgender person 233 00:14:53,280 --> 00:14:56,680 Speaker 1: from a job. So I think we're seeing some tension there. 234 00:14:57,160 --> 00:15:01,040 Speaker 1: If the eleven Circuit rules in favor of the school 235 00:15:01,080 --> 00:15:04,520 Speaker 1: here and against the transgender student, that would create a 236 00:15:04,560 --> 00:15:06,920 Speaker 1: split in the circuits. Would you say the Supreme Court 237 00:15:06,920 --> 00:15:11,240 Speaker 1: has been avoiding the transgender bathroom issue so far? The 238 00:15:11,320 --> 00:15:15,360 Speaker 1: conventional wisdom among Supreme Court litigators is that a circuit 239 00:15:15,520 --> 00:15:18,680 Speaker 1: split where you know, one federal court takes one view, 240 00:15:18,720 --> 00:15:22,000 Speaker 1: another federal court takes another view. That that is potentially 241 00:15:22,040 --> 00:15:25,480 Speaker 1: the best ticket to the Supreme Court, because that then 242 00:15:25,560 --> 00:15:28,640 Speaker 1: you've got federal law means different things in different parts 243 00:15:28,680 --> 00:15:31,160 Speaker 1: of the country. UM, I don't know that. I'd say 244 00:15:31,200 --> 00:15:33,320 Speaker 1: there's a lot of evidence the Supreme Court has been 245 00:15:33,360 --> 00:15:36,800 Speaker 1: avoiding the issue. The Supreme Court did decline to grant 246 00:15:36,920 --> 00:15:41,040 Speaker 1: sert in the Virginia case. I mentioned McGavin grim case, 247 00:15:41,160 --> 00:15:44,280 Speaker 1: but again, that was a case that ruled in favor 248 00:15:44,320 --> 00:15:47,680 Speaker 1: of the student. It didn't invalidate or strike down any law, 249 00:15:47,880 --> 00:15:51,000 Speaker 1: just said that the bathroom policy as to that student 250 00:15:51,120 --> 00:15:55,200 Speaker 1: was unconstitutional. That wasn't necessarily a case that was crying 251 00:15:55,240 --> 00:15:57,840 Speaker 1: out for the Supreme Court's review. In fact, it might 252 00:15:57,880 --> 00:16:00,760 Speaker 1: have been kind of extraordinary if the Court had taken that. 253 00:16:01,320 --> 00:16:04,560 Speaker 1: A circuit split where you have two different courts looking 254 00:16:04,560 --> 00:16:08,240 Speaker 1: at essentially the same set of facts and coming to 255 00:16:08,360 --> 00:16:13,560 Speaker 1: different conclusions under federal constitutional and and statutory law, that 256 00:16:13,760 --> 00:16:16,440 Speaker 1: is probably something that would be harder for the Supreme 257 00:16:16,480 --> 00:16:20,960 Speaker 1: Court to ignore. Thanks Steve. That's Steve Sanders of Indiana 258 00:16:21,080 --> 00:16:27,120 Speaker 1: University's Moral School of Law. Some Supreme Court gentices appeared 259 00:16:27,120 --> 00:16:30,880 Speaker 1: annoyed with how the Biden administration rescinded a hot button 260 00:16:30,960 --> 00:16:35,200 Speaker 1: Trump era immigration policy as they wrestle with the tangled 261 00:16:35,280 --> 00:16:38,680 Speaker 1: legal aftermath and what to do about it. The concerns 262 00:16:38,720 --> 00:16:43,720 Speaker 1: crossed ideological lines at oral arguments on Wednesday overhandling of 263 00:16:43,720 --> 00:16:47,880 Speaker 1: the so called public charge rule. Joining me is Leon Fresco, 264 00:16:48,040 --> 00:16:51,840 Speaker 1: a partner at Hollandon Knight Leon. This gets awfully confusing, 265 00:16:52,480 --> 00:16:56,000 Speaker 1: So start by explaining the issue. The substantive issue that 266 00:16:56,400 --> 00:17:01,160 Speaker 1: precipitated the litigation was a two thousand, nineteen public Charge 267 00:17:01,240 --> 00:17:04,800 Speaker 1: rules that was issued by President Trump. And what the 268 00:17:04,880 --> 00:17:07,479 Speaker 1: public charge rule did was as followed. There has been 269 00:17:07,520 --> 00:17:10,800 Speaker 1: a law for hundreds of years, literally in our statute 270 00:17:11,240 --> 00:17:13,520 Speaker 1: that says that a person is not allowed to get 271 00:17:13,600 --> 00:17:17,159 Speaker 1: immigration status in the United States if they're likely to 272 00:17:17,200 --> 00:17:20,399 Speaker 1: become a public charge. That's all it said. And so 273 00:17:20,560 --> 00:17:22,320 Speaker 1: then the question is, well, what does that mean? What 274 00:17:22,359 --> 00:17:23,960 Speaker 1: does it mean that you're going to be dependent on 275 00:17:24,119 --> 00:17:28,040 Speaker 1: the state. And so the Trump administration decided to issue 276 00:17:28,040 --> 00:17:30,399 Speaker 1: a regulation that would put a lot for beasts of 277 00:17:30,600 --> 00:17:35,280 Speaker 1: those bones, and the regulations that they put in essentially 278 00:17:35,320 --> 00:17:38,520 Speaker 1: said something along the lines of if you've ever received 279 00:17:38,560 --> 00:17:43,000 Speaker 1: any cash assistance from any state or local government which 280 00:17:43,040 --> 00:17:45,320 Speaker 1: were new that was not previously in the law, you 281 00:17:45,359 --> 00:17:49,320 Speaker 1: would be considered a public charge. But also it added 282 00:17:49,400 --> 00:17:53,240 Speaker 1: these nebulous fasters that could be considered that had never 283 00:17:53,320 --> 00:17:56,080 Speaker 1: been considered before, such as the age of the person, 284 00:17:56,640 --> 00:18:00,560 Speaker 1: their still level, their knowledge of English at veteran That 285 00:18:00,600 --> 00:18:03,520 Speaker 1: would allow an adjudicator, on a case by case basis 286 00:18:03,560 --> 00:18:06,439 Speaker 1: to decide if someone was likely to become a public 287 00:18:06,520 --> 00:18:09,800 Speaker 1: charge even if they had never collected previously any bede 288 00:18:09,800 --> 00:18:13,119 Speaker 1: cads from the US government. And so as soon as 289 00:18:13,119 --> 00:18:16,320 Speaker 1: that rule came out, states across the country and cities 290 00:18:16,960 --> 00:18:21,160 Speaker 1: uh to the federal government and said we don't want 291 00:18:21,200 --> 00:18:24,040 Speaker 1: this public charge rule to go into effect. And that 292 00:18:24,160 --> 00:18:28,280 Speaker 1: litigation was going on, and the government was winning the 293 00:18:28,359 --> 00:18:30,679 Speaker 1: litigation in the Supreme Court. They were losing in the 294 00:18:30,720 --> 00:18:33,760 Speaker 1: lower court, but they were winning it in the Supreme Court, 295 00:18:34,200 --> 00:18:35,959 Speaker 1: and it looked like all of it was going to 296 00:18:36,000 --> 00:18:41,360 Speaker 1: be dispensed with when Joe Biden gets elected and says, well, 297 00:18:41,400 --> 00:18:43,960 Speaker 1: I want to get rid of this policy. And there's 298 00:18:44,080 --> 00:18:48,399 Speaker 1: one court whose decision hasn't been reversed by the Supreme Court, 299 00:18:48,840 --> 00:18:51,800 Speaker 1: and so that's where this case begins. The states here, 300 00:18:52,000 --> 00:18:56,560 Speaker 1: Republican led states, are trying to basically fight for a 301 00:18:56,720 --> 00:19:01,000 Speaker 1: rule that the Biden administration has abandoned. Right, So here's 302 00:19:01,040 --> 00:19:05,040 Speaker 1: what happened. So, once the Biden administration gets elected and 303 00:19:05,080 --> 00:19:07,639 Speaker 1: goes into power, they say, we want to get rid 304 00:19:07,680 --> 00:19:11,000 Speaker 1: of this public charge rule. And so ordinarily, if there's 305 00:19:11,040 --> 00:19:13,560 Speaker 1: a rule that you want to get rid of that 306 00:19:14,040 --> 00:19:16,239 Speaker 1: is in effect, you have to do with all they 307 00:19:16,400 --> 00:19:19,240 Speaker 1: notice a precision of the rule, and then that has 308 00:19:19,280 --> 00:19:22,200 Speaker 1: to go through public comment for thirty or sixty days, 309 00:19:22,480 --> 00:19:25,200 Speaker 1: you have to give reasons for why you're resending the rule, 310 00:19:25,600 --> 00:19:29,600 Speaker 1: and then you finally resend the rule. In this case, 311 00:19:29,800 --> 00:19:33,399 Speaker 1: that didn't happen because there was one court in Illinois, 312 00:19:33,480 --> 00:19:36,399 Speaker 1: in the District of Illinois that had a ruling that 313 00:19:36,520 --> 00:19:39,120 Speaker 1: was still in effect when the Biden administration came into 314 00:19:39,160 --> 00:19:42,359 Speaker 1: power that said that this Trump public charge rule was 315 00:19:42,520 --> 00:19:45,159 Speaker 1: unlawful and could not go into effect and had a 316 00:19:45,240 --> 00:19:48,920 Speaker 1: nacent wide injunction. And that ruling was for a different 317 00:19:49,000 --> 00:19:52,840 Speaker 1: reason than the Supreme Court who had ruled in other 318 00:19:52,960 --> 00:19:56,360 Speaker 1: cases that the public charge rule could go into effect. 319 00:19:56,440 --> 00:19:59,600 Speaker 1: In cases of many other circuits that have been filed 320 00:19:59,720 --> 00:20:03,400 Speaker 1: and So what the Biden administration did is it said, 321 00:20:03,480 --> 00:20:07,280 Speaker 1: here's what we're gonna do. We are going to say 322 00:20:07,359 --> 00:20:10,240 Speaker 1: we're dismissing all of these cases. So there was a 323 00:20:10,320 --> 00:20:13,199 Speaker 1: case coming into Supreme Court where oral argument was going 324 00:20:13,240 --> 00:20:16,120 Speaker 1: to happen nine Circuit case. There was cases all around 325 00:20:16,119 --> 00:20:19,720 Speaker 1: the country. And what the Biden administration said is these 326 00:20:19,760 --> 00:20:23,720 Speaker 1: people seeing us California, the cities and the localities, we 327 00:20:23,800 --> 00:20:26,680 Speaker 1: agree with them. And so what we will say is, look, 328 00:20:26,680 --> 00:20:29,000 Speaker 1: we're not going to defend this case. We're not gonna 329 00:20:29,080 --> 00:20:33,080 Speaker 1: defend this public charge rules, and so dismiss your cases. 330 00:20:33,080 --> 00:20:36,560 Speaker 1: So everybody dismisses their cases if Copreme Court case gets 331 00:20:36,640 --> 00:20:39,320 Speaker 1: its mess. And what the Biden administration says is this 332 00:20:39,400 --> 00:20:42,240 Speaker 1: public charge rule is no longer in effect because the 333 00:20:42,320 --> 00:20:46,399 Speaker 1: only case that has not been dismissed is the Illinois case. 334 00:20:46,480 --> 00:20:49,240 Speaker 1: And in the Illinois case, we locked. We were enjoying 335 00:20:49,480 --> 00:20:53,160 Speaker 1: from putting in this rule. And so thus the state 336 00:20:53,200 --> 00:20:56,840 Speaker 1: of play before Arizona and other states get involved, they 337 00:20:56,880 --> 00:21:00,240 Speaker 1: then see that this offen Wait a second, the public 338 00:21:00,320 --> 00:21:04,160 Speaker 1: charge rule has been invalidated through this interesting method where 339 00:21:04,160 --> 00:21:07,199 Speaker 1: all the lawsuits were dismissed except the one where the 340 00:21:07,200 --> 00:21:10,520 Speaker 1: federal government laws that can't be right. We need to 341 00:21:10,560 --> 00:21:14,120 Speaker 1: revive one of these other lawsuits where we were winning 342 00:21:14,600 --> 00:21:17,080 Speaker 1: so we can bring it back to the Supreme Court 343 00:21:17,520 --> 00:21:20,040 Speaker 1: and we can win. And even if the federal government 344 00:21:20,080 --> 00:21:22,720 Speaker 1: doesn't want to defend this, we as the state, should 345 00:21:22,760 --> 00:21:26,120 Speaker 1: be allowed to defend this. So Arizona goes to both 346 00:21:26,160 --> 00:21:29,560 Speaker 1: the Ninth Ticket and the Seventh Circuit, which is Illinois, 347 00:21:29,800 --> 00:21:32,879 Speaker 1: and says we want to intervene, meaning we want to 348 00:21:32,960 --> 00:21:35,560 Speaker 1: take the plate of the federal government so that we 349 00:21:35,640 --> 00:21:39,600 Speaker 1: can defend the Trump public charge regulation. And the Ninth 350 00:21:39,600 --> 00:21:43,600 Speaker 1: Circuit says, no, you can't do this because one the 351 00:21:43,640 --> 00:21:46,840 Speaker 1: case has already been dismissed. It's too late. And to 352 00:21:47,840 --> 00:21:50,800 Speaker 1: this injunction that we had in place was only for 353 00:21:50,920 --> 00:21:55,280 Speaker 1: California and Washington anyway, it wasn't a nation wide injunction case. 354 00:21:55,840 --> 00:21:58,240 Speaker 1: And so Arizona, you have nothing to do with this. 355 00:21:58,440 --> 00:22:01,639 Speaker 1: So why are you even involved. You're not being harmed 356 00:22:01,640 --> 00:22:04,760 Speaker 1: by this case. And so that's the issue that goes 357 00:22:04,880 --> 00:22:07,199 Speaker 1: up to the Supreme Court. And where yesterday there was 358 00:22:07,200 --> 00:22:10,680 Speaker 1: an argument about whether the Ninth Circuit should have permitted 359 00:22:10,680 --> 00:22:14,240 Speaker 1: Arizona to resuss and take the Ninth TA case and 360 00:22:14,520 --> 00:22:16,960 Speaker 1: bring it back to the Supreme Court for a decision. 361 00:22:17,280 --> 00:22:22,160 Speaker 1: So it struck me that some of the justices were, 362 00:22:22,200 --> 00:22:26,239 Speaker 1: you know, annoyed with what the Biden administration did. So 363 00:22:26,280 --> 00:22:29,840 Speaker 1: you had Justice Elena Kagan saying the Supreme Court shouldn't 364 00:22:29,880 --> 00:22:33,760 Speaker 1: be green lighting that behavior for your administration or any 365 00:22:33,800 --> 00:22:37,959 Speaker 1: other administration. Chief Justice Roberts saying it would be really 366 00:22:38,040 --> 00:22:42,800 Speaker 1: quite a license for collusive action for any incoming administration 367 00:22:42,840 --> 00:22:46,359 Speaker 1: to change the rules. Then there were other justices who said, 368 00:22:46,800 --> 00:22:51,320 Speaker 1: you know, administrations change and the rules change. Clarence Thomas 369 00:22:51,359 --> 00:22:54,119 Speaker 1: that I've been through five administrations, the rules change, So 370 00:22:54,280 --> 00:22:58,280 Speaker 1: explain how the justices sort of saw this. So the 371 00:22:58,400 --> 00:23:01,720 Speaker 1: issue comes down to this. I think there was a 372 00:23:01,960 --> 00:23:06,400 Speaker 1: contented that the idea way that you would normally want 373 00:23:06,440 --> 00:23:09,399 Speaker 1: to handle something like what happened here would be to 374 00:23:09,560 --> 00:23:15,240 Speaker 1: file a brand new lawsuit against the federal government that says, 375 00:23:15,320 --> 00:23:20,920 Speaker 1: we don't like the way you retended this rule because 376 00:23:20,960 --> 00:23:23,600 Speaker 1: you did it in an illegal way. You should have 377 00:23:23,680 --> 00:23:27,680 Speaker 1: gone through the normal recission process and not do this 378 00:23:28,119 --> 00:23:31,320 Speaker 1: funky thing you did where you dismissed all the cases 379 00:23:31,400 --> 00:23:33,960 Speaker 1: you didn't like and you kept the one case you 380 00:23:34,040 --> 00:23:39,480 Speaker 1: did like. So that's what the justices wanted. But where 381 00:23:39,600 --> 00:23:43,840 Speaker 1: the Arizona Solicitor General really made a little bit of 382 00:23:43,960 --> 00:23:46,480 Speaker 1: traction is to say, we don't know if a case 383 00:23:46,560 --> 00:23:50,359 Speaker 1: like that would have succeeded. It's possible that all the courts, 384 00:23:50,400 --> 00:23:53,880 Speaker 1: including the Supreme Court, would have said no, no, no, 385 00:23:55,080 --> 00:23:58,240 Speaker 1: you can't file a lawsuit like this because they didn't 386 00:23:58,280 --> 00:24:02,320 Speaker 1: rEFInd the rule. But they did was they actually esced 387 00:24:02,840 --> 00:24:06,800 Speaker 1: to a bad judicial ruling, so they didn't change anything. 388 00:24:07,200 --> 00:24:10,600 Speaker 1: When a judge enjoined the rule, then you're not allowed 389 00:24:10,680 --> 00:24:14,280 Speaker 1: to follow that rule anymore. You have to stop following 390 00:24:14,320 --> 00:24:16,520 Speaker 1: the rule. You have to go back to the status quo. 391 00:24:17,080 --> 00:24:20,199 Speaker 1: And so they did that, they didn't resis it, and 392 00:24:20,280 --> 00:24:23,879 Speaker 1: so that's the problem is Arizona was caught in a 393 00:24:24,000 --> 00:24:27,520 Speaker 1: catch twenty two about whether the right solution here was 394 00:24:27,560 --> 00:24:31,159 Speaker 1: to file a new lawsuit saying that this recision was 395 00:24:31,240 --> 00:24:36,720 Speaker 1: done improperly, or whether to intervene in the existing lawsuits 396 00:24:37,000 --> 00:24:39,919 Speaker 1: so that they could get this issue feed back up 397 00:24:39,960 --> 00:24:43,080 Speaker 1: to the Supreme Court about whether the public charge rule 398 00:24:43,240 --> 00:24:47,240 Speaker 1: was lawful or not. And this is where I think 399 00:24:47,320 --> 00:24:50,919 Speaker 1: the Supreme Court is stuffed because nobody knows what the 400 00:24:51,000 --> 00:24:55,960 Speaker 1: right solution is your argument was very laborious and confused 401 00:24:56,080 --> 00:25:00,199 Speaker 1: about what the right solution should have been. There, we'll 402 00:25:00,240 --> 00:25:03,440 Speaker 1: give us an idea where the justices stood. So there 403 00:25:03,520 --> 00:25:09,040 Speaker 1: was basically four different camps. One camp was you didn't 404 00:25:09,080 --> 00:25:11,320 Speaker 1: do anything about this, and that was sort of the 405 00:25:11,320 --> 00:25:15,120 Speaker 1: sort of major camp, um, there's nothing you can do here. 406 00:25:15,320 --> 00:25:19,639 Speaker 1: There was a second camp that said, maybe intervention is 407 00:25:19,680 --> 00:25:22,320 Speaker 1: the right move, but you should have done it in 408 00:25:22,720 --> 00:25:26,159 Speaker 1: the Seventh Circuit case, the Illinois case, because that's the 409 00:25:26,200 --> 00:25:30,600 Speaker 1: case where the injunction actually exists. And what's weird about 410 00:25:30,640 --> 00:25:32,320 Speaker 1: that is that seems to make a lot of sense, 411 00:25:32,359 --> 00:25:35,080 Speaker 1: but that's just not the case that's before the Supreme Court. 412 00:25:35,320 --> 00:25:37,639 Speaker 1: The men that we need to just list this case 413 00:25:38,000 --> 00:25:41,960 Speaker 1: and admit it just wasted everyone's time and then wait 414 00:25:42,040 --> 00:25:44,680 Speaker 1: for the Illinois case to come back up and literally 415 00:25:45,040 --> 00:25:49,160 Speaker 1: decide this exact same issue. And so that's possible. That's 416 00:25:49,200 --> 00:25:52,680 Speaker 1: what that's the most logical, easy way to solve this problem. 417 00:25:52,960 --> 00:25:55,200 Speaker 1: But it will literally have been that all of this 418 00:25:55,359 --> 00:25:58,600 Speaker 1: briefing and oral argument and time and expense and everything 419 00:25:58,680 --> 00:26:01,399 Speaker 1: was completely useless and this just was a waste of 420 00:26:01,480 --> 00:26:05,119 Speaker 1: time for everybody. But that is a possibility. That's the setting. 421 00:26:05,880 --> 00:26:08,560 Speaker 1: The third would be that they would say, in the future, 422 00:26:08,600 --> 00:26:11,159 Speaker 1: when something like this happened, you have to file a 423 00:26:11,200 --> 00:26:15,560 Speaker 1: brand new at A lawsuit administrative produe direct lawsuits that 424 00:26:15,640 --> 00:26:17,680 Speaker 1: says this is a this is a the fast so 425 00:26:18,280 --> 00:26:21,600 Speaker 1: improper recision without known as in common and so you 426 00:26:21,640 --> 00:26:24,720 Speaker 1: can't do things this way. That would be the third 427 00:26:25,880 --> 00:26:29,120 Speaker 1: way to do this, or the fourth way to do this, 428 00:26:29,280 --> 00:26:32,320 Speaker 1: which Justice Guard it to us seizing at with the 429 00:26:32,359 --> 00:26:35,200 Speaker 1: federal government, would be to say that, look, you can't 430 00:26:35,280 --> 00:26:39,120 Speaker 1: issue nationwide injunctions in the first place. To this district 431 00:26:39,119 --> 00:26:42,680 Speaker 1: court ruling wouldn't stand anyway, because you can, they shouldn't 432 00:26:42,680 --> 00:26:44,920 Speaker 1: have been able to issue a nationwide injunction. I don't 433 00:26:44,920 --> 00:26:46,720 Speaker 1: think they'll be able to go there because this case 434 00:26:46,760 --> 00:26:50,000 Speaker 1: doesn't even have the Illinois case in it, So it 435 00:26:50,040 --> 00:26:54,320 Speaker 1: would be two months judicial activism there. And that seems 436 00:26:54,359 --> 00:26:57,640 Speaker 1: to be the fourth solutions they're trying to be which 437 00:26:57,640 --> 00:26:59,480 Speaker 1: one they think it's going to happen, and so the 438 00:26:59,560 --> 00:27:02,399 Speaker 1: second on and the third one thing the most likely, 439 00:27:02,880 --> 00:27:06,840 Speaker 1: which is either that we wait till be the Illinois 440 00:27:06,920 --> 00:27:10,399 Speaker 1: case comes, or they should have filed a new a 441 00:27:10,520 --> 00:27:12,359 Speaker 1: p A lawsuit and they can go ahead and do 442 00:27:12,400 --> 00:27:14,960 Speaker 1: that now they want to. So let me ask you this, 443 00:27:15,560 --> 00:27:19,720 Speaker 1: does everyone agree that the Biden administration went about this 444 00:27:19,840 --> 00:27:22,920 Speaker 1: in the wrong way? I think out of the justice 445 00:27:22,920 --> 00:27:26,960 Speaker 1: there's probably about six of them thought that this was 446 00:27:27,160 --> 00:27:31,280 Speaker 1: kind of an irregular, creative, tricky way of doing things, 447 00:27:31,359 --> 00:27:35,280 Speaker 1: But nobody said it was illegal. People just stopped at 448 00:27:35,320 --> 00:27:39,479 Speaker 1: this thing created an imprecedented situation that needed to be 449 00:27:39,520 --> 00:27:42,840 Speaker 1: resolved so that there couldn't be these kinds of uh 450 00:27:43,040 --> 00:27:46,359 Speaker 1: collequive actions in the future with future administration, that there 451 00:27:46,359 --> 00:27:50,000 Speaker 1: would actually be some way for people who wanted to 452 00:27:50,080 --> 00:27:53,359 Speaker 1: defend an existing regulation to be able to do it. 453 00:27:53,720 --> 00:27:56,200 Speaker 1: And so the question is what mechanism will be created 454 00:27:56,240 --> 00:27:59,840 Speaker 1: to allow that the bind administration, if it goes through 455 00:28:00,320 --> 00:28:04,639 Speaker 1: the right procedural process, can resend this rule. Yes, and 456 00:28:04,720 --> 00:28:07,600 Speaker 1: that's that's another thing that the federal government was claiming 457 00:28:07,680 --> 00:28:11,040 Speaker 1: is that now the Biden administration has issued a new 458 00:28:11,119 --> 00:28:14,159 Speaker 1: public charge rule that just happened last and so we 459 00:28:14,200 --> 00:28:17,919 Speaker 1: should just forget everything else that happened and pretend that 460 00:28:18,000 --> 00:28:21,320 Speaker 1: this is now the recision and we're starting from that place. 461 00:28:21,720 --> 00:28:26,120 Speaker 1: So why is Arizona wasting time with this lawsuit when 462 00:28:26,160 --> 00:28:30,160 Speaker 1: the Biden administration is going to rescind the rule through 463 00:28:30,200 --> 00:28:33,639 Speaker 1: the regular process and institute a new rule. What's the 464 00:28:33,680 --> 00:28:36,440 Speaker 1: point of this. Two or three of the justices made 465 00:28:36,480 --> 00:28:39,360 Speaker 1: that point. Brier made that point, in my made that point, 466 00:28:39,640 --> 00:28:43,880 Speaker 1: and Taken made that point. The date of Arizona basically 467 00:28:43,880 --> 00:28:46,520 Speaker 1: wanted to be able to go batch the cords and 468 00:28:46,640 --> 00:28:52,600 Speaker 1: get an advisory opinion, essentially saying that the Trump administration 469 00:28:52,720 --> 00:28:55,719 Speaker 1: rule was legal, so that they could take that advisory 470 00:28:55,760 --> 00:28:59,200 Speaker 1: opinion and use it in any other forum to prevent 471 00:28:59,280 --> 00:29:03,160 Speaker 1: the Bible in the Lisperation from either invalidating that rule 472 00:29:03,640 --> 00:29:05,800 Speaker 1: or from putting in a new rule in the future. 473 00:29:06,520 --> 00:29:10,640 Speaker 1: To the point, and we've discussed this before, some justices 474 00:29:10,720 --> 00:29:14,080 Speaker 1: said it was unprecedented. Others said this happens all the time. 475 00:29:14,560 --> 00:29:19,640 Speaker 1: Arizona can't force the federal government to keep a rule 476 00:29:19,840 --> 00:29:22,920 Speaker 1: that the federal government doesn't want to. That's what happens 477 00:29:22,920 --> 00:29:25,960 Speaker 1: when administrations change. And yet it seems like in this 478 00:29:26,040 --> 00:29:29,920 Speaker 1: case and in the Return to Mexico case, that's just 479 00:29:30,000 --> 00:29:33,560 Speaker 1: what they're trying to do. Correct with one caveat, So 480 00:29:34,120 --> 00:29:38,520 Speaker 1: the issue isn't in Arizona force or not force the 481 00:29:38,600 --> 00:29:43,680 Speaker 1: federal government to have a particular rule. Everybody conceded that 482 00:29:43,760 --> 00:29:46,760 Speaker 1: the federal government has that prerogative to rEFInd the rule. 483 00:29:47,320 --> 00:29:50,440 Speaker 1: But the question is, does the federal government, if it 484 00:29:50,480 --> 00:29:54,840 Speaker 1: doesn't follow the actual pro feature that normally followed to 485 00:29:54,960 --> 00:29:59,240 Speaker 1: rEFInd the rule, is it able to resend the rule 486 00:29:59,720 --> 00:30:04,120 Speaker 1: by means of dismissing some lawsuits and keeping others and 487 00:30:04,200 --> 00:30:07,120 Speaker 1: with the ones that it keeps not allow people to 488 00:30:07,240 --> 00:30:11,080 Speaker 1: intervene in those lawsues to try to at least defend 489 00:30:11,520 --> 00:30:15,320 Speaker 1: the position of the prior administration. And so that's where 490 00:30:15,440 --> 00:30:20,320 Speaker 1: it gets a little bit complicated here, And from that perspective, 491 00:30:20,400 --> 00:30:22,760 Speaker 1: that's what the courts can have to decide is is 492 00:30:22,840 --> 00:30:27,160 Speaker 1: that a grievance that is so valid that you do 493 00:30:27,320 --> 00:30:30,200 Speaker 1: need to create an ability for safe they intervene there, 494 00:30:30,720 --> 00:30:34,280 Speaker 1: or is that grieving noted? But in the end it 495 00:30:34,320 --> 00:30:36,640 Speaker 1: doesn't matter because this is just something they can do, 496 00:30:37,240 --> 00:30:39,840 Speaker 1: and their solution is just to file a new lawsuit 497 00:30:40,280 --> 00:30:44,240 Speaker 1: saying that the new rule is arbitrary and camprecionate and 498 00:30:44,360 --> 00:30:47,360 Speaker 1: just leave it eva. And so maybe that's what they 499 00:30:47,400 --> 00:30:50,560 Speaker 1: can do in that situation, But that's what the courts 500 00:30:50,560 --> 00:30:53,040 Speaker 1: canna have to decide. And what you mean is just 501 00:30:53,600 --> 00:30:56,000 Speaker 1: that This is just a very rare set of fact, 502 00:30:56,080 --> 00:30:59,680 Speaker 1: which is that an administration things is there's some decisions 503 00:30:59,680 --> 00:31:03,160 Speaker 1: in your favor, there's some opposed, and then the court 504 00:31:03,200 --> 00:31:05,920 Speaker 1: moots out the ones that are opposed but keeps the 505 00:31:05,960 --> 00:31:08,520 Speaker 1: one that's in the favor. But that's it's just that 506 00:31:08,800 --> 00:31:12,840 Speaker 1: hot pattern that's new. But the changing of positions is 507 00:31:12,880 --> 00:31:16,600 Speaker 1: definitely not a new thing. After the Trump administration, after 508 00:31:16,680 --> 00:31:21,120 Speaker 1: four years of the Trump administration not following the Administrative 509 00:31:21,120 --> 00:31:23,920 Speaker 1: Procedures Act, I would think that all these questions would 510 00:31:23,960 --> 00:31:27,240 Speaker 1: have been answered by this time. You would have thought so. 511 00:31:27,480 --> 00:31:30,920 Speaker 1: But just in this one instinct prevents a new set 512 00:31:30,960 --> 00:31:34,040 Speaker 1: of fact. Now. I do think if what had happened 513 00:31:34,080 --> 00:31:37,440 Speaker 1: was that the Biden administration had entered into a settlement 514 00:31:37,920 --> 00:31:41,000 Speaker 1: with the plaintive, the court would have been much angrier 515 00:31:41,480 --> 00:31:43,480 Speaker 1: and would have said, way a second, there is so 516 00:31:43,560 --> 00:31:47,400 Speaker 1: much collusion here. We absolate the states get involved. But 517 00:31:47,680 --> 00:31:50,200 Speaker 1: that's not what happened here. There was not a settlement rate. 518 00:31:50,400 --> 00:31:53,480 Speaker 1: It was just that they agreed with the one court 519 00:31:54,000 --> 00:31:57,160 Speaker 1: that agreed with them, and then they mouted out all 520 00:31:57,160 --> 00:32:00,080 Speaker 1: the cases where the courts didn't agree with them. It 521 00:32:00,200 --> 00:32:03,400 Speaker 1: took guys that hadn't happened before, and so the question 522 00:32:03,520 --> 00:32:06,280 Speaker 1: is is not gonna be away and I mean you're 523 00:32:06,280 --> 00:32:08,440 Speaker 1: not gonna be able to intentionally ever be up. So 524 00:32:08,720 --> 00:32:12,960 Speaker 1: five it has to be accidental in every future case. 525 00:32:13,520 --> 00:32:16,800 Speaker 1: But in future cases where there's an administration that changes 526 00:32:17,240 --> 00:32:20,760 Speaker 1: and there's a version of opinion, then can you take 527 00:32:20,800 --> 00:32:23,760 Speaker 1: advantage of that to refined rules? And that's what this 528 00:32:23,880 --> 00:32:26,640 Speaker 1: is ultimately going to come down to. Thanks Leon for 529 00:32:26,720 --> 00:32:31,200 Speaker 1: helping us untangle that procedural mess. That's Leon Fresco of 530 00:32:31,280 --> 00:32:33,800 Speaker 1: Hollanden Knight. And that's it for this edition of The 531 00:32:33,800 --> 00:32:36,920 Speaker 1: Bloomberg Law Show. Remember you can always get the latest 532 00:32:37,000 --> 00:32:39,880 Speaker 1: legal news on our Bloomberg Law Podcast. You can find 533 00:32:39,880 --> 00:32:44,080 Speaker 1: them on Apple Podcasts, Spotify, and at www dot bloomberg 534 00:32:44,120 --> 00:32:47,960 Speaker 1: dot com, slash podcast, Slash Law, And remember to catch 535 00:32:47,960 --> 00:32:50,520 Speaker 1: The Bloomberg Law Show every week night at ten from 536 00:32:50,560 --> 00:32:53,800 Speaker 1: PM Wall Street Time. I'm June Blawsow, and you're listening 537 00:32:53,840 --> 00:32:54,440 Speaker 1: to Bloomberg