WEBVTT - Gay Rights at Issue in Case Over Wedding Websites 0:00:03.200 --> 0:00:07.960 This is Bloombird Law with June Brusso from Bloomberg Radio. 0:00:09.160 --> 0:00:12.399 Remember the Colorado baker who refused to make a cake 0:00:12.520 --> 0:00:16.560 for same sex couples because of his religious objections. Now 0:00:16.600 --> 0:00:20.520 a Colorado website designer doesn't want to create pages for 0:00:20.680 --> 0:00:24.120 same sex weddings for the same reason, and the Supreme 0:00:24.160 --> 0:00:27.639 Court is taking her appeal. Joining me is Steve Sanders, 0:00:27.680 --> 0:00:31.800 a professor at Indiana University's Mars School of Law. Steve, 0:00:31.840 --> 0:00:34.080 what was your reaction when you learned the court was 0:00:34.159 --> 0:00:38.479 taking this case? Well, night reaction was that the social 0:00:38.520 --> 0:00:43.279 conservative legal organization that has brought so many of these cases, 0:00:43.320 --> 0:00:48.040 so many of these religiously based challenges to LGBT rights laws, 0:00:48.400 --> 0:00:51.920 may finally, at long last, have found a winner. The 0:00:52.000 --> 0:00:57.280 circumstances are sufficiently different from the Masterpiece cake Shop case 0:00:57.360 --> 0:01:00.720 of several years ago that the fact of this case, 0:01:01.200 --> 0:01:04.919 combined with some changes in the court since the Masterpiece 0:01:04.920 --> 0:01:08.119 cake Shop case was decided to suggests to me that 0:01:08.200 --> 0:01:10.960 this one is going to be a tougher case and 0:01:11.040 --> 0:01:14.680 will be a case where the plaintiff here, the person 0:01:14.800 --> 0:01:18.400 challenging the law, is more likely to prevail. Let's go 0:01:18.480 --> 0:01:22.520 back to the Masterpiece cake shop case for a moment. 0:01:22.880 --> 0:01:26.400 So the court they're ruled in favor of the Colorado baker. 0:01:26.760 --> 0:01:29.399 But the court did it on very narrow grounds. Just 0:01:29.520 --> 0:01:32.120 explain what happened there, that's right. That was a twenty 0:01:32.200 --> 0:01:35.560 eighteen decision. So you had a baker and also Colorado 0:01:35.720 --> 0:01:38.160 that cases are coming from the same state. Oddly enough, 0:01:38.480 --> 0:01:40.800 you had a baker in Colorado who said, I am 0:01:40.840 --> 0:01:44.120 perfectly happy to serve gay people. I just won't provide 0:01:44.160 --> 0:01:47.040 a cake for a same sex wedding. And there was 0:01:47.080 --> 0:01:49.920 never any issue of the message on the cake or 0:01:50.000 --> 0:01:54.120 writing on the cake, even just a generically decorated wedding cake. 0:01:54.200 --> 0:01:56.240 He said, I can't provide that for a same sex 0:01:56.240 --> 0:02:00.320 wedding because essentially I speak through my cakes. Mike, cakes 0:02:00.320 --> 0:02:03.840 are my artistry, and the First Amendment prevents the State 0:02:03.840 --> 0:02:09.040 of Colorado from essentially common deering my artistry and forcing 0:02:09.040 --> 0:02:13.080 me to in effect endorse a wedding by providing a 0:02:13.160 --> 0:02:16.919 cake that I can't in good conscience endorse. People criticize 0:02:16.960 --> 0:02:19.639 that reasoning and said, look, a cake is a commercial product. 0:02:19.760 --> 0:02:21.880 Nobody goes to a wedding and thinks that you know, 0:02:21.919 --> 0:02:24.200 the baker has blessed this wedding when they look at 0:02:24.200 --> 0:02:28.240 the cake. But the court ended up dodging that First 0:02:28.280 --> 0:02:32.640 Amendment speech argument by ruling on narrower grounds. Essentially, it 0:02:32.800 --> 0:02:37.480 picked out some difficult and sort of sarcastic comments that 0:02:37.560 --> 0:02:40.720 had been made by the authorities in Colorado who had 0:02:40.760 --> 0:02:45.040 initially adjudicated that case. It was a state civil rights commission, 0:02:45.080 --> 0:02:48.480 and basically the court said that civil rights commission had 0:02:48.520 --> 0:02:53.320 shown hostility toward the Baker's religion. So, in essence, it 0:02:53.320 --> 0:02:55.200 was a way of saying he didn't get a fair hearing, 0:02:55.560 --> 0:02:58.840 his religion was treated with a sort of contempt by 0:02:58.880 --> 0:03:02.840 state officials, and that's enough to say he prevails on 0:03:03.040 --> 0:03:06.280 his claim that his free exercise religion was violated. But 0:03:06.400 --> 0:03:09.280 the court, in doing that void at having to decide 0:03:09.320 --> 0:03:12.600 the much more novel First Amendment theory that the Baker 0:03:12.639 --> 0:03:16.280 and his lawyers had put forward. Steve explain why the 0:03:16.360 --> 0:03:20.079 baker and the web designer are making free speech claims 0:03:20.280 --> 0:03:24.120 instead of free exercise claims, and explain in more depth 0:03:24.240 --> 0:03:28.120 what they sidestepped. Steve so that the Baker had invoked 0:03:28.520 --> 0:03:32.840 both the free exercise of religion and the freedom of 0:03:32.840 --> 0:03:35.960 speech to different parts of the First Amendment. The problem 0:03:36.120 --> 0:03:41.160 for religious challengers to civil rights laws is that the 0:03:41.240 --> 0:03:45.360 doctrine of the free exercise claws is relatively weak when 0:03:45.360 --> 0:03:48.880 it comes to challenging laws that are just general laws 0:03:48.920 --> 0:03:52.720 that apply to everybody, like civil rights laws. There was 0:03:52.760 --> 0:03:56.240 no evidence that the Baker's religion had been singled out 0:03:56.320 --> 0:04:01.760 or targeted for disadvantageous treatment, so the free exercise clause 0:04:01.840 --> 0:04:06.000 does not provide a very powerful weapon for attacking civil 0:04:06.080 --> 0:04:10.360 rights laws. That's why organizations like the legal group that 0:04:10.480 --> 0:04:14.320 represented both Jack Phillips, the baker, and now the web 0:04:14.360 --> 0:04:17.719 designer in the new case, have really gone to the 0:04:17.839 --> 0:04:20.840 part of the First Amendment that deals with speech, and 0:04:20.920 --> 0:04:25.360 particularly a line of cases called the compelled speech doctrine, 0:04:25.600 --> 0:04:29.880 which basically stand for the principle that government can't force 0:04:29.960 --> 0:04:33.800 you to express a message that you don't seek to express, 0:04:33.880 --> 0:04:37.080 that it would violate your conscience or just your political 0:04:37.120 --> 0:04:41.880 beliefs or your preferences to express. And the innovation here 0:04:42.320 --> 0:04:45.600 is that they've made the argument that the provider of 0:04:45.640 --> 0:04:48.600 a commercial product like a wedding cake or in this case, 0:04:48.640 --> 0:04:53.680 a web designer, that their speech, their creativity, their expression, 0:04:54.320 --> 0:04:58.599 is being compelled commandeered by the government when they have 0:04:58.800 --> 0:05:02.200 to provide a service US to a same sex wedding 0:05:02.320 --> 0:05:04.960 because they don't want to do that because it violates 0:05:05.000 --> 0:05:08.599 their religion. But their their claim is more about speech 0:05:08.680 --> 0:05:11.400 than about religion. In fact, in the case that the 0:05:11.440 --> 0:05:15.080 Supreme Court has now decided to hear, they have basically said, 0:05:15.200 --> 0:05:19.080 we're not interested in the free exercise clause arguments. We're 0:05:19.080 --> 0:05:22.640 not opening up that can of worms. Were just interested 0:05:22.720 --> 0:05:25.760 in the First Amendment speech arguments that you have to make. 0:05:26.480 --> 0:05:29.760 Steve explain why the baker and the web designer are 0:05:29.880 --> 0:05:34.560 making free speech claims instead of free exercise claims. The 0:05:34.680 --> 0:05:40.200 problem for religious challengers to civil rights laws is that 0:05:40.240 --> 0:05:44.239 the doctrine of the free exercise claus is relatively weak 0:05:44.400 --> 0:05:47.679 when it comes to challenging laws that are just general 0:05:47.760 --> 0:05:51.840 laws that apply to everybody, like civil rights laws. There 0:05:51.920 --> 0:05:55.240 was no evidence that the Baker's religion had been singled 0:05:55.279 --> 0:06:01.120 out or targeted for disadvantageous treatment. So that's why organizations 0:06:01.279 --> 0:06:04.400 like the legal group that represented both the baker and 0:06:04.440 --> 0:06:07.440 now the web designer in the new case have really 0:06:07.480 --> 0:06:10.360 gone to the part of the First Amendment that deals 0:06:10.400 --> 0:06:14.680 with speech, and particularly the principle that government can't force 0:06:14.760 --> 0:06:18.440 you to express a message that you don't seek to express, 0:06:18.520 --> 0:06:21.720 that it would violate your conscience or just your political 0:06:21.760 --> 0:06:26.520 beliefs or your preferences to express. And the innovation here 0:06:26.920 --> 0:06:30.240 is that they've made the argument that the provider of 0:06:30.240 --> 0:06:33.239 a commercial product, like a wedding cake or in this case, 0:06:33.279 --> 0:06:37.960 a web designer, that their speech, their creativity, their expression 0:06:38.360 --> 0:06:42.479 is being compelled, commandeered by the government when they have 0:06:42.640 --> 0:06:46.400 to provide a service to a same sex wedding because 0:06:46.800 --> 0:06:49.240 they don't want to do that because it violates their religion. 0:06:49.839 --> 0:06:54.039 It sounds like the web designer case is exactly the 0:06:54.080 --> 0:06:58.320 same as the baker's case. What's different about it? It's 0:06:58.360 --> 0:07:02.839 a little different because, you know, again Jack Phillips basically said, 0:07:02.920 --> 0:07:06.520 you know, I'm no different them a web designer or 0:07:06.560 --> 0:07:09.080 a singer or somebody. You know, I I use my 0:07:09.279 --> 0:07:14.320 artistry in my work. And again, the I think a 0:07:14.360 --> 0:07:17.080 lot of people said, well, you know, yes, the government 0:07:17.120 --> 0:07:21.000 couldn't force him to bake a rainbow colored cake that 0:07:21.120 --> 0:07:24.400 said God bless this gay wedding, that that would be 0:07:24.440 --> 0:07:28.160 going too far. But he wouldn't even provide just a 0:07:28.200 --> 0:07:32.680 generic wedding cake to a same sex wedding. He still said, 0:07:33.240 --> 0:07:36.520 I speak through my artistry and and and you know, 0:07:36.600 --> 0:07:39.040 many people sort of disagreed and said, well, you can 0:07:39.080 --> 0:07:43.080 only go so far and saying a commercial product like 0:07:43.120 --> 0:07:48.000 a wedding cake represents your speech. But a web designer 0:07:48.280 --> 0:07:51.920 is different. I mean, the web design for this wedding 0:07:52.040 --> 0:07:56.800 is presumably going to celebrate the couple, a same sex couple. 0:07:56.960 --> 0:08:00.680 I should add, this case is being brought by the 0:08:00.720 --> 0:08:04.200 web designer on the anticipation that she will be charged 0:08:04.240 --> 0:08:07.960 with violating the law if she goes through with her plans. 0:08:08.320 --> 0:08:11.400 There is actually no one that she has denied service too. 0:08:12.000 --> 0:08:15.800 But she's saying, look, you know, inherently, if I design 0:08:15.880 --> 0:08:20.080 a website for a wedding that is going to celebrate 0:08:20.160 --> 0:08:24.040 that particular wedding, it's going to send a message about 0:08:24.120 --> 0:08:27.360 a same sex couple that is one of joy and 0:08:27.440 --> 0:08:31.160 celebration and endorsement. And I can't do that as a 0:08:31.160 --> 0:08:35.880 matter of my conscience. So it's more like the situation, 0:08:35.960 --> 0:08:39.280 which was not the case in Masterpiece. But where if 0:08:39.320 --> 0:08:43.000 if a if if if a customer requested a specific 0:08:43.200 --> 0:08:46.920 message on a cake, I think many people were more 0:08:46.960 --> 0:08:50.920 willing to say Okay, that involves the baker's conscience and 0:08:50.960 --> 0:08:53.640 he can't be forced to do that. That's why I 0:08:53.679 --> 0:08:57.640 think the wedding web page designer is a much more 0:08:57.679 --> 0:09:02.920 attractive plaintiff for that argument, because a web design a 0:09:02.960 --> 0:09:07.720 website is inherently a medium of communication in a way 0:09:07.800 --> 0:09:11.160 that that wedding cake is the best kind of disputable 0:09:11.400 --> 0:09:15.320 whether that's a medium of communication or not. A website is, 0:09:15.400 --> 0:09:17.760 and inevitably this website is not going to be some 0:09:17.880 --> 0:09:20.200 generic thing. It's going to have pictures of the couple 0:09:20.320 --> 0:09:24.280 and again endorse the idea in some sense that this 0:09:24.400 --> 0:09:27.400 gave the same sex wedding is a good thing, and 0:09:27.760 --> 0:09:32.360 that's what the web designer says. Look in good conscience. Respectfully, 0:09:32.480 --> 0:09:35.320 I just can't do that. I will refer you to 0:09:35.360 --> 0:09:37.440 somebody else who can do that. If you're a gay 0:09:37.480 --> 0:09:40.319 person who wants a website for your birthday party, I'm 0:09:40.360 --> 0:09:43.400 happy to do that. Um. What what she's saying is, 0:09:43.480 --> 0:09:46.800 I can't get on board with the idea of using 0:09:46.920 --> 0:09:54.120 my writing, artistic skills, technical skills to create something which 0:09:54.320 --> 0:10:00.160 communicates a message of approval and endorsement and celebration for 0:10:00.280 --> 0:10:04.600 something that violates my religious conscience. So the ten Circuit 0:10:04.679 --> 0:10:08.000 ruled against the web designer, and the Supreme Court often 0:10:08.080 --> 0:10:12.040 takes cases in order to reverse the results. And the 0:10:12.080 --> 0:10:14.960 Court has changed a great deal since the Masterpiece Cake 0:10:15.000 --> 0:10:19.280 Shop case. Two justices who championed gay rights, the late 0:10:19.360 --> 0:10:23.440 Justice Ruth Bader Ginsburg and Anthony Kennedy, are no longer 0:10:23.480 --> 0:10:26.440 on the court. Do those factors point to what the 0:10:26.480 --> 0:10:29.000 result may be in this case? I think they do 0:10:29.040 --> 0:10:31.760 it because of the way the Court chose to resolve 0:10:31.800 --> 0:10:34.439 the Masterpiece Cake Shop case that was a seven to 0:10:34.600 --> 0:10:37.640 two decisions. Even some of the more liberal justices such 0:10:37.640 --> 0:10:41.280 as Justice Kagan and Justice Brian joined the outcome theres 0:10:41.280 --> 0:10:44.800 So we don't know what Briar and Kagan would have 0:10:44.920 --> 0:10:48.600 done on those pure First Amendment speech questions that the 0:10:48.640 --> 0:10:52.400 Court didn't adjudicate. But the Court is more conservative than 0:10:52.440 --> 0:10:55.600 it was. Justice Sparitt is sort of known to be 0:10:55.880 --> 0:11:01.040 especially interested in and sensitive to questions of religious liberty, 0:11:01.360 --> 0:11:04.000 and so I think, yes, it does make a difference 0:11:04.040 --> 0:11:07.320 that it's a somewhat more conservative court. I don't know 0:11:07.360 --> 0:11:10.040 that it makes a huge difference, because again, we didn't 0:11:10.040 --> 0:11:13.440 really get a decision on the same question as Masterpiece 0:11:13.480 --> 0:11:15.720 it's not as though the court is being asked to 0:11:15.760 --> 0:11:20.880 now reconsider something it decided in that case, but unbalanced. Yes, 0:11:20.920 --> 0:11:24.640 it is an even more conservative court, and this, again, 0:11:24.679 --> 0:11:29.120 I think, is a more attractive vehicle if you're going 0:11:29.200 --> 0:11:32.760 to challenge gay rights laws on the basis of a 0:11:32.800 --> 0:11:36.440 First Amendment claim of right. So now let's turn to 0:11:37.040 --> 0:11:42.320 another issue involving transgender bathroom rates. What is the issue 0:11:42.360 --> 0:11:46.000 in this case before the Eleventh Circuit Court of Appeals. 0:11:46.720 --> 0:11:50.520 Law is really now grappling in a very serious way 0:11:50.600 --> 0:11:55.480 with the different forms that discrimination against transgender people can take. 0:11:55.520 --> 0:11:58.199 That there have been cases about employment, there have been 0:11:58.240 --> 0:12:00.800 cases about the right to medical care, and there have 0:12:00.920 --> 0:12:05.720 been cases about access to certain gendered public facilities such 0:12:05.720 --> 0:12:09.480 as bathrooms and locker rooms. This case involves a high 0:12:09.480 --> 0:12:13.960 school student who was anatomically and at birth assigned the 0:12:14.240 --> 0:12:18.840 gender of female, who transitioned and now identifies as a 0:12:18.880 --> 0:12:22.880 gender identity of male, presents to the world as a male, 0:12:23.040 --> 0:12:27.960 is undergoing medical care to facilitate a gender transition to 0:12:28.080 --> 0:12:31.680 being male, and this student said, I am male. That 0:12:31.840 --> 0:12:34.559 is my identity. I dress as a male. I feel 0:12:34.600 --> 0:12:36.760 I am a male, and so I should be able 0:12:36.800 --> 0:12:39.840 to use the male washroom at school, in the male 0:12:40.040 --> 0:12:42.880 locker room, that's who I am. And even though it's 0:12:43.000 --> 0:12:47.080 different from my anatomical or the sex on my birth certificate, 0:12:47.400 --> 0:12:51.280 how I identify now is what matters. In a similar 0:12:51.320 --> 0:12:55.560 case involving of Virginia high school student, the Fourth Circuit 0:12:55.600 --> 0:12:59.360 Court of Appeals basically agreed and said in not letting 0:12:59.400 --> 0:13:03.200 that student use the facilities that were consistent with his 0:13:03.360 --> 0:13:07.360 gender identity, in saying, you have to use a separate, 0:13:07.440 --> 0:13:11.680 private bathroom, that's our way of accommodating you, the Fourth 0:13:11.679 --> 0:13:15.520 Circuit said, in that case, a transgender boys writes under 0:13:15.559 --> 0:13:20.079 both the Constitution and federal sex discrimination law type of 0:13:20.160 --> 0:13:23.880 nine were violated, and so here in Florida, involving another 0:13:23.920 --> 0:13:27.760 case involving a transgender boy, the lower courts and the 0:13:27.840 --> 0:13:30.880 Court of Appeals had come to the same conclusion. Had 0:13:30.920 --> 0:13:35.240 basically said, in not allowing this student to express their 0:13:35.360 --> 0:13:40.240 gender identity and use facilities consistent with their gender identity, 0:13:40.480 --> 0:13:44.360 it was a form of discrimination that violated the anti 0:13:44.440 --> 0:13:49.359 sex discrimination provisions of both Title nine and the Constitution's 0:13:49.400 --> 0:13:54.559 Equal Protection clus But the Full leven Circuit decided to 0:13:54.679 --> 0:13:58.439 rehear the case on bank and it's a court where 0:13:58.520 --> 0:14:04.200 conservative judges out number liberal judges. The hearing that took place, 0:14:04.200 --> 0:14:08.240 the arguments that took place, suggested that this full on 0:14:08.480 --> 0:14:12.360 bunk court maybe coming to a different conclusion than the 0:14:12.400 --> 0:14:16.160 panel had come to, and might decide either that the 0:14:16.240 --> 0:14:20.560 school is entitled to require students to use one facility 0:14:20.680 --> 0:14:23.360 or the other boys or girls based on their anatomical 0:14:23.480 --> 0:14:26.720 sex or their sex at birth, or the court might 0:14:26.840 --> 0:14:31.200 say letting them use a private, gender neutral bathroom is 0:14:31.240 --> 0:14:34.920 a sufficient accommodation, that we not only have to worry 0:14:34.960 --> 0:14:38.600 about the rights and the dignity of the transgender student, 0:14:38.920 --> 0:14:42.200 but we also have to be concerned about the privacy 0:14:42.560 --> 0:14:46.120 concerns that other students might have, and that cases like 0:14:46.200 --> 0:14:49.760 this call for a more delicate balancing than say, an 0:14:49.760 --> 0:14:53.160 employer who simply wants to fire an adult transgender person 0:14:53.280 --> 0:14:56.680 from a job. So I think we're seeing some tension there. 0:14:57.160 --> 0:15:01.040 If the eleven Circuit rules in favor of the school 0:15:01.080 --> 0:15:04.520 here and against the transgender student, that would create a 0:15:04.560 --> 0:15:06.920 split in the circuits. Would you say the Supreme Court 0:15:06.920 --> 0:15:11.240 has been avoiding the transgender bathroom issue so far? The 0:15:11.320 --> 0:15:15.360 conventional wisdom among Supreme Court litigators is that a circuit 0:15:15.520 --> 0:15:18.680 split where you know, one federal court takes one view, 0:15:18.720 --> 0:15:22.000 another federal court takes another view. That that is potentially 0:15:22.040 --> 0:15:25.480 the best ticket to the Supreme Court, because that then 0:15:25.560 --> 0:15:28.640 you've got federal law means different things in different parts 0:15:28.680 --> 0:15:31.160 of the country. UM, I don't know that. I'd say 0:15:31.200 --> 0:15:33.320 there's a lot of evidence the Supreme Court has been 0:15:33.360 --> 0:15:36.800 avoiding the issue. The Supreme Court did decline to grant 0:15:36.920 --> 0:15:41.040 sert in the Virginia case. I mentioned McGavin grim case, 0:15:41.160 --> 0:15:44.280 but again, that was a case that ruled in favor 0:15:44.320 --> 0:15:47.680 of the student. It didn't invalidate or strike down any law, 0:15:47.880 --> 0:15:51.000 just said that the bathroom policy as to that student 0:15:51.120 --> 0:15:55.200 was unconstitutional. That wasn't necessarily a case that was crying 0:15:55.240 --> 0:15:57.840 out for the Supreme Court's review. In fact, it might 0:15:57.880 --> 0:16:00.760 have been kind of extraordinary if the Court had taken that. 0:16:01.320 --> 0:16:04.560 A circuit split where you have two different courts looking 0:16:04.560 --> 0:16:08.240 at essentially the same set of facts and coming to 0:16:08.360 --> 0:16:13.560 different conclusions under federal constitutional and and statutory law, that 0:16:13.760 --> 0:16:16.440 is probably something that would be harder for the Supreme 0:16:16.480 --> 0:16:20.960 Court to ignore. Thanks Steve. That's Steve Sanders of Indiana 0:16:21.080 --> 0:16:27.120 University's Moral School of Law. Some Supreme Court gentices appeared 0:16:27.120 --> 0:16:30.880 annoyed with how the Biden administration rescinded a hot button 0:16:30.960 --> 0:16:35.200 Trump era immigration policy as they wrestle with the tangled 0:16:35.280 --> 0:16:38.680 legal aftermath and what to do about it. The concerns 0:16:38.720 --> 0:16:43.720 crossed ideological lines at oral arguments on Wednesday overhandling of 0:16:43.720 --> 0:16:47.880 the so called public charge rule. Joining me is Leon Fresco, 0:16:48.040 --> 0:16:51.840 a partner at Hollandon Knight Leon. This gets awfully confusing, 0:16:52.480 --> 0:16:56.000 So start by explaining the issue. The substantive issue that 0:16:56.400 --> 0:17:01.160 precipitated the litigation was a two thousand, nineteen public Charge 0:17:01.240 --> 0:17:04.800 rules that was issued by President Trump. And what the 0:17:04.880 --> 0:17:07.479 public charge rule did was as followed. There has been 0:17:07.520 --> 0:17:10.800 a law for hundreds of years, literally in our statute 0:17:11.240 --> 0:17:13.520 that says that a person is not allowed to get 0:17:13.600 --> 0:17:17.159 immigration status in the United States if they're likely to 0:17:17.200 --> 0:17:20.399 become a public charge. That's all it said. And so 0:17:20.560 --> 0:17:22.320 then the question is, well, what does that mean? What 0:17:22.359 --> 0:17:23.960 does it mean that you're going to be dependent on 0:17:24.119 --> 0:17:28.040 the state. And so the Trump administration decided to issue 0:17:28.040 --> 0:17:30.399 a regulation that would put a lot for beasts of 0:17:30.600 --> 0:17:35.280 those bones, and the regulations that they put in essentially 0:17:35.320 --> 0:17:38.520 said something along the lines of if you've ever received 0:17:38.560 --> 0:17:43.000 any cash assistance from any state or local government which 0:17:43.040 --> 0:17:45.320 were new that was not previously in the law, you 0:17:45.359 --> 0:17:49.320 would be considered a public charge. But also it added 0:17:49.400 --> 0:17:53.240 these nebulous fasters that could be considered that had never 0:17:53.320 --> 0:17:56.080 been considered before, such as the age of the person, 0:17:56.640 --> 0:18:00.560 their still level, their knowledge of English at veteran That 0:18:00.600 --> 0:18:03.520 would allow an adjudicator, on a case by case basis 0:18:03.560 --> 0:18:06.439 to decide if someone was likely to become a public 0:18:06.520 --> 0:18:09.800 charge even if they had never collected previously any bede 0:18:09.800 --> 0:18:13.119 cads from the US government. And so as soon as 0:18:13.119 --> 0:18:16.320 that rule came out, states across the country and cities 0:18:16.960 --> 0:18:21.160 uh to the federal government and said we don't want 0:18:21.200 --> 0:18:24.040 this public charge rule to go into effect. And that 0:18:24.160 --> 0:18:28.280 litigation was going on, and the government was winning the 0:18:28.359 --> 0:18:30.679 litigation in the Supreme Court. They were losing in the 0:18:30.720 --> 0:18:33.760 lower court, but they were winning it in the Supreme Court, 0:18:34.200 --> 0:18:35.959 and it looked like all of it was going to 0:18:36.000 --> 0:18:41.360 be dispensed with when Joe Biden gets elected and says, well, 0:18:41.400 --> 0:18:43.960 I want to get rid of this policy. And there's 0:18:44.080 --> 0:18:48.399 one court whose decision hasn't been reversed by the Supreme Court, 0:18:48.840 --> 0:18:51.800 and so that's where this case begins. The states here, 0:18:52.000 --> 0:18:56.560 Republican led states, are trying to basically fight for a 0:18:56.720 --> 0:19:01.000 rule that the Biden administration has abandoned. Right, So here's 0:19:01.040 --> 0:19:05.040 what happened. So, once the Biden administration gets elected and 0:19:05.080 --> 0:19:07.639 goes into power, they say, we want to get rid 0:19:07.680 --> 0:19:11.000 of this public charge rule. And so ordinarily, if there's 0:19:11.040 --> 0:19:13.560 a rule that you want to get rid of that 0:19:14.040 --> 0:19:16.239 is in effect, you have to do with all they 0:19:16.400 --> 0:19:19.240 notice a precision of the rule, and then that has 0:19:19.280 --> 0:19:22.200 to go through public comment for thirty or sixty days, 0:19:22.480 --> 0:19:25.200 you have to give reasons for why you're resending the rule, 0:19:25.600 --> 0:19:29.600 and then you finally resend the rule. In this case, 0:19:29.800 --> 0:19:33.399 that didn't happen because there was one court in Illinois, 0:19:33.480 --> 0:19:36.399 in the District of Illinois that had a ruling that 0:19:36.520 --> 0:19:39.120 was still in effect when the Biden administration came into 0:19:39.160 --> 0:19:42.359 power that said that this Trump public charge rule was 0:19:42.520 --> 0:19:45.159 unlawful and could not go into effect and had a 0:19:45.240 --> 0:19:48.920 nacent wide injunction. And that ruling was for a different 0:19:49.000 --> 0:19:52.840 reason than the Supreme Court who had ruled in other 0:19:52.960 --> 0:19:56.360 cases that the public charge rule could go into effect. 0:19:56.440 --> 0:19:59.600 In cases of many other circuits that have been filed 0:19:59.720 --> 0:20:03.400 and So what the Biden administration did is it said, 0:20:03.480 --> 0:20:07.280 here's what we're gonna do. We are going to say 0:20:07.359 --> 0:20:10.240 we're dismissing all of these cases. So there was a 0:20:10.320 --> 0:20:13.199 case coming into Supreme Court where oral argument was going 0:20:13.240 --> 0:20:16.120 to happen nine Circuit case. There was cases all around 0:20:16.119 --> 0:20:19.720 the country. And what the Biden administration said is these 0:20:19.760 --> 0:20:23.720 people seeing us California, the cities and the localities, we 0:20:23.800 --> 0:20:26.680 agree with them. And so what we will say is, look, 0:20:26.680 --> 0:20:29.000 we're not going to defend this case. We're not gonna 0:20:29.080 --> 0:20:33.080 defend this public charge rules, and so dismiss your cases. 0:20:33.080 --> 0:20:36.560 So everybody dismisses their cases if Copreme Court case gets 0:20:36.640 --> 0:20:39.320 its mess. And what the Biden administration says is this 0:20:39.400 --> 0:20:42.240 public charge rule is no longer in effect because the 0:20:42.320 --> 0:20:46.399 only case that has not been dismissed is the Illinois case. 0:20:46.480 --> 0:20:49.240 And in the Illinois case, we locked. We were enjoying 0:20:49.480 --> 0:20:53.160 from putting in this rule. And so thus the state 0:20:53.200 --> 0:20:56.840 of play before Arizona and other states get involved, they 0:20:56.880 --> 0:21:00.240 then see that this offen Wait a second, the public 0:21:00.320 --> 0:21:04.160 charge rule has been invalidated through this interesting method where 0:21:04.160 --> 0:21:07.199 all the lawsuits were dismissed except the one where the 0:21:07.200 --> 0:21:10.520 federal government laws that can't be right. We need to 0:21:10.560 --> 0:21:14.120 revive one of these other lawsuits where we were winning 0:21:14.600 --> 0:21:17.080 so we can bring it back to the Supreme Court 0:21:17.520 --> 0:21:20.040 and we can win. And even if the federal government 0:21:20.080 --> 0:21:22.720 doesn't want to defend this, we as the state, should 0:21:22.760 --> 0:21:26.120 be allowed to defend this. So Arizona goes to both 0:21:26.160 --> 0:21:29.560 the Ninth Ticket and the Seventh Circuit, which is Illinois, 0:21:29.800 --> 0:21:32.879 and says we want to intervene, meaning we want to 0:21:32.960 --> 0:21:35.560 take the plate of the federal government so that we 0:21:35.640 --> 0:21:39.600 can defend the Trump public charge regulation. And the Ninth 0:21:39.600 --> 0:21:43.600 Circuit says, no, you can't do this because one the 0:21:43.640 --> 0:21:46.840 case has already been dismissed. It's too late. And to 0:21:47.840 --> 0:21:50.800 this injunction that we had in place was only for 0:21:50.920 --> 0:21:55.280 California and Washington anyway, it wasn't a nation wide injunction case. 0:21:55.840 --> 0:21:58.240 And so Arizona, you have nothing to do with this. 0:21:58.440 --> 0:22:01.639 So why are you even involved. You're not being harmed 0:22:01.640 --> 0:22:04.760 by this case. And so that's the issue that goes 0:22:04.880 --> 0:22:07.199 up to the Supreme Court. And where yesterday there was 0:22:07.200 --> 0:22:10.680 an argument about whether the Ninth Circuit should have permitted 0:22:10.680 --> 0:22:14.240 Arizona to resuss and take the Ninth TA case and 0:22:14.520 --> 0:22:16.960 bring it back to the Supreme Court for a decision. 0:22:17.280 --> 0:22:22.160 So it struck me that some of the justices were, 0:22:22.200 --> 0:22:26.239 you know, annoyed with what the Biden administration did. So 0:22:26.280 --> 0:22:29.840 you had Justice Elena Kagan saying the Supreme Court shouldn't 0:22:29.880 --> 0:22:33.760 be green lighting that behavior for your administration or any 0:22:33.800 --> 0:22:37.959 other administration. Chief Justice Roberts saying it would be really 0:22:38.040 --> 0:22:42.800 quite a license for collusive action for any incoming administration 0:22:42.840 --> 0:22:46.359 to change the rules. Then there were other justices who said, 0:22:46.800 --> 0:22:51.320 you know, administrations change and the rules change. Clarence Thomas 0:22:51.359 --> 0:22:54.119 that I've been through five administrations, the rules change, So 0:22:54.280 --> 0:22:58.280 explain how the justices sort of saw this. So the 0:22:58.400 --> 0:23:01.720 issue comes down to this. I think there was a 0:23:01.960 --> 0:23:06.400 contented that the idea way that you would normally want 0:23:06.440 --> 0:23:09.399 to handle something like what happened here would be to 0:23:09.560 --> 0:23:15.240 file a brand new lawsuit against the federal government that says, 0:23:15.320 --> 0:23:20.920 we don't like the way you retended this rule because 0:23:20.960 --> 0:23:23.600 you did it in an illegal way. You should have 0:23:23.680 --> 0:23:27.680 gone through the normal recission process and not do this 0:23:28.119 --> 0:23:31.320 funky thing you did where you dismissed all the cases 0:23:31.400 --> 0:23:33.960 you didn't like and you kept the one case you 0:23:34.040 --> 0:23:39.480 did like. So that's what the justices wanted. But where 0:23:39.600 --> 0:23:43.840 the Arizona Solicitor General really made a little bit of 0:23:43.960 --> 0:23:46.480 traction is to say, we don't know if a case 0:23:46.560 --> 0:23:50.359 like that would have succeeded. It's possible that all the courts, 0:23:50.400 --> 0:23:53.880 including the Supreme Court, would have said no, no, no, 0:23:55.080 --> 0:23:58.240 you can't file a lawsuit like this because they didn't 0:23:58.280 --> 0:24:02.320 rEFInd the rule. But they did was they actually esced 0:24:02.840 --> 0:24:06.800 to a bad judicial ruling, so they didn't change anything. 0:24:07.200 --> 0:24:10.600 When a judge enjoined the rule, then you're not allowed 0:24:10.680 --> 0:24:14.280 to follow that rule anymore. You have to stop following 0:24:14.320 --> 0:24:16.520 the rule. You have to go back to the status quo. 0:24:17.080 --> 0:24:20.199 And so they did that, they didn't resis it, and 0:24:20.280 --> 0:24:23.879 so that's the problem is Arizona was caught in a 0:24:24.000 --> 0:24:27.520 catch twenty two about whether the right solution here was 0:24:27.560 --> 0:24:31.159 to file a new lawsuit saying that this recision was 0:24:31.240 --> 0:24:36.720 done improperly, or whether to intervene in the existing lawsuits 0:24:37.000 --> 0:24:39.919 so that they could get this issue feed back up 0:24:39.960 --> 0:24:43.080 to the Supreme Court about whether the public charge rule 0:24:43.240 --> 0:24:47.240 was lawful or not. And this is where I think 0:24:47.320 --> 0:24:50.919 the Supreme Court is stuffed because nobody knows what the 0:24:51.000 --> 0:24:55.960 right solution is your argument was very laborious and confused 0:24:56.080 --> 0:25:00.199