Speaker 1: This is Bloombird Law with June Brusso from Bloomberg Radio.
Speaker 1: Remember the Colorado baker who refused to make a cake
Speaker 1: for same sex couples because of his religious objections. Now
Speaker 1: a Colorado website designer doesn't want to create pages for
Speaker 1: same sex weddings for the same reason, and the Supreme
Speaker 1: Court is taking her appeal. Joining me is Steve Sanders,
Speaker 1: a professor at Indiana University's Mars School of Law. Steve,
Speaker 1: what was your reaction when you learned the court was
Speaker 1: taking this case? Well, night reaction was that the social
Speaker 1: conservative legal organization that has brought so many of these cases,
Speaker 1: so many of these religiously based challenges to LGBT rights laws,
Speaker 1: may finally, at long last, have found a winner. The
Speaker 1: circumstances are sufficiently different from the Masterpiece cake Shop case
Speaker 1: of several years ago that the fact of this case,
Speaker 1: combined with some changes in the court since the Masterpiece
Speaker 1: cake Shop case was decided to suggests to me that
Speaker 1: this one is going to be a tougher case and
Speaker 1: will be a case where the plaintiff here, the person
Speaker 1: challenging the law, is more likely to prevail. Let's go
Speaker 1: back to the Masterpiece cake shop case for a moment.
Speaker 1: So the court they're ruled in favor of the Colorado baker.
Speaker 1: But the court did it on very narrow grounds. Just
Speaker 1: explain what happened there, that's right. That was a twenty
Speaker 1: eighteen decision. So you had a baker and also Colorado
Speaker 1: that cases are coming from the same state. Oddly enough,
Speaker 1: you had a baker in Colorado who said, I am
Speaker 1: perfectly happy to serve gay people. I just won't provide
Speaker 1: a cake for a same sex wedding. And there was
Speaker 1: never any issue of the message on the cake or
Speaker 1: writing on the cake, even just a generically decorated wedding cake.
Speaker 1: He said, I can't provide that for a same sex
Speaker 1: wedding because essentially I speak through my cakes. Mike, cakes
Speaker 1: are my artistry, and the First Amendment prevents the State
Speaker 1: of Colorado from essentially common deering my artistry and forcing
Speaker 1: me to in effect endorse a wedding by providing a
Speaker 1: cake that I can't in good conscience endorse. People criticize
Speaker 1: that reasoning and said, look, a cake is a commercial product.
Speaker 1: Nobody goes to a wedding and thinks that you know,
Speaker 1: the baker has blessed this wedding when they look at
Speaker 1: the cake. But the court ended up dodging that First
Speaker 1: Amendment speech argument by ruling on narrower grounds. Essentially, it
Speaker 1: picked out some difficult and sort of sarcastic comments that
Speaker 1: had been made by the authorities in Colorado who had
Speaker 1: initially adjudicated that case. It was a state civil rights commission,
Speaker 1: and basically the court said that civil rights commission had
Speaker 1: shown hostility toward the Baker's religion. So, in essence, it
Speaker 1: was a way of saying he didn't get a fair hearing,
Speaker 1: his religion was treated with a sort of contempt by
Speaker 1: state officials, and that's enough to say he prevails on
Speaker 1: his claim that his free exercise religion was violated. But
Speaker 1: the court, in doing that void at having to decide
Speaker 1: the much more novel First Amendment theory that the Baker
Speaker 1: and his lawyers had put forward. Steve explain why the
Speaker 1: baker and the web designer are making free speech claims
Speaker 1: instead of free exercise claims, and explain in more depth
Speaker 1: what they sidestepped. Steve so that the Baker had invoked
Speaker 1: both the free exercise of religion and the freedom of
Speaker 1: speech to different parts of the First Amendment. The problem
Speaker 1: for religious challengers to civil rights laws is that the
Speaker 1: doctrine of the free exercise claws is relatively weak when
Speaker 1: it comes to challenging laws that are just general laws
Speaker 1: that apply to everybody, like civil rights laws. There was
Speaker 1: no evidence that the Baker's religion had been singled out
Speaker 1: or targeted for disadvantageous treatment, so the free exercise clause
Speaker 1: does not provide a very powerful weapon for attacking civil
Speaker 1: rights laws. That's why organizations like the legal group that
Speaker 1: represented both Jack Phillips, the baker, and now the web
Speaker 1: designer in the new case, have really gone to the
Speaker 1: part of the First Amendment that deals with speech, and
Speaker 1: particularly a line of cases called the compelled speech doctrine,
Speaker 1: which basically stand for the principle that government can't force
Speaker 1: you to express a message that you don't seek to express,
Speaker 1: that it would violate your conscience or just your political
Speaker 1: beliefs or your preferences to express. And the innovation here
Speaker 1: is that they've made the argument that the provider of
Speaker 1: a commercial product like a wedding cake or in this case,
Speaker 1: a web designer, that their speech, their creativity, their expression,
Speaker 1: is being compelled commandeered by the government when they have
Speaker 1: to provide a service US to a same sex wedding
Speaker 1: because they don't want to do that because it violates
Speaker 1: their religion. But their their claim is more about speech
Speaker 1: than about religion. In fact, in the case that the
Speaker 1: Supreme Court has now decided to hear, they have basically said,
Speaker 1: we're not interested in the free exercise clause arguments. We're
Speaker 1: not opening up that can of worms. Were just interested
Speaker 1: in the First Amendment speech arguments that you have to make.
Speaker 1: Steve explain why the baker and the web designer are
Speaker 1: making free speech claims instead of free exercise claims. The
Speaker 1: problem for religious challengers to civil rights laws is that
Speaker 1: the doctrine of the free exercise claus is relatively weak
Speaker 1: when it comes to challenging laws that are just general
Speaker 1: laws that apply to everybody, like civil rights laws. There
Speaker 1: was no evidence that the Baker's religion had been singled
Speaker 1: out or targeted for disadvantageous treatment. So that's why organizations
Speaker 1: like the legal group that represented both the baker and
Speaker 1: now the web designer in the new case have really
Speaker 1: gone to the part of the First Amendment that deals
Speaker 1: with speech, and particularly the principle that government can't force
Speaker 1: you to express a message that you don't seek to express,
Speaker 1: that it would violate your conscience or just your political
Speaker 1: beliefs or your preferences to express. And the innovation here
Speaker 1: is that they've made the argument that the provider of
Speaker 1: a commercial product, like a wedding cake or in this case,
Speaker 1: a web designer, that their speech, their creativity, their expression
Speaker 1: is being compelled, commandeered by the government when they have
Speaker 1: to provide a service to a same sex wedding because
Speaker 1: they don't want to do that because it violates their religion.
Speaker 1: It sounds like the web designer case is exactly the
Speaker 1: same as the baker's case. What's different about it? It's
Speaker 1: a little different because, you know, again Jack Phillips basically said,
Speaker 1: you know, I'm no different them a web designer or
Speaker 1: a singer or somebody. You know, I I use my
Speaker 1: artistry in my work. And again, the I think a
Speaker 1: lot of people said, well, you know, yes, the government
Speaker 1: couldn't force him to bake a rainbow colored cake that
Speaker 1: said God bless this gay wedding, that that would be
Speaker 1: going too far. But he wouldn't even provide just a
Speaker 1: generic wedding cake to a same sex wedding. He still said,
Speaker 1: I speak through my artistry and and and you know,
Speaker 1: many people sort of disagreed and said, well, you can
Speaker 1: only go so far and saying a commercial product like
Speaker 1: a wedding cake represents your speech. But a web designer
Speaker 1: is different. I mean, the web design for this wedding
Speaker 1: is presumably going to celebrate the couple, a same sex couple.
Speaker 1: I should add, this case is being brought by the
Speaker 1: web designer on the anticipation that she will be charged
Speaker 1: with violating the law if she goes through with her plans.
Speaker 1: There is actually no one that she has denied service too.
Speaker 1: But she's saying, look, you know, inherently, if I design
Speaker 1: a website for a wedding that is going to celebrate
Speaker 1: that particular wedding, it's going to send a message about
Speaker 1: a same sex couple that is one of joy and
Speaker 1: celebration and endorsement. And I can't do that as a
Speaker 1: matter of my conscience. So it's more like the situation,
Speaker 1: which was not the case in Masterpiece. But where if
Speaker 1: if a if if if a customer requested a specific
Speaker 1: message on a cake, I think many people were more
Speaker 1: willing to say Okay, that involves the baker's conscience and
Speaker 1: he can't be forced to do that. That's why I
Speaker 1: think the wedding web page designer is a much more
Speaker 1: attractive plaintiff for that argument, because a web design a
Speaker 1: website is inherently a medium of communication in a way
Speaker 1: that that wedding cake is the best kind of disputable
Speaker 1: whether that's a medium of communication or not. A website is,
Speaker 1: and inevitably this website is not going to be some
Speaker 1: generic thing. It's going to have pictures of the couple
Speaker 1: and again endorse the idea in some sense that this
Speaker 1: gave the same sex wedding is a good thing, and
Speaker 1: that's what the web designer says. Look in good conscience. Respectfully,
Speaker 1: I just can't do that. I will refer you to
Speaker 1: somebody else who can do that. If you're a gay
Speaker 1: person who wants a website for your birthday party, I'm
Speaker 1: happy to do that. Um. What what she's saying is,
Speaker 1: I can't get on board with the idea of using
Speaker 1: my writing, artistic skills, technical skills to create something which
Speaker 1: communicates a message of approval and endorsement and celebration for
Speaker 1: something that violates my religious conscience. So the ten Circuit
Speaker 1: ruled against the web designer, and the Supreme Court often
Speaker 1: takes cases in order to reverse the results. And the
Speaker 1: Court has changed a great deal since the Masterpiece Cake
Speaker 1: Shop case. Two justices who championed gay rights, the late
Speaker 1: Justice Ruth Bader Ginsburg and Anthony Kennedy, are no longer
Speaker 1: on the court. Do those factors point to what the
Speaker 1: result may be in this case? I think they do
Speaker 1: it because of the way the Court chose to resolve
Speaker 1: the Masterpiece Cake Shop case that was a seven to
Speaker 1: two decisions. Even some of the more liberal justices such
Speaker 1: as Justice Kagan and Justice Brian joined the outcome theres
Speaker 1: So we don't know what Briar and Kagan would have
Speaker 1: done on those pure First Amendment speech questions that the
Speaker 1: Court didn't adjudicate. But the Court is more conservative than
Speaker 1: it was. Justice Sparitt is sort of known to be
Speaker 1: especially interested in and sensitive to questions of religious liberty,
Speaker 1: and so I think, yes, it does make a difference
Speaker 1: that it's a somewhat more conservative court. I don't know
Speaker 1: that it makes a huge difference, because again, we didn't
Speaker 1: really get a decision on the same question as Masterpiece
Speaker 1: it's not as though the court is being asked to
Speaker 1: now reconsider something it decided in that case, but unbalanced. Yes,
Speaker 1: it is an even more conservative court, and this, again,
Speaker 1: I think, is a more attractive vehicle if you're going
Speaker 1: to challenge gay rights laws on the basis of a
Speaker 1: First Amendment claim of right. So now let's turn to
Speaker 1: another issue involving transgender bathroom rates. What is the issue
Speaker 1: in this case before the Eleventh Circuit Court of Appeals.
Speaker 1: Law is really now grappling in a very serious way
Speaker 1: with the different forms that discrimination against transgender people can take.
Speaker 1: That there have been cases about employment, there have been
Speaker 1: cases about the right to medical care, and there have
Speaker 1: been cases about access to certain gendered public facilities such
Speaker 1: as bathrooms and locker rooms. This case involves a high
Speaker 1: school student who was anatomically and at birth assigned the
Speaker 1: gender of female, who transitioned and now identifies as a
Speaker 1: gender identity of male, presents to the world as a male,
Speaker 1: is undergoing medical care to facilitate a gender transition to
Speaker 1: being male, and this student said, I am male. That
Speaker 1: is my identity. I dress as a male. I feel
Speaker 1: I am a male, and so I should be able
Speaker 1: to use the male washroom at school, in the male
Speaker 1: locker room, that's who I am. And even though it's
Speaker 1: different from my anatomical or the sex on my birth certificate,
Speaker 1: how I identify now is what matters. In a similar
Speaker 1: case involving of Virginia high school student, the Fourth Circuit
Speaker 1: Court of Appeals basically agreed and said in not letting
Speaker 1: that student use the facilities that were consistent with his
Speaker 1: gender identity, in saying, you have to use a separate,
Speaker 1: private bathroom, that's our way of accommodating you, the Fourth
Speaker 1: Circuit said, in that case, a transgender boys writes under
Speaker 1: both the Constitution and federal sex discrimination law type of
Speaker 1: nine were violated, and so here in Florida, involving another
Speaker 1: case involving a transgender boy, the lower courts and the
Speaker 1: Court of Appeals had come to the same conclusion. Had
Speaker 1: basically said, in not allowing this student to express their
Speaker 1: gender identity and use facilities consistent with their gender identity,
Speaker 1: it was a form of discrimination that violated the anti
Speaker 1: sex discrimination provisions of both Title nine and the Constitution's
Speaker 1: Equal Protection clus But the Full leven Circuit decided to
Speaker 1: rehear the case on bank and it's a court where
Speaker 1: conservative judges out number liberal judges. The hearing that took place,
Speaker 1: the arguments that took place, suggested that this full on
Speaker 1: bunk court maybe coming to a different conclusion than the
Speaker 1: panel had come to, and might decide either that the
Speaker 1: school is entitled to require students to use one facility
Speaker 1: or the other boys or girls based on their anatomical
Speaker 1: sex or their sex at birth, or the court might
Speaker 1: say letting them use a private, gender neutral bathroom is
Speaker 1: a sufficient accommodation, that we not only have to worry
Speaker 1: about the rights and the dignity of the transgender student,
Speaker 1: but we also have to be concerned about the privacy
Speaker 1: concerns that other students might have, and that cases like
Speaker 1: this call for a more delicate balancing than say, an
Speaker 1: employer who simply wants to fire an adult transgender person
Speaker 1: from a job. So I think we're seeing some tension there.
Speaker 1: If the eleven Circuit rules in favor of the school
Speaker 1: here and against the transgender student, that would create a
Speaker 1: split in the circuits. Would you say the Supreme Court
Speaker 1: has been avoiding the transgender bathroom issue so far? The
Speaker 1: conventional wisdom among Supreme Court litigators is that a circuit
Speaker 1: split where you know, one federal court takes one view,
Speaker 1: another federal court takes another view. That that is potentially
Speaker 1: the best ticket to the Supreme Court, because that then
Speaker 1: you've got federal law means different things in different parts
Speaker 1: of the country. UM, I don't know that. I'd say
Speaker 1: there's a lot of evidence the Supreme Court has been
Speaker 1: avoiding the issue. The Supreme Court did decline to grant
Speaker 1: sert in the Virginia case. I mentioned McGavin grim case,
Speaker 1: but again, that was a case that ruled in favor
Speaker 1: of the student. It didn't invalidate or strike down any law,
Speaker 1: just said that the bathroom policy as to that student
Speaker 1: was unconstitutional. That wasn't necessarily a case that was crying
Speaker 1: out for the Supreme Court's review. In fact, it might
Speaker 1: have been kind of extraordinary if the Court had taken that.
Speaker 1: A circuit split where you have two different courts looking
Speaker 1: at essentially the same set of facts and coming to
Speaker 1: different conclusions under federal constitutional and and statutory law, that
Speaker 1: is probably something that would be harder for the Supreme
Speaker 1: Court to ignore. Thanks Steve. That's Steve Sanders of Indiana
Speaker 1: University's Moral School of Law. Some Supreme Court gentices appeared
Speaker 1: annoyed with how the Biden administration rescinded a hot button
Speaker 1: Trump era immigration policy as they wrestle with the tangled
Speaker 1: legal aftermath and what to do about it. The concerns
Speaker 1: crossed ideological lines at oral arguments on Wednesday overhandling of
Speaker 1: the so called public charge rule. Joining me is Leon Fresco,
Speaker 1: a partner at Hollandon Knight Leon. This gets awfully confusing,
Speaker 1: So start by explaining the issue. The substantive issue that
Speaker 1: precipitated the litigation was a two thousand, nineteen public Charge
Speaker 1: rules that was issued by President Trump. And what the
Speaker 1: public charge rule did was as followed. There has been
Speaker 1: a law for hundreds of years, literally in our statute
Speaker 1: that says that a person is not allowed to get
Speaker 1: immigration status in the United States if they're likely to
Speaker 1: become a public charge. That's all it said. And so
Speaker 1: then the question is, well, what does that mean? What
Speaker 1: does it mean that you're going to be dependent on
Speaker 1: the state. And so the Trump administration decided to issue
Speaker 1: a regulation that would put a lot for beasts of
Speaker 1: those bones, and the regulations that they put in essentially
Speaker 1: said something along the lines of if you've ever received
Speaker 1: any cash assistance from any state or local government which
Speaker 1: were new that was not previously in the law, you
Speaker 1: would be considered a public charge. But also it added
Speaker 1: these nebulous fasters that could be considered that had never
Speaker 1: been considered before, such as the age of the person,
Speaker 1: their still level, their knowledge of English at veteran That
Speaker 1: would allow an adjudicator, on a case by case basis
Speaker 1: to decide if someone was likely to become a public
Speaker 1: charge even if they had never collected previously any bede
Speaker 1: cads from the US government. And so as soon as
Speaker 1: that rule came out, states across the country and cities
Speaker 1: uh to the federal government and said we don't want
Speaker 1: this public charge rule to go into effect. And that
Speaker 1: litigation was going on, and the government was winning the
Speaker 1: litigation in the Supreme Court. They were losing in the
Speaker 1: lower court, but they were winning it in the Supreme Court,
Speaker 1: and it looked like all of it was going to
Speaker 1: be dispensed with when Joe Biden gets elected and says, well,
Speaker 1: I want to get rid of this policy. And there's
Speaker 1: one court whose decision hasn't been reversed by the Supreme Court,
Speaker 1: and so that's where this case begins. The states here,
Speaker 1: Republican led states, are trying to basically fight for a
Speaker 1: rule that the Biden administration has abandoned. Right, So here's
Speaker 1: what happened. So, once the Biden administration gets elected and
Speaker 1: goes into power, they say, we want to get rid
Speaker 1: of this public charge rule. And so ordinarily, if there's
Speaker 1: a rule that you want to get rid of that
Speaker 1: is in effect, you have to do with all they
Speaker 1: notice a precision of the rule, and then that has
Speaker 1: to go through public comment for thirty or sixty days,
Speaker 1: you have to give reasons for why you're resending the rule,
Speaker 1: and then you finally resend the rule. In this case,
Speaker 1: that didn't happen because there was one court in Illinois,
Speaker 1: in the District of Illinois that had a ruling that
Speaker 1: was still in effect when the Biden administration came into
Speaker 1: power that said that this Trump public charge rule was
Speaker 1: unlawful and could not go into effect and had a
Speaker 1: nacent wide injunction. And that ruling was for a different
Speaker 1: reason than the Supreme Court who had ruled in other
Speaker 1: cases that the public charge rule could go into effect.
Speaker 1: In cases of many other circuits that have been filed
Speaker 1: and So what the Biden administration did is it said,
Speaker 1: here's what we're gonna do. We are going to say
Speaker 1: we're dismissing all of these cases. So there was a
Speaker 1: case coming into Supreme Court where oral argument was going
Speaker 1: to happen nine Circuit case. There was cases all around
Speaker 1: the country. And what the Biden administration said is these
Speaker 1: people seeing us California, the cities and the localities, we
Speaker 1: agree with them. And so what we will say is, look,
Speaker 1: we're not going to defend this case. We're not gonna
Speaker 1: defend this public charge rules, and so dismiss your cases.
Speaker 1: So everybody dismisses their cases if Copreme Court case gets
Speaker 1: its mess. And what the Biden administration says is this
Speaker 1: public charge rule is no longer in effect because the
Speaker 1: only case that has not been dismissed is the Illinois case.
Speaker 1: And in the Illinois case, we locked. We were enjoying
Speaker 1: from putting in this rule. And so thus the state
Speaker 1: of play before Arizona and other states get involved, they
Speaker 1: then see that this offen Wait a second, the public
Speaker 1: charge rule has been invalidated through this interesting method where
Speaker 1: all the lawsuits were dismissed except the one where the
Speaker 1: federal government laws that can't be right. We need to
Speaker 1: revive one of these other lawsuits where we were winning
Speaker 1: so we can bring it back to the Supreme Court
Speaker 1: and we can win. And even if the federal government
Speaker 1: doesn't want to defend this, we as the state, should
Speaker 1: be allowed to defend this. So Arizona goes to both
Speaker 1: the Ninth Ticket and the Seventh Circuit, which is Illinois,
Speaker 1: and says we want to intervene, meaning we want to
Speaker 1: take the plate of the federal government so that we
Speaker 1: can defend the Trump public charge regulation. And the Ninth
Speaker 1: Circuit says, no, you can't do this because one the
Speaker 1: case has already been dismissed. It's too late. And to
Speaker 1: this injunction that we had in place was only for
Speaker 1: California and Washington anyway, it wasn't a nation wide injunction case.
Speaker 1: And so Arizona, you have nothing to do with this.
Speaker 1: So why are you even involved. You're not being harmed
Speaker 1: by this case. And so that's the issue that goes
Speaker 1: up to the Supreme Court. And where yesterday there was
Speaker 1: an argument about whether the Ninth Circuit should have permitted
Speaker 1: Arizona to resuss and take the Ninth TA case and
Speaker 1: bring it back to the Supreme Court for a decision.
Speaker 1: So it struck me that some of the justices were,
Speaker 1: you know, annoyed with what the Biden administration did. So
Speaker 1: you had Justice Elena Kagan saying the Supreme Court shouldn't
Speaker 1: be green lighting that behavior for your administration or any
Speaker 1: other administration. Chief Justice Roberts saying it would be really
Speaker 1: quite a license for collusive action for any incoming administration
Speaker 1: to change the rules. Then there were other justices who said,
Speaker 1: you know, administrations change and the rules change. Clarence Thomas
Speaker 1: that I've been through five administrations, the rules change, So
Speaker 1: explain how the justices sort of saw this. So the
Speaker 1: issue comes down to this. I think there was a
Speaker 1: contented that the idea way that you would normally want
Speaker 1: to handle something like what happened here would be to
Speaker 1: file a brand new lawsuit against the federal government that says,
Speaker 1: we don't like the way you retended this rule because
Speaker 1: you did it in an illegal way. You should have
Speaker 1: gone through the normal recission process and not do this
Speaker 1: funky thing you did where you dismissed all the cases
Speaker 1: you didn't like and you kept the one case you
Speaker 1: did like. So that's what the justices wanted. But where
Speaker 1: the Arizona Solicitor General really made a little bit of
Speaker 1: traction is to say, we don't know if a case
Speaker 1: like that would have succeeded. It's possible that all the courts,
Speaker 1: including the Supreme Court, would have said no, no, no,
Speaker 1: you can't file a lawsuit like this because they didn't
Speaker 1: rEFInd the rule. But they did was they actually esced
Speaker 1: to a bad judicial ruling, so they didn't change anything.
Speaker 1: When a judge enjoined the rule, then you're not allowed
Speaker 1: to follow that rule anymore. You have to stop following
Speaker 1: the rule. You have to go back to the status quo.
Speaker 1: And so they did that, they didn't resis it, and
Speaker 1: so that's the problem is Arizona was caught in a
Speaker 1: catch twenty two about whether the right solution here was
Speaker 1: to file a new lawsuit saying that this recision was
Speaker 1: done improperly, or whether to intervene in the existing lawsuits
Speaker 1: so that they could get this issue feed back up
Speaker 1: to the Supreme Court about whether the public charge rule
Speaker 1: was lawful or not. And this is where I think
Speaker 1: the Supreme Court is stuffed because nobody knows what the
Speaker 1: right solution is your argument was very laborious and confused
Speaker 1: about what the right solution should have been. There, we'll
Speaker 1: give us an idea where the justices stood. So there
Speaker 1: was basically four different camps. One camp was you didn't
Speaker 1: do anything about this, and that was sort of the
Speaker 1: sort of major camp, um, there's nothing you can do here.
Speaker 1: There was a second camp that said, maybe intervention is
Speaker 1: the right move, but you should have done it in
Speaker 1: the Seventh Circuit case, the Illinois case, because that's the
Speaker 1: case where the injunction actually exists. And what's weird about
Speaker 1: that is that seems to make a lot of sense,
Speaker 1: but that's just not the case that's before the Supreme Court.
Speaker 1: The men that we need to just list this case
Speaker 1: and admit it just wasted everyone's time and then wait
Speaker 1: for the Illinois case to come back up and literally
Speaker 1: decide this exact same issue. And so that's possible. That's
Speaker 1: what that's the most logical, easy way to solve this problem.
Speaker 1: But it will literally have been that all of this
Speaker 1: briefing and oral argument and time and expense and everything
Speaker 1: was completely useless and this just was a waste of
Speaker 1: time for everybody. But that is a possibility. That's the setting.
Speaker 1: The third would be that they would say, in the future,
Speaker 1: when something like this happened, you have to file a
Speaker 1: brand new at A lawsuit administrative produe direct lawsuits that
Speaker 1: says this is a this is a the fast so
Speaker 1: improper recision without known as in common and so you
Speaker 1: can't do things this way. That would be the third
Speaker 1: way to do this, or the fourth way to do this,
Speaker 1: which Justice Guard it to us seizing at with the
Speaker 1: federal government, would be to say that, look, you can't
Speaker 1: issue nationwide injunctions in the first place. To this district
Speaker 1: court ruling wouldn't stand anyway, because you can, they shouldn't
Speaker 1: have been able to issue a nationwide injunction. I don't
Speaker 1: think they'll be able to go there because this case
Speaker 1: doesn't even have the Illinois case in it, So it
Speaker 1: would be two months judicial activism there. And that seems
Speaker 1: to be the fourth solutions they're trying to be which
Speaker 1: one they think it's going to happen, and so the
Speaker 1: second on and the third one thing the most likely,
Speaker 1: which is either that we wait till be the Illinois
Speaker 1: case comes, or they should have filed a new a
Speaker 1: p A lawsuit and they can go ahead and do
Speaker 1: that now they want to. So let me ask you this,
Speaker 1: does everyone agree that the Biden administration went about this
Speaker 1: in the wrong way? I think out of the justice
Speaker 1: there's probably about six of them thought that this was
Speaker 1: kind of an irregular, creative, tricky way of doing things,
Speaker 1: But nobody said it was illegal. People just stopped at
Speaker 1: this thing created an imprecedented situation that needed to be
Speaker 1: resolved so that there couldn't be these kinds of uh
Speaker 1: collequive actions in the future with future administration, that there
Speaker 1: would actually be some way for people who wanted to
Speaker 1: defend an existing regulation to be able to do it.
Speaker 1: And so the question is what mechanism will be created
Speaker 1: to allow that the bind administration, if it goes through
Speaker 1: the right procedural process, can resend this rule. Yes, and
Speaker 1: that's that's another thing that the federal government was claiming
Speaker 1: is that now the Biden administration has issued a new
Speaker 1: public charge rule that just happened last and so we
Speaker 1: should just forget everything else that happened and pretend that
Speaker 1: this is now the recision and we're starting from that place.
Speaker 1: So why is Arizona wasting time with this lawsuit when
Speaker 1: the Biden administration is going to rescind the rule through
Speaker 1: the regular process and institute a new rule. What's the
Speaker 1: point of this. Two or three of the justices made
Speaker 1: that point. Brier made that point, in my made that point,
Speaker 1: and Taken made that point. The date of Arizona basically
Speaker 1: wanted to be able to go batch the cords and
Speaker 1: get an advisory opinion, essentially saying that the Trump administration
Speaker 1: rule was legal, so that they could take that advisory
Speaker 1: opinion and use it in any other forum to prevent
Speaker 1: the Bible in the Lisperation from either invalidating that rule
Speaker 1: or from putting in a new rule in the future.
Speaker 1: To the point, and we've discussed this before, some justices
Speaker 1: said it was unprecedented. Others said this happens all the time.
Speaker 1: Arizona can't force the federal government to keep a rule
Speaker 1: that the federal government doesn't want to. That's what happens
Speaker 1: when administrations change. And yet it seems like in this
Speaker 1: case and in the Return to Mexico case, that's just
Speaker 1: what they're trying to do. Correct with one caveat, So
Speaker 1: the issue isn't in Arizona force or not force the
Speaker 1: federal government to have a particular rule. Everybody conceded that
Speaker 1: the federal government has that prerogative to rEFInd the rule.
Speaker 1: But the question is, does the federal government, if it
Speaker 1: doesn't follow the actual pro feature that normally followed to
Speaker 1: rEFInd the rule, is it able to resend the rule
Speaker 1: by means of dismissing some lawsuits and keeping others and
Speaker 1: with the ones that it keeps not allow people to
Speaker 1: intervene in those lawsues to try to at least defend
Speaker 1: the position of the prior administration. And so that's where
Speaker 1: it gets a little bit complicated here, And from that perspective,
Speaker 1: that's what the courts can have to decide is is
Speaker 1: that a grievance that is so valid that you do
Speaker 1: need to create an ability for safe they intervene there,
Speaker 1: or is that grieving noted? But in the end it
Speaker 1: doesn't matter because this is just something they can do,
Speaker 1: and their solution is just to file a new lawsuit
Speaker 1: saying that the new rule is arbitrary and camprecionate and
Speaker 1: just leave it eva. And so maybe that's what they
Speaker 1: can do in that situation, But that's what the courts
Speaker 1: canna have to decide. And what you mean is just
Speaker 1: that This is just a very rare set of fact,
Speaker 1: which is that an administration things is there's some decisions
Speaker 1: in your favor, there's some opposed, and then the court
Speaker 1: moots out the ones that are opposed but keeps the
Speaker 1: one that's in the favor. But that's it's just that
Speaker 1: hot pattern that's new. But the changing of positions is
Speaker 1: definitely not a new thing. After the Trump administration, after
Speaker 1: four years of the Trump administration not following the Administrative
Speaker 1: Procedures Act, I would think that all these questions would
Speaker 1: have been answered by this time. You would have thought so.
Speaker 1: But just in this one instinct prevents a new set
Speaker 1: of fact. Now. I do think if what had happened
Speaker 1: was that the Biden administration had entered into a settlement
Speaker 1: with the plaintive, the court would have been much angrier
Speaker 1: and would have said, way a second, there is so
Speaker 1: much collusion here. We absolate the states get involved. But
Speaker 1: that's not what happened here. There was not a settlement rate.
Speaker 1: It was just that they agreed with the one court
Speaker 1: that agreed with them, and then they mouted out all
Speaker 1: the cases where the courts didn't agree with them. It
Speaker 1: took guys that hadn't happened before, and so the question
Speaker 1: is is not gonna be away and I mean you're
Speaker 1: not gonna be able to intentionally ever be up. So
Speaker 1: five it has to be accidental in every future case.
Speaker 1: But in future cases where there's an administration that changes
Speaker 1: and there's a version of opinion, then can you take
Speaker 1: advantage of that to refined rules? And that's what this
Speaker 1: is ultimately going to come down to. Thanks Leon for
Speaker 1: helping us untangle that procedural mess. That's Leon Fresco of
Speaker 1: Hollanden Knight. And that's it for this edition of The
Speaker 1: Bloomberg Law Show. Remember you can always get the latest
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Speaker 1: The Bloomberg Law Show every week night at ten from
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