Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: What happens when a high school student gets kicked off
Speaker 1: the cheerleading squad over a profane snapchat post. Well, in
Speaker 1: the case of the teenager known as b L, the
Speaker 1: Supreme Court will disside whether the school violated her First
Speaker 1: Amendment rights. B L and her father, Larry Levy, told
Speaker 1: CNN that the school had no right to punish her
Speaker 1: for expressing her anger at not making the varsity squad
Speaker 1: by cursing at the school in a Snapchat post, along
Speaker 1: with a picture of her and a friend with their
Speaker 1: middle fingers raised. In the rules, it did not have
Speaker 1: anything about what I can and can't stay out of
Speaker 1: school and out of my uniform. I wasn't proud of
Speaker 1: her expression. However, I felt that at that situation that
Speaker 1: the the school overstepped their boundaries and it was my
Speaker 1: decision to punish her, at which time I did take
Speaker 1: the appropriate steps that I felt necessary for the what
Speaker 1: she had done. The Jeice Department has filed a brief
Speaker 1: telling the Justice is that the Federal Appeals Court got
Speaker 1: it wrong when it ruled for the student. Joining me
Speaker 1: is noted First Amendment expert Eugene fall A, professor at
Speaker 1: u c l A Law School. Eugene tell us about
Speaker 1: the Third Circuit's opinion, So let's just step back a
Speaker 1: little bit. The Supreme Court in the Tinker case said
Speaker 1: that students free speech rights don't stop at the schoolhouse gate.
Speaker 1: But what if the students speaking outside the schoolhouse gate
Speaker 1: and outside any school programs. That's not to be a
Speaker 1: zoomed to school or anything like that. She's just speaking
Speaker 1: by herself on her social media page, or maybe writing
Speaker 1: a letter to the editor of a newspaper, or talking
Speaker 1: at church, or talking at the political rally. Can the
Speaker 1: student be disciplined, she says to say, Can the students
Speaker 1: be kicked off the team or expelled from school or
Speaker 1: suspended from school on the grounds that the effects of
Speaker 1: her speech are disruptive at the school? And lower courts
Speaker 1: have split on the subject. The Third Circuit says, no
Speaker 1: student speech outside school is generally speaking protected from school
Speaker 1: retaliation and others. I could say, well, no, if the
Speaker 1: speech seems likely to be seen at school, or be
Speaker 1: seen by students and others, then it may have effects
Speaker 1: that are disruptive at school, and that could be just
Speaker 1: as bad as disruptive speech at school. And that's the
Speaker 1: question that the Supreme Court is going to have to
Speaker 1: be resolving to what extent can off campus speech leads
Speaker 1: to discipline because of it's on campuses. The Justice Department
Speaker 1: says the Third Circuit, this red tinker. Is the Justice
Speaker 1: Department taking that position because of the categorical rule that
Speaker 1: the Third Circuit took. Well, so the Justice Department is
Speaker 1: trying to chart something of a middle course. On one hand,
Speaker 1: it acknowledges that off campus speech should generally be protected
Speaker 1: for retaliation by the school, and I think that's I
Speaker 1: think that's got to be right. I mean, imagine somebody
Speaker 1: is involved in some political movement outside school, or some
Speaker 1: religious campaign or something like that, and it's very offensive
Speaker 1: to other people at schools. They may view it as blasphems,
Speaker 1: and they may view it as racists on patriotic or
Speaker 1: whatever else. You can't have the school have twenty four
Speaker 1: seven control essentially of a student speech and threatened to
Speaker 1: expel the student because of what he's saying in the
Speaker 1: context of this political movement. It doesn't have to be
Speaker 1: a big picture political movement. It could just be this
Speaker 1: person expressing his views on his Instagram account or on
Speaker 1: a Twitter feed or something like that. So I think
Speaker 1: the Justice Department acknowledges that indeed, allowing the school to
Speaker 1: punish this wide range of out of school speech just
Speaker 1: because it may be disruptive at school would be going
Speaker 1: too far. But the Justice Department says there are three
Speaker 1: situations in which that school authorities do have to have
Speaker 1: some authority to punish off school speech. Why is that
Speaker 1: the speech threatens the school community. That's talk of bombing
Speaker 1: the school or shooting up the school or something like that. Now,
Speaker 1: of course, if that's a true threat of violence, it
Speaker 1: could be punished, even if it's not a student saying
Speaker 1: If that anybody saying it, they could go to jail
Speaker 1: for it. But there are some borderline things which are
Speaker 1: kind of menacing, maybe implicitly threatening, maybe not enough to
Speaker 1: be criminally punishable, but the school has to be able
Speaker 1: to maybe expel a students, suspend a student, just to
Speaker 1: get them out of the place where other people think
Speaker 1: they might be trying to mount an attack. A second
Speaker 1: category that the government points to is speech that intentionally
Speaker 1: targets specific individuals or groups in the school community, so
Speaker 1: that might be personal insults of classmates and maybe a
Speaker 1: teachers or administrators, and that the school needs to be
Speaker 1: able to restrict that in order to prevent kind of
Speaker 1: undue distraction and her feelings at school. But at the
Speaker 1: same time, such a restriction would leave students free to
Speaker 1: express whatever views they want in a broader sense political
Speaker 1: cold views, religious views, moral views in the life. And
Speaker 1: then the third category is the one that the Justice
Speaker 1: Department suggests applies here, but it's actually hardest to figure
Speaker 1: out if it intentionally targets specific school functions or programs
Speaker 1: regardings matters essential to or inherent in the functions or
Speaker 1: programs themselves. As the government and it suggests to hear
Speaker 1: what was happening is she was intentionally targeting her cheerleading
Speaker 1: team by essentially expressing contempt for the project. And that
Speaker 1: is this intentional targeting regarding matters essential to the function,
Speaker 1: which may have to do with kind of moral and
Speaker 1: its creative. So the government is trying to chart this
Speaker 1: middle course protect students rights to talk broadly about kind
Speaker 1: of big picture social, moral, political, religious issues, but allow
Speaker 1: restrictions for various kinds of speech. And I think the
Speaker 1: third one, the one that they view is applicable here
Speaker 1: is probably the most troublesome one, just to it's so
Speaker 1: hard to figure out what kant is intentionally targeting school
Speaker 1: functions or programs. What if somebody were to say, you know,
Speaker 1: I think our history program has become too woke and
Speaker 1: become too critical race theory, and I think it's awful. Well,
Speaker 1: is that intentional targeting regarding matters essential to or inherent
Speaker 1: in the functions or programs that a student can be
Speaker 1: disciplined in school for that? I don't think that can
Speaker 1: be right. But again, the boundaries of what the what
Speaker 1: the government is trying to do especialist to this third
Speaker 1: category are hard to figure out. It also seems like
Speaker 1: that third category covers a lot of comment that the
Speaker 1: students may make about school programs right exactly, and not
Speaker 1: just comments by students who are on a team, because
Speaker 1: in principle, it could apply to somebody else condemning the
Speaker 1: cheerleading UH program, because it would still be targeting specific
Speaker 1: school functions or programs regarding matters essential to the programs themselves.
Speaker 1: Now you can imagine the a court saying, look um,
Speaker 1: there needs to be a different rule for removal from
Speaker 1: an optional program, especially one that is not fundamentally academic,
Speaker 1: from expulsion or suspension. So you may say, look, cheerleading
Speaker 1: or even being on a basketball team, um might be
Speaker 1: seen as almost a kind of job. It's a combination
Speaker 1: of being a student but also doing a particular task
Speaker 1: for the school or presenting the school in some sports.
Speaker 1: And maybe if you say something that undermines your ability
Speaker 1: to do that job, you could be in this inspired
Speaker 1: from that job, removed from the team. But you're still
Speaker 1: a student in good standing and still graduate. You're not
Speaker 1: being suspended from academics or anything like that. You're just
Speaker 1: just being removed from the place that you've been undermining
Speaker 1: with that place, removed from the particular program that you're
Speaker 1: undermining with with your speech. So you can imagine a
Speaker 1: court saying that. So it's not a matter of whether
Speaker 1: it is somehow targeted at a school function. It's a
Speaker 1: matter of whether the whether the school is just removing
Speaker 1: you from some such team, as opposed to expelling you
Speaker 1: or suspending you from school at large. So, however, the
Speaker 1: question presented before the Supreme Court, at least officially, if
Speaker 1: you look at the petition and the question presented there
Speaker 1: is whether, um, the Tinker test for restricting disruptive speech
Speaker 1: applies to out of school speech. So that so maybe
Speaker 1: that a court says, look, we agreed to hear this
Speaker 1: case about out of school speech at large, but especially
Speaker 1: this question about whether it should be a special rule
Speaker 1: for athletic teams in similar similar programs. That's something that
Speaker 1: we can leave for lower courts to reconsider. How have
Speaker 1: the other circuits come out on this? Do they have
Speaker 1: a categorical rule when we or the other They generally say,
Speaker 1: and I oversimplify here, but they generally say that even
Speaker 1: off campus speech can lead to discipline, and again not
Speaker 1: just removal from a team, but suspension from school, even
Speaker 1: expulsion from school if the speech kind of foreseeably causes
Speaker 1: disruption on campus. So they say, well, it needs to
Speaker 1: be speech that can be perhaps seen on campus or
Speaker 1: will be paid attention to on campus. But of course,
Speaker 1: if that's anything right, anything that you say off campus
Speaker 1: on Twitter or Instagram or whatever else can be read
Speaker 1: on campus, can be read by classmates with then remember
Speaker 1: it and talk about it on campus. But even if
Speaker 1: you write a letter to the editor, it's going to
Speaker 1: be posted online. It can be read on campus. If
Speaker 1: you give us speech at our political rally, chances are
Speaker 1: that it's going to be live streamed or recorded and
Speaker 1: put on YouTube and can be seen on campus. Or again,
Speaker 1: even if it's not right on campus or viewed on campus,
Speaker 1: other students will see it at home and then come
Speaker 1: to campus and may be upset by it on campus.
Speaker 1: So in practice, the other circuits basically say, if something
Speaker 1: you say, even if it's off campus, causes disruption, causes
Speaker 1: possible fights on campus, or distraction or really grave upset,
Speaker 1: then in that case you can be punished for. And
Speaker 1: that's what I'm referring to. This seven control over everything
Speaker 1: that a student may say, including against political speech, religious
Speaker 1: speech which had moral issues. And the luck how the
Speaker 1: Supreme Court cut back on students First Amendment rights, Well,
Speaker 1: it all depends compared to what inscre to win. So
Speaker 1: in the Tinker case in nine, I think it's generally
Speaker 1: thought of the court really broad students right. It used
Speaker 1: to be that the schools had very broad authority, but
Speaker 1: then starting with Tinker, the theory was that schools could
Speaker 1: only restrict speech if it is disruptive or not. And
Speaker 1: then in a few cases after that the court did.
Speaker 1: You could say cut back on that, or you could
Speaker 1: say kind of established the limits of that principle. So,
Speaker 1: for example, in the Bessel School District case, the court said, look,
Speaker 1: vulgar speech, whether it's vulgarities or just kind of sexual innuendo,
Speaker 1: can be punished once at at school because unlike in Tinker,
Speaker 1: whereas involved anti war protests, here nobody was going after
Speaker 1: the viewpoint of the speech. It wasn't political speech. It
Speaker 1: was just the school teaching kids how to behave including
Speaker 1: how to speak in kind of polite way. So that
Speaker 1: might be seen as cutting back on the Tinker principle
Speaker 1: or maybe establishing the boundaries. Another case called the Morseley
Speaker 1: Frederick said that speech non political speech that can be
Speaker 1: reasonably seen as promoting drugs or advocating in favor of
Speaker 1: drug use can be restricted again at school functions. That
Speaker 1: could also be seen as cutting back in Tinker or
Speaker 1: again establishing the boundaries of it. The Tinker applies only
Speaker 1: to political adficacy and not just that the general talk
Speaker 1: about drugs ben good or something like that. That was
Speaker 1: sort of the courts theory in some measures there. And
Speaker 1: then one other case called Hazelwood School District versus kill
Speaker 1: Meyer involved a speech in a student newspaper and made
Speaker 1: clear that the principle or the administration could restrict speech
Speaker 1: and student newspaper. So I think that has less to
Speaker 1: do with students and more to do with the fact
Speaker 1: that a government entity can control its own publications. So
Speaker 1: for example, um government employer might have an internal newsletter
Speaker 1: for for its emplees, but the editorial control would be
Speaker 1: in the hands of the management and not whoever happens
Speaker 1: to be the writer. So there have been these cases
Speaker 1: that there might be seen as cutting back on students protection.
Speaker 1: But interestingly, I don't think they've cut back as much
Speaker 1: as lower courts have. Interpreting Tinker in saying that yes,
Speaker 1: out of school speech can be can be restricted. That
Speaker 1: is really very substantial restraint on student speech. And the
Speaker 1: question is whether the court will at least walk at
Speaker 1: that and say that no, generally speaking with whatever exceptions,
Speaker 1: but generally speaking out of school speech has to be
Speaker 1: protective against the school retaliation. Is that what you think
Speaker 1: the court will do, well, I'm not sure what it
Speaker 1: will do. I'm going to be filing an amicus brief
Speaker 1: quite likely underhaling, some law professors arguing that that's what
Speaker 1: the court should do, that the court should make clear
Speaker 1: that at least generally speaking, with some exceptions off campus
Speaker 1: students speech can't lead to UH school discipline. But what
Speaker 1: the court will do I can't really tell. Just generally
Speaker 1: have free speech issues become more difficult in the light
Speaker 1: of social media? Well, I'm not sure more difficult. Uh.
Speaker 1: There's certainly have been some controversies that before would likely
Speaker 1: not have been as controversial. So UH, this issue could
Speaker 1: coolly come up when if she were saying that at
Speaker 1: a restaurant where teammates would over could overhear, or if
Speaker 1: she were saying that at some political event where it
Speaker 1: was captured on a on a hot mic or something
Speaker 1: like that. But but in practice it would be much
Speaker 1: less likely that it would that it would be noticed
Speaker 1: by the school authorities. So one thing about social media
Speaker 1: is it takes what otherwise would have been just kind
Speaker 1: of casual chatter that is largely ignored and quickly forgotten,
Speaker 1: and makes it much more noticeable and much more likely
Speaker 1: to lead to UH two disciplinary measures and then from
Speaker 1: there likely to lead to a lawsuit. Thanks for being
Speaker 1: on the Bloomberg Law Show, Eugene That's Professor Eugene Polic
Speaker 1: of u c l A Law School. The Supreme Court
Speaker 1: considered two cases exploring the power of administrative agencies this
Speaker 1: week alone, a topic of renewed interest among the expanded
Speaker 1: majority of conservative justices. The cases this week involved a
Speaker 1: federal Patent Appeals Board and the Social Security Administration, the
Speaker 1: latest in a string of separation of powers challenges questioning
Speaker 1: how much authority agencies can wield independent from the president.
Speaker 1: Joining me is Harold Crant, a professor with the Chicago
Speaker 1: Kent College of Law. Is it unusual that there have
Speaker 1: been this string of disputes with constitutional challenges to agency structure?
Speaker 1: Is that unusual? Or is that happened all the time?
Speaker 1: The spring pays ushered in a new series of challenges
Speaker 1: to agency structures because the Court is rethinking questions about
Speaker 1: presidential control over agencies. So at stake are both the
Speaker 1: appointment mechanisms for agency's heads and adjudicators, as well as
Speaker 1: removal provisions. So, because the Court has inserted uncertainty into
Speaker 1: this area, individuals who be representing clients before mystery of law,
Speaker 1: judges and agencies are inserting claims about appointment removal. So
Speaker 1: in case they lose on the merits, they may be
Speaker 1: able to still protect their clients by throwing out the
Speaker 1: decision on the constitutional grounds. Tell us what happened here.
Speaker 1: It was a challenge to a social security judge. So
Speaker 1: here there is a typical social security distability dispute. There
Speaker 1: are eight hundred thousand hearings before a l J is
Speaker 1: a year, and after losing before the a LJ and
Speaker 1: then losing before the agency itself, the individual presented the
Speaker 1: constitutional claim before the district court for the first time.
Speaker 1: And so the Supreme Court took several cases to determine
Speaker 1: whether or not there is what's called issue exhaustion. You
Speaker 1: have to exhaust all issues, raise all issues before the
Speaker 1: the Ministry of Law judge, otherwise that the court will
Speaker 1: hear it if it's raised for the first time in
Speaker 1: the court. So, in other words, so the issue that
Speaker 1: they did not raise until the Supreme Court was the
Speaker 1: issue of whether or not the social security judge was
Speaker 1: properly appointed. That's correct. So at the Supreme Point decided
Speaker 1: several years ago that at least the mission of law
Speaker 1: judges within the securities and exchanged Commission were inferior officers
Speaker 1: and therefore had historically been appointed unconstitutionally um and therefore
Speaker 1: had to be appointed by the head of the agency itself.
Speaker 1: So there are many cases that preserved this claim before
Speaker 1: the Supreme Court made that decision, and therefore they now
Speaker 1: want to say, look, we were our case was cited
Speaker 1: by somebody who was appointed unconstitutionally. Therefore we get a
Speaker 1: chance to have an hearing before a properly constituted, properly
Speaker 1: appointed administrative law judge. So there are cases pending still
Speaker 1: from that to the case, and now there are a
Speaker 1: whole school of new cases that are saying, not only
Speaker 1: do we have a right to be adjud have an
Speaker 1: adjudication before someone who has been properly pointed, but also
Speaker 1: someone who is removable um at will by the agency
Speaker 1: head to ensure sort of a line of accountability to
Speaker 1: the president itself. So lots of cases are penning, but
Speaker 1: the ones that the Supreme Court has looked at so
Speaker 1: far are ones lingering on from the prior to the
Speaker 1: Supreme Court decision which said that themistered law judges have
Speaker 1: to be are luck be considered inferior officers and therefore
Speaker 1: have to be pointing in conformance with the appointments clause
Speaker 1: and non historically happened. So why isn't this case moot?
Speaker 1: Then if the court has already decided the question about
Speaker 1: administrative law judges, because they want a new trial or
Speaker 1: new hearing before the a l J. So, in other words,
Speaker 1: there are probably hundreds of cases that are still in
Speaker 1: the system which claim that because they had a hearing
Speaker 1: before and improperly constituted or improperly appointed administrat of law judge,
Speaker 1: they need a new hearing before a different administra of
Speaker 1: law judge. They are hoping that if they have a
Speaker 1: new administive of law judge, maybe the result will be
Speaker 1: different and then favor their client. And is that what
Speaker 1: Justice Alito was concerned about when he said it would
Speaker 1: flood the agency with cases? Yeah? I mean the question
Speaker 1: is how much you know we've already had full resolution
Speaker 1: of these social security disability cases and we already have
Speaker 1: eight hundred thousand hearings a year. Do we need to
Speaker 1: have more? Particularly when there's no fact that that changes.
Speaker 1: All it is is the replacement of one a l
Speaker 1: J for another. So from an efficiency perspective, certainly the
Speaker 1: claim doesn't have merit. But the claim does have some
Speaker 1: traction with the Court for a couple of reasons. You know,
Speaker 1: first of all, including that constitutional claim before the agency
Speaker 1: is futile. The agency or the Minister of Law judge
Speaker 1: is never going to hold that he or she has
Speaker 1: been appointed unconstitutionally and there is an informal process before
Speaker 1: it a l J. And in a prior case, the
Speaker 1: Supreme Court has held that it doesn't want to be
Speaker 1: as exacting in terms of exhaustion of the administrative remedies
Speaker 1: when there is an informal adversary process that takes place.
Speaker 1: So I think that the quote is going to wrestle
Speaker 1: with this from an efficiency perspective. It's going to want
Speaker 1: to say, you lost the claim. You no longer can
Speaker 1: can raise it if you didn't raise it before the
Speaker 1: ad Minister of Law judge. But because of that precedent,
Speaker 1: and because of just the idea that there is such
Speaker 1: an informal process before the Minister of Law judge, so
Speaker 1: members of the court are shouldn't going to vote in
Speaker 1: favor of the claimants here. Some of the justices, I
Speaker 1: believe Justice Atlanta Kagan said, well, if the agency had
Speaker 1: wanted to add up to different rule. It could have yea.
Speaker 1: So here the the agent. In a prior case, the
Speaker 1: Supreme Court had held that there was an exception for uh,
Speaker 1: this exhaustion of issues before the agency itself. Do again
Speaker 1: to the informality in which the agency acts in these
Speaker 1: social security disability cases. Particularly you know, if the claim
Speaker 1: is not closely connected to the merits of the disability case.
Speaker 1: And so Justice Kagan said, the agency you unnoticed, if
Speaker 1: you really cared about this, you should have adopted a regulation.
Speaker 1: They clearly stated that individuals will forfeit all issues they
Speaker 1: are not raised before the agency. You had noticed, you
Speaker 1: had time to do it, and yet you set on
Speaker 1: your hands. And therefore you shouldn't complain to us now.
Speaker 1: And there's some logic and Nephew as well, because the
Speaker 1: quote is said that these idea of exhaustion is really
Speaker 1: the turns largely on what Congress or what agency requires.
Speaker 1: So their discretion, meaning the Court's discretion, is only triggered
Speaker 1: if it's unclear what the statute or regulation requires. Chief
Speaker 1: Justice John Roberts seemed to be concerned about giving the
Speaker 1: claimants ad over what would prevent claimants from bringing up
Speaker 1: new claims in federal district courts to get a second
Speaker 1: bye to the Apple. It's a limited do over issue.
Speaker 1: But I think what Chief Justice Roberts is saying is,
Speaker 1: at least with respect to these hundreds of cases that
Speaker 1: are still alive from before the Supreme Court decision holding
Speaker 1: that a lj's were improperly appointed, they'll get ado over
Speaker 1: because of a technicality. And is that an appropriate result
Speaker 1: that the Court should endorse. Maybe it's inevitable, but at
Speaker 1: least the Chief Justice, who was worried that there really
Speaker 1: no reason equity because of this prior decision, that these
Speaker 1: claimants we'll get a do over and not any other
Speaker 1: claimants merely because their case was not final at the
Speaker 1: time the Supreme Court issued the decision. So there is
Speaker 1: some force. And what the Chief Justice said, certainly individuals
Speaker 1: wouldn't get a do over for any other kind of
Speaker 1: claim that they would bring in court that they didn't
Speaker 1: present to the agency or the a l J first,
Speaker 1: But because of the Supreme Court's earlier decision, they would
Speaker 1: get a chance at a do over if the court
Speaker 1: rules in favor of the claimates. Here Justice Brett Kavanaugh,
Speaker 1: and some say he's foreshadowing the Justice Department's defeat in
Speaker 1: this case, he asked the Justice Department attorney, if you
Speaker 1: were to lose, what's your preferred approach. It may have
Speaker 1: been tongue in cheek because I think it followed a
Speaker 1: question about on which ground would you think they're most
Speaker 1: likely to prevail upon. So it's it's hard to know
Speaker 1: whether it was forced shadowing or Justice Kavanaugh was being
Speaker 1: tongue in cheek, but they may have been serious, and
Speaker 1: it may suggest which way he's leading as well. And
Speaker 1: oftentimes it's important for an individual to lose on a
Speaker 1: least bad way for kids or her client. So again,
Speaker 1: which way do you think the court is leaning? I
Speaker 1: think on the grounds of precedent, the court would rule
Speaker 1: for the claimants. And you know, my guess is Justice
Speaker 1: Thomas wrote the prior decision um he's still on the court,
Speaker 1: and so I would predict with not great confidence that
Speaker 1: he will be able to martial or coalition. That would
Speaker 1: suggest that the same result should apply when someone fails
Speaker 1: to raise a claim before a miser of law judge.
Speaker 1: Just as he ruled that there was no failure if
Speaker 1: if a claimant failed to present a case before the
Speaker 1: agency itself, is the issue settled now or are we
Speaker 1: going to have more of these cases? So the issue
Speaker 1: is settled with respect to the appointment of the mystery
Speaker 1: of law judges. And and I think that there are
Speaker 1: several hundreds of cases that are still pending based upon
Speaker 1: but that have that question alive. However, there is a
Speaker 1: new series of cases which are almost identical, which have
Speaker 1: challenged the constitutionality of a l j's because of their
Speaker 1: removal provisions, and those are now pending in the courts
Speaker 1: of appeals and distrecourse. And indeed, the UH just ten
Speaker 1: days ago or so the d C Circuits had a
Speaker 1: very similar case and refused to address the merits of
Speaker 1: the removal issue and said that the claim is forfeited
Speaker 1: its claim because it wasn't raised before the agency itself.
Speaker 1: So it was the same identical issue of issue exhaustion,
Speaker 1: but in the different guys of challenging and removal provisions
Speaker 1: as opposed to the appointment provision. Which means that the
Speaker 1: Supreme Court decision here will have impact not only on
Speaker 1: the hundreds of cases that are still left over challenging
Speaker 1: the proper appointment of the a l j's, but it's
Speaker 1: still going to be important or all the cases now
Speaker 1: that they're challenging removal provisions as well. So the best
Speaker 1: thing to do then when you're appearing before an agency
Speaker 1: is to bring up every possible issue, certainly claim it
Speaker 1: would be well advised to include all conceivable issues before
Speaker 1: the agency. In fact, that is the norm in our system.
Speaker 1: There is a generally there's an exhaustion of available remedies,
Speaker 1: and not only do you have to go to the
Speaker 1: agency first, you have to raise all your claims for
Speaker 1: the agency. That promotes efficiency, that gives respect to agency,
Speaker 1: and allows the agency to use his expertise in developing
Speaker 1: the record in answering the claims. Um. So that is
Speaker 1: definitely the practice. And the question here is is should
Speaker 1: we have exceptions because of the informality of these procedures
Speaker 1: or because of the nature of this constitutional claim which
Speaker 1: no agency ever would agree with. I would think the
Speaker 1: Supreme Court is exhausted with these with these agency questions.
Speaker 1: So I guess the question would be whether the Supreme
Speaker 1: Court is exhausted dealing with the exhaustion doctrine. It doesn't
Speaker 1: seem to be because they've taken these cases and um,
Speaker 1: they think it's important to clean up and know whether
Speaker 1: or not the courts are should entertain these claims when
Speaker 1: the claims have not been presented to the agency first.
Speaker 1: But nonetheless, there's still a lot of cases where these
Speaker 1: claims have been presented to the agency first, and so
Speaker 1: the court will have to take some of the questions
Speaker 1: about the removable provision, for instance, on the merits down
Speaker 1: the road. Why do you think the court keeps taking
Speaker 1: these kinds of cases? But it's not the most important
Speaker 1: issue in the world, and there's a lot of disagreement
Speaker 1: there is. Certainly they split in the circuits on the
Speaker 1: on the question, uh, but you know they decided to
Speaker 1: clean it up even though it's not the most important
Speaker 1: issue in the world. Where does the patent case earlier
Speaker 1: this week fit in. It was about the administrative patent judges,
Speaker 1: but this issue was involved in that case because the
Speaker 1: challenge to the appointment of the patent judges also arose
Speaker 1: not before the patent judges themselves, but only in court.
Speaker 1: And so it's possible that the court wanted to entertain
Speaker 1: this case because it's sort of a similar issue was
Speaker 1: pending in the state patent judges cases, and so the
Speaker 1: court thought that it might have to address them altogether.
Speaker 1: Thanks Hal. That's Harold Grant to the Chicago Kent College
Speaker 1: of Law. And that's it for this edition of The
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