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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 2: As I said all along, this case should have never

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Speaker 2: been brought and I did nothing wrong. I'm not happy

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Speaker 2: that our city can finally close the book on this

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Speaker 2: and focus solely on the future of our great city.

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Speaker 3: New York City Mayor Eric Adams is free and clear.

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Speaker 3: A federal judge has dismissed the corruption case against him,

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Speaker 3: putting a permanent end to the case and the extraordinary

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Speaker 3: series of events that caused discord within the Justice Department.

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Speaker 3: Judge Dale Hoose said he wasn't commenting on the merits

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Speaker 3: of the case against Adams, but that courts can't force

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Speaker 3: prosecutors to move forward on a case. It was a

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Speaker 3: mixed decision for the Justice Department. It got the dismissal

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Speaker 3: of the charges it requested, but the judge dismissed them

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Speaker 3: with prejudice, meaning they can't be brought again. And the

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Speaker 3: judge slam the Justice Department many times in his opinion

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Speaker 3: quote everything here smacks of a bargain dismissal of the

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Speaker 3: indictment in exchange for immigration policy concessions. My guest is

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Speaker 3: former federal prosecutor Robert Mintz, a partner Maccarter and English.

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Speaker 3: So the judge had basically no choice but to drop

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Speaker 3: this case, but he didn't do it in the way

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Speaker 3: the Justice Department had wanted him to.

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Speaker 1: Heeding the advice of the Court appointed Council Paul Clement,

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Speaker 1: the former Solicitor General, the judge decided to dismiss the

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Speaker 1: case with prejudice, as opposed to without prejudice, as had

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Speaker 1: been originally requested by the Department of Justice, because the

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Speaker 1: judge found that dismissing the case without prejudice would essentially

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Speaker 1: leave Mayor Adams under the specter of reindictment at essentially

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Speaker 1: any time and for any reason, and by doing that,

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Speaker 1: it would create the unavoidable perception that the Mayor's freedom

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Speaker 1: depended on his ability to carry out the immigration and

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Speaker 1: forcing priorities of the administration, and that he might be

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Speaker 1: more beholding to the demands of the federal government than

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Speaker 1: to the wishes of his own constituents.

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Speaker 3: The judge slammed the reasons the government gave for dropping

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Speaker 3: the charges, calling it unprecedented and breathtaking in its sweep.

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Speaker 4: So this was a.

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Speaker 1: Quite extraordinary seventy eight page opinion that the judge issued

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Speaker 1: here on what was a relatively straightforward motion to dismiss

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Speaker 1: the criminal case. But this case was really not like

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Speaker 1: any other that any judge had dealt with before. Given

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Speaker 1: the reasons that the Department of Justice had given for

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Speaker 1: the dismissal, what the judge did here was to go

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Speaker 1: through them one by one and basically refute the reasons

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Speaker 1: that the government gave for the dismissal. The government, for example,

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Speaker 1: first argued that the prosecution had been painted by appearance

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Speaker 1: of impropriety. The judge found that that was unsupported by

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Speaker 1: any objective evidence, and really stood up for this Southern

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Speaker 1: District US Attorney's office here by making a finding in

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Speaker 1: this opinion that the prosecutors who worked on the case

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Speaker 1: followed all appropriate Justice Department guidelines. He even went so

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Speaker 1: far as to say there is no evidence zero that

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Speaker 1: they had any improper motives, and so in that respect

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Speaker 1: he did not agree with that basis for the dismissal.

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Speaker 1: He also took issue with the dog's assertion that the case,

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Speaker 1: which had been brought nine months before the twenty twenty

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Speaker 1: five New York City mayoral primary election, was somehow amounting

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Speaker 1: to election interference He said that that lacked any support

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Speaker 1: in Justice Department guidelines or past practice, and that the

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Speaker 1: timing of the case, he said, was entirely consistent with

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Speaker 1: prior public corruption prosecution. And then finally, he turned into

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Speaker 1: what was clearly the most controversial basis for the dismissal

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Speaker 1: of this criminal and day, which was that the indictment

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Speaker 1: itself was interfering with the mayor's ability to assist with

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Speaker 1: immigration enforcement. In other words, the Department of Justice was

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Speaker 1: arguing that, by virtue of the mayor's position as the

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Speaker 1: mayor of New York, someone who the administration was looking

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Speaker 1: to gain assistance and carrying out their immigration enforcement priorities,

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Speaker 1: that this criminal case was interfering with that ability. The

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Speaker 1: judge said that that was simply not true. He noted

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Speaker 1: that after the DOJ had made the decision to seek

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Speaker 1: dismissal of the case, the mayor announced that he would

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Speaker 1: permit immigration and Customs enforcement to operate on Rikers Island,

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Speaker 1: a decision that he said appears to be contrary to

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Speaker 1: New York law. And so essentially what the court found

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Speaker 1: here was the record did not show that this case

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Speaker 1: impaired the mayor's ability in his immigration enforcement efforts. Quite

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Speaker 1: the contrary, The judge said, it showed that after the

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Speaker 1: DOJ decided to seek dismissal of the case, took at

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Speaker 1: least one new immigration related action consistent with the preferences

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Speaker 1: of the new administration. And then the judge wrote something

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Speaker 1: that I think was the most scathing comment in this

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Speaker 1: entire opinion. The judge wrote, everything here smacks of a

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Speaker 1: bargain dismissal of the indictment in exchange for immigration policy concessions.

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Speaker 3: I mean, basically, he admitted that he had no choice

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Speaker 3: but to drop the case. I guess unless he would

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Speaker 3: want to appoint a special prosecutor to prosecute it going forward.

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Speaker 3: That seems unwieldy.

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Speaker 1: So, you know, having made all these findings, where the

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Speaker 1: judge really challenged the basis for the DOJ's request to

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Speaker 1: dismiss this case, he characterized the Department of Justice's positions

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Speaker 1: as both unprecedented and breasttaking. He said, the DOJ site

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Speaker 1: no examples, and the court is unable to find any

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Speaker 1: where the government had dismissed charges against an elected official

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Speaker 1: because doing so would enable that elected official to facilitate

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Speaker 1: federal policy goals. He said that the dog's position that

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Speaker 1: was argued by the acting Deputy Attorney General Ema beauvet

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Speaker 1: in seeking the dismissal of this case would essentially amount

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Speaker 1: to a quote virtually unreviewable, close quote license to dismiss

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Speaker 1: charges on this basis. He said that it would basically

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Speaker 1: imply that public officials may receive special dispensation if they

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Speaker 1: are compliant with the incumbent administration's policy priorities. And he

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Speaker 1: found that very troubling, very troubling.

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Speaker 3: But that's what happened. I mean, Eric Adams is getting

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Speaker 3: off scott free from these charges, never has to face

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Speaker 3: them again because he's the mayor of New York who

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Speaker 3: agreed to cooperate with the Trump administration. That's what this

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Speaker 3: case is about.

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Speaker 1: And I think what we see here is that the

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Speaker 1: judge agreed with many of the submissions to the court

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Speaker 1: Friend of the Court briefs as they're called, where a

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Speaker 1: different outside party had urged the judge to deny this

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Speaker 1: motion altogether, to not grant the government's motion to dismiss

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Speaker 1: the law case on the basis that the reasons offered

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Speaker 1: by the government were improper and unprecedented. But ultimately the

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Speaker 1: judge decided that his hands were essentially tie here, and

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Speaker 1: while he did sympathize with those who suggested that the

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Speaker 1: case should go forward, he ultimately decided that the court

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Speaker 1: has no ability to move a case forward where prosecutors

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Speaker 1: simply refuse to continue to bring the case. He noted

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Speaker 1: that there are examples where an individual prosecutor who might

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Speaker 1: be seeking to dismiss the case for improper reasons could

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Speaker 1: be replaced and somebody else then steps in to prosecute

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Speaker 1: the case, but he noted that in this case, where

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Speaker 1: it was the Department of Justice itself that was seeking

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Speaker 1: the dismissal, he really had no choice. He noted that

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Speaker 1: the court cannot force the Department's Justice to prosecute a defendant,

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Speaker 1: and that the court's role in a criminal case is

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Speaker 1: to preside over the matter, not to decide whether the

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Speaker 1: defendant should be prosecuted. The court also addressed an issue

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Speaker 1: that had been braced by some of the outside parties

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Speaker 1: who urged that he not dismissed the case, to say

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Speaker 1: that a special prosecutor, an independent prosecutor outside of the

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Speaker 1: Department of Justice, could be appointed to prosecute this case,

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Speaker 1: but he found no basis to do that. Outside of

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Speaker 1: the limited context of criminal contempt. So essentially, although the

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Speaker 1: judge did not agree with the bases that the Department's

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Speaker 1: Justice was arguing in dismissal his case, he found that

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Speaker 1: he had no choice but to dismiss the case, but

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Speaker 1: he wanted to do it with prejudice so that it

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Speaker 1: would at least avoid the appearance that the government was

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Speaker 1: hanging this case over Mayor Adam's head in order to

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Speaker 1: enforce his continued cooperation with their immigration policy, and.

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Speaker 3: Perhaps because Mayor Adams and his defense attorney often interpret

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Speaker 3: the different decisions in this case as proving his innocence.

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Speaker 3: The judge said he wasn't making any decision about whether

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Speaker 3: Adams is innocent or guilty.

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Speaker 1: That's absolutely right, and the Court went to great lengths

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Speaker 1: to make very clear that this was not a decision

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Speaker 1: on the merit. The court said it was not deciding

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Speaker 1: whether the Mayor was innocent or guilty. Obviously, Mayor Adams,

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Speaker 1: like any other criminal defendant, is presumed innocent until proven guilty.

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Speaker 1: But the Court wanted to make clear that the Department

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Speaker 1: of Justice's decision to abandon this case will mean that

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Speaker 1: that question is never answered, and that the Court is

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Speaker 1: in no way pining on the strength of the criminal

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Speaker 1: case or the wisdom of bringing it or dismissing it.

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Speaker 3: I've been reading that this recognizes the president's power to

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Speaker 3: determine the fate of prosecutions. But is there anything really

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Speaker 3: new here in that regard except there was a fight

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Speaker 3: not to drop the charges. But the executive branch has

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Speaker 3: always had the ability to drop charges, right.

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Speaker 1: I mean, that's really an excellent point here, because to

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Speaker 1: many people this looks as if this is some new

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Speaker 1: power that the executive is wielding here that they've never

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Speaker 1: had before, that the Department of Justice can now dismiss

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Speaker 1: the criminal case for virtually any reason at all. But

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Speaker 1: the reality is that has always been the case. We've

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Speaker 1: just never seen the Department of Justice go on the

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Speaker 1: records and state that the basis for dismissing a case

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Speaker 1: is to allow an elected official to carry out a

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Speaker 1: policy priority for the administration. But the reality is that

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Speaker 1: courts cannot force prosecutors to continue to prostitute cases. The role,

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Speaker 1: as the judge said here, of the court is simply

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Speaker 1: to hear those cases and to rule over the trial,

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Speaker 1: but not to make decisions about which cases to bring

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Speaker 1: and which cases to.

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Speaker 3: Dismiss and Judge Hoe's ruling was basically in line with

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Speaker 3: the recommendations of the court appointed legal expert Paul Clement.

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Speaker 1: Yes, so what happened in this case is to cause

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Speaker 1: both the defense and the government were aligned in their

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Speaker 1: position that the case should be dismissed. The judge wanted

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Speaker 1: somebody to put on the record the arguments either for

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Speaker 1: or against the dismissal, and so he sought out the

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Speaker 1: court of pointed assistance of Paul Clement, who had been

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Speaker 1: the US Solicitor General and who was a well regarded

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Speaker 1: conservative lawyer, to take a look at this issue and

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Speaker 1: to advise the Court on what to do here. And

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Speaker 1: ultimately Paul Clement recommended to the Court that the case

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Speaker 1: be dismissed with prejudice to avoid that appearance that the

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Speaker 1: government continued to hold the sword of Damocles, so to

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Speaker 1: speak over the mayor if he did not carry out

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Speaker 1: the administration's policy objectives. But at the same time, Paul

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Speaker 1: Clement noted that all roads here lead to dismissal with prejudice,

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Speaker 1: and that was really the only option for the court

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Speaker 1: under these circumstances.

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Speaker 3: So for once we can really say case closed. Thanks

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Speaker 3: so much, Bob. That's Robert Mints of maccarter and English

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Speaker 3: coming up next on the Bloomberg Law Show. The most

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Speaker 3: expensive judicial race in history and what it tells us

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Speaker 3: I'm June Gross when you're listening to Bloomberg.

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Speaker 5: All right, Wisconsin, we did it.

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Speaker 3: It's the most expensive judicial race in our history. And

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Speaker 3: in Wisconsin, Democratic backed judge Susan Crawford defeated a challenger

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Speaker 3: endorsed by President Trump and billionaire Elon Musk in the

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Speaker 3: state Supreme Court election. The win cements a liberal majority

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Speaker 3: on the state's top court for at least three more years,

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Speaker 3: and Crawford touted her victory as a win against powerful interests.

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Speaker 5: Wisconsin's stood up and said loudly that justice does not

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Speaker 5: have a price. Our courts are not for sale.

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Speaker 3: Musk and groups he backed had spent more than twenty

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Speaker 3: one million dollars in an effort to defeat Crawford. He

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Speaker 3: even traveled to Wisconsin two days before the election to

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Speaker 3: personally hand over one million dollar checks to two voters.

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Speaker 3: Crawford defeated Republican backed Brad Schimmel in a race that

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Speaker 3: broke record. It's for spending was the highest turnout Wisconsin

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Speaker 3: Supreme Court election ever and became a proxy fight for

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Speaker 3: the nation's political battles and voters feelings about the new administration.

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Speaker 3: Joining me is elections law expert Richard Brefaldt, a professor

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Speaker 3: at Columbia Law School. This Wisconsin Supreme Court race is

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Speaker 3: officially non part is in, but it seemed nothing but

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Speaker 3: part is in from early on.

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Speaker 6: Well, even a non partisan simply means that there's no

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Speaker 6: partisan line on the ballot. Obviously, parties are free to

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Speaker 6: make endorsements of candidates and even to designate that this

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Speaker 6: is the party's preferred candidates. In effect, nominate candidates just

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Speaker 6: that the party line doesn't appear on the ballot. This

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Speaker 6: is pretty common in many non partisan elections. What nonpartisans

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Speaker 6: means is simply there's no partisan affiliation on the ballot.

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Speaker 6: There's nothing that could stop parties from nominating candidates from

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Speaker 6: making endorsements. Indeed, they have that constitutional right.

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Speaker 3: This is officially the most money spent for judicial election,

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Speaker 3: right over one hundred million dollars. Why is this race

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Speaker 3: so important to both Democrats and Republicans.

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Speaker 6: Well, I think it was important in two ways. One

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Speaker 6: is the more the narrow Wisconsin on significance, which is

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Speaker 6: not to be too light about it. The Wisconsin Supreme Court,

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Speaker 6: which is a right now a narrow four to three

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Speaker 6: majority of liberals versus conservatives, which was established two years

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Speaker 6: ago when a liberal judge won and thereby flipping the

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Speaker 6: control of the court from four to three conservatives. They

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Speaker 6: have a number of important issues in front of One

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Speaker 6: of them is abortion. With the Dabbs decision, tw one

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Speaker 6: hundred and seventy year old Wisconsin law banning abortions could

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Speaker 6: potentially come back on the books, so the status of

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Speaker 6: abortion in Wisconsin is up for grabs. There are some

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Speaker 6: issues dealing with the recognition of public employ unions, and

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Speaker 6: there's potentially a lawsuit challenging the districting of Wisconsin's congressional

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Speaker 6: delegation as a gerrymanderin violation of the state constitution. Wisconsin

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Speaker 6: is a pre evenly divided state, but the congressional delegation

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Speaker 6: is six Republicans the two Democrats. So all these things

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Speaker 6: meant that the stakes were pretty high in Wisconsin. And

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Speaker 6: then of course you throw in the fact that this

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Speaker 6: was really the first you could call it the first

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Speaker 6: by election, the first significant statewide by election since Trump's election,

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Speaker 6: and it became very quickly on a kind of a

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Speaker 6: little early referendum on Trump and especially on Musk. Since

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Speaker 6: Musk threw himself into this election very personally, very dramatically,

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Speaker 6: himself committing tens of millions of dollars and personally campaigning

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Speaker 6: for the Republican candidate. It became very much a referendum

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Speaker 6: on trumpet especially on Musk's role I think in the

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Speaker 6: Trump administration. And so it really became a focus of

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Speaker 6: nationwide spending. Money coming from all over the country, I

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Speaker 6: should say, rather, and supporters coming from all over the country.

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Speaker 6: And Trump also made an endorsement, and some prominent Democrats

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Speaker 6: came and campaigned for the Democratic judge.

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Speaker 3: Yeah, I mean, I think more people know about this

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Speaker 3: race because of Musk's involvement than anything else. He's the

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Speaker 3: same playbook that he used in twenty twenty four, you know,

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Speaker 3: the pouring of millions of dollars bought paid canvassers, broadcast ads,

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Speaker 3: and he gave away a handful of checks in the

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Speaker 3: amount of one million dollars to voters who signed a

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Speaker 3: petition circulated by his super Political Action Committee. They tried

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Speaker 3: to fight that the Democrats, but the state Supreme Court

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Speaker 3: didn't take the case.

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Speaker 6: Is that legal, Well, what he has figured it out

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Speaker 6: is you can sidestep the state laws that prohibit paying

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Speaker 6: people for voting, which most states have laws something like that.

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Speaker 6: It would be illegal to pay somebody to vote or

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Speaker 6: pay somebody because they voted. So what he did both

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Speaker 6: in the presidential election last year in Pennsylvania and here

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Speaker 6: is to sidestep that and say I'm paying you to

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Speaker 6: sign a petition. I think in both cases, or at

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Speaker 6: least in this one, was a petition opposing activist judges.

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Speaker 6: I think it was originally offering small amounts for that,

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Speaker 6: and they're offering very big amounts for people who would become,

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Speaker 6: in his words, spokesman for his campaign against activist judges.

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Speaker 6: So I think the two people received a million dollar

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Speaker 6: checks were selected as spokesman. And although initially he said

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Speaker 6: you're not eligible for this, you're not eligible for some

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Speaker 6: other things he was giving away unless you could show

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Speaker 6: that you voted, was a way of given an incentive

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Speaker 6: to people to vote early. When it was pointed out

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Speaker 6: that that was probably illegal, immediately dropped the voting requirement

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Speaker 6: and says it's open to everybody, or raping opatol registered voters.

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Speaker 6: All you've got to do is sign a petition. And

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Speaker 6: by moving away from voting to signing a petition, he

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Speaker 6: was able to sidestep the prohibition on vote buying now

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Speaker 6: established as a technique. And I think here or arthurs

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Speaker 6: will get away with that.

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Speaker 3: I mean, voter turnout was over fifty two percent, and

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Speaker 3: the record in twenty twenty three was forty percent. So

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Speaker 3: I don't know if it was driven by Musk or

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Speaker 3: driven by the fact that the tilt of the state

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Speaker 3: Supreme Court was dependent on this election.

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Speaker 6: Or the two together. I mean, I think must clearly.

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Speaker 6: I mean, I think Musk went into sort of I

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Speaker 6: love the Republican vote, and at the same time and

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Speaker 6: so doing, he also drove up the Democratic vote. I

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Speaker 6: think it just shows what, you know, what a polarizing

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Speaker 6: figure he is. He probably increased the vote on both

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Speaker 6: sides if we look.

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Speaker 3: At this as an indicator of how Trump is doing

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Speaker 3: or the reaction to Musk. Yet, in Florida, Republicans safely

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Speaker 3: held onto their seats, winning about fifty seven percent of

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Speaker 3: the votes in both districts, although it's down from the

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Speaker 3: two thirds that the Republican candidates won in the last elections.

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Speaker 3: Does that show that these elections really aren't sort of

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Speaker 3: a referendum on the Trump administration so far?

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Speaker 6: It's hard to say. I mean, I think, right, it's

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Speaker 6: glasses half empty, glasses half full. Republicans won both of

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Speaker 6: those seats, but those were heavily Republican seats, and I

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Speaker 6: think not only did Trump win those districts by like

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Speaker 6: over seventy percent, but the Republicans they replaced Matt Gates

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Speaker 6: and the current National Security devisor also I think won

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Speaker 6: like seventy percent of the vote. And so I mean

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Speaker 6: it's true, going from you know, fifty six to fifty

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Speaker 6: seven percent, which I think is what the two Republicans got,

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Speaker 6: that's a pretty big victory. It's like it is a

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Speaker 6: fourteen to fifteen point margin, but it was thirty points

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Speaker 6: in prior. So these are districts that would be almost

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Speaker 6: impossible for Democrats to take. They did better. So I think,

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Speaker 6: you know, in the latest round of there are a couple

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Speaker 6: of special elections for state legislature in Pennsylvania and Iowa,

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Speaker 6: and Democrats have done better than they were doing before.

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Speaker 1: Is it?

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Speaker 6: And off with as it tell us. It's hard to say.

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Speaker 6: I think in some ways the biggest takeaway, the biggest

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Speaker 6: Democratic victory was the one in Wisconsin, and that was

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Speaker 6: about Musk. And it may be telling us that whereas

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Speaker 6: Trump still I think is numbers are still just above water.

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Speaker 6: The DOGE part may not be that popular. Trump was,

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Speaker 6: you know, elected on a bunch of issues involving immigration

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Speaker 6: and inflation, and you know those may be popular, but

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Speaker 6: you know, the widespread kind of unreasoned, extensive cuts, you know,

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Speaker 6: firing large numbers of federal employees, slashing agents, that may

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Speaker 6: not be that popular. And you know, this may be

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Speaker 6: a way in some ways of giving a split verdict

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Speaker 6: and saying, you know, we still want Republicans in charge

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Speaker 6: the people of voters, and floyerd to say, but we

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Speaker 6: don't want Musk in charge. And that's what the voters

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Speaker 6: in Wisconsin said.

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Speaker 3: Political has reported that Trump told his inner circle that

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Speaker 3: Musk will leave soon.

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Speaker 6: He's gone back and forth on that. I mean in theory,

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Speaker 6: and in theory, Musk is what called a special government

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Speaker 6: employee in SGE, which basically is a term use for

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Speaker 6: people who are from the private sector who come into

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Speaker 6: government and work for no more than one hundred and

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Speaker 6: thirty days as a result of which they are subject

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Speaker 6: to some restrictions that apply to government employees but not

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Speaker 6: to all of them, so they can maintain their outside jobs,

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Speaker 6: among other things. And the assumption that Musk is working

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Speaker 6: full time around the clock, as he says, one hundred

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Speaker 6: and thirty days, will you know, expire some time in May. Now,

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Speaker 6: there's not much enforcement that would happen if he kept

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Speaker 6: remaining in his current position, but that does suggest that

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Speaker 6: that might provide a hook for reducing his role. There's

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Speaker 6: also nothing to prevent them from reappointing him as an

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Speaker 6: SG Again, I mean, it would require somebody to enforce this,

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Speaker 6: and it's not clear that anybody in the government is

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Speaker 6: interested in enforcing that rule. But that is the rule.

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Speaker 3: A lot of rules are not being followed, so we

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Speaker 3: will see what happens. Thanks so much, rich that's Professor

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Speaker 3: Richard Rafault of Columbia Law School. I'm June Grosso. When

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Speaker 3: you're listening to Bloomberg. The Supreme Court appeared divided today

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Speaker 3: in oral arguments over whether state should be able to

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Speaker 3: cut off medicaid funding to plan parenthood. The arguments come

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Speaker 3: amid a wider push from abortion opponents to defund the

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Speaker 3: nation's largest abortion provider. The court is considering a legal

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Speaker 3: question that could have wider effects, whether Medicaid patients can

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Speaker 3: continue to sue over the right to choose their own

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Speaker 3: qualified provider. Joining me is an expert in reproductive rights,

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Speaker 3: Marry Ziegler, a professor at UC Davis Law School. The

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Speaker 3: case is not technically about abortion, but it involves Planned Parenthood,

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Speaker 3: the nation's biggest abortion provider, and it's drawing a lot

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Speaker 3: of attention, even demonstrations outside the courthouse. I mean, what's

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Speaker 3: the issue that's strong people?

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Speaker 4: Well, I think that people understand that this case could

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Speaker 4: have a major impact on Planned Parenthood and on certainly

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Speaker 4: access to abortion and access to other reproductive health services. So,

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Speaker 4: even though this is not a case about abortion, it

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Speaker 4: will have impacts on abortion and on reproductive healthcare. And

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Speaker 4: that's because South Carolina is trying to basically keep Planned

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Speaker 4: Parenthood out of its Medicaid program, and that would have

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Speaker 4: downstream consequences for Planned Parenthood and for patients.

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Speaker 3: The South Carolina governor cut off Medicaid funding for Planned

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Speaker 3: Parenthood because it provides abortion services, saying it was like

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Speaker 3: taxpayer funding for abortion. The issue, though, is a technical

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Speaker 3: question about statutory interpretation.

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Speaker 4: That's correct, right. So the issue in the case is

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Speaker 4: about the Medicaid Statute, a particular part of it called

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Speaker 4: the choice of provider provision, which says that Medicaid beneficiaries

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Speaker 4: have a right to choose their own medical provider. So

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Speaker 4: the court is considering whether that language actually gives patients

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Speaker 4: a right to go to federal court when they're denied

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Speaker 4: that choice of provider, or whether Congress wasn't clear enough

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Speaker 4: about that right existing in the federal law.

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Speaker 3: And so tell me what the basic argument of planned

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Speaker 3: parenthood and what the argument of South Carolina is.

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Speaker 1: Well.

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Speaker 4: South Carolina has said, essentially that the words that Congress

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Speaker 4: used were not right, conferring enough right. They didn't use

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Speaker 4: the magic word like right or privilege or entitlement, and

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Speaker 4: Plan Karnhood is arguing that Congress shouldn't have to do that,

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Speaker 4: and that under the court's precedence, Congress was plenty clear

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Speaker 4: enough that there was in fact a right in federal court.

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Speaker 4: So the question really is about how clear Congress was

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Speaker 4: number one, and number two, how clear Congress needs to

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Speaker 4: be in this context and more generally when doing rights conferral.

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Speaker 3: So it seemed that the three liberal justices at least

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Speaker 3: suggested that Congress had clearly established an obligation on the

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Speaker 3: States to allow patients to see any qualified provider and

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Speaker 3: to go to court to vindicate that. Justice Kagan said

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Speaker 3: that blocking them from suing would be a real change.

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Speaker 3: This is kind of changing the rules mid stream, Isn't

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Speaker 3: it Tell me what she means by that?

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Speaker 4: Well, I think what Justice Kagan was saying was that

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Speaker 4: for a long time, most of the circuit courts had

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Speaker 4: assumed that a right to sue existed as far as

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Speaker 4: the choice of provider provision was concerned, and that this

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Speaker 4: would be essentially telling those beneficiaries that's no longer the case,

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Speaker 4: telling Congress that the rules for creating a right to

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Speaker 4: sue are different, right, which would have potential impacts not

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Speaker 4: just in the medicaid context, not just in the abortion context,

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Speaker 4: but well beyond it. And so Justice Kagan was essentially

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Speaker 4: saying what had always been good enough or clear enough

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Speaker 4: before should be good enough or clear enough now.

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Speaker 3: The sort of justice in the middle, the Chief Justice

440
00:25:27,960 --> 00:25:31,359
Speaker 3: John Roberts and just Amy Cony Barrett did ask some

441
00:25:31,480 --> 00:25:37,200
Speaker 3: questions that seemed to express concerns that people on Medicaid

442
00:25:37,320 --> 00:25:41,000
Speaker 3: wouldn't have any real way to challenge a state's decision

443
00:25:41,760 --> 00:25:45,400
Speaker 3: to nix their preferred healthcare provider.

444
00:25:46,400 --> 00:25:49,720
Speaker 4: Yeah, I think that's exactly right. I think that South

445
00:25:49,760 --> 00:25:54,119
Speaker 4: Carolina had emphasized that they were sort of administrative procedures

446
00:25:54,480 --> 00:25:58,280
Speaker 4: by which someone could challenge a denial of provider. But

447
00:25:58,880 --> 00:26:03,080
Speaker 4: both the Chief Justice Justice Spirit didn't seem entirely convinced

448
00:26:03,080 --> 00:26:07,600
Speaker 4: that that would give beneficiaries a remedy. And then you know,

449
00:26:07,920 --> 00:26:10,000
Speaker 4: the question is, well, so what. But I think both

450
00:26:10,040 --> 00:26:13,199
Speaker 4: the Chief Justice and Justice Spirit recognized the Congress clearly

451
00:26:13,280 --> 00:26:18,320
Speaker 4: wanted to give beneficiaries a right to choose their own provider.

452
00:26:18,400 --> 00:26:21,320
Speaker 4: That's unambiguous in the statute. And if you have a

453
00:26:21,400 --> 00:26:24,080
Speaker 4: right with no way to enforce it, then aren't you

454
00:26:24,160 --> 00:26:27,040
Speaker 4: kind of subverting congresses intent? I think that's what the

455
00:26:27,119 --> 00:26:28,959
Speaker 4: Chief Justice and Justice Spirit were asking.

456
00:26:29,400 --> 00:26:33,560
Speaker 3: Where do you think the more conservative justices were?

457
00:26:34,320 --> 00:26:38,000
Speaker 4: Well, I think you saw the more conservative justices essentially saying,

458
00:26:38,480 --> 00:26:42,280
Speaker 4: you know, clearly there's a disagreement within the circuit courts

459
00:26:42,280 --> 00:26:44,600
Speaker 4: about this, and that just means that we the court

460
00:26:44,760 --> 00:26:47,040
Speaker 4: haven't been clear enough so we need to provide a

461
00:26:47,080 --> 00:26:51,840
Speaker 4: new test, a narrower test, right to make a parent

462
00:26:52,040 --> 00:26:54,600
Speaker 4: what Congress needs to say, And they were willing, I think,

463
00:26:54,680 --> 00:26:58,480
Speaker 4: in that process to potentially make it much harder to

464
00:26:58,560 --> 00:27:01,520
Speaker 4: bring private rights of action, you know, in a bunch

465
00:27:01,560 --> 00:27:04,320
Speaker 4: of settings, not just in this one.

466
00:27:04,520 --> 00:27:06,680
Speaker 3: So I mean, do you think that there are five

467
00:27:06,760 --> 00:27:10,640
Speaker 3: votes in favor of Planned Parenthood and the right to sue?

468
00:27:11,240 --> 00:27:14,320
Speaker 4: There might be. I mean, I think there's definitely possibility

469
00:27:14,400 --> 00:27:17,200
Speaker 4: that Justice Barrett and Chief Justice Roberts will go that way.

470
00:27:17,240 --> 00:27:20,760
Speaker 4: There were some interesting moments where Justice Barrett also telegraphed

471
00:27:20,760 --> 00:27:23,560
Speaker 4: that there were other questions that might keep Planned Parenthood

472
00:27:23,560 --> 00:27:26,760
Speaker 4: from receiving Medicaid anyway, In particular, the question of whether

473
00:27:27,080 --> 00:27:30,280
Speaker 4: Planned Parenthood is a qualified provider right this case was

474
00:27:30,320 --> 00:27:32,639
Speaker 4: about whether you have a right to sue if you're

475
00:27:32,720 --> 00:27:36,560
Speaker 4: right to pick a qualified provider willing to participate in

476
00:27:36,600 --> 00:27:39,720
Speaker 4: the medicaid program is denied. But that doesn't answer the

477
00:27:39,800 --> 00:27:42,520
Speaker 4: question about whether South Carolina can just declare that Planned

478
00:27:42,520 --> 00:27:46,960
Speaker 4: Parenthood isn't a qualified Medicaid provider, And Justice spirit suggested

479
00:27:47,000 --> 00:27:50,680
Speaker 4: that she, you know, hadn't necessarily made up her mind

480
00:27:50,760 --> 00:27:54,280
Speaker 4: on that point. The kind of whether qualified question, So

481
00:27:54,400 --> 00:27:56,800
Speaker 4: we may see more litigation anyway.

482
00:27:57,920 --> 00:28:00,400
Speaker 3: Could they decide not to decide or to send back

483
00:28:00,400 --> 00:28:01,560
Speaker 3: for different questions.

484
00:28:02,240 --> 00:28:04,080
Speaker 4: Yeah, I mean, I think this case is about the

485
00:28:04,200 --> 00:28:07,159
Speaker 4: narrow issue of whether or not this language of the

486
00:28:07,280 --> 00:28:10,080
Speaker 4: choice of provider provision creates a right to sue in

487
00:28:10,119 --> 00:28:15,280
Speaker 4: federal court or not. But there could be separate litigation

488
00:28:15,520 --> 00:28:18,280
Speaker 4: about whether planned parenthood is qualified. This case does not

489
00:28:18,440 --> 00:28:21,480
Speaker 4: involve that question, but another one could.

490
00:28:22,200 --> 00:28:22,320
Speaker 2: So.

491
00:28:22,760 --> 00:28:26,640
Speaker 3: Isn't there a twenty twenty three ruling involving the rights

492
00:28:26,680 --> 00:28:30,160
Speaker 3: of nursing home residents where the Supreme Court said that

493
00:28:30,560 --> 00:28:34,480
Speaker 3: laws like Medicaid give individuals the right to sue.

494
00:28:35,000 --> 00:28:35,200
Speaker 6: Yeah.

495
00:28:35,280 --> 00:28:38,360
Speaker 4: Yeah, So there was a twenty twenty three ruling from

496
00:28:38,400 --> 00:28:41,680
Speaker 4: the Supreme Court that you know, laid out a framework

497
00:28:41,720 --> 00:28:43,680
Speaker 4: for determining when you have a right to sue. It

498
00:28:43,720 --> 00:28:46,240
Speaker 4: was about a different part of the Medicaid statute, but

499
00:28:46,880 --> 00:28:48,920
Speaker 4: it was about a right to sue under a part

500
00:28:48,960 --> 00:28:52,680
Speaker 4: of the Medicaid statute. So I think again, some of

501
00:28:52,720 --> 00:28:56,000
Speaker 4: the justices were simply saying, well, we've already answered this question.

502
00:28:56,120 --> 00:28:59,080
Speaker 4: We were clear enough. We don't need to rewrite the

503
00:28:59,160 --> 00:29:02,400
Speaker 4: test in narrow rights to sue, even further or create

504
00:29:02,440 --> 00:29:05,280
Speaker 4: an even higher bar for Congress to clear when it

505
00:29:05,320 --> 00:29:07,240
Speaker 4: wants to suggest that there is in fact a right

506
00:29:07,320 --> 00:29:10,160
Speaker 4: to sue, and some of the justices, like Justice Kavanaugh,

507
00:29:10,600 --> 00:29:13,800
Speaker 4: at various points said the fact that this case exists,

508
00:29:13,840 --> 00:29:16,800
Speaker 4: the fact that their disagreements within the circuit courts, suggests

509
00:29:16,840 --> 00:29:21,160
Speaker 4: that the Court should tweak that twenty twenty three rulings further.

510
00:29:22,320 --> 00:29:25,600
Speaker 3: There seems to be a real divide in the views

511
00:29:25,640 --> 00:29:29,720
Speaker 3: of the people who heard the oral arguments about which

512
00:29:29,800 --> 00:29:32,200
Speaker 3: side the justices were leaning in.

513
00:29:33,080 --> 00:29:36,160
Speaker 4: Yeah, I didn't get a clear reading on it either.

514
00:29:36,520 --> 00:29:40,760
Speaker 4: I think that if you're trying to place bets, if

515
00:29:40,800 --> 00:29:43,640
Speaker 4: people are that not in accord on what the justices

516
00:29:43,680 --> 00:29:46,080
Speaker 4: are doing, it's safe to assume that we don't know

517
00:29:46,080 --> 00:29:49,880
Speaker 4: what the justices are doing, so that there's more uncertainty

518
00:29:50,840 --> 00:29:54,720
Speaker 4: going in in terms of whether this decision goes the

519
00:29:54,760 --> 00:29:57,240
Speaker 4: way of planned parenthood or not. I mean, I think ultimately,

520
00:29:57,760 --> 00:30:00,920
Speaker 4: whatever happens, the effort to defund planned parenthood is going

521
00:30:00,960 --> 00:30:04,040
Speaker 4: to continue. The other thing that's probably worth emphasizing is

522
00:30:04,120 --> 00:30:07,160
Speaker 4: that's in part because keeping planned parenthood out of some

523
00:30:07,280 --> 00:30:11,560
Speaker 4: states medicaid programs will have the least significant impact on

524
00:30:11,600 --> 00:30:15,360
Speaker 4: Planned Parenthood's political and advocacy work. It will have the

525
00:30:15,400 --> 00:30:18,320
Speaker 4: most impact on the ability of affiliates in states like

526
00:30:18,360 --> 00:30:24,080
Speaker 4: South Carolina to provide non abortion services. So that's really

527
00:30:24,120 --> 00:30:27,440
Speaker 4: what's on the line here, and there will likely be

528
00:30:28,000 --> 00:30:31,080
Speaker 4: ongoing efforts to defund that kind of work regardless of

529
00:30:31,080 --> 00:30:32,320
Speaker 4: what Supreme Court does here.

530
00:30:32,680 --> 00:30:37,360
Speaker 3: Three states, right, Texas, Arkansas, Missouri already block Planned Parenthood

531
00:30:37,360 --> 00:30:38,800
Speaker 3: from seeing Medicaid patients.

532
00:30:39,240 --> 00:30:42,440
Speaker 4: That's correct, and we would expect to see more follow

533
00:30:42,520 --> 00:30:44,920
Speaker 4: suit if the Supreme Court gives the green light.

534
00:30:45,160 --> 00:30:47,480
Speaker 3: Have there been suits over that those three states?

535
00:30:47,920 --> 00:30:50,480
Speaker 4: Yeah, I mean there have been lots of suits over

536
00:30:50,560 --> 00:30:54,280
Speaker 4: time about this choice of provider provision. There have been

537
00:30:54,280 --> 00:30:57,240
Speaker 4: efforts to keep Planned Parenthood out of the Medicaid program,

538
00:30:57,280 --> 00:30:59,920
Speaker 4: going back at least to the two thousand oughts in

539
00:31:00,080 --> 00:31:04,000
Speaker 4: twenty tens, all of them kicked off by Lilah Rose

540
00:31:04,880 --> 00:31:08,560
Speaker 4: and her now famous viral videos that were heavily edited

541
00:31:08,600 --> 00:31:12,360
Speaker 4: and shot at Planned Parenthood. So we've seen litigation of

542
00:31:12,360 --> 00:31:17,120
Speaker 4: this kind often on now for decades. And what was notable,

543
00:31:17,120 --> 00:31:19,480
Speaker 4: of course, is the Supreme Court even took this case, right,

544
00:31:19,520 --> 00:31:21,640
Speaker 4: I mean, there had not been four votes on the

545
00:31:21,640 --> 00:31:24,520
Speaker 4: Court to take the case about the Medicaid choice of

546
00:31:24,560 --> 00:31:27,480
Speaker 4: provider provision. To date, even though there has been fighting

547
00:31:27,520 --> 00:31:29,440
Speaker 4: in the lower courts about it for some time.

548
00:31:29,640 --> 00:31:33,160
Speaker 3: Trump in his first term tried to strip funding from

549
00:31:33,320 --> 00:31:36,560
Speaker 3: Planned parenthood. What's he doing in this second term.

550
00:31:36,280 --> 00:31:39,960
Speaker 4: So far, Well, we've seen different sort of ways the

551
00:31:40,000 --> 00:31:46,280
Speaker 4: Trump administration is attacking this kind of funding. So obviously,

552
00:31:46,880 --> 00:31:51,080
Speaker 4: just a day ago, the Trump administration announced it was

553
00:31:51,120 --> 00:31:54,960
Speaker 4: withholding tens of millions of dollars from Planned parenthood clinics

554
00:31:55,120 --> 00:31:59,520
Speaker 4: under the Title ten program. At the moment, the notification

555
00:31:59,600 --> 00:32:03,360
Speaker 4: said the funding was being temporarily withheld on the basis

556
00:32:03,400 --> 00:32:07,880
Speaker 4: of quote possible violations unquote of federal civil rights laws.

557
00:32:08,160 --> 00:32:13,200
Speaker 4: In particular, there were references to DEI programming and subsitization

558
00:32:13,560 --> 00:32:18,600
Speaker 4: of open borders, nothing particularly about a work or contraception,

559
00:32:18,760 --> 00:32:22,280
Speaker 4: and no sense in which these grants will necessarily be permanent.

560
00:32:22,920 --> 00:32:25,480
Speaker 4: But of course, in the last Trump administration there was

561
00:32:25,520 --> 00:32:31,200
Speaker 4: subsequently rule making on Title ten that led to essentially

562
00:32:31,760 --> 00:32:35,200
Speaker 4: not allowing Title ten recipients to refer patients for abortion

563
00:32:35,320 --> 00:32:38,719
Speaker 4: or discuss it as an option, and those rules were

564
00:32:38,800 --> 00:32:41,480
Speaker 4: later scrapped by the Biden administration. We could see more

565
00:32:41,560 --> 00:32:44,360
Speaker 4: rulemaking like that from Trump in the future. But rulemaking

566
00:32:44,600 --> 00:32:48,760
Speaker 4: is you know, obviously more time consuming and a slower

567
00:32:48,800 --> 00:32:53,520
Speaker 4: process than what we're already seeing, which is this temporary pause.

568
00:32:54,200 --> 00:32:57,000
Speaker 3: Finally, can you sum up what the ramifications of a

569
00:32:57,080 --> 00:32:59,239
Speaker 3: ruling against Planned parenthood would be.

570
00:33:00,080 --> 00:33:03,760
Speaker 4: It would not be an end to Planned Parenthood as

571
00:33:03,800 --> 00:33:07,880
Speaker 4: a kind of major political player, because Planned parenthod's bylaws

572
00:33:08,000 --> 00:33:10,360
Speaker 4: ensure that a lot of the money it takes in

573
00:33:10,520 --> 00:33:13,800
Speaker 4: from private donations and foundations, which often tends to take

574
00:33:13,800 --> 00:33:16,520
Speaker 4: in more money in the face of adverse rulings like this,

575
00:33:16,800 --> 00:33:21,080
Speaker 4: goes to Planned Parents' advocacy work. So the impact of

576
00:33:21,400 --> 00:33:24,040
Speaker 4: being kicked out of Medicaid programs in some Red states

577
00:33:24,040 --> 00:33:26,280
Speaker 4: and probably a growing number of Red states, would fall

578
00:33:26,400 --> 00:33:30,040
Speaker 4: most heavily on local affiliates that rely on those Medicaid

579
00:33:30,040 --> 00:33:34,640
Speaker 4: reimbursements and on donations to them, specifically often from local donors,

580
00:33:35,120 --> 00:33:37,360
Speaker 4: so they would take the hit financially, and that would

581
00:33:37,360 --> 00:33:40,600
Speaker 4: have likely an adverse impact on patients in communities that

582
00:33:40,680 --> 00:33:44,320
Speaker 4: already have a lack of access to primary healthcare and

583
00:33:44,400 --> 00:33:48,200
Speaker 4: certainly to obstetric and gynecological care. Though it would be

584
00:33:48,640 --> 00:33:51,080
Speaker 4: less of a blow to Planned parent as a political

585
00:33:51,120 --> 00:33:55,320
Speaker 4: actor and more of a blow to patients in underserved communities.

586
00:33:55,880 --> 00:33:59,600
Speaker 3: Always a pleasure, Mary, Thanks so much. That's Professor Mary Ziegler.

587
00:33:59,600 --> 00:34:02,440
Speaker 3: I've used law school. And that's it for this edition

588
00:34:02,480 --> 00:34:05,120
Speaker 3: of The Bloomberg Law Show. Remember you can always get

589
00:34:05,120 --> 00:34:08,279
Speaker 3: the latest legal news on our Bloomberg Law podcasts. You

590
00:34:08,320 --> 00:34:12,400
Speaker 3: can find them on Apple Podcasts, Spotify, and at www

591
00:34:12,520 --> 00:34:16,800
Speaker 3: dot Bloomberg dot com slash podcast Slash Law, and remember

592
00:34:16,840 --> 00:34:19,799
Speaker 3: to tune into The Bloomberg Law Show every weeknight at

593
00:34:19,840 --> 00:34:23,279
Speaker 3: ten pm Wall Street Time. I'm June Grosso and you're

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Speaker 3: listening to Bloomberg