WEBVTT - Trump SEC, Tariffs, FTC Firings, FCC Subsidy

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<v Speaker 1>Hello, and welcome to the Votes and Verdicts podcast, hosted

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<v Speaker 1>by the Litigation and Policy team at Bloomberg Intelligence, the

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<v Speaker 1>investment research platform of Bloomberg LP on the Bloomberg Terminal.

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<v Speaker 1>Bloomberg Intelligence is five hundred analysts and strategists working across

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<v Speaker 1>the globe and focused on all major markets. Our coverage

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<v Speaker 1>outlooks on more than ninety industries and one hundred market industries,

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<v Speaker 1>currencies and commodities. This podcast series examines the intersection of

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<v Speaker 1>business policy and law, and today we'll be looking at

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<v Speaker 1>the litigation and policy catalysts that we're watching this week

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<v Speaker 1>and that we think will impact companies across a number

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<v Speaker 1>of different sectors. My name is Elliot Stein. I'm an

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<v Speaker 1>analyst with Bloomberg and te Elligence covering litigation in the

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<v Speaker 1>financials sector, and I'll be your host for today in

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<v Speaker 1>March twenty seventh, twenty twenty five, and I'm delighted today

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<v Speaker 1>to be joined by a number of my colleagues on

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<v Speaker 1>the Litigation and Policy team. And as always, you can

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<v Speaker 1>find all of our research on the Bloomberg terminal at

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<v Speaker 1>big and more specifically on our dashboard BI laws go

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<v Speaker 1>all right, so let's get started. Nathan Dean, let's bring

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<v Speaker 1>you in. Nathan Covers a financials policy out of Washington,

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<v Speaker 1>d C. He's our go to guy in DC. We

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<v Speaker 1>had confirmation hearings today for Paul Atkins, President Trump's nominee

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<v Speaker 1>to be SEC chair. I think you watched that whole

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<v Speaker 1>thing because you were sending me ibs and some messages

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<v Speaker 1>while it was going on, giving me sort of a

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<v Speaker 1>running commentary. Any takeaways.

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<v Speaker 2>Former Commissioner Paul Adkins is a Doctor Pepper fan because

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<v Speaker 2>he had a big, gigant taking it. I would have

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<v Speaker 2>thought it would have been Diekoke, but he had a

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<v Speaker 2>big Doctor Pepper or right there on the dial as

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<v Speaker 2>he was testifying. So, but you know former Commissioner Paul Atkins,

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<v Speaker 2>he is now the head of Potomac Advisors. You know,

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<v Speaker 2>he's like the godfather when it comes to SEC rules

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<v Speaker 2>and rulemakings for the conservative Republican side of Washington. I mean,

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<v Speaker 2>he he knows the SEC inside and out, and so

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<v Speaker 2>I don't think he's going to have any issues whatsoever

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<v Speaker 2>getting confirmed. And today's hearing did really dive all that

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<v Speaker 2>deep into the weeds. They never do. I mean one

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<v Speaker 2>of the bigger complaints was that from the democratic side

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<v Speaker 2>is they had four individuals in this hearing and they

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<v Speaker 2>only had one hearing. Amongst the four of them.

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<v Speaker 1>I mean four point homin news were being asked questions.

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<v Speaker 2>Yeah, so they had four nominees and Commissioner Atkins was

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<v Speaker 2>just one of them. They also had the the next

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<v Speaker 2>gentleman to be the Comptour of the currency for example.

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<v Speaker 2>So there was a lot of discussion that could have

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<v Speaker 2>gone into They didn't have much time. But you know,

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<v Speaker 2>I say, there were really three key things that he said,

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<v Speaker 2>and the first one was regulatory clarity. And this is

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<v Speaker 2>really good for the cryptocurrency industry specifically like robin Hood

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<v Speaker 2>and coinbase, because you know, the SEC has over the

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<v Speaker 2>last few years and their eyes operated is in terms

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<v Speaker 2>of gotcha violations, lots of enforcement actions. If you've read

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<v Speaker 2>any Avelliates pieces over the last year, you know the

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<v Speaker 2>SEC has been busy. But I will say that you know,

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<v Speaker 2>the regulatory clarity is something that Commissioner Akins wants to

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<v Speaker 2>move forward with and that's going to bode well for

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<v Speaker 2>the crypto industry. With the note that this is only

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<v Speaker 2>securities related anything else is outside of the SEC's jurisdiction

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<v Speaker 2>and needs Congress has approval. Second is capital formation. He

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<v Speaker 2>talked a little bit in terms of private funds. Think

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<v Speaker 2>of changing things like the accredited investor definition to make

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<v Speaker 2>it easier for individuals to investigate in private funds. You know,

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<v Speaker 2>I think that's going to be a big issue for

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<v Speaker 2>twenty twenty five. And then the third is market structure.

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<v Speaker 2>You know, when Commissioner Afkins was around in the early

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<v Speaker 2>two thousands, you know, he was one of the individuals

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<v Speaker 2>that voted on rank NMS. This is the regulation that

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<v Speaker 2>created the equity market structure that we know today, and

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<v Speaker 2>he had a lot of issues with it. Now, I

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<v Speaker 2>don't think he's going to jump in here and say, right,

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<v Speaker 2>we're going to make these changes right away. But you know,

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<v Speaker 2>in response to Senator Kim's question about the consolidated audit trail,

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<v Speaker 2>I think it's certainly something that he's going to be

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<v Speaker 2>looking at. I would just put those changes potentially in

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<v Speaker 2>like the latter half of twenty twenty six, maybe even

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<v Speaker 2>twenty twenty seven. So there's a lot here to talk about.

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<v Speaker 2>But overall, I think if you're one of the companies

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<v Speaker 2>that you're going to be regulated by the SEC. I

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<v Speaker 2>think you're going to find somebody with the chair who

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<v Speaker 2>is certainly going to take more into account the company

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<v Speaker 2>or business views towards regulations than what we've seen over

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<v Speaker 2>the last four years.

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<v Speaker 1>Absolutely, And I mean you mentioned drag an Ms. I'm

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<v Speaker 1>actually curios. Yeah, I assume he didn't say too much

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<v Speaker 1>about it. You know, I'm watching a lawsuit by CBOE

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<v Speaker 1>and NASDAC challenging against the SEC, challenging the rag Ms

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<v Speaker 1>amendments from late last year that reduced you know, access

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<v Speaker 1>feed caps and tick sizes, And I thought it was

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<v Speaker 1>interesting because you know, the SEC is you know, revisiting

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<v Speaker 1>a lot of the rules that are promulgated on the

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<v Speaker 1>President Biden, but the rag Ms rule they're still defending

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<v Speaker 1>in court. So I'm as you're really curious to see,

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<v Speaker 1>you know, how that plays out and once he comes in,

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<v Speaker 1>whether they start revisiting that and taking a different view.

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<v Speaker 2>Yeah, you know, regulation, national market system. You know, it's

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<v Speaker 2>been around for a while, and so that's the one

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<v Speaker 2>major difference between he saw effect that you see between

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<v Speaker 2>the Biden and the Trump administrations because you know, generally

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<v Speaker 2>speaking that what we're seeing coming from the Trump administration

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<v Speaker 2>at the moment is reversals of things that have been

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<v Speaker 2>finalized within the last two to three four years. But

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<v Speaker 2>the core structure of Reagan MS has been around for

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<v Speaker 2>almost fifteen years now, and so you know, there's a

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<v Speaker 2>lot more clarity, there's a lot more comfort level with

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<v Speaker 2>some of those rules. So I'm not thinking he's going

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<v Speaker 2>to be bringing a sledgehammer to it, but I think

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<v Speaker 2>incrementally you could see a scalpel maybe a little bit

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<v Speaker 2>of tweaks and amendments over the next few years.

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<v Speaker 1>The other thing that sort of cracked me up a

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<v Speaker 1>few weeks ago was that so Atkins was an expert

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<v Speaker 1>retained by Virtue, the market maker, and it's in a

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<v Speaker 1>lawsuit that the sec brought against Vertuo last year, and

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<v Speaker 1>I sort of cracked up. It was some time in

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<v Speaker 1>January or February where Virtue had to write the court

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<v Speaker 1>and ask for more time to complete discovery because they

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<v Speaker 1>needed to get a new expert because their previous expert

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<v Speaker 1>was Paul Atkins, who obviously will have to be recused

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<v Speaker 1>in the litigation going forward.

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<v Speaker 2>And we also learned that he was a roommate with

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<v Speaker 2>Senator Haggerty at the Vanderbilt Law School.

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<v Speaker 1>So right, yeah, I always love those random roommate connections.

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<v Speaker 1>So just one other thing I'm watching with the SEC

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<v Speaker 1>is that tomorrow or maybe today, but by tomorrow, the

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<v Speaker 1>SEC has to update the Eighth Circuit Court of Appeals

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<v Speaker 1>on where it stands with the SEC Climate Disclosure Rule,

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<v Speaker 1>which is in litigation. It's been fully briefed in the

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<v Speaker 1>Eighth Circuit and they're just waiting for or arguments to

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<v Speaker 1>be scheduled. But the SEC wrote the court back in

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<v Speaker 1>February saying, hey, don't don't schedule anything yet because we're

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<v Speaker 1>still trying to figure out what we're doing with this rule.

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<v Speaker 1>So I'm looking for that update today or tomorrow. All right, Cool?

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<v Speaker 1>Anything else from the hearing, Nathan, No, I think that's

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<v Speaker 1>about it for today. All right, Cool? All right, Holly,

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<v Speaker 1>let's bring you in. Holly from has become our resident

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<v Speaker 1>tariffs Maven, especially on the legal side of things. So Holly,

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<v Speaker 1>obviously a lot of news yesterday with the auto tariffs

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<v Speaker 1>next week. You know we're anticipating in reciprocal tariffs on

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<v Speaker 1>Liberation Day April. Second, you've written a lot about the

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<v Speaker 1>different statutes that are involved the different processes and what

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<v Speaker 1>you know, what potential legal challenges might look like. Any

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<v Speaker 1>thoughts on what's happening with all these tariffs.

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<v Speaker 3>Well, sure, heir so Trump yesterday, just just yesterday, said

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<v Speaker 3>that he was going to impose a twenty five percent

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<v Speaker 3>tariff on autos and the basis, the purported basis for

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<v Speaker 3>that was that it the imports foreign import's threatened or

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<v Speaker 3>threatened to a pair national security.

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<v Speaker 4>I think what's interesting about his use of that statue,

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<v Speaker 4>which is Section two thirty two of the Trade Expansion Act,

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<v Speaker 4>is that that requires an investigation. Unlike some other statutes

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<v Speaker 4>that he could use, that one requires an investigation by

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<v Speaker 4>his Commerce department. So what he did was he relied

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<v Speaker 4>on a seven year old investigation that was done when

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<v Speaker 4>he was president in twenty nineteen, and in the executive

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<v Speaker 4>order that he signed yesterday saying that he's going to

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<v Speaker 4>implement this tariff on April second, he said, you know,

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<v Speaker 4>my Commerce department says that nothing has changed, and it's

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<v Speaker 4>not clear whether that's sufficient under the law. I could

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<v Speaker 4>envision a scenario where a challengers will say circumstances changed

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<v Speaker 4>and they need a new investigation. So that's something that

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<v Speaker 4>I think you know is a potential interesting argument. And

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<v Speaker 4>then with respect to reciprocal tariffs, generally, the president can

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<v Speaker 4>use what you said was he's going to impose on

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<v Speaker 4>Liberation Day on April second. The president can use different statutes,

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<v Speaker 4>and two of the statutes we think he may invoke

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<v Speaker 4>are section three thirty eight of the Trade Act of

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<v Speaker 4>nineteen thirty That's an interesting one because it's never been

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<v Speaker 4>used before to impose tariffs and a trading partner. But

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<v Speaker 4>that statute allows the president to impose tariffs if he

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<v Speaker 4>finds that a country is discriminating against US commerce, are

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<v Speaker 4>burdening US commerce. And what's what's I guess appealing could

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<v Speaker 4>be appealing to him about that statute is that also

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<v Speaker 4>doesn't require an agency investigation.

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<v Speaker 5>He could do it by proclamation.

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<v Speaker 3>So another section set three oho one, which is very

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<v Speaker 3>very similar in the justification for tariffs, like burdening US commerce,

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<v Speaker 3>is also requires an investigation, so that one could take

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<v Speaker 3>some time. So there was an interesting article in the

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<v Speaker 3>Financial Times on I think Monday that said the president

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<v Speaker 3>may use section three thirty eight, which which requires no investigation,

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<v Speaker 3>and then back up his that tarriff with an investigation.

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<v Speaker 5>That he puts out later.

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<v Speaker 1>Very interesting. So so wait, so he would impose the

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<v Speaker 1>three thirty eight terrorsts based on an investigation, but why

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<v Speaker 1>would then why would he then need the three oho

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<v Speaker 1>one section terrorifs.

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<v Speaker 3>In addition, it's sort of a dual cover. So three

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<v Speaker 3>thirty eight requires no investigation. He could do it bright

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<v Speaker 3>proclamation and he could do it immediately, and then the

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<v Speaker 3>three oh one, which requires an investigation, he could say

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<v Speaker 3>to his US Trade rep. And I think he has

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<v Speaker 3>already look into all these countries. Are they burning US commerce?

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<v Speaker 3>Are they discriminating against US commerce? And then if they

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<v Speaker 3>have a full investigation, that's where it gives him cover

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<v Speaker 3>to say, yes, our US Trade Rep investigated this and

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<v Speaker 3>he found indeed that I was right, they're discriminating against

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<v Speaker 3>US commerce.

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<v Speaker 1>Interesting, so sort of like a suspenders approach exactly. Wow,

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<v Speaker 1>really interesting. Have you heard any rumblings though, of anyone

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<v Speaker 1>threatening to sue, because I haven't really seen anything. So

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<v Speaker 1>I wonder if you know how realistic it is that

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<v Speaker 1>we might see litigation around this stuff.

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<v Speaker 5>I think it's realistic that we'll see litigation.

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<v Speaker 3>But it's funny that you mentioned that, because I did

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<v Speaker 3>look the other day and I saw nothing, so you know,

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<v Speaker 3>these these would go to the US Court of International Trade,

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<v Speaker 3>and so far I haven't seen any cases filed. And

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<v Speaker 3>the one that we would have seen is the one

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<v Speaker 3>that was imposed on Mexico, Canada and China, because that's

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<v Speaker 3>already happened, or perhaps steel which are already into a feft.

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<v Speaker 1>And who do you think would too, like companies or

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<v Speaker 1>trade groups on behalf of some of these other countries.

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<v Speaker 5>We could be trade groups on behalf the industries or companies.

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<v Speaker 3>Last time, in twenty eighteen, when Trump and posted tariffs

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<v Speaker 3>on China under section three oh one, the companies, through

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<v Speaker 3>the whole bunch of companies sued. So dozens of companies

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<v Speaker 3>sued US Court of International Trade.

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<v Speaker 5>If if.

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<v Speaker 3>If a country were to sue, say, say because that

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<v Speaker 3>violates a trade agreement, I think they'd have to sue

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<v Speaker 3>the World Trade Organization. But the dispute, the dispute resolution

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<v Speaker 3>process there is different because you know, the president has

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<v Speaker 3>been very critical of the WTO, He's been very critical

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<v Speaker 3>of the dispute resolution process there. And I think also

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<v Speaker 3>there's you know, there may be an indication that he's

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<v Speaker 3>not going to abide by what they what they rule,

0:12:53.240 --> 0:12:57.040
<v Speaker 3>whereas if a court in the US rules a certain way,

0:12:57.080 --> 0:13:00.400
<v Speaker 3>I think he you know, he would have to buy

0:13:00.440 --> 0:13:01.440
<v Speaker 3>it theoretically.

0:13:01.840 --> 0:13:05.360
<v Speaker 1>Yeah. So the other trade related note you put out

0:13:05.360 --> 0:13:07.960
<v Speaker 1>this week, it was also really interesting. You wrote this

0:13:08.000 --> 0:13:13.800
<v Speaker 1>with a transport channalyst, Lee Clascow, on these fees that

0:13:13.840 --> 0:13:17.040
<v Speaker 1>the US government wants to impose on Chinese built or

0:13:17.160 --> 0:13:21.720
<v Speaker 1>Chinese operated vessels that are using US ports. You know,

0:13:21.920 --> 0:13:25.280
<v Speaker 1>the headline that lero was US fees on Chinese ships

0:13:25.400 --> 0:13:28.280
<v Speaker 1>a self and inflicted supply chain shock, which is, you know,

0:13:28.360 --> 0:13:30.920
<v Speaker 1>really interesting. But anything you wanted to say about that

0:13:31.240 --> 0:13:33.240
<v Speaker 1>sort of in terms of, you know, the process and

0:13:33.280 --> 0:13:34.280
<v Speaker 1>the legality around that.

0:13:35.200 --> 0:13:35.520
<v Speaker 5>Sure.

0:13:35.600 --> 0:13:39.880
<v Speaker 3>So, yeah, the US Trade Rep has proposed imposing fees

0:13:39.960 --> 0:13:42.800
<v Speaker 3>of five hundred thousand to one point five million dollars

0:13:42.840 --> 0:13:45.920
<v Speaker 3>per port call for Chinese built ships or Chinese operated

0:13:45.920 --> 0:13:52.160
<v Speaker 3>ships calling on US ports. Interestingly, the investigation was initiated

0:13:52.240 --> 0:13:56.360
<v Speaker 3>under Biden, that was April of last year, and the

0:13:57.320 --> 0:14:02.080
<v Speaker 3>Trade Rep found d that that China was dominating the

0:14:02.120 --> 0:14:09.400
<v Speaker 3>shipping industry unfairly so, and he's recommending that these fees

0:14:09.480 --> 0:14:13.360
<v Speaker 3>be imposed under Section three oh one, which again allows

0:14:13.400 --> 0:14:16.560
<v Speaker 3>the President to impose tariffs if a country is burdening

0:14:16.960 --> 0:14:23.200
<v Speaker 3>US commerce or is unfairly restricting commerce. So I think

0:14:23.200 --> 0:14:26.000
<v Speaker 3>it's you know, pretty clear in the statute that these

0:14:26.400 --> 0:14:30.000
<v Speaker 3>that that the President can impose these fees, and the

0:14:30.040 --> 0:14:35.640
<v Speaker 3>statute was amended to allow uh fees to be imposed

0:14:35.640 --> 0:14:40.360
<v Speaker 3>on shipping in the event that a government is subsidizing shipping,

0:14:40.360 --> 0:14:43.800
<v Speaker 3>which is considered unfair and that and that's what it

0:14:43.840 --> 0:14:46.640
<v Speaker 3>is alleged here. I haven't seen the Trade Rep make

0:14:46.680 --> 0:14:51.120
<v Speaker 3>that finding yet that you know, China's subsidizing their shipping industry.

0:14:51.200 --> 0:14:54.360
<v Speaker 3>But that's what the petitioners who filed the petition to

0:14:54.480 --> 0:14:58.840
<v Speaker 3>get to have the Trade Rep initiated investigation alleged.

0:14:59.440 --> 0:15:00.840
<v Speaker 1>And so that's why you're waiting for a next the

0:15:00.920 --> 0:15:05.400
<v Speaker 1>US Trade Rep to come out with that finalized determination basically.

0:15:05.800 --> 0:15:08.640
<v Speaker 3>Exactly, so he the Trade Rep, has a year to

0:15:08.720 --> 0:15:11.440
<v Speaker 3>make that determination, but he could ask for an extension

0:15:11.480 --> 0:15:13.880
<v Speaker 3>for six months. So if he makes the determination within

0:15:13.880 --> 0:15:16.120
<v Speaker 3>a year, that would put us at April, and then

0:15:16.280 --> 0:15:21.320
<v Speaker 3>the determination has to be implemented within thirty days of

0:15:21.320 --> 0:15:24.120
<v Speaker 3>the action has to be implemented within thirty days of

0:15:24.160 --> 0:15:28.000
<v Speaker 3>the determination, so that would put us at May potentially,

0:15:28.280 --> 0:15:30.880
<v Speaker 3>where you see these these imposed, but if they ask

0:15:30.920 --> 0:15:33.800
<v Speaker 3>for an extension, the outside date for implementation these fees

0:15:33.960 --> 0:15:34.800
<v Speaker 3>would be November.

0:15:35.000 --> 0:15:38.080
<v Speaker 1>Got it? All right? Great stuff? All right, thanks Holly,

0:15:38.720 --> 0:15:42.240
<v Speaker 1>all right, justin TERESI, let's bring you in. You follow

0:15:42.480 --> 0:15:45.120
<v Speaker 1>a lot of cases that the FTC has brought Yeah,

0:15:45.120 --> 0:15:48.680
<v Speaker 1>so many? Yeah, right, Well, certainly in the last administration,

0:15:48.760 --> 0:15:53.400
<v Speaker 1>we'll see, well and maybe in this administration too, but

0:15:53.520 --> 0:15:57.520
<v Speaker 1>you following cases against Meta Amazon, the pharmacy benefit managers.

0:15:58.280 --> 0:16:01.080
<v Speaker 1>But what I want to talk about is, well, last

0:16:01.080 --> 0:16:05.680
<v Speaker 1>week President Trump fired two FTC commissioners, the two that

0:16:05.760 --> 0:16:10.600
<v Speaker 1>were appointed by Democrats, you know, sort of consistent with

0:16:10.640 --> 0:16:14.840
<v Speaker 1>what he's been doing with other other agencies, including the

0:16:14.920 --> 0:16:18.360
<v Speaker 1>National Labor Relations Board and the Merit Systems Protection Board,

0:16:20.240 --> 0:16:23.200
<v Speaker 1>you know, sort of taking an aggressive approach in terms

0:16:23.320 --> 0:16:26.560
<v Speaker 1>of how much control the president has over what used

0:16:26.560 --> 0:16:29.600
<v Speaker 1>to be considered independent agencies but might no longer be.

0:16:30.680 --> 0:16:34.680
<v Speaker 1>Just before we started recording this, uh, those two FTC commissioners,

0:16:36.000 --> 0:16:40.280
<v Speaker 1>Slaughter and Badoya, sued the Trump administration, so we'll be

0:16:40.320 --> 0:16:43.880
<v Speaker 1>following those as well. They are challenging their terminations. But

0:16:44.160 --> 0:16:46.440
<v Speaker 1>why don't you come in tell us you know what

0:16:46.520 --> 0:16:49.800
<v Speaker 1>you think it means for these FTC cases that you're watching.

0:16:50.480 --> 0:16:53.120
<v Speaker 6>Yeah, yeah, definitely, you're right fresh off the press here,

0:16:53.400 --> 0:16:55.720
<v Speaker 6>it looks like Commissioners Slaughter and Badoia are going to

0:16:56.240 --> 0:16:58.720
<v Speaker 6>challenge their firings. I think no surprise there. I think

0:16:58.760 --> 0:17:01.560
<v Speaker 6>everybody's kind of expected is going to happen. You know,

0:17:01.640 --> 0:17:03.520
<v Speaker 6>I know you've been tracking the read through on this

0:17:03.600 --> 0:17:06.359
<v Speaker 6>to Humphrey's executor and perhaps you know, might happen to

0:17:06.400 --> 0:17:09.080
<v Speaker 6>Drome Paul over with the FED. But yeah, you know,

0:17:09.160 --> 0:17:12.360
<v Speaker 6>in terms of actual day to day business and existing cases,

0:17:12.440 --> 0:17:16.240
<v Speaker 6>new investigations at the FTC, the impact from this really

0:17:16.400 --> 0:17:18.760
<v Speaker 6>there's really not too not much of one at all,

0:17:18.840 --> 0:17:21.320
<v Speaker 6>And I think the reason being that with the new

0:17:21.359 --> 0:17:24.680
<v Speaker 6>administration coming in with the expiring term of former chair

0:17:24.760 --> 0:17:26.960
<v Speaker 6>Lena Khan, the setup was going to be a three

0:17:27.040 --> 0:17:30.680
<v Speaker 6>to two split at the FTC already anyway was led

0:17:30.680 --> 0:17:34.159
<v Speaker 6>by Republican Chair Andrew Ferguson, so that control of the

0:17:34.200 --> 0:17:37.320
<v Speaker 6>agenda was already the Republicans to have with that firm

0:17:37.359 --> 0:17:40.040
<v Speaker 6>majority there in place, So anything that could have happened

0:17:40.040 --> 0:17:42.840
<v Speaker 6>in terms of voting to initiate a new lawsuit or

0:17:43.080 --> 0:17:46.479
<v Speaker 6>a new investigation, voting to block a deal, all of

0:17:46.480 --> 0:17:49.320
<v Speaker 6>that already had that Republican majority in place, or would

0:17:49.320 --> 0:17:52.080
<v Speaker 6>be in place with the confirmation of Mark Mader, who's

0:17:52.119 --> 0:17:54.800
<v Speaker 6>right now up first, and of confirmation as the third

0:17:55.680 --> 0:17:59.080
<v Speaker 6>a third Republican FTC commissioner. So in terms of the

0:17:59.119 --> 0:18:01.560
<v Speaker 6>read through to the cases investigations, not that much of

0:18:01.600 --> 0:18:03.800
<v Speaker 6>a difference from what would have been the case anyway,

0:18:04.720 --> 0:18:07.639
<v Speaker 6>you know, had the two Democratic commissioners state, maybe less tossents,

0:18:07.760 --> 0:18:11.080
<v Speaker 6>maybe less transparency, but in terms of actual business kind

0:18:11.119 --> 0:18:12.560
<v Speaker 6>of the same stuff over at the FTC.

0:18:13.480 --> 0:18:18.040
<v Speaker 1>What's the status of the confirmation of the heavy pnounces

0:18:18.040 --> 0:18:19.960
<v Speaker 1>as they made or yeah, yeah.

0:18:19.880 --> 0:18:21.960
<v Speaker 6>So he's been reported out of committee, he's on the

0:18:21.960 --> 0:18:24.840
<v Speaker 6>floor calendar well, so could be really any day now.

0:18:25.000 --> 0:18:27.240
<v Speaker 6>Not not sure what the particular delay on his nomination

0:18:27.400 --> 0:18:30.280
<v Speaker 6>might be in the Senate, but I think overwhelmingly we're

0:18:30.359 --> 0:18:34.399
<v Speaker 6>expecting that to be approved. I think there's been you know,

0:18:34.600 --> 0:18:37.800
<v Speaker 6>very support from both parties on his nomination. Obviously, the

0:18:37.880 --> 0:18:40.399
<v Speaker 6>firings probably shake things up a little bit among the

0:18:40.440 --> 0:18:43.480
<v Speaker 6>Senate Democrats, but you know, I think we're expecting that

0:18:43.880 --> 0:18:46.480
<v Speaker 6>to move forward. But you know, looking at the kind

0:18:46.520 --> 0:18:49.160
<v Speaker 6>of the cases the FTC has right now against Meta

0:18:49.200 --> 0:18:52.359
<v Speaker 6>and Amazon, cher Ferguson's been really out there supporter of

0:18:52.440 --> 0:18:55.640
<v Speaker 6>those efforts against big tech and in interviews he's done recently,

0:18:55.760 --> 0:18:57.560
<v Speaker 6>So we don't really think there's going to be much

0:18:57.560 --> 0:19:00.040
<v Speaker 6>of a difference with the way that those proceed And

0:19:00.080 --> 0:19:04.240
<v Speaker 6>there's also been some speculation that because Commissioners Buduya and Slaughter,

0:19:04.320 --> 0:19:06.359
<v Speaker 6>the two were fired, were the only two who voted

0:19:06.440 --> 0:19:10.080
<v Speaker 6>to approve that the case against PBMs the Pharmacy Benefit Managers,

0:19:10.480 --> 0:19:12.679
<v Speaker 6>that that kind of leaves the case in limbos somehow

0:19:12.800 --> 0:19:16.600
<v Speaker 6>because Jerff Ferguson and Commissioner Holyoke, the other Republican had

0:19:16.640 --> 0:19:18.879
<v Speaker 6>recused themselves from the case when it was filed back

0:19:18.920 --> 0:19:21.639
<v Speaker 6>at September. That's not our reading of the rules though

0:19:21.720 --> 0:19:24.920
<v Speaker 6>that case is already deep into discovery. There's not really

0:19:24.960 --> 0:19:26.919
<v Speaker 6>a need for the Commission to take action and anything

0:19:27.040 --> 0:19:30.040
<v Speaker 6>right this moment. And once major's in the rule is

0:19:30.119 --> 0:19:32.920
<v Speaker 6>the rules that CCFTC are is that a quorum is

0:19:33.000 --> 0:19:37.400
<v Speaker 6>constituted by a majority of whatever commissioners aren't recused from

0:19:37.480 --> 0:19:40.000
<v Speaker 6>the matter. So in this case, you know that that's one.

0:19:41.920 --> 0:19:42.200
<v Speaker 1>Of one.

0:19:42.359 --> 0:19:42.960
<v Speaker 2>So there you go.

0:19:43.400 --> 0:19:45.280
<v Speaker 1>Wait, so, but what do they need the quorum for

0:19:45.400 --> 0:19:46.760
<v Speaker 1>at this point? I mean at this point, it would

0:19:46.800 --> 0:19:47.439
<v Speaker 1>just be to like.

0:19:48.000 --> 0:19:50.520
<v Speaker 6>Right, if there was any lawsuit exactly exactly, if there

0:19:50.560 --> 0:19:53.160
<v Speaker 6>were any move to a mend or withdraw the lawsuit

0:19:53.240 --> 0:19:55.560
<v Speaker 6>or you know, perhaps agree to a settlement coming in

0:19:55.640 --> 0:19:58.000
<v Speaker 6>from a different lawsuit or something like that, that's what

0:19:58.080 --> 0:20:00.040
<v Speaker 6>they need a majority for. But again, you know, but

0:20:00.160 --> 0:20:03.280
<v Speaker 6>that suit's proceeding, it's deep in discovery. You know, the

0:20:03.440 --> 0:20:05.920
<v Speaker 6>FTC is looking to move the date of the internal

0:20:06.000 --> 0:20:08.160
<v Speaker 6>trial they have for that lawsuit a little bit later

0:20:08.240 --> 0:20:10.440
<v Speaker 6>into January of next year. So what is it currently

0:20:10.480 --> 0:20:13.920
<v Speaker 6>scheduled for schedule for August? They're looking for January. The

0:20:13.960 --> 0:20:16.000
<v Speaker 6>PBMs are saying, hey, wait, you guys chose to bring

0:20:16.080 --> 0:20:17.520
<v Speaker 6>this case in the in the tribunal.

0:20:17.600 --> 0:20:17.840
<v Speaker 1>You did.

0:20:17.880 --> 0:20:19.920
<v Speaker 6>You've got to live with the timeline now. But you know,

0:20:20.040 --> 0:20:22.160
<v Speaker 6>reality is being what they are with discovery. I think

0:20:22.160 --> 0:20:24.720
<v Speaker 6>it's probably slated to happen at least don until fourth quarter.

0:20:24.920 --> 0:20:29.440
<v Speaker 1>And we know why and Ferguson were recused. I think

0:20:29.520 --> 0:20:30.959
<v Speaker 1>we don't. And that's the thing.

0:20:31.080 --> 0:20:32.960
<v Speaker 6>I mean, you know, it could be a personal reason,

0:20:33.040 --> 0:20:35.119
<v Speaker 6>it could be an actual conflict, but we're also you know,

0:20:35.200 --> 0:20:38.000
<v Speaker 6>we can't just assume that whatever caused them to recuse

0:20:38.040 --> 0:20:40.840
<v Speaker 6>themselves in September is still the case today. They could

0:20:40.960 --> 0:20:43.560
<v Speaker 6>very well have removed whatever issue was in place to

0:20:43.880 --> 0:20:46.440
<v Speaker 6>stop them from voting to approve the suit in September

0:20:46.520 --> 0:20:49.520
<v Speaker 6>if they if they had, you know, if they wanted to.

0:20:49.680 --> 0:20:51.880
<v Speaker 6>And I'll say too, they've both been supportive of action

0:20:52.000 --> 0:20:54.399
<v Speaker 6>against health insurance and PBMs in the past two in

0:20:54.440 --> 0:20:56.160
<v Speaker 6>their own right, So it's not as if they had

0:20:56.200 --> 0:20:59.600
<v Speaker 6>this perhaps you know, moral obligation to the actual you know,

0:20:59.800 --> 0:21:01.880
<v Speaker 6>the actual crux of that lawsuit when it was rolling

0:21:01.920 --> 0:21:02.560
<v Speaker 6>out last fall.

0:21:02.640 --> 0:21:07.200
<v Speaker 1>Either And do you think Trump just keeps the FTC

0:21:07.320 --> 0:21:08.960
<v Speaker 1>with three commissioners or do you think you'll appoint to

0:21:09.040 --> 0:21:11.640
<v Speaker 1>fourth and fifth? You know, that's that's a great question.

0:21:11.800 --> 0:21:14.320
<v Speaker 6>I mean at this point, you know, you know what

0:21:14.400 --> 0:21:17.320
<v Speaker 6>I'm thinking about more from this perspective of the FTC

0:21:17.560 --> 0:21:19.840
<v Speaker 6>and what it means for the FDC from this standpoint is,

0:21:19.880 --> 0:21:22.560
<v Speaker 6>you know, we're seeing legislation on Capitol Hill right now

0:21:22.600 --> 0:21:24.400
<v Speaker 6>where folks are saying, hey, wait a minute, this anti

0:21:24.480 --> 0:21:27.560
<v Speaker 6>trust function at the FTC, it's duplicative and it should

0:21:27.560 --> 0:21:30.440
<v Speaker 6>be rolled into DOJ. And we've seen Chaerf Ferguson out

0:21:30.480 --> 0:21:32.879
<v Speaker 6>there really pounded the pavement talking about all these strengths

0:21:32.960 --> 0:21:35.320
<v Speaker 6>and reasons why you know, the FDC has this relevant

0:21:35.359 --> 0:21:38.520
<v Speaker 6>place and anti trust. But you know, if we're removing

0:21:38.600 --> 0:21:40.840
<v Speaker 6>this independence of the FTC and we're not going to

0:21:40.880 --> 0:21:43.600
<v Speaker 6>fully staff the commissioners, and really if the FDC is

0:21:43.720 --> 0:21:47.040
<v Speaker 6>just proceeding as you know, a tool of the executive anyway,

0:21:47.760 --> 0:21:50.480
<v Speaker 6>to me that that really makes the case even more

0:21:50.560 --> 0:21:53.399
<v Speaker 6>that the actual anti trust enforcement powers at the FDC

0:21:53.520 --> 0:21:55.600
<v Speaker 6>are in fact duplicative of those in place at the

0:21:55.760 --> 0:21:58.000
<v Speaker 6>at the DOJ. I think it makes that whole Doughe

0:21:58.480 --> 0:22:01.800
<v Speaker 6>consolidation argument a bit stronger for those looking to to

0:22:01.920 --> 0:22:05.200
<v Speaker 6>actually meld things together and take two enforcement powers and

0:22:05.320 --> 0:22:06.080
<v Speaker 6>roll them into one.

0:22:06.400 --> 0:22:11.680
<v Speaker 1>Oh, that would be interesting. Yeah, you know, I think

0:22:11.680 --> 0:22:13.960
<v Speaker 1>it's so interesting because you know, I, like you said,

0:22:13.960 --> 0:22:18.080
<v Speaker 1>I've been following these other cases involving term, you know,

0:22:18.200 --> 0:22:23.320
<v Speaker 1>firing of commissioners at independent and so called independent agencies,

0:22:23.400 --> 0:22:25.760
<v Speaker 1>and you know, I read about I'm really curious about

0:22:25.800 --> 0:22:27.840
<v Speaker 1>what it means for Jerome Powell at the FED. And

0:22:28.000 --> 0:22:30.080
<v Speaker 1>I think it's so interesting that both Slaughter and but

0:22:30.160 --> 0:22:32.760
<v Speaker 1>Doya have said, Look, you know, if if it's legal

0:22:32.840 --> 0:22:36.119
<v Speaker 1>to fire us, the president can fire Jerome Powell. And

0:22:36.280 --> 0:22:39.000
<v Speaker 1>you know, my my reaction to that is careful, careful

0:22:39.040 --> 0:22:42.160
<v Speaker 1>what you say, because you know, I I don't think

0:22:42.200 --> 0:22:45.080
<v Speaker 1>they're going to win their cases against uh Persian Trump.

0:22:46.520 --> 0:22:49.200
<v Speaker 1>You know, it might be a closer call with Jerome Powell,

0:22:49.400 --> 0:22:54.399
<v Speaker 1>just because even the current Justice Department has conceded that

0:22:55.160 --> 0:22:59.040
<v Speaker 1>the Fed's monetary policy responsibilities are independent of the president.

0:22:59.119 --> 0:23:02.919
<v Speaker 1>But but do take a firm position that the Fed's

0:23:03.000 --> 0:23:09.040
<v Speaker 1>regulatory responsibilities fall under the president's you know, jurisdiction, under

0:23:09.080 --> 0:23:12.600
<v Speaker 1>the executive authority. So you know, I'm not optimistic that

0:23:12.720 --> 0:23:15.040
<v Speaker 1>any of these people will be able to win their

0:23:15.119 --> 0:23:16.399
<v Speaker 1>lawsuits if they get fired.

0:23:16.480 --> 0:23:18.920
<v Speaker 6>So yeah, I think you're right. I have to say too,

0:23:19.000 --> 0:23:21.760
<v Speaker 6>I'm curious, you know, I think it's definitely true. I

0:23:21.760 --> 0:23:23.680
<v Speaker 6>think this is probably your point of view as well,

0:23:23.720 --> 0:23:26.520
<v Speaker 6>that there's a Supreme Court in place that certainly has

0:23:26.600 --> 0:23:29.840
<v Speaker 6>been perhaps itching to overturn Humphreys or interested in the

0:23:29.960 --> 0:23:32.440
<v Speaker 6>idea of overturning Humphreys executor for a long time.

0:23:32.560 --> 0:23:35.399
<v Speaker 1>But you know, I think, you know, is there a

0:23:35.440 --> 0:23:35.920
<v Speaker 1>little bit.

0:23:35.840 --> 0:23:38.160
<v Speaker 6>More hesitancy or perhaps a carve out in some way

0:23:38.480 --> 0:23:41.320
<v Speaker 6>because the stakes are higher. I think for overturning Humphries

0:23:41.400 --> 0:23:43.600
<v Speaker 6>now than they would have been even a year ago,

0:23:43.720 --> 0:23:46.520
<v Speaker 6>or I were talking about big stuff that maybe wasn't

0:23:46.880 --> 0:23:49.240
<v Speaker 6>you know, at the central you know, underpinning of trying

0:23:49.280 --> 0:23:51.200
<v Speaker 6>to overturn that the ruling even just a year agon

0:23:51.240 --> 0:23:53.840
<v Speaker 6>hour confronted was a really crazy kind of thing.

0:23:54.000 --> 0:23:58.520
<v Speaker 1>So yeah, And I think it was Gorsech and Thomas

0:23:58.600 --> 0:24:02.480
<v Speaker 1>who voted in the Sale of Law case. They in

0:24:02.560 --> 0:24:04.760
<v Speaker 1>their descent they said they would overturn Humphries. But I

0:24:04.800 --> 0:24:08.720
<v Speaker 1>don't even think you need to overrule Humphries for the

0:24:08.840 --> 0:24:11.800
<v Speaker 1>president to win these cases, because the Supreme Court and

0:24:11.840 --> 0:24:15.159
<v Speaker 1>Sale of Law basically, you know, said Humphries was just

0:24:15.280 --> 0:24:18.040
<v Speaker 1>one of two exceptions to the general rule that the

0:24:18.080 --> 0:24:20.320
<v Speaker 1>president can fire anyone in the executive branch. And the

0:24:20.400 --> 0:24:23.639
<v Speaker 1>two exceptions are one for inferior officers, which doesn't apply here,

0:24:23.920 --> 0:24:28.080
<v Speaker 1>and the second is for principal officers, which these folks are,

0:24:28.920 --> 0:24:35.280
<v Speaker 1>but principal officers who don't exercise any executive authority. And

0:24:35.880 --> 0:24:38.480
<v Speaker 1>you know, in these cases you have to see in particular,

0:24:38.600 --> 0:24:41.240
<v Speaker 1>I think is going to be found to exercise executive

0:24:41.240 --> 0:24:43.600
<v Speaker 1>authority because it has enforcement power and it has rule

0:24:43.680 --> 0:24:46.920
<v Speaker 1>making authority, and so you can carve it out from

0:24:47.080 --> 0:24:50.600
<v Speaker 1>the Humphries exception, and you arguably could do the same

0:24:51.000 --> 0:24:52.960
<v Speaker 1>for j Run Powell at the FED, and you could

0:24:52.960 --> 0:24:57.440
<v Speaker 1>say the FED has you know, exercises executive powers because

0:24:57.440 --> 0:25:01.440
<v Speaker 1>it also has rule making authority and enforcement authority. So right,

0:25:01.560 --> 0:25:04.080
<v Speaker 1>I see where all these cases go. They're fun, they're

0:25:04.119 --> 0:25:06.120
<v Speaker 1>fun to watch. It's fun. It's like a front row

0:25:06.200 --> 0:25:10.040
<v Speaker 1>seat to history for better or words. That's right, Yeah, yeah, exactly,

0:25:10.080 --> 0:25:13.479
<v Speaker 1>all right, justin good stuff. Thanks, all right, Matt Schanan. Hell,

0:25:13.600 --> 0:25:16.399
<v Speaker 1>let's bring you in to round out the discussion today.

0:25:17.440 --> 0:25:21.080
<v Speaker 1>You so, Matt is our TMT policy and litigation analyst

0:25:21.280 --> 0:25:26.359
<v Speaker 1>also based in DC. You watched a Supreme Court argument yesterday.

0:25:26.359 --> 0:25:29.560
<v Speaker 1>I assume virtually maybe you went, I know, sometimes you go.

0:25:30.000 --> 0:25:30.320
<v Speaker 1>Did you go?

0:25:31.240 --> 0:25:33.000
<v Speaker 2>Uh no, Actually I was.

0:25:33.440 --> 0:25:35.879
<v Speaker 7>I was there in the courtroom in the in the

0:25:35.920 --> 0:25:38.480
<v Speaker 7>bar seating section right behind the podium, so one of

0:25:38.520 --> 0:25:40.560
<v Speaker 7>the best best seats in Washington. A.

0:25:41.080 --> 0:25:42.960
<v Speaker 1>Yeah, that's always it's always fun, except you have to

0:25:43.040 --> 0:25:44.920
<v Speaker 1>check your phone. That always gives me a little adjutant.

0:25:45.040 --> 0:25:47.320
<v Speaker 7>It's a little bit of a hassle and uh yeah,

0:25:48.080 --> 0:25:50.280
<v Speaker 7>but it's it's so worth it to be you know,

0:25:50.720 --> 0:25:53.960
<v Speaker 7>twenty feet away from the justices there watching watching history

0:25:54.040 --> 0:25:54.560
<v Speaker 7>be made.

0:25:54.480 --> 0:25:56.880
<v Speaker 1>Agree, So tell us about the case. It's a six

0:25:57.040 --> 0:26:00.800
<v Speaker 1>billion dollar FCC program to subsidize tell own in Higstol.

0:26:01.240 --> 0:26:02.840
<v Speaker 7>Even more than that in some years, I think it's

0:26:02.880 --> 0:26:06.399
<v Speaker 7>eight eight eight to nine billion. It can reach and

0:26:06.640 --> 0:26:10.000
<v Speaker 7>and basically, this is a rural broadband program, a rural

0:26:10.119 --> 0:26:15.080
<v Speaker 7>telephone program that the FCC has administered since the nineteen

0:26:15.119 --> 0:26:18.440
<v Speaker 7>ninety six Act, and and and and in part even

0:26:18.520 --> 0:26:24.000
<v Speaker 7>before that, it's had similar programs in place. But but basically,

0:26:25.720 --> 0:26:28.639
<v Speaker 7>a group, an advocacy group brought a legal challenge to

0:26:29.160 --> 0:26:34.960
<v Speaker 7>the program and sued in multiple courts of appeals and

0:26:35.200 --> 0:26:38.960
<v Speaker 7>said that this program, when Congress passed it, Congress was

0:26:39.320 --> 0:26:42.960
<v Speaker 7>was not clear enough in giving direction to the FCC

0:26:43.200 --> 0:26:45.760
<v Speaker 7>and how to administer it. And the claim was, this

0:26:45.920 --> 0:26:50.919
<v Speaker 7>violates the Constitution, the non delegation doctrine for the FCC

0:26:51.480 --> 0:26:55.560
<v Speaker 7>to be given this power basically legislative power by Congress

0:26:56.440 --> 0:26:59.680
<v Speaker 7>UH to to administer this this rural broadband program that

0:26:59.720 --> 0:27:04.120
<v Speaker 7>collect money from telecom carriers then passes it back out.

0:27:04.320 --> 0:27:08.240
<v Speaker 7>And basically the claim was Congress needed to be more

0:27:08.359 --> 0:27:12.040
<v Speaker 7>clear if it wanted this program to go ahead. That

0:27:12.320 --> 0:27:15.400
<v Speaker 7>argument failed in most courts of appeals, three or four

0:27:15.440 --> 0:27:18.440
<v Speaker 7>of them, maybe at least two or three. It succeeded

0:27:18.760 --> 0:27:22.240
<v Speaker 7>on bank in the Fifth Circuit by a very narrow vote,

0:27:22.760 --> 0:27:25.480
<v Speaker 7>and then this case ended up by before the Supreme

0:27:25.520 --> 0:27:28.200
<v Speaker 7>Court because there was a circuit split between the courts

0:27:28.240 --> 0:27:31.800
<v Speaker 7>of appeals. And so that was the argument tomorrow or yesterday,

0:27:31.880 --> 0:27:35.920
<v Speaker 7>whether the law is constitutional, whether this universal service program

0:27:36.080 --> 0:27:37.120
<v Speaker 7>is constitution.

0:27:36.840 --> 0:27:38.680
<v Speaker 1>Just based on the non delegation doctrine. There were no

0:27:38.760 --> 0:27:40.240
<v Speaker 1>other like statutory arguments.

0:27:40.000 --> 0:27:44.400
<v Speaker 7>Or anything exactly. This was pretty focused on the non

0:27:44.440 --> 0:27:47.080
<v Speaker 7>delegation doctriment. There were two components to it, sort of

0:27:47.119 --> 0:27:51.880
<v Speaker 7>the public non delegation doctrine Congress to the FCC. Then

0:27:51.880 --> 0:27:55.560
<v Speaker 7>there was a private non delegation doctrine claim the FCC

0:27:55.760 --> 0:27:59.520
<v Speaker 7>gave too much power to an administrator, a private administrator

0:28:00.280 --> 0:28:04.960
<v Speaker 7>u sac organization that actually does the paperwork in the administration.

0:28:05.240 --> 0:28:07.960
<v Speaker 7>And both pieces of that were challenged. The Fifth Circuit

0:28:08.040 --> 0:28:10.720
<v Speaker 7>kind of combined them and said, put them together, and

0:28:10.840 --> 0:28:13.880
<v Speaker 7>this is this is somehow on constitution. Always strike it down.

0:28:14.280 --> 0:28:16.880
<v Speaker 1>What was your takeaway, I mean from you know, our

0:28:16.960 --> 0:28:19.400
<v Speaker 1>sidebar conversations that we've had it sounds like you think

0:28:19.400 --> 0:28:21.920
<v Speaker 1>the rule will survive and that there's not a majority

0:28:21.960 --> 0:28:25.359
<v Speaker 1>of justices you know, to vote against it based on

0:28:25.640 --> 0:28:26.640
<v Speaker 1>either the non delegation.

0:28:27.080 --> 0:28:29.719
<v Speaker 7>Yeah, that's where I that's where I came came away yesterday.

0:28:29.720 --> 0:28:33.000
<v Speaker 7>It's hard to see the challenge the FCC's challengers here

0:28:33.080 --> 0:28:37.240
<v Speaker 7>getting to five votes. Justice Gorstch clearly feels strongly that

0:28:37.440 --> 0:28:41.200
<v Speaker 7>he wants to give new teeth to the non delegation doctrine,

0:28:41.320 --> 0:28:44.040
<v Speaker 7>and he's likely to come out against the FCC. He

0:28:44.200 --> 0:28:48.080
<v Speaker 7>might have Justice as Alito and Thomas with him, but

0:28:49.120 --> 0:28:51.160
<v Speaker 7>like in so many cases, it's the middle of the

0:28:51.240 --> 0:28:55.320
<v Speaker 7>court that we're really watching to determine outcomes. And the

0:28:55.440 --> 0:29:00.960
<v Speaker 7>Chief Justice, Justice Barrett and Justice Kavanaugh. I really have

0:29:01.040 --> 0:29:04.520
<v Speaker 7>a hard time seeing any of them, and certainly not

0:29:04.640 --> 0:29:08.720
<v Speaker 7>to two of them joining Justice Gorsic's side on this.

0:29:10.880 --> 0:29:14.320
<v Speaker 7>It was a fascinating argument in a lot of respects,

0:29:15.200 --> 0:29:17.640
<v Speaker 7>you know, given where the Court has been recently and

0:29:17.760 --> 0:29:21.800
<v Speaker 7>cutting back on administrative powers with the undoing of the

0:29:21.920 --> 0:29:25.840
<v Speaker 7>Chevron doctrine, uh just just last term and now the

0:29:25.960 --> 0:29:28.680
<v Speaker 7>chance to kind of go further and and again cut

0:29:28.720 --> 0:29:32.160
<v Speaker 7>away at agency powers and and Paul Clement making the

0:29:32.360 --> 0:29:37.120
<v Speaker 7>argument actually in favor of the FCC program, when he

0:29:37.360 --> 0:29:40.400
<v Speaker 7>was the one making the argument against agency power in

0:29:40.680 --> 0:29:45.120
<v Speaker 7>the Lower Bright series of cases. It just just fascinating

0:29:45.160 --> 0:29:47.240
<v Speaker 7>how it all, how it all went. And to see

0:29:47.360 --> 0:29:52.040
<v Speaker 7>him going up against Justice gorsic On on the point

0:29:52.240 --> 0:29:56.360
<v Speaker 7>was was was just really high level legal advocacy there,

0:29:56.640 --> 0:29:59.560
<v Speaker 7>and and and fascinating and and and I thought, he

0:29:59.680 --> 0:30:03.040
<v Speaker 7>just you know, I've seen him make very strong arguments

0:30:03.080 --> 0:30:05.600
<v Speaker 7>in the past. This was this was you know, one

0:30:05.640 --> 0:30:09.120
<v Speaker 7>of his best, I thought, and very convincing that basically

0:30:09.320 --> 0:30:12.600
<v Speaker 7>speaking to the conservative justices and saying, look, maybe we

0:30:12.720 --> 0:30:16.080
<v Speaker 7>can use the non delegation doctrine to make changes here

0:30:16.320 --> 0:30:18.280
<v Speaker 7>in the future, we can reinvigorate it, but this is

0:30:18.400 --> 0:30:20.800
<v Speaker 7>not the case to do it. And and I really

0:30:20.880 --> 0:30:22.520
<v Speaker 7>think he had a lot of heads nodding and in

0:30:22.680 --> 0:30:24.200
<v Speaker 7>agreements with him.

0:30:24.840 --> 0:30:26.800
<v Speaker 1>That's what I was wondering about, Like the you know,

0:30:26.920 --> 0:30:29.640
<v Speaker 1>the Roberts and the Barretts and the Kavanaughs, were they

0:30:30.800 --> 0:30:33.400
<v Speaker 1>did you get a sense that there's any appetite on

0:30:33.520 --> 0:30:36.520
<v Speaker 1>their part to revisit to revive the non delegation doctrine

0:30:36.680 --> 0:30:38.760
<v Speaker 1>And it just wasn't this case. But but on the

0:30:38.800 --> 0:30:39.480
<v Speaker 1>other hand, they took it.

0:30:39.520 --> 0:30:41.480
<v Speaker 7>Right, right, so they need they had four votes to

0:30:41.560 --> 0:30:43.520
<v Speaker 7>take the case when when they when they took it,

0:30:44.240 --> 0:30:47.560
<v Speaker 7>they also added a question about mootness, like basically a

0:30:47.640 --> 0:30:50.400
<v Speaker 7>way to get out of this, which already signaled, hey,

0:30:50.520 --> 0:30:53.000
<v Speaker 7>maybe we don't have four that are real excited about

0:30:53.040 --> 0:30:58.000
<v Speaker 7>taking this case. Those three justices, you know, weren't as

0:30:58.240 --> 0:31:01.720
<v Speaker 7>clearly on one side or the other as is typical

0:31:01.960 --> 0:31:06.640
<v Speaker 7>typically the case. Their questions were more exploratory. And but

0:31:06.880 --> 0:31:09.560
<v Speaker 7>and so I think there is openness down the road

0:31:09.640 --> 0:31:12.840
<v Speaker 7>if you found the right case. I can imagine Paul

0:31:12.920 --> 0:31:17.320
<v Speaker 7>Clement bringing that case. And you know, but and and

0:31:17.600 --> 0:31:19.720
<v Speaker 7>and I think there is potential to get to five.

0:31:19.880 --> 0:31:22.800
<v Speaker 7>But I don't think it with a program that has

0:31:22.880 --> 0:31:26.080
<v Speaker 7>so much history like the FCC program, where the FCC

0:31:26.280 --> 0:31:29.360
<v Speaker 7>was effectively drawing from like a common law that it

0:31:29.440 --> 0:31:34.360
<v Speaker 7>had established. The justices I think on the whole, where

0:31:34.440 --> 0:31:38.720
<v Speaker 7>we're okay and not really worried about the consequences of

0:31:39.080 --> 0:31:41.800
<v Speaker 7>if we second guess this one, we're gonna have to

0:31:41.960 --> 0:31:44.000
<v Speaker 7>undo a bunch of stuff and we're going to have

0:31:44.080 --> 0:31:46.520
<v Speaker 7>a mess on our hands with a whole slew of

0:31:46.600 --> 0:31:49.680
<v Speaker 7>statutes getting challenged, and we can go after you know,

0:31:49.840 --> 0:31:53.240
<v Speaker 7>statutes in other ways, you know, under the APA, we

0:31:53.320 --> 0:31:56.000
<v Speaker 7>don't need to you know, use this non delegation doctrine here.

0:31:56.120 --> 0:31:58.680
<v Speaker 7>So I think there there's probably room for it, but

0:31:58.760 --> 0:32:03.240
<v Speaker 7>I don't think there's going to be a real big

0:32:03.400 --> 0:32:07.080
<v Speaker 7>drive from the justices to use this tool to go

0:32:07.200 --> 0:32:07.960
<v Speaker 7>after regulation.

0:32:09.720 --> 0:32:12.200
<v Speaker 1>Got it, And I assume you expect a decision probably

0:32:12.200 --> 0:32:14.040
<v Speaker 1>towys En it seems.

0:32:13.840 --> 0:32:16.320
<v Speaker 7>Most likely, unless they make real quick work of it

0:32:17.240 --> 0:32:19.160
<v Speaker 7>on some other races. Yeah, it's as possible.

0:32:20.440 --> 0:32:22.160
<v Speaker 1>All right, great, all right, thanks Matt. All right, I

0:32:22.200 --> 0:32:24.920
<v Speaker 1>think with that we will wrap up this episode of

0:32:25.000 --> 0:32:28.280
<v Speaker 1>Votes and Verdicts. As always, thank you for listening. If

0:32:28.320 --> 0:32:30.320
<v Speaker 1>you have any questions about any of the matters we

0:32:30.400 --> 0:32:33.160
<v Speaker 1>discussed on this episode, please don't hesitate to reach out

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