WEBVTT - Student Athletes Score Unanimous Win Over NCAA 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law, with June Brusso from Bloomberg Radio. 0:00:12.200 --> 0:00:15.280 Student athletes dominated the n C Double A and the 0:00:15.320 --> 0:00:18.680 competition at the Supreme Court with a score of nine 0:00:18.720 --> 0:00:22.600 to zero. The decision clears the way for greater compensation 0:00:22.720 --> 0:00:26.599 for college football and basketball players, and may also loosen 0:00:26.640 --> 0:00:31.800 the National Collegiate Athletic Association's grip over college sports. During 0:00:31.920 --> 0:00:35.879 oral arguments, Justice is Brett Kavanaugh, Clarence Thomas, and Samuel 0:00:35.920 --> 0:00:39.760 Alito questioned why the athletes weren't getting a bigger share 0:00:39.760 --> 0:00:43.680 of the billions of dollars schools collect from sports. I 0:00:43.680 --> 0:00:48.720 mean you said earlier, Uh, this would allow the players 0:00:48.880 --> 0:00:51.880 to receive six thousand dollars a year, as if that 0:00:51.960 --> 0:00:55.920 were some exorbitant amount when the TV contracts are in 0:00:55.960 --> 0:01:03.120 the billions. Well it just, uh, the coaches salaries have 0:01:03.240 --> 0:01:07.480 ballooned and they're in the amateur ranks, as are the players. 0:01:08.800 --> 0:01:11.800 So the argument is they are recruited, their used up, 0:01:11.840 --> 0:01:15.160 and then they're cast aside without even a college degree. 0:01:15.280 --> 0:01:17.800 So they say, how can this be defended in the 0:01:17.920 --> 0:01:21.760 name of amateurism? Joining me is Audrey Anderson, head of 0:01:21.760 --> 0:01:26.240 the Higher education practice at bass baryan sims Audrey. Justice 0:01:26.280 --> 0:01:29.560 Gorstch wrote that the n C double A sought immunity 0:01:29.600 --> 0:01:33.280 from the normal operation of the antitrust laws. Explain what 0:01:33.319 --> 0:01:35.600 he meant well. I think one of the things that's 0:01:35.600 --> 0:01:39.560 really interesting to me about this opinion is that Justice 0:01:39.640 --> 0:01:44.960 Gorsuch really upheld and relied on what the courts below 0:01:45.160 --> 0:01:49.400 had done. So he said, look, there was a really 0:01:49.520 --> 0:01:54.360 extensive trial record here, and the district court judge was 0:01:54.480 --> 0:01:59.000 really thorough and careful in the way that she approached it, 0:01:59.240 --> 0:02:01.720 and she applied the anti trust laws in just the 0:02:01.840 --> 0:02:04.360 right way. What he said was, Look, the ant double 0:02:04.440 --> 0:02:07.240 A just didn't have the proof. I agree with some 0:02:07.320 --> 0:02:10.919 of their legal points here, but they lost on the 0:02:10.960 --> 0:02:15.200 proof at trial. They could not prove that their rules 0:02:15.760 --> 0:02:20.919 limiting what kind of compensation student athletes could earn really 0:02:21.360 --> 0:02:24.760 increased consumer demand for their product, which is what they 0:02:24.760 --> 0:02:27.079 had to do under the anti trust laws. So they 0:02:27.120 --> 0:02:30.640 lost on the facts, not on the law. Tell us 0:02:30.639 --> 0:02:34.320 about anti trust law as it applies here. So what 0:02:34.360 --> 0:02:37.560 the m C double A really wanted here June was 0:02:37.600 --> 0:02:42.560 to get some kind of deferential review under the antitrust 0:02:42.639 --> 0:02:46.200 laws for amateurism. Rules of the m C double A 0:02:46.840 --> 0:02:50.520 and the Court was having none of it. Becore such said, look, 0:02:50.560 --> 0:02:54.359 we have this rule of reason analysis, which is what 0:02:54.440 --> 0:02:57.640 we use under the anti trust laws, and that's what's 0:02:57.639 --> 0:03:01.280 appropriate for the m C double A. They also get 0:03:01.320 --> 0:03:05.240 a rule of reason analysis, and it's a very fact 0:03:05.280 --> 0:03:10.720 intensive analysis and it was appropriately applied here. During the 0:03:10.800 --> 0:03:15.799 oral arguments, several of the johnsices expressed concerns about blurring 0:03:15.800 --> 0:03:21.000 the distinction between amateur and professional athletics. Did you see 0:03:21.040 --> 0:03:25.040 any of that concern in the opinion. That's really interesting. 0:03:25.600 --> 0:03:29.600 Justice Gorsuch started the opinion with the really old history 0:03:29.680 --> 0:03:33.160 from the eighteen hundreds and early nineteen hundreds about how 0:03:33.240 --> 0:03:37.200 dirty with money sports was at that point in time, 0:03:37.680 --> 0:03:41.960 which really created the m C double A. But I've 0:03:42.000 --> 0:03:45.520 heard the court at oral argument June be really concerned 0:03:45.560 --> 0:03:49.040 about what's our next case going to be, what's the 0:03:49.120 --> 0:03:52.040 next rule that they're going to try to stripe down? 0:03:52.520 --> 0:03:57.119 And our court's going to be embroiled forever knit picking 0:03:57.160 --> 0:04:01.880 the m C double as rules. So there is no 0:04:01.880 --> 0:04:06.240 nod to that concern at all in the opinion, And 0:04:06.280 --> 0:04:10.840 in fact, Justice Kavanaughs concurrence is a bring it on 0:04:12.000 --> 0:04:16.960 kind of an enthusiastic all to arms almost against any 0:04:17.080 --> 0:04:19.400 other rules of the m C double A. I kind 0:04:19.440 --> 0:04:23.560 of a very unusual concurrency. Wonder you know what the 0:04:23.640 --> 0:04:26.240 m C double A ever did to Justice Havanaugh. But 0:04:26.440 --> 0:04:29.120 there's nothing in the opinion that makes you think that 0:04:29.240 --> 0:04:32.400 they had any of those concerns. Butsoever, And I don't 0:04:32.400 --> 0:04:35.960 know what happened between oral argument and the opinion, except 0:04:36.040 --> 0:04:39.159 maybe that they kind of figured out that there was 0:04:39.200 --> 0:04:42.640 really no way to address that concern. That that's just 0:04:42.760 --> 0:04:46.720 a very messy aspect of our antitrust laws. That they 0:04:46.760 --> 0:04:49.839 are very fact based, that they are based on what 0:04:49.920 --> 0:04:52.640 the market looks like at any given point in time, 0:04:53.279 --> 0:04:57.040 and that parties that are able to bring forth appropriate 0:04:57.080 --> 0:05:00.400 evidence are able to challenge those rules. And I guess 0:05:00.400 --> 0:05:03.719 to give Justice Kavanaugh a little more credit, this could 0:05:03.720 --> 0:05:06.440 also be seen as, come on, n double A, give 0:05:06.480 --> 0:05:09.480 your rules a real look and see whether you can't 0:05:09.600 --> 0:05:14.480 be more accommodating to the interests of your labor pool 0:05:15.080 --> 0:05:18.280 with this ruling. Does this open the door to more 0:05:18.400 --> 0:05:22.400 lawsuits by student athletes over the n C double as rules? 0:05:23.000 --> 0:05:26.480 It does. There already is another class action lawsuit, at 0:05:26.520 --> 0:05:31.640 least one. There's probably several pending right now. Already, and yes, 0:05:31.800 --> 0:05:36.880 it definitely opens the door to more litigation like this 0:05:37.160 --> 0:05:40.880 and they will all be citing Justice Kavanaugh concurrent. So, 0:05:41.000 --> 0:05:44.480 under current n double A rules, scholarship funds to student 0:05:44.520 --> 0:05:48.039 athletes are capped at the cost of attending school, things 0:05:48.120 --> 0:05:50.640 like tuition and room and board. What can they get 0:05:50.680 --> 0:05:54.760 after this ruling? The injunction only applies to Division one 0:05:55.040 --> 0:05:59.440 football and men's and women's basketball because those were the 0:05:59.480 --> 0:06:03.520 only students in the certified class. So as to those 0:06:03.520 --> 0:06:09.359 student athletes, schools can provide them education related benefits that 0:06:09.440 --> 0:06:14.159 are not cash in an unlimited amount. So more book, 0:06:14.440 --> 0:06:20.200 computer equipment, musical instruments, all related to their education in 0:06:20.279 --> 0:06:24.159 an unlimited amount. As to something that is cash or 0:06:24.320 --> 0:06:28.800 cash equivalent, they can only give that in an academically 0:06:28.880 --> 0:06:33.400 related benefit in an amount of fifty dollars because that's 0:06:33.440 --> 0:06:35.680 the amount right now that the m C double A 0:06:35.880 --> 0:06:41.080 says that student athletes may be eligible for for athletically 0:06:41.160 --> 0:06:47.600 related awards. Also it includes study abroad internships, and schools 0:06:47.600 --> 0:06:52.400 can be very inventive in shaping these education related benefits. 0:06:52.560 --> 0:06:56.120 So are we talking tens of thousands of dollars or more? 0:06:57.240 --> 0:07:00.320 Some student athletes may be able to get that amount 0:07:00.360 --> 0:07:04.080 of benefit, they could also get scholarships for graduate school. 0:07:04.520 --> 0:07:08.239 So yes, we are. But right now schools are putting 0:07:08.320 --> 0:07:12.960 out lots and lots of money for better athletic facilities, 0:07:13.120 --> 0:07:16.920 for coaching staff, for other things. They're competing on the 0:07:16.960 --> 0:07:20.920 basis of money that's going to other things that do 0:07:21.000 --> 0:07:25.800 not quite as directly benefit the student athletes. So competing 0:07:25.800 --> 0:07:28.520 on the basis of money is nothing new. They're doing 0:07:28.560 --> 0:07:31.880 that right now. It just doesn't as directly benefit the 0:07:31.920 --> 0:07:35.960 student athletes. More than a dozen states have already passed 0:07:36.080 --> 0:07:38.760 laws that allow college athletes to be paid for the 0:07:38.840 --> 0:07:42.560 use of their name, image, and likeness, and on July first, 0:07:43.080 --> 0:07:45.640 seven of those laws are going to take effect. Where 0:07:45.640 --> 0:07:48.520 does that play into all this? You have to understand 0:07:48.560 --> 0:07:51.200 that this is separate from the case that was decided. 0:07:51.640 --> 0:07:57.320 Name image and likeness laws are talking about what third parties, 0:07:57.640 --> 0:08:02.760 not the schools themselves, but third parties can pay to 0:08:03.080 --> 0:08:07.560 license the name, image, and likenesses of student athletes. You know, 0:08:07.560 --> 0:08:09.880 there's a lot of different ways this could happen, but 0:08:10.000 --> 0:08:12.760 some of the easiest ones. You might think of our 0:08:13.000 --> 0:08:17.360 car dealership in the college town where a student athlete 0:08:17.440 --> 0:08:20.000 is pays for the name, image and likeness of the 0:08:20.320 --> 0:08:24.120 quarterback for the football team and uses that on their advertising, 0:08:24.840 --> 0:08:29.480 or a student athlete has a social media presence and 0:08:29.600 --> 0:08:32.720 somebody pays to put advertising on it. Those are both 0:08:32.760 --> 0:08:34.960 ways that a third party might pay for the name, 0:08:35.000 --> 0:08:38.760 image and likeness of a current student athlete. That's what 0:08:38.880 --> 0:08:42.040 these laws are about. The only thing that stops student 0:08:42.080 --> 0:08:45.240 athletes from doing those kind of deals right now is 0:08:45.280 --> 0:08:48.480 that the N double A would say that they're ineligible 0:08:48.679 --> 0:08:52.800 to participate in N double A competition because if you 0:08:52.880 --> 0:08:55.319 get that kind of revenue right now under MC double 0:08:55.360 --> 0:08:59.319 A rules, you're ineligible. The state laws say in our 0:08:59.360 --> 0:09:03.240 state university, you can't have a rule that, so the 0:09:03.320 --> 0:09:08.280 student athlete is ineligible to participate in athletic competitions because 0:09:08.320 --> 0:09:11.240 he or she gets money for their name, image and likeness. 0:09:11.320 --> 0:09:14.240 So I think that most universities will abide by the 0:09:14.280 --> 0:09:17.560 state law rather than the double A rules. Onto the 0:09:17.600 --> 0:09:23.240 Supreme Court decision, individual athletic conferences can still set limits 0:09:23.280 --> 0:09:27.040 if they choose to. So what that means is that 0:09:27.120 --> 0:09:29.920 what the rules that have been found it violate the 0:09:29.920 --> 0:09:33.760 any trust laws are the rules that the double A set. 0:09:33.880 --> 0:09:37.800 So those apply to all student athletes. Now what the 0:09:37.880 --> 0:09:40.760 courts held the District Court in the Ninth Circuit. Now 0:09:40.760 --> 0:09:44.200 the Supreme Court says, look if an individual conference, you know, 0:09:44.280 --> 0:09:47.480 if the A C C or a smaller conference said, 0:09:47.480 --> 0:09:50.240 look in our conference, all the schools in our conference 0:09:50.280 --> 0:09:53.760 are going to agree that in our conference, students cannot 0:09:53.840 --> 0:09:58.520 get these additional academic benefits. That does not violate the 0:09:58.559 --> 0:10:02.400 any trust laws because cause student athletes would still have 0:10:02.520 --> 0:10:04.880 a choice. If I want to take advantage of the 0:10:05.000 --> 0:10:08.560 extra academic benefits, I can choose a school that's not 0:10:08.640 --> 0:10:11.640 in that conference. If I'm going to that conference, I'm 0:10:11.640 --> 0:10:13.880 making a choice. I know that I won't get those 0:10:13.920 --> 0:10:17.280 extra academic benefits, but there's something else at the school 0:10:17.280 --> 0:10:19.920 in that conference that I really want. The problem was 0:10:20.080 --> 0:10:22.760 the rule of being set at the n C Double 0:10:22.800 --> 0:10:26.600 A level, and there's no other league you can enter 0:10:26.760 --> 0:10:29.440 that competes with the n double A. So there's a 0:10:29.480 --> 0:10:32.559 lot left to be written to this story. June, you're 0:10:32.640 --> 0:10:35.560 pointing out all the n I L laws and what's 0:10:35.559 --> 0:10:38.040 the n C double A going to do with that? Well, 0:10:38.240 --> 0:10:41.800 there is a possibility probably won't be one of the 0:10:42.040 --> 0:10:46.760 Power five conferences, but some of the other conferences in 0:10:46.800 --> 0:10:52.080 Division one very well? Could that rules that say the 0:10:52.240 --> 0:10:57.160 limits in our conference are different and any individual school 0:10:57.480 --> 0:11:01.320 can do whatever it wants just because they are allowed 0:11:01.679 --> 0:11:07.160 to provide study abroad all those other academic benefits doesn't 0:11:07.160 --> 0:11:10.760 mean they have to. They can, but they don't have to. 0:11:12.400 --> 0:11:16.200 So it just makes it there's more competition based on 0:11:16.280 --> 0:11:19.319 what the student athlete is going to get rather than 0:11:19.360 --> 0:11:23.080 based on what the locker rooms look like. How would 0:11:23.160 --> 0:11:28.680 you sum up how does this decision change student athletics 0:11:28.760 --> 0:11:31.719 at this level? I mean, does this change it very much? 0:11:31.800 --> 0:11:33.360 Or is it all the other things that it's going 0:11:33.440 --> 0:11:38.040 to lead to. Well, I think this decision is important 0:11:38.800 --> 0:11:43.400 because it it does say to the n C double 0:11:43.480 --> 0:11:49.000 a um, really no, really, the anti trust laws apply 0:11:49.120 --> 0:11:52.920 to you. You can't get a jail get out of 0:11:53.000 --> 0:11:57.080 jail free card. Based on this board of Regent's case 0:11:57.120 --> 0:12:01.640 from you don't get a get out of jail free 0:12:01.679 --> 0:12:04.760 cards saying that you're a joint venture and so things 0:12:04.760 --> 0:12:11.119 apply differently to you. You, like all other businesses in America, 0:12:11.920 --> 0:12:15.240 can't make agreements with your competitors that you're going to 0:12:15.320 --> 0:12:20.720 pay your labor zero dollars. And that's really that that's 0:12:20.720 --> 0:12:24.600 really important, and that will end up, you know, accruding 0:12:24.640 --> 0:12:28.480 to the benefits of student athletes, because now some schools 0:12:28.520 --> 0:12:33.160 will choose to provide greater right now academic benefits to 0:12:33.280 --> 0:12:37.400 student athletes and some won't, and student athletes can make 0:12:37.480 --> 0:12:40.959 choices based on what they think is best for them. 0:12:41.040 --> 0:12:44.240 After the oral arguments, do the unanimity of this decision 0:12:44.320 --> 0:12:48.800 surprise you, Yeah, I was a little surprised by the unanimity, 0:12:49.200 --> 0:12:53.280 although the court after oral argument seemed to be all 0:12:53.400 --> 0:12:55.600 kind of in the same place to me and that 0:12:55.720 --> 0:12:58.840 they were not buying the n C double a's arguments. 0:12:59.240 --> 0:13:02.800 But I also got the feeling that they were concerned 0:13:02.840 --> 0:13:05.800 about the point we've been talking about with in terms 0:13:05.800 --> 0:13:11.480 of does this open the door to unending litigation against 0:13:11.480 --> 0:13:14.720 the n C double A on the details of its rule. 0:13:15.200 --> 0:13:18.200 And I think that once the court really looked at 0:13:18.240 --> 0:13:21.600 the arguments carefully, I think they kind of said, if 0:13:21.640 --> 0:13:26.319 that's the outcome, that is just what the antitrust laws do. 0:13:26.960 --> 0:13:34.200 Thanks Audrey. That's Audrey Anderson of Basparian SIMS President Joe 0:13:34.240 --> 0:13:37.800 biden OUs did Fannie Mae and Freddie Max regulator after 0:13:37.840 --> 0:13:41.120 a Supreme Court ruling opened the door and dealt a 0:13:41.240 --> 0:13:44.679 punishing blow to investors in their challenge to the government's 0:13:44.720 --> 0:13:48.079 collection of more than one billion dollars in profits from 0:13:48.080 --> 0:13:51.840 the mortgage giants. In a unanimous ruling written by Justice 0:13:51.840 --> 0:13:56.120 Samuel Alito, that Justice has rejected the shareholder's argument that 0:13:56.160 --> 0:14:00.120 the Federal Housing Finance Agency had exceeded its authority in 0:14:00.200 --> 0:14:03.680 making the agreements that allow the federal government to collect 0:14:03.720 --> 0:14:06.720 more than three d billion dollars in profits from Fannie 0:14:06.720 --> 0:14:10.240 and Freddie. As Alito and Justice is Neil Gorsuch and 0:14:10.320 --> 0:14:14.120 Clarence Thomas remarked during closing arguments, it was a big 0:14:14.160 --> 0:14:18.560 gask by the shareholders. The way in which the agency 0:14:18.920 --> 0:14:23.800 carries out its responsibility as conservator has a profound effect 0:14:24.440 --> 0:14:27.320 on the housing market and therefore a profound effect on 0:14:27.480 --> 0:14:32.200 ordinary people. Counsel, your remedial ask is a big one 0:14:32.320 --> 0:14:36.680 and and hard, hard frust to swallow. I know, But 0:14:36.760 --> 0:14:40.760 how would we unscramble the egg here? My guess is 0:14:40.840 --> 0:14:44.120 Jonathan Macy, a professor at Yale Law School. So what's 0:14:44.120 --> 0:14:48.080 your reaction to this decision? This is just a devastating 0:14:48.120 --> 0:14:51.240 blow to hedge funds and others who had really bet 0:14:51.280 --> 0:14:55.000 on a different outcome. And you know, I think at 0:14:55.040 --> 0:14:56.960 this point it's going to be very hard to show 0:14:57.040 --> 0:14:59.520 damages for the little bit of the case that's left. 0:15:00.000 --> 0:15:03.640 Olders can't recover most of the overpayments. And so these 0:15:03.680 --> 0:15:07.000 big companies like you know, fair Home and Pershing Square, 0:15:07.400 --> 0:15:10.840 who took a big gamble on the Court's deciding that 0:15:10.960 --> 0:15:14.160 there was a takings of property here, really lost out. 0:15:14.200 --> 0:15:16.720 I'm a little bit surprised and disappointed by the ruling, 0:15:16.800 --> 0:15:19.360 but I can't say that it comes as a complete surprise. 0:15:19.960 --> 0:15:22.360 Why did the court find the structure of the f 0:15:22.520 --> 0:15:26.400 a f A unconstitutional? Well there, I know this has 0:15:26.440 --> 0:15:28.760 come up many many times. He came up also with 0:15:28.920 --> 0:15:32.800 the Consumer Financial Protection Bureau. The question is whether you 0:15:32.840 --> 0:15:36.120 can install as of these agencies in a manner in 0:15:36.120 --> 0:15:40.480 which you can't remove them. And the Justice has said, 0:15:40.600 --> 0:15:43.360 we're going to just basically fix the statute and make 0:15:43.400 --> 0:15:45.840 it so you can remove the head of the agency, 0:15:45.880 --> 0:15:50.400 which cures any constitutional defect and allows the agency to continue. 0:15:50.400 --> 0:15:53.160 And so Mark Collabria, who is the f hf A 0:15:53.320 --> 0:15:56.760 director and wanted to release you know, Fannie and Freddie 0:15:56.800 --> 0:15:59.960 from government control, he could now be fired and up 0:16:00.000 --> 0:16:03.720 he was immediately fired by Biden. So what does replacing 0:16:03.840 --> 0:16:07.440 Callabria mean for Fatnie and Freddy and the mortgage market. 0:16:07.760 --> 0:16:10.200 It was huge for Fannie and Freddie. The mortgage market 0:16:10.280 --> 0:16:12.560 in a nutshell because it means that we're not going 0:16:12.600 --> 0:16:15.560 to privatize these agencies, which is what Trump wanted to do, 0:16:15.760 --> 0:16:18.560 and they'll remain under the auspices of the government. It 0:16:18.640 --> 0:16:21.720 will be that the mortgage markets will be a little 0:16:21.720 --> 0:16:25.640 bit more insulated from market forces. That should mean, you know, 0:16:25.680 --> 0:16:29.600 the lower interest rates will continue because the extent that 0:16:29.600 --> 0:16:33.520 it makes a practical difference, the government controlled agency, particularly 0:16:33.560 --> 0:16:35.800 in a Biden administration, will be much more in favor 0:16:35.800 --> 0:16:38.720 of you know, loose money housing policy and keeping interest 0:16:38.800 --> 0:16:42.480 rates low. Let's talk now about the part of the 0:16:42.560 --> 0:16:45.600 opinion that dealt with the suite that was created under 0:16:45.600 --> 0:16:49.920 the agreement. Tell us about that. Basically, the ideal was 0:16:50.040 --> 0:16:53.560 that to the extent that interest rates moved, entities were 0:16:53.560 --> 0:16:57.480 now making gigantic profits, that the shareholders were not allowed 0:16:57.560 --> 0:17:01.000 to benefit from the increase in revenue was because there 0:17:01.000 --> 0:17:03.800 were these sweep accounts that swept all the money into 0:17:03.840 --> 0:17:07.080 the U. S. Treasury. They basically said that that was fine, 0:17:07.119 --> 0:17:10.240 that the Federal Housing Finance Agency did not exceed its 0:17:10.240 --> 0:17:13.880 authority under federal law when it implemented that sweep account. 0:17:14.400 --> 0:17:17.640 Over time, the sweep account was huge. They swept over 0:17:17.640 --> 0:17:20.199 a hundred billion dollars in profits from you know, Fannie 0:17:20.200 --> 0:17:22.080 May and Freddie Mack, and it would have been a 0:17:22.119 --> 0:17:25.000 huge balloon to shareholders if that money had to be returned, 0:17:25.280 --> 0:17:28.320 And that was really the core of the lawsuit from 0:17:28.320 --> 0:17:31.600 the standpoint of these investors and why this decision was 0:17:31.640 --> 0:17:34.719 such a crushing blow to them. The justices are sending 0:17:34.760 --> 0:17:36.919 the case back to the lower court, but on this 0:17:37.200 --> 0:17:41.560 really narrow issue explained that for us, basically there's no 0:17:41.720 --> 0:17:46.080 improper interference by government in the management of the business. 0:17:46.160 --> 0:17:48.879 So it means that the investors will have a chance 0:17:48.960 --> 0:17:51.159 to show that they were harmed by the fact that 0:17:51.240 --> 0:17:54.760 the agency was unconstitutional because of a lack of presidential 0:17:54.760 --> 0:17:59.800 control over f h f A directors who basically approved 0:18:00.080 --> 0:18:02.840 implemented the policy that was at the heart of the case, 0:18:02.880 --> 0:18:06.440 which was this sweep policy. So do you think they'll 0:18:06.440 --> 0:18:09.600 be able to prove that. It seems like a tenuous connection, 0:18:10.119 --> 0:18:12.359 and I think it will be extremely I mean, I 0:18:12.359 --> 0:18:14.960 think the premise of your question is really important, which 0:18:15.000 --> 0:18:16.600 is a lot of this will come down to the 0:18:16.600 --> 0:18:19.480 burden of proof, and it will be very difficult, I think, 0:18:19.520 --> 0:18:22.800 to show. And I think the directors will strenuously argue 0:18:22.840 --> 0:18:25.439 that they weren't influenced at all by the lack of 0:18:25.480 --> 0:18:28.639 presidential control. I think that's a real long shot. I 0:18:28.760 --> 0:18:31.520 take it you think that justices should have come out 0:18:31.520 --> 0:18:35.080 a different way. You know, it's a difficult thing, is 0:18:35.119 --> 0:18:38.920 an emotional matter, June. Frankly, I was hoping that it 0:18:38.960 --> 0:18:40.680 would come out the other way. In fact, I think 0:18:40.680 --> 0:18:45.320 that what the government did was terrible stream you know, 0:18:45.520 --> 0:18:49.159 interjection of the government into what should be you know, 0:18:49.200 --> 0:18:54.040 a private enterprise kind of situation and taking money for 0:18:54.119 --> 0:18:56.400 the government at the expense of the shareholders who had 0:18:56.440 --> 0:18:59.159 put their capital at risk, is you know, something you 0:18:59.200 --> 0:19:01.320 really don't want to see in a country governed by 0:19:01.320 --> 0:19:04.080 the rule of law. On the other hand, as a 0:19:04.359 --> 0:19:07.040 practical matter, you know, we're living in a time of 0:19:07.320 --> 0:19:11.520 tremendous profitibly get government spending and government budget deficits, and 0:19:11.600 --> 0:19:14.119 from that perspective, it's hard to find them that the 0:19:14.280 --> 0:19:16.680 justices would make the government fork over such a huge 0:19:16.680 --> 0:19:19.320 amount of money. And you know, increasing the government budget 0:19:19.320 --> 0:19:23.200 deficit by even more. Is this another nod to the 0:19:23.320 --> 0:19:27.439 you know, the idea of the unitary executive. Well, this 0:19:27.600 --> 0:19:32.119 is certainly, uh, this is certainly a nod to the 0:19:32.200 --> 0:19:37.000 idea that, uh, there there's something meaningful about the separation 0:19:37.040 --> 0:19:40.199 of powers and that there are willings in which it's 0:19:40.240 --> 0:19:44.640 appropriate to construct regulatory agencies in their ways in which 0:19:44.640 --> 0:19:46.760 it's not. And it is a little bit of a 0:19:46.760 --> 0:19:52.119 help to the unitary executive. But but uh, but I 0:19:52.320 --> 0:19:54.000 out of fault it on that ground. I mean, I 0:19:54.000 --> 0:19:57.240 do think that that you know, we have we we 0:19:57.359 --> 0:20:00.560 live in a democracy, and when the administrations change change, 0:20:00.840 --> 0:20:03.040 it ought to be possible to change the heads of 0:20:03.040 --> 0:20:07.480 these administrative agencies. I mean, do you buy the idea that, um, 0:20:07.560 --> 0:20:11.560 the president having the power to fire someone changes the 0:20:11.600 --> 0:20:16.520 way they act. Oh yeah, definitely. If people want to 0:20:16.600 --> 0:20:19.800 keep their jobs and the administration changes, I don't have 0:20:19.840 --> 0:20:24.040 to change their behavior. Will put it definitely, Biden in 0:20:24.160 --> 0:20:27.200 the light the l Mark Collabora was operating the agency. 0:20:27.600 --> 0:20:29.440 He's gonna find and put in somebody who's going to 0:20:29.480 --> 0:20:32.439 operate the agency in the ways he finds congenial. So 0:20:32.480 --> 0:20:34.760 it's not often a question of will the people in 0:20:34.800 --> 0:20:37.480 the jobs chase their behavior, it's will the people in 0:20:37.520 --> 0:20:39.480 the jobs be the same people or will they get 0:20:39.520 --> 0:20:42.240 will they change with the administration. And we have a 0:20:42.440 --> 0:20:47.640 huge philosophical ideological changes we saw in the last election, 0:20:48.160 --> 0:20:51.240 you know, the shift from Trump to Biden. You're always 0:20:51.240 --> 0:20:53.320 going to see people that can work, collaborate, following by 0:20:53.320 --> 0:20:55.879 the wayside and installing people who are going to be 0:20:55.960 --> 0:21:00.080 more congenial to the political and economic views of the 0:21:00.119 --> 0:21:04.120 administration that won the election. So, now, does this decision 0:21:04.160 --> 0:21:09.879 have any um impact outside of the f h F 0:21:10.040 --> 0:21:14.840 A context. Not really. This is a very special kind 0:21:14.840 --> 0:21:18.720 of bureaucracy. I mean, here's the It isn't a broader 0:21:18.960 --> 0:21:22.560 you know, so on the sweet side of it, there's 0:21:22.560 --> 0:21:27.760 really not much of a presidential of value um On 0:21:27.800 --> 0:21:29.679 the ind hand, in terms of you know, it's just 0:21:29.760 --> 0:21:32.960 a uh, you know, it's just another case that says that, 0:21:33.520 --> 0:21:36.800 you know, a certain minister of agency structures like Fannie 0:21:36.840 --> 0:21:38.719 May and Freddie mac are not going to be you know, 0:21:39.119 --> 0:21:42.600 don't pass constitutional muster. And we see the same kind 0:21:42.600 --> 0:21:47.080 of arguments made up with respect to sec administrative judges 0:21:47.480 --> 0:21:51.879 or the Consumer Financial Protection Bureau. The same you know, 0:21:51.920 --> 0:21:56.520 issues have arisen with respect to their constitutionality of those arrangements. 0:21:57.080 --> 0:21:59.880 Thanks for being on the Boomberg Law Show, John, that's if, 0:22:00.000 --> 0:22:03.360 Sir Jonathan Macy of Yale Law School. I'm June Grazzo 0:22:03.440 --> 0:22:04.720 and you're listening to Bloomberg