1 00:00:02,880 --> 00:00:07,080 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,200 --> 00:00:12,639 Speaker 2: Hawaii's law restricting the carrying of guns onto private property 3 00:00:12,760 --> 00:00:16,639 Speaker 2: open to the public like stores, hotels, and gas stations 4 00:00:16,840 --> 00:00:20,040 Speaker 2: without the consent of the property owner is known as 5 00:00:20,079 --> 00:00:23,360 Speaker 2: the Vampire rule, and it looks like the Supreme Court's 6 00:00:23,400 --> 00:00:27,680 Speaker 2: conservative justices are about to drive a stake into it. 7 00:00:27,960 --> 00:00:32,680 Speaker 2: At oral arguments on Tuesday, the Conservatives were roundly skeptical 8 00:00:32,720 --> 00:00:36,080 Speaker 2: of the law. Chief Justice John Roberts wanted to know 9 00:00:36,280 --> 00:00:40,520 Speaker 2: why the Second Amendment was being relegated to second class status. 10 00:00:41,080 --> 00:00:44,479 Speaker 3: It is a very clear constitutional right under the First Amendment. 11 00:00:44,520 --> 00:00:47,240 Speaker 3: If I, for example, as a candidate for office, want 12 00:00:47,280 --> 00:00:49,960 Speaker 3: to walk up to your door on private property and 13 00:00:50,040 --> 00:00:53,360 Speaker 3: knock on the door and say here, give me your vote, 14 00:00:53,560 --> 00:00:56,680 Speaker 3: that's exercising your First Amendment right. But you say that 15 00:00:56,720 --> 00:00:58,800 Speaker 3: it's different when it comes to the Second Amendment. 16 00:00:59,280 --> 00:01:03,720 Speaker 2: And Samuel Alito wanted to know why Hawaii even needed 17 00:01:03,760 --> 00:01:04,240 Speaker 2: the law. 18 00:01:04,600 --> 00:01:08,240 Speaker 4: So, what then, is the big deal about this statute? 19 00:01:08,319 --> 00:01:11,840 Speaker 4: Why does it matter if store owners and owners of 20 00:01:11,920 --> 00:01:15,600 Speaker 4: private property is that are generally open to the public 21 00:01:15,840 --> 00:01:18,160 Speaker 4: don't like guns. Why is it a big deal to 22 00:01:18,240 --> 00:01:20,920 Speaker 4: say they want people carrying guns to stay. 23 00:01:20,680 --> 00:01:22,280 Speaker 1: Out, just put up a sign. 24 00:01:22,560 --> 00:01:25,800 Speaker 2: My guest is a Second Amendment expert Adam Winkler, a 25 00:01:25,840 --> 00:01:29,920 Speaker 2: professor at UCLA Law School. Adam explained the Hawaii law 26 00:01:30,000 --> 00:01:32,760 Speaker 2: for us and why it's called the vampire rule. 27 00:01:33,080 --> 00:01:37,160 Speaker 5: It's called the vampire rule because the traditional legend of 28 00:01:37,200 --> 00:01:40,240 Speaker 5: the vampire is that they can't go on to private 29 00:01:40,319 --> 00:01:43,920 Speaker 5: property without the owner's consent, and that's a real limit 30 00:01:44,000 --> 00:01:46,959 Speaker 5: to vampire's ability to attack people and suck their blood 31 00:01:47,360 --> 00:01:50,080 Speaker 5: if they can't break in or whatnot. So this case 32 00:01:50,120 --> 00:01:52,840 Speaker 5: is Wolford versus Lopez, and the question in the case 33 00:01:52,880 --> 00:01:56,920 Speaker 5: is whether the Second Amendment is infringed by a Hawaii 34 00:01:57,000 --> 00:02:02,040 Speaker 5: law that requires gun carriers to obtain affirmative permission before 35 00:02:02,040 --> 00:02:05,960 Speaker 5: bringing their guns onto private property that is otherwise open 36 00:02:06,000 --> 00:02:07,840 Speaker 5: to the public. And so that's why it's kind of 37 00:02:07,840 --> 00:02:10,280 Speaker 5: thought as the vampire rule. Do you, like a vampire, 38 00:02:10,639 --> 00:02:13,960 Speaker 5: have to get affirmative permission? Now, of course, private property 39 00:02:13,960 --> 00:02:17,240 Speaker 5: owners can prohibit guns from their property. The issue here 40 00:02:17,480 --> 00:02:20,560 Speaker 5: is the default rule. Most states say that you can 41 00:02:20,600 --> 00:02:24,240 Speaker 5: bring your guns unless the property owner affirmatively says no, 42 00:02:24,520 --> 00:02:28,360 Speaker 5: you can't, typically by posting a sign that says no 43 00:02:28,480 --> 00:02:31,960 Speaker 5: guns allowed. Hawaii and several other states have adopted a 44 00:02:31,960 --> 00:02:36,280 Speaker 5: different rule. Property owners must affirmatively consent in advance to 45 00:02:36,320 --> 00:02:38,480 Speaker 5: people bringing guns on their property. 46 00:02:38,520 --> 00:02:42,239 Speaker 2: So why does the government say that violates the Second Amendment. 47 00:02:42,880 --> 00:02:46,639 Speaker 5: Well, it goes back to this history and tradition test 48 00:02:46,840 --> 00:02:49,960 Speaker 5: that was established by the Bruin case a few years ago. 49 00:02:50,280 --> 00:02:52,400 Speaker 5: And in that case, the Supreme Court said that for 50 00:02:52,480 --> 00:02:55,280 Speaker 5: a gun law to be constitutionally permissible, it has to 51 00:02:55,320 --> 00:02:58,440 Speaker 5: be consistent with the tradition of gun regulation in the 52 00:02:58,520 --> 00:03:03,040 Speaker 5: seventeen and eighteen hundreds. And the gun challengers here are saying, 53 00:03:03,280 --> 00:03:06,280 Speaker 5: one that there isn't a history and tradition of a 54 00:03:06,320 --> 00:03:10,280 Speaker 5: default rule requiring affirmative consent in advance for people to 55 00:03:10,280 --> 00:03:13,560 Speaker 5: bring guns onto private property that's open to the public, 56 00:03:13,800 --> 00:03:19,359 Speaker 5: and two that the consequences of Hawaii's law are devastating 57 00:03:19,480 --> 00:03:21,720 Speaker 5: for gun carrying. The Supreme Court has said, you have 58 00:03:21,760 --> 00:03:24,880 Speaker 5: a right to carry guns in public, and if the 59 00:03:25,000 --> 00:03:28,400 Speaker 5: default rule established by Hawaii and several other states like 60 00:03:28,480 --> 00:03:32,520 Speaker 5: California stands, then gun owners really won't be able to 61 00:03:32,560 --> 00:03:35,160 Speaker 5: carry their guns around because they couldn't even stop at 62 00:03:35,200 --> 00:03:38,520 Speaker 5: a gas station without affirmatively first getting consent, so it 63 00:03:38,520 --> 00:03:41,000 Speaker 5: would effectively nullify the right to bear arms. 64 00:03:41,440 --> 00:03:44,240 Speaker 2: So as far as the history and tradition test, Hawaii 65 00:03:44,280 --> 00:03:48,040 Speaker 2: did present historical evidence to support the gun law, including 66 00:03:48,080 --> 00:03:50,640 Speaker 2: an eighteen thirty three law in place during the reign 67 00:03:50,760 --> 00:03:54,880 Speaker 2: of King Kamehameha and in eighteen sixty five Louisiana law, 68 00:03:55,080 --> 00:03:58,640 Speaker 2: but it didn't seem that was enough for the conservative justices. 69 00:03:58,680 --> 00:04:02,760 Speaker 2: Brett Kavanaugh said, there's no sufficient history case closed. 70 00:04:03,240 --> 00:04:07,760 Speaker 5: Well, the real challenge of applying Bruin's history and tradition 71 00:04:07,920 --> 00:04:12,200 Speaker 5: tests is in part that there's often not much of 72 00:04:12,240 --> 00:04:16,400 Speaker 5: a tradition of anything when it comes to regulating guns, 73 00:04:16,440 --> 00:04:20,000 Speaker 5: besides sort of racist gun laws, and you know, a 74 00:04:20,040 --> 00:04:23,599 Speaker 5: couple laws here and there, and so it's hard to 75 00:04:23,720 --> 00:04:27,920 Speaker 5: find consistency or predictability. The Ninth Circuit here said that 76 00:04:28,000 --> 00:04:30,719 Speaker 5: there was a national tradition of prohibiting the carrying of 77 00:04:30,760 --> 00:04:34,680 Speaker 5: firearms on private property without consent. Yet several justices in 78 00:04:34,720 --> 00:04:37,400 Speaker 5: the oral arguments suggest that there was no such history. 79 00:04:37,640 --> 00:04:40,960 Speaker 5: And the challenge of Bruin with regards to say default 80 00:04:41,000 --> 00:04:44,400 Speaker 5: rules for private property that's open to the public is 81 00:04:44,440 --> 00:04:47,800 Speaker 5: that there really weren't default rules in either direction. In 82 00:04:47,839 --> 00:04:50,719 Speaker 5: the seventeen and eighteen hundreds, and so once again we're 83 00:04:50,720 --> 00:04:54,640 Speaker 5: trying to figure out the constitutionality of modern laws by 84 00:04:54,760 --> 00:04:59,800 Speaker 5: reference to analogies to a tradition that didn't exist in either. 85 00:05:00,680 --> 00:05:02,280 Speaker 5: In many of these cases. 86 00:05:02,360 --> 00:05:07,120 Speaker 2: Justice Samuel Alito told Hawai's attorney Neil Katieu, you're relegating 87 00:05:07,200 --> 00:05:10,240 Speaker 2: the Second Amendment to second class status, and the Chief 88 00:05:10,440 --> 00:05:14,400 Speaker 2: Justice compared it to the First Amendment allowing a political 89 00:05:14,440 --> 00:05:17,719 Speaker 2: candidate to walk up to someone's door to campaign. Quote, 90 00:05:17,880 --> 00:05:21,280 Speaker 2: you say it's different for the Second Amendment, What exactly 91 00:05:21,480 --> 00:05:25,600 Speaker 2: is the distinction. Isn't the distinction obvious that in one 92 00:05:25,680 --> 00:05:28,760 Speaker 2: you're carrying a weapon that can hurt people and the 93 00:05:28,800 --> 00:05:30,160 Speaker 2: other you're carrying pamphlets. 94 00:05:30,800 --> 00:05:32,440 Speaker 5: Well, it would seem that that would be a pretty 95 00:05:32,640 --> 00:05:36,000 Speaker 5: viable distinction. It might not lead to the outcome that 96 00:05:36,040 --> 00:05:39,719 Speaker 5: the challengers hope for, or even might not necessarily lead 97 00:05:39,760 --> 00:05:42,279 Speaker 5: to the outcome that Hawaii is hoping for, but it 98 00:05:42,400 --> 00:05:45,920 Speaker 5: just highlights what's happened a continuing rhetoric that we see 99 00:05:45,920 --> 00:05:48,880 Speaker 5: among the conservative justices, which is that the Second Amendment 100 00:05:49,080 --> 00:05:51,880 Speaker 5: they feel is being treated like a second class right 101 00:05:52,080 --> 00:05:57,440 Speaker 5: because courts are upholding gun laws and in upholding gun laws. 102 00:05:57,480 --> 00:06:00,839 Speaker 5: They are not treating the Second Amendment the amount of 103 00:06:00,880 --> 00:06:04,080 Speaker 5: respect that they want. What was surprising about this oral 104 00:06:04,160 --> 00:06:06,640 Speaker 5: argument was not that some of the justices said that 105 00:06:06,680 --> 00:06:09,279 Speaker 5: the Second Amendment is being treated like a second class right. 106 00:06:09,760 --> 00:06:13,360 Speaker 5: We've seen that argument made time and again by Clarence Thomas, 107 00:06:13,360 --> 00:06:17,000 Speaker 5: by Neil Gorsich, by Sam Alido. What was surprising in 108 00:06:17,040 --> 00:06:21,080 Speaker 5: this case was that the Chief Justice voiced that concern. 109 00:06:21,520 --> 00:06:24,920 Speaker 5: He suggested that the Second Amendment was being unfairly treated 110 00:06:25,040 --> 00:06:28,360 Speaker 5: like a disfavored right to stink from the First Amendment. 111 00:06:28,600 --> 00:06:31,400 Speaker 5: And that's surprising because the Chief Justice we've sort of 112 00:06:31,440 --> 00:06:37,240 Speaker 5: all thought to be somewhat reluctant to expanding Second Amendment 113 00:06:37,480 --> 00:06:41,440 Speaker 5: protections beyond Bruin and Heller, and this suggested that maybe 114 00:06:41,480 --> 00:06:44,240 Speaker 5: he did agree with the more conservative colleagues that the 115 00:06:44,240 --> 00:06:47,080 Speaker 5: Second Amendment needs more protection, that the courts need to 116 00:06:47,120 --> 00:06:49,200 Speaker 5: be striking down more gun laws right now. 117 00:06:49,760 --> 00:06:52,480 Speaker 2: You're an expert on the Second Amendment. Do you think 118 00:06:52,520 --> 00:06:56,120 Speaker 2: it's a disfavored amendment or it's being relegated to second 119 00:06:56,120 --> 00:06:56,960 Speaker 2: class status? 120 00:06:57,400 --> 00:07:00,200 Speaker 5: I personally don't, but I do recognize that the courts 121 00:07:00,200 --> 00:07:02,680 Speaker 5: are really struggling right now to try to figure out 122 00:07:02,720 --> 00:07:06,440 Speaker 5: what the Second Amendment means, where it applies, and what 123 00:07:06,560 --> 00:07:09,920 Speaker 5: is constitutionally permissible. And I think it really comes back 124 00:07:09,960 --> 00:07:11,920 Speaker 5: a little bit, at least to this history and tradition 125 00:07:12,040 --> 00:07:15,600 Speaker 5: test established by Bruin. It has really left the lower 126 00:07:15,680 --> 00:07:18,880 Speaker 5: courts in chaos. That where the Supreme Court said, the 127 00:07:18,880 --> 00:07:21,040 Speaker 5: reason why we need this history and tradition test is 128 00:07:21,040 --> 00:07:25,040 Speaker 5: going to limit judicial activism, prevent judges from imposing their 129 00:07:25,120 --> 00:07:29,160 Speaker 5: values on the Constitution, and provide more predictability. But instead, 130 00:07:29,240 --> 00:07:33,280 Speaker 5: what we've seen is tremendous inconsistency in the lower courts, 131 00:07:33,360 --> 00:07:36,720 Speaker 5: tremendous disagreement over the scope of gun laws, and in 132 00:07:36,760 --> 00:07:39,800 Speaker 5: part because the history and tradition of gun regulation. There 133 00:07:39,840 --> 00:07:42,080 Speaker 5: is a history in tradition, but it's very different kinds 134 00:07:42,080 --> 00:07:44,760 Speaker 5: of gun laws than we have today. Truth be told 135 00:07:44,800 --> 00:07:48,680 Speaker 5: that if we really seriously applied this Bruin test, then 136 00:07:48,800 --> 00:07:51,600 Speaker 5: a whole raft of gun laws that are widely accepted 137 00:07:51,640 --> 00:07:55,640 Speaker 5: would not be constitutionally permissible. We didn't have background checks 138 00:07:55,680 --> 00:07:58,280 Speaker 5: back in the seventeen and eighteen hundreds or anything like it. 139 00:07:58,440 --> 00:08:01,920 Speaker 5: We didn't have bands on felon possessing firearms or anything 140 00:08:01,960 --> 00:08:04,040 Speaker 5: really like it, and we didn't have bands on the 141 00:08:04,080 --> 00:08:07,840 Speaker 5: mentally ill possessing firearms back in the seventeen and eighteen hundreds. 142 00:08:07,840 --> 00:08:11,720 Speaker 5: These are all modern twentieth century inventions, and yet the 143 00:08:11,800 --> 00:08:15,080 Speaker 5: court says we have to find analogies back in the 144 00:08:15,120 --> 00:08:18,480 Speaker 5: seventeen and eighteen hundreds. It's proven very difficult for the courts. 145 00:08:18,920 --> 00:08:22,640 Speaker 5: One difficult issue that's arisen in these cases is how 146 00:08:22,680 --> 00:08:26,080 Speaker 5: to think about the history of racist gun laws in America. 147 00:08:26,440 --> 00:08:28,680 Speaker 5: One thing there's been a lot of in the seventeen 148 00:08:28,680 --> 00:08:32,680 Speaker 5: and eighteen hundreds was gun laws that prohibited people who 149 00:08:32,679 --> 00:08:36,200 Speaker 5: were African American, for instance, from possessing firearms. In these 150 00:08:36,280 --> 00:08:38,600 Speaker 5: racist gun laws, the courts have kind of struggled with 151 00:08:38,679 --> 00:08:41,400 Speaker 5: how to figure out how to apply them, and that 152 00:08:41,480 --> 00:08:44,280 Speaker 5: came up in this case. You know, obviously you can't 153 00:08:44,320 --> 00:08:45,960 Speaker 5: look at those gun laws and say, well, there's a 154 00:08:45,960 --> 00:08:48,640 Speaker 5: principle that we can discriminate on the basis of race 155 00:08:48,720 --> 00:08:52,040 Speaker 5: in our gun laws. Today, no one would accept that conclusion. 156 00:08:52,760 --> 00:08:56,920 Speaker 5: But do those laws nonetheless reflect a measure of governmental 157 00:08:56,960 --> 00:09:01,400 Speaker 5: authority to regulate guns? And if they do, then it 158 00:09:01,400 --> 00:09:03,600 Speaker 5: would seem that that's part of the history and tradition 159 00:09:03,679 --> 00:09:06,760 Speaker 5: of gun laws and something that speaks to the extent 160 00:09:06,840 --> 00:09:10,760 Speaker 5: of government authority to regulate guns. In this case, Hawaii 161 00:09:10,760 --> 00:09:13,880 Speaker 5: relied on an eighteen sixty five law from Louisiana that 162 00:09:14,000 --> 00:09:18,600 Speaker 5: restricted gun carrying on premises and plantations without the owner's consent. 163 00:09:19,160 --> 00:09:22,240 Speaker 5: Neil Gorsich said that that was an outlier and part 164 00:09:22,280 --> 00:09:25,040 Speaker 5: of the Black Codes, and so it should be completely ignored. 165 00:09:25,280 --> 00:09:29,240 Speaker 5: Kaitanji Brown Jackson said no, said that if we ignore 166 00:09:29,320 --> 00:09:32,280 Speaker 5: those laws, then we aren't really looking at the full 167 00:09:32,400 --> 00:09:36,360 Speaker 5: history and tradition of gun regulation, as Bruin requires. And 168 00:09:36,440 --> 00:09:39,679 Speaker 5: so this has become a recurring problem in these cases, 169 00:09:39,720 --> 00:09:41,760 Speaker 5: and it'll be interesting to see what the court here 170 00:09:41,840 --> 00:09:43,400 Speaker 5: says that might sort that out. 171 00:09:44,120 --> 00:09:49,240 Speaker 2: Liberal Justices Sonya Sotomayor and Katanji Brown Jackson seemed open 172 00:09:49,280 --> 00:09:52,160 Speaker 2: to the argument that the laws better understood as a 173 00:09:52,160 --> 00:09:55,880 Speaker 2: matter of property rights and trespassing rather than as a 174 00:09:55,920 --> 00:10:00,840 Speaker 2: gun regulation, but Justice Gorzitz rejected that outright. So what 175 00:10:00,920 --> 00:10:02,280 Speaker 2: about property rights here? 176 00:10:02,600 --> 00:10:05,000 Speaker 5: Well, it is a difficult issue, right, because we do 177 00:10:05,080 --> 00:10:08,720 Speaker 5: recognize that private property owners can prohibit people from coming 178 00:10:08,800 --> 00:10:12,240 Speaker 5: on to their property, and even a property that's open 179 00:10:12,280 --> 00:10:14,800 Speaker 5: to the public, generally, you can prevent someone from coming 180 00:10:14,880 --> 00:10:16,760 Speaker 5: on your property if you don't want to do business 181 00:10:16,800 --> 00:10:19,040 Speaker 5: with them. Obviously, with the exception of things that are 182 00:10:19,040 --> 00:10:21,440 Speaker 5: prohibited by the Civil Rights Act or whatnot, you can't 183 00:10:21,440 --> 00:10:24,520 Speaker 5: prohibit on the basis of race, or sex or national origin. 184 00:10:24,760 --> 00:10:27,800 Speaker 5: But generally you could prohibit someone from coming onto your 185 00:10:27,800 --> 00:10:29,840 Speaker 5: property if you didn't like the fact that they weren't 186 00:10:29,880 --> 00:10:32,760 Speaker 5: wearing shoes, or they weren't wearing a shirt. And well, 187 00:10:32,760 --> 00:10:35,000 Speaker 5: it's at issue here is whether they could prohibit you 188 00:10:35,040 --> 00:10:37,120 Speaker 5: from coming on if you'd have a gun. Now, obviously 189 00:10:37,160 --> 00:10:39,800 Speaker 5: there's a difference between not having a shirt and having 190 00:10:39,800 --> 00:10:42,000 Speaker 5: a gun, and that there is a constitutional right to 191 00:10:42,240 --> 00:10:45,200 Speaker 5: have and to carry a firearm. But generally we think 192 00:10:45,200 --> 00:10:48,360 Speaker 5: that your constitutional rights do not extend onto someone else's 193 00:10:48,440 --> 00:10:51,960 Speaker 5: private property. And so this case poses a real challenge 194 00:10:51,960 --> 00:10:54,480 Speaker 5: to the court how to think about private property rights 195 00:10:54,559 --> 00:10:56,920 Speaker 5: in the context of an amendment that does say that 196 00:10:57,040 --> 00:10:58,800 Speaker 5: you can carry firearms in public. 197 00:10:59,160 --> 00:11:02,600 Speaker 2: Would you say it's pretty clear that the Conservatives intend 198 00:11:02,640 --> 00:11:04,240 Speaker 2: to strike the Hawaii law down. 199 00:11:04,880 --> 00:11:08,680 Speaker 5: It did seem like all six of the Conservative justices 200 00:11:08,960 --> 00:11:13,800 Speaker 5: voiced significant skepticism about Hawaii's law and are likely to 201 00:11:13,880 --> 00:11:19,320 Speaker 5: vote to strike Hawaii's law down. There was some skepticism However, 202 00:11:19,400 --> 00:11:24,559 Speaker 5: by Amy Comy Barrett about whether this law was constitutionally invalid. 203 00:11:24,960 --> 00:11:28,800 Speaker 5: She asked whether states could require consent before gun owners 204 00:11:29,120 --> 00:11:32,280 Speaker 5: carry on too private property that isn't open to the public, 205 00:11:32,480 --> 00:11:35,600 Speaker 5: and the lawyer for the challengers in this case said 206 00:11:35,600 --> 00:11:40,040 Speaker 5: that states could not require such consent, and Justice Barrett 207 00:11:40,280 --> 00:11:43,640 Speaker 5: voiced skepticism about that, saying, wait, so you're suggesting that 208 00:11:43,800 --> 00:11:46,760 Speaker 5: states could not prevent people from bringing guns into my 209 00:11:46,960 --> 00:11:50,400 Speaker 5: private home or the home of Neil Gorsich. But nonetheless, 210 00:11:50,440 --> 00:11:53,880 Speaker 5: she generally seems skeptical of Hawaii's law, and I would 211 00:11:53,920 --> 00:11:56,560 Speaker 5: expect Hawai's law to be struck down at least based 212 00:11:56,559 --> 00:11:58,320 Speaker 5: on the tenor of the oral argument. 213 00:11:58,880 --> 00:12:02,680 Speaker 2: There are similar measures in four other states California, Maryland, 214 00:12:02,760 --> 00:12:05,880 Speaker 2: New York, and New Jersey. If the Court strikes down 215 00:12:05,960 --> 00:12:09,040 Speaker 2: the Hawaii law, will those fall as well? 216 00:12:09,480 --> 00:12:12,800 Speaker 5: It seems likely that's the case. You know, it's possible 217 00:12:12,800 --> 00:12:14,960 Speaker 5: you might see a more narrow ruling that only looks 218 00:12:14,960 --> 00:12:19,680 Speaker 5: at some of the particularities of Hawaii's law, but I 219 00:12:19,679 --> 00:12:20,640 Speaker 5: don't think that's likely. 220 00:12:21,000 --> 00:12:24,400 Speaker 2: Finally, the Court has expanded gun right since Bruin, but 221 00:12:24,600 --> 00:12:27,440 Speaker 2: there have been cases here and there where they allowed 222 00:12:27,480 --> 00:12:31,000 Speaker 2: restrictions like the ghost gun restrictions and the restrictions on 223 00:12:31,080 --> 00:12:35,280 Speaker 2: people with domestic violence restraining orders against them. Do you 224 00:12:35,400 --> 00:12:38,760 Speaker 2: understand where the line is for the conservative justices? 225 00:12:39,280 --> 00:12:41,520 Speaker 5: Well, I think this is really a difficult issue. What 226 00:12:41,600 --> 00:12:43,959 Speaker 5: the Supreme Court said and the Rahimi case where they 227 00:12:44,120 --> 00:12:47,400 Speaker 5: upheld the ban on domestic abusers subject to a restraining 228 00:12:47,480 --> 00:12:49,959 Speaker 5: order from possessing firearms, is that there was a history 229 00:12:49,960 --> 00:12:53,600 Speaker 5: and tradition of banning gun possession by dangerous people. Now 230 00:12:53,640 --> 00:12:56,000 Speaker 5: that seems like that would lead to believe that, you know, 231 00:12:56,120 --> 00:12:58,960 Speaker 5: felons can be banned from having firearms. There's a case 232 00:12:59,040 --> 00:13:02,000 Speaker 5: the Supreme Court set here later this term on whether 233 00:13:02,200 --> 00:13:06,920 Speaker 5: unlawful users of controlled substances can be prohibited from possessing firearms. 234 00:13:07,080 --> 00:13:09,880 Speaker 5: Presumably the reason there is because they're dangerous, and one 235 00:13:09,920 --> 00:13:12,240 Speaker 5: would think that the Raheemi case would lead to the 236 00:13:12,280 --> 00:13:16,800 Speaker 5: substance abuser ban being upheld. But the difficulty even there 237 00:13:16,920 --> 00:13:20,600 Speaker 5: is that Raheemi drew on analogies to some laws in 238 00:13:20,640 --> 00:13:24,600 Speaker 5: the eighteen hundreds that actually didn't prohibit dangerous people from 239 00:13:24,640 --> 00:13:28,440 Speaker 5: possessing firearms. They prohibited some people from carrying guns in 240 00:13:28,520 --> 00:13:31,720 Speaker 5: some circumstances, but none of those laws that the court 241 00:13:31,800 --> 00:13:34,959 Speaker 5: cited to prohibited someone from having a gun in their 242 00:13:35,000 --> 00:13:38,079 Speaker 5: home and using it for self defense, which is exactly 243 00:13:38,120 --> 00:13:40,800 Speaker 5: what the substance abuser ban does and what the ban 244 00:13:40,960 --> 00:13:44,000 Speaker 5: on felons and possession does. And so it seems like 245 00:13:44,120 --> 00:13:46,800 Speaker 5: again it's going to be about the dueling analogies to 246 00:13:46,840 --> 00:13:50,160 Speaker 5: a historical tradition that is ambiguous and frankly just not 247 00:13:50,360 --> 00:13:54,040 Speaker 5: that helpful in deciding the constitutionality of modern gun laws. 248 00:13:54,280 --> 00:13:56,400 Speaker 2: It's been great having you on again, Adam, Thanks so 249 00:13:56,520 --> 00:14:01,079 Speaker 2: much fast, Professor Adam Winkler of UCLA LASS. And now 250 00:14:01,080 --> 00:14:04,320 Speaker 2: a note. Michael Bloomberg, the founder and majority owner of 251 00:14:04,320 --> 00:14:08,280 Speaker 2: Bloomberg LP, the parent company of Bloomberg Radio, is a 252 00:14:08,360 --> 00:14:12,559 Speaker 2: donor to groups that support gun control, including Every Town 253 00:14:12,640 --> 00:14:13,640 Speaker 2: for Gun Safety. 254 00:14:14,040 --> 00:14:19,840 Speaker 6: The President, by your own admission, cannot fire someone for 255 00:14:20,000 --> 00:14:26,480 Speaker 6: disagreeing with his policy choices. You've conceded that, correct, correct, 256 00:14:26,920 --> 00:14:30,800 Speaker 6: all right, So it's not as if keeping her is 257 00:14:30,840 --> 00:14:34,640 Speaker 6: going to twart any right he has to run the department, 258 00:14:34,880 --> 00:14:38,960 Speaker 6: because he has none. He's conceded that on policy he 259 00:14:39,040 --> 00:14:39,400 Speaker 6: does not. 260 00:14:40,120 --> 00:14:42,520 Speaker 2: In the one hundred and twelve year history of the 261 00:14:42,520 --> 00:14:46,280 Speaker 2: Federal Reserve, no president has ever tried to fire a 262 00:14:46,320 --> 00:14:49,880 Speaker 2: governor from the board, and the Supreme Court indicated they're 263 00:14:50,040 --> 00:14:53,400 Speaker 2: unlikely to permit President Trump to be the first to 264 00:14:53,520 --> 00:14:57,240 Speaker 2: do so. On Wednesday, Supreme Court Justice is across the 265 00:14:57,280 --> 00:15:03,080 Speaker 2: ideological spectrum expressed learns about the implications of Trump removing 266 00:15:03,240 --> 00:15:08,480 Speaker 2: Federal Reserve Governor Lisa Cook over unproven mortgage fraud allegations, 267 00:15:08,520 --> 00:15:12,360 Speaker 2: concerns that it would upend the Fed's independence and rattle 268 00:15:12,400 --> 00:15:16,640 Speaker 2: the markets. Justice is Brett Kavanaugh and Amy Cony Barrett, 269 00:15:16,800 --> 00:15:22,240 Speaker 2: both Trump appointees, pose skeptical questions to the US Solicitor General, 270 00:15:22,320 --> 00:15:25,480 Speaker 2: who argues, on behalf of the federal government. 271 00:15:25,320 --> 00:15:32,160 Speaker 7: Your position that there's no judicial review, no process required, 272 00:15:32,880 --> 00:15:38,080 Speaker 7: no remedy available, very low bar for cause that the 273 00:15:38,120 --> 00:15:42,600 Speaker 7: president alone determines. I mean that would weaken, if not shattered, 274 00:15:42,680 --> 00:15:44,160 Speaker 7: the independence of the Federal Reserve. 275 00:15:45,120 --> 00:15:49,240 Speaker 8: Justine Sodomaira brought up the public interests here, and we 276 00:15:49,400 --> 00:15:52,600 Speaker 8: have amicus brace from economists who tell us that if 277 00:15:52,920 --> 00:15:55,640 Speaker 8: Governor Cook is if we grant you your stay, that 278 00:15:55,720 --> 00:15:56,920 Speaker 8: it could trigger overcession. 279 00:15:57,280 --> 00:16:01,080 Speaker 2: Both Cook and Federal Reserve Chairman Jerome Owl sat through 280 00:16:01,160 --> 00:16:05,200 Speaker 2: nearly two hours of arguments in the packed courtroom. Cook 281 00:16:05,280 --> 00:16:08,800 Speaker 2: has denied any wrongdoing, and the threshold for an emergency 282 00:16:08,880 --> 00:16:12,560 Speaker 2: intervention by the Court is high and includes a showing 283 00:16:12,600 --> 00:16:17,920 Speaker 2: of irreparable harm to the president, something several jaunctices, including 284 00:16:18,000 --> 00:16:21,600 Speaker 2: Katanji Brown Jackson, said there was no evidence of. 285 00:16:22,560 --> 00:16:28,480 Speaker 9: So the question is to what extent do we believe 286 00:16:29,240 --> 00:16:33,040 Speaker 9: that the President or the public is harmed by allowing 287 00:16:33,080 --> 00:16:37,080 Speaker 9: Miss Cook to remain in her position for the pendency 288 00:16:37,200 --> 00:16:41,480 Speaker 9: of this case, I'm not sure that we have evidence 289 00:16:41,520 --> 00:16:46,240 Speaker 9: here that missus Cook is an immediate threat to the public. 290 00:16:47,160 --> 00:16:50,479 Speaker 2: The decision in this case could set a crucial precedent 291 00:16:50,600 --> 00:16:53,960 Speaker 2: for the President's influence over the Central Bank and his 292 00:16:54,040 --> 00:16:59,359 Speaker 2: attempt to further expand presidential power. My guest is constitutional 293 00:16:59,400 --> 00:17:04,240 Speaker 2: law experts David Super, a professor at Georgetown Law. David, 294 00:17:04,480 --> 00:17:07,480 Speaker 2: at this point, the Supreme Court doesn't have to definitively 295 00:17:07,800 --> 00:17:11,760 Speaker 2: resolve whether Trump can fire Cook. The issue right now 296 00:17:11,840 --> 00:17:14,680 Speaker 2: is whether Cook can stay on the job while her 297 00:17:14,880 --> 00:17:18,280 Speaker 2: challenge to the firing plays out in the lower courts. 298 00:17:18,600 --> 00:17:21,080 Speaker 2: If you just go by the oral arguments, did it 299 00:17:21,160 --> 00:17:24,320 Speaker 2: seem like there were at least five justices who would 300 00:17:24,359 --> 00:17:26,639 Speaker 2: vote to prevent Trump from firing. 301 00:17:26,320 --> 00:17:31,680 Speaker 1: Cook, I think so. The government's lawyer faced pretty tough 302 00:17:31,800 --> 00:17:35,960 Speaker 1: questioning from seven justices, and it only takes five. There's 303 00:17:36,240 --> 00:17:39,080 Speaker 1: a lot of niceties in this case, but what it 304 00:17:39,119 --> 00:17:41,840 Speaker 1: comes down to is whether the Federal Reserve will be independent, 305 00:17:42,119 --> 00:17:46,879 Speaker 1: whether it will exercise its enormous powers based on best 306 00:17:46,920 --> 00:17:51,240 Speaker 1: expert judgment and the directions given by Congress, or whether 307 00:17:51,280 --> 00:17:53,760 Speaker 1: it will be just a tool of the sitting president 308 00:17:54,160 --> 00:17:58,320 Speaker 1: who can use it irresponsibly to advance his political fortunes. 309 00:17:58,720 --> 00:18:02,920 Speaker 2: And explain the four couse requirement in the Federal Reserve Act. 310 00:18:03,280 --> 00:18:08,080 Speaker 1: Certainly, the Federal Reserve Act creates the Board of Governors, 311 00:18:08,400 --> 00:18:12,119 Speaker 1: allows the President to appoint people to that board with 312 00:18:12,240 --> 00:18:17,480 Speaker 1: Senate confirmation, and provides that once appointed and confirmed, they 313 00:18:17,520 --> 00:18:22,520 Speaker 1: cannot be removed except for cause. That effectively means that 314 00:18:22,600 --> 00:18:26,240 Speaker 1: they must do something wrong or fail to do their 315 00:18:26,359 --> 00:18:30,159 Speaker 1: jobs in order to be removed. It's not just up 316 00:18:30,240 --> 00:18:33,080 Speaker 1: to the president to fire them anytime he wants. He 317 00:18:33,080 --> 00:18:36,240 Speaker 1: can fire his chief of staff anytime he wants, but 318 00:18:36,520 --> 00:18:39,280 Speaker 1: members of the Federal Reserve Board he has to have 319 00:18:39,440 --> 00:18:41,359 Speaker 1: a good reason a cause to do it. 320 00:18:41,600 --> 00:18:45,320 Speaker 2: Cook argues that even if the mortgage fraud allegations were true, 321 00:18:45,920 --> 00:18:49,200 Speaker 2: that is in grounds for firing her for cause. What 322 00:18:49,240 --> 00:18:52,480 Speaker 2: did you hear from the justices on the four cause requirement? 323 00:18:53,240 --> 00:18:56,479 Speaker 1: Well, there was less clarity as to what they were 324 00:18:56,560 --> 00:18:59,360 Speaker 1: thinking about that, at least my take on the argument. 325 00:18:59,760 --> 00:19:05,679 Speaker 1: There are some statutes that provide considerable detail as to 326 00:19:05,840 --> 00:19:09,320 Speaker 1: what is caused. This statute isn't really one of them. 327 00:19:09,760 --> 00:19:15,440 Speaker 1: And some justices, particularly Justice Thomas, seemed to be thinking 328 00:19:16,080 --> 00:19:20,359 Speaker 1: that that difference between this and other laws means that 329 00:19:20,480 --> 00:19:24,760 Speaker 1: anything that Trump says is cause is good enough. But 330 00:19:24,840 --> 00:19:28,280 Speaker 1: there were other justices that seem responsive to the notion 331 00:19:29,040 --> 00:19:32,520 Speaker 1: that if the President can just make up any old 332 00:19:32,600 --> 00:19:36,480 Speaker 1: cause he wants, that there is effectively no independence for 333 00:19:36,520 --> 00:19:42,040 Speaker 1: the Federal Reserve. And I think that the extreme nature 334 00:19:42,080 --> 00:19:45,239 Speaker 1: of the argument here that the Slisser General had to 335 00:19:45,280 --> 00:19:48,280 Speaker 1: make is going to bite them. The essence of doctor 336 00:19:48,320 --> 00:19:53,120 Speaker 1: Crook's argument is all this information was available before I 337 00:19:53,160 --> 00:19:57,520 Speaker 1: was appointed and confirmed. Congress could have taken that into 338 00:19:57,560 --> 00:20:01,520 Speaker 1: account in deciding whether to confirm me. They didn't. And 339 00:20:02,040 --> 00:20:05,639 Speaker 1: the good cause requirement is supposed to relate to something 340 00:20:05,680 --> 00:20:08,600 Speaker 1: one does on the job. I didn't have this job 341 00:20:09,119 --> 00:20:13,840 Speaker 1: when I sought those mortgages. That Trump is saying are improper. 342 00:20:14,280 --> 00:20:17,760 Speaker 2: There was an extraordinary amicus or friend of the court 343 00:20:17,840 --> 00:20:22,000 Speaker 2: brief filed in this case, signed by every living former 344 00:20:22,240 --> 00:20:25,600 Speaker 2: chair of the Federal Reserve, as well as six former 345 00:20:25,720 --> 00:20:30,240 Speaker 2: Treasury secretaries and other experts, warning about how a decision 346 00:20:30,320 --> 00:20:33,720 Speaker 2: for Trump would affect the Fed's independence and the long 347 00:20:33,840 --> 00:20:37,880 Speaker 2: term stability of the economy, and Justice Barrett took note 348 00:20:37,920 --> 00:20:38,280 Speaker 2: of that. 349 00:20:38,880 --> 00:20:44,800 Speaker 1: Well, the elephant in the room is the copious evidence 350 00:20:45,400 --> 00:20:51,320 Speaker 1: that non independent central banks are very bad for country's economies. 351 00:20:51,359 --> 00:20:54,119 Speaker 1: And you can look at Russia, you can look at Turkey, 352 00:20:54,160 --> 00:20:56,280 Speaker 1: you can look at other countries that do not have 353 00:20:56,359 --> 00:21:00,200 Speaker 1: independent central banks, and they have enormous economic trouble as 354 00:21:00,200 --> 00:21:04,440 Speaker 1: a result. The justices know this, and even if philosophically 355 00:21:04,920 --> 00:21:07,720 Speaker 1: they'd like to let Trump have his way, I think 356 00:21:08,080 --> 00:21:10,720 Speaker 1: they don't want to be blamed for throwing the economy 357 00:21:10,720 --> 00:21:15,160 Speaker 1: into a recession. And to her credit, Justice Barrett put 358 00:21:15,160 --> 00:21:18,200 Speaker 1: that out on the table and gave the Solicitor General 359 00:21:18,240 --> 00:21:20,640 Speaker 1: the opportunity to respond. You didn't do much with it, 360 00:21:20,680 --> 00:21:21,800 Speaker 1: but she gave them a chance. 361 00:21:22,119 --> 00:21:24,760 Speaker 2: Cook is also arguing that she should have been given 362 00:21:24,880 --> 00:21:28,199 Speaker 2: notice and an opportunity to be heard to contest the 363 00:21:28,280 --> 00:21:32,320 Speaker 2: allegations before she was fired, and all the Trump appointees 364 00:21:32,520 --> 00:21:36,480 Speaker 2: pushed the Solicitor General to explain why that wasn't done. 365 00:21:36,680 --> 00:21:39,080 Speaker 2: With the question sort of hanging in the air, what 366 00:21:39,240 --> 00:21:40,439 Speaker 2: was the president afraid of? 367 00:21:40,760 --> 00:21:44,199 Speaker 8: You know, justice? Course it positive sit down across the 368 00:21:44,200 --> 00:21:48,040 Speaker 8: table in the Roosevelt run where the President provides ms 369 00:21:48,240 --> 00:21:51,160 Speaker 8: Cook Governor Cook with the evidence and waits to hear 370 00:21:51,960 --> 00:21:54,159 Speaker 8: what her response is. Gives her a chance to defend herself. 371 00:21:54,160 --> 00:21:56,359 Speaker 8: I mean, it just wouldn't be that big a deal. 372 00:21:57,200 --> 00:22:00,919 Speaker 7: And what's the fear of more process here? In the 373 00:22:00,960 --> 00:22:05,439 Speaker 7: sense that process protects you in the sense of helping 374 00:22:05,480 --> 00:22:08,680 Speaker 7: you make better, more accurate decisions, and it helps process 375 00:22:08,720 --> 00:22:11,520 Speaker 7: helps you then convince people on the outside that you've 376 00:22:11,560 --> 00:22:16,480 Speaker 7: made a considered, thorough appropriate decision. What's the concern about 377 00:22:16,520 --> 00:22:17,240 Speaker 7: more process? 378 00:22:17,640 --> 00:22:21,520 Speaker 2: And some of the justices seemed almost incredulous that the 379 00:22:21,560 --> 00:22:26,560 Speaker 2: Solicitor General was contending that Trump's social media posts constituted 380 00:22:26,640 --> 00:22:28,320 Speaker 2: formal notice to Cook. 381 00:22:28,920 --> 00:22:34,960 Speaker 1: Certainly, social media, particularly one's own personal social media platform, 382 00:22:35,320 --> 00:22:38,600 Speaker 1: is not a conventional way of giving notice. It's a 383 00:22:38,640 --> 00:22:42,600 Speaker 1: way of doing public politics. This slicter general actually went 384 00:22:42,680 --> 00:22:47,720 Speaker 1: even farther than you say, and suggested that the failure 385 00:22:47,960 --> 00:22:52,000 Speaker 1: of doctor Cook to tweet back at Trump should be 386 00:22:52,080 --> 00:22:55,199 Speaker 1: held against or should be held as an admission that 387 00:22:55,280 --> 00:22:59,800 Speaker 1: what Trump said was true. If I was held responsible 388 00:22:59,840 --> 00:23:02,800 Speaker 1: for every tweet I ignored, I would be in a 389 00:23:02,880 --> 00:23:06,000 Speaker 1: very bad way. And there was no hearing. There was 390 00:23:06,040 --> 00:23:10,960 Speaker 1: no pretense of a hearing. And the argument that the 391 00:23:11,000 --> 00:23:15,119 Speaker 1: Solicitor General was forced to make is that she got 392 00:23:15,400 --> 00:23:20,280 Speaker 1: the equivalent of a hearing in public in getting adverse 393 00:23:20,800 --> 00:23:24,240 Speaker 1: social media posts from Trump and not responding to them. 394 00:23:25,040 --> 00:23:29,679 Speaker 1: That's an argument that even most conservative justices seemed to 395 00:23:29,680 --> 00:23:31,560 Speaker 1: have a great difficulties following. 396 00:23:31,800 --> 00:23:35,840 Speaker 2: Unlike past arguments, it was really an uphill battle for 397 00:23:35,960 --> 00:23:39,520 Speaker 2: the Solicitor General. Did any of his arguments seem to 398 00:23:39,560 --> 00:23:41,160 Speaker 2: resonate with the justices? 399 00:23:41,720 --> 00:23:45,480 Speaker 1: Well, I mean, the biggest advantage that the president has 400 00:23:45,560 --> 00:23:49,479 Speaker 1: in this case is that the Supreme Court is pretty 401 00:23:49,560 --> 00:23:54,440 Speaker 1: clearly going to strike down security of ten year requirements 402 00:23:54,760 --> 00:23:58,960 Speaker 1: for the vast majority of executive branch officials. That's the 403 00:23:59,320 --> 00:24:03,000 Speaker 1: Trump versus Slaughter case. An oral argument on that made 404 00:24:03,040 --> 00:24:06,679 Speaker 1: pretty clear that the Court is going to overrule Humphrey's 405 00:24:06,680 --> 00:24:12,600 Speaker 1: executor and allow the president to fire at will members 406 00:24:12,640 --> 00:24:15,960 Speaker 1: of even very sensitive boards like the Federal Trade Commission. 407 00:24:16,080 --> 00:24:19,480 Speaker 1: So the question here is always been can the Supreme 408 00:24:19,520 --> 00:24:24,080 Speaker 1: Court find a way of differentiating the Federal Reserve from 409 00:24:24,400 --> 00:24:27,720 Speaker 1: the Federal Trade Commission and all those others? And that's 410 00:24:27,840 --> 00:24:31,840 Speaker 1: I think what this Lister General was trying to go 411 00:24:31,960 --> 00:24:36,280 Speaker 1: with here is to suggest that the Court should just 412 00:24:36,320 --> 00:24:39,479 Speaker 1: treat this case like any other. Once you look at 413 00:24:39,520 --> 00:24:44,200 Speaker 1: the specifics, the accusations against her fall apart in your hands. 414 00:24:44,520 --> 00:24:48,639 Speaker 1: She was obviously given no hearing, and as several justices, 415 00:24:48,680 --> 00:24:53,119 Speaker 1: including Justice Kavanaugh, pointed out, if you allow the president 416 00:24:53,200 --> 00:24:57,359 Speaker 1: to make up anything and call it cause, then you 417 00:24:57,400 --> 00:25:01,240 Speaker 1: have effectively ended the Fed's independent and that makes them 418 00:25:01,359 --> 00:25:02,000 Speaker 1: very nervous. 419 00:25:02,440 --> 00:25:05,399 Speaker 2: It's a high bar for the Supreme Court to intervene 420 00:25:05,400 --> 00:25:09,040 Speaker 2: on an emergency basis and includes a showing of a 421 00:25:09,119 --> 00:25:12,520 Speaker 2: reparable harm to the president. And as many of the 422 00:25:12,680 --> 00:25:16,360 Speaker 2: justices pointed out, you know, where's the irreparable harm to Trump? 423 00:25:16,840 --> 00:25:20,040 Speaker 1: Well, we have gotten a custom over the last year 424 00:25:20,480 --> 00:25:25,119 Speaker 1: to the Supreme Court finding that any potential impairment of 425 00:25:25,280 --> 00:25:30,040 Speaker 1: President Trump's powers is an irreparable injury. But if I 426 00:25:30,240 --> 00:25:33,359 Speaker 1: ask you to go way back in time one year, 427 00:25:33,720 --> 00:25:36,960 Speaker 1: that was very extraordinary and getting the Supreme Court to 428 00:25:37,000 --> 00:25:41,160 Speaker 1: intervene in lower court cases was very difficult throughout most 429 00:25:41,200 --> 00:25:45,119 Speaker 1: of this country's history. So perhaps the Court will revert 430 00:25:45,200 --> 00:25:48,959 Speaker 1: to that and say we shouldn't get involved until this 431 00:25:49,080 --> 00:25:51,200 Speaker 1: gets fully aired out in the lower courts. 432 00:25:51,359 --> 00:25:54,679 Speaker 2: Coming up next, more with Professor David super on what 433 00:25:54,800 --> 00:25:57,640 Speaker 2: the decision might look like. I'm June Grass. When you're 434 00:25:57,680 --> 00:26:01,880 Speaker 2: listening to Bloomberg, Let's. 435 00:26:01,680 --> 00:26:06,320 Speaker 7: Talk about the real world, downstream effects of this, because 436 00:26:06,359 --> 00:26:09,760 Speaker 7: if this were set as a precedent, it seems to me, 437 00:26:11,160 --> 00:26:16,280 Speaker 7: just thinking big picture, what goes around comes around. All 438 00:26:16,520 --> 00:26:22,640 Speaker 7: the current president's appointees would likely be removed for cause 439 00:26:22,960 --> 00:26:26,440 Speaker 7: on January twentieth, twenty twenty nine, if there's a democratic president, 440 00:26:26,520 --> 00:26:33,600 Speaker 7: or January twentieth, twenty thirty three, and then we're really 441 00:26:33,640 --> 00:26:35,879 Speaker 7: at at will removal. So what are we doing here? 442 00:26:36,240 --> 00:26:40,000 Speaker 2: Concerns about the unique nature of the Federal Reserve were 443 00:26:40,040 --> 00:26:43,120 Speaker 2: at the center of the Supreme Court oral arguments over 444 00:26:43,240 --> 00:26:47,840 Speaker 2: President Trump's attempts to fire Fed Governor Lisa Cook. So far, 445 00:26:47,920 --> 00:26:53,479 Speaker 2: the Court has largely accommodated Trump's assertions of sweeping presidential power, 446 00:26:53,800 --> 00:26:58,320 Speaker 2: lifting about twenty lower court rulings that were blocking his agenda, 447 00:26:58,640 --> 00:27:02,400 Speaker 2: but that success may be coming to an end. Conservative 448 00:27:02,440 --> 00:27:06,239 Speaker 2: and liberal justices alike signaled they'll defy Trump as he 449 00:27:06,320 --> 00:27:10,240 Speaker 2: tries to exert control of the nation's central bank by 450 00:27:10,280 --> 00:27:15,320 Speaker 2: firing Cook based on unproven allegations that she'd committed mortgage 451 00:27:15,320 --> 00:27:19,560 Speaker 2: fraud before her appointment by claiming two properties as her 452 00:27:19,600 --> 00:27:24,160 Speaker 2: principal residence. Cook denies the allegations and argues that even 453 00:27:24,200 --> 00:27:28,080 Speaker 2: if they were true, that doesn't constitute grounds for firing 454 00:27:28,119 --> 00:27:33,480 Speaker 2: her for cause. Chief Justice John Roberts seemed to agree, disputing, 455 00:27:33,520 --> 00:27:38,560 Speaker 2: Solicitor General John Sowers claimed that the misstatements, even if inadvertent, 456 00:27:38,960 --> 00:27:41,439 Speaker 2: constituted at least gross negligence. 457 00:27:42,000 --> 00:27:44,960 Speaker 5: Even if it was invertn or mistake, it's quite a 458 00:27:45,040 --> 00:27:48,000 Speaker 5: big mistake, so to speak, in a key financial representation 459 00:27:48,160 --> 00:27:49,680 Speaker 5: made in the context. 460 00:27:49,280 --> 00:27:52,040 Speaker 3: Of integral I mean, I suppose we can debate that 461 00:27:52,440 --> 00:27:54,879 Speaker 3: with how significant it is in a stack of papers 462 00:27:54,920 --> 00:27:56,720 Speaker 3: you have to fill out when you're buying. 463 00:27:58,359 --> 00:27:59,080 Speaker 1: Real estate. 464 00:27:59,400 --> 00:28:02,359 Speaker 2: The Chief also seemed a bit perturbed with the Solicitor 465 00:28:02,520 --> 00:28:06,880 Speaker 2: General's rather extreme position that the courts can't even review 466 00:28:06,920 --> 00:28:10,879 Speaker 2: the president's decision to fire a Federal Reserve governor, and 467 00:28:10,920 --> 00:28:14,359 Speaker 2: that they basically have no role whatsoever to play. 468 00:28:14,520 --> 00:28:18,840 Speaker 3: General Sauer, If you're correct that courts do not have 469 00:28:18,880 --> 00:28:22,680 Speaker 3: the authority to reinstate a removed officer, why are we 470 00:28:22,760 --> 00:28:25,840 Speaker 3: wasting our time wondering if there's cause or not? Because 471 00:28:25,880 --> 00:28:28,679 Speaker 3: even if we say yes, there is cause, shouldn't have 472 00:28:28,680 --> 00:28:31,720 Speaker 3: removed her, but we don't have the authority to order 473 00:28:31,720 --> 00:28:36,560 Speaker 3: her reinstatement. What's the How is that consistent with the 474 00:28:37,040 --> 00:28:39,680 Speaker 3: time and energy being spent on determining if there's cause. 475 00:28:40,120 --> 00:28:43,440 Speaker 2: Even one of the most conservative justices on the court, 476 00:28:43,560 --> 00:28:48,160 Speaker 2: Samuel Alito, express some annoyance with the administration, and it's 477 00:28:48,280 --> 00:28:49,960 Speaker 2: rushed to push the case forward. 478 00:28:50,440 --> 00:28:53,680 Speaker 4: Is there any reason why this whole matter had to 479 00:28:53,720 --> 00:28:58,400 Speaker 4: be handled by everybody, by the executive branch, by the 480 00:28:58,440 --> 00:29:04,120 Speaker 4: district court circuit in such a hurried manner. You began 481 00:29:04,400 --> 00:29:07,600 Speaker 4: by laying out what you claim to be the factual 482 00:29:07,720 --> 00:29:12,840 Speaker 4: basis for the four cause removal, but no court has 483 00:29:12,920 --> 00:29:17,360 Speaker 4: ever explored those facts. Are the mortgage applications even in 484 00:29:17,400 --> 00:29:18,680 Speaker 4: the record in this case. 485 00:29:18,840 --> 00:29:22,240 Speaker 2: Two lower courts block Trump from removing Cook. While the 486 00:29:22,320 --> 00:29:25,960 Speaker 2: legal fight moves forward. I've been talking to constitutional law 487 00:29:26,000 --> 00:29:30,560 Speaker 2: expert David super, a professor at Georgetown Law David, Let's 488 00:29:30,600 --> 00:29:35,080 Speaker 2: talk about the extreme nature of the administration's position here, 489 00:29:35,360 --> 00:29:38,560 Speaker 2: that the President doesn't have to provide any notice, any 490 00:29:38,640 --> 00:29:42,160 Speaker 2: hearing to a Fed governor before firing them, and that 491 00:29:42,240 --> 00:29:46,080 Speaker 2: the courts can't review that decision. The Chief basically said, 492 00:29:46,120 --> 00:29:49,440 Speaker 2: why are you wasting our time? Here? Was the administration 493 00:29:49,640 --> 00:29:51,960 Speaker 2: going too far from most of the justices? 494 00:29:52,440 --> 00:29:57,480 Speaker 1: I think so because the Solicitor General's position is that 495 00:29:57,520 --> 00:30:01,200 Speaker 1: the courts can't look at this. And if the President 496 00:30:01,440 --> 00:30:06,000 Speaker 1: can fire a Federal Reserve governor based on anything the 497 00:30:06,040 --> 00:30:09,920 Speaker 1: President makes up, and no matter how absurd and unfounded 498 00:30:10,000 --> 00:30:14,200 Speaker 1: it is, it can't be reversed, then effectively there is 499 00:30:14,240 --> 00:30:18,080 Speaker 1: no foe cause requirement in the Federal Reserve Statute, and 500 00:30:18,160 --> 00:30:21,520 Speaker 1: these people all serve at the pleasure of the President. Many, 501 00:30:21,560 --> 00:30:26,959 Speaker 1: many economists across the political spectrum believe that losing the 502 00:30:26,960 --> 00:30:30,720 Speaker 1: independence of the Federal Reserve would in the long term 503 00:30:30,800 --> 00:30:34,840 Speaker 1: reduce investment and increase infation in this country. 504 00:30:34,720 --> 00:30:39,760 Speaker 2: And Justice Kavanaugh in particular seem very concerned about the repercussions, 505 00:30:40,240 --> 00:30:44,080 Speaker 2: making that what goes around comes around argument and ending 506 00:30:44,120 --> 00:30:46,000 Speaker 2: by saying, so what are we doing here? 507 00:30:46,480 --> 00:30:49,440 Speaker 1: Yes? I mean if Ron believes as I do. The 508 00:30:49,560 --> 00:30:53,480 Speaker 1: President Trump's time horizon here is very short, and he 509 00:30:53,640 --> 00:30:55,880 Speaker 1: wants what he thinks is good for him right now. 510 00:30:56,120 --> 00:30:59,360 Speaker 1: Doesn't care about the long term impacts. Then that's of 511 00:30:59,400 --> 00:31:02,320 Speaker 1: no concern. But the whole reason we have the Supreme 512 00:31:02,400 --> 00:31:05,200 Speaker 1: Court with life tenures so that they can look at 513 00:31:05,240 --> 00:31:07,680 Speaker 1: the long term. They can look at the long term 514 00:31:07,720 --> 00:31:10,600 Speaker 1: impact on the long and long term impact on the economy. 515 00:31:11,160 --> 00:31:13,880 Speaker 1: And that, I think is where a court that is 516 00:31:14,000 --> 00:31:19,360 Speaker 1: generally very sympathetic to President Trump's agenda starts getting extremely nervous. 517 00:31:20,120 --> 00:31:22,760 Speaker 2: I wonder what you think about the timing here of 518 00:31:22,800 --> 00:31:28,240 Speaker 2: the Justice Department's criminal investigation into FED Chair Jerome Powell. 519 00:31:28,560 --> 00:31:31,240 Speaker 10: The threat of criminal charges is a consequence of the 520 00:31:31,240 --> 00:31:35,360 Speaker 10: Federal Reserve setting interest rates based on our best assessment 521 00:31:35,520 --> 00:31:38,320 Speaker 10: of what will serve the public, rather than following the 522 00:31:38,360 --> 00:31:39,720 Speaker 10: preferences of the president. 523 00:31:40,320 --> 00:31:43,680 Speaker 2: Isn't that investigation a bad look here because it tends 524 00:31:43,720 --> 00:31:46,960 Speaker 2: to show that Trump is trying to reshape the FED, 525 00:31:47,320 --> 00:31:50,680 Speaker 2: that it's all about interest rates rather than about the 526 00:31:50,720 --> 00:31:52,440 Speaker 2: actions of one Fed governor. 527 00:31:53,080 --> 00:31:56,560 Speaker 1: Yes, I think that is certainly the back of the 528 00:31:56,720 --> 00:32:00,560 Speaker 1: Justice's minds, Chairman of Powell, sitting there in the courtroom 529 00:32:00,880 --> 00:32:05,920 Speaker 1: watching all of this, so obviously, if they needed any reminding, 530 00:32:06,040 --> 00:32:08,640 Speaker 1: he was there in the flesh. I don't know why 531 00:32:08,680 --> 00:32:11,480 Speaker 1: they thought that was a good idea, particularly timed when 532 00:32:11,520 --> 00:32:16,440 Speaker 1: they did it, and particularly against someone like Chairman Powell, 533 00:32:16,560 --> 00:32:21,120 Speaker 1: who was appointed by President Trump and is pretty widely 534 00:32:21,160 --> 00:32:26,520 Speaker 1: approved of across the political spectrum, particularly among his fellow Republicans. 535 00:32:26,600 --> 00:32:30,600 Speaker 1: That strikes me as a remarkably handhanded and tone deaf 536 00:32:30,640 --> 00:32:34,560 Speaker 1: thing to do. I wouldn't like the administration's chances in 537 00:32:34,600 --> 00:32:39,800 Speaker 1: this case even without the Powell investigation, but they basically 538 00:32:39,880 --> 00:32:43,360 Speaker 1: gave the court no room to pretend that a ruling 539 00:32:43,440 --> 00:32:47,040 Speaker 1: against doctor Cook is compatible with an independent fed. 540 00:32:47,840 --> 00:32:51,480 Speaker 2: You know, the tone of the arguments changed completely when 541 00:32:51,480 --> 00:32:55,760 Speaker 2: the Solicitor General sat down and Lisa Cook's attorney, former 542 00:32:55,760 --> 00:32:59,560 Speaker 2: Solicitor General Paul Clement, stood up to argue. As you know, 543 00:32:59,640 --> 00:33:03,240 Speaker 2: he's one of the premier Supreme Court litigators. This is 544 00:33:03,280 --> 00:33:06,719 Speaker 2: the fifth time he's argued before the Court since October, 545 00:33:07,080 --> 00:33:09,680 Speaker 2: and it's hard to describe, but it seems less like 546 00:33:09,800 --> 00:33:13,400 Speaker 2: the justices are questioning him and more like they're having 547 00:33:13,480 --> 00:33:16,880 Speaker 2: a discussion. There was even laughter as he sort of 548 00:33:16,960 --> 00:33:19,000 Speaker 2: sparred with Justice Neil Gorsuch. 549 00:33:19,360 --> 00:33:21,520 Speaker 4: That's part of the reason I resisted the idea that 550 00:33:21,560 --> 00:33:23,880 Speaker 4: you have to go to mandamus, because I do think 551 00:33:24,040 --> 00:33:26,240 Speaker 4: you would have declaratory judgment. 552 00:33:26,360 --> 00:33:27,880 Speaker 7: I do think declaratory judgment. 553 00:33:27,960 --> 00:33:31,280 Speaker 4: I has to put that aside for them, and I 554 00:33:31,320 --> 00:33:32,400 Speaker 4: tried to as long as I could. 555 00:33:32,480 --> 00:33:34,520 Speaker 1: All right, then I give up. 556 00:33:35,160 --> 00:33:36,760 Speaker 4: Then to answer your question, I really had to get 557 00:33:36,800 --> 00:33:37,800 Speaker 4: to declaratory judgment. 558 00:33:38,000 --> 00:33:42,280 Speaker 1: Former Slicen Cleman is an extraordinarily skilled lawyer in general 559 00:33:42,320 --> 00:33:47,000 Speaker 1: and Supreme Court practitioner in particular. But he's also extremely 560 00:33:47,080 --> 00:33:53,560 Speaker 1: conservative and is not likely to take a conservative majority 561 00:33:53,720 --> 00:33:56,840 Speaker 1: of the Court for a ride to somewhere they don't 562 00:33:56,880 --> 00:34:01,080 Speaker 1: want to go. So people have been hiring General Clement, 563 00:34:01,520 --> 00:34:06,240 Speaker 1: I think, to provide reassurance in cases that might otherwise 564 00:34:06,320 --> 00:34:10,120 Speaker 1: feel uncomfortable to this very conservative supermajority. 565 00:34:10,440 --> 00:34:12,360 Speaker 2: So what do you think a decision in the case 566 00:34:12,440 --> 00:34:13,239 Speaker 2: will look like. 567 00:34:13,680 --> 00:34:16,400 Speaker 1: Well, the Justice have several ways of dealing with this. 568 00:34:16,719 --> 00:34:20,239 Speaker 1: If we assume, which after argument, I think we can, 569 00:34:20,600 --> 00:34:23,799 Speaker 1: that a majority of the Court does not want a 570 00:34:24,080 --> 00:34:28,200 Speaker 1: highly politicized federal Reserve and needs to find some way 571 00:34:28,239 --> 00:34:31,680 Speaker 1: of keeping doctor Cook on the board. They've got several 572 00:34:31,680 --> 00:34:36,160 Speaker 1: ways to go. They can say that the hearing was improper, 573 00:34:36,280 --> 00:34:39,160 Speaker 1: or the absence of a hearing and the notice was improper. 574 00:34:39,520 --> 00:34:42,759 Speaker 1: They can say that something that happened prior to her 575 00:34:42,800 --> 00:34:47,120 Speaker 1: taking the job doesn't count as good cause. They can 576 00:34:47,360 --> 00:34:51,680 Speaker 1: say that the lower courts need to look into the 577 00:34:51,719 --> 00:34:56,200 Speaker 1: merits of this or and this is something Justice Barrett 578 00:34:56,239 --> 00:35:01,240 Speaker 1: seemed interested in. They can simply say that President Trump 579 00:35:01,760 --> 00:35:06,640 Speaker 1: is not suffering any legal injury from having doctor Cook 580 00:35:06,719 --> 00:35:11,000 Speaker 1: continue to serve, and therefore he simply doesn't qualify for 581 00:35:11,080 --> 00:35:13,279 Speaker 1: a stay of the Lower courts injunction. 582 00:35:14,040 --> 00:35:17,960 Speaker 2: Is it possible that even Justice Alito might vote against 583 00:35:17,960 --> 00:35:19,439 Speaker 2: the Trump administration here? 584 00:35:19,840 --> 00:35:24,760 Speaker 1: I mean, he asked reasonable questions, but the tone struck 585 00:35:24,840 --> 00:35:28,120 Speaker 1: me as being largely sympathetic with the president, and I 586 00:35:28,160 --> 00:35:32,400 Speaker 1: think he is more committed than most to the unitary 587 00:35:32,440 --> 00:35:35,880 Speaker 1: executive theory, which this would have to be an exception to. 588 00:35:36,520 --> 00:35:39,040 Speaker 2: When they write their opinion, Do they have to explain 589 00:35:39,080 --> 00:35:44,040 Speaker 2: away that exception to the unitary executive theory and also 590 00:35:44,160 --> 00:35:49,200 Speaker 2: their likely decision allowing Trump to fire the FTC commissioner. 591 00:35:49,680 --> 00:35:54,200 Speaker 1: They've got various ways of hiding. The simplest is, because 592 00:35:54,239 --> 00:35:58,239 Speaker 1: this is a preliminary stage. Is to simply say that 593 00:35:58,400 --> 00:36:03,719 Speaker 1: President Trump hasn't qualify find for a stay and decided 594 00:36:04,000 --> 00:36:08,520 Speaker 1: entirely on procedural grounds. They also could say that they're 595 00:36:08,520 --> 00:36:13,840 Speaker 1: not required to consider what standards are appropriate for removing 596 00:36:13,960 --> 00:36:19,040 Speaker 1: Federal Reserve governors because in this case, the President claimed 597 00:36:19,040 --> 00:36:21,719 Speaker 1: to comply with the law, so all they have to 598 00:36:21,760 --> 00:36:24,480 Speaker 1: do is decide whether he did. They have a number 599 00:36:24,520 --> 00:36:27,759 Speaker 1: of ways of hiding. My guess is that they will 600 00:36:27,760 --> 00:36:31,319 Speaker 1: not be eager to explain how what they're doing here 601 00:36:31,400 --> 00:36:33,640 Speaker 1: is consistent with what they're going to do in the 602 00:36:33,719 --> 00:36:37,560 Speaker 1: FTC case, because, let's face it, it isn't. In this case. 603 00:36:37,760 --> 00:36:39,920 Speaker 1: They know how they want to come out, which is 604 00:36:39,960 --> 00:36:43,719 Speaker 1: against Trump and in favor of Federal Reserve independence, and 605 00:36:43,760 --> 00:36:46,840 Speaker 1: they have a huge obstacle to doing that, which is 606 00:36:46,920 --> 00:36:51,160 Speaker 1: their desire to end the independence of all the other boards. 607 00:36:51,560 --> 00:36:56,000 Speaker 1: So the whole argument was basically the justices feeling around 608 00:36:56,120 --> 00:36:59,120 Speaker 1: for a way that they could decide this case the 609 00:36:59,160 --> 00:37:01,960 Speaker 1: way they want to without undermining what they're doing to 610 00:37:02,000 --> 00:37:04,319 Speaker 1: the FDC. And I think at the end of the day, 611 00:37:04,360 --> 00:37:07,520 Speaker 1: there were enough paths open to them where they could 612 00:37:07,560 --> 00:37:10,960 Speaker 1: do that, and they will do that. And the Slister 613 00:37:11,160 --> 00:37:16,759 Speaker 1: General had to hang his hat entirely on consistency with 614 00:37:16,800 --> 00:37:21,160 Speaker 1: what they're doing in the FDC case, because the actual 615 00:37:21,200 --> 00:37:24,080 Speaker 1: decision on doctor Cook is essentially defensible. 616 00:37:24,640 --> 00:37:27,359 Speaker 2: Would you say that, along with the Tariff's decision, which 617 00:37:27,400 --> 00:37:30,239 Speaker 2: we're still waiting for, that this is one of the 618 00:37:30,280 --> 00:37:33,319 Speaker 2: most important decisions of the term as far as the 619 00:37:33,400 --> 00:37:35,800 Speaker 2: expansion of presidential power. 620 00:37:36,440 --> 00:37:40,520 Speaker 1: Well, these two plus the Fellow Trade Commission case. But 621 00:37:40,600 --> 00:37:43,480 Speaker 1: I think everyone believes that case is going to expand 622 00:37:43,520 --> 00:37:48,160 Speaker 1: presidential power radically, So people I think are not spending 623 00:37:48,200 --> 00:37:50,719 Speaker 1: as much time thinking about that since they feel they 624 00:37:50,719 --> 00:37:52,160 Speaker 1: already know how it's coming out. 625 00:37:52,480 --> 00:37:55,640 Speaker 2: It's shaping up to be a more controversial term than 626 00:37:55,800 --> 00:37:58,960 Speaker 2: I initially thought it would be. Thanks so much David 627 00:37:59,000 --> 00:38:01,440 Speaker 2: for going through all that and outs of the case. 628 00:38:01,880 --> 00:38:05,960 Speaker 2: That's Professor David Super of Georgetown Law. And that's it 629 00:38:06,000 --> 00:38:08,600 Speaker 2: for this edition of The Bloomberg Law Show. Remember you 630 00:38:08,600 --> 00:38:11,080 Speaker 2: can always get the latest legal news on our Bloomberg 631 00:38:11,160 --> 00:38:14,799 Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify, 632 00:38:14,960 --> 00:38:20,000 Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law, 633 00:38:20,400 --> 00:38:23,000 Speaker 2: and remember to tune into The Bloomberg Law Show every 634 00:38:23,040 --> 00:38:26,960 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso 635 00:38:27,080 --> 00:38:28,680 Speaker 2: and you're listening to Bloomberg