1 00:00:02,759 --> 00:00:08,719 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:09,720 --> 00:00:12,680 Speaker 2: There being ninety five members presence, a quorum. 3 00:00:12,320 --> 00:00:13,000 Speaker 3: Is not present. 4 00:00:13,200 --> 00:00:16,000 Speaker 4: For the third time in a week, the Texas House 5 00:00:16,040 --> 00:00:19,880 Speaker 4: of Representatives was unable to reach a quorum on Friday, 6 00:00:20,160 --> 00:00:24,720 Speaker 4: as dozens of Democratic lawmakers continued their walkout to block 7 00:00:24,760 --> 00:00:29,240 Speaker 4: an unusual mid decade redistricting in the state. It's designed 8 00:00:29,240 --> 00:00:33,560 Speaker 4: to give Republicans five additional seats in the midterm elections. 9 00:00:33,960 --> 00:00:38,920 Speaker 4: But despite arrest warrants, threats of prosecution and removal from office, 10 00:00:39,040 --> 00:00:42,720 Speaker 4: the Democrats who left the state, like Representative Chris Turner, 11 00:00:43,080 --> 00:00:44,919 Speaker 4: have shown no signs of buckling. 12 00:00:45,280 --> 00:00:47,559 Speaker 5: This is a nationwide fight, and we want everyone in 13 00:00:47,600 --> 00:00:50,320 Speaker 5: the country to understand what the stakes are. So Greg 14 00:00:50,320 --> 00:00:52,279 Speaker 5: Gabbat can make all the threats he want, We're going 15 00:00:52,320 --> 00:00:53,080 Speaker 5: to continue to fight. 16 00:00:53,520 --> 00:00:57,560 Speaker 4: Largely unnoticed with the focus on Texas's voting maps is 17 00:00:57,560 --> 00:01:01,480 Speaker 4: that the Supreme Court has indicated it will consider outlawing 18 00:01:01,520 --> 00:01:05,080 Speaker 4: the use of race in drawing voting maps, setting up 19 00:01:05,120 --> 00:01:09,679 Speaker 4: a showdown with implications for dozens of congressional districts with 20 00:01:09,800 --> 00:01:15,160 Speaker 4: predominantly minority populations. My guest is elections law expert Rick Hassen, 21 00:01:15,480 --> 00:01:19,920 Speaker 4: a professor at UCLA Law School. So, Rick, Texas already 22 00:01:20,040 --> 00:01:23,720 Speaker 4: jerrymandered its maps in twenty twenty one, and that's still 23 00:01:23,720 --> 00:01:27,280 Speaker 4: in the courts. Is what it's doing now, trying to 24 00:01:27,360 --> 00:01:32,640 Speaker 4: redistrict again to get five extra Republican seats. Is that constitutional? 25 00:01:33,280 --> 00:01:36,640 Speaker 2: Well, that remains to be seen. What's going to happen 26 00:01:36,680 --> 00:01:40,280 Speaker 2: if Texas draws its districts again is they will almost 27 00:01:40,280 --> 00:01:44,319 Speaker 2: certainly be challenged as violating either the Voting Rights Act 28 00:01:44,760 --> 00:01:49,480 Speaker 2: or as violating the Constitution's prohibition on racial jerrymandering. And 29 00:01:49,600 --> 00:01:52,120 Speaker 2: that'll get tied up in the courts, just as the 30 00:01:52,200 --> 00:01:54,400 Speaker 2: current round of redistricting is going to get tied up 31 00:01:54,400 --> 00:01:56,559 Speaker 2: in the court. What the federal courts are not going 32 00:01:56,640 --> 00:02:01,320 Speaker 2: to do is say it's unconstitutional as a artisan gerrymander, 33 00:02:01,640 --> 00:02:04,760 Speaker 2: that is drawing the district lines to favor Republicans over Democrats. 34 00:02:05,000 --> 00:02:07,720 Speaker 2: Because back in twenty nineteen, the Supreme Court decided a 35 00:02:07,760 --> 00:02:11,120 Speaker 2: case called Rusho versus Common Cause, where the Court said 36 00:02:11,120 --> 00:02:14,000 Speaker 2: that there are no standards to judge under the Constitution 37 00:02:14,520 --> 00:02:17,079 Speaker 2: whether partisan jerrymandering goes too far. 38 00:02:17,960 --> 00:02:24,600 Speaker 4: Several Blue states have threatened retaliatory redistricting but two key states, 39 00:02:24,800 --> 00:02:29,400 Speaker 4: New York and California, have commissions drawing up the maps, 40 00:02:29,760 --> 00:02:32,360 Speaker 4: so would they be able to retaliate in time for 41 00:02:32,400 --> 00:02:33,200 Speaker 4: the midterms. 42 00:02:33,760 --> 00:02:36,080 Speaker 2: Well, as far as the California case goes, which is 43 00:02:36,120 --> 00:02:39,040 Speaker 2: one I'm most familiar with living here in California, the 44 00:02:39,080 --> 00:02:43,240 Speaker 2: way that registrict could be done consistent with state law 45 00:02:43,440 --> 00:02:45,400 Speaker 2: in the middle of the decade would have to be 46 00:02:45,480 --> 00:02:49,600 Speaker 2: through a voter passed measure, because voters earlier passed to 47 00:02:49,639 --> 00:02:55,000 Speaker 2: measure actually two ballot measures, establishing a non partisan or 48 00:02:55,080 --> 00:02:59,800 Speaker 2: multi partisan commission, and then extending that commission's job to 49 00:03:00,040 --> 00:03:04,200 Speaker 2: clue drawing congressional district To overturn a ballot measure in 50 00:03:04,280 --> 00:03:07,400 Speaker 2: California needs a new ballot measure. So what the legislature 51 00:03:07,400 --> 00:03:09,560 Speaker 2: and the governor are talking about doing now is drafting 52 00:03:09,600 --> 00:03:11,840 Speaker 2: a new registioning plan and putting it before voters in 53 00:03:11,919 --> 00:03:15,240 Speaker 2: a special election. If it passes, the new registing plan 54 00:03:15,280 --> 00:03:18,160 Speaker 2: would be in effect, and then that could be challenged 55 00:03:18,160 --> 00:03:21,040 Speaker 2: in court. But I think that again, because partisan jerry 56 00:03:21,080 --> 00:03:24,200 Speaker 2: managering is not something that federal courts will police, there 57 00:03:24,200 --> 00:03:26,280 Speaker 2: wouldn't be much of a federal basis unless you can 58 00:03:26,320 --> 00:03:28,800 Speaker 2: make an argument again, like under the Voting Rights Actor, 59 00:03:28,800 --> 00:03:32,000 Speaker 2: as a racial ferry manager, the districts somehow are illegal. 60 00:03:32,800 --> 00:03:36,720 Speaker 4: It's sort of startling to hear the Republicans in Texas 61 00:03:36,760 --> 00:03:39,080 Speaker 4: and the presidents say, you know, we're doing this to 62 00:03:39,120 --> 00:03:40,000 Speaker 4: get more seats. 63 00:03:40,160 --> 00:03:43,680 Speaker 2: Well. One reason why we've seen legislators in Texas and 64 00:03:44,000 --> 00:03:46,840 Speaker 2: earlier in North Carolina say we are doing a partisan 65 00:03:46,880 --> 00:03:49,720 Speaker 2: jerry manager, like proudly admitting it, it's because they're trying 66 00:03:49,800 --> 00:03:53,320 Speaker 2: to deflect the argument, No, you're doing this on racial grounds. 67 00:03:53,320 --> 00:03:55,720 Speaker 2: You're doing this to make it harder for black and 68 00:03:55,800 --> 00:03:59,120 Speaker 2: Latino and Native American voters to elect their candidates of choice, 69 00:03:59,240 --> 00:04:02,040 Speaker 2: which could raise a Voting Rights Act question or could 70 00:04:02,160 --> 00:04:05,160 Speaker 2: raise a racial genreymndor in question under the Protection Close. 71 00:04:05,400 --> 00:04:07,640 Speaker 2: So if the Supreme Court says we're not going to 72 00:04:07,640 --> 00:04:10,720 Speaker 2: police politics, but we are going to police race, then 73 00:04:11,080 --> 00:04:13,400 Speaker 2: of course they want to say, if they're trying to 74 00:04:13,400 --> 00:04:15,720 Speaker 2: defend it, we're just doing politics. And so the courts 75 00:04:15,720 --> 00:04:17,080 Speaker 2: have to try and sort that out, which is a 76 00:04:17,160 --> 00:04:20,280 Speaker 2: very difficult thing to do when in a place like Texas, 77 00:04:20,520 --> 00:04:22,960 Speaker 2: minority voters are much more likely to vote for Democrats 78 00:04:22,960 --> 00:04:24,479 Speaker 2: and white voters for Republicans. 79 00:04:25,240 --> 00:04:29,600 Speaker 4: As far as the Supreme Court policing race, the justices 80 00:04:29,680 --> 00:04:33,000 Speaker 4: are ordering reargument of a case that was argued in 81 00:04:33,080 --> 00:04:38,000 Speaker 4: March involving a Louisiana congressional map that created an additional 82 00:04:38,279 --> 00:04:41,440 Speaker 4: majority black district. What are the implications? 83 00:04:42,120 --> 00:04:44,839 Speaker 2: So, what we're talking about here is a case called 84 00:04:44,880 --> 00:04:48,760 Speaker 2: Louisiana versus Calais, and it was already argued last March, 85 00:04:49,200 --> 00:04:53,200 Speaker 2: and it was one of these cases where the Louisiana legislature, 86 00:04:53,440 --> 00:04:57,200 Speaker 2: thanks to an earlier lawsuit, drew a second congressional district 87 00:04:57,760 --> 00:05:00,880 Speaker 2: where black voters could elect their case of choice to 88 00:05:00,920 --> 00:05:04,280 Speaker 2: a congressional district. And the argument in the earlier case 89 00:05:04,440 --> 00:05:06,680 Speaker 2: was you had to draw the second district to comply 90 00:05:06,920 --> 00:05:09,200 Speaker 2: with Section two of the Voting Right sect. Well, then 91 00:05:09,240 --> 00:05:11,560 Speaker 2: a new group of voters came in and they said, hey, 92 00:05:11,680 --> 00:05:14,440 Speaker 2: when you drew that second district, you made race the 93 00:05:14,480 --> 00:05:18,320 Speaker 2: predominant factor in drawing those lines, and you don't have 94 00:05:18,400 --> 00:05:21,360 Speaker 2: up a compelling reason to do so, and therefore you 95 00:05:21,360 --> 00:05:24,760 Speaker 2: were committing a racial gerrymander in violation of the Fourteenth 96 00:05:24,760 --> 00:05:27,880 Speaker 2: Amendments Equal Protection Clause. Back in March, the Court heard 97 00:05:27,960 --> 00:05:30,599 Speaker 2: argument in that case where the main issue was was 98 00:05:30,760 --> 00:05:33,880 Speaker 2: race really the predominant factor, the main reason why the 99 00:05:33,920 --> 00:05:36,240 Speaker 2: second lines were drawn the way they were, or was 100 00:05:36,279 --> 00:05:39,480 Speaker 2: it really about politics. It's surely about politics, then it's 101 00:05:39,480 --> 00:05:43,360 Speaker 2: not a racialtarymander. Again, I find this distinction nonsensical when 102 00:05:43,360 --> 00:05:45,560 Speaker 2: you have so much overlap between race and party in 103 00:05:45,600 --> 00:05:48,800 Speaker 2: these Southern states. But it looked like yet another in 104 00:05:48,839 --> 00:05:51,360 Speaker 2: a series of cases where the court's deciding whether race 105 00:05:51,440 --> 00:05:53,800 Speaker 2: or party predominates. But then the end of the Supreme 106 00:05:53,839 --> 00:05:57,039 Speaker 2: Court's term in June, rather than decide the case, the 107 00:05:57,040 --> 00:06:00,320 Speaker 2: Court issued a somewhat unusual order saying we're going to 108 00:06:00,400 --> 00:06:03,320 Speaker 2: hear reargument in the case, we're going to want additional briefing, 109 00:06:03,520 --> 00:06:05,120 Speaker 2: but we're not telling you yet what we want the 110 00:06:05,120 --> 00:06:08,359 Speaker 2: briefing on. And then it was not until the after 111 00:06:08,400 --> 00:06:12,359 Speaker 2: five pm August first Friday night news dump where the 112 00:06:12,400 --> 00:06:15,760 Speaker 2: Court issued this kind of obscure, cryptic order that I 113 00:06:15,960 --> 00:06:19,719 Speaker 2: read as really asking the question whether Section two of 114 00:06:19,760 --> 00:06:22,960 Speaker 2: the Voting Right Act remains constitutional. And the way this 115 00:06:23,040 --> 00:06:26,640 Speaker 2: comes into the case is if race did predominate, then 116 00:06:26,680 --> 00:06:29,640 Speaker 2: the only way you can do that in drawing district 117 00:06:29,640 --> 00:06:32,320 Speaker 2: lines is if you have a compelling reason to do so, 118 00:06:32,640 --> 00:06:35,880 Speaker 2: and the compelling reason that has been considered is, well, 119 00:06:35,920 --> 00:06:37,560 Speaker 2: the Voting Rights Act made me do it. I had 120 00:06:37,600 --> 00:06:40,039 Speaker 2: to do it to comply with Section two. Now the 121 00:06:40,080 --> 00:06:44,640 Speaker 2: Court wants to hear, maybe it's unconstitutional to apply Section 122 00:06:44,720 --> 00:06:47,320 Speaker 2: two and make race the predominant factor when you're drawing 123 00:06:47,360 --> 00:06:50,040 Speaker 2: these district lines. So it really brings these two lines 124 00:06:50,080 --> 00:06:52,240 Speaker 2: of cases, the Voting Rights AACK cases and the racial 125 00:06:52,320 --> 00:06:57,200 Speaker 2: gerrymandering cases together in a way where the Voting Rights 126 00:06:57,279 --> 00:07:00,920 Speaker 2: Act may lose. And the Supreme Court appears poised to 127 00:07:01,000 --> 00:07:05,599 Speaker 2: consider striking down the second big pillar of the Voting 128 00:07:05,680 --> 00:07:09,000 Speaker 2: Rights Act after it had already struck down the first 129 00:07:09,080 --> 00:07:12,920 Speaker 2: pillar in twenty thirteen in the Shelby County Versus Holder case. 130 00:07:13,680 --> 00:07:16,840 Speaker 4: Many of the Court's conservatives have been what you might 131 00:07:16,880 --> 00:07:20,240 Speaker 4: call hostile to the Voting Rights Act, and some seem 132 00:07:20,320 --> 00:07:24,000 Speaker 4: to think that the Voting Rights Act no longer provides 133 00:07:24,040 --> 00:07:29,880 Speaker 4: a legitimate basis for map makers to intentionally create majority 134 00:07:29,920 --> 00:07:33,239 Speaker 4: Black or majority Hispanic districts. 135 00:07:33,440 --> 00:07:33,720 Speaker 1: Well. 136 00:07:33,760 --> 00:07:36,760 Speaker 2: So, the most recent piece of evidence we have on 137 00:07:36,800 --> 00:07:38,840 Speaker 2: what the Court thinks about the Voting Rights Acts, aside 138 00:07:38,840 --> 00:07:41,600 Speaker 2: from this order that came out in the Louisiana case, 139 00:07:42,080 --> 00:07:44,000 Speaker 2: is a case that was decided a few years ago 140 00:07:44,040 --> 00:07:46,800 Speaker 2: out of Alabama involving very similar facts of the Voting 141 00:07:46,840 --> 00:07:50,000 Speaker 2: Rights Act requiring the drawing of an additional black majority district, 142 00:07:50,320 --> 00:07:53,800 Speaker 2: and in this case Alan versus Milligan, the Supreme Court, 143 00:07:53,840 --> 00:07:56,760 Speaker 2: on a five to four vote upheld the requirement that 144 00:07:56,800 --> 00:07:59,560 Speaker 2: these districts be drawn. The two conservatives who were in 145 00:07:59,600 --> 00:08:01,520 Speaker 2: the majority already with the three liberals of the Court, 146 00:08:01,520 --> 00:08:05,000 Speaker 2: were Chief Justice Roberts and Justice Cavanaugh, making it a 147 00:08:05,040 --> 00:08:09,040 Speaker 2: five to four decision with Justices Gorsich, Barrett, Alito, and 148 00:08:09,080 --> 00:08:13,720 Speaker 2: Thomas is descent. But Justice Cavanaugh, in the majority, wrote 149 00:08:13,800 --> 00:08:17,360 Speaker 2: separately to say, I'm intrigued by the argument that maybe 150 00:08:17,360 --> 00:08:20,239 Speaker 2: Section two is no longer constitutional because of the passage 151 00:08:20,280 --> 00:08:23,040 Speaker 2: of time and the changes in political conditions. This isn't 152 00:08:23,040 --> 00:08:25,120 Speaker 2: the case to decide that, but there may come a 153 00:08:25,160 --> 00:08:27,040 Speaker 2: case down the line where we need to address that, 154 00:08:27,240 --> 00:08:30,360 Speaker 2: and I think now this Louisiana case is that case. 155 00:08:30,400 --> 00:08:34,800 Speaker 2: So Kavanaugh could prove to be the fifth vote, and Roberts, 156 00:08:34,880 --> 00:08:38,280 Speaker 2: who has shown some hostility in voting rights that cases 157 00:08:38,280 --> 00:08:40,880 Speaker 2: in the past, including the Shelby County case I mentioned, 158 00:08:41,120 --> 00:08:43,840 Speaker 2: could be a sixth vote. If the Court divides along 159 00:08:44,080 --> 00:08:47,319 Speaker 2: party lines, along ideological lines, the voter Knight tax Section 160 00:08:47,360 --> 00:08:50,520 Speaker 2: two could either be whittled down or killed off. And 161 00:08:50,600 --> 00:08:56,320 Speaker 2: so what started off as a pretty small, not blockbuster 162 00:08:56,480 --> 00:08:59,200 Speaker 2: case out of Louisiana could turn out to be the 163 00:08:59,200 --> 00:09:01,959 Speaker 2: most important voting rights case of this decade. 164 00:09:02,360 --> 00:09:04,880 Speaker 4: I mean that was just a few years ago. Why 165 00:09:04,920 --> 00:09:08,400 Speaker 4: do you think the Court has reached this sort of 166 00:09:08,600 --> 00:09:12,120 Speaker 4: monumental moment or decision now? 167 00:09:12,720 --> 00:09:16,200 Speaker 2: Well, you know, John Roberts likes to move slowly. Let's 168 00:09:16,240 --> 00:09:18,439 Speaker 2: just take the killing off of Section five of the 169 00:09:18,480 --> 00:09:21,040 Speaker 2: Voting Rice Act, which happened in Shelby County. That was 170 00:09:21,040 --> 00:09:23,000 Speaker 2: the provision that said, the states with a history of 171 00:09:23,080 --> 00:09:26,400 Speaker 2: racial discrimination and voting need to get approval before they 172 00:09:26,440 --> 00:09:28,920 Speaker 2: make their voting changes to make sure that minority voters 173 00:09:29,040 --> 00:09:33,080 Speaker 2: would not be made worse off. Congress renewed section five 174 00:09:33,440 --> 00:09:36,840 Speaker 2: in two thousand and six. The Supreme Court first took 175 00:09:36,920 --> 00:09:41,200 Speaker 2: up the issue of overturning Section five in two thousand 176 00:09:41,240 --> 00:09:44,720 Speaker 2: and nine in a case called Northwest Austin Municipal Utility 177 00:09:44,720 --> 00:09:47,600 Speaker 2: District Number one versus Holder, And in that case, the 178 00:09:47,640 --> 00:09:50,360 Speaker 2: Court punts it on the question, but strongly signals that 179 00:09:50,440 --> 00:09:53,240 Speaker 2: in a future case, it could strike down Section five. 180 00:09:53,480 --> 00:09:56,160 Speaker 2: It was not until twenty thirteen, right, so you're talking 181 00:09:56,160 --> 00:09:59,439 Speaker 2: about seven years after Congress acts that Roberts was finally 182 00:09:59,480 --> 00:10:03,040 Speaker 2: ready to pull trigger. And so Roberts moves slowly, he 183 00:10:03,120 --> 00:10:06,360 Speaker 2: whittles things away. And again, the Court in the Louisiana 184 00:10:06,400 --> 00:10:08,480 Speaker 2: case could whittle it the way at the Voting Rights Act, 185 00:10:08,520 --> 00:10:12,320 Speaker 2: make it essentially toothless without striking it down directly. But 186 00:10:12,920 --> 00:10:15,400 Speaker 2: I think what's coming is not likely to be good 187 00:10:15,520 --> 00:10:16,680 Speaker 2: for the Voting Rights Act. 188 00:10:16,960 --> 00:10:19,640 Speaker 4: So you think they might strike it down completely. 189 00:10:20,120 --> 00:10:22,240 Speaker 2: They might strike it down completely, or they might say 190 00:10:22,240 --> 00:10:24,839 Speaker 2: it's unconstitutionalized applied in Louisiana, and then it will take 191 00:10:24,880 --> 00:10:27,040 Speaker 2: time to figure out, well, what does that mean? How 192 00:10:27,080 --> 00:10:29,280 Speaker 2: does it apply in other cases? That would be much 193 00:10:29,320 --> 00:10:32,440 Speaker 2: more of a John Roberts faux minimalist move, looking like 194 00:10:32,720 --> 00:10:35,800 Speaker 2: they're moving slowly, but in fact, you know, I was 195 00:10:35,840 --> 00:10:38,480 Speaker 2: telling my editor of the piece that I wrote Slate 196 00:10:38,559 --> 00:10:41,520 Speaker 2: about this that you know, the media loves to cover 197 00:10:41,600 --> 00:10:45,160 Speaker 2: the car crash, the Texas registersting, you know, legislators getting 198 00:10:45,160 --> 00:10:48,640 Speaker 2: on planes, and that's great visuals, great story. But the 199 00:10:48,679 --> 00:10:52,520 Speaker 2: Supreme Court does slow poisoning, and so it's very hard 200 00:10:52,520 --> 00:10:55,640 Speaker 2: to cover. Right, So here's an order that's issued, you know, 201 00:10:55,880 --> 00:11:00,440 Speaker 2: Friday after five pm in August. I mean, who cover 202 00:11:00,520 --> 00:11:03,200 Speaker 2: it on the weekend about a case that they're going 203 00:11:03,280 --> 00:11:06,920 Speaker 2: to hear arguments about probably sometime in December or maybe 204 00:11:07,040 --> 00:11:10,640 Speaker 2: in January, and then the issue in opinion in June. 205 00:11:10,800 --> 00:11:14,000 Speaker 2: That will be very hard to understand. So the Court 206 00:11:14,040 --> 00:11:15,679 Speaker 2: is still doing a lot of damage, but it does 207 00:11:15,720 --> 00:11:18,640 Speaker 2: it in a way that is much harder to cover 208 00:11:18,840 --> 00:11:20,720 Speaker 2: and much harder for the public to grasp. 209 00:11:21,200 --> 00:11:24,200 Speaker 4: But it does look like this case could end up 210 00:11:24,240 --> 00:11:28,640 Speaker 4: being one of the blockbusters of the next Supreme Court term. 211 00:11:28,800 --> 00:11:31,319 Speaker 4: Thanks so much for joining me. Rick, that's Professor Rick 212 00:11:31,400 --> 00:11:35,240 Speaker 4: Hassen of UCLA Law School. I'm June Grosso and you're 213 00:11:35,240 --> 00:11:39,560 Speaker 4: listening to Bloomberg. Los Angeles has been in a battle 214 00:11:39,600 --> 00:11:44,480 Speaker 4: with the Trump administration over its aggressive immigration enforcement. Mayor 215 00:11:44,559 --> 00:11:49,079 Speaker 4: Karen Bass has repeatedly called out ICE, saying it's masked 216 00:11:49,120 --> 00:11:54,600 Speaker 4: agents in unmarked cars, we're grabbing suspected undocumented migrants off 217 00:11:54,640 --> 00:11:57,479 Speaker 4: the streets in what looked like kidnappings. 218 00:11:58,120 --> 00:12:01,240 Speaker 3: We know that Los Angeles is the test case, and 219 00:12:01,280 --> 00:12:04,440 Speaker 3: we will stand strong, and we do so because the 220 00:12:04,480 --> 00:12:08,520 Speaker 3: people snatched off city streets and chased through parking lots. 221 00:12:09,080 --> 00:12:12,920 Speaker 3: Are our coworkers, our neighbors, are family members, and they 222 00:12:12,920 --> 00:12:13,920 Speaker 3: are Angelinos. 223 00:12:14,160 --> 00:12:17,440 Speaker 4: In a fast moving case, a federal judge found that 224 00:12:17,480 --> 00:12:21,280 Speaker 4: there was quote a mountain of evidence that ICE agents 225 00:12:21,440 --> 00:12:26,240 Speaker 4: tactics were violating the Constitution. She issued an order barring 226 00:12:26,320 --> 00:12:29,960 Speaker 4: agents in LA from stopping and questioning people on the 227 00:12:30,000 --> 00:12:34,120 Speaker 4: basis of race or ethnicity, they're speaking Spanish or English 228 00:12:34,120 --> 00:12:37,120 Speaker 4: with an accent, the type of work they do, or 229 00:12:37,200 --> 00:12:40,920 Speaker 4: their presence at a particular location. Three weeks later, the 230 00:12:41,000 --> 00:12:44,480 Speaker 4: non Circuit Court of Appeals turned down a Trump administration 231 00:12:44,640 --> 00:12:48,480 Speaker 4: appeal and left the judges ban almost completely in place, 232 00:12:48,960 --> 00:12:51,840 Speaker 4: and six days later, on Thursday of this week, the 233 00:12:51,880 --> 00:12:56,520 Speaker 4: administration asked the Supreme Court to lift the ban. Joining 234 00:12:56,520 --> 00:12:59,839 Speaker 4: me is immigration attorney Leon Fresco, a partner at hond 235 00:12:59,840 --> 00:13:02,679 Speaker 4: and he was the head of the Office of Immigration 236 00:13:02,840 --> 00:13:07,439 Speaker 4: Litigation in the Obama administration. Leon explained what the district 237 00:13:07,520 --> 00:13:10,559 Speaker 4: judge ordered in the LA case well. 238 00:13:10,800 --> 00:13:14,360 Speaker 5: The original case involved the challenge to something that was 239 00:13:14,360 --> 00:13:18,119 Speaker 5: called Operation at Large, which was a federal immigration enforcement 240 00:13:18,520 --> 00:13:22,360 Speaker 5: initiative in Los Angeles. There were these ICE contact teams 241 00:13:22,440 --> 00:13:26,600 Speaker 5: targeting locations such as car washes and home depots and 242 00:13:26,960 --> 00:13:31,000 Speaker 5: other places believed to employ undocumented workers. And there was 243 00:13:31,040 --> 00:13:35,520 Speaker 5: a lawsuit claiming that these roving patrols detained individuals without 244 00:13:35,520 --> 00:13:40,400 Speaker 5: reasonable suspicion, violating the Fourth Amendment, and the District courd 245 00:13:40,480 --> 00:13:43,800 Speaker 5: at Health on July eleventh that the plaintiffs were likely 246 00:13:43,840 --> 00:13:49,679 Speaker 5: to succeed improving unconstitutional seizures. So the judge restricted federal 247 00:13:49,720 --> 00:13:53,760 Speaker 5: agents from conducting these seiss raids and stops without a 248 00:13:53,800 --> 00:13:59,040 Speaker 5: reasonable suspicion. So what that means is that instead of 249 00:13:59,559 --> 00:14:02,720 Speaker 5: walking around and trying to say this person looks like 250 00:14:02,800 --> 00:14:06,800 Speaker 5: somebody that's not here legally, which has a sort of 251 00:14:06,960 --> 00:14:10,840 Speaker 5: dubious application that people get worried about because they say, well, 252 00:14:10,840 --> 00:14:13,679 Speaker 5: how are you making those decisions? What they're trying to 253 00:14:13,679 --> 00:14:18,160 Speaker 5: do is convert ice back into a list sort of 254 00:14:18,480 --> 00:14:22,160 Speaker 5: agency where it says, we know today we're going to 255 00:14:22,240 --> 00:14:25,360 Speaker 5: go after person one, person two, person three, person four, 256 00:14:25,400 --> 00:14:27,440 Speaker 5: person five, And then they go and they look for 257 00:14:27,480 --> 00:14:31,640 Speaker 5: these people because they know they're here undocumented, rather than 258 00:14:31,720 --> 00:14:34,000 Speaker 5: just grabbing people in the middle of the street. And 259 00:14:34,080 --> 00:14:38,240 Speaker 5: so that's really the end goal of this lawsuit. And 260 00:14:38,320 --> 00:14:41,400 Speaker 5: so yes, there are times where they will still be 261 00:14:41,480 --> 00:14:43,640 Speaker 5: able to pick people up because they'll have a reasonable 262 00:14:43,680 --> 00:14:46,520 Speaker 5: suspicion for another reason other than they're on a list. 263 00:14:47,000 --> 00:14:50,360 Speaker 5: But mostly this limits ice to the sort of list 264 00:14:50,440 --> 00:14:51,400 Speaker 5: based enforcement. 265 00:14:52,000 --> 00:14:54,920 Speaker 4: And what was the government's argument in defense of these 266 00:14:54,960 --> 00:14:56,520 Speaker 4: tactics At the Ninth. 267 00:14:56,240 --> 00:14:59,680 Speaker 5: Circuit They said two things. They said, first of all, 268 00:15:00,120 --> 00:15:02,920 Speaker 5: that the organizational plaintiffs and the case didn't even have 269 00:15:03,040 --> 00:15:06,960 Speaker 5: standing to bring the case. And they also said that 270 00:15:07,600 --> 00:15:11,280 Speaker 5: in general, they weren't violating the Fourth Amendment because they 271 00:15:11,320 --> 00:15:15,960 Speaker 5: have the ability and then the right to enforce immigration law. 272 00:15:16,000 --> 00:15:19,480 Speaker 5: They had the right to question anybody about their lawful 273 00:15:19,520 --> 00:15:22,320 Speaker 5: presence in the United States at any time. That's what 274 00:15:22,440 --> 00:15:26,760 Speaker 5: the statue permits them to do. The Ninth Circuit said, 275 00:15:26,880 --> 00:15:30,840 Speaker 5: first that the organizational planets had standing because they showed 276 00:15:30,840 --> 00:15:34,280 Speaker 5: that these kind of roving patrols forced them to divert 277 00:15:34,320 --> 00:15:37,760 Speaker 5: their resources instead of carrying out other missions of supporting 278 00:15:37,800 --> 00:15:40,720 Speaker 5: immigrants rights in the community. They had to move to 279 00:15:40,760 --> 00:15:44,480 Speaker 5: divert the resources into dealing with these enforcement actions. So 280 00:15:44,600 --> 00:15:47,080 Speaker 5: that was the standing issue, and they said there was standing. 281 00:15:47,520 --> 00:15:51,040 Speaker 5: But they also said that with regard to these claims 282 00:15:51,040 --> 00:15:56,080 Speaker 5: about reasonable suspicion and Fourth Amendment violations caused by ICE 283 00:15:56,240 --> 00:15:59,880 Speaker 5: officers roving around looking for people. They said that, yes, 284 00:16:00,080 --> 00:16:03,040 Speaker 5: that does also seem to have a likelihood of success 285 00:16:03,360 --> 00:16:06,800 Speaker 5: enough that they would not say the district court's ruling. 286 00:16:07,000 --> 00:16:10,320 Speaker 5: It was a three zero decision, and so the court 287 00:16:10,480 --> 00:16:13,960 Speaker 5: basically allowed almost all of the ruling to take place, 288 00:16:14,000 --> 00:16:17,560 Speaker 5: except there was one line in the injunction that prevented 289 00:16:17,720 --> 00:16:21,680 Speaker 5: ICE from even asking individuals about their immigration status absent 290 00:16:21,760 --> 00:16:26,040 Speaker 5: reasonable suspicion. That was, they they were allowed to still 291 00:16:26,400 --> 00:16:30,520 Speaker 5: do that. That was considered overbroad and problematic in terms 292 00:16:30,600 --> 00:16:35,080 Speaker 5: of enforcement and constitutional interpretation, but the rest of the 293 00:16:35,360 --> 00:16:38,040 Speaker 5: injunction was allowed to continue. 294 00:16:38,320 --> 00:16:42,480 Speaker 4: So the judge ruled that ICE can't attain people based 295 00:16:42,600 --> 00:16:47,760 Speaker 4: on their apparent race or ethnicity, So speaking Spanish or 296 00:16:47,920 --> 00:16:52,040 Speaker 4: accented English, or being at locations such as home depot 297 00:16:52,120 --> 00:16:56,000 Speaker 4: parking lots, what does constitute reasonable suspicion? 298 00:16:56,080 --> 00:16:56,280 Speaker 3: Then? 299 00:16:57,200 --> 00:17:01,480 Speaker 5: The main thing that people who file this lawsuit basically 300 00:17:01,520 --> 00:17:04,800 Speaker 5: are trying to limit ICE is to say you have 301 00:17:04,960 --> 00:17:07,640 Speaker 5: to have some sort of knowledge of the person you're 302 00:17:07,680 --> 00:17:11,560 Speaker 5: looking for and of their immigration status before you go 303 00:17:11,680 --> 00:17:15,959 Speaker 5: looking for those individuals. So, for instance, if you're at 304 00:17:16,000 --> 00:17:18,679 Speaker 5: an immigration court, then you'll know if somebody has that 305 00:17:18,800 --> 00:17:21,240 Speaker 5: status or not, so then you can pick them up 306 00:17:21,240 --> 00:17:24,560 Speaker 5: after or if again, you're working off a list of 307 00:17:24,600 --> 00:17:27,400 Speaker 5: people who have lost their status that you know from 308 00:17:27,440 --> 00:17:30,600 Speaker 5: the Department of Homeland Security databases, and you're going to 309 00:17:30,600 --> 00:17:32,880 Speaker 5: pick up those people at their work or at their home, 310 00:17:33,320 --> 00:17:35,639 Speaker 5: you then have reasonable suspicion and you can do that. 311 00:17:35,920 --> 00:17:39,120 Speaker 5: And what the decision also allows is so, for instance, 312 00:17:39,200 --> 00:17:43,520 Speaker 5: let's say there's twenty undocumented people at a work site 313 00:17:43,520 --> 00:17:46,280 Speaker 5: that they know about because they have it in their database, 314 00:17:46,640 --> 00:17:48,840 Speaker 5: then they can ask, Okay, well, what about the other 315 00:17:48,840 --> 00:17:51,159 Speaker 5: people at this work site? I want to see the 316 00:17:51,200 --> 00:17:55,120 Speaker 5: paperwork for them, because then there's a reasonable suspicion because 317 00:17:55,160 --> 00:17:59,119 Speaker 5: you've already established that there's twenty undocumented people at that 318 00:17:59,200 --> 00:18:03,680 Speaker 5: work site. Employer hires undocumented people. But in terms of 319 00:18:04,080 --> 00:18:09,520 Speaker 5: just randomly generating leads by going to places and making 320 00:18:09,960 --> 00:18:13,760 Speaker 5: these sort of facial decisions how this person looks or 321 00:18:13,800 --> 00:18:16,919 Speaker 5: how they present themselves, et cetera. That's the kind of 322 00:18:16,960 --> 00:18:19,720 Speaker 5: thing that is enjoyed under this injunction. 323 00:18:20,520 --> 00:18:26,800 Speaker 4: How much of a hindrance is this order to ice, Well. 324 00:18:26,640 --> 00:18:29,040 Speaker 5: It depends if you say, how much of a hindrance 325 00:18:29,119 --> 00:18:33,920 Speaker 5: is it to their deterrent operations as opposed to their 326 00:18:33,960 --> 00:18:36,960 Speaker 5: removal operations. It's not really a turrent at all to 327 00:18:37,040 --> 00:18:41,000 Speaker 5: their removal operations in the sense of ICE has pretty 328 00:18:41,000 --> 00:18:45,560 Speaker 5: sophisticated databases where it knows where most of the undocumented 329 00:18:45,640 --> 00:18:48,840 Speaker 5: people in this country are and where they live, and ICE, 330 00:18:48,880 --> 00:18:51,600 Speaker 5: if they want to, can go and pick up as 331 00:18:51,600 --> 00:18:55,440 Speaker 5: many people as it has detention space to detain, and 332 00:18:55,520 --> 00:18:59,000 Speaker 5: so there's never a shortage of people that ICE can 333 00:18:59,080 --> 00:19:01,439 Speaker 5: pick up on any given day to place and detention 334 00:19:01,920 --> 00:19:05,200 Speaker 5: given the limited detention space it has. But what it 335 00:19:05,280 --> 00:19:09,360 Speaker 5: does limit is ICE's ability to engage in the kind 336 00:19:09,400 --> 00:19:13,040 Speaker 5: of patrols that are designed to create a deterrent effect, 337 00:19:13,160 --> 00:19:16,560 Speaker 5: meaning people are nervous to remain here in the United 338 00:19:16,600 --> 00:19:19,920 Speaker 5: States because they think, oh, if I take a city bus, 339 00:19:20,200 --> 00:19:23,240 Speaker 5: or if I just go shopping, or if I'm taking 340 00:19:23,280 --> 00:19:26,159 Speaker 5: my child to school, I could be apprehended at any moment. 341 00:19:26,600 --> 00:19:30,760 Speaker 5: The design of those operations isn't to meet the quota, 342 00:19:31,000 --> 00:19:35,280 Speaker 5: so to speak. It's to instead create a deterrent effect 343 00:19:35,320 --> 00:19:38,560 Speaker 5: that tells people if you stay here, you never know 344 00:19:38,600 --> 00:19:40,720 Speaker 5: what day is going to be the day you're apprehended, 345 00:19:41,119 --> 00:19:44,120 Speaker 5: so you should just return home and so that's where 346 00:19:44,160 --> 00:19:46,879 Speaker 5: it's limiting the operation is in that deterrent effect. 347 00:19:47,280 --> 00:19:50,399 Speaker 4: The government is asking the Supreme Court to lift the band, 348 00:19:50,640 --> 00:19:53,320 Speaker 4: saying that the judge overstepped her authority. 349 00:19:53,720 --> 00:19:56,920 Speaker 5: The Government's been quite aggressive in appealing to the Supreme Court, 350 00:19:57,119 --> 00:20:00,240 Speaker 5: and they've been getting better results in the Supreme Court 351 00:20:00,240 --> 00:20:04,480 Speaker 5: with saying some of these injunctions. And I could foresee 352 00:20:04,920 --> 00:20:09,200 Speaker 5: the Supreme Court lifting or saying parts of the injunction 353 00:20:09,560 --> 00:20:12,840 Speaker 5: that limit ICE's hands. I mean, I don't see them 354 00:20:12,960 --> 00:20:16,440 Speaker 5: potentially taking away the whole injunction, but I could see 355 00:20:16,440 --> 00:20:19,040 Speaker 5: them giving ICE a little bit more wiggle room here. 356 00:20:19,920 --> 00:20:25,200 Speaker 4: Leon in another lawsuit challenging the constitutionality of ICE agents 357 00:20:25,200 --> 00:20:30,679 Speaker 4: in Los Angeles impersonating police officers or using other ruses 358 00:20:31,080 --> 00:20:34,199 Speaker 4: in order to enter a home or convince someone to 359 00:20:34,200 --> 00:20:37,639 Speaker 4: come outside to make an arrest, ICE has reached a 360 00:20:37,720 --> 00:20:43,119 Speaker 4: court approved settlement and agreed not to use those subterfuges anymore. 361 00:20:43,560 --> 00:20:45,880 Speaker 4: I mean, what were they doing to cause this lawsuit 362 00:20:45,920 --> 00:20:46,640 Speaker 4: to be filed. 363 00:20:47,640 --> 00:20:49,720 Speaker 5: This is sort of a larger issue, which is that 364 00:20:50,240 --> 00:20:54,200 Speaker 5: as people in the immigration rights movement have become very 365 00:20:54,280 --> 00:20:58,199 Speaker 5: very successful in communicating messages of know you're right, a 366 00:20:58,240 --> 00:21:01,840 Speaker 5: lot of people in the immigration community have understood that 367 00:21:02,040 --> 00:21:05,479 Speaker 5: ICE can be refused entry into a home unless they 368 00:21:05,480 --> 00:21:08,399 Speaker 5: have a judicial warrant. So if they have an administrative warrant, 369 00:21:08,720 --> 00:21:10,520 Speaker 5: or if they just say can you let me in, 370 00:21:11,000 --> 00:21:13,200 Speaker 5: you're totally within your right to say no, I don't 371 00:21:13,240 --> 00:21:15,719 Speaker 5: want to let you in, and I can't go in. 372 00:21:15,800 --> 00:21:18,600 Speaker 5: If I goes in, then whatever operation they did is 373 00:21:18,640 --> 00:21:22,080 Speaker 5: invalid under the law once it eventually gets to a court. 374 00:21:22,520 --> 00:21:24,919 Speaker 5: So so a lot of individuals know this now. So 375 00:21:25,080 --> 00:21:27,760 Speaker 5: I has had to operate, and this has been happening 376 00:21:27,760 --> 00:21:29,879 Speaker 5: for many years. This is not a recent thing. So 377 00:21:30,040 --> 00:21:33,560 Speaker 5: I has had to operate where they tried to find 378 00:21:33,640 --> 00:21:36,200 Speaker 5: ways around these limitations. So they try to get people 379 00:21:36,200 --> 00:21:39,040 Speaker 5: to come outside. They say, hey, your car is broken, 380 00:21:39,200 --> 00:21:42,040 Speaker 5: or hey I need some directions, can you come outside 381 00:21:42,119 --> 00:21:44,640 Speaker 5: or whatever, and then once they're outside then they can 382 00:21:44,680 --> 00:21:48,160 Speaker 5: conduct their legal action, or they say they're police, can 383 00:21:48,200 --> 00:21:51,199 Speaker 5: they be let inside? And if people think they're police 384 00:21:51,240 --> 00:21:53,679 Speaker 5: but not ICE, then they let them inside. And so 385 00:21:54,000 --> 00:21:57,280 Speaker 5: the idea of this lawsuit was to say ICE has 386 00:21:57,320 --> 00:22:00,679 Speaker 5: to not do those tactics. They have to say that 387 00:22:00,720 --> 00:22:04,600 Speaker 5: their ICE, both in their clothing and in their verbiage. 388 00:22:05,000 --> 00:22:08,240 Speaker 5: And so that when they are engaging in those operations 389 00:22:08,240 --> 00:22:12,040 Speaker 5: now under this settlement, then the individuals will know this 390 00:22:12,119 --> 00:22:14,280 Speaker 5: is ICE. ICE is strength enter the home. I can 391 00:22:14,320 --> 00:22:16,399 Speaker 5: refuse it unless they have a judicial warrant. 392 00:22:16,640 --> 00:22:18,600 Speaker 4: Yeah, so they have to have a warrant that's signed 393 00:22:18,640 --> 00:22:20,600 Speaker 4: by a judge. Are those hard to get? 394 00:22:21,080 --> 00:22:23,000 Speaker 5: It's not that they're hard to get, but it's time 395 00:22:23,040 --> 00:22:25,879 Speaker 5: consuming because judges only have so many things they can 396 00:22:25,920 --> 00:22:29,520 Speaker 5: do on a given day. And if ICE is trying 397 00:22:29,560 --> 00:22:32,040 Speaker 5: to get one of those warrants, they have to set 398 00:22:32,119 --> 00:22:35,520 Speaker 5: up the paperwork that says, here's this person, here's how 399 00:22:35,560 --> 00:22:38,679 Speaker 5: we know they entered illegally, or they entered legally but 400 00:22:38,720 --> 00:22:41,359 Speaker 5: they've overstayed their status. And also they have to get 401 00:22:41,520 --> 00:22:45,040 Speaker 5: the Department of Justice lawyer involved, and then you wait 402 00:22:45,080 --> 00:22:47,119 Speaker 5: for the judge they issue the warrant, and then the 403 00:22:47,200 --> 00:22:49,639 Speaker 5: judge issues the warrant. So all of this takes time, 404 00:22:50,240 --> 00:22:52,719 Speaker 5: and it's time that ICE doesn't want to be spending 405 00:22:52,720 --> 00:22:56,000 Speaker 5: when it can just write up an administrative warrant on 406 00:22:56,119 --> 00:22:58,280 Speaker 5: their work processing documents. 407 00:22:58,640 --> 00:23:02,080 Speaker 4: Lee on one more question about agents. Attire Mayor Karen 408 00:23:02,119 --> 00:23:05,280 Speaker 4: Bess is one of many who've complained about ICE agents 409 00:23:05,320 --> 00:23:07,920 Speaker 4: being masked when they're making these arrests. 410 00:23:08,680 --> 00:23:11,440 Speaker 5: The agents wear masks because they don't want people coming 411 00:23:11,480 --> 00:23:14,280 Speaker 5: to their homes. Now, in this social media era, you 412 00:23:14,280 --> 00:23:17,120 Speaker 5: could say, oh, that's Ice agent Fred Smith who lives 413 00:23:17,119 --> 00:23:20,600 Speaker 5: on one one one Smith Lane, and so go to 414 00:23:20,680 --> 00:23:23,000 Speaker 5: their house and yell at them. Whether you agree with 415 00:23:23,119 --> 00:23:26,200 Speaker 5: Immigration enforcement or not, the people at I don't deserve 416 00:23:26,280 --> 00:23:30,159 Speaker 5: to have their houses raided by angry people at the community. 417 00:23:30,760 --> 00:23:33,399 Speaker 5: I think most people agree there has to be some 418 00:23:33,560 --> 00:23:37,720 Speaker 5: identification that's done and shown that says I'm an ICE agent. 419 00:23:37,760 --> 00:23:40,240 Speaker 5: So maybe the person wears a mask, but during the 420 00:23:40,640 --> 00:23:44,520 Speaker 5: immediate apprehension says here's my badge and I'm an ICE agent. 421 00:23:44,880 --> 00:23:48,639 Speaker 5: But I think the current way where someone just is 422 00:23:48,720 --> 00:23:52,600 Speaker 5: completely unidentified, wearing a mask and putting someone in a van, 423 00:23:53,200 --> 00:23:56,680 Speaker 5: I think if that continues, you will see courts getting involved, 424 00:23:57,119 --> 00:23:59,960 Speaker 5: and I think you'll even see Congress getting involved, because 425 00:24:00,200 --> 00:24:03,320 Speaker 5: those are not the kind of images that one typically 426 00:24:03,359 --> 00:24:06,399 Speaker 5: associate with normal law enforcement. 427 00:24:06,840 --> 00:24:10,560 Speaker 4: Thanks Leon, as always, that's Leon Fresco of Holland and Knight. 428 00:24:12,040 --> 00:24:16,600 Speaker 4: The Trump administration has been mounting an unprecedented campaign to 429 00:24:16,720 --> 00:24:22,200 Speaker 4: reign in independent agencies and increase executive authority. To that end, 430 00:24:22,280 --> 00:24:25,439 Speaker 4: President Trump has fired more than a dozen leaders of 431 00:24:25,560 --> 00:24:29,960 Speaker 4: independent agencies without cause. What stands out in the long 432 00:24:30,040 --> 00:24:33,840 Speaker 4: list is Trump firing the two Democratic members of the 433 00:24:33,880 --> 00:24:38,399 Speaker 4: Federal Trade Commission. Rebecca Kelly Slaughter is fighting her dismissal 434 00:24:38,440 --> 00:24:41,000 Speaker 4: in court, arguing that it was illegal. 435 00:24:41,600 --> 00:24:44,760 Speaker 6: Only one time in history has a president attempted to 436 00:24:44,840 --> 00:24:49,159 Speaker 6: remove an FTC commissioner over a policy disagreement. It was 437 00:24:49,359 --> 00:24:53,680 Speaker 6: ninety years ago President Roosevelt tried to remove Commissioner Humphrey, 438 00:24:54,080 --> 00:24:56,879 Speaker 6: and in the face of the clear language of the statute, 439 00:24:56,920 --> 00:25:00,800 Speaker 6: the Supreme Court said that was illegal. The statute is 440 00:25:00,840 --> 00:25:05,800 Speaker 6: constitutional and that FTC commissioners and other commissioners of multi member, 441 00:25:05,920 --> 00:25:10,120 Speaker 6: bipartisan agencies cannot be simply removed because the president doesn't 442 00:25:10,160 --> 00:25:10,760 Speaker 6: agree with them. 443 00:25:10,960 --> 00:25:13,720 Speaker 4: But the Justice Department has said it's going to ask 444 00:25:13,760 --> 00:25:17,520 Speaker 4: the Supreme Court to reverse that ninety year old president 445 00:25:17,800 --> 00:25:22,800 Speaker 4: called Humphrey's executor. Legal experts say they'll be broad ramifications 446 00:25:23,040 --> 00:25:27,359 Speaker 4: if the president can fire FTC commissioners at will and 447 00:25:27,440 --> 00:25:31,800 Speaker 4: the agency is no longer independent. My guest is William Kavasik, 448 00:25:31,920 --> 00:25:35,600 Speaker 4: former FDC chair and a professor at the George Mason 449 00:25:35,720 --> 00:25:39,240 Speaker 4: University School of Law Bill tell us about the president 450 00:25:39,320 --> 00:25:40,320 Speaker 4: firing Slaughter. 451 00:25:40,840 --> 00:25:45,000 Speaker 1: Yeah, the President decided that he has the authority to 452 00:25:45,080 --> 00:25:49,320 Speaker 1: simply fire members of the FTC without any cause, and 453 00:25:49,600 --> 00:25:53,720 Speaker 1: this contradicts a nineteen thirty five Supreme Court decision called 454 00:25:53,880 --> 00:25:57,880 Speaker 1: Humphrey's Executor that said that FTC commissioners can be removed 455 00:25:58,280 --> 00:26:02,080 Speaker 1: only for good cause. The President clearly wanted to remove 456 00:26:02,119 --> 00:26:05,680 Speaker 1: the two Democrats from the FTC, Rebecca Kelly Slaughter and 457 00:26:05,840 --> 00:26:10,400 Speaker 1: Alvaro Beadoya, and he simply dismissed them. So he decided 458 00:26:10,480 --> 00:26:13,040 Speaker 1: not just for the FTC, but I think as part 459 00:26:13,040 --> 00:26:16,800 Speaker 1: of a program for government generally, decided to assert executive 460 00:26:16,840 --> 00:26:19,800 Speaker 1: authority to control more directly who can serve on these 461 00:26:19,840 --> 00:26:21,080 Speaker 1: regulatory agencies. 462 00:26:21,280 --> 00:26:24,840 Speaker 4: Slaughter won her first battle in court. A federal judge 463 00:26:24,880 --> 00:26:29,400 Speaker 4: reinstated her last month, although that reinstatement has been put 464 00:26:29,440 --> 00:26:33,480 Speaker 4: on hold pending an appeals court decision explain the judge's 465 00:26:33,520 --> 00:26:35,840 Speaker 4: reasons for reinstating her now. 466 00:26:35,880 --> 00:26:40,000 Speaker 1: She concluded that the president's authority is defined by the 467 00:26:40,080 --> 00:26:43,720 Speaker 1: nineteen thirty five Supreme Court decision, and the nineteen thirty 468 00:26:43,760 --> 00:26:47,640 Speaker 1: five Supreme Court decision said that the president can remove 469 00:26:47,920 --> 00:26:51,800 Speaker 1: federal Trade commissioners only for good cost, that the limitation 470 00:26:52,000 --> 00:26:56,200 Speaker 1: on removal was established in the FTC Statute adopted in 471 00:26:56,359 --> 00:27:00,480 Speaker 1: nineteen fourteen, and that the Supreme Court's interpretation of that 472 00:27:00,600 --> 00:27:04,200 Speaker 1: statute limited the circumstances in which the President could remove 473 00:27:04,760 --> 00:27:09,000 Speaker 1: FPC commissioners. Judge Ali Khan and the District Court opinion 474 00:27:09,119 --> 00:27:13,960 Speaker 1: concluded that those authorities are controlling, that the statute itself 475 00:27:14,040 --> 00:27:17,800 Speaker 1: makes clear the conditions enrich removal can take place, and 476 00:27:17,880 --> 00:27:23,000 Speaker 1: the Supreme Court upheld the limitation on executive power. She said, 477 00:27:23,400 --> 00:27:27,200 Speaker 1: the President contradicted that approach, and until the Supreme Court 478 00:27:27,359 --> 00:27:32,400 Speaker 1: says otherwise about it's nineteen thirty five decision, that decision 479 00:27:32,440 --> 00:27:36,119 Speaker 1: is binding on me and commissioners, Slaughter is entitled to 480 00:27:36,160 --> 00:27:36,920 Speaker 1: be reinstated. 481 00:27:37,240 --> 00:27:40,399 Speaker 4: It seems like Humphrey's executor is in jeopardy at the 482 00:27:40,440 --> 00:27:43,960 Speaker 4: Supreme Court. In July, the Court allowed the Trump administration 483 00:27:44,119 --> 00:27:48,400 Speaker 4: to remove three democratic members of the Consumer Product's Safety 484 00:27:48,400 --> 00:27:51,640 Speaker 4: Commission that were fired by Trump and then reinstated by 485 00:27:51,640 --> 00:27:54,439 Speaker 4: a federal judge. And in May, the Court rule that 486 00:27:54,480 --> 00:27:59,040 Speaker 4: the democratic members of the NLRB and Merit Systems Protection 487 00:27:59,200 --> 00:28:02,679 Speaker 4: Board could return to their jobs because the government was 488 00:28:02,960 --> 00:28:06,600 Speaker 4: likely to be able to show that the agencies exercised 489 00:28:06,680 --> 00:28:10,880 Speaker 4: considerable independent power. So does it seem like the Supreme 490 00:28:10,920 --> 00:28:14,720 Speaker 4: Court is ready to overturn Humphrey's executor. 491 00:28:14,720 --> 00:28:17,040 Speaker 1: As you say, June, the Court's given a number of 492 00:28:17,119 --> 00:28:20,760 Speaker 1: hints that it is ready to revisit Humphrey's Executor and 493 00:28:21,000 --> 00:28:24,280 Speaker 1: to overturn it. The Court has cautioned that every turn 494 00:28:24,400 --> 00:28:26,840 Speaker 1: in the road, that we're not making a final decision 495 00:28:26,840 --> 00:28:30,479 Speaker 1: on the merit, that that fuller evaluation of the merit 496 00:28:30,720 --> 00:28:34,520 Speaker 1: of Humphrey and its vitality today remains to take place. 497 00:28:34,760 --> 00:28:38,000 Speaker 1: So they've said we're not deciding now, But the way 498 00:28:38,000 --> 00:28:40,400 Speaker 1: in which they've written the decisions that you referred to, 499 00:28:40,920 --> 00:28:44,600 Speaker 1: even these preliminary rulings where they're not offering a final 500 00:28:44,680 --> 00:28:48,040 Speaker 1: view about the legitimacy of the challenges at issue, have 501 00:28:48,160 --> 00:28:50,680 Speaker 1: given hints that at least three members of the Court 502 00:28:51,000 --> 00:28:55,120 Speaker 1: think that Humphreys must be overturned. Maybe two more members 503 00:28:55,120 --> 00:28:58,560 Speaker 1: of the Court are wavering in their support of Humphreys. 504 00:28:58,680 --> 00:29:01,880 Speaker 1: I suppose if you were making a wager now about 505 00:29:02,000 --> 00:29:05,760 Speaker 1: whether Humphreys will live through the end of twenty twenty six, 506 00:29:06,160 --> 00:29:07,960 Speaker 1: I suppose the way to bet would be to say 507 00:29:08,000 --> 00:29:11,080 Speaker 1: no that it won't. I don't think the possibilities for 508 00:29:11,160 --> 00:29:15,240 Speaker 1: Humphrey's executors to survive have been extinguished. There's still possibilities 509 00:29:15,240 --> 00:29:17,800 Speaker 1: that the Court might reflect on the basis for the 510 00:29:17,880 --> 00:29:21,560 Speaker 1: creation of the limit on removal, might think more completely 511 00:29:21,840 --> 00:29:26,480 Speaker 1: about existing controls that the President already has over administrative 512 00:29:26,520 --> 00:29:29,320 Speaker 1: agency discretion, to realize that the choice here is not 513 00:29:29,440 --> 00:29:33,960 Speaker 1: between having no control and absolute control over appointments and removal. 514 00:29:34,320 --> 00:29:37,240 Speaker 1: The president already has a number of tools at the 515 00:29:37,240 --> 00:29:40,800 Speaker 1: president's disposal to influence the way in which the Federal 516 00:29:40,840 --> 00:29:44,480 Speaker 1: Trade Commission and similar agencies operate. The real issue here 517 00:29:44,520 --> 00:29:47,120 Speaker 1: is whether that control must be absolute, and the Court 518 00:29:47,200 --> 00:29:49,640 Speaker 1: might reflect on that in a more elaborate way and 519 00:29:49,720 --> 00:29:52,000 Speaker 1: come to a different conclusion. But that's a long way 520 00:29:52,040 --> 00:29:56,400 Speaker 1: of saying that Humphrey's Executor appears to be in peril, 521 00:29:56,720 --> 00:29:58,840 Speaker 1: and that when the Court does come at some point, 522 00:29:59,200 --> 00:30:03,440 Speaker 1: perhaps in twenty six, to confront the continuing vitality of 523 00:30:03,520 --> 00:30:07,360 Speaker 1: Humphrey's executive, it will probably say that we've decided to 524 00:30:07,440 --> 00:30:08,200 Speaker 1: change our minds. 525 00:30:08,640 --> 00:30:12,320 Speaker 4: Let's talk about what would happen the changes if the 526 00:30:12,400 --> 00:30:17,000 Speaker 4: FDC loses the independence it now has. It's been said 527 00:30:17,000 --> 00:30:21,080 Speaker 4: that one casualty would be the in house adjudication system. 528 00:30:21,280 --> 00:30:23,760 Speaker 1: I think that's right, Jo, and I think the administrative 529 00:30:23,920 --> 00:30:28,480 Speaker 1: in house adjudication system ultimately topples For this reason. I 530 00:30:28,480 --> 00:30:33,000 Speaker 1: think crucial to the legitimacy of any judicial dispute resolution 531 00:30:33,160 --> 00:30:36,440 Speaker 1: tribunal is some degree of autonomy. This is where the 532 00:30:36,480 --> 00:30:40,840 Speaker 1: autonomy is most important for legitimacy. Once it becomes apparent 533 00:30:40,920 --> 00:30:44,400 Speaker 1: that the president can simply fire Federal Trade commissioners because 534 00:30:44,400 --> 00:30:48,280 Speaker 1: he doesn't like their work, doesn't like their philosophy, I 535 00:30:48,320 --> 00:30:51,840 Speaker 1: think that system unravels. You can't have courts where the 536 00:30:51,920 --> 00:30:56,600 Speaker 1: judges are aware that a decision or a specific approach 537 00:30:56,720 --> 00:30:59,520 Speaker 1: taken in a given case could cause their dismissal, and 538 00:30:59,560 --> 00:31:05,080 Speaker 1: the TC commissioners serve as adjudicators when the FTC uses 539 00:31:05,120 --> 00:31:09,160 Speaker 1: that internal mechanism. So I think a domino that falls 540 00:31:09,320 --> 00:31:14,080 Speaker 1: if Humphrey's executor is overturned is the perceived legitimacy and 541 00:31:14,120 --> 00:31:18,400 Speaker 1: functioning of the administrative adjudication system that disappears. 542 00:31:18,840 --> 00:31:23,600 Speaker 4: And even now we're seeing motions to dismiss FTC cases 543 00:31:24,080 --> 00:31:28,800 Speaker 4: eleging that the FTC structure is unconstitutional because of this 544 00:31:29,200 --> 00:31:30,640 Speaker 4: weight over Humphreys. 545 00:31:31,400 --> 00:31:35,880 Speaker 1: I think the deeper threat to the FTC's effectiveness is 546 00:31:35,920 --> 00:31:38,240 Speaker 1: that when it goes to court, it has always had 547 00:31:38,240 --> 00:31:41,239 Speaker 1: the capacity to tell the court the positions we are 548 00:31:41,320 --> 00:31:44,560 Speaker 1: taking are the result of our best professional judgment, and 549 00:31:44,680 --> 00:31:48,720 Speaker 1: as an expert body, we are asking for respect for 550 00:31:48,880 --> 00:31:52,640 Speaker 1: our judgments because they're based on our accumulated experience, our 551 00:31:52,760 --> 00:31:56,320 Speaker 1: research in the field of competition and consumer protection, and 552 00:31:56,400 --> 00:32:00,320 Speaker 1: the expertise that individual members of the Commission bring to 553 00:32:00,560 --> 00:32:03,680 Speaker 1: the analysis of specific cases. When you put all of 554 00:32:03,760 --> 00:32:08,160 Speaker 1: those together, you have a key element of professional judgment 555 00:32:08,360 --> 00:32:12,800 Speaker 1: that might not be always correct, but it deserves respect 556 00:32:12,960 --> 00:32:16,320 Speaker 1: because it is more likely to be correct than the 557 00:32:16,440 --> 00:32:20,800 Speaker 1: judgment of individual federal judges, the parties, and the cases. 558 00:32:20,960 --> 00:32:23,480 Speaker 1: That is that that judgment is worthy of respect. It 559 00:32:23,520 --> 00:32:25,600 Speaker 1: doesn't mean that the FDC is always going to prevail 560 00:32:25,640 --> 00:32:29,800 Speaker 1: in court. The moment that courts perceive that you are 561 00:32:29,920 --> 00:32:35,040 Speaker 1: using your authority not because of your best professional judgment, 562 00:32:35,360 --> 00:32:38,800 Speaker 1: but because you are simply an extension of the political 563 00:32:38,840 --> 00:32:43,000 Speaker 1: process and you are serving the specific interests or whims 564 00:32:43,040 --> 00:32:46,600 Speaker 1: and the chief executive, that element of professional judgment and 565 00:32:46,640 --> 00:32:51,320 Speaker 1: respect disappear. They're gone. So I think a consequence imphmphrase 566 00:32:51,480 --> 00:32:54,480 Speaker 1: dies is that the Commission loses the ability to stand 567 00:32:54,560 --> 00:32:57,840 Speaker 1: before the courts and say you can trust us. And 568 00:32:57,920 --> 00:33:00,840 Speaker 1: in so many ways, that's what government agency ask court 569 00:33:01,240 --> 00:33:05,320 Speaker 1: is trust us because we are the professionals. We're using 570 00:33:05,360 --> 00:33:08,640 Speaker 1: professional judgment, and that's why you can have confidence in 571 00:33:08,680 --> 00:33:11,440 Speaker 1: the judgments we're making. And I think it means that 572 00:33:11,760 --> 00:33:14,800 Speaker 1: simply stated, you have a harder time winning your cases 573 00:33:14,840 --> 00:33:15,800 Speaker 1: when you go to court. 574 00:33:16,040 --> 00:33:19,800 Speaker 4: And build beyond that, Can you give us the broader 575 00:33:19,920 --> 00:33:24,680 Speaker 4: reasons why you think the FTC's independence is critical. 576 00:33:25,520 --> 00:33:29,960 Speaker 1: The broader, high level reason is that the FDC exercise 577 00:33:30,120 --> 00:33:36,360 Speaker 1: is significant economic policy making functions and has broad regulatory responsibilities. 578 00:33:36,600 --> 00:33:39,480 Speaker 1: I think in any economy, and certainly in our market economy, 579 00:33:39,960 --> 00:33:43,760 Speaker 1: the business community, the citizens as a whole have to 580 00:33:43,800 --> 00:33:46,160 Speaker 1: have confidence that that authority is being used in a 581 00:33:46,200 --> 00:33:50,440 Speaker 1: principled way. And then when it's used, it reflects truly 582 00:33:50,800 --> 00:33:55,040 Speaker 1: the exercise of high quality professional judgment from an agency 583 00:33:55,080 --> 00:33:58,360 Speaker 1: that has special expertise, broad experience, and then when it's 584 00:33:58,360 --> 00:34:01,480 Speaker 1: making those judgments, it's making it on the basis of 585 00:34:01,640 --> 00:34:06,800 Speaker 1: sound policy analysis. That assumption and confidence vanishes if the 586 00:34:06,880 --> 00:34:10,440 Speaker 1: head of State can simply designate outcomes or point the 587 00:34:10,480 --> 00:34:13,200 Speaker 1: agency in a specific direction. I mean it's the same 588 00:34:13,280 --> 00:34:17,160 Speaker 1: concern we have about the Federal Reserve Board and monetary policy. 589 00:34:17,440 --> 00:34:21,000 Speaker 1: Notice how the markets lose their minds when it appears 590 00:34:21,000 --> 00:34:24,160 Speaker 1: as though the Fed might lose that insulation from direct 591 00:34:24,160 --> 00:34:27,720 Speaker 1: political influence over the monetary system. I can't quite assert 592 00:34:27,840 --> 00:34:32,000 Speaker 1: that the FTC occupies the same position in the minds 593 00:34:32,000 --> 00:34:36,400 Speaker 1: of business leaders and others about its role in the economy, 594 00:34:36,640 --> 00:34:40,560 Speaker 1: but I think it is nonetheless an important pillar of 595 00:34:40,600 --> 00:34:43,760 Speaker 1: the regulatory mechanism in the US. If you take away 596 00:34:44,120 --> 00:34:48,400 Speaker 1: some measure of autonomy, especially in the decision to prosecute, 597 00:34:48,560 --> 00:34:52,160 Speaker 1: the decision to impose sanctions, the decision to do things 598 00:34:52,160 --> 00:34:54,759 Speaker 1: that in a broad sense hurt, you take away that 599 00:34:54,880 --> 00:34:59,200 Speaker 1: presumption of good professional judgment and autonomy with respect to 600 00:34:59,280 --> 00:35:02,640 Speaker 1: those functions, I think it undermines confidence in the regulatory 601 00:35:02,680 --> 00:35:06,520 Speaker 1: process itself, and at a higher level, for our entire 602 00:35:06,520 --> 00:35:09,120 Speaker 1: political economy and our stature in the world. For the 603 00:35:09,200 --> 00:35:12,120 Speaker 1: last thirty plus years, we have been telling the world 604 00:35:12,400 --> 00:35:16,800 Speaker 1: that these key economic regulatory functions must have some element 605 00:35:16,880 --> 00:35:21,680 Speaker 1: of protection with respect to these fundamental decisions about prosecuting cases, 606 00:35:21,920 --> 00:35:25,200 Speaker 1: initiating rules, that there has to be an accountability regime. 607 00:35:25,480 --> 00:35:29,520 Speaker 1: But you can't have political leadership telling the agency to 608 00:35:29,600 --> 00:35:33,719 Speaker 1: punish enemies, reward friends, and otherwise simply be party to 609 00:35:33,760 --> 00:35:37,960 Speaker 1: a negotiation between top political leadership and individual business interests. 610 00:35:38,080 --> 00:35:41,160 Speaker 1: So once you do that, confidence in the entire system 611 00:35:41,200 --> 00:35:45,000 Speaker 1: of government tends to erode. And if the hunphrees executive 612 00:35:45,520 --> 00:35:50,440 Speaker 1: protections against removal except for good cause disappear, that's a 613 00:35:50,480 --> 00:35:53,959 Speaker 1: step in the direction of diminishing that confidence and legitimacy 614 00:35:54,000 --> 00:35:55,240 Speaker 1: for the regulatory process. 615 00:35:55,719 --> 00:35:59,759 Speaker 4: So right now, Slaughter's case is before the US Court 616 00:35:59,760 --> 00:36:04,280 Speaker 4: of Appeals for the DC Circuit on the Trump administration's appeal, 617 00:36:04,680 --> 00:36:06,680 Speaker 4: So we'll have to see if the Circuit ends up 618 00:36:06,760 --> 00:36:10,600 Speaker 4: affirming Judge Ali Kahan's decision or not. So it's a 619 00:36:10,600 --> 00:36:13,359 Speaker 4: pleasure to have you on Bill, Thanks so much, and 620 00:36:13,360 --> 00:36:15,560 Speaker 4: that's it for this edition of The Bloomberg Law Show. 621 00:36:15,880 --> 00:36:18,239 Speaker 4: Remember you can always get the latest legal news on 622 00:36:18,280 --> 00:36:22,560 Speaker 4: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 623 00:36:22,760 --> 00:36:27,800 Speaker 4: and at www dot Bloomberg dot com, slash podcast Slash Law, 624 00:36:28,200 --> 00:36:30,760 Speaker 4: And remember to tune into The Bloomberg Law Show every 625 00:36:30,840 --> 00:36:34,720 Speaker 4: weeknight at ten pm Wall Street time. I'm Junie Grosso 626 00:36:34,880 --> 00:36:36,480 Speaker 4: and you're listening to Bloomberg