Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: There being ninety five members presence, a quorum.
Speaker 3: Is not present.
Speaker 4: For the third time in a week, the Texas House
Speaker 4: of Representatives was unable to reach a quorum on Friday,
Speaker 4: as dozens of Democratic lawmakers continued their walkout to block
Speaker 4: an unusual mid decade redistricting in the state. It's designed
Speaker 4: to give Republicans five additional seats in the midterm elections.
Speaker 4: But despite arrest warrants, threats of prosecution and removal from office,
Speaker 4: the Democrats who left the state, like Representative Chris Turner,
Speaker 4: have shown no signs of buckling.
Speaker 5: This is a nationwide fight, and we want everyone in
Speaker 5: the country to understand what the stakes are. So Greg
Speaker 5: Gabbat can make all the threats he want, We're going
Speaker 5: to continue to fight.
Speaker 4: Largely unnoticed with the focus on Texas's voting maps is
Speaker 4: that the Supreme Court has indicated it will consider outlawing
Speaker 4: the use of race in drawing voting maps, setting up
Speaker 4: a showdown with implications for dozens of congressional districts with
Speaker 4: predominantly minority populations. My guest is elections law expert Rick Hassen,
Speaker 4: a professor at UCLA Law School. So, Rick, Texas already
Speaker 4: jerrymandered its maps in twenty twenty one, and that's still
Speaker 4: in the courts. Is what it's doing now, trying to
Speaker 4: redistrict again to get five extra Republican seats. Is that constitutional?
Speaker 2: Well, that remains to be seen. What's going to happen
Speaker 2: if Texas draws its districts again is they will almost
Speaker 2: certainly be challenged as violating either the Voting Rights Act
Speaker 2: or as violating the Constitution's prohibition on racial jerrymandering. And
Speaker 2: that'll get tied up in the courts, just as the
Speaker 2: current round of redistricting is going to get tied up
Speaker 2: in the court. What the federal courts are not going
Speaker 2: to do is say it's unconstitutional as a artisan gerrymander,
Speaker 2: that is drawing the district lines to favor Republicans over Democrats.
Speaker 2: Because back in twenty nineteen, the Supreme Court decided a
Speaker 2: case called Rusho versus Common Cause, where the Court said
Speaker 2: that there are no standards to judge under the Constitution
Speaker 2: whether partisan jerrymandering goes too far.
Speaker 4: Several Blue states have threatened retaliatory redistricting but two key states,
Speaker 4: New York and California, have commissions drawing up the maps,
Speaker 4: so would they be able to retaliate in time for
Speaker 4: the midterms.
Speaker 2: Well, as far as the California case goes, which is
Speaker 2: one I'm most familiar with living here in California, the
Speaker 2: way that registrict could be done consistent with state law
Speaker 2: in the middle of the decade would have to be
Speaker 2: through a voter passed measure, because voters earlier passed to
Speaker 2: measure actually two ballot measures, establishing a non partisan or
Speaker 2: multi partisan commission, and then extending that commission's job to
Speaker 2: clue drawing congressional district To overturn a ballot measure in
Speaker 2: California needs a new ballot measure. So what the legislature
Speaker 2: and the governor are talking about doing now is drafting
Speaker 2: a new registioning plan and putting it before voters in
Speaker 2: a special election. If it passes, the new registing plan
Speaker 2: would be in effect, and then that could be challenged
Speaker 2: in court. But I think that again, because partisan jerry
Speaker 2: managering is not something that federal courts will police, there
Speaker 2: wouldn't be much of a federal basis unless you can
Speaker 2: make an argument again, like under the Voting Rights Actor,
Speaker 2: as a racial ferry manager, the districts somehow are illegal.
Speaker 4: It's sort of startling to hear the Republicans in Texas
Speaker 4: and the presidents say, you know, we're doing this to
Speaker 4: get more seats.
Speaker 2: Well. One reason why we've seen legislators in Texas and
Speaker 2: earlier in North Carolina say we are doing a partisan
Speaker 2: jerry manager, like proudly admitting it, it's because they're trying
Speaker 2: to deflect the argument, No, you're doing this on racial grounds.
Speaker 2: You're doing this to make it harder for black and
Speaker 2: Latino and Native American voters to elect their candidates of choice,
Speaker 2: which could raise a Voting Rights Act question or could
Speaker 2: raise a racial genreymndor in question under the Protection Close.
Speaker 2: So if the Supreme Court says we're not going to
Speaker 2: police politics, but we are going to police race, then
Speaker 2: of course they want to say, if they're trying to
Speaker 2: defend it, we're just doing politics. And so the courts
Speaker 2: have to try and sort that out, which is a
Speaker 2: very difficult thing to do when in a place like Texas,
Speaker 2: minority voters are much more likely to vote for Democrats
Speaker 2: and white voters for Republicans.
Speaker 4: As far as the Supreme Court policing race, the justices
Speaker 4: are ordering reargument of a case that was argued in
Speaker 4: March involving a Louisiana congressional map that created an additional
Speaker 4: majority black district. What are the implications?
Speaker 2: So, what we're talking about here is a case called
Speaker 2: Louisiana versus Calais, and it was already argued last March,
Speaker 2: and it was one of these cases where the Louisiana legislature,
Speaker 2: thanks to an earlier lawsuit, drew a second congressional district
Speaker 2: where black voters could elect their case of choice to
Speaker 2: a congressional district. And the argument in the earlier case
Speaker 2: was you had to draw the second district to comply
Speaker 2: with Section two of the Voting Right sect. Well, then
Speaker 2: a new group of voters came in and they said, hey,
Speaker 2: when you drew that second district, you made race the
Speaker 2: predominant factor in drawing those lines, and you don't have
Speaker 2: up a compelling reason to do so, and therefore you
Speaker 2: were committing a racial gerrymander in violation of the Fourteenth
Speaker 2: Amendments Equal Protection Clause. Back in March, the Court heard
Speaker 2: argument in that case where the main issue was was
Speaker 2: race really the predominant factor, the main reason why the
Speaker 2: second lines were drawn the way they were, or was
Speaker 2: it really about politics. It's surely about politics, then it's
Speaker 2: not a racialtarymander. Again, I find this distinction nonsensical when
Speaker 2: you have so much overlap between race and party in
Speaker 2: these Southern states. But it looked like yet another in
Speaker 2: a series of cases where the court's deciding whether race
Speaker 2: or party predominates. But then the end of the Supreme
Speaker 2: Court's term in June, rather than decide the case, the
Speaker 2: Court issued a somewhat unusual order saying we're going to
Speaker 2: hear reargument in the case, we're going to want additional briefing,
Speaker 2: but we're not telling you yet what we want the
Speaker 2: briefing on. And then it was not until the after
Speaker 2: five pm August first Friday night news dump where the
Speaker 2: Court issued this kind of obscure, cryptic order that I
Speaker 2: read as really asking the question whether Section two of
Speaker 2: the Voting Right Act remains constitutional. And the way this
Speaker 2: comes into the case is if race did predominate, then
Speaker 2: the only way you can do that in drawing district
Speaker 2: lines is if you have a compelling reason to do so,
Speaker 2: and the compelling reason that has been considered is, well,
Speaker 2: the Voting Rights Act made me do it. I had
Speaker 2: to do it to comply with Section two. Now the
Speaker 2: Court wants to hear, maybe it's unconstitutional to apply Section
Speaker 2: two and make race the predominant factor when you're drawing
Speaker 2: these district lines. So it really brings these two lines
Speaker 2: of cases, the Voting Rights AACK cases and the racial
Speaker 2: gerrymandering cases together in a way where the Voting Rights
Speaker 2: Act may lose. And the Supreme Court appears poised to
Speaker 2: consider striking down the second big pillar of the Voting
Speaker 2: Rights Act after it had already struck down the first
Speaker 2: pillar in twenty thirteen in the Shelby County Versus Holder case.
Speaker 4: Many of the Court's conservatives have been what you might
Speaker 4: call hostile to the Voting Rights Act, and some seem
Speaker 4: to think that the Voting Rights Act no longer provides
Speaker 4: a legitimate basis for map makers to intentionally create majority
Speaker 4: Black or majority Hispanic districts.
Speaker 1: Well.
Speaker 2: So, the most recent piece of evidence we have on
Speaker 2: what the Court thinks about the Voting Rights Acts, aside
Speaker 2: from this order that came out in the Louisiana case,
Speaker 2: is a case that was decided a few years ago
Speaker 2: out of Alabama involving very similar facts of the Voting
Speaker 2: Rights Act requiring the drawing of an additional black majority district,
Speaker 2: and in this case Alan versus Milligan, the Supreme Court,
Speaker 2: on a five to four vote upheld the requirement that
Speaker 2: these districts be drawn. The two conservatives who were in
Speaker 2: the majority already with the three liberals of the Court,
Speaker 2: were Chief Justice Roberts and Justice Cavanaugh, making it a
Speaker 2: five to four decision with Justices Gorsich, Barrett, Alito, and
Speaker 2: Thomas is descent. But Justice Cavanaugh, in the majority, wrote
Speaker 2: separately to say, I'm intrigued by the argument that maybe
Speaker 2: Section two is no longer constitutional because of the passage
Speaker 2: of time and the changes in political conditions. This isn't
Speaker 2: the case to decide that, but there may come a
Speaker 2: case down the line where we need to address that,
Speaker 2: and I think now this Louisiana case is that case.
Speaker 2: So Kavanaugh could prove to be the fifth vote, and Roberts,
Speaker 2: who has shown some hostility in voting rights that cases
Speaker 2: in the past, including the Shelby County case I mentioned,
Speaker 2: could be a sixth vote. If the Court divides along
Speaker 2: party lines, along ideological lines, the voter Knight tax Section
Speaker 2: two could either be whittled down or killed off. And
Speaker 2: so what started off as a pretty small, not blockbuster
Speaker 2: case out of Louisiana could turn out to be the
Speaker 2: most important voting rights case of this decade.
Speaker 4: I mean that was just a few years ago. Why
Speaker 4: do you think the Court has reached this sort of
Speaker 4: monumental moment or decision now?
Speaker 2: Well, you know, John Roberts likes to move slowly. Let's
Speaker 2: just take the killing off of Section five of the
Speaker 2: Voting Rice Act, which happened in Shelby County. That was
Speaker 2: the provision that said, the states with a history of
Speaker 2: racial discrimination and voting need to get approval before they
Speaker 2: make their voting changes to make sure that minority voters
Speaker 2: would not be made worse off. Congress renewed section five
Speaker 2: in two thousand and six. The Supreme Court first took
Speaker 2: up the issue of overturning Section five in two thousand
Speaker 2: and nine in a case called Northwest Austin Municipal Utility
Speaker 2: District Number one versus Holder, And in that case, the
Speaker 2: Court punts it on the question, but strongly signals that
Speaker 2: in a future case, it could strike down Section five.
Speaker 2: It was not until twenty thirteen, right, so you're talking
Speaker 2: about seven years after Congress acts that Roberts was finally
Speaker 2: ready to pull trigger. And so Roberts moves slowly, he
Speaker 2: whittles things away. And again, the Court in the Louisiana
Speaker 2: case could whittle it the way at the Voting Rights Act,
Speaker 2: make it essentially toothless without striking it down directly. But
Speaker 2: I think what's coming is not likely to be good
Speaker 2: for the Voting Rights Act.
Speaker 4: So you think they might strike it down completely.
Speaker 2: They might strike it down completely, or they might say
Speaker 2: it's unconstitutionalized applied in Louisiana, and then it will take
Speaker 2: time to figure out, well, what does that mean? How
Speaker 2: does it apply in other cases? That would be much
Speaker 2: more of a John Roberts faux minimalist move, looking like
Speaker 2: they're moving slowly, but in fact, you know, I was
Speaker 2: telling my editor of the piece that I wrote Slate
Speaker 2: about this that you know, the media loves to cover
Speaker 2: the car crash, the Texas registersting, you know, legislators getting
Speaker 2: on planes, and that's great visuals, great story. But the
Speaker 2: Supreme Court does slow poisoning, and so it's very hard
Speaker 2: to cover. Right, So here's an order that's issued, you know,
Speaker 2: Friday after five pm in August. I mean, who cover
Speaker 2: it on the weekend about a case that they're going
Speaker 2: to hear arguments about probably sometime in December or maybe
Speaker 2: in January, and then the issue in opinion in June.
Speaker 2: That will be very hard to understand. So the Court
Speaker 2: is still doing a lot of damage, but it does
Speaker 2: it in a way that is much harder to cover
Speaker 2: and much harder for the public to grasp.
Speaker 4: But it does look like this case could end up
Speaker 4: being one of the blockbusters of the next Supreme Court term.
Speaker 4: Thanks so much for joining me. Rick, that's Professor Rick
Speaker 4: Hassen of UCLA Law School. I'm June Grosso and you're
Speaker 4: listening to Bloomberg. Los Angeles has been in a battle
Speaker 4: with the Trump administration over its aggressive immigration enforcement. Mayor
Speaker 4: Karen Bass has repeatedly called out ICE, saying it's masked
Speaker 4: agents in unmarked cars, we're grabbing suspected undocumented migrants off
Speaker 4: the streets in what looked like kidnappings.
Speaker 3: We know that Los Angeles is the test case, and
Speaker 3: we will stand strong, and we do so because the
Speaker 3: people snatched off city streets and chased through parking lots.
Speaker 3: Are our coworkers, our neighbors, are family members, and they
Speaker 3: are Angelinos.
Speaker 4: In a fast moving case, a federal judge found that
Speaker 4: there was quote a mountain of evidence that ICE agents
Speaker 4: tactics were violating the Constitution. She issued an order barring
Speaker 4: agents in LA from stopping and questioning people on the
Speaker 4: basis of race or ethnicity, they're speaking Spanish or English
Speaker 4: with an accent, the type of work they do, or
Speaker 4: their presence at a particular location. Three weeks later, the
Speaker 4: non Circuit Court of Appeals turned down a Trump administration
Speaker 4: appeal and left the judges ban almost completely in place,
Speaker 4: and six days later, on Thursday of this week, the
Speaker 4: administration asked the Supreme Court to lift the ban. Joining
Speaker 4: me is immigration attorney Leon Fresco, a partner at hond
Speaker 4: and he was the head of the Office of Immigration
Speaker 4: Litigation in the Obama administration. Leon explained what the district
Speaker 4: judge ordered in the LA case well.
Speaker 5: The original case involved the challenge to something that was
Speaker 5: called Operation at Large, which was a federal immigration enforcement
Speaker 5: initiative in Los Angeles. There were these ICE contact teams
Speaker 5: targeting locations such as car washes and home depots and
Speaker 5: other places believed to employ undocumented workers. And there was
Speaker 5: a lawsuit claiming that these roving patrols detained individuals without
Speaker 5: reasonable suspicion, violating the Fourth Amendment, and the District courd
Speaker 5: at Health on July eleventh that the plaintiffs were likely
Speaker 5: to succeed improving unconstitutional seizures. So the judge restricted federal
Speaker 5: agents from conducting these seiss raids and stops without a
Speaker 5: reasonable suspicion. So what that means is that instead of
Speaker 5: walking around and trying to say this person looks like
Speaker 5: somebody that's not here legally, which has a sort of
Speaker 5: dubious application that people get worried about because they say, well,
Speaker 5: how are you making those decisions? What they're trying to
Speaker 5: do is convert ice back into a list sort of
Speaker 5: agency where it says, we know today we're going to
Speaker 5: go after person one, person two, person three, person four,
Speaker 5: person five, And then they go and they look for
Speaker 5: these people because they know they're here undocumented, rather than
Speaker 5: just grabbing people in the middle of the street. And
Speaker 5: so that's really the end goal of this lawsuit. And
Speaker 5: so yes, there are times where they will still be
Speaker 5: able to pick people up because they'll have a reasonable
Speaker 5: suspicion for another reason other than they're on a list.
Speaker 5: But mostly this limits ice to the sort of list
Speaker 5: based enforcement.
Speaker 4: And what was the government's argument in defense of these
Speaker 4: tactics At the Ninth.
Speaker 5: Circuit They said two things. They said, first of all,
Speaker 5: that the organizational plaintiffs and the case didn't even have
Speaker 5: standing to bring the case. And they also said that
Speaker 5: in general, they weren't violating the Fourth Amendment because they
Speaker 5: have the ability and then the right to enforce immigration law.
Speaker 5: They had the right to question anybody about their lawful
Speaker 5: presence in the United States at any time. That's what
Speaker 5: the statue permits them to do. The Ninth Circuit said,
Speaker 5: first that the organizational planets had standing because they showed
Speaker 5: that these kind of roving patrols forced them to divert
Speaker 5: their resources instead of carrying out other missions of supporting
Speaker 5: immigrants rights in the community. They had to move to
Speaker 5: divert the resources into dealing with these enforcement actions. So
Speaker 5: that was the standing issue, and they said there was standing.
Speaker 5: But they also said that with regard to these claims
Speaker 5: about reasonable suspicion and Fourth Amendment violations caused by ICE
Speaker 5: officers roving around looking for people. They said that, yes,
Speaker 5: that does also seem to have a likelihood of success
Speaker 5: enough that they would not say the district court's ruling.
Speaker 5: It was a three zero decision, and so the court
Speaker 5: basically allowed almost all of the ruling to take place,
Speaker 5: except there was one line in the injunction that prevented
Speaker 5: ICE from even asking individuals about their immigration status absent
Speaker 5: reasonable suspicion. That was, they they were allowed to still
Speaker 5: do that. That was considered overbroad and problematic in terms
Speaker 5: of enforcement and constitutional interpretation, but the rest of the
Speaker 5: injunction was allowed to continue.
Speaker 4: So the judge ruled that ICE can't attain people based
Speaker 4: on their apparent race or ethnicity, So speaking Spanish or
Speaker 4: accented English, or being at locations such as home depot
Speaker 4: parking lots, what does constitute reasonable suspicion?
Speaker 3: Then?
Speaker 5: The main thing that people who file this lawsuit basically
Speaker 5: are trying to limit ICE is to say you have
Speaker 5: to have some sort of knowledge of the person you're
Speaker 5: looking for and of their immigration status before you go
Speaker 5: looking for those individuals. So, for instance, if you're at
Speaker 5: an immigration court, then you'll know if somebody has that
Speaker 5: status or not, so then you can pick them up
Speaker 5: after or if again, you're working off a list of
Speaker 5: people who have lost their status that you know from
Speaker 5: the Department of Homeland Security databases, and you're going to
Speaker 5: pick up those people at their work or at their home,
Speaker 5: you then have reasonable suspicion and you can do that.
Speaker 5: And what the decision also allows is so, for instance,
Speaker 5: let's say there's twenty undocumented people at a work site
Speaker 5: that they know about because they have it in their database,
Speaker 5: then they can ask, Okay, well, what about the other
Speaker 5: people at this work site? I want to see the
Speaker 5: paperwork for them, because then there's a reasonable suspicion because
Speaker 5: you've already established that there's twenty undocumented people at that
Speaker 5: work site. Employer hires undocumented people. But in terms of
Speaker 5: just randomly generating leads by going to places and making
Speaker 5: these sort of facial decisions how this person looks or
Speaker 5: how they present themselves, et cetera. That's the kind of
Speaker 5: thing that is enjoyed under this injunction.
Speaker 4: How much of a hindrance is this order to ice, Well.
Speaker 5: It depends if you say, how much of a hindrance
Speaker 5: is it to their deterrent operations as opposed to their
Speaker 5: removal operations. It's not really a turrent at all to
Speaker 5: their removal operations in the sense of ICE has pretty
Speaker 5: sophisticated databases where it knows where most of the undocumented
Speaker 5: people in this country are and where they live, and ICE,
Speaker 5: if they want to, can go and pick up as
Speaker 5: many people as it has detention space to detain, and
Speaker 5: so there's never a shortage of people that ICE can
Speaker 5: pick up on any given day to place and detention
Speaker 5: given the limited detention space it has. But what it
Speaker 5: does limit is ICE's ability to engage in the kind
Speaker 5: of patrols that are designed to create a deterrent effect,
Speaker 5: meaning people are nervous to remain here in the United
Speaker 5: States because they think, oh, if I take a city bus,
Speaker 5: or if I just go shopping, or if I'm taking
Speaker 5: my child to school, I could be apprehended at any moment.
Speaker 5: The design of those operations isn't to meet the quota,
Speaker 5: so to speak. It's to instead create a deterrent effect
Speaker 5: that tells people if you stay here, you never know
Speaker 5: what day is going to be the day you're apprehended,
Speaker 5: so you should just return home and so that's where
Speaker 5: it's limiting the operation is in that deterrent effect.
Speaker 4: The government is asking the Supreme Court to lift the band,
Speaker 4: saying that the judge overstepped her authority.
Speaker 5: The Government's been quite aggressive in appealing to the Supreme Court,
Speaker 5: and they've been getting better results in the Supreme Court
Speaker 5: with saying some of these injunctions. And I could foresee
Speaker 5: the Supreme Court lifting or saying parts of the injunction
Speaker 5: that limit ICE's hands. I mean, I don't see them
Speaker 5: potentially taking away the whole injunction, but I could see
Speaker 5: them giving ICE a little bit more wiggle room here.
Speaker 4: Leon in another lawsuit challenging the constitutionality of ICE agents
Speaker 4: in Los Angeles impersonating police officers or using other ruses
Speaker 4: in order to enter a home or convince someone to
Speaker 4: come outside to make an arrest, ICE has reached a
Speaker 4: court approved settlement and agreed not to use those subterfuges anymore.
Speaker 4: I mean, what were they doing to cause this lawsuit
Speaker 4: to be filed.
Speaker 5: This is sort of a larger issue, which is that
Speaker 5: as people in the immigration rights movement have become very
Speaker 5: very successful in communicating messages of know you're right, a
Speaker 5: lot of people in the immigration community have understood that
Speaker 5: ICE can be refused entry into a home unless they
Speaker 5: have a judicial warrant. So if they have an administrative warrant,
Speaker 5: or if they just say can you let me in,
Speaker 5: you're totally within your right to say no, I don't
Speaker 5: want to let you in, and I can't go in.
Speaker 5: If I goes in, then whatever operation they did is
Speaker 5: invalid under the law once it eventually gets to a court.
Speaker 5: So so a lot of individuals know this now. So
Speaker 5: I has had to operate, and this has been happening
Speaker 5: for many years. This is not a recent thing. So
Speaker 5: I has had to operate where they tried to find
Speaker 5: ways around these limitations. So they try to get people
Speaker 5: to come outside. They say, hey, your car is broken,
Speaker 5: or hey I need some directions, can you come outside
Speaker 5: or whatever, and then once they're outside then they can
Speaker 5: conduct their legal action, or they say they're police, can
Speaker 5: they be let inside? And if people think they're police
Speaker 5: but not ICE, then they let them inside. And so
Speaker 5: the idea of this lawsuit was to say ICE has
Speaker 5: to not do those tactics. They have to say that
Speaker 5: their ICE, both in their clothing and in their verbiage.
Speaker 5: And so that when they are engaging in those operations
Speaker 5: now under this settlement, then the individuals will know this
Speaker 5: is ICE. ICE is strength enter the home. I can
Speaker 5: refuse it unless they have a judicial warrant.
Speaker 4: Yeah, so they have to have a warrant that's signed
Speaker 4: by a judge. Are those hard to get?
Speaker 5: It's not that they're hard to get, but it's time
Speaker 5: consuming because judges only have so many things they can
Speaker 5: do on a given day. And if ICE is trying
Speaker 5: to get one of those warrants, they have to set
Speaker 5: up the paperwork that says, here's this person, here's how
Speaker 5: we know they entered illegally, or they entered legally but
Speaker 5: they've overstayed their status. And also they have to get
Speaker 5: the Department of Justice lawyer involved, and then you wait
Speaker 5: for the judge they issue the warrant, and then the
Speaker 5: judge issues the warrant. So all of this takes time,
Speaker 5: and it's time that ICE doesn't want to be spending
Speaker 5: when it can just write up an administrative warrant on
Speaker 5: their work processing documents.
Speaker 4: Lee on one more question about agents. Attire Mayor Karen
Speaker 4: Bess is one of many who've complained about ICE agents
Speaker 4: being masked when they're making these arrests.
Speaker 5: The agents wear masks because they don't want people coming
Speaker 5: to their homes. Now, in this social media era, you
Speaker 5: could say, oh, that's Ice agent Fred Smith who lives
Speaker 5: on one one one Smith Lane, and so go to
Speaker 5: their house and yell at them. Whether you agree with
Speaker 5: Immigration enforcement or not, the people at I don't deserve
Speaker 5: to have their houses raided by angry people at the community.
Speaker 5: I think most people agree there has to be some
Speaker 5: identification that's done and shown that says I'm an ICE agent.
Speaker 5: So maybe the person wears a mask, but during the
Speaker 5: immediate apprehension says here's my badge and I'm an ICE agent.
Speaker 5: But I think the current way where someone just is
Speaker 5: completely unidentified, wearing a mask and putting someone in a van,
Speaker 5: I think if that continues, you will see courts getting involved,
Speaker 5: and I think you'll even see Congress getting involved, because
Speaker 5: those are not the kind of images that one typically
Speaker 5: associate with normal law enforcement.
Speaker 4: Thanks Leon, as always, that's Leon Fresco of Holland and Knight.
Speaker 4: The Trump administration has been mounting an unprecedented campaign to
Speaker 4: reign in independent agencies and increase executive authority. To that end,
Speaker 4: President Trump has fired more than a dozen leaders of
Speaker 4: independent agencies without cause. What stands out in the long
Speaker 4: list is Trump firing the two Democratic members of the
Speaker 4: Federal Trade Commission. Rebecca Kelly Slaughter is fighting her dismissal
Speaker 4: in court, arguing that it was illegal.
Speaker 6: Only one time in history has a president attempted to
Speaker 6: remove an FTC commissioner over a policy disagreement. It was
Speaker 6: ninety years ago President Roosevelt tried to remove Commissioner Humphrey,
Speaker 6: and in the face of the clear language of the statute,
Speaker 6: the Supreme Court said that was illegal. The statute is
Speaker 6: constitutional and that FTC commissioners and other commissioners of multi member,
Speaker 6: bipartisan agencies cannot be simply removed because the president doesn't
Speaker 6: agree with them.
Speaker 4: But the Justice Department has said it's going to ask
Speaker 4: the Supreme Court to reverse that ninety year old president
Speaker 4: called Humphrey's executor. Legal experts say they'll be broad ramifications
Speaker 4: if the president can fire FTC commissioners at will and
Speaker 4: the agency is no longer independent. My guest is William Kavasik,
Speaker 4: former FDC chair and a professor at the George Mason
Speaker 4: University School of Law Bill tell us about the president
Speaker 4: firing Slaughter.
Speaker 1: Yeah, the President decided that he has the authority to
Speaker 1: simply fire members of the FTC without any cause, and
Speaker 1: this contradicts a nineteen thirty five Supreme Court decision called
Speaker 1: Humphrey's Executor that said that FTC commissioners can be removed
Speaker 1: only for good cause. The President clearly wanted to remove
Speaker 1: the two Democrats from the FTC, Rebecca Kelly Slaughter and
Speaker 1: Alvaro Beadoya, and he simply dismissed them. So he decided
Speaker 1: not just for the FTC, but I think as part
Speaker 1: of a program for government generally, decided to assert executive
Speaker 1: authority to control more directly who can serve on these
Speaker 1: regulatory agencies.
Speaker 4: Slaughter won her first battle in court. A federal judge
Speaker 4: reinstated her last month, although that reinstatement has been put
Speaker 4: on hold pending an appeals court decision explain the judge's
Speaker 4: reasons for reinstating her now.
Speaker 1: She concluded that the president's authority is defined by the
Speaker 1: nineteen thirty five Supreme Court decision, and the nineteen thirty
Speaker 1: five Supreme Court decision said that the president can remove
Speaker 1: federal Trade commissioners only for good cost, that the limitation
Speaker 1: on removal was established in the FTC Statute adopted in
Speaker 1: nineteen fourteen, and that the Supreme Court's interpretation of that
Speaker 1: statute limited the circumstances in which the President could remove
Speaker 1: FPC commissioners. Judge Ali Khan and the District Court opinion
Speaker 1: concluded that those authorities are controlling, that the statute itself
Speaker 1: makes clear the conditions enrich removal can take place, and
Speaker 1: the Supreme Court upheld the limitation on executive power. She said,
Speaker 1: the President contradicted that approach, and until the Supreme Court
Speaker 1: says otherwise about it's nineteen thirty five decision, that decision
Speaker 1: is binding on me and commissioners, Slaughter is entitled to
Speaker 1: be reinstated.
Speaker 4: It seems like Humphrey's executor is in jeopardy at the
Speaker 4: Supreme Court. In July, the Court allowed the Trump administration
Speaker 4: to remove three democratic members of the Consumer Product's Safety
Speaker 4: Commission that were fired by Trump and then reinstated by
Speaker 4: a federal judge. And in May, the Court rule that
Speaker 4: the democratic members of the NLRB and Merit Systems Protection
Speaker 4: Board could return to their jobs because the government was
Speaker 4: likely to be able to show that the agencies exercised
Speaker 4: considerable independent power. So does it seem like the Supreme
Speaker 4: Court is ready to overturn Humphrey's executor.
Speaker 1: As you say, June, the Court's given a number of
Speaker 1: hints that it is ready to revisit Humphrey's Executor and
Speaker 1: to overturn it. The Court has cautioned that every turn
Speaker 1: in the road, that we're not making a final decision
Speaker 1: on the merit, that that fuller evaluation of the merit
Speaker 1: of Humphrey and its vitality today remains to take place.
Speaker 1: So they've said we're not deciding now, But the way
Speaker 1: in which they've written the decisions that you referred to,
Speaker 1: even these preliminary rulings where they're not offering a final
Speaker 1: view about the legitimacy of the challenges at issue, have
Speaker 1: given hints that at least three members of the Court
Speaker 1: think that Humphreys must be overturned. Maybe two more members
Speaker 1: of the Court are wavering in their support of Humphreys.
Speaker 1: I suppose if you were making a wager now about
Speaker 1: whether Humphreys will live through the end of twenty twenty six,
Speaker 1: I suppose the way to bet would be to say
Speaker 1: no that it won't. I don't think the possibilities for
Speaker 1: Humphrey's executors to survive have been extinguished. There's still possibilities
Speaker 1: that the Court might reflect on the basis for the
Speaker 1: creation of the limit on removal, might think more completely
Speaker 1: about existing controls that the President already has over administrative
Speaker 1: agency discretion, to realize that the choice here is not
Speaker 1: between having no control and absolute control over appointments and removal.
Speaker 1: The president already has a number of tools at the
Speaker 1: president's disposal to influence the way in which the Federal
Speaker 1: Trade Commission and similar agencies operate. The real issue here
Speaker 1: is whether that control must be absolute, and the Court
Speaker 1: might reflect on that in a more elaborate way and
Speaker 1: come to a different conclusion. But that's a long way
Speaker 1: of saying that Humphrey's Executor appears to be in peril,
Speaker 1: and that when the Court does come at some point,
Speaker 1: perhaps in twenty six, to confront the continuing vitality of
Speaker 1: Humphrey's executive, it will probably say that we've decided to
Speaker 1: change our minds.
Speaker 4: Let's talk about what would happen the changes if the
Speaker 4: FDC loses the independence it now has. It's been said
Speaker 4: that one casualty would be the in house adjudication system.
Speaker 1: I think that's right, Jo, and I think the administrative
Speaker 1: in house adjudication system ultimately topples For this reason. I
Speaker 1: think crucial to the legitimacy of any judicial dispute resolution
Speaker 1: tribunal is some degree of autonomy. This is where the
Speaker 1: autonomy is most important for legitimacy. Once it becomes apparent
Speaker 1: that the president can simply fire Federal Trade commissioners because
Speaker 1: he doesn't like their work, doesn't like their philosophy, I
Speaker 1: think that system unravels. You can't have courts where the
Speaker 1: judges are aware that a decision or a specific approach
Speaker 1: taken in a given case could cause their dismissal, and
Speaker 1: the TC commissioners serve as adjudicators when the FTC uses
Speaker 1: that internal mechanism. So I think a domino that falls
Speaker 1: if Humphrey's executor is overturned is the perceived legitimacy and
Speaker 1: functioning of the administrative adjudication system that disappears.
Speaker 4: And even now we're seeing motions to dismiss FTC cases
Speaker 4: eleging that the FTC structure is unconstitutional because of this
Speaker 4: weight over Humphreys.
Speaker 1: I think the deeper threat to the FTC's effectiveness is
Speaker 1: that when it goes to court, it has always had
Speaker 1: the capacity to tell the court the positions we are
Speaker 1: taking are the result of our best professional judgment, and
Speaker 1: as an expert body, we are asking for respect for
Speaker 1: our judgments because they're based on our accumulated experience, our
Speaker 1: research in the field of competition and consumer protection, and
Speaker 1: the expertise that individual members of the Commission bring to
Speaker 1: the analysis of specific cases. When you put all of
Speaker 1: those together, you have a key element of professional judgment
Speaker 1: that might not be always correct, but it deserves respect
Speaker 1: because it is more likely to be correct than the
Speaker 1: judgment of individual federal judges, the parties, and the cases.
Speaker 1: That is that that judgment is worthy of respect. It
Speaker 1: doesn't mean that the FDC is always going to prevail
Speaker 1: in court. The moment that courts perceive that you are
Speaker 1: using your authority not because of your best professional judgment,
Speaker 1: but because you are simply an extension of the political
Speaker 1: process and you are serving the specific interests or whims
Speaker 1: and the chief executive, that element of professional judgment and
Speaker 1: respect disappear. They're gone. So I think a consequence imphmphrase
Speaker 1: dies is that the Commission loses the ability to stand
Speaker 1: before the courts and say you can trust us. And
Speaker 1: in so many ways, that's what government agency ask court
Speaker 1: is trust us because we are the professionals. We're using
Speaker 1: professional judgment, and that's why you can have confidence in
Speaker 1: the judgments we're making. And I think it means that
Speaker 1: simply stated, you have a harder time winning your cases
Speaker 1: when you go to court.
Speaker 4: And build beyond that, Can you give us the broader
Speaker 4: reasons why you think the FTC's independence is critical.
Speaker 1: The broader, high level reason is that the FDC exercise
Speaker 1: is significant economic policy making functions and has broad regulatory responsibilities.
Speaker 1: I think in any economy, and certainly in our market economy,
Speaker 1: the business community, the citizens as a whole have to
Speaker 1: have confidence that that authority is being used in a
Speaker 1: principled way. And then when it's used, it reflects truly
Speaker 1: the exercise of high quality professional judgment from an agency
Speaker 1: that has special expertise, broad experience, and then when it's
Speaker 1: making those judgments, it's making it on the basis of
Speaker 1: sound policy analysis. That assumption and confidence vanishes if the
Speaker 1: head of State can simply designate outcomes or point the
Speaker 1: agency in a specific direction. I mean it's the same
Speaker 1: concern we have about the Federal Reserve Board and monetary policy.
Speaker 1: Notice how the markets lose their minds when it appears
Speaker 1: as though the Fed might lose that insulation from direct
Speaker 1: political influence over the monetary system. I can't quite assert
Speaker 1: that the FTC occupies the same position in the minds
Speaker 1: of business leaders and others about its role in the economy,
Speaker 1: but I think it is nonetheless an important pillar of
Speaker 1: the regulatory mechanism in the US. If you take away
Speaker 1: some measure of autonomy, especially in the decision to prosecute,
Speaker 1: the decision to impose sanctions, the decision to do things
Speaker 1: that in a broad sense hurt, you take away that
Speaker 1: presumption of good professional judgment and autonomy with respect to
Speaker 1: those functions, I think it undermines confidence in the regulatory
Speaker 1: process itself, and at a higher level, for our entire
Speaker 1: political economy and our stature in the world. For the
Speaker 1: last thirty plus years, we have been telling the world
Speaker 1: that these key economic regulatory functions must have some element
Speaker 1: of protection with respect to these fundamental decisions about prosecuting cases,
Speaker 1: initiating rules, that there has to be an accountability regime.
Speaker 1: But you can't have political leadership telling the agency to
Speaker 1: punish enemies, reward friends, and otherwise simply be party to
Speaker 1: a negotiation between top political leadership and individual business interests.
Speaker 1: So once you do that, confidence in the entire system
Speaker 1: of government tends to erode. And if the hunphrees executive
Speaker 1: protections against removal except for good cause disappear, that's a
Speaker 1: step in the direction of diminishing that confidence and legitimacy
Speaker 1: for the regulatory process.
Speaker 4: So right now, Slaughter's case is before the US Court
Speaker 4: of Appeals for the DC Circuit on the Trump administration's appeal,
Speaker 4: So we'll have to see if the Circuit ends up
Speaker 4: affirming Judge Ali Kahan's decision or not. So it's a
Speaker 4: pleasure to have you on Bill, Thanks so much, and
Speaker 4: that's it for this edition of The Bloomberg Law Show.
Speaker 4: Remember you can always get the latest legal news on
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