1 00:00:00,160 --> 00:00:04,560 Speaker 1: This is Bloomberg Law with June Grasso. The Supreme Court's 2 00:00:04,600 --> 00:00:08,200 Speaker 1: ruling allowing the DOCCA program to continue is merely the 3 00:00:08,280 --> 00:00:12,320 Speaker 1: latest legal setback for the Trump administration and federal agencies. 4 00:00:12,800 --> 00:00:15,760 Speaker 1: In a five to four ruling last week, that Justice 5 00:00:15,800 --> 00:00:18,840 Speaker 1: has said the Department of Homeland Security hadn't done enough 6 00:00:18,880 --> 00:00:23,000 Speaker 1: to explain why it was rolling back immigration protections for Dreamers, 7 00:00:23,320 --> 00:00:27,160 Speaker 1: and stopped the Trump administration from ending DACA. President Trump 8 00:00:27,160 --> 00:00:29,800 Speaker 1: interpreted the decision as a win at his rally in 9 00:00:29,840 --> 00:00:34,559 Speaker 1: Oklahoma last Saturday. They basically said, you won, but you 10 00:00:34,600 --> 00:00:38,720 Speaker 1: have to come back and redo it. It's almost like, gee, 11 00:00:38,720 --> 00:00:41,400 Speaker 1: come on back, your paperwork was no good. But the 12 00:00:41,479 --> 00:00:45,400 Speaker 1: Donka decision and last year's rejection of the administration's reason 13 00:00:45,479 --> 00:00:49,440 Speaker 1: for adding a citizenship question to the census represent just 14 00:00:49,600 --> 00:00:52,760 Speaker 1: the highest profile failures of the Trump administration in the 15 00:00:52,840 --> 00:00:56,080 Speaker 1: area of federal regulation. Joining me is Jillian Metzker, a 16 00:00:56,080 --> 00:00:59,240 Speaker 1: professor at Columbia Law School. Jillian, according to n y 17 00:00:59,320 --> 00:01:03,520 Speaker 1: U Laws Institute for Policy Integrity, during the Trump administration, 18 00:01:03,760 --> 00:01:07,720 Speaker 1: agencies attempting to pass new regulations or undo all ones 19 00:01:08,080 --> 00:01:11,399 Speaker 1: have lost nine of the time in courts. Before both 20 00:01:11,440 --> 00:01:16,040 Speaker 1: Republican and democratic appointed judges. How high is that compared 21 00:01:16,080 --> 00:01:20,400 Speaker 1: to other administrations? Does it stand out? It does stand out. 22 00:01:20,560 --> 00:01:24,120 Speaker 1: People give somewhat different numbers, and I think it's often 23 00:01:24,160 --> 00:01:27,959 Speaker 1: important to think about the specific measure at issue. But 24 00:01:28,040 --> 00:01:30,880 Speaker 1: the general number you hear bandied about is that administrations 25 00:01:30,959 --> 00:01:35,119 Speaker 1: usually win around seventy of the time. So laws rate 26 00:01:35,200 --> 00:01:39,240 Speaker 1: really is extraordinary, and you can tell it from just 27 00:01:39,440 --> 00:01:42,639 Speaker 1: looking at the opinions. What's striking about them is often 28 00:01:42,720 --> 00:01:46,920 Speaker 1: the mistakes are pretty basic. We can go through what 29 00:01:46,959 --> 00:01:49,080 Speaker 1: the different kinds of mistakes are, but some of the 30 00:01:49,120 --> 00:01:53,440 Speaker 1: basic procedural errors you get your unanimity across a panel, 31 00:01:53,880 --> 00:01:56,640 Speaker 1: notwithstanding that the members of the panel may take very 32 00:01:56,640 --> 00:02:00,640 Speaker 1: different views about judicial review and about regulations unrela. So 33 00:02:00,720 --> 00:02:02,600 Speaker 1: I do think it really does stand out. So what 34 00:02:02,680 --> 00:02:06,520 Speaker 1: is the Trump administration generally doing wrong in these cases? 35 00:02:07,120 --> 00:02:10,239 Speaker 1: There are a few different kinds of problems. So one 36 00:02:10,400 --> 00:02:14,119 Speaker 1: set of problems are just basic procedural flaw. Right, You've 37 00:02:14,120 --> 00:02:17,200 Speaker 1: get a number of decisions that say the administration just 38 00:02:17,280 --> 00:02:21,120 Speaker 1: simply failed to do notice and comment rulemaking. The requirements 39 00:02:21,639 --> 00:02:26,600 Speaker 1: for rulemaking are well established by the Administrative Procedure Act, 40 00:02:26,840 --> 00:02:32,680 Speaker 1: which was enacted in They require advanced notice, an opportunity 41 00:02:32,760 --> 00:02:36,880 Speaker 1: for comment, and then issuing the rule with some explanation 42 00:02:37,240 --> 00:02:39,799 Speaker 1: of the reason for the rule, the choices responding to 43 00:02:39,840 --> 00:02:44,400 Speaker 1: the commons, and so forth. And those are well established requirements, 44 00:02:45,160 --> 00:02:48,840 Speaker 1: and you find the administration often just foregoing them, trying 45 00:02:48,840 --> 00:02:54,000 Speaker 1: to suspend rules, particularly early on, and often heavily using 46 00:02:54,480 --> 00:02:57,120 Speaker 1: some exceptions to the A p A that courts have 47 00:02:57,200 --> 00:03:00,480 Speaker 1: held aren't applicable, or in other ways trying to avoid 48 00:03:00,680 --> 00:03:04,040 Speaker 1: that process. So that's one set of problems. There is 49 00:03:04,120 --> 00:03:08,600 Speaker 1: also a set of problems involving claims of statutory authority. Now, 50 00:03:08,639 --> 00:03:11,640 Speaker 1: one of the striking things about the Trump administrations that 51 00:03:11,800 --> 00:03:15,920 Speaker 1: sometimes it's claiming it doesn't have authority. Usually government agencies 52 00:03:15,960 --> 00:03:19,560 Speaker 1: will make claims of authority that are broader in the 53 00:03:19,600 --> 00:03:21,920 Speaker 1: court might reject them. But a striking feature of the 54 00:03:21,919 --> 00:03:24,840 Speaker 1: Trump administration agencies is that they are often saying they 55 00:03:24,880 --> 00:03:28,200 Speaker 1: don't have the authority to regulate, and they are losing 56 00:03:28,480 --> 00:03:32,160 Speaker 1: on a set of claims about their authority. Sometimes these 57 00:03:32,200 --> 00:03:34,920 Speaker 1: claims that their lack authority really are at odds with 58 00:03:35,280 --> 00:03:39,120 Speaker 1: both established precedent but also longstanding agencies used as the 59 00:03:39,160 --> 00:03:43,280 Speaker 1: statute and courts are are sometimes rejecting those. And then 60 00:03:43,320 --> 00:03:47,640 Speaker 1: there's also a set of decisions, and most recently the 61 00:03:47,720 --> 00:03:49,840 Speaker 1: Docket decision that came out from the Supreme Court is 62 00:03:49,880 --> 00:03:53,640 Speaker 1: one of these where the administration is losing on its 63 00:03:53,720 --> 00:03:56,440 Speaker 1: reasoning and it's failure to reason. And you're seeing a 64 00:03:56,520 --> 00:04:00,960 Speaker 1: lot of very conclusory statements, lack of explo nation, lack 65 00:04:01,000 --> 00:04:04,400 Speaker 1: of consideration of obviously relevant factors in the rules that 66 00:04:04,440 --> 00:04:07,640 Speaker 1: are issued. They will be counter indications in the record 67 00:04:07,680 --> 00:04:10,360 Speaker 1: that are never explained, things like that, and they're losing 68 00:04:10,360 --> 00:04:13,880 Speaker 1: on those as well. Are most courts looking at the 69 00:04:14,000 --> 00:04:18,159 Speaker 1: decision or regulation itself or the way the decision or 70 00:04:18,200 --> 00:04:21,760 Speaker 1: regulation was arrived at or both, Well, it depends a 71 00:04:21,760 --> 00:04:24,320 Speaker 1: little bit on the on the challenge. Most challenges will 72 00:04:24,360 --> 00:04:27,240 Speaker 1: bring some of these together. Right, you'll get litigation and 73 00:04:27,279 --> 00:04:30,839 Speaker 1: they'll raise a a p A notice and common procedural challenge, 74 00:04:30,880 --> 00:04:34,240 Speaker 1: and then they'll also claim that the rule was arbitring, capricious. Right, 75 00:04:34,440 --> 00:04:38,600 Speaker 1: those often go together frequently agencies, and this is the 76 00:04:38,720 --> 00:04:42,839 Speaker 1: reasoning part. When courts assess a challenge to an agency's reasoning, 77 00:04:43,040 --> 00:04:47,000 Speaker 1: they can often examine that and find that the agency 78 00:04:47,320 --> 00:04:51,039 Speaker 1: was acting unreasonably without having to go that deeply into 79 00:04:51,080 --> 00:04:54,080 Speaker 1: the record, there's an obvious alternatives in the record, and 80 00:04:54,120 --> 00:04:58,240 Speaker 1: the agency never considered it. So the leading case on 81 00:04:58,560 --> 00:05:01,719 Speaker 1: when an agency decisions are arpicturing capricious is this famous 82 00:05:01,720 --> 00:05:05,320 Speaker 1: State Farm decision going back to the nineteen eighties involving 83 00:05:05,839 --> 00:05:10,839 Speaker 1: the passive seat belt airbag regulation, and there the Reagan 84 00:05:10,839 --> 00:05:15,080 Speaker 1: administration had overturned an existing requirement that was either a 85 00:05:15,160 --> 00:05:18,680 Speaker 1: passive seat belt or an air bag on the grounds 86 00:05:18,800 --> 00:05:22,760 Speaker 1: that they concluded people wouldn't use the passive seatbelts. Well, fine, 87 00:05:22,960 --> 00:05:25,640 Speaker 1: but what you need to explain is why wouldn't an 88 00:05:25,640 --> 00:05:28,080 Speaker 1: air bag then be a good alternative, And instead they 89 00:05:28,120 --> 00:05:32,000 Speaker 1: just rescinded the passive restraint rule altogether. That's a pretty 90 00:05:32,040 --> 00:05:34,400 Speaker 1: obvious problem. You don't need to go that far into 91 00:05:34,400 --> 00:05:37,440 Speaker 1: the record to get that. In some other instances, you 92 00:05:37,520 --> 00:05:39,640 Speaker 1: do have courts looking maybe a little bit more closely 93 00:05:39,640 --> 00:05:42,679 Speaker 1: at the record, and in particular, one of the things 94 00:05:42,680 --> 00:05:45,000 Speaker 1: that has come up in some cases, most famously, I 95 00:05:45,080 --> 00:05:48,920 Speaker 1: think the Census decision from last term, is that there's 96 00:05:49,040 --> 00:05:51,599 Speaker 1: ententence in the record that the agency is not acting 97 00:05:51,640 --> 00:05:54,159 Speaker 1: in good faith, that the reasons that it's giving for 98 00:05:54,720 --> 00:05:58,920 Speaker 1: why it made the decision it did are pretextual, and 99 00:05:59,080 --> 00:06:01,640 Speaker 1: in those instant to you did have the court saying 100 00:06:01,880 --> 00:06:05,640 Speaker 1: there's enough of a prematation case of pretext here that 101 00:06:05,760 --> 00:06:08,520 Speaker 1: we are going to go behind the record and consider 102 00:06:08,560 --> 00:06:12,120 Speaker 1: that evidence. There's a little bit of that concern into 103 00:06:12,160 --> 00:06:16,800 Speaker 1: Doctor decision from last week, where what the Trump administration 104 00:06:16,880 --> 00:06:19,960 Speaker 1: wanted to do was to claim that it was legally 105 00:06:20,040 --> 00:06:22,960 Speaker 1: required to overturn data because that it wouldn't take as 106 00:06:23,040 --> 00:06:24,760 Speaker 1: much of a political hit for what it was doing. 107 00:06:25,040 --> 00:06:28,880 Speaker 1: And what the Court basically said was even leaving aside 108 00:06:28,920 --> 00:06:31,600 Speaker 1: whether or not the original data is unlawful or not, 109 00:06:31,680 --> 00:06:35,200 Speaker 1: there are still discretionary decisions and policy decisions here, and 110 00:06:35,360 --> 00:06:37,880 Speaker 1: you haven't given us any explanation of why you made 111 00:06:37,920 --> 00:06:40,479 Speaker 1: the choices you did on those questions. And that's a 112 00:06:40,520 --> 00:06:43,960 Speaker 1: way of sort of not allowing an agency to shirk 113 00:06:44,040 --> 00:06:47,720 Speaker 1: its responsibility to make the hard choices and be accountable 114 00:06:47,760 --> 00:06:50,960 Speaker 1: for them. The Doctor decision came as a surprise to 115 00:06:51,480 --> 00:06:56,679 Speaker 1: many people. If the court established that in the census case, 116 00:06:56,960 --> 00:07:00,640 Speaker 1: why was it such a surprise in the Docta case. Well, 117 00:07:00,680 --> 00:07:03,600 Speaker 1: I'm one of the people who were surprised so um 118 00:07:03,960 --> 00:07:06,080 Speaker 1: for for a couple of reasons. So if you go 119 00:07:06,120 --> 00:07:08,560 Speaker 1: back to that census case, and in some sense you 120 00:07:08,560 --> 00:07:11,800 Speaker 1: could actually see three cases in progression, begin with Trump 121 00:07:11,920 --> 00:07:15,560 Speaker 1: versus Hawaii, then have Department of Commerce, the census case, 122 00:07:15,600 --> 00:07:19,360 Speaker 1: and then have the Doctor decision. And in all three 123 00:07:19,360 --> 00:07:22,800 Speaker 1: of these there was very strong evidence behind it of 124 00:07:23,200 --> 00:07:26,000 Speaker 1: some kind of pretextual reason. There was actually a lot 125 00:07:26,000 --> 00:07:29,280 Speaker 1: of statements from candidate Trump's expressing anti Muslim bias, and 126 00:07:29,320 --> 00:07:33,000 Speaker 1: the Trump versus Hawaii, the Supreme Court nonetheless defers to 127 00:07:33,160 --> 00:07:36,960 Speaker 1: the national security judgment and lets it go in Trump 128 00:07:37,040 --> 00:07:40,239 Speaker 1: versus Hawaii. Then you have Department of Commerce, where there's 129 00:07:40,520 --> 00:07:44,200 Speaker 1: very strong evidence that this is actually adding the citizenship 130 00:07:44,280 --> 00:07:47,040 Speaker 1: question to the census is actually part of an effort 131 00:07:47,560 --> 00:07:52,200 Speaker 1: to restrict voting and to serve Republican electoral interests. Then 132 00:07:52,240 --> 00:07:54,240 Speaker 1: the reason that's given is that is to enforce his 133 00:07:54,280 --> 00:07:57,160 Speaker 1: wedding Rights Act, which is just absurd, and you have 134 00:07:57,240 --> 00:07:59,080 Speaker 1: the Court pushing back at that. But the way the 135 00:07:59,120 --> 00:08:02,120 Speaker 1: Court pushed back at it in the Department of Commerce 136 00:08:02,160 --> 00:08:04,840 Speaker 1: decision was interesting. This is an opinion written by the 137 00:08:04,880 --> 00:08:08,480 Speaker 1: Chief Justice, and he split apart the question of pretext 138 00:08:08,880 --> 00:08:12,760 Speaker 1: from the question of whether the agency's reasoning was arbitrary 139 00:08:12,760 --> 00:08:15,760 Speaker 1: and he made a point of saying, it's not arbitrary 140 00:08:15,840 --> 00:08:19,840 Speaker 1: to choose to add a citizenship question, but here you 141 00:08:19,920 --> 00:08:22,760 Speaker 1: did so for pretextual reasons, and he separated up those two. 142 00:08:22,800 --> 00:08:26,320 Speaker 1: So he rejected the arbitrary capriciousness challenge and then said, 143 00:08:26,360 --> 00:08:28,960 Speaker 1: but but it's still overturned the decision on the grounds 144 00:08:29,400 --> 00:08:31,840 Speaker 1: that the agency had active pretext to us. Then you 145 00:08:31,960 --> 00:08:36,200 Speaker 1: get to this case DOCTA, and it's written by the 146 00:08:36,200 --> 00:08:39,200 Speaker 1: majority opinion is written by Roberts, and he does a 147 00:08:39,320 --> 00:08:42,959 Speaker 1: much more rigorous scrutiny on arbitrary capricious grounds. I think 148 00:08:42,960 --> 00:08:46,840 Speaker 1: it's fair to say, and doesn't ever rule on pretext, 149 00:08:46,880 --> 00:08:49,640 Speaker 1: but have instead of seemingly sort of folded in the 150 00:08:49,640 --> 00:08:53,240 Speaker 1: concerns that the agency isn't being honest into the arbitrary 151 00:08:53,280 --> 00:08:56,840 Speaker 1: capricious scrutiny in the form of examining more closely the 152 00:08:56,960 --> 00:09:00,120 Speaker 1: reasons that the agency gave and its decision of and 153 00:09:00,160 --> 00:09:03,240 Speaker 1: whether considered all the relevant factors enough. So I think 154 00:09:03,280 --> 00:09:05,839 Speaker 1: one thing that people were surprised by, or one reason 155 00:09:05,880 --> 00:09:09,480 Speaker 1: it was unexpected, is that just a year ago in 156 00:09:09,559 --> 00:09:13,680 Speaker 1: Department of Commerce, the arbitrary capriciousness scrutiny of agency reasoning 157 00:09:14,080 --> 00:09:17,960 Speaker 1: was presented as a pretty mild inquiry, and this is 158 00:09:18,280 --> 00:09:21,320 Speaker 1: in the Department of Commerce, a more aggressive form of 159 00:09:21,320 --> 00:09:24,240 Speaker 1: that scrutiny. So that's one difference. The other reason why 160 00:09:24,280 --> 00:09:28,760 Speaker 1: it's different is that in Department of Commerce, there were 161 00:09:28,800 --> 00:09:32,000 Speaker 1: lots of reasons to think that adding a citizenship question 162 00:09:32,080 --> 00:09:35,200 Speaker 1: was simply arbitrary, because there was so much evidence from 163 00:09:35,280 --> 00:09:37,880 Speaker 1: the Bureau of the Census and others that the effect 164 00:09:37,880 --> 00:09:40,400 Speaker 1: of doing so would be to decline response rates and 165 00:09:40,520 --> 00:09:43,920 Speaker 1: harm the accuracy of the census, which is the instruction 166 00:09:43,960 --> 00:09:46,640 Speaker 1: to the agency is, you know, to make an accurate census. 167 00:09:46,760 --> 00:09:52,840 Speaker 1: Right here, everybody agrees that the agency has the policy 168 00:09:52,880 --> 00:09:57,360 Speaker 1: authority to decide to end data. Even the party's challenging 169 00:09:57,400 --> 00:09:59,760 Speaker 1: agreed that. So it was really just a question of 170 00:09:59,760 --> 00:10:04,280 Speaker 1: where there it had done so with sufficient explanation, and 171 00:10:04,600 --> 00:10:06,720 Speaker 1: if you look at the you know, the two dissents, 172 00:10:06,840 --> 00:10:10,960 Speaker 1: Thomas said that because DACO was unlawful, therefore, by definition, 173 00:10:11,000 --> 00:10:14,200 Speaker 1: there was nothing more the agency had to do. Justice 174 00:10:14,320 --> 00:10:17,960 Speaker 1: Kavanaugh made the point that in the course of the litigation, 175 00:10:18,679 --> 00:10:22,800 Speaker 1: the agency had produced a further explanation, and while that 176 00:10:22,920 --> 00:10:28,280 Speaker 1: further explanation, in my view, was quite thin. Usually courts. 177 00:10:28,960 --> 00:10:31,680 Speaker 1: You know, they get a further explanation, the agency identifies 178 00:10:31,800 --> 00:10:36,200 Speaker 1: some policy grounds. Awesome, that's enough. And what I think 179 00:10:36,320 --> 00:10:38,760 Speaker 1: made it not enough in the doctor case was just 180 00:10:38,840 --> 00:10:42,440 Speaker 1: a huge reliance and individual costs that were entailed by 181 00:10:42,440 --> 00:10:45,040 Speaker 1: the decision. But again it took a kind of more 182 00:10:45,480 --> 00:10:47,840 Speaker 1: more searching scrutiny of what the agency had done to 183 00:10:47,880 --> 00:10:50,200 Speaker 1: reach that result. So I think white people were so 184 00:10:50,320 --> 00:10:54,000 Speaker 1: surprised was You've got a conservative court that has signaled 185 00:10:54,360 --> 00:10:56,559 Speaker 1: as recently as last year, it's not going to be 186 00:10:56,840 --> 00:11:01,320 Speaker 1: scrutinizing the administration's decisions that closely had even rejected the 187 00:11:01,400 --> 00:11:04,400 Speaker 1: claims of pretext in the travel band cases. And yet 188 00:11:04,480 --> 00:11:07,840 Speaker 1: here turned around and and did a slightly more rigorous 189 00:11:07,880 --> 00:11:11,400 Speaker 1: inquiry and held the inministration's seat to the fire, even 190 00:11:11,440 --> 00:11:14,640 Speaker 1: while acknowledging that the administration could choose this policy if 191 00:11:14,640 --> 00:11:16,240 Speaker 1: it wanted to. It just had to own up that's 192 00:11:16,240 --> 00:11:19,720 Speaker 1: what it wanted to do. So the Chief Justice said 193 00:11:19,760 --> 00:11:24,040 Speaker 1: that the Kirsten Nielsen memo the DHS secretary at the time, 194 00:11:24,559 --> 00:11:29,120 Speaker 1: was an impermissible post talc rationalization. If her decision had 195 00:11:29,160 --> 00:11:32,400 Speaker 1: been done at the right time, would that decision have 196 00:11:32,440 --> 00:11:37,800 Speaker 1: been enough? I expect it might have been so close question. Um, So, 197 00:11:38,120 --> 00:11:42,360 Speaker 1: there is a doctrine that says, basically, UH court will 198 00:11:42,400 --> 00:11:46,240 Speaker 1: review agencies on the reasons that they give for the 199 00:11:46,400 --> 00:11:49,240 Speaker 1: decision at the time of their decisions. And it's an 200 00:11:49,240 --> 00:11:52,040 Speaker 1: important doctrine for a couple of reasons. One is, otherwise 201 00:11:52,040 --> 00:11:54,160 Speaker 1: what's gonna happen is you're going to have a bunch 202 00:11:54,200 --> 00:11:57,800 Speaker 1: of lawyers after the fact dressing up agency decisions. And 203 00:11:57,960 --> 00:12:01,560 Speaker 1: the reason Congress gives this decisions to agencies is so 204 00:12:01,600 --> 00:12:05,200 Speaker 1: that they use their expertise and consider the policy factors, 205 00:12:05,280 --> 00:12:09,200 Speaker 1: not so that executive branch lawyers afterwards can't find a 206 00:12:09,200 --> 00:12:12,160 Speaker 1: way to justify the decision. So it's an important feature 207 00:12:12,160 --> 00:12:16,880 Speaker 1: administrative law, and the court reinforce it very strongly in 208 00:12:16,920 --> 00:12:22,880 Speaker 1: the Doctor decision. What I find more puzzling is usually 209 00:12:23,000 --> 00:12:27,360 Speaker 1: if if if an agency doesn't adequately explain its decisions, 210 00:12:28,040 --> 00:12:30,960 Speaker 1: the what a court will do is it will remand 211 00:12:31,360 --> 00:12:35,600 Speaker 1: sometimes it will remand without vacating the decision for further explanation. 212 00:12:36,480 --> 00:12:39,800 Speaker 1: And if an agency, if a court does that, um, 213 00:12:39,840 --> 00:12:44,520 Speaker 1: you're basically in the situation of the Nielsen memo. And 214 00:12:44,559 --> 00:12:49,160 Speaker 1: then the Nielsen Memo gives the further explanation and the 215 00:12:49,200 --> 00:12:51,840 Speaker 1: court should review that and decide whether or not it's adequate. 216 00:12:52,160 --> 00:12:56,400 Speaker 1: So if the court considered that that explanation could have 217 00:12:56,559 --> 00:12:59,800 Speaker 1: been adequate had it just been issued at the outset, 218 00:13:00,440 --> 00:13:04,959 Speaker 1: he is harder to reverse the agency now because in 219 00:13:05,040 --> 00:13:07,920 Speaker 1: the end of the day, they did issue that explanation 220 00:13:08,320 --> 00:13:11,560 Speaker 1: and UM should have done it initially, Yes, but it 221 00:13:11,679 --> 00:13:14,880 Speaker 1: was there. So I find it harder if the court 222 00:13:15,000 --> 00:13:18,800 Speaker 1: thinks that that what Nielsen did alone would be adequate 223 00:13:18,840 --> 00:13:23,880 Speaker 1: to justify its decision to UM. Yeah, the rule as 224 00:13:23,920 --> 00:13:28,040 Speaker 1: it didn't hold that the agency's action was unreasonable, and 225 00:13:28,160 --> 00:13:30,960 Speaker 1: that would have would mean that even if the agency 226 00:13:30,960 --> 00:13:33,320 Speaker 1: had issued the Nielsen memo at the get go, that 227 00:13:33,400 --> 00:13:37,360 Speaker 1: it needed to consider more the reliance interests involved than 228 00:13:37,679 --> 00:13:39,720 Speaker 1: Nielsen did in the memo. But I think it's I 229 00:13:39,720 --> 00:13:42,280 Speaker 1: think it's a close question, and there's some aspects of 230 00:13:42,280 --> 00:13:45,719 Speaker 1: the majority decision that suggests it would have considered the 231 00:13:45,800 --> 00:13:49,040 Speaker 1: Nielsen decision memo if it had been issued at the outset, 232 00:13:49,400 --> 00:13:52,319 Speaker 1: and that was the decision to be adequate. President Trump 233 00:13:52,360 --> 00:13:57,320 Speaker 1: tweeted the administration will be submitting enhanced papers shortly in 234 00:13:57,440 --> 00:14:02,360 Speaker 1: order to properly fulfill the Supreme Court's ruling end request. Now, 235 00:14:02,520 --> 00:14:06,720 Speaker 1: if it's submitted shortly, will that again be a problem 236 00:14:06,760 --> 00:14:09,600 Speaker 1: because not enough is being done or is it possible 237 00:14:09,720 --> 00:14:13,600 Speaker 1: to get the explanations in order in short order? Yeah, 238 00:14:13,840 --> 00:14:17,120 Speaker 1: you know, I think that's um If I were the 239 00:14:17,160 --> 00:14:21,000 Speaker 1: executive men lawyer involved, I would make sure that dot 240 00:14:21,080 --> 00:14:22,800 Speaker 1: my eyes and cross my teas and take a little 241 00:14:22,800 --> 00:14:25,960 Speaker 1: bit more time. I think the Supreme Court is making 242 00:14:26,000 --> 00:14:29,720 Speaker 1: it pretty clear it wants these concerns about the remedy 243 00:14:29,840 --> 00:14:33,200 Speaker 1: and the form to be thoroughly considered. I think it's 244 00:14:33,200 --> 00:14:36,720 Speaker 1: an interesting question about whether or not the Court is 245 00:14:36,760 --> 00:14:39,840 Speaker 1: signaling that it thinks this should be done through more 246 00:14:40,640 --> 00:14:43,960 Speaker 1: formal procedures and happened before, whether or not these are 247 00:14:44,360 --> 00:14:48,400 Speaker 1: issues where there should be opportunity for comment and notice 248 00:14:48,400 --> 00:14:50,640 Speaker 1: of what the agency is considering that the agency has 249 00:14:50,680 --> 00:14:54,360 Speaker 1: a more informed base to respond to. Um. So, I 250 00:14:54,600 --> 00:14:57,560 Speaker 1: I think if you just try and rush a slightly 251 00:14:57,600 --> 00:15:01,960 Speaker 1: fuller policy explanation and you don't really give some serious 252 00:15:02,080 --> 00:15:06,560 Speaker 1: consideration to the factors at the Supreme Court identified, that's 253 00:15:06,640 --> 00:15:11,480 Speaker 1: asking for further reversal. The Justice Department, in all these 254 00:15:11,480 --> 00:15:15,960 Speaker 1: different administrative agencies, do have career attorneys. You know staff 255 00:15:16,000 --> 00:15:19,360 Speaker 1: attorneys there, don't they know what should be done? You 256 00:15:19,400 --> 00:15:22,040 Speaker 1: know what the rules of the road are. I think 257 00:15:22,080 --> 00:15:24,440 Speaker 1: they do. I mean so part of if you, if 258 00:15:24,480 --> 00:15:26,240 Speaker 1: you once takes a step back and you try and 259 00:15:26,360 --> 00:15:30,120 Speaker 1: understand why has the Trump administration done so poorly in corpse. 260 00:15:30,760 --> 00:15:34,960 Speaker 1: I think a contributing factor is the administration's lack of 261 00:15:35,000 --> 00:15:40,600 Speaker 1: respect and fundamentally distrust of the career bureaucracy. I'm sure 262 00:15:40,880 --> 00:15:44,800 Speaker 1: that they are getting advice from those career lawyers saying 263 00:15:45,720 --> 00:15:47,840 Speaker 1: this isn't going to fly. You need to build build 264 00:15:47,920 --> 00:15:49,840 Speaker 1: up the records, you need to deal with this evidence. 265 00:15:50,160 --> 00:15:53,480 Speaker 1: And I don't think those voices are getting hurt or respected, 266 00:15:53,840 --> 00:15:56,880 Speaker 1: and so this is what results from that. I think 267 00:15:56,920 --> 00:15:59,600 Speaker 1: you see in particular, Department of Justice has been making 268 00:15:59,600 --> 00:16:05,720 Speaker 1: several moves that honestly are pretty extraordinary, and um you 269 00:16:05,760 --> 00:16:08,360 Speaker 1: see a number of career lawyers at the Department of 270 00:16:08,400 --> 00:16:11,720 Speaker 1: Justice taking themselves off of briefs and cases that that 271 00:16:11,800 --> 00:16:14,280 Speaker 1: they have been working on, signaling that they do not 272 00:16:14,360 --> 00:16:17,360 Speaker 1: approve of the moves that the administration is making. I 273 00:16:17,400 --> 00:16:22,920 Speaker 1: think that that general distrust of the bureaucracy, claims that 274 00:16:22,960 --> 00:16:26,080 Speaker 1: it's a deep state out to get the Trump administration 275 00:16:26,280 --> 00:16:30,720 Speaker 1: has really under undercut the administration's ability to succeed in court. 276 00:16:30,880 --> 00:16:33,280 Speaker 1: Thanks so much for being on the Bloomberg Law Show. Jillian. 277 00:16:33,640 --> 00:16:37,240 Speaker 1: That's Jillian Metzker, a professor at Columbia Law School. And 278 00:16:37,280 --> 00:16:40,080 Speaker 1: that's it for the edition of Bloomberg Law. Remember you 279 00:16:40,120 --> 00:16:42,600 Speaker 1: can always get the latest legal news on our Bloomberg 280 00:16:42,720 --> 00:16:46,120 Speaker 1: Law Podcast. I'm June Grasso. Thanks so much for listening, 281 00:16:46,440 --> 00:16:48,800 Speaker 1: and remember to tune to The Bloomberg Law Show every 282 00:16:48,840 --> 00:16:51,920 Speaker 1: weeknight at ten pm Eastern, right here on Bloomberg Radio.