WEBVTT - A Suit Over SiriusXM's Promotional Rates

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio. Hi,

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<v Speaker 1>I'm a new customer and I want your best new

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<v Speaker 1>smartphone deal. Well, I'm an existing customer and i'd like

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<v Speaker 1>your best new smartphone deal. Actually, it's for both new

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<v Speaker 1>and existing customers. It's not complicated. Only a T gives

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<v Speaker 1>everyone the same great deal. A T and T is

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<v Speaker 1>appealing to consumers who feel cheated when they have to

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<v Speaker 1>pay more than the promotional rate that new customers get,

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<v Speaker 1>or feel frustrated that they have to get on the

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<v Speaker 1>phone and negotiate for the lower rate. Well, one man

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<v Speaker 1>in California decided to take his frustrations with Serious XMS

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<v Speaker 1>price disparities to court. Joseph and Enriquez has been a

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<v Speaker 1>serious subscriber since two thousand five and obtain promotional rates

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<v Speaker 1>throughout the years, but he had to threaten cancelation last

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<v Speaker 1>year before a Serious Customer service agent finally agreed to

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<v Speaker 1>give him the promotional rate. So Enriquez got the lower rate,

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<v Speaker 1>but still sued Serious x M alleging it offers secret

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<v Speaker 1>discounts to some customers. Does he have a case here

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<v Speaker 1>to tell us? As Jim Gibson, a professor at the

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<v Speaker 1>University of Richmond Law School, Jim, are all the causes

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<v Speaker 1>of action in this lawsuit under California law? Yes, it's

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<v Speaker 1>all California law. It's essentially California's version of what every

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<v Speaker 1>state has and what the federal law has as well,

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<v Speaker 1>which is essentially unfair trade practices, includes things like false advertising,

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<v Speaker 1>bate and switch. Occasionally some sort of antitrust causes of

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<v Speaker 1>action as well. So this is a common strategy used

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<v Speaker 1>by cable companies mobile phone companies. I just negotiated a

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<v Speaker 1>new deal with Spectrum myself because my old rate expired.

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<v Speaker 1>So what's likely to happen here? I think it's unlikely

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<v Speaker 1>that Enriquez is going to win. As you said, this

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<v Speaker 1>sort of differential pricing is probably more the rule than

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<v Speaker 1>the exception, at least among businesses that you have a

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<v Speaker 1>long term relationship with, like your mobile phone provider or

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<v Speaker 1>your cable provider or streaming service. And the notion that

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<v Speaker 1>existing customers don't get the same deal or have to

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<v Speaker 1>work harder to get the same deal, I don't think

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<v Speaker 1>has ever been held by a court to be an

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<v Speaker 1>unfair business practice. The only sort of novel claim I

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<v Speaker 1>think he's making, although ultimately I don't think it works either.

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<v Speaker 1>Is that this is actually anti competitive. It's not just

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<v Speaker 1>bad for individual consumers, but it's it's essentially an antitrust

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<v Speaker 1>matter because competitors don't really know what serious expense prices are,

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<v Speaker 1>and therefore it's harder to compete with them. But I'm

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<v Speaker 1>not aware of any antitrust case either at the state

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<v Speaker 1>or federal level that sort of says that businesses have

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<v Speaker 1>to disclose. There are pricing regimes in order for competition

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<v Speaker 1>to work the way it should, and surely serious competitors

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<v Speaker 1>know that serious extim is doing this, and they themselves

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<v Speaker 1>are probably doing it as well. So companies don't have

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<v Speaker 1>to disclose their prices anywhere, No, except in certain very

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<v Speaker 1>narrow regulated industries. For the most part, you don't really

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<v Speaker 1>have to tell anybody what price you're selling something for,

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<v Speaker 1>and you can make them call you an ask or

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<v Speaker 1>call you an individually negotiate. Now, obviously it's often in

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<v Speaker 1>a business's interest to advertise your prices, right, because that's

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<v Speaker 1>how you attract customers. But that's more sort of the

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<v Speaker 1>market mechanisms working rather than legal mechanism demanding that businesses

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<v Speaker 1>do so, and in fact, businesses have been price discriminating

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<v Speaker 1>and giving differential pricing to customers in any number of

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<v Speaker 1>interesting ways for as long as we've had businesses. Have

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<v Speaker 1>you ever seen a lawsuit like this? Yeah, that's a

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<v Speaker 1>good question. I really haven't. Price discrimination, and that's sort

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<v Speaker 1>of the term economists used for this is actually often

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<v Speaker 1>considered to be a good thing in certain respects. And

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<v Speaker 1>keep in mind, when I say discrimination, I'm not using

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<v Speaker 1>discrimination in the way that we usually do when we're

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<v Speaker 1>talking about the law. We're not talking about sort of

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<v Speaker 1>race discrimination or sex discrimination. We're talking about essentially figuring

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<v Speaker 1>out how much a given customer might be willing to

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<v Speaker 1>pay In charging that customer a different price from another customer.

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<v Speaker 1>It's really considered in the world of economics than really

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<v Speaker 1>in the world of legal regulation of the marketplace, to

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<v Speaker 1>be almost a feature rather than a bug of the

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<v Speaker 1>you know, sort of market system. Yes, the idea is that, look,

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<v Speaker 1>as long as ultimately the customer is willing to pay

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<v Speaker 1>the price, then the fact that another customer is willing

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<v Speaker 1>only to pay a lower price shouldn't really affect the

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<v Speaker 1>first customer's decision. The idea is we can always vote

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<v Speaker 1>with our feet. No one has to subscribe to serious

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<v Speaker 1>x M, and so if they're asking a price that's

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<v Speaker 1>too high, you can take your business elsewhere or not

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<v Speaker 1>subscribe to that sort of digital radio service at all.

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<v Speaker 1>Don't get me wrong, there are ways in which the

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<v Speaker 1>system doesn't work well within the marketplace, but the basic

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<v Speaker 1>notion of charging different customers different prices is one that

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<v Speaker 1>business spent a lot of time figuring out how to

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<v Speaker 1>do correctly, rather than avoiding for fear of legal liability.

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<v Speaker 1>It seems unfair, and it seems like there'd be a

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<v Speaker 1>consumer law against it, or there should be a consumer

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<v Speaker 1>law against it. Well, let me give you a couple

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<v Speaker 1>of examples that I think most people would probably find inoffensive. Um. So,

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<v Speaker 1>for example, movie theaters often charge matinee prices for early

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<v Speaker 1>showings that are lower than than sort of the evening showings.

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<v Speaker 1>And the reason they tend to do that is because

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<v Speaker 1>people who can go to movies during the day um

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<v Speaker 1>tend to be people without jobs, um and therefore people

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<v Speaker 1>perhaps without the means to pay the higher price, and

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<v Speaker 1>so merely by charging different prices at different times of day,

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<v Speaker 1>they're actually differentiating between those who I can't afford to

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<v Speaker 1>pay the higher price, and those those who can or

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<v Speaker 1>coupon people with the time to clip coupon to get

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<v Speaker 1>a lower price because they use the coupon. Folks who don't,

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<v Speaker 1>or who value their time more highly, who tend to

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<v Speaker 1>be wealthier individuals, maybe don't have that time, uh, and

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<v Speaker 1>so they end up paying the higher price. What we're

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<v Speaker 1>talking about here is a little different, obviously, but I

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<v Speaker 1>think it's a different version of the same idea um

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<v Speaker 1>that charging people different prices is certainly not forbidden as

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<v Speaker 1>a matter of course by unfair competition law. Do you

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<v Speaker 1>think that this might be dismissed even before it gets

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<v Speaker 1>to trial. My guess is it probably will be, because

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<v Speaker 1>I don't think this is the sort of case in

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<v Speaker 1>which there's much in dispute factually, and of course we

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<v Speaker 1>haven't seen the answer in the case from serious xamin

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<v Speaker 1>But my guess is this is much more sort of

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<v Speaker 1>a question of legal policy and what sort of practices

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<v Speaker 1>should be allowed and shouldn't be loud And unless the

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<v Speaker 1>federal court in California wants to really strike out there

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<v Speaker 1>in a market regulatory direction that hasn't been the case before,

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<v Speaker 1>it's unlikely to proceed probably beyond a motion to dismiss

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<v Speaker 1>or summary judgment stage. Do you think that the lawyers

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<v Speaker 1>file this with the idea of making it into a

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<v Speaker 1>class action down the road. It certainly sounds like the

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<v Speaker 1>kind of case that could be a class action. UM.

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<v Speaker 1>The worry there is that, you know, perhaps because each

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<v Speaker 1>individual customers experience is so different, um in that you know,

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<v Speaker 1>it kind of depends on whether you call and what

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<v Speaker 1>you've got, um, that it might be difficult to say

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<v Speaker 1>that they all have the sort of same common interest

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<v Speaker 1>that a class action usually responds to. But it certainly

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<v Speaker 1>does have that flavor given that he's he's really trying

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<v Speaker 1>to affect a change in their business practice rather than

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<v Speaker 1>you know, recover some substantial amount of money that he

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<v Speaker 1>himself lost. So you're researching the ways in which companies

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<v Speaker 1>you sophisticated marketing techniques on consumers. Tell us a little

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<v Speaker 1>bit about what you're looking into. Well, this is really

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<v Speaker 1>where the serious XM case and my research overlap, which

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<v Speaker 1>is that I think the real danger that the Enrique's

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<v Speaker 1>case sort of brings to mind is not so much

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<v Speaker 1>that an individual customer might get a worse rate because

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<v Speaker 1>they're an existing customer as opposed to a new customer.

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<v Speaker 1>I mean, don't get me wrong, that upsets people. And

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<v Speaker 1>in fact, there's an a T and T mobile uh

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<v Speaker 1>AD campaign out right now where they're promising and prominently

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<v Speaker 1>featuring their promise to give the same rates to existing

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<v Speaker 1>a new customer. So obviously that's something that consumers look

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<v Speaker 1>out for. But I think the real danger here is

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<v Speaker 1>that as we get much and much more sophisticated pricing mechanisms,

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<v Speaker 1>particularly the online world, where that you're on Amazon, they

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<v Speaker 1>know exactly who you are, they know exactly what you've

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<v Speaker 1>purchased and didn't purchase before um, and they have very

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<v Speaker 1>sophisticated algorithms where they run all sorts of sort of

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<v Speaker 1>machine learning experiences through them. It could be the case

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<v Speaker 1>that you end up paying everyone is paying their own

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<v Speaker 1>very very sort of tailored price, given exactly who they are.

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<v Speaker 1>And so that degree of price discrimination isn't about generalizations

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<v Speaker 1>like can you go to a movie at three in

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<v Speaker 1>the afternoon versus seven in the evening. That's could be

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<v Speaker 1>a lot about your purchasing practices where you live. It

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<v Speaker 1>could be end up being about your race and your class,

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<v Speaker 1>and your gender and all sorts of other things that

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<v Speaker 1>I think make people much more worried about, um, you know,

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<v Speaker 1>differential pricing and all the things that go with it.

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<v Speaker 1>I have to tell you I identified with him because

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<v Speaker 1>you know, the constant haggling for prices is time consuming

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<v Speaker 1>and just a hassle. I'm completely with you, And it

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<v Speaker 1>sort of turns around some of the notions that are

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<v Speaker 1>behind older price discrimination models, which are that consumers with

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<v Speaker 1>more time on their hands end up getting the lower price.

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<v Speaker 1>In some sense, that's fine because you value your time,

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<v Speaker 1>you know, less than you value the savings. But a

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<v Speaker 1>lot of really low income people have less time, you know,

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<v Speaker 1>they're holding down two jobs. And so Consumer Reports has

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<v Speaker 1>actually studied this. They call it the shmo tax, because

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<v Speaker 1>you're just some schmo. Lower income folks end up paying

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<v Speaker 1>higher prices in certain instances because they don't have the

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<v Speaker 1>time to make the kind of phone calls that Enriquez

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<v Speaker 1>is complaining about. So I don't want to return myself

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<v Speaker 1>as unsympathetic to that problem, but I do think it's

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<v Speaker 1>pretty clear that, as currently constituted, the legal system actually

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<v Speaker 1>has not come to grips with that as something that

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<v Speaker 1>should regulate. Thanks Jim that's Jim Gibson of the University

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<v Speaker 1>of Richmond Law School. President Joe Biden is not backing

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<v Speaker 1>down from his mandate that all employers with more than

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<v Speaker 1>a hundred workers require vaccines or weekly COVID tests. That's

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<v Speaker 1>despite pushback from Republican governors like Florida's Rhn de Santis.

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<v Speaker 1>That's the worst kind of politics because it's putting the

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<v Speaker 1>lives of citizens of their states, especially children, at risk.

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<v Speaker 1>And I refused to give into it. When you have

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<v Speaker 1>a president like Biden issuing unconstitutional edicts against the American people,

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<v Speaker 1>we have a responsibility to stand up for the constitution

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<v Speaker 1>and to fight. Two dozen Republican state attorneys general sent

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<v Speaker 1>a letter to the Biden administration on Thursday saying they'll

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<v Speaker 1>sue over any federal vaccine mandates. The first to the

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<v Speaker 1>Court House was Arizona. Joining me to help sort the

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<v Speaker 1>legal challenges out, is Kate Andreas, a professor at Columbia

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<v Speaker 1>Law School. States routinely require school aged children to receive

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<v Speaker 1>a long list of vaccines. Does the federal government have

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<v Speaker 1>the same power? Those states have broad authority to protect

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<v Speaker 1>the health and welfare of their residents, and they have

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<v Speaker 1>the ability to impose vaccine mandates generally, and the Supreme

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<v Speaker 1>Court has held that nothing in the Constitution deprived state

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<v Speaker 1>of that right to broad authority and as long as

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<v Speaker 1>they impose reasonable vaccine mandates. But they can do that.

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<v Speaker 1>The federal government's power is a little bit different. It

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<v Speaker 1>can legislate in ways that are permissible under the Constitution,

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<v Speaker 1>and the executive can regulate in ways that Congress has permitted.

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<v Speaker 1>So the federal government has the ability under the Occupational

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<v Speaker 1>Health and Safety Act to impose on employers the duty

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<v Speaker 1>to create safe workplaces. So OSHA is an agency within

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<v Speaker 1>the Department of Labor that has broad authority to require

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<v Speaker 1>employers to adopt conditions or practices that are necessary or

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<v Speaker 1>appropriate to provide a safe and healthy place of employment.

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<v Speaker 1>So that gives the President and the Department of Labor

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<v Speaker 1>the authority to promulgate vaccine mandates in order to ensure

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<v Speaker 1>safe workplaces. So it's a broad authority, but it's a

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<v Speaker 1>little bit different than what the states can do, which

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<v Speaker 1>is kind of a more unlimited authority to impose vaccine mandates.

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<v Speaker 1>So Biden is relying on the Occupational Safety and Health

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<v Speaker 1>Act from nine seventy, but that doesn't explicitly cover compelled vaccinations,

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<v Speaker 1>So where are they getting the authority? What the Occupational

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<v Speaker 1>Safety and health that does. It imposes on employers a

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<v Speaker 1>duty to have a safe workplace, and it gives the

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<v Speaker 1>agency the ability to promulgate more specific rules in order

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<v Speaker 1>to ensure that workplaces are safe. So it doesn't lift

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<v Speaker 1>every particular specific problem or danger that may come up. Rather,

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<v Speaker 1>it's a broad authority that allows the government to then

0:12:23.679 --> 0:12:28.000
<v Speaker 1>regulate reasonably to protect workers. And it's pretty clear, based

0:12:28.120 --> 0:12:30.959
<v Speaker 1>on data that we have from the last eighteen months,

0:12:30.960 --> 0:12:37.040
<v Speaker 1>that COVID poses a really grave threat to workers and workplaces.

0:12:37.080 --> 0:12:40.200
<v Speaker 1>So based on that, the agency should be found to

0:12:40.200 --> 0:12:45.280
<v Speaker 1>have authority to protect workers to address that danger. Arizona's

0:12:45.400 --> 0:12:49.520
<v Speaker 1>Attorney General, Mark Bernovitch admitted to Bloomberg that his lawsuit

0:12:49.679 --> 0:12:52.640
<v Speaker 1>is almost certain to be dismissed by a judge because

0:12:52.679 --> 0:12:57.199
<v Speaker 1>the actual rules for the vaccine mandate haven't been finalized yet,

0:12:57.400 --> 0:13:00.400
<v Speaker 1>and other Republican attorneys general signaled that they'll wait for

0:13:00.440 --> 0:13:03.560
<v Speaker 1>the rules before going to court. So is it important

0:13:03.600 --> 0:13:08.000
<v Speaker 1>how OSHA frames the emergency rule? Yeah? So good point

0:13:08.040 --> 0:13:11.240
<v Speaker 1>that OSHA would not be acting here through its normal process,

0:13:11.240 --> 0:13:14.480
<v Speaker 1>which can take several years to promulgate a rule. The

0:13:14.520 --> 0:13:17.720
<v Speaker 1>agency also has authority to quickly issue a rule, and

0:13:17.760 --> 0:13:21.680
<v Speaker 1>that's known as an emergency temporary standard. And in order

0:13:21.720 --> 0:13:25.200
<v Speaker 1>to issue an emergency temporary standard, the agency has to

0:13:25.240 --> 0:13:28.320
<v Speaker 1>show that workers are exposed to a grave danger and

0:13:28.400 --> 0:13:31.679
<v Speaker 1>that the rule is necessary to address the danger. It's

0:13:31.720 --> 0:13:33.760
<v Speaker 1>also typically the case that the rule has to be

0:13:33.800 --> 0:13:38.479
<v Speaker 1>feasible for the employer to imporce. So what precisely the

0:13:38.520 --> 0:13:42.960
<v Speaker 1>emergency temporary standard says and requires is going to be important, right,

0:13:43.000 --> 0:13:45.160
<v Speaker 1>the agency has to show that there's a grave danger

0:13:45.520 --> 0:13:48.160
<v Speaker 1>and that the rule is necessary to address that danger.

0:13:48.840 --> 0:13:52.319
<v Speaker 1>So would the most likely challenge be to whether COVID

0:13:52.440 --> 0:13:56.040
<v Speaker 1>presents a grave danger and whether the rule is necessary?

0:13:56.240 --> 0:13:59.240
<v Speaker 1>I mean, I think there's quite significant evidence that COVID

0:13:59.360 --> 0:14:02.960
<v Speaker 1>presents the danger. So my guess is that most of

0:14:02.960 --> 0:14:05.520
<v Speaker 1>the arguments will focus on whether the rule is necessary

0:14:05.520 --> 0:14:09.840
<v Speaker 1>to address that danger. Typically, court gives expert agencies like

0:14:09.840 --> 0:14:13.000
<v Speaker 1>SOSHA a lot of difference with respect of their determination

0:14:13.120 --> 0:14:15.439
<v Speaker 1>as to whether a rule is necessary to address the

0:14:15.559 --> 0:14:19.000
<v Speaker 1>danger because they're experts on what place safety. But we

0:14:19.040 --> 0:14:22.240
<v Speaker 1>would have to see what precisely OSHA offers in terms

0:14:22.280 --> 0:14:25.440
<v Speaker 1>of its reasoning and that would then be challenged in court.

0:14:25.640 --> 0:14:28.000
<v Speaker 1>Biden pledged to go all the way to the Supreme

0:14:28.000 --> 0:14:30.880
<v Speaker 1>Court if necessary. Do you have any general idea of

0:14:30.880 --> 0:14:34.280
<v Speaker 1>how this might fare at the High Court, which recently

0:14:34.360 --> 0:14:38.800
<v Speaker 1>scraped the c d C S eviction moratorium. It's always

0:14:38.840 --> 0:14:42.320
<v Speaker 1>hard to predict, particularly given the changes in the Federal

0:14:42.360 --> 0:14:45.480
<v Speaker 1>Court and in the Supreme Court composition. But I really

0:14:45.520 --> 0:14:49.280
<v Speaker 1>do think that BOSHA is on very strong legal ground here.

0:14:49.480 --> 0:14:53.359
<v Speaker 1>And if it follows proper procedures and offer sufficient spaces

0:14:53.520 --> 0:14:57.560
<v Speaker 1>for its actions and also designs the temporary standard in

0:14:57.560 --> 0:14:59.840
<v Speaker 1>a way that makes it feasible for employers to come

0:15:00.040 --> 0:15:04.040
<v Speaker 1>I that at least under exists in precedent, it should

0:15:04.120 --> 0:15:10.200
<v Speaker 1>survive review. Unions have warned that mandatory vaccination policies in

0:15:10.200 --> 0:15:15.320
<v Speaker 1>the workplace have to be negotiated. Where do they stand here? Yeah,

0:15:15.360 --> 0:15:21.240
<v Speaker 1>so typically UM, when an employer wishes to change a

0:15:21.600 --> 0:15:27.240
<v Speaker 1>term and condition of employment when its workforces is UM unionize,

0:15:27.280 --> 0:15:30.120
<v Speaker 1>the employer has to negotiate how that is done and

0:15:30.160 --> 0:15:32.840
<v Speaker 1>what the terms are. And that's also just good employment

0:15:33.000 --> 0:15:35.280
<v Speaker 1>practice because workers have a right to sort of have

0:15:35.360 --> 0:15:38.800
<v Speaker 1>a voice and and how rules are implemented. So if

0:15:39.080 --> 0:15:42.480
<v Speaker 1>we're talking about a situation without a governmental mandate, if

0:15:42.520 --> 0:15:45.000
<v Speaker 1>an employer wants to impose a mandate and the employ

0:15:45.120 --> 0:15:48.320
<v Speaker 1>and the workforce is unionized, then the employer would be

0:15:48.360 --> 0:15:52.040
<v Speaker 1>required to negotiate about how that is done. UM. With

0:15:52.120 --> 0:15:55.000
<v Speaker 1>respect to when there's a federal rule, however, as that

0:15:55.040 --> 0:15:57.880
<v Speaker 1>employers have to comply with that, Employers have to comply

0:15:57.960 --> 0:16:01.400
<v Speaker 1>with that, and that overrides anything that you know is

0:16:01.440 --> 0:16:04.160
<v Speaker 1>to the contrary and a contract. And I do think

0:16:04.200 --> 0:16:08.680
<v Speaker 1>a lot of unions actually have recently recognized, um, that

0:16:08.680 --> 0:16:12.560
<v Speaker 1>that that these vaccine protections are actually part of protecting

0:16:12.560 --> 0:16:16.920
<v Speaker 1>all workers and so UM. Although some unions have expressed concerns,

0:16:16.960 --> 0:16:20.400
<v Speaker 1>many others have actually argued for more protection so that

0:16:20.440 --> 0:16:23.320
<v Speaker 1>all of their workers can be safe at work. Going

0:16:23.360 --> 0:16:26.600
<v Speaker 1>back to lawsuits for a moment, do Republican states have

0:16:26.880 --> 0:16:31.400
<v Speaker 1>standing to challenge the mandate. That's a good question, and

0:16:31.440 --> 0:16:35.560
<v Speaker 1>I think it's unclear whether they would have standing or not. UM,

0:16:35.600 --> 0:16:38.760
<v Speaker 1>whether they would able to be able to show that

0:16:38.320 --> 0:16:42.360
<v Speaker 1>that the states were actually harmed in some way UM

0:16:42.480 --> 0:16:45.160
<v Speaker 1>is that is an open question, UM. But I would

0:16:45.160 --> 0:16:48.680
<v Speaker 1>expect that there would be others who would have standing,

0:16:48.720 --> 0:16:52.600
<v Speaker 1>including workers and businesses, and that the states could then

0:16:53.200 --> 0:16:56.080
<v Speaker 1>um you know, opine and in the cases even if

0:16:56.120 --> 0:16:59.560
<v Speaker 1>they themselves don't have standing, I would expect to see

0:16:59.600 --> 0:17:02.800
<v Speaker 1>a lot of businesses or business groups like the Chamber

0:17:02.800 --> 0:17:07.760
<v Speaker 1>of Commerce challenging this possibly, although it's notable that a

0:17:07.760 --> 0:17:11.320
<v Speaker 1>lot of employers have voluntarily imposed um, you know, either

0:17:12.080 --> 0:17:14.919
<v Speaker 1>a mandate I'll be at once with for vaccines with

0:17:15.040 --> 0:17:17.960
<v Speaker 1>some exceptions, because I think a lot of employers recognize

0:17:17.960 --> 0:17:20.720
<v Speaker 1>that in order to get the economy working again, there's

0:17:20.840 --> 0:17:25.560
<v Speaker 1>um good reason to have more widespread vaccination, as long

0:17:25.600 --> 0:17:29.120
<v Speaker 1>as there are sufficient exceptions to protect those workers who

0:17:29.200 --> 0:17:33.440
<v Speaker 1>either can't for some reason. Um. So, yes, they think

0:17:33.440 --> 0:17:35.960
<v Speaker 1>it's quite likely there might be suits. But I also

0:17:35.960 --> 0:17:38.240
<v Speaker 1>think a lot of the major employers are moving in

0:17:38.320 --> 0:17:42.280
<v Speaker 1>this direction on their own. So what happens if a state,

0:17:42.440 --> 0:17:47.880
<v Speaker 1>let's say Florida has a law saying or executive order

0:17:48.119 --> 0:17:54.120
<v Speaker 1>against vaccine mandates, and then this vaccine mandate from OSHA

0:17:54.320 --> 0:17:59.840
<v Speaker 1>comes along, does the federal regulation take precedence. Generally, federal

0:18:00.040 --> 0:18:03.160
<v Speaker 1>law pre empts state law. So if there's a conflict

0:18:03.240 --> 0:18:06.399
<v Speaker 1>between federal law and state law and the Constitution, asmong

0:18:06.400 --> 0:18:09.320
<v Speaker 1>as the federal law is it self legitimate, um or

0:18:09.359 --> 0:18:13.240
<v Speaker 1>the federal regulation is it self legitimate, it would preempt

0:18:13.320 --> 0:18:15.920
<v Speaker 1>or kind of kick out the state law that is

0:18:15.960 --> 0:18:18.440
<v Speaker 1>to the country. That's not to say that it won't

0:18:18.440 --> 0:18:22.359
<v Speaker 1>be contested, because they'll still be the question whether OSHA

0:18:22.560 --> 0:18:25.399
<v Speaker 1>has the authority to promulgate the rule and whether the

0:18:25.600 --> 0:18:28.439
<v Speaker 1>rule or the standard is acceptable in the way that

0:18:28.480 --> 0:18:30.800
<v Speaker 1>they've done it. But if it is helps its illegal,

0:18:31.080 --> 0:18:34.720
<v Speaker 1>then it would um pre empt or kind of override

0:18:35.400 --> 0:18:38.880
<v Speaker 1>any state rule to the contrary. And that's true across

0:18:38.920 --> 0:18:41.240
<v Speaker 1>the board, whether we're talking about help and safety issues

0:18:41.359 --> 0:18:45.240
<v Speaker 1>or um any other area in which the federal government

0:18:45.240 --> 0:18:50.320
<v Speaker 1>has uh the ability to legislate or regulate. When Biden

0:18:50.400 --> 0:18:53.840
<v Speaker 1>was announcing that the c d C was going to

0:18:53.880 --> 0:18:58.480
<v Speaker 1>do a second moratorium on evictions, he said, well, constitutional

0:18:58.520 --> 0:19:00.919
<v Speaker 1>scholars say, there may be EQUI question about this, it

0:19:01.000 --> 0:19:04.120
<v Speaker 1>may not work, but we'll buy some time. So in

0:19:04.119 --> 0:19:07.879
<v Speaker 1>this case, even if the rule is in effect for

0:19:07.920 --> 0:19:11.600
<v Speaker 1>several months, the legal challenges will take long enough that

0:19:12.200 --> 0:19:15.680
<v Speaker 1>millions of Americans could be vaccinated while the rules in effect.

0:19:17.000 --> 0:19:22.520
<v Speaker 1>That depends because sometimes court stay you can kind of

0:19:22.520 --> 0:19:26.719
<v Speaker 1>postpone a rule while they're considering the issue. So I

0:19:26.720 --> 0:19:32.400
<v Speaker 1>think that question of how, um how immediately they rule

0:19:32.520 --> 0:19:35.919
<v Speaker 1>go into effect really depends on what happens in litigation.

0:19:36.240 --> 0:19:40.040
<v Speaker 1>But as I said previously, because the government is on

0:19:40.119 --> 0:19:43.000
<v Speaker 1>such strong grounds here in the sense that there really

0:19:43.080 --> 0:19:45.879
<v Speaker 1>is a grave or at least it appears right that

0:19:45.920 --> 0:19:48.520
<v Speaker 1>there's quite a bit of evidence that there's grave threat

0:19:48.560 --> 0:19:52.679
<v Speaker 1>to workers health, UM, I would expect that. UM it's

0:19:52.760 --> 0:19:55.800
<v Speaker 1>quite possible court would allow the temporary standard to go

0:19:55.840 --> 0:19:59.160
<v Speaker 1>into effect pending litigation, but it could go either way.

0:19:59.480 --> 0:20:03.479
<v Speaker 1>Thanks k that's Professor Kate Andreas of Columbia Law School.

0:20:03.920 --> 0:20:06.000
<v Speaker 1>Remember you can always get the latest legal news on

0:20:06.040 --> 0:20:10.040
<v Speaker 1>our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify,

0:20:10.119 --> 0:20:15.000
<v Speaker 1>and at www dot Bloomberg dot com, slash podcast Slash Law.

0:20:15.560 --> 0:20:17.840
<v Speaker 1>I'm Drew Basso, and you're listening to Bloomberg