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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: So I'm happy that we all combyying together.

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Speaker 3: So what were the Supreme Court justice is agreeing on

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Speaker 3: or kumbayaing together to put it? In Justice Elena Kagan's words, Well,

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Speaker 3: there seemed to be consensus that the minimum standard's set

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Speaker 3: in nineteen seventy seven that's made it relatively easy for

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Speaker 3: businesses to deny workers' religious accommodation requests is too minimal.

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Speaker 3: Here's Justice Neil Gorsuch.

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Speaker 4: I think there's common ground too that deminimus can't be

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Speaker 4: the test in isolation, at least because Congress doesn't pass

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Speaker 4: civil rights legislation to have deminimous effect. Right, we don't

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Speaker 4: think of the civil rights laws as trifling, which is

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Speaker 4: the definition of deminimus. The law says since time immemorial,

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Speaker 4: you know that the law does not concern its with trifles.

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Speaker 3: In this case, a Christian US postal service worker when

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Speaker 3: he sued for religious discrimination. He lost at both the

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Speaker 3: trial court and appellate court levels. Refused to work on

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Speaker 3: Sunday to deliver Amazon packages, and the rural post office

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Speaker 3: could not accommodate his religious requests. So the real question

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Speaker 3: for the justices was coming up with a test to

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Speaker 3: determine when accommodating the religious views of an employee would

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Speaker 3: mean an undue hardship for the employer. Here's how Justice

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Speaker 3: Brett Kavanaugh posed it.

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Speaker 2: Do you understand undue hardship? I understand that term in

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Speaker 2: the original statute to reflect a balance between two important values,

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Speaker 2: one religious liberty and the other the rights of American

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Speaker 2: businesses to thrive. And to thrive, you have to be

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Speaker 2: able to make money.

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Speaker 3: My guest is Richard Garnett, a professor at Notre Dame

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Speaker 3: Law School and the director of the Program on Church,

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Speaker 3: State and Society. Rick tell us what the focus of

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Speaker 3: the justice was in the oral arguments.

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Speaker 1: The Supreme Court's oral arguments focused on the interpretation of

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Speaker 1: one of the federal civil rights laws, Title seven. And

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Speaker 1: one of the things that Title seven does is it

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Speaker 1: forbids religious discrimination in the workplace. And another thing that

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Speaker 1: it does is that it requires at least some employers

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Speaker 1: to provide reasonable accommodations. Is the word the statute uses

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Speaker 1: two employees who have special religious needs. And what had

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Speaker 1: happened almost fifty years ago now in nineteen seventy seven

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Speaker 1: was that the Supreme Court, in the case called Hartisan,

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Speaker 1: had interpreted this religious accommodations language in a very narrow way,

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Speaker 1: and a nutshell version is that the Court said that

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Speaker 1: if accommodating a religious employee would impose anything more than

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Speaker 1: a minimal cost on the employer, then an accommodation is

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Speaker 1: not required. And you know, interestingly, at the time, some

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Speaker 1: of the Court's more liberal justices, like Justice Marshall, dissented

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Speaker 1: from that, and over the years scholars have pointed out

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Speaker 1: that that's seventy seven ruling really seems inconsistent with the

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Speaker 1: language of the statute, but it's been in place for

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Speaker 1: a long time. And what the Supreme Court was focusing

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Speaker 1: on in its arguments was how to come up with

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Speaker 1: a test for religious accommodations that lines up better with

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Speaker 1: the language of the statutes. So it's not really a

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Speaker 1: case about the First Amendment itself. It's about this statute

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Speaker 1: that Congress passed, you know, part of the Civil Rights

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Speaker 1: Act again, and how to correct a mistaken interpretation to

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Speaker 1: better bring the work of the courts in line with

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Speaker 1: the language of the statute. And interestingly, and this was

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Speaker 1: something that Justice Gorsa and some of the other justices

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Speaker 1: pointed out there was a fair bit of consensus among

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Speaker 1: the justices that the nineteen seventy seven court had made

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Speaker 1: a mistake, that they narrowed the statute too much. What

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Speaker 1: the arguments focused on was how best to implement Congress's

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Speaker 1: goal of protecting religious exercise in the workplace while at

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Speaker 1: the same time taking account of employer's interests and other employees' interests.

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Speaker 3: Just going outside the argument from MoMA, the Supreme Court

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Speaker 3: had repeatedly declined to revisit religious accommodation standards. In other case,

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Speaker 3: why take this case where the post office had offered

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Speaker 3: some accommodations to the worker, and times the postmaster himself

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Speaker 3: did deliveries on Sunday because he couldn't find workers, some

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Speaker 3: workers quit, So it seemed like this was well above

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Speaker 3: a deminimus standard. I wonder why they took this case.

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Speaker 1: Yeah, And I don't have a firm theory on that.

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Speaker 1: I mean, over the years, a number of justices and

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Speaker 1: in a variety of cases, a number of justices have said, look,

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Speaker 1: we really need to revisit this. And so this is

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Speaker 1: a question, the statutory interpretation question that's been on their

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Speaker 1: radar screen for a while, and this particular case in

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Speaker 1: the lower court in the Third Circuit, you had a

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Speaker 1: pretty detailed and clear disagreement among some of the judges

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Speaker 1: and sort of it teed up the legal question pretty

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Speaker 1: well if you want. It could well be by the

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Speaker 1: way that the Supreme Court corrects the nineteen seventy seven

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Speaker 1: decision puts out a different rule, but that this particular

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Speaker 1: employee still ends up losing. That that could happen. But

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Speaker 1: right now the issue really is kind of the justices

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Speaker 1: trying to decide should we promulgate a new standard that

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Speaker 1: lines up with the statutory language better and tell the

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Speaker 1: lower courts and tell employers follow this new standard.

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Speaker 3: The worker's attorney was urging the court to adopt a

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Speaker 3: standard similar to that of the civil rights laws, like

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Speaker 3: the Americans with Disabilities Act. Right, tell us about that argument.

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Speaker 1: Yeah, so the statute uses the term reasonable accommodation, and

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Speaker 1: you know, we lawyers are familiar with the use of

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Speaker 1: the term reasonable, but it's not self defining. What mister Street,

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Speaker 1: who's the lawyer for the employee here, was saying, Yeah,

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Speaker 1: let's analogize this standard in the Title seven Religious discrimination

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Speaker 1: provision to some other non discrimination laws like the Americans

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Speaker 1: with Disabilities Act, and that statute has clearer language which says, look,

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Speaker 1: employers have to accommodate employees who need it unless the

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Speaker 1: accommodation would impose you know, a significant or a substantial hardship.

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Speaker 1: So that's kind of the language that the lawyer for

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Speaker 1: the employee was after. And one of the things that

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Speaker 1: the justices were trying to get their heads around was, well,

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Speaker 1: is that feasible or would that impose too much cost

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Speaker 1: on employers potentially? And could it in some circumstances impose

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Speaker 1: excessive burdens on other employees. So again, the justices all

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Speaker 1: seemed to agree that this nineteen seventy seven rule, which

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Speaker 1: really watered down the statute and made it the case

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Speaker 1: employers almost never had to accommodate employees. They wanted them

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Speaker 1: move away from that. But they were each of them

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Speaker 1: in different ways. They were all sensitive to the fact that,

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Speaker 1: you know, not every accommodation can be granted, So how

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Speaker 1: do you come up with language that'll provide clear guidance

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Speaker 1: but also you know, take account of all the competing factors.

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Speaker 3: Even though, as you mentioned, Justice Elena Kaigan even said

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Speaker 3: that there was some level of kumba yang between the

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Speaker 3: justices on the bench. But with regard to that making

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Speaker 3: the standard like the Americans with Disabilities Act, it seemed

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Speaker 3: like the three liberals were against that. They said that

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Speaker 3: this case is based on statutory interpretation and it's up

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Speaker 3: to Congress to decide that.

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Speaker 1: Yeah, and I think some of those judges, but again,

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Speaker 1: not only do the liberal justices asked questions along this line,

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Speaker 1: were wary of importing language into Title seven that isn't

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Speaker 1: actually in that text and that might be more demanding. Now.

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Speaker 1: The one response to that is, well, you know, the

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Speaker 1: words in the nineteen seventy seven case deminimus aren't in

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Speaker 1: there either, And instead the language you have in the

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Speaker 1: statute is reasonable accommodation and undue hardship. So I think

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Speaker 1: mister Street, the lawyer for the employee, argued, Look, Congress

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Speaker 1: did speak. Congress enacted a statute that said accommodate employees

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Speaker 1: unless doing so would impose an undue hardship. We're not

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Speaker 1: asking the court to rewrite what Congress did. We're asking

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Speaker 1: the court to give effect to what Congress did. The

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Speaker 1: concern that you mentioned, and I think Justice Kagan mentioned

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Speaker 1: as well, is well, look, Congress has known about this

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Speaker 1: nineteen seventy seven case for a long time, and if

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Speaker 1: Congress wanted to, they could give us clearer guidance about

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Speaker 1: how to implement this statute. And so I think that's

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Speaker 1: one reason why she was nervous about just pulling language

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Speaker 1: from another statute, because she thought, well, let's wait and

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Speaker 1: see if Congress wants us to do that.

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Speaker 3: How critical to the decision is it that Justices Amy Cony,

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Speaker 3: Barrett and Brett Kavanaugh suggested that this request from the

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Speaker 3: postal worker would have unduly burdened his coworkers by requiring

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Speaker 3: them to cover his hours on Sundays.

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Speaker 1: Yeah. I took him to be raised in an issue

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Speaker 1: which is going to come up in a lot of

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Speaker 1: accommodations cases, right, which is, if we're asking whether an

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Speaker 1: accommodation would impose an undue hardship on the employer, don't

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Speaker 1: we also have to consider the burden that the accommodation

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Speaker 1: might put on other employees. Now, there have been some

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Speaker 1: lower court cases where employers have denied accommodations and they've

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Speaker 1: just said, well, you know, we can't afford to accommodate

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Speaker 1: employee A, because that might make employee be sort of

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Speaker 1: resentful of it. And I don't think the justices thought

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Speaker 1: that was a very persuasive argument. But if you do

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Speaker 1: have an on the job situation where an effort to

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Speaker 1: accommodate employee A really is difficult and would impose again

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Speaker 1: undue hardships not only on the employer's bottom line, but

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Speaker 1: also on other employees, I think that's a factor that

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Speaker 1: Justices Kavanaugh and Barrett wanted to make sure it was

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Speaker 1: part of the mix.

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Speaker 3: And so how do you think it'll come out.

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Speaker 1: I think the Court, I suspect this will be unanimous,

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Speaker 1: to be honest, will acknowledge that the nineteen seventy seven

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Speaker 1: hardest and ruling and the dominimous language doesn't really comport

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Speaker 1: with the statute. And it does sound like there might

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Speaker 1: well be some division among the justices about what kind

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Speaker 1: of a standard the Court should supply, whether it's more

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Speaker 1: accommodationist or more deferential to employers. And then I don't

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Speaker 1: think the Court will resolve for itself whether this particular

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Speaker 1: employee should win. I would expect instead that the case

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Speaker 1: would go back and proceed in line with the new standards.

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Speaker 3: You know, I'm just wondering. The Equal Employment Opportunity Commission

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Speaker 3: said that the lower courts haven't you used Title seven's

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Speaker 3: deminimous cost test. Is that true?

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Speaker 1: Well, there's some dispute about this, right, some argued, and

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Speaker 1: I should say that I joined a brief that argued

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Speaker 1: this that when you look over the full array of

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Speaker 1: Title seven cases involving religious accommodations, that a whole lot

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Speaker 1: of courts have denied accommodations when those accommodations would impose

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Speaker 1: really small costs. At the same time, the EEOC argued,

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Speaker 1: as you pointed out, and I think Justice Kagan made

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Speaker 1: this point also, and certainly the Solicitor General did that

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Speaker 1: even with that deminimous language, at least in some cases,

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Speaker 1: employees have secured accommodations. So this might be one of

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Speaker 1: those things where how you see it depends on where

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Speaker 1: you start from. But in my view, it's pretty clear

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Speaker 1: that employees have not been getting accommodated to the extent

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Speaker 1: that Congress envisioned when it passed Title seven.

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Speaker 3: Thanks for being on the show, Rick. That's Professor Richard

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Speaker 3: Garnett of Notre Dame Law School in a case with legal, economic,

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Speaker 3: and political ramifications, the Supreme Court issued a mixed decision

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Speaker 3: over whether the United States can bring criminal charges against

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Speaker 3: Turkey state owned Hawk Bank over allegations that helped Durand

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Speaker 3: to evade economic sanctions by laundering billions of dollars through

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Speaker 3: the US financial system. The Justice has rejected Hawkbank's primary

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Speaker 3: argument that federal law prohibits prosecutions of foreign governments and

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Speaker 3: the companies they own. Justice Brett Kavanaugh, who made his

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Speaker 3: view clear during the oral arguments, wrote the opinion for

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Speaker 3: seven of the justices.

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Speaker 2: I think it's pretty bizarre for this Court to tell

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Speaker 2: the President of the United States, as a matter of

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Speaker 2: his national security exercise, that even though the Constitution doesn't

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Speaker 2: prohibit what you're doing, even though a statute doesn't prohibit

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Speaker 2: what you're doing, this Court's going to prohibit your exercise

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Speaker 2: of national security authority. That talk about big steps, it is.

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Speaker 2: That's huge.

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Speaker 3: But the opinion left the bank with an out, sending

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Speaker 3: the case back to the second Circuit, where Hallbank will

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Speaker 3: have a chance to make an argument for sovereign immunity

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Speaker 3: from prosecution under the common law. Two Justices Neil Gorsuch

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Speaker 3: and Samuel Alito said they would have ruled definitively that

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Speaker 3: the prosecution of Halkbank can go forward. Joining me is

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Speaker 3: an expert on constitutional law, Harold Krant, a professor with

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Speaker 3: the Chicago Kent College of Law. So how start by

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Speaker 3: explaining Halkbank's arguments here?

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Speaker 4: Well?

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Speaker 5: Haulk Bank argued is the second circuit in the Supreme

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Speaker 5: Court that they could not be subject to criminal jurisdiction

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Speaker 5: in the United States courts, and they focus on a

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Speaker 5: provision in the Foreign Sovereign's Community to Act, which was

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Speaker 5: enacted in nineteen seventy six and four in Starned Immunity

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Speaker 5: Act most clearly relates to civil proceedings and confers partial

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Speaker 5: immunity on foreign instrumentalities for suits in the federal courts,

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Speaker 5: but in one provision it does talk more generally, suggesting

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Speaker 5: that foreigness mentalities will be immune from any kind of

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Speaker 5: jurisdiction in the US courts. So the Supreme Court had

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Speaker 5: to determine whether that one provision in the Foreign Sovereign's

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Speaker 5: Muniact conferred immunities in criminal cases as well as in

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Speaker 5: civil and the Court concluded that given all of the

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Speaker 5: other provisions of Oren Cyberg's Muniact, which were plainly targeted

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Speaker 5: only at civil activities of foreigness frutalities that they would

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Speaker 5: construe a Foreign Cerberus Muniact in that manner and only

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Speaker 5: to focus on civil activities of foreigness and mentalities and

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Speaker 5: not cover at all any kind of potential criminal jurisdiction and.

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Speaker 3: Tell us about the line above the justices in the case.

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Speaker 5: The decision was seven to two, but the dissent disagreed

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Speaker 5: with the analysis under the Foreign Cyber's Muni Act, but

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Speaker 5: would have reached the same type of conclusion, which would

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Speaker 5: be that it's very likely that Hawk Bank will be

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Speaker 5: found to be not immune by the Second Circuit on

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Speaker 5: reman from the Supreme Court, But they would arrived at

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Speaker 5: that conclusion in a different manner than the seven justices

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Speaker 5: the majority by saying that the Foreign Sovereignties uniac applies,

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Speaker 5: but that Hawk Bank falls within the commercial activity exception.

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Speaker 3: So the opinion gives Haulbank a possible out, sending the

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Speaker 3: case back to the Second Circuit where the bank will

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Speaker 3: have a chance to argue for sovereign immunity from prosecution

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Speaker 3: under the common law. But didn't that argument already fail

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Speaker 3: in the Lower courts.

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Speaker 5: So what's bizarre about the majority opinion is that it

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Speaker 5: remands the case back to the Second Circuit to determine

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Speaker 5: whether any common law immunities would immunize hawk Bank from

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Speaker 5: the criminal trial. But in the end of the opinion,

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Speaker 5: the Second Circuit already said that even if the Foreign

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Speaker 5: Sovereigny's uniac didn't apply, and we had to look at

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Speaker 5: common law immunities, we would find that hawk Bank is

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Speaker 5: not immune for two separate reasons. So it's a little

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Speaker 5: unclear why the Supreme Court remanted this case back the

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Speaker 5: Second Circuit, and the two justices in descent sort of

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Speaker 5: berated their colleagues for leaving the Second Circuit scratching its

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Speaker 5: collective heads about what it's supposed to do now, because

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Speaker 5: it had already ruled pretty clearly on the common law

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Speaker 5: munity issue and explain.

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Speaker 3: The common law immunity issue for us.

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Speaker 5: So, even if there's no statutory immunity for hawk Bank,

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Speaker 5: in other words, that the Foreign Sovereigns Communities Act did

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Speaker 5: not protect them or cloak them with immunity, they might

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Speaker 5: still enjoy some common law immunities from suit given the

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Speaker 5: fact that they are a foreign newsru mentality, so they're

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Speaker 5: part of the foreign government. The Second Circuit combed those

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Speaker 5: authorities and said, there's two reasons to think that any

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Speaker 5: kind of immunity that existed at common law, they may

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Speaker 5: have been adopted by the United States, et cetera, wouldn't apply.

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Speaker 5: The first is because there is a line of precedent,

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Speaker 5: which was mentioned in the concurring opinions in the Supreme Court,

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Speaker 5: which hold that it's the executive that gets to make

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Speaker 5: it the decision as to whether foreigns some mentality should

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Speaker 5: be hauled into court for criminal purposes, that that's really

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Speaker 5: a political issue, and that court should defer to the executive,

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Speaker 5: meaning the precedent, in determining whether prosecutions should pursue. There's

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Speaker 5: another line of decisions that say that foreigns some mentalities

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Speaker 5: have never been immune from criminal jurisdiction as long as

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Speaker 5: the crimes arise out of commercial activities, which everybody has

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Speaker 5: held that they did in this case because it was

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Speaker 5: a banking effort to shield billions of dollars of Iranian

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Speaker 5: oil revenue. So on those two grounds, the Second Circuits said,

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Speaker 5: you know, in either one of this, there's an exception

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Speaker 5: for common law immunity if the President says, go ahead

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Speaker 5: and prosecute, and if the actions arose out of commercial activities.

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Speaker 5: So those are the two common law immunities so far

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Speaker 5: that there have been exceptions, and the Second Circuit has

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Speaker 5: already articulated them, so presumably they will do so again

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Speaker 5: upon Remand if the.

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Speaker 3: Second Circuit rejects this, as we expect they will, since

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Speaker 3: they've done it already, can this go to trial?

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Speaker 5: Then absolutely it'll go for trial, and Hawk Bank stands

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Speaker 5: to lose stands and be fined a tremendous amount if

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Speaker 5: they are found to be in fact liable for trying

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Speaker 5: to basically shield all of this Iranian oil money despite

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Speaker 5: our sanctions that we had applied to Iran.

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Speaker 3: Is there a possibility that they could work out a

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Speaker 3: deal with the US government about a penalty to pay.

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Speaker 4: Yeah.

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Speaker 5: Plea barkins are always possible, and indeed pre bargains, as

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Speaker 5: you know, are frequently entered into avoid the cost and

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Speaker 5: uncertainty of a major trial like this. So if the

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Speaker 5: Second Circuit does reject the immunity claim by Hawk Bank,

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Speaker 5: it's likely they will consider some kind of plea agreement

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Speaker 5: which might then avoid the ugliness of a protracted trial,

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Speaker 5: leaving the end result unclear for Hawk, but also in

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Speaker 5: meshing or emboiling us in continuing friction with the Turkish government.

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Speaker 3: I just want to note that Bloomberg Intelligence senior litigation

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Speaker 3: analyst Elliott Stein estimates that it's seventy percent likely that

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Speaker 3: Hulk Bank will fail to get immunity and wind up

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Speaker 3: paying a penalty that exceeds one billion dollars. Now, there's

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Speaker 3: never been a criminal prosecution of a state owned bank before,

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Speaker 3: so is this decision then precedent setting?

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Speaker 5: Well, this is the first time the Supreme Court is

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Speaker 5: ever plainly and unequivocally said that the Foreign subverigers and UNIAC,

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Speaker 5: which again was agreed to in nineteen seventy six, only

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Speaker 5: applies to civil cases. That Congress was not concerned about

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Speaker 5: criminal cases when it enacted this statute, and it was

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Speaker 5: only focused on twitter contract actions against foreign instrumentalities. So

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Speaker 5: that is the clear president setting feature of this case.

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Speaker 5: Most people thought that the Foreign muniac did not apply

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Speaker 5: to criminal activities, but people weren't sure, and there were

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Speaker 5: some different sort of dicta in lower court decisions. So

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Speaker 5: that's been put to rest, and we know that the

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Speaker 5: foreign carverge maniac only addresses civil conduct.

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Speaker 3: This is a case that didn't go down ideological lines.

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Speaker 5: Not at all. And indeed, the two concurring justices Justice

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Speaker 5: of course, that justice you know, Alito, are obviously usually

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Speaker 5: voting along with Justices Kavanaugh and Thomas, but they split

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Speaker 5: in this case.

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Speaker 3: So how let's turn now to another case where there

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Speaker 3: was no ideological split. The Supreme Court unanimously said that

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Speaker 3: companies and people facing agency investigations or complaints by the

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Speaker 3: SEC or FTC can go straight to federal court with

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Speaker 3: some constitutional challenges. So following the trend of the Supreme

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Speaker 3: Court to ham in the administrative state.

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Speaker 5: And again it's a decision which did not reflect ideological lines.

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Speaker 5: Although I agree with you, it follows a trend of

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Speaker 5: the justices to terrain in the power of the administrative state.

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Speaker 5: Those were continuing at a very heavy pace. The case

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Speaker 5: concerning the question about whether individuals and companies we are

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Speaker 5: subject to enforcement orders by administrative agencies can in the

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Speaker 5: midst of those proceedings stop and file a lawsuit in

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Speaker 5: district court to get the district court to rule on

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Speaker 5: what is termed structural challenges to the agency. Issues such

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Speaker 5: as the fact that the agency is unconstitutionally structured under

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Speaker 5: Article two of the Constitution, or that Congress delegated too

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Speaker 5: much authority to the agency under Article one of the Constitution,

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Speaker 5: or the fact that they are entitled to a jury

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Speaker 5: trial because the issue at stake relates to something that

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Speaker 5: was subject to jury trials at the time but founding.

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Speaker 5: So obviously, there's a whole panoply of these challenges that

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Speaker 5: are pending around the country. And prior to the case

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Speaker 5: Exxon that the Supreme Court decided, every lower court case said,

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Speaker 5: this is crazy to interrupt these administrative proceedings to allow

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Speaker 5: a list of some unknown constitutional questions to be aired,

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Speaker 5: because it just means it's more of a ping pong

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Speaker 5: ball between the Court of Appeals and the District Court

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Speaker 5: and the agencies. And let's group all these claims in

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Speaker 5: one together and have them aired if the party loses

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Speaker 5: before a court, and the court will then be able

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Speaker 5: to assess both statutory, procedural and constitutional claims together. Indeed,

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Speaker 5: who in Justice Cavanaugh was on the DC Circuit, he

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Speaker 5: similarly ruled that these challenges have to be grouped together.

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Speaker 5: You don't want to interrupt an administrative process while it's

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Speaker 5: going on to give the incentive to the parties to

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Speaker 5: raise these constitutional challenges. But surprisingly, in my mind, the

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Speaker 5: unanimous Supreme Court has held that we don't know what

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Speaker 5: a special claim is. They didn't give very good guidance

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Speaker 5: to the lower courts. But if you raise this certain

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Speaker 5: kind of constitutional challenges to an administrative agency, you can

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Speaker 5: go write to district court and have that adjudicated prior

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Speaker 5: to completion of an enforcement proceeding against your company or

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Speaker 5: against an individual.

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Speaker 3: What I don't quite understand is, so you have these

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Speaker 3: challenges that are constitutional challenges, so there are challenge is

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Speaker 3: that anyone can bring up? So doesn't this mean that

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Speaker 3: everyone who gets sued by the SEC or the FTC

388
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Speaker 3: is going to bring up these challenges and try to

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Speaker 3: take it to district court.

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Speaker 5: It's an absolute invitation for anyone subject to FDIC or

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Speaker 5: THEDA or the SEC, FDC and so forth to figure

392
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Speaker 5: out some kind of challenge because delay means money, and

393
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Speaker 5: so if your client is subject to some kind of

394
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Speaker 5: losing of a license or a permit or something else,

395
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Speaker 5: you know that time is money, and so it's a

396
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Speaker 5: wonderful incentive to go and figure out some kind of

397
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Speaker 5: So called constitutional claim that's never been raised with force

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Speaker 5: been raised by other parties, because that will then force

399
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Speaker 5: the district courts to schedule those arguments and gain possibly

400
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Speaker 5: delay for your client, and delay is money. So it's

401
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Speaker 5: a very impractical decision. But I think that you're right

402
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Speaker 5: to know that this goes along with the decisions that

403
00:23:23,119 --> 00:23:27,159
Speaker 5: are certain inscribing administrative authority. That the legal issue turns

404
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Speaker 5: on the question of what's Congressional intent when Congress sets

405
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Speaker 5: up the scheme with review of the administrative agency's final

406
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Speaker 5: decision in the Court of Appeals, did it intend to

407
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Speaker 5: implicitly preclude interlocutory or non final challenges to agency authority.

408
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Speaker 5: That's a legal issue, and I think it's pretty clear

409
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Speaker 5: in thinking about the final judgment rule that Congress has

410
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Speaker 5: imposed in the federal courts that when kind of sets

411
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Speaker 5: up these review mechanisms, it intends non final challenges to

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Speaker 5: be only decided when the review of the entire case

413
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Speaker 5: goes the Court of Appeals. But the Court decided otherwise unanimously,

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Speaker 5: and indeed Justice Gorcius says that we as the Court

415
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Speaker 5: have an unflagging obligation to exercise jurisdiction unless Congress very

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Speaker 5: very clearly tells us we shouldn't do so. And so

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Speaker 5: he's suggesting that all of these administrative review schemes unless

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Speaker 5: Congress says, and no other challenge shall be cognizable in

419
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Speaker 5: court prior to review on off the final decision, unless

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Speaker 5: Congress says that that just courts can entertain challenges to

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Speaker 5: administrative agencies. And what's striking about that is that simply

422
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Speaker 5: not the way our federal court system is set up.

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Speaker 5: Because individuals who lose summary judgment motions or companies that

424
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Speaker 5: lose motions to dismiss can't get those challenges, even if

425
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Speaker 5: they're very similar to the ones that are at play

426
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Speaker 5: in the Exxon case itself, they can't get those into

427
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Speaker 5: court of appeals until after they go through the trial

428
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Speaker 5: of all of their claim it's more efficient. That's what

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Speaker 5: Congress is determined. But the Court has said that even

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Speaker 5: though Congress has structured the system of appeals in that

431
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Speaker 5: way in the federal courts, that it has a very

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Speaker 5: different idea for the administrative agencies, that it didn't want

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Speaker 5: to give administrative agencies the same kind of respect that

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Speaker 5: district courts have.

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Speaker 3: Why are the conservatives on the Court so intent on

436
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Speaker 3: trying to dismantle the administrative state to give more power

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00:25:31,920 --> 00:25:32,920
Speaker 3: to the judiciary.

438
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Speaker 5: I think there's a number of sort of paradoxes here.

439
00:25:36,480 --> 00:25:40,080
Speaker 5: I mean, the Court has been very accepting of strong

440
00:25:40,160 --> 00:25:45,480
Speaker 5: executive authority, but very suspicious of administrative authority. And I

441
00:25:45,480 --> 00:25:49,119
Speaker 5: guess the positive aspect of their decisions is that they

442
00:25:49,400 --> 00:25:53,160
Speaker 5: were trying to prod Congress to take more responsibility for

443
00:25:53,359 --> 00:25:57,480
Speaker 5: policy decisions that affect us all, as opposed to delegating

444
00:25:57,800 --> 00:26:01,879
Speaker 5: or allowing administrative agencies to reach such important decisions. That

445
00:26:02,040 --> 00:26:06,320
Speaker 5: is the positive part about the suspicion of administrative agency power,

446
00:26:06,320 --> 00:26:10,520
Speaker 5: because the administrative agencies do exercise these powerful policy preferences

447
00:26:10,640 --> 00:26:13,320
Speaker 5: or do reflect those policy preferences in a way that

448
00:26:13,359 --> 00:26:16,879
Speaker 5: affects all of our business and private laws, from the

449
00:26:16,920 --> 00:26:21,720
Speaker 5: pandemic to export controls to emissions of carbon dioxide. But

450
00:26:21,800 --> 00:26:24,840
Speaker 5: there is a problem because the problem is if Congress

451
00:26:24,880 --> 00:26:28,480
Speaker 5: doesn't go into the weeds and craft all these policies

452
00:26:28,520 --> 00:26:31,040
Speaker 5: with great care, the question is who's going to pick

453
00:26:31,080 --> 00:26:34,359
Speaker 5: up the slack. And so our government has been shaped

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00:26:34,400 --> 00:26:36,879
Speaker 5: for the last seventy five years in a way that

455
00:26:37,080 --> 00:26:42,080
Speaker 5: encourages Congress to delegate to agencies and the Court is

456
00:26:42,119 --> 00:26:45,080
Speaker 5: in the process of trying to pull that back and

457
00:26:45,280 --> 00:26:47,600
Speaker 5: to say that if there's going to be any kind

458
00:26:47,640 --> 00:26:52,760
Speaker 5: of important rules, those rules should come from Congress and

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00:26:52,880 --> 00:26:57,240
Speaker 5: not from these administrative agencies. So it's a view of

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00:26:57,920 --> 00:27:00,000
Speaker 5: going back to the way the country was seventy five

461
00:27:00,000 --> 00:27:03,560
Speaker 5: five years ago, and there is some merit to it.

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00:27:03,760 --> 00:27:06,320
Speaker 5: But if one doesn't have faith that Congress will take

463
00:27:06,400 --> 00:27:11,199
Speaker 5: up the challenge and exercise all of these important roles

464
00:27:11,240 --> 00:27:14,760
Speaker 5: that the Court wants it to play, then we're going

465
00:27:14,800 --> 00:27:18,120
Speaker 5: to be left in a situation where we're not being

466
00:27:18,119 --> 00:27:20,639
Speaker 5: governed by any entity very effectively.

467
00:27:21,320 --> 00:27:23,800
Speaker 3: I mean, I'm just wondering why the liberals went along

468
00:27:23,880 --> 00:27:27,080
Speaker 3: with this decision. Are they just throwing up their hands

469
00:27:27,119 --> 00:27:29,879
Speaker 3: and saying, we can't fight this anymore.

470
00:27:30,520 --> 00:27:33,399
Speaker 5: It's a great question why the liberal justices on the

471
00:27:33,440 --> 00:27:37,960
Speaker 5: Court decided to cut back the power of administrative agencies

472
00:27:38,000 --> 00:27:40,359
Speaker 5: in the Exxon case. It may be that they were

473
00:27:40,400 --> 00:27:42,639
Speaker 5: afraid that there would be a worse decision if they

474
00:27:42,640 --> 00:27:45,600
Speaker 5: didn't go along with their majority colleagues in this case.

475
00:27:45,800 --> 00:27:49,680
Speaker 5: That's one hypothesis, or for another, they may have thought

476
00:27:49,720 --> 00:27:53,880
Speaker 5: that it's healthy to air all of these constitutional challenges

477
00:27:53,920 --> 00:27:57,280
Speaker 5: the agency authority. And finally, when the courts reject most

478
00:27:57,320 --> 00:28:01,199
Speaker 5: of them, then that will be less room for disagreement

479
00:28:01,200 --> 00:28:05,040
Speaker 5: in the future, and then administrative enforcement actions can proceed

480
00:28:05,520 --> 00:28:08,359
Speaker 5: without this kind of ping pong balls in terms of

481
00:28:08,440 --> 00:28:12,320
Speaker 5: being hauled into court on these constitutional actions. But there

482
00:28:12,359 --> 00:28:15,479
Speaker 5: are dozens, if not hundreds of cases that are pending

483
00:28:15,520 --> 00:28:19,040
Speaker 5: now in which these constitutional questions have been raised, and

484
00:28:19,119 --> 00:28:22,480
Speaker 5: so these were the next five years you will see

485
00:28:22,640 --> 00:28:26,720
Speaker 5: just a courts having to decide case after case of

486
00:28:26,760 --> 00:28:31,320
Speaker 5: these innovative challenges to administrative agency authority. And that can't

487
00:28:31,320 --> 00:28:34,120
Speaker 5: be in a good and the short term for the individuals,

488
00:28:34,119 --> 00:28:37,000
Speaker 5: the courts or for the administrative agencies.

489
00:28:37,080 --> 00:28:39,600
Speaker 3: Thanks so much, Hal. That's Professor Harold Krent of the

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Speaker 3: Chicago Kent College of Law. And that's it for this

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00:28:42,640 --> 00:28:45,360
Speaker 3: edition of The Bloomberg Law Show. Remember you can always

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00:28:45,400 --> 00:28:48,320
Speaker 3: get the latest legal news on our Bloomberg Law Podcast.

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00:28:48,600 --> 00:28:51,600
Speaker 3: You can find them on Apple Podcasts, Spotify, and at

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00:28:51,760 --> 00:28:56,800
Speaker 3: www dot Bloomberg dot com, slash podcast Slash Law, and

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00:28:56,880 --> 00:28:59,880
Speaker 3: remember to tune into The Bloomberg Law Show every weeknight

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00:29:00,080 --> 00:29:03,480
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Speaker 3: you're listening to Bloomberg