WEBVTT - Religious Rights Case of Christian Postal Worker 0:00:03.200 --> 0:00:08.320 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.400 --> 0:00:12.479 So I'm happy that we all combyying together. 0:00:14.480 --> 0:00:17.800 So what were the Supreme Court justice is agreeing on 0:00:18.120 --> 0:00:23.160 or kumbayaing together to put it? In Justice Elena Kagan's words, Well, 0:00:23.160 --> 0:00:26.440 there seemed to be consensus that the minimum standard's set 0:00:26.480 --> 0:00:30.280 in nineteen seventy seven that's made it relatively easy for 0:00:30.400 --> 0:00:35.479 businesses to deny workers' religious accommodation requests is too minimal. 0:00:35.720 --> 0:00:37.320 Here's Justice Neil Gorsuch. 0:00:37.840 --> 0:00:41.720 I think there's common ground too that deminimus can't be 0:00:41.840 --> 0:00:46.760 the test in isolation, at least because Congress doesn't pass 0:00:46.800 --> 0:00:51.520 civil rights legislation to have deminimous effect. Right, we don't 0:00:51.520 --> 0:00:54.120 think of the civil rights laws as trifling, which is 0:00:54.160 --> 0:00:57.720 the definition of deminimus. The law says since time immemorial, 0:00:58.120 --> 0:01:01.000 you know that the law does not concern its with trifles. 0:01:01.360 --> 0:01:05.000 In this case, a Christian US postal service worker when 0:01:05.040 --> 0:01:08.080 he sued for religious discrimination. He lost at both the 0:01:08.120 --> 0:01:11.679 trial court and appellate court levels. Refused to work on 0:01:11.840 --> 0:01:15.880 Sunday to deliver Amazon packages, and the rural post office 0:01:15.920 --> 0:01:19.440 could not accommodate his religious requests. So the real question 0:01:19.520 --> 0:01:22.080 for the justices was coming up with a test to 0:01:22.160 --> 0:01:26.120 determine when accommodating the religious views of an employee would 0:01:26.120 --> 0:01:29.319 mean an undue hardship for the employer. Here's how Justice 0:01:29.360 --> 0:01:30.720 Brett Kavanaugh posed it. 0:01:31.160 --> 0:01:35.280 Do you understand undue hardship? I understand that term in 0:01:35.319 --> 0:01:40.120 the original statute to reflect a balance between two important values, 0:01:40.160 --> 0:01:43.960 one religious liberty and the other the rights of American 0:01:44.040 --> 0:01:47.680 businesses to thrive. And to thrive, you have to be 0:01:47.720 --> 0:01:49.720 able to make money. 0:01:50.160 --> 0:01:53.040 My guest is Richard Garnett, a professor at Notre Dame 0:01:53.120 --> 0:01:56.120 Law School and the director of the Program on Church, 0:01:56.200 --> 0:01:59.480 State and Society. Rick tell us what the focus of 0:01:59.520 --> 0:02:02.360 the justice was in the oral arguments. 0:02:02.760 --> 0:02:07.320 The Supreme Court's oral arguments focused on the interpretation of 0:02:07.360 --> 0:02:10.160 one of the federal civil rights laws, Title seven. And 0:02:10.280 --> 0:02:12.760 one of the things that Title seven does is it 0:02:12.800 --> 0:02:16.160 forbids religious discrimination in the workplace. And another thing that 0:02:16.200 --> 0:02:20.119 it does is that it requires at least some employers 0:02:20.320 --> 0:02:24.040 to provide reasonable accommodations. Is the word the statute uses 0:02:24.160 --> 0:02:28.440 two employees who have special religious needs. And what had 0:02:28.440 --> 0:02:31.600 happened almost fifty years ago now in nineteen seventy seven 0:02:31.760 --> 0:02:33.960 was that the Supreme Court, in the case called Hartisan, 0:02:34.400 --> 0:02:38.840 had interpreted this religious accommodations language in a very narrow way, 0:02:39.120 --> 0:02:41.800 and a nutshell version is that the Court said that 0:02:42.000 --> 0:02:46.680 if accommodating a religious employee would impose anything more than 0:02:46.680 --> 0:02:50.160 a minimal cost on the employer, then an accommodation is 0:02:50.160 --> 0:02:53.400 not required. And you know, interestingly, at the time, some 0:02:53.440 --> 0:02:56.679 of the Court's more liberal justices, like Justice Marshall, dissented 0:02:56.680 --> 0:02:59.519 from that, and over the years scholars have pointed out 0:02:59.520 --> 0:03:02.560 that that's seventy seven ruling really seems inconsistent with the 0:03:02.639 --> 0:03:04.440 language of the statute, but it's been in place for 0:03:04.480 --> 0:03:06.840 a long time. And what the Supreme Court was focusing 0:03:06.919 --> 0:03:09.640 on in its arguments was how to come up with 0:03:09.680 --> 0:03:14.280 a test for religious accommodations that lines up better with 0:03:14.400 --> 0:03:16.560 the language of the statutes. So it's not really a 0:03:16.600 --> 0:03:20.280 case about the First Amendment itself. It's about this statute 0:03:20.320 --> 0:03:22.480 that Congress passed, you know, part of the Civil Rights 0:03:22.520 --> 0:03:26.360 Act again, and how to correct a mistaken interpretation to 0:03:26.440 --> 0:03:29.080 better bring the work of the courts in line with 0:03:29.200 --> 0:03:31.320 the language of the statute. And interestingly, and this was 0:03:31.360 --> 0:03:33.919 something that Justice Gorsa and some of the other justices 0:03:33.960 --> 0:03:36.840 pointed out there was a fair bit of consensus among 0:03:36.920 --> 0:03:40.400 the justices that the nineteen seventy seven court had made 0:03:40.440 --> 0:03:43.000 a mistake, that they narrowed the statute too much. What 0:03:43.080 --> 0:03:48.080 the arguments focused on was how best to implement Congress's 0:03:48.160 --> 0:03:51.760 goal of protecting religious exercise in the workplace while at 0:03:51.760 --> 0:03:57.600 the same time taking account of employer's interests and other employees' interests. 0:03:58.080 --> 0:04:01.520 Just going outside the argument from MoMA, the Supreme Court 0:04:01.680 --> 0:04:07.640 had repeatedly declined to revisit religious accommodation standards. In other case, 0:04:08.040 --> 0:04:12.440 why take this case where the post office had offered 0:04:12.440 --> 0:04:16.120 some accommodations to the worker, and times the postmaster himself 0:04:16.160 --> 0:04:19.520 did deliveries on Sunday because he couldn't find workers, some 0:04:19.600 --> 0:04:24.000 workers quit, So it seemed like this was well above 0:04:24.240 --> 0:04:27.159 a deminimus standard. I wonder why they took this case. 0:04:27.560 --> 0:04:29.719 Yeah, And I don't have a firm theory on that. 0:04:29.839 --> 0:04:33.039 I mean, over the years, a number of justices and 0:04:33.120 --> 0:04:35.960 in a variety of cases, a number of justices have said, look, 0:04:35.960 --> 0:04:38.440 we really need to revisit this. And so this is 0:04:38.480 --> 0:04:41.120 a question, the statutory interpretation question that's been on their 0:04:41.200 --> 0:04:45.000 radar screen for a while, and this particular case in 0:04:45.080 --> 0:04:47.039 the lower court in the Third Circuit, you had a 0:04:47.080 --> 0:04:51.080 pretty detailed and clear disagreement among some of the judges 0:04:51.120 --> 0:04:54.400 and sort of it teed up the legal question pretty 0:04:54.400 --> 0:04:56.640 well if you want. It could well be by the 0:04:56.640 --> 0:04:59.640 way that the Supreme Court corrects the nineteen seventy seven 0:04:59.640 --> 0:05:02.919 decision puts out a different rule, but that this particular 0:05:02.960 --> 0:05:05.680 employee still ends up losing. That that could happen. But 0:05:05.760 --> 0:05:08.400 right now the issue really is kind of the justices 0:05:08.440 --> 0:05:12.720 trying to decide should we promulgate a new standard that 0:05:12.800 --> 0:05:15.560 lines up with the statutory language better and tell the 0:05:15.600 --> 0:05:19.160 lower courts and tell employers follow this new standard. 0:05:19.520 --> 0:05:23.680 The worker's attorney was urging the court to adopt a 0:05:23.800 --> 0:05:28.120 standard similar to that of the civil rights laws, like 0:05:28.160 --> 0:05:32.400 the Americans with Disabilities Act. Right, tell us about that argument. 0:05:32.720 --> 0:05:36.520 Yeah, so the statute uses the term reasonable accommodation, and 0:05:36.800 --> 0:05:38.839 you know, we lawyers are familiar with the use of 0:05:38.839 --> 0:05:42.480 the term reasonable, but it's not self defining. What mister Street, 0:05:42.520 --> 0:05:45.200 who's the lawyer for the employee here, was saying, Yeah, 0:05:45.279 --> 0:05:49.800 let's analogize this standard in the Title seven Religious discrimination 0:05:49.880 --> 0:05:54.080 provision to some other non discrimination laws like the Americans 0:05:54.080 --> 0:05:57.800 with Disabilities Act, and that statute has clearer language which says, look, 0:05:57.960 --> 0:06:02.600 employers have to accommodate employees who need it unless the 0:06:02.640 --> 0:06:07.200 accommodation would impose you know, a significant or a substantial hardship. 0:06:07.279 --> 0:06:09.200 So that's kind of the language that the lawyer for 0:06:09.279 --> 0:06:11.680 the employee was after. And one of the things that 0:06:11.680 --> 0:06:14.800 the justices were trying to get their heads around was, well, 0:06:15.240 --> 0:06:18.320 is that feasible or would that impose too much cost 0:06:18.440 --> 0:06:22.600 on employers potentially? And could it in some circumstances impose 0:06:22.720 --> 0:06:26.560 excessive burdens on other employees. So again, the justices all 0:06:26.600 --> 0:06:29.599 seemed to agree that this nineteen seventy seven rule, which 0:06:29.680 --> 0:06:32.000 really watered down the statute and made it the case 0:06:32.120 --> 0:06:35.039 employers almost never had to accommodate employees. They wanted them 0:06:35.080 --> 0:06:36.839 move away from that. But they were each of them 0:06:36.880 --> 0:06:39.440 in different ways. They were all sensitive to the fact that, 0:06:39.520 --> 0:06:42.000 you know, not every accommodation can be granted, So how 0:06:42.040 --> 0:06:44.599 do you come up with language that'll provide clear guidance 0:06:44.640 --> 0:06:47.960 but also you know, take account of all the competing factors. 0:06:48.240 --> 0:06:51.000 Even though, as you mentioned, Justice Elena Kaigan even said 0:06:51.040 --> 0:06:54.919 that there was some level of kumba yang between the 0:06:55.120 --> 0:06:58.359 justices on the bench. But with regard to that making 0:06:58.400 --> 0:07:01.400 the standard like the Americans with Disabilities Act, it seemed 0:07:01.440 --> 0:07:05.039 like the three liberals were against that. They said that 0:07:05.120 --> 0:07:08.600 this case is based on statutory interpretation and it's up 0:07:08.600 --> 0:07:10.920 to Congress to decide that. 0:07:11.360 --> 0:07:13.200 Yeah, and I think some of those judges, but again, 0:07:13.240 --> 0:07:16.040 not only do the liberal justices asked questions along this line, 0:07:16.280 --> 0:07:21.280 were wary of importing language into Title seven that isn't 0:07:21.320 --> 0:07:23.960 actually in that text and that might be more demanding. Now. 0:07:24.000 --> 0:07:26.000 The one response to that is, well, you know, the 0:07:26.040 --> 0:07:28.600 words in the nineteen seventy seven case deminimus aren't in 0:07:28.640 --> 0:07:30.720 there either, And instead the language you have in the 0:07:30.720 --> 0:07:34.600 statute is reasonable accommodation and undue hardship. So I think 0:07:34.640 --> 0:07:38.000 mister Street, the lawyer for the employee, argued, Look, Congress 0:07:38.040 --> 0:07:41.680 did speak. Congress enacted a statute that said accommodate employees 0:07:41.960 --> 0:07:44.520 unless doing so would impose an undue hardship. We're not 0:07:44.560 --> 0:07:47.160 asking the court to rewrite what Congress did. We're asking 0:07:47.160 --> 0:07:49.160 the court to give effect to what Congress did. The 0:07:49.200 --> 0:07:52.040 concern that you mentioned, and I think Justice Kagan mentioned 0:07:52.080 --> 0:07:55.080 as well, is well, look, Congress has known about this 0:07:55.160 --> 0:07:57.720 nineteen seventy seven case for a long time, and if 0:07:57.800 --> 0:08:01.400 Congress wanted to, they could give us clearer guidance about 0:08:01.440 --> 0:08:04.160 how to implement this statute. And so I think that's 0:08:04.200 --> 0:08:06.920 one reason why she was nervous about just pulling language 0:08:06.920 --> 0:08:09.600 from another statute, because she thought, well, let's wait and 0:08:09.640 --> 0:08:11.040 see if Congress wants us to do that. 0:08:11.680 --> 0:08:15.239 How critical to the decision is it that Justices Amy Cony, 0:08:15.280 --> 0:08:19.680 Barrett and Brett Kavanaugh suggested that this request from the 0:08:19.720 --> 0:08:24.280 postal worker would have unduly burdened his coworkers by requiring 0:08:24.320 --> 0:08:26.240 them to cover his hours on Sundays. 0:08:26.520 --> 0:08:28.280 Yeah. I took him to be raised in an issue 0:08:28.280 --> 0:08:29.360 which is going to come up in a lot of 0:08:29.360 --> 0:08:33.000 accommodations cases, right, which is, if we're asking whether an 0:08:33.000 --> 0:08:37.480 accommodation would impose an undue hardship on the employer, don't 0:08:37.520 --> 0:08:40.840 we also have to consider the burden that the accommodation 0:08:40.960 --> 0:08:44.080 might put on other employees. Now, there have been some 0:08:44.120 --> 0:08:47.600 lower court cases where employers have denied accommodations and they've 0:08:47.640 --> 0:08:49.600 just said, well, you know, we can't afford to accommodate 0:08:49.679 --> 0:08:52.840 employee A, because that might make employee be sort of 0:08:52.880 --> 0:08:55.600 resentful of it. And I don't think the justices thought 0:08:55.640 --> 0:08:57.840 that was a very persuasive argument. But if you do 0:08:58.000 --> 0:09:01.600 have an on the job situation where an effort to 0:09:01.640 --> 0:09:06.959 accommodate employee A really is difficult and would impose again 0:09:07.120 --> 0:09:09.880 undue hardships not only on the employer's bottom line, but 0:09:09.920 --> 0:09:12.600 also on other employees, I think that's a factor that 0:09:12.880 --> 0:09:15.760 Justices Kavanaugh and Barrett wanted to make sure it was 0:09:15.960 --> 0:09:17.120 part of the mix. 0:09:18.200 --> 0:09:20.640 And so how do you think it'll come out. 0:09:20.880 --> 0:09:24.240 I think the Court, I suspect this will be unanimous, 0:09:24.280 --> 0:09:27.840 to be honest, will acknowledge that the nineteen seventy seven 0:09:27.880 --> 0:09:31.600 hardest and ruling and the dominimous language doesn't really comport 0:09:31.720 --> 0:09:34.319 with the statute. And it does sound like there might 0:09:34.320 --> 0:09:36.840 well be some division among the justices about what kind 0:09:36.880 --> 0:09:39.840 of a standard the Court should supply, whether it's more 0:09:39.880 --> 0:09:44.200 accommodationist or more deferential to employers. And then I don't 0:09:44.200 --> 0:09:47.000 think the Court will resolve for itself whether this particular 0:09:47.040 --> 0:09:50.000 employee should win. I would expect instead that the case 0:09:50.000 --> 0:09:53.000 would go back and proceed in line with the new standards. 0:09:53.160 --> 0:09:57.360 You know, I'm just wondering. The Equal Employment Opportunity Commission 0:09:58.000 --> 0:10:01.480 said that the lower courts haven't you used Title seven's 0:10:01.520 --> 0:10:04.199 deminimous cost test. Is that true? 0:10:04.360 --> 0:10:07.680 Well, there's some dispute about this, right, some argued, and 0:10:07.760 --> 0:10:10.160 I should say that I joined a brief that argued 0:10:10.200 --> 0:10:14.040 this that when you look over the full array of 0:10:14.240 --> 0:10:18.160 Title seven cases involving religious accommodations, that a whole lot 0:10:18.200 --> 0:10:22.120 of courts have denied accommodations when those accommodations would impose 0:10:22.400 --> 0:10:25.800 really small costs. At the same time, the EEOC argued, 0:10:25.800 --> 0:10:27.559 as you pointed out, and I think Justice Kagan made 0:10:27.559 --> 0:10:30.840 this point also, and certainly the Solicitor General did that 0:10:30.920 --> 0:10:33.880 even with that deminimous language, at least in some cases, 0:10:33.960 --> 0:10:37.319 employees have secured accommodations. So this might be one of 0:10:37.360 --> 0:10:39.880 those things where how you see it depends on where 0:10:39.920 --> 0:10:42.280 you start from. But in my view, it's pretty clear 0:10:42.360 --> 0:10:46.640 that employees have not been getting accommodated to the extent 0:10:46.720 --> 0:10:49.480 that Congress envisioned when it passed Title seven. 0:10:49.559 --> 0:10:52.000 Thanks for being on the show, Rick. That's Professor Richard 0:10:52.000 --> 0:10:57.800 Garnett of Notre Dame Law School in a case with legal, economic, 0:10:57.840 --> 0:11:02.360 and political ramifications, the Supreme Court issued a mixed decision 0:11:02.679 --> 0:11:06.240 over whether the United States can bring criminal charges against 0:11:06.320 --> 0:11:10.440 Turkey state owned Hawk Bank over allegations that helped Durand 0:11:10.520 --> 0:11:14.719 to evade economic sanctions by laundering billions of dollars through 0:11:14.720 --> 0:11:19.520 the US financial system. The Justice has rejected Hawkbank's primary 0:11:19.640 --> 0:11:23.960 argument that federal law prohibits prosecutions of foreign governments and 0:11:24.000 --> 0:11:27.480 the companies they own. Justice Brett Kavanaugh, who made his 0:11:27.559 --> 0:11:30.680 view clear during the oral arguments, wrote the opinion for 0:11:30.760 --> 0:11:31.920 seven of the justices. 0:11:32.520 --> 0:11:35.559 I think it's pretty bizarre for this Court to tell 0:11:35.600 --> 0:11:37.920 the President of the United States, as a matter of 0:11:38.640 --> 0:11:43.679 his national security exercise, that even though the Constitution doesn't 0:11:43.679 --> 0:11:46.840 prohibit what you're doing, even though a statute doesn't prohibit 0:11:46.960 --> 0:11:50.320 what you're doing, this Court's going to prohibit your exercise 0:11:50.440 --> 0:11:55.040 of national security authority. That talk about big steps, it is. 0:11:55.240 --> 0:11:56.000 That's huge. 0:11:56.280 --> 0:11:59.120 But the opinion left the bank with an out, sending 0:11:59.120 --> 0:12:02.160 the case back to the second Circuit, where Hallbank will 0:12:02.200 --> 0:12:05.000 have a chance to make an argument for sovereign immunity 0:12:05.000 --> 0:12:09.360 from prosecution under the common law. Two Justices Neil Gorsuch 0:12:09.400 --> 0:12:12.800 and Samuel Alito said they would have ruled definitively that 0:12:12.880 --> 0:12:16.319 the prosecution of Halkbank can go forward. Joining me is 0:12:16.320 --> 0:12:19.640 an expert on constitutional law, Harold Krant, a professor with 0:12:19.679 --> 0:12:23.400 the Chicago Kent College of Law. So how start by 0:12:23.440 --> 0:12:26.120 explaining Halkbank's arguments here? 0:12:27.240 --> 0:12:27.480 Well? 0:12:27.640 --> 0:12:30.720 Haulk Bank argued is the second circuit in the Supreme 0:12:30.800 --> 0:12:35.319 Court that they could not be subject to criminal jurisdiction 0:12:35.440 --> 0:12:37.320 in the United States courts, and they focus on a 0:12:37.360 --> 0:12:40.920 provision in the Foreign Sovereign's Community to Act, which was 0:12:41.280 --> 0:12:45.840 enacted in nineteen seventy six and four in Starned Immunity 0:12:45.880 --> 0:12:51.600 Act most clearly relates to civil proceedings and confers partial 0:12:51.640 --> 0:12:56.600 immunity on foreign instrumentalities for suits in the federal courts, 0:12:56.760 --> 0:13:00.960 but in one provision it does talk more generally, suggesting 0:13:01.000 --> 0:13:04.360 that foreigness mentalities will be immune from any kind of 0:13:04.440 --> 0:13:07.400 jurisdiction in the US courts. So the Supreme Court had 0:13:07.440 --> 0:13:11.320 to determine whether that one provision in the Foreign Sovereign's 0:13:11.440 --> 0:13:15.600 Muniact conferred immunities in criminal cases as well as in 0:13:15.679 --> 0:13:18.360 civil and the Court concluded that given all of the 0:13:18.440 --> 0:13:22.600 other provisions of Oren Cyberg's Muniact, which were plainly targeted 0:13:22.679 --> 0:13:27.120 only at civil activities of foreigness frutalities that they would 0:13:27.280 --> 0:13:30.480 construe a Foreign Cerberus Muniact in that manner and only 0:13:30.520 --> 0:13:34.080 to focus on civil activities of foreigness and mentalities and 0:13:34.120 --> 0:13:37.600 not cover at all any kind of potential criminal jurisdiction and. 0:13:37.559 --> 0:13:40.240 Tell us about the line above the justices in the case. 0:13:40.800 --> 0:13:45.160 The decision was seven to two, but the dissent disagreed 0:13:45.200 --> 0:13:48.000 with the analysis under the Foreign Cyber's Muni Act, but 0:13:48.040 --> 0:13:51.000 would have reached the same type of conclusion, which would 0:13:51.040 --> 0:13:54.560 be that it's very likely that Hawk Bank will be 0:13:54.679 --> 0:13:57.960 found to be not immune by the Second Circuit on 0:13:58.080 --> 0:14:01.120 reman from the Supreme Court, But they would arrived at 0:14:01.120 --> 0:14:05.440 that conclusion in a different manner than the seven justices 0:14:05.480 --> 0:14:09.000 the majority by saying that the Foreign Sovereignties uniac applies, 0:14:09.400 --> 0:14:12.480 but that Hawk Bank falls within the commercial activity exception. 0:14:13.120 --> 0:14:17.080 So the opinion gives Haulbank a possible out, sending the 0:14:17.120 --> 0:14:19.960 case back to the Second Circuit where the bank will 0:14:20.000 --> 0:14:23.160 have a chance to argue for sovereign immunity from prosecution 0:14:23.400 --> 0:14:26.760 under the common law. But didn't that argument already fail 0:14:26.880 --> 0:14:27.800 in the Lower courts. 0:14:28.320 --> 0:14:32.160 So what's bizarre about the majority opinion is that it 0:14:32.280 --> 0:14:35.640 remands the case back to the Second Circuit to determine 0:14:35.680 --> 0:14:39.880 whether any common law immunities would immunize hawk Bank from 0:14:40.120 --> 0:14:43.920 the criminal trial. But in the end of the opinion, 0:14:44.080 --> 0:14:46.880 the Second Circuit already said that even if the Foreign 0:14:46.920 --> 0:14:49.840 Sovereigny's uniac didn't apply, and we had to look at 0:14:49.840 --> 0:14:52.960 common law immunities, we would find that hawk Bank is 0:14:52.960 --> 0:14:56.120 not immune for two separate reasons. So it's a little 0:14:56.200 --> 0:15:00.080 unclear why the Supreme Court remanted this case back the 0:15:00.120 --> 0:15:03.640 Second Circuit, and the two justices in descent sort of 0:15:03.680 --> 0:15:08.240 berated their colleagues for leaving the Second Circuit scratching its 0:15:08.240 --> 0:15:10.920 collective heads about what it's supposed to do now, because 0:15:10.960 --> 0:15:13.960 it had already ruled pretty clearly on the common law 0:15:14.120 --> 0:15:16.000 munity issue and explain. 0:15:15.720 --> 0:15:17.720 The common law immunity issue for us. 0:15:18.520 --> 0:15:23.080 So, even if there's no statutory immunity for hawk Bank, 0:15:23.200 --> 0:15:25.480 in other words, that the Foreign Sovereigns Communities Act did 0:15:25.480 --> 0:15:28.680 not protect them or cloak them with immunity, they might 0:15:28.720 --> 0:15:32.000 still enjoy some common law immunities from suit given the 0:15:32.040 --> 0:15:34.880 fact that they are a foreign newsru mentality, so they're 0:15:34.920 --> 0:15:38.200 part of the foreign government. The Second Circuit combed those 0:15:38.240 --> 0:15:42.000 authorities and said, there's two reasons to think that any 0:15:42.080 --> 0:15:45.000 kind of immunity that existed at common law, they may 0:15:45.000 --> 0:15:47.960 have been adopted by the United States, et cetera, wouldn't apply. 0:15:48.440 --> 0:15:51.320 The first is because there is a line of precedent, 0:15:51.400 --> 0:15:55.200 which was mentioned in the concurring opinions in the Supreme Court, 0:15:55.520 --> 0:15:58.560 which hold that it's the executive that gets to make 0:15:58.600 --> 0:16:01.560 it the decision as to whether foreigns some mentality should 0:16:01.560 --> 0:16:05.000 be hauled into court for criminal purposes, that that's really 0:16:05.040 --> 0:16:09.240 a political issue, and that court should defer to the executive, 0:16:09.320 --> 0:16:13.920 meaning the precedent, in determining whether prosecutions should pursue. There's 0:16:13.920 --> 0:16:17.720 another line of decisions that say that foreigns some mentalities 0:16:17.760 --> 0:16:21.680 have never been immune from criminal jurisdiction as long as 0:16:21.720 --> 0:16:27.160 the crimes arise out of commercial activities, which everybody has 0:16:27.160 --> 0:16:29.400 held that they did in this case because it was 0:16:29.440 --> 0:16:34.160 a banking effort to shield billions of dollars of Iranian 0:16:34.520 --> 0:16:38.280 oil revenue. So on those two grounds, the Second Circuits said, 0:16:38.520 --> 0:16:41.080 you know, in either one of this, there's an exception 0:16:41.160 --> 0:16:44.280 for common law immunity if the President says, go ahead 0:16:44.280 --> 0:16:48.640 and prosecute, and if the actions arose out of commercial activities. 0:16:48.840 --> 0:16:51.040 So those are the two common law immunities so far 0:16:51.320 --> 0:16:54.920 that there have been exceptions, and the Second Circuit has 0:16:54.920 --> 0:16:58.280 already articulated them, so presumably they will do so again 0:16:58.760 --> 0:17:00.560 upon Remand if the. 0:17:00.480 --> 0:17:04.240 Second Circuit rejects this, as we expect they will, since 0:17:04.240 --> 0:17:06.600 they've done it already, can this go to trial? 0:17:06.680 --> 0:17:10.840 Then absolutely it'll go for trial, and Hawk Bank stands 0:17:10.880 --> 0:17:14.199 to lose stands and be fined a tremendous amount if 0:17:14.240 --> 0:17:18.080 they are found to be in fact liable for trying 0:17:18.119 --> 0:17:22.040 to basically shield all of this Iranian oil money despite 0:17:22.160 --> 0:17:24.560 our sanctions that we had applied to Iran. 0:17:25.160 --> 0:17:28.119 Is there a possibility that they could work out a 0:17:28.200 --> 0:17:32.520 deal with the US government about a penalty to pay. 0:17:33.280 --> 0:17:33.480 Yeah. 0:17:33.520 --> 0:17:36.760 Plea barkins are always possible, and indeed pre bargains, as 0:17:36.760 --> 0:17:40.760 you know, are frequently entered into avoid the cost and 0:17:40.840 --> 0:17:43.320 uncertainty of a major trial like this. So if the 0:17:43.359 --> 0:17:48.080 Second Circuit does reject the immunity claim by Hawk Bank, 0:17:48.600 --> 0:17:52.480 it's likely they will consider some kind of plea agreement 0:17:52.640 --> 0:17:56.359 which might then avoid the ugliness of a protracted trial, 0:17:56.840 --> 0:18:00.960 leaving the end result unclear for Hawk, but also in 0:18:01.080 --> 0:18:05.120 meshing or emboiling us in continuing friction with the Turkish government. 0:18:05.480 --> 0:18:09.240 I just want to note that Bloomberg Intelligence senior litigation 0:18:09.480 --> 0:18:14.359 analyst Elliott Stein estimates that it's seventy percent likely that 0:18:14.480 --> 0:18:17.280 Hulk Bank will fail to get immunity and wind up 0:18:17.320 --> 0:18:21.879 paying a penalty that exceeds one billion dollars. Now, there's 0:18:21.960 --> 0:18:25.400 never been a criminal prosecution of a state owned bank before, 0:18:25.800 --> 0:18:28.200 so is this decision then precedent setting? 0:18:28.560 --> 0:18:31.040 Well, this is the first time the Supreme Court is 0:18:31.080 --> 0:18:34.960 ever plainly and unequivocally said that the Foreign subverigers and UNIAC, 0:18:35.000 --> 0:18:38.359 which again was agreed to in nineteen seventy six, only 0:18:38.400 --> 0:18:42.640 applies to civil cases. That Congress was not concerned about 0:18:42.640 --> 0:18:46.439 criminal cases when it enacted this statute, and it was 0:18:46.480 --> 0:18:51.919 only focused on twitter contract actions against foreign instrumentalities. So 0:18:52.000 --> 0:18:55.480 that is the clear president setting feature of this case. 0:18:55.840 --> 0:18:58.720 Most people thought that the Foreign muniac did not apply 0:18:58.840 --> 0:19:01.680 to criminal activities, but people weren't sure, and there were 0:19:01.720 --> 0:19:05.919 some different sort of dicta in lower court decisions. So 0:19:05.960 --> 0:19:08.199 that's been put to rest, and we know that the 0:19:08.240 --> 0:19:11.960 foreign carverge maniac only addresses civil conduct. 0:19:12.080 --> 0:19:15.359 This is a case that didn't go down ideological lines. 0:19:15.400 --> 0:19:19.639 Not at all. And indeed, the two concurring justices Justice 0:19:19.760 --> 0:19:23.520 of course, that justice you know, Alito, are obviously usually 0:19:23.560 --> 0:19:28.679 voting along with Justices Kavanaugh and Thomas, but they split 0:19:28.720 --> 0:19:29.320 in this case. 0:19:29.920 --> 0:19:32.760 So how let's turn now to another case where there 0:19:32.800 --> 0:19:36.800 was no ideological split. The Supreme Court unanimously said that 0:19:36.920 --> 0:19:41.240 companies and people facing agency investigations or complaints by the 0:19:41.320 --> 0:19:45.639 SEC or FTC can go straight to federal court with 0:19:45.760 --> 0:19:50.000 some constitutional challenges. So following the trend of the Supreme 0:19:50.080 --> 0:19:53.680 Court to ham in the administrative state. 0:19:53.680 --> 0:19:57.439 And again it's a decision which did not reflect ideological lines. 0:19:57.480 --> 0:20:00.359 Although I agree with you, it follows a trend of 0:20:00.400 --> 0:20:04.359 the justices to terrain in the power of the administrative state. 0:20:04.480 --> 0:20:07.400 Those were continuing at a very heavy pace. The case 0:20:07.480 --> 0:20:10.800 concerning the question about whether individuals and companies we are 0:20:10.840 --> 0:20:14.879 subject to enforcement orders by administrative agencies can in the 0:20:15.320 --> 0:20:20.280 midst of those proceedings stop and file a lawsuit in 0:20:20.600 --> 0:20:24.359 district court to get the district court to rule on 0:20:24.880 --> 0:20:29.320 what is termed structural challenges to the agency. Issues such 0:20:29.359 --> 0:20:33.840 as the fact that the agency is unconstitutionally structured under 0:20:33.920 --> 0:20:38.160 Article two of the Constitution, or that Congress delegated too 0:20:38.200 --> 0:20:42.159 much authority to the agency under Article one of the Constitution, 0:20:42.800 --> 0:20:45.480 or the fact that they are entitled to a jury 0:20:45.520 --> 0:20:49.720 trial because the issue at stake relates to something that 0:20:49.840 --> 0:20:52.200 was subject to jury trials at the time but founding. 0:20:52.520 --> 0:20:55.119 So obviously, there's a whole panoply of these challenges that 0:20:55.160 --> 0:20:59.040 are pending around the country. And prior to the case 0:20:59.280 --> 0:21:03.280 Exxon that the Supreme Court decided, every lower court case said, 0:21:03.280 --> 0:21:06.800 this is crazy to interrupt these administrative proceedings to allow 0:21:06.920 --> 0:21:10.480 a list of some unknown constitutional questions to be aired, 0:21:10.800 --> 0:21:13.320 because it just means it's more of a ping pong 0:21:13.400 --> 0:21:15.960 ball between the Court of Appeals and the District Court 0:21:16.000 --> 0:21:18.600 and the agencies. And let's group all these claims in 0:21:18.640 --> 0:21:22.880 one together and have them aired if the party loses 0:21:23.040 --> 0:21:25.840 before a court, and the court will then be able 0:21:25.880 --> 0:21:31.600 to assess both statutory, procedural and constitutional claims together. Indeed, 0:21:31.880 --> 0:21:34.639 who in Justice Cavanaugh was on the DC Circuit, he 0:21:34.840 --> 0:21:38.119 similarly ruled that these challenges have to be grouped together. 0:21:38.400 --> 0:21:41.320 You don't want to interrupt an administrative process while it's 0:21:41.359 --> 0:21:43.919 going on to give the incentive to the parties to 0:21:44.560 --> 0:21:48.720 raise these constitutional challenges. But surprisingly, in my mind, the 0:21:48.840 --> 0:21:51.879 unanimous Supreme Court has held that we don't know what 0:21:51.920 --> 0:21:55.240 a special claim is. They didn't give very good guidance 0:21:55.280 --> 0:21:57.920 to the lower courts. But if you raise this certain 0:21:58.000 --> 0:22:02.120 kind of constitutional challenges to an administrative agency, you can 0:22:02.160 --> 0:22:05.600 go write to district court and have that adjudicated prior 0:22:05.640 --> 0:22:09.240 to completion of an enforcement proceeding against your company or 0:22:09.280 --> 0:22:10.640 against an individual. 0:22:10.800 --> 0:22:14.720 What I don't quite understand is, so you have these 0:22:14.840 --> 0:22:18.240 challenges that are constitutional challenges, so there are challenge is 0:22:18.280 --> 0:22:21.919 that anyone can bring up? So doesn't this mean that 0:22:22.000 --> 0:22:25.280 everyone who gets sued by the SEC or the FTC 0:22:25.400 --> 0:22:28.520 is going to bring up these challenges and try to 0:22:28.560 --> 0:22:29.760 take it to district court. 0:22:31.200 --> 0:22:36.960 It's an absolute invitation for anyone subject to FDIC or 0:22:37.000 --> 0:22:42.600 THEDA or the SEC, FDC and so forth to figure 0:22:42.600 --> 0:22:46.840 out some kind of challenge because delay means money, and 0:22:46.880 --> 0:22:50.399 so if your client is subject to some kind of 0:22:50.440 --> 0:22:54.280 losing of a license or a permit or something else, 0:22:54.640 --> 0:22:57.280 you know that time is money, and so it's a 0:22:57.359 --> 0:23:00.400 wonderful incentive to go and figure out some kind of 0:23:00.680 --> 0:23:03.680 So called constitutional claim that's never been raised with force 0:23:03.760 --> 0:23:07.200 been raised by other parties, because that will then force 0:23:07.280 --> 0:23:11.560 the district courts to schedule those arguments and gain possibly 0:23:11.600 --> 0:23:15.199 delay for your client, and delay is money. So it's 0:23:15.240 --> 0:23:19.680