Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
Speaker 1: Over seven hund thousand American lives have been lost to
Speaker 1: to COVID nineteen, including more than fifty six thousand in
Speaker 1: Florida and over sixty eight thousand in Texas, and every
Speaker 1: leader should be focused on supporting efforts to save lives
Speaker 1: and end the pandemic. Despite the statistics signed by White
Speaker 1: House Press Secretary Jen Saki, the governors of Texas and
Speaker 1: Florida are leading a full fledged assault on vaccine mandates.
Speaker 1: On Monday, Texas Governor Greg Abbott issued a broad executive
Speaker 1: order that bars virtually any COVID nineteen vaccine mandate in
Speaker 1: the state, and on Tuesday, Florida Governor Ron de Santis
Speaker 1: made good on his threat to find local governments that
Speaker 1: have vaccine mandates, ordering Leon County to pay a three
Speaker 1: and a half million dollar penalty. We are going to
Speaker 1: stand for the men and women who are serving us.
Speaker 1: We're going to protect Flora the jobs. We are not
Speaker 1: going to let people be fired. Because joining me is
Speaker 1: Harold Crant, a professor at the Chicago Kent College of Law.
Speaker 1: So how is de santisis three and a half million
Speaker 1: dollar fine likely to withstand a court challenge. I think
Speaker 1: it will stand if the state government has the authority
Speaker 1: under Florida law to and act such a band. States
Speaker 1: use their authority under either the general powers to act
Speaker 1: in an emergency and confront a disaster to preclude employers
Speaker 1: in their state from mandating vaccine destruct some of us
Speaker 1: as odd or bizarre, but it does not likely violate
Speaker 1: any federal constitutional right. We have not recognized the federal
Speaker 1: constitutional right to pursue particular types of treatment for diseases,
Speaker 1: and so in the absence of any kind of federal
Speaker 1: legislation mandating vaccines, and then it's within the states rights
Speaker 1: to preclude a band. Let's turn to the vaccine man
Speaker 1: date that OSHA has drafted and sent to the White
Speaker 1: House for review this week. Does the federal government have
Speaker 1: the power demand date a vaccine in that way? So
Speaker 1: Congress is delegated to the president the power to ensure
Speaker 1: workplace safety. And one of the aspects of workplace safety
Speaker 1: is that workers be free from any kind of exposure
Speaker 1: to diseases during their working hours. So OSHA, which is
Speaker 1: the agency in charge of insurance safety, regulates exposure to
Speaker 1: benzene exposure to asbestos. And the argument here, which we
Speaker 1: will see, is that the administration believes that exposure to
Speaker 1: COVID fits in with the same kinds of measures that
Speaker 1: have been taken before to protect workers in both private
Speaker 1: and public workplaces. So is the legal test going to
Speaker 1: be whether or not there's an emergency? OSHA has the
Speaker 1: power to issue an emergency standard. It doesn't take an
Speaker 1: effect goal, it's published right now. The target date is
Speaker 1: December eight, and then, supposedly, understand you, which is kind
Speaker 1: of heroic, it has to create a permanent standard overdraw
Speaker 1: the temporary standard within six months thereafter. But I think
Speaker 1: it might be helpful just to look at the language
Speaker 1: that the Congress used, because the question will be challenged
Speaker 1: in court. If they determine that employees are quote exposed
Speaker 1: to grave danger from exposure to substances or agents determined
Speaker 1: to be toxics or physically harmful, then they can create
Speaker 1: a standard. So is there a grave danger from exposure?
Speaker 1: That's really going to be the question, which one that
Speaker 1: hasn't been litigated much in court. OSHA has rarely issued
Speaker 1: a temporary emergency standard in the past, and so the
Speaker 1: private company's challenging Ocean's authority will say there is no
Speaker 1: longer a grave danger were sufficiently vaccinated, and therefore there
Speaker 1: is no power in the federal government to mandate vaccines
Speaker 1: in the workplace. So, taking a situation in Texas, private
Speaker 1: businesses face this dilemma. Violate the federal vaccine mandate or
Speaker 1: violate the state vaccine ban. Companies are in an undeunviewable situation.
Speaker 1: Right you have to either comply with the Ocean standard
Speaker 1: or with the mandate from the Governor of Texas. And
Speaker 1: what's interesting from a legal perspective is Governor Abbott claims
Speaker 1: that this is an emergency. In an emergency, he has
Speaker 1: these or of inherent powers to regulate private businesses, which
Speaker 1: in some ways is a mirror image of what President
Speaker 1: Biden is arguing through OSHA as well. So obviously, if
Speaker 1: there's a conflict, usually the federal government wins out under
Speaker 1: the supremacy cost at least with respect to federal intuntalities,
Speaker 1: but our contractors, but probably we'll win out with respect
Speaker 1: to private companies as well, But that will be up
Speaker 1: for the courts, and they'll have to determine two things,
Speaker 1: Whether the agency has exceeded this authority in providing for
Speaker 1: this vaccine mandate. And secondly, even if it has, whether
Speaker 1: the state has the power to override it with act
Speaker 1: to state employee situations. So if this question does get
Speaker 1: to the Supreme Court, how are the justices likely to rule?
Speaker 1: Congress does seem to have given the federal government authority
Speaker 1: to regulate harmful substances in the workplace, and exposure to
Speaker 1: COVID is no big reach. So even though the current
Speaker 1: Supreme Court has articulated interest in limiting the power of
Speaker 1: Congress to delegate wide areas of authorities to the agencies,
Speaker 1: I think, at least with respect to regulating the workplace,
Speaker 1: the bid administration is on powerful ground. It's not unassailable.
Speaker 1: We've never done this before on precedent, they have this
Speaker 1: kind of regulation reaching so deeply into the private workforce.
Speaker 1: So some members of the Supreme Court may be skeptical,
Speaker 1: but I think the language of the statute in terms
Speaker 1: of grave danger fits much more readily with what OCE
Speaker 1: is trying to do with this temporary emergency standard. Thanks
Speaker 1: how that's Harold Grant of the Chicago Kent College of Law.
Speaker 1: This is a painting of my aunt. She was taken
Speaker 1: off the walls of a home by the Nazis. Now
Speaker 1: you'd like to be reunited, wouldn't that be lovely? And
Speaker 1: then list justice. The film Woman in Gold is based
Speaker 1: on the true story of Maria Altman, a Jewish woman
Speaker 1: who won a battle with the Austrian government to regain
Speaker 1: ownership of Augustav Klimp painting of her aunt. After a
Speaker 1: ruling by the U. S. Supreme Court involving the Foreign
Speaker 1: Sovereign Immunities Act, the Jostices have decided to take another
Speaker 1: case involving the same law to decide whether the heirs
Speaker 1: of a Holocaust survivor can regain a painting by French
Speaker 1: impressionist Camille Pissaro that was stolen by the Nazis in
Speaker 1: nine My guest is mc sung Guila, chair of the
Speaker 1: appellate practice at buck Alter EMC, tell us about the
Speaker 1: history of this painting, Ruce and Honorey Afternoon Rain effect.
Speaker 1: So the Pizarro painting issue in this case was just
Speaker 1: by the Casper family from a well known art dealer
Speaker 1: who had acquired it from Pizarro himself. And it's a
Speaker 1: very special painting by Pizarro, and in fact was created
Speaker 1: by Pizarro during the Drive's Affair, which involved a violent
Speaker 1: anti Semitic movement in France, but he painted from his
Speaker 1: bedroom window there in France, So in any event, the
Speaker 1: Cospers had this painting. It was passed down from generation
Speaker 1: to generation. It was a family treasurer. It was on
Speaker 1: the living room wall at their home in Munich. And then,
Speaker 1: under the growing shadow of Nazi anti Semitism, Lily Caspier
Speaker 1: packed up her belongings and prepared to flee Germany in
Speaker 1: nine and the Nazis would only allow her in active
Speaker 1: visa if she quote unquote sold them the painting, and
Speaker 1: she sold it to them for three hundred and sixty dollars.
Speaker 1: After that, she never saw the painting again and the
Speaker 1: Costier family had no idea what happened to it, but
Speaker 1: it was eventually sold through an art gallery and now
Speaker 1: is part of a Spanish nonprofit organization and foundation that
Speaker 1: has a museum and has displayed the painting. This went
Speaker 1: to trial, what did it? A trial judge find. So
Speaker 1: actually this case is like many of the Holocaust art
Speaker 1: recovery cases, meant has a very long history of bumping
Speaker 1: up and down within the court system. So the litigation
Speaker 1: has been going on for twenty years, and this is
Speaker 1: I think it's the fourth appeal of various issues in
Speaker 1: the case. And I was involved with the earlier Ninth
Speaker 1: Circuit proceeding in which some Rey judgment had been granted
Speaker 1: for the Foundation against the castiers, and the Ninth Circuit
Speaker 1: overturned that thing. No, we think there is a travel
Speaker 1: issue of fact with regard to what Spanish law requires
Speaker 1: and who has proper right to the painting under Spanish
Speaker 1: property law, which has a different sort of adverse possession
Speaker 1: law then California laws, and the nights were good said,
Speaker 1: so we're gonna send it back to the district court
Speaker 1: and the district court will hold a trial. The District
Speaker 1: Court helped that trial and still concluded that the Foundation
Speaker 1: properly has the painting and the spears laws. And now
Speaker 1: they're challenging that on a fundamental question, which is which
Speaker 1: law do we apply? Under the Sovereign Immunities Act to
Speaker 1: decide the choice of law questions, so is it federal
Speaker 1: common law that decides which law we apply Spanish California,
Speaker 1: or is it California law that decides whether California or
Speaker 1: Spanish law should apply and they argue California law should apply,
Speaker 1: not Spanish law, and so the outcome would have been different.
Speaker 1: The Air's claimed that California law never allows the holder
Speaker 1: of stolen property to obtain good title. That's frequently the
Speaker 1: arguments that's made, which is, you can't get good title
Speaker 1: from a thief. Right, you can only get as good
Speaker 1: a title from someone as they had to give to you.
Speaker 1: And that is commonly the rule in US law and
Speaker 1: various state laws. What's the rule in Spanish law? In Spain,
Speaker 1: it depends on kind of this question of really, like
Speaker 1: how bad were you? You can get possessory right, but
Speaker 1: it depends on your knowledge, your participation in that. In
Speaker 1: other words, you can get good title from a thief
Speaker 1: under certain circumstances if you are to some extent innocence
Speaker 1: of that had no idea that it was stolen, you know,
Speaker 1: all of these various things back to that question, the
Speaker 1: wild will blindness. Last term, the Justice is ruled that
Speaker 1: the Holocaust survivors who were suing couldn't press their claims
Speaker 1: for arts stolen during World War Two against Hungary and
Speaker 1: Germany in U S courts. Just yet does that give
Speaker 1: any indication of how the court might rule here. It's
Speaker 1: hard for me because I always hope, I always hope
Speaker 1: that it's going to be positive for the errors in
Speaker 1: these cases. And I will say that they have been
Speaker 1: most interested in the Holocaust ART cases involving various issues
Speaker 1: involving the Foreign Sovereign Immunities Act that came up last
Speaker 1: term in the Germany case the years ago granted the
Speaker 1: Maria Altman case because that also involved another issue with
Speaker 1: regard to foreign soognmunit these acts. So they seem very
Speaker 1: interested in this particular statute and how and when it applies,
Speaker 1: and you know, the gateway to our court system. So
Speaker 1: we know Altman came out in favor of the claimants
Speaker 1: and the Germany case, you know, was not favorable to
Speaker 1: the claimants. So I would say we're going in with
Speaker 1: a fifty fifty batting average Foreign Sovereign Immunities Act and
Speaker 1: Holocaust ART cases, but I'm hoping this one goes the
Speaker 1: way of Altman. Thanks EMC. That's mc sun Gila of
Speaker 1: buck Alter And that's it for this edition of the
Speaker 1: Bloomberg Law Show. Remember you can always get the latest
Speaker 1: legal news on our Bloomberg Law podcast. You can find
Speaker 1: them on Apple Podcasts, Spotify, and at www dot Bloomberg,
Speaker 1: dot comm, slash podcast, Slash Law, and remember to join
Speaker 1: us weeknights at ten pm Wall Street Time for the
Speaker 1: Bloomberg Law Show. I'm June Basso, and you're listening to
Speaker 1: Bloomberg