Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: It was one of the most closely watched cases of
Speaker 1: the Supreme Courts term, in one of the most divisive
Speaker 1: issues the country faces, and in a surprise reinforcement of
Speaker 1: abortion rights. The Court throughout a Louisiana law that would
Speaker 1: have left the state with only one abortion clinic in
Speaker 1: a five to four decision this week, Chief Justice John
Speaker 1: Roberts provided the crucial fifth vote, joining with the Courts
Speaker 1: liberals to invalidate the Louisiana law requiring clinic doctors to
Speaker 1: get privileges at a local hospital, a law almost identical
Speaker 1: to a Texas law the Court struck down in twenty sixteen.
Speaker 1: Perhaps the Chief gave a hint about his vote during
Speaker 1: oral arguments. You know, I understand the point that the
Speaker 1: impact of um the laws varies from state to state,
Speaker 1: But why do you look at each state differently if
Speaker 1: the benefits of the law they're not going to change
Speaker 1: from state to state. The decision was a huge setback
Speaker 1: for conservatives who had hoped a newly conservative court would
Speaker 1: uphold restrictions on abortion. Joining me is Stephen Vladick, a
Speaker 1: professor at the University of Texas Law School. The Chief
Speaker 1: Justice has never voted before on the side of abortion rights.
Speaker 1: Was this decision all about the Chief Justices vote? I
Speaker 1: think it was. I mean, I think he signaled that
Speaker 1: he was probably leaning in this direction last year when
Speaker 1: he joined the four more progressive justices to stay that
Speaker 1: the decision to leave the Louisiana law and hole. And
Speaker 1: you know, I think, much like his concurrent opinion last
Speaker 1: year and more versus Texas, this is a case where
Speaker 1: the Chief doesn't necessarily agree with the majority on the merits,
Speaker 1: but thinks that the lower courts were wrong to basically
Speaker 1: ignore or not basically apply the Court's own earlier precedents.
Speaker 1: So this is very much, I think an institutionalist decisions
Speaker 1: for the Chief, an institutionalist opinion. Explain how it's an
Speaker 1: institutionalist opinion. The Chief goes out of his way not
Speaker 1: to say that much about the merits and about whether
Speaker 1: he actually agrees with the majority, rather that most of
Speaker 1: the opinions about starry decisis and why he thinks the
Speaker 1: Supreme Court should follow the whole woman's health decision from
Speaker 1: four years ago. And I think that's very much the
Speaker 1: Chief day Am. You know, I am not a big
Speaker 1: fan of these abortion cases. I am generally sympathetic to
Speaker 1: state abortion restrictions. But here where the state of Louisiana
Speaker 1: basically passed the law that was in no material ways
Speaker 1: different from the one that we just struck down, I'm
Speaker 1: not gonna ignore the similarities just because I'm sympathetic to
Speaker 1: the results. And I think that's an important marker, not
Speaker 1: just for this decision, one that could be very important
Speaker 1: going forward, as he's increasingly clearly the median and most
Speaker 1: important vote on the Court in these high profile devices cases.
Speaker 1: We've discussed before how Justice Elena Kagan has been sort
Speaker 1: of harping on precedent. Is this the case she was
Speaker 1: looking towards? You know, I don't skim so June. I
Speaker 1: think that the president on started, you know, fidelity to
Speaker 1: President by Justice Kagan, by Justice Briar. I think it
Speaker 1: is very much about abortion. But I think the precedents
Speaker 1: they're much more worried about are the canonical ones. You know,
Speaker 1: Row from not sevent three casey from that two. The
Speaker 1: precedent the Court is upholding is a much newer one
Speaker 1: of much more recent vintage. I don't think that's necessarily
Speaker 1: the goal that the progressives had in mind when they
Speaker 1: started worrying about started side this last term. But I
Speaker 1: do think that this is part of a broader pattern
Speaker 1: where where the Court goes with regard to these precedents,
Speaker 1: it's going to be entirely a function of how comfortable
Speaker 1: the Chief Justice is overruling them. I think in this case,
Speaker 1: he just wasn't comfortable. Given this was four years ago,
Speaker 1: it was set a pretty dangerous precedent if the legislators
Speaker 1: could just wait for one new justice to start trying
Speaker 1: to force the Court to revisit its hands. So simp
Speaker 1: this is Dune an important battle in the abortion war,
Speaker 1: but I don't think either side is going to be
Speaker 1: fully satisfied, which the result of Machnic is just a
Speaker 1: portent of more and more devisive cases to come. This
Speaker 1: is being hailed by abortion rights advocates as a huge victory.
Speaker 1: Does it portend anything for Robert's votes in the future
Speaker 1: on cases involving abortion. I don't think so. I mean,
Speaker 1: I think it's a victory for abortion rights advocates in
Speaker 1: the sense that it wasn't a loss, But it's hard
Speaker 1: to imagine a much narrower opinion from the Chief, and
Speaker 1: it's hard to imagine a case that would have looked
Speaker 1: much less attractive to him as a way of scaling
Speaker 1: back the rights the Court has previously recognized. So you know,
Speaker 1: I don't think the Chief is going to feel bound
Speaker 1: by his vote or his opinions to side with abortion
Speaker 1: supporters in any future case. Indeed, I think he himself suggests,
Speaker 1: especially in a couple of footnotes in his opinion, ways
Speaker 1: in which other states that wanted to try to be
Speaker 1: a little more nuanced could try to impose similar restrictions
Speaker 1: as the ones that the Court struck down. That's why
Speaker 1: I think if it's a victory for abortion rights advocate,
Speaker 1: I think it's probably short term one, but still a
Speaker 1: victory compared to a defeat, which is why I think
Speaker 1: you're seeing any portrayed that way. This was painted as
Speaker 1: a vehicle for abortion opponents to use it as a
Speaker 1: step toward overturning Roe v. Wade. Is this decision then
Speaker 1: just to stumble in the road for them? I think so, June.
Speaker 1: I mean, I think for those whose goal is to
Speaker 1: get the court to read as it road, this was
Speaker 1: never going to be the case much of the court
Speaker 1: did it, And I'm not sure we know a whole
Speaker 1: lot more today about the lifelihood that the Court would
Speaker 1: read as it road, and we knew yesterday. You know,
Speaker 1: it's gonna have to be a different kind of law.
Speaker 1: That's a much more frontal assault on the edifice of Row,
Speaker 1: on the notion that a woman has a constitutional right
Speaker 1: to a pre viability abortion. We're seeing some of those
Speaker 1: challenges June, and some of these fetal heartbeat cases, for example,
Speaker 1: which are now probably gonna resume and light of the decisions.
Speaker 1: But I don't think we know a lot more now
Speaker 1: than we did about whether this current court with these
Speaker 1: justices will or will not. You know, a I buy
Speaker 1: uphold reaffirmed Row in a case in which that question
Speaker 1: is properly presented. Justice Stephen Brier, who also wrote the
Speaker 1: majority opinion in the Texas case, wrote the majority opinion here.
Speaker 1: Did he reiterate his reasoning in the Texas case or
Speaker 1: did he just follow precedent? No, I mean I think
Speaker 1: a lot of the plurality opinion by this Brier was
Speaker 1: very much not just reiterating him what he wrote for
Speaker 1: the majority four years ago in the hole in the
Speaker 1: health case, but also June, I think carefully trying to
Speaker 1: explain why that decision four years ago should control of
Speaker 1: this case, why the Louisiana law is not in any
Speaker 1: material way actually or legally different from the laws that
Speaker 1: the court throughout in Texas four years ago. And so
Speaker 1: I think for Briar, the key was to show why
Speaker 1: these cases are not dissimilar. And you know, I don't
Speaker 1: think Robert actually dis agreed with that. I think he
Speaker 1: just disagreed with the endorsements of the analysis from the
Speaker 1: earlier decision at Home and celt and I that's why
Speaker 1: he felt obliged and compelled to write separately. What was
Speaker 1: a thread running through the dissenting opinions opinions. What's interesting
Speaker 1: about this case is, you know, if you read the
Speaker 1: dissenting opinions, there's actually very little June about Rower Casey
Speaker 1: and a whole lot about standing. You know. I think
Speaker 1: for the dissenters, the grounds they were hoping this case
Speaker 1: would be resolved on was that the abortion providers June,
Speaker 1: medical Services, etcetera. Weren't proper parties to challenge louising Allow
Speaker 1: in the first place. That would have allowed the court
Speaker 1: to sidestep a major ruling on the substantiscope of the
Speaker 1: right to pursue a previability abortion, but of course that
Speaker 1: would have consequences all its own and making it much
Speaker 1: harder for courts to hear these kinds of cases going forward. So,
Speaker 1: you know, I think for the dissenters for Justice Thomas,
Speaker 1: Justice a leado Justice Courts from Kavanaugh, you know, they're
Speaker 1: at least stated opposition here was principally to the courts
Speaker 1: allowing this case to reach the merits at all. I
Speaker 1: suspect June that that no one will be surprised if,
Speaker 1: you know, were those merits to be properly before them,
Speaker 1: that just as hostile to them that you know, the
Speaker 1: descents may be focused on standing, but I think it's
Speaker 1: it's not hard to imagine that there are objections on
Speaker 1: the merits behind them as well. So during his confirmation hearings,
Speaker 1: Justice Kavanaugh was questioned again and again on Roe v. Wade,
Speaker 1: and he said he would follow precedent. Did he veer
Speaker 1: from that in this decision? I don't think so. I mean,
Speaker 1: Justice Kavanaugh wrote only a very short two page descent,
Speaker 1: although he joined large chunks of justice as much longer descent.
Speaker 1: You know, I think Justice Justice kavanaugh descent is a
Speaker 1: little bit cag and careful on exactly that point. He
Speaker 1: doesn't say a lot about Rower Casey. He really focuses
Speaker 1: on the procedural question of whether these planets had standing
Speaker 1: um and why he thinks this matter should have been
Speaker 1: remanded the trial court traditional facts finding on that question.
Speaker 1: But you know, I think folks are not going to
Speaker 1: have trouble reading the tea leaves. I mean, I think
Speaker 1: this is you know, signal and without necessarily staying that
Speaker 1: he's probably a reliable vote for the conservative in a
Speaker 1: case where the merits of an abortion restruction really aren't
Speaker 1: properly before the court. You know, I don't think it's
Speaker 1: directly inconsistent with anything he said during the confirmation process,
Speaker 1: but mass it certainly does him to be some writing
Speaker 1: on the wall. We've heard a lot about Justice Robert
Speaker 1: It's Justice Corse. Has Kevana been a reliable conservative vote
Speaker 1: during his first term here? I think for the most part.
Speaker 1: I mean, I think there's one or two cases June
Speaker 1: where you know, he's been on the What we might
Speaker 1: think about is the other side where he sided with
Speaker 1: the progressive um only one that comes to mind where
Speaker 1: he was decided him vote UM, and it wasn't an
Speaker 1: especially a major or contentious case. It was an anti
Speaker 1: trust case. Um. You know, I think he's probably been
Speaker 1: in some respects more reliable um in a smaller data
Speaker 1: set as a conservative vote than Justice Corset has been
Speaker 1: obviously Justice Course, it's you know, it's fresh off of
Speaker 1: the majority opinion he wrote in the LGBT discrimination case. Um.
Speaker 1: You know, so I think I think it's it's pretty
Speaker 1: clear that in Justice Kavanaugh, the Conservatives got what they
Speaker 1: were hoping for. Um. Whether that holds across a larger
Speaker 1: data set will see. But you know, I also think
Speaker 1: it's just also a sign of the times. June. You know,
Speaker 1: we had a thirty year period where we had a
Speaker 1: Supreme Court with you know, two very obvious swing justices
Speaker 1: Justice sandreday O'Connor, Justice Anthony Kennedy, where you could see
Speaker 1: these pretty profound shifts in majorities from one case to
Speaker 1: the next. That's not where we are now. We have
Speaker 1: a solid conservative majority, and results like the abortion case
Speaker 1: don't change that. I thinks they just show that there
Speaker 1: are at least some limits that even the solid conservative
Speaker 1: majority won't transgress. This was the third time in two
Speaker 1: weeks that Chief Justice John roberts disappointed Conservatives in a
Speaker 1: blockbuster opinion. Is he now the next Justice Kennedy? Oh?
Speaker 1: I think it's been clear June, since Justice Kavanaugh was
Speaker 1: confirmed to the Supreme Court that in most not all,
Speaker 1: but most of the high profile divisive partisans, you know,
Speaker 1: socially contentious cases before the Supreme Court, the departure of
Speaker 1: Justice Kennedy puts to Justice robertson in the middle. And
Speaker 1: I think you know, we're seeing that this term in
Speaker 1: phase um. It's not just his decisive vote today in
Speaker 1: the Louisian abortion case, not just his majority opinion in
Speaker 1: the Docker case. You know, it's also that he also
Speaker 1: joined Justice Corsage in the LGBT discrimination case. So you know,
Speaker 1: there are going to be outliers where it's not the
Speaker 1: Chief who's the swim vote. But I think you know,
Speaker 1: in these high profile cases, more often than not, yes,
Speaker 1: where there's a five to four majority, and it's you know,
Speaker 1: for the Conservatives who are dissenting, the one who will
Speaker 1: have been perceived to switch on side is the Chief Justice. June.
Speaker 1: I don't think that's because anything about the Chief has changed.
Speaker 1: I think that's because, you know, the Court itself has changed,
Speaker 1: and because the kinds of disputes the Court is taking
Speaker 1: are you know, increasingly gravitating towards ones where if any
Speaker 1: of those five justices are going to be a some
Speaker 1: client to side with the quote unquote conservative position, it's
Speaker 1: going to be John Roberts using this opinion and looking
Speaker 1: forward at some of the other opinions that are coming out,
Speaker 1: especially the decision on the subpoenas for Trump's financial records,
Speaker 1: Does this tell us anything about how Justice Roberts may
Speaker 1: vote in that. I really don't think so, you know,
Speaker 1: I don't think that this is any kind of broader
Speaker 1: shift or pattern in how the Chief Justice since about
Speaker 1: his job. You know, I think he's he's able to
Speaker 1: take different cases differently. I mean, you know, right after
Speaker 1: we got the abortion opinion this morning, we got the
Speaker 1: Chief justices majority opinion in the CFPP case, which was
Speaker 1: a very classically conservative separation of powers holding from him.
Speaker 1: So I don't think we should read anything broader into
Speaker 1: his votes in these cases other than the reality that
Speaker 1: he is now the swimming vote, and you know, June
Speaker 1: that could show up again. As early as you know
Speaker 1: the cases where there coming down on Tuesday or the
Speaker 1: rest of this week or next week. Um, you know,
Speaker 1: I don't think this is the last time this term
Speaker 1: that the chief is going to be the swing vote.
Speaker 1: I also don't think that you know the fact that
Speaker 1: he's the swing vote in some cases, in which cases
Speaker 1: it's most likely thanks for being on Bloomberg Laws, Steve.
Speaker 1: That's Stephen Vladick, professor at the University of Texas Law School.
Speaker 1: In a closely divided decision on Monday, the Supreme Court
Speaker 1: backed the president's power to fire the director of the
Speaker 1: Consumer Financial Protection Bureau, but stopped short of abolishing the
Speaker 1: agency altogether. Chief Justice John Roberts sided with the Conservatives
Speaker 1: in the five to four decision that found Congress went
Speaker 1: too far in trying to insulate the agency from political pressure,
Speaker 1: striking down a provision in the Don Frank Act that
Speaker 1: protected the director from being fired. Joining me is jail Fish,
Speaker 1: a professor of business law at the University of Pennsylvania
Speaker 1: Law School. This decision seemed to give some and take
Speaker 1: away some. It ruled that the CFPB is constitutional, but
Speaker 1: that its director can be fired with to have caused
Speaker 1: by the President. It's clearly a compromise, and you see
Speaker 1: that not so much in the majority opinion, but in
Speaker 1: the stridency of both Justice Thomas and Justice Kagan's opinions. They,
Speaker 1: I think, highlight how extreme a position the Court could
Speaker 1: have taken in either direction and chose not to. Chief
Speaker 1: Justice John Roberts wrote the majority opinion, what was his
Speaker 1: reasoning for coming to this decision? So, I think there
Speaker 1: are three components to this. I think first, and most importantly,
Speaker 1: the future of the modern administrative state. The breadth of
Speaker 1: the Court's reasoning could potentially affect the legitimacy not just
Speaker 1: of the CFPB, but a range of independent agencies, the FTC,
Speaker 1: the Federal Communications Commission, the Securities and Exchange Commission, the CFTC,
Speaker 1: So the Court had to be careful not to undermine
Speaker 1: the workings of those agencies. Second component, the Court I
Speaker 1: think was very concerned not to disrupt completely protection of
Speaker 1: consumers and consumer finance regulations. A broadly written decision that
Speaker 1: struck down the CFPB entirely would have left consumer protection
Speaker 1: in a range of areas completely undesignated. Right, other agencies
Speaker 1: don't have the manpower, don't have the bandwidths and in
Speaker 1: some cases don't have the statutory authority to pick up
Speaker 1: the flat. So the severability question, which seems like a
Speaker 1: kind of technical one, preserved the status quo and left
Speaker 1: the only issue the authority of the President to remove
Speaker 1: this head of the CFTB. That's a kind of narrow ruling.
Speaker 1: Third issue, the Court was, I think concerned about expansions
Speaker 1: of the administrative state and idea that we really need
Speaker 1: to be faithful to old cases, to history and to tradition,
Speaker 1: and that theme. You see a little bit of the
Speaker 1: majority opinion. You see that even more Injustice Thomas's partial descent,
Speaker 1: the idea that you know, really you need limiting principles here.
Speaker 1: And so although the opinion is narrow, it sets out
Speaker 1: some important limiting principles. So how far does this go
Speaker 1: towards conservatives movement to curb the administrative state? Not very
Speaker 1: far at all. The key distinguishing feature of the CFPB
Speaker 1: in the courts opinion is that it has a single director.
Speaker 1: That's unusual for administrative agencies. That's not the norm, and
Speaker 1: the language of the Court's opinion doesn't extend beyond that
Speaker 1: single director feature. So this makes the head of the
Speaker 1: CFTB sort of like a cabinet member who serves at
Speaker 1: the pleasure of the president. Yes, So does that mean
Speaker 1: that in order to make the CFBB more independent, Congress
Speaker 1: would have to pass legislation that gives it sort of
Speaker 1: a structure like other agencies where there are five directors
Speaker 1: or so and they alternate tenure. Well, that's one possible
Speaker 1: Congressional response. The Court's opinion is narrowly written, so it
Speaker 1: doesn't expressly say if Congress made this a multi member board.
Speaker 1: If Congress made this a bipartisan board, that would be
Speaker 1: enough that would fix the constitutionality. All the decision says
Speaker 1: is a single member isn't constitutional unless he's removable at
Speaker 1: will by the president. But it would seem that a
Speaker 1: multi member board that looks like the board of the
Speaker 1: other agencies that I refer to would pass constitutional muster
Speaker 1: or alternatively, would push the Court to graph with a
Speaker 1: much more broadly ranging analysis. Let's talk about the discent
Speaker 1: a little bit, because part of the dissent was Justice
Speaker 1: Kagan saying that this wipes out a measure of independence
Speaker 1: from political pressure. Do you agree with that? I absolutely do,
Speaker 1: and I think that independence from political pressure was a
Speaker 1: key concern of Congress in setting up the CFPB, and
Speaker 1: we've seen since its origin the CFPB has been the
Speaker 1: target of you know, massive political pressure. So you know,
Speaker 1: that's absolutely a concern. But interestingly enough, Congress insulated the
Speaker 1: CFPB in a number of ways. It isn't just the
Speaker 1: single director, at least under the statute not removable at
Speaker 1: will by the president. It's also financial independence, and the
Speaker 1: Court didn't seize on that. The Court mentions that, just
Speaker 1: Robert mentions that a couple of times in his opinions,
Speaker 1: but ultimately the only constitutional frailty that he identifies is
Speaker 1: the fact that there's a single director. So I think
Speaker 1: the message is that a degree of political installation is
Speaker 1: both still possible and constitutional. Now, Richard Cordray, who was
Speaker 1: the former director of the CFPB, wrote an op ed
Speaker 1: in The Washington Post saying this decision will actually help
Speaker 1: the bureau's enforcement work since the constitutional challenges are settled. Yeah,
Speaker 1: I definitely think that's true. Again, you know, the opinion
Speaker 1: is written in such a narrow way that it puts
Speaker 1: to rest a lot of the questions that have been
Speaker 1: percolating about the overall legitimacy of the CFPB and the
Speaker 1: degree of installation that's enjoys. So I think with those
Speaker 1: issues more or less off the table, UH, it can
Speaker 1: go about its business with a greater degree of latitude
Speaker 1: than at least you know, some of the officials may
Speaker 1: have felt they had. What is it about the CFPB
Speaker 1: that has had conservatives in an uproar since it was established? Well,
Speaker 1: if you think about kind of the politics of interest groups,
Speaker 1: the cfpbs mission is to defend an interest group, consumers
Speaker 1: that typically hasn't had an awful lot of political power
Speaker 1: at the expense of politically powerful groups banks, credit card
Speaker 1: companies and the like. And so I think that's been
Speaker 1: controversial from the beginning. The CFPB has also a rich
Speaker 1: cordre is you know, an example of this has had
Speaker 1: leaders who have taken aggressive positions, who have identified problems
Speaker 1: instead of worked really to bring strong reforms into place.
Speaker 1: Um they have uh sort of pioneered a lot of
Speaker 1: new regulatory approaches, a lot of satirical work testing consumers,
Speaker 1: um uh, trying to draw upon a broader base of
Speaker 1: fact finding in generating reforms. So, you know, they've stepped
Speaker 1: on a lot of toades. Senator Warren, who was fundamental
Speaker 1: in the establishment of the CFPB. It's sort of like
Speaker 1: her baby, people say. She tweeted that the Court just
Speaker 1: handed over more power to Wall Street's army of lawyers
Speaker 1: and lobbyists to push out a director who fights for
Speaker 1: the American people. It is her baby. But again, I
Speaker 1: think there was a lot of potential for the Supreme
Speaker 1: Court reasoning to be more expansive and to really cripple
Speaker 1: the CFPBS ability to function. And I think the opinion
Speaker 1: is written it's pretty hands off. Yes, giving the president
Speaker 1: the power to remove a sitting director at will obviously
Speaker 1: provides a degree of political accountability and reduces the agency's insulation.
Speaker 1: But it's a fairly modest limit in comparison to an
Speaker 1: opinion that went into some of the other constitutional challenges
Speaker 1: to the CFPBS legitimacy. Kathy Croninger is the head of
Speaker 1: the CFPB since Cordrey resigned. How has she been handling
Speaker 1: the agency? My sense is the CFPB has been run
Speaker 1: in exactly the way we might think of the ideal
Speaker 1: independent agency. It's not being sort of in the political spotlight.
Speaker 1: It's been doing its work in a lot of different areas.
Speaker 1: It's trying to rely on expertise and science and evidence
Speaker 1: rather than politics. I think those are all things that
Speaker 1: the CFTB or any administrative agency should be doing. Now.
Speaker 1: The irony here is that the Trump administration won this decision,
Speaker 1: but if Trump loses in November, it will allow the
Speaker 1: next president to remove Craninger and a point whoever he wants. Yes,
Speaker 1: And to a certain extent, to Justice Roberts is right,
Speaker 1: when you have a single director, it's kind of ironic
Speaker 1: to think that the president wouldn't have any power in
Speaker 1: choosing who that single director is for what might be
Speaker 1: the entire period of his or her administration. You know,
Speaker 1: that's one of the I think pragmatic differences between a
Speaker 1: single director agency and a multi member agency like the
Speaker 1: sec um for the CFTC. Every president has input in
Speaker 1: a multi member agency, whether or not the president can
Speaker 1: remove the entire or board or the commission. The president
Speaker 1: can nominate people, can sort of change the direction, can
Speaker 1: change the dialogue. So I think that level of input
Speaker 1: is probably valuable. And so I guess what I'm saying is,
Speaker 1: I'm not sure that Chief Justice Roberts is wrong to
Speaker 1: view a single director structure as presenting distinctive concerns. So
Speaker 1: now in this case it was Celia Law appealing. They've
Speaker 1: basically lost, haven't they, because the CFPP can go ahead
Speaker 1: with its enforcement actions. It looks like they can. There
Speaker 1: are a few technical issues that the lower court is
Speaker 1: going to have to resolve about exactly how the demand
Speaker 1: for information was authorized within the CFPP structure, But yes,
Speaker 1: it does look like they've lost. And presumably the CFPP,
Speaker 1: even if the existing demand were improper, could always renew
Speaker 1: the request. You talked about. Justice Thomas's dissent was his
Speaker 1: level of outrage. So there's been an ongoing debate and
Speaker 1: this has gone on for decades in administrative law and
Speaker 1: constitutional law about the legitimacy of the modern administrative state,
Speaker 1: whether you can really have administrative agencies they carry out
Speaker 1: the functions of not just the president, but Congress and
Speaker 1: the courts as well. And Justice Thomas takes this sort
Speaker 1: of conservative position that this expansion or this delegation of
Speaker 1: power is a legitimate that you have politically accountable branches,
Speaker 1: the presidents in Congress, and you can't escape that political
Speaker 1: accountability by moving their responsibilities, their policy making, their functions
Speaker 1: to an agency. Well how does Thomas suggest running the
Speaker 1: country without the help of agencies in the majority opinion
Speaker 1: is exactly that. It's like, who's going to run the
Speaker 1: country if we somehow write a broader opinion that suggests
Speaker 1: the whole administrative state is illegitimate, you can't really do that.
Speaker 1: You know, you can say the administrative state is legal,
Speaker 1: but as a policy matter, maybe we have too much installation,
Speaker 1: or maybe administrative agencies they exercise too much power and
Speaker 1: it's inappropriate, or they don't make good decisions or something
Speaker 1: like that. One of the things that's interesting about Justice
Speaker 1: Kagan's opinion as an academic, she was really embroiled in
Speaker 1: this debate. This is her area of expertise, and it's
Speaker 1: a very finely written opinion because it distinguishes the legal issues,
Speaker 1: the constitutional issues, from the prudential ones, from the policy debate.
Speaker 1: That's Jill Fish at the University of Pennsylvania Law School.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
Speaker 1: subscribe and listen to the show on Apple podcast, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brolso
Speaker 1: this is Bloomberg h