WEBVTT - Surprise Win for Abortion Rights At High Court 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio. 0:00:05.920 --> 0:00:08.239 It was one of the most closely watched cases of 0:00:08.280 --> 0:00:11.160 the Supreme Courts term, in one of the most divisive 0:00:11.280 --> 0:00:15.080 issues the country faces, and in a surprise reinforcement of 0:00:15.120 --> 0:00:18.759 abortion rights. The Court throughout a Louisiana law that would 0:00:18.760 --> 0:00:21.639 have left the state with only one abortion clinic in 0:00:21.680 --> 0:00:24.840 a five to four decision this week, Chief Justice John 0:00:24.960 --> 0:00:28.480 Roberts provided the crucial fifth vote, joining with the Courts 0:00:28.560 --> 0:00:32.640 liberals to invalidate the Louisiana law requiring clinic doctors to 0:00:32.720 --> 0:00:36.840 get privileges at a local hospital, a law almost identical 0:00:36.880 --> 0:00:39.919 to a Texas law the Court struck down in twenty sixteen. 0:00:40.360 --> 0:00:42.920 Perhaps the Chief gave a hint about his vote during 0:00:43.040 --> 0:00:45.920 oral arguments. You know, I understand the point that the 0:00:46.040 --> 0:00:50.840 impact of um the laws varies from state to state, 0:00:50.920 --> 0:00:54.800 But why do you look at each state differently if 0:00:54.840 --> 0:00:57.280 the benefits of the law they're not going to change 0:00:57.280 --> 0:00:59.959 from state to state. The decision was a huge setback 0:01:00.040 --> 0:01:03.280 for conservatives who had hoped a newly conservative court would 0:01:03.320 --> 0:01:06.920 uphold restrictions on abortion. Joining me is Stephen Vladick, a 0:01:06.959 --> 0:01:10.160 professor at the University of Texas Law School. The Chief 0:01:10.240 --> 0:01:14.200 Justice has never voted before on the side of abortion rights. 0:01:14.560 --> 0:01:18.360 Was this decision all about the Chief Justices vote? I 0:01:18.360 --> 0:01:20.600 think it was. I mean, I think he signaled that 0:01:20.640 --> 0:01:23.600 he was probably leaning in this direction last year when 0:01:23.640 --> 0:01:27.000 he joined the four more progressive justices to stay that 0:01:27.080 --> 0:01:30.160 the decision to leave the Louisiana law and hole. And 0:01:30.200 --> 0:01:33.320 you know, I think, much like his concurrent opinion last 0:01:33.400 --> 0:01:35.800 year and more versus Texas, this is a case where 0:01:35.840 --> 0:01:39.960 the Chief doesn't necessarily agree with the majority on the merits, 0:01:40.200 --> 0:01:43.479 but thinks that the lower courts were wrong to basically 0:01:43.560 --> 0:01:47.760 ignore or not basically apply the Court's own earlier precedents. 0:01:47.840 --> 0:01:50.600 So this is very much, I think an institutionalist decisions 0:01:50.640 --> 0:01:53.760 for the Chief, an institutionalist opinion. Explain how it's an 0:01:53.760 --> 0:01:56.640 institutionalist opinion. The Chief goes out of his way not 0:01:56.720 --> 0:01:59.720 to say that much about the merits and about whether 0:01:59.720 --> 0:02:03.000 he actually agrees with the majority, rather that most of 0:02:03.000 --> 0:02:05.760 the opinions about starry decisis and why he thinks the 0:02:05.800 --> 0:02:08.880 Supreme Court should follow the whole woman's health decision from 0:02:08.880 --> 0:02:10.959 four years ago. And I think that's very much the 0:02:11.040 --> 0:02:13.400 Chief day Am. You know, I am not a big 0:02:13.440 --> 0:02:17.280 fan of these abortion cases. I am generally sympathetic to 0:02:17.360 --> 0:02:21.440 state abortion restrictions. But here where the state of Louisiana 0:02:21.480 --> 0:02:24.480 basically passed the law that was in no material ways 0:02:24.480 --> 0:02:27.760 different from the one that we just struck down, I'm 0:02:27.800 --> 0:02:31.239 not gonna ignore the similarities just because I'm sympathetic to 0:02:31.280 --> 0:02:34.320 the results. And I think that's an important marker, not 0:02:34.400 --> 0:02:37.360 just for this decision, one that could be very important 0:02:37.400 --> 0:02:42.440 going forward, as he's increasingly clearly the median and most 0:02:42.480 --> 0:02:45.799 important vote on the Court in these high profile devices cases. 0:02:46.240 --> 0:02:50.280 We've discussed before how Justice Elena Kagan has been sort 0:02:50.320 --> 0:02:54.080 of harping on precedent. Is this the case she was 0:02:54.120 --> 0:02:56.960 looking towards? You know, I don't skim so June. I 0:02:56.960 --> 0:02:59.560 think that the president on started, you know, fidelity to 0:02:59.600 --> 0:03:02.679 President by Justice Kagan, by Justice Briar. I think it 0:03:02.800 --> 0:03:04.920 is very much about abortion. But I think the precedents 0:03:04.919 --> 0:03:08.000 they're much more worried about are the canonical ones. You know, 0:03:08.160 --> 0:03:11.440 Row from not sevent three casey from that two. The 0:03:11.480 --> 0:03:15.000 precedent the Court is upholding is a much newer one 0:03:15.040 --> 0:03:17.880 of much more recent vintage. I don't think that's necessarily 0:03:17.919 --> 0:03:20.760 the goal that the progressives had in mind when they 0:03:20.800 --> 0:03:23.520 started worrying about started side this last term. But I 0:03:23.560 --> 0:03:25.440 do think that this is part of a broader pattern 0:03:25.919 --> 0:03:29.320 where where the Court goes with regard to these precedents, 0:03:29.560 --> 0:03:32.840 it's going to be entirely a function of how comfortable 0:03:32.880 --> 0:03:35.960 the Chief Justice is overruling them. I think in this case, 0:03:36.000 --> 0:03:38.880 he just wasn't comfortable. Given this was four years ago, 0:03:39.160 --> 0:03:42.240 it was set a pretty dangerous precedent if the legislators 0:03:42.240 --> 0:03:45.280 could just wait for one new justice to start trying 0:03:45.280 --> 0:03:47.680 to force the Court to revisit its hands. So simp 0:03:47.800 --> 0:03:51.600 this is Dune an important battle in the abortion war, 0:03:51.720 --> 0:03:54.560 but I don't think either side is going to be 0:03:54.640 --> 0:03:57.200 fully satisfied, which the result of Machnic is just a 0:03:57.360 --> 0:04:01.360 portent of more and more devisive cases to come. This 0:04:01.440 --> 0:04:07.160 is being hailed by abortion rights advocates as a huge victory. 0:04:07.280 --> 0:04:11.800 Does it portend anything for Robert's votes in the future 0:04:11.960 --> 0:04:16.000 on cases involving abortion. I don't think so. I mean, 0:04:16.000 --> 0:04:19.520 I think it's a victory for abortion rights advocates in 0:04:19.560 --> 0:04:22.640 the sense that it wasn't a loss, But it's hard 0:04:22.680 --> 0:04:25.040 to imagine a much narrower opinion from the Chief, and 0:04:25.120 --> 0:04:28.039 it's hard to imagine a case that would have looked 0:04:28.160 --> 0:04:31.240 much less attractive to him as a way of scaling 0:04:31.320 --> 0:04:34.400 back the rights the Court has previously recognized. So you know, 0:04:34.440 --> 0:04:37.039 I don't think the Chief is going to feel bound 0:04:37.160 --> 0:04:40.240 by his vote or his opinions to side with abortion 0:04:40.279 --> 0:04:44.600 supporters in any future case. Indeed, I think he himself suggests, 0:04:44.720 --> 0:04:47.479 especially in a couple of footnotes in his opinion, ways 0:04:47.520 --> 0:04:49.640 in which other states that wanted to try to be 0:04:49.680 --> 0:04:53.680 a little more nuanced could try to impose similar restrictions 0:04:53.720 --> 0:04:55.880 as the ones that the Court struck down. That's why 0:04:55.920 --> 0:04:59.080 I think if it's a victory for abortion rights advocate, 0:04:59.160 --> 0:05:01.880 I think it's probably short term one, but still a 0:05:01.960 --> 0:05:03.840 victory compared to a defeat, which is why I think 0:05:04.000 --> 0:05:07.440 you're seeing any portrayed that way. This was painted as 0:05:08.000 --> 0:05:11.599 a vehicle for abortion opponents to use it as a 0:05:11.640 --> 0:05:15.760 step toward overturning Roe v. Wade. Is this decision then 0:05:15.800 --> 0:05:19.599 just to stumble in the road for them? I think so, June. 0:05:19.600 --> 0:05:21.880 I mean, I think for those whose goal is to 0:05:21.920 --> 0:05:23.599 get the court to read as it road, this was 0:05:23.680 --> 0:05:25.480 never going to be the case much of the court 0:05:25.560 --> 0:05:27.880 did it, And I'm not sure we know a whole 0:05:27.960 --> 0:05:31.040 lot more today about the lifelihood that the Court would 0:05:31.040 --> 0:05:32.960 read as it road, and we knew yesterday. You know, 0:05:33.000 --> 0:05:35.040 it's gonna have to be a different kind of law. 0:05:35.120 --> 0:05:38.640 That's a much more frontal assault on the edifice of Row, 0:05:38.800 --> 0:05:41.800 on the notion that a woman has a constitutional right 0:05:41.839 --> 0:05:45.000 to a pre viability abortion. We're seeing some of those 0:05:45.120 --> 0:05:48.240 challenges June, and some of these fetal heartbeat cases, for example, 0:05:48.240 --> 0:05:51.279 which are now probably gonna resume and light of the decisions. 0:05:51.279 --> 0:05:53.640 But I don't think we know a lot more now 0:05:53.720 --> 0:05:57.039 than we did about whether this current court with these 0:05:57.120 --> 0:06:00.479 justices will or will not. You know, a I buy 0:06:00.839 --> 0:06:03.919 uphold reaffirmed Row in a case in which that question 0:06:04.040 --> 0:06:07.719 is properly presented. Justice Stephen Brier, who also wrote the 0:06:07.760 --> 0:06:12.039 majority opinion in the Texas case, wrote the majority opinion here. 0:06:12.680 --> 0:06:16.440 Did he reiterate his reasoning in the Texas case or 0:06:16.480 --> 0:06:20.039 did he just follow precedent? No, I mean I think 0:06:20.080 --> 0:06:22.880 a lot of the plurality opinion by this Brier was 0:06:23.000 --> 0:06:25.520 very much not just reiterating him what he wrote for 0:06:25.560 --> 0:06:27.400 the majority four years ago in the hole in the 0:06:27.440 --> 0:06:30.039 health case, but also June, I think carefully trying to 0:06:30.080 --> 0:06:34.160 explain why that decision four years ago should control of 0:06:34.240 --> 0:06:37.160 this case, why the Louisiana law is not in any 0:06:37.200 --> 0:06:40.960 material way actually or legally different from the laws that 0:06:41.040 --> 0:06:43.560 the court throughout in Texas four years ago. And so 0:06:43.600 --> 0:06:45.599 I think for Briar, the key was to show why 0:06:45.640 --> 0:06:48.800 these cases are not dissimilar. And you know, I don't 0:06:48.800 --> 0:06:51.280 think Robert actually dis agreed with that. I think he 0:06:51.360 --> 0:06:54.719 just disagreed with the endorsements of the analysis from the 0:06:54.720 --> 0:06:56.719 earlier decision at Home and celt and I that's why 0:06:56.720 --> 0:06:59.880 he felt obliged and compelled to write separately. What was 0:07:00.040 --> 0:07:05.440 a thread running through the dissenting opinions opinions. What's interesting 0:07:05.440 --> 0:07:07.440 about this case is, you know, if you read the 0:07:07.440 --> 0:07:11.560 dissenting opinions, there's actually very little June about Rower Casey 0:07:11.600 --> 0:07:13.520 and a whole lot about standing. You know. I think 0:07:13.600 --> 0:07:16.280 for the dissenters, the grounds they were hoping this case 0:07:16.320 --> 0:07:19.600 would be resolved on was that the abortion providers June, 0:07:19.600 --> 0:07:23.280 medical Services, etcetera. Weren't proper parties to challenge louising Allow 0:07:23.320 --> 0:07:25.320 in the first place. That would have allowed the court 0:07:25.400 --> 0:07:29.880 to sidestep a major ruling on the substantiscope of the 0:07:30.000 --> 0:07:32.680 right to pursue a previability abortion, but of course that 0:07:32.720 --> 0:07:35.400 would have consequences all its own and making it much 0:07:35.440 --> 0:07:38.680 harder for courts to hear these kinds of cases going forward. So, 0:07:39.000 --> 0:07:42.280 you know, I think for the dissenters for Justice Thomas, 0:07:42.360 --> 0:07:45.920 Justice a leado Justice Courts from Kavanaugh, you know, they're 0:07:46.000 --> 0:07:50.160 at least stated opposition here was principally to the courts 0:07:50.200 --> 0:07:52.800 allowing this case to reach the merits at all. I 0:07:53.120 --> 0:07:56.560 suspect June that that no one will be surprised if, 0:07:56.640 --> 0:07:59.400 you know, were those merits to be properly before them, 0:07:59.720 --> 0:08:01.720 that just as hostile to them that you know, the 0:08:01.800 --> 0:08:04.000 descents may be focused on standing, but I think it's 0:08:04.000 --> 0:08:06.520 it's not hard to imagine that there are objections on 0:08:06.560 --> 0:08:10.840 the merits behind them as well. So during his confirmation hearings, 0:08:10.880 --> 0:08:15.440 Justice Kavanaugh was questioned again and again on Roe v. Wade, 0:08:15.560 --> 0:08:19.000 and he said he would follow precedent. Did he veer 0:08:19.080 --> 0:08:22.440 from that in this decision? I don't think so. I mean, 0:08:22.520 --> 0:08:25.119 Justice Kavanaugh wrote only a very short two page descent, 0:08:25.560 --> 0:08:29.080 although he joined large chunks of justice as much longer descent. 0:08:29.320 --> 0:08:32.400 You know, I think Justice Justice kavanaugh descent is a 0:08:32.400 --> 0:08:35.800 little bit cag and careful on exactly that point. He 0:08:35.840 --> 0:08:38.880 doesn't say a lot about Rower Casey. He really focuses 0:08:38.920 --> 0:08:42.200 on the procedural question of whether these planets had standing 0:08:42.559 --> 0:08:44.440 um and why he thinks this matter should have been 0:08:44.440 --> 0:08:47.960 remanded the trial court traditional facts finding on that question. 0:08:48.520 --> 0:08:50.559 But you know, I think folks are not going to 0:08:50.640 --> 0:08:52.719 have trouble reading the tea leaves. I mean, I think 0:08:52.880 --> 0:08:56.960 this is you know, signal and without necessarily staying that 0:08:57.160 --> 0:09:00.720 he's probably a reliable vote for the conservative in a 0:09:00.800 --> 0:09:04.200 case where the merits of an abortion restruction really aren't 0:09:04.200 --> 0:09:06.480 properly before the court. You know, I don't think it's 0:09:06.520 --> 0:09:10.800 directly inconsistent with anything he said during the confirmation process, 0:09:10.840 --> 0:09:13.000 but mass it certainly does him to be some writing 0:09:13.040 --> 0:09:15.680 on the wall. We've heard a lot about Justice Robert 0:09:15.679 --> 0:09:20.240 It's Justice Corse. Has Kevana been a reliable conservative vote 0:09:21.040 --> 0:09:24.520 during his first term here? I think for the most part. 0:09:24.559 --> 0:09:27.000 I mean, I think there's one or two cases June 0:09:27.080 --> 0:09:29.840 where you know, he's been on the What we might 0:09:29.880 --> 0:09:31.760 think about is the other side where he sided with 0:09:31.800 --> 0:09:34.760 the progressive um only one that comes to mind where 0:09:34.840 --> 0:09:37.360 he was decided him vote UM, and it wasn't an 0:09:37.440 --> 0:09:40.000 especially a major or contentious case. It was an anti 0:09:40.040 --> 0:09:43.679 trust case. Um. You know, I think he's probably been 0:09:43.679 --> 0:09:47.400 in some respects more reliable um in a smaller data 0:09:47.440 --> 0:09:50.800 set as a conservative vote than Justice Corset has been 0:09:50.840 --> 0:09:52.960 obviously Justice Course, it's you know, it's fresh off of 0:09:53.000 --> 0:09:57.679 the majority opinion he wrote in the LGBT discrimination case. Um. 0:09:57.760 --> 0:09:59.720 You know, so I think I think it's it's pretty 0:09:59.720 --> 0:10:02.679 clear that in Justice Kavanaugh, the Conservatives got what they 0:10:02.679 --> 0:10:07.240 were hoping for. Um. Whether that holds across a larger 0:10:07.320 --> 0:10:09.480 data set will see. But you know, I also think 0:10:09.679 --> 0:10:11.960 it's just also a sign of the times. June. You know, 0:10:12.000 --> 0:10:14.200 we had a thirty year period where we had a 0:10:14.240 --> 0:10:18.360 Supreme Court with you know, two very obvious swing justices 0:10:18.440 --> 0:10:22.000 Justice sandreday O'Connor, Justice Anthony Kennedy, where you could see 0:10:22.040 --> 0:10:25.360 these pretty profound shifts in majorities from one case to 0:10:25.360 --> 0:10:27.160 the next. That's not where we are now. We have 0:10:27.200 --> 0:10:31.320 a solid conservative majority, and results like the abortion case 0:10:31.559 --> 0:10:33.800 don't change that. I thinks they just show that there 0:10:33.840 --> 0:10:37.040 are at least some limits that even the solid conservative 0:10:37.080 --> 0:10:40.679 majority won't transgress. This was the third time in two 0:10:40.760 --> 0:10:45.440 weeks that Chief Justice John roberts disappointed Conservatives in a 0:10:45.480 --> 0:10:50.280 blockbuster opinion. Is he now the next Justice Kennedy? Oh? 0:10:50.320 --> 0:10:53.400 I think it's been clear June, since Justice Kavanaugh was 0:10:53.480 --> 0:10:57.480 confirmed to the Supreme Court that in most not all, 0:10:57.559 --> 0:11:02.640 but most of the high profile divisive partisans, you know, 0:11:02.760 --> 0:11:06.680 socially contentious cases before the Supreme Court, the departure of 0:11:06.720 --> 0:11:09.080 Justice Kennedy puts to Justice robertson in the middle. And 0:11:09.120 --> 0:11:11.920 I think you know, we're seeing that this term in 0:11:12.120 --> 0:11:15.880 phase um. It's not just his decisive vote today in 0:11:15.920 --> 0:11:19.360 the Louisian abortion case, not just his majority opinion in 0:11:19.360 --> 0:11:21.800 the Docker case. You know, it's also that he also 0:11:21.920 --> 0:11:25.800 joined Justice Corsage in the LGBT discrimination case. So you know, 0:11:25.840 --> 0:11:27.599 there are going to be outliers where it's not the 0:11:27.679 --> 0:11:30.000 Chief who's the swim vote. But I think you know, 0:11:30.200 --> 0:11:33.760 in these high profile cases, more often than not, yes, 0:11:33.800 --> 0:11:36.440 where there's a five to four majority, and it's you know, 0:11:36.679 --> 0:11:40.120 for the Conservatives who are dissenting, the one who will 0:11:40.160 --> 0:11:43.360 have been perceived to switch on side is the Chief Justice. June. 0:11:43.360 --> 0:11:47.000 I don't think that's because anything about the Chief has changed. 0:11:47.040 --> 0:11:50.720 I think that's because, you know, the Court itself has changed, 0:11:50.760 --> 0:11:54.120 and because the kinds of disputes the Court is taking 0:11:54.800 --> 0:11:58.240 are you know, increasingly gravitating towards ones where if any 0:11:58.280 --> 0:12:00.200 of those five justices are going to be a some 0:12:00.320 --> 0:12:04.319 client to side with the quote unquote conservative position, it's 0:12:04.320 --> 0:12:07.760 going to be John Roberts using this opinion and looking 0:12:08.040 --> 0:12:10.760 forward at some of the other opinions that are coming out, 0:12:11.400 --> 0:12:15.000 especially the decision on the subpoenas for Trump's financial records, 0:12:15.000 --> 0:12:18.160 Does this tell us anything about how Justice Roberts may 0:12:18.240 --> 0:12:20.679 vote in that. I really don't think so, you know, 0:12:20.720 --> 0:12:23.040 I don't think that this is any kind of broader 0:12:23.520 --> 0:12:26.680 shift or pattern in how the Chief Justice since about 0:12:26.760 --> 0:12:29.199 his job. You know, I think he's he's able to 0:12:29.240 --> 0:12:31.680 take different cases differently. I mean, you know, right after 0:12:31.720 --> 0:12:33.800 we got the abortion opinion this morning, we got the 0:12:33.880 --> 0:12:37.520 Chief justices majority opinion in the CFPP case, which was 0:12:37.520 --> 0:12:41.360 a very classically conservative separation of powers holding from him. 0:12:41.400 --> 0:12:45.439 So I don't think we should read anything broader into 0:12:45.720 --> 0:12:48.440 his votes in these cases other than the reality that 0:12:48.440 --> 0:12:50.640 he is now the swimming vote, and you know, June 0:12:50.720 --> 0:12:53.000 that could show up again. As early as you know 0:12:53.000 --> 0:12:55.040 the cases where there coming down on Tuesday or the 0:12:55.040 --> 0:12:57.680 rest of this week or next week. Um, you know, 0:12:57.840 --> 0:13:00.280 I don't think this is the last time this term 0:13:00.320 --> 0:13:01.840 that the chief is going to be the swing vote. 0:13:01.840 --> 0:13:04.160 I also don't think that you know the fact that 0:13:04.200 --> 0:13:07.360 he's the swing vote in some cases, in which cases 0:13:07.760 --> 0:13:10.920 it's most likely thanks for being on Bloomberg Laws, Steve. 0:13:11.200 --> 0:13:14.640 That's Stephen Vladick, professor at the University of Texas Law School. 0:13:17.240 --> 0:13:20.439 In a closely divided decision on Monday, the Supreme Court 0:13:20.559 --> 0:13:23.240 backed the president's power to fire the director of the 0:13:23.240 --> 0:13:27.320 Consumer Financial Protection Bureau, but stopped short of abolishing the 0:13:27.400 --> 0:13:32.000 agency altogether. Chief Justice John Roberts sided with the Conservatives 0:13:32.120 --> 0:13:35.000 in the five to four decision that found Congress went 0:13:35.080 --> 0:13:39.040 too far in trying to insulate the agency from political pressure, 0:13:39.400 --> 0:13:42.120 striking down a provision in the Don Frank Act that 0:13:42.200 --> 0:13:45.920 protected the director from being fired. Joining me is jail Fish, 0:13:45.960 --> 0:13:48.679 a professor of business law at the University of Pennsylvania 0:13:48.760 --> 0:13:53.440 Law School. This decision seemed to give some and take 0:13:53.440 --> 0:13:57.880 away some. It ruled that the CFPB is constitutional, but 0:13:57.960 --> 0:14:00.760 that its director can be fired with to have caused 0:14:00.760 --> 0:14:04.600 by the President. It's clearly a compromise, and you see 0:14:04.640 --> 0:14:07.760 that not so much in the majority opinion, but in 0:14:07.800 --> 0:14:13.960 the stridency of both Justice Thomas and Justice Kagan's opinions. They, 0:14:14.000 --> 0:14:18.400 I think, highlight how extreme a position the Court could 0:14:18.400 --> 0:14:21.920 have taken in either direction and chose not to. Chief 0:14:21.920 --> 0:14:24.760 Justice John Roberts wrote the majority opinion, what was his 0:14:24.960 --> 0:14:28.320 reasoning for coming to this decision? So, I think there 0:14:28.320 --> 0:14:33.040 are three components to this. I think first, and most importantly, 0:14:34.000 --> 0:14:38.840 the future of the modern administrative state. The breadth of 0:14:38.880 --> 0:14:43.560 the Court's reasoning could potentially affect the legitimacy not just 0:14:43.760 --> 0:14:49.160 of the CFPB, but a range of independent agencies, the FTC, 0:14:49.960 --> 0:14:55.880 the Federal Communications Commission, the Securities and Exchange Commission, the CFTC, 0:14:56.600 --> 0:15:00.800 So the Court had to be careful not to undermine 0:15:01.040 --> 0:15:05.000 the workings of those agencies. Second component, the Court I 0:15:05.040 --> 0:15:12.000 think was very concerned not to disrupt completely protection of 0:15:12.440 --> 0:15:17.920 consumers and consumer finance regulations. A broadly written decision that 0:15:18.040 --> 0:15:23.200 struck down the CFPB entirely would have left consumer protection 0:15:23.320 --> 0:15:27.560 in a range of areas completely undesignated. Right, other agencies 0:15:27.640 --> 0:15:30.560 don't have the manpower, don't have the bandwidths and in 0:15:30.600 --> 0:15:34.040 some cases don't have the statutory authority to pick up 0:15:34.040 --> 0:15:37.680 the flat. So the severability question, which seems like a 0:15:37.760 --> 0:15:42.800 kind of technical one, preserved the status quo and left 0:15:42.840 --> 0:15:46.760 the only issue the authority of the President to remove 0:15:47.080 --> 0:15:49.880 this head of the CFTB. That's a kind of narrow ruling. 0:15:50.440 --> 0:15:57.440 Third issue, the Court was, I think concerned about expansions 0:15:57.560 --> 0:16:01.640 of the administrative state and idea that we really need 0:16:01.640 --> 0:16:07.960 to be faithful to old cases, to history and to tradition, 0:16:08.480 --> 0:16:10.560 and that theme. You see a little bit of the 0:16:10.560 --> 0:16:15.600 majority opinion. You see that even more Injustice Thomas's partial descent, 0:16:15.960 --> 0:16:20.080 the idea that you know, really you need limiting principles here. 0:16:20.480 --> 0:16:23.880 And so although the opinion is narrow, it sets out 0:16:23.920 --> 0:16:27.760 some important limiting principles. So how far does this go 0:16:27.920 --> 0:16:33.360 towards conservatives movement to curb the administrative state? Not very 0:16:33.360 --> 0:16:39.440 far at all. The key distinguishing feature of the CFPB 0:16:40.320 --> 0:16:44.240 in the courts opinion is that it has a single director. 0:16:45.000 --> 0:16:49.680 That's unusual for administrative agencies. That's not the norm, and 0:16:49.760 --> 0:16:53.840 the language of the Court's opinion doesn't extend beyond that 0:16:54.040 --> 0:16:57.400 single director feature. So this makes the head of the 0:16:57.480 --> 0:17:01.040 CFTB sort of like a cabinet member who serves at 0:17:01.040 --> 0:17:04.760 the pleasure of the president. Yes, So does that mean 0:17:04.840 --> 0:17:10.480 that in order to make the CFBB more independent, Congress 0:17:10.520 --> 0:17:14.560 would have to pass legislation that gives it sort of 0:17:14.560 --> 0:17:19.440 a structure like other agencies where there are five directors 0:17:19.520 --> 0:17:25.000 or so and they alternate tenure. Well, that's one possible 0:17:25.280 --> 0:17:30.040 Congressional response. The Court's opinion is narrowly written, so it 0:17:30.080 --> 0:17:34.760 doesn't expressly say if Congress made this a multi member board. 0:17:35.000 --> 0:17:38.200 If Congress made this a bipartisan board, that would be 0:17:38.359 --> 0:17:43.000 enough that would fix the constitutionality. All the decision says 0:17:43.160 --> 0:17:48.280 is a single member isn't constitutional unless he's removable at 0:17:48.280 --> 0:17:51.960 will by the president. But it would seem that a 0:17:52.080 --> 0:17:55.119 multi member board that looks like the board of the 0:17:55.160 --> 0:17:59.720 other agencies that I refer to would pass constitutional muster 0:18:00.280 --> 0:18:04.359 or alternatively, would push the Court to graph with a 0:18:04.520 --> 0:18:09.679 much more broadly ranging analysis. Let's talk about the discent 0:18:09.920 --> 0:18:12.840 a little bit, because part of the dissent was Justice 0:18:12.920 --> 0:18:17.199 Kagan saying that this wipes out a measure of independence 0:18:17.280 --> 0:18:22.160 from political pressure. Do you agree with that? I absolutely do, 0:18:22.800 --> 0:18:27.840 and I think that independence from political pressure was a 0:18:27.960 --> 0:18:32.479 key concern of Congress in setting up the CFPB, and 0:18:32.520 --> 0:18:36.639 we've seen since its origin the CFPB has been the 0:18:36.720 --> 0:18:40.560 target of you know, massive political pressure. So you know, 0:18:40.640 --> 0:18:46.399 that's absolutely a concern. But interestingly enough, Congress insulated the 0:18:46.520 --> 0:18:50.040 CFPB in a number of ways. It isn't just the 0:18:50.160 --> 0:18:53.679 single director, at least under the statute not removable at 0:18:53.720 --> 0:18:57.359 will by the president. It's also financial independence, and the 0:18:57.359 --> 0:19:00.119 Court didn't seize on that. The Court mentions that, just 0:19:00.320 --> 0:19:03.840 Robert mentions that a couple of times in his opinions, 0:19:03.840 --> 0:19:09.520 but ultimately the only constitutional frailty that he identifies is 0:19:09.560 --> 0:19:12.359 the fact that there's a single director. So I think 0:19:12.400 --> 0:19:16.760 the message is that a degree of political installation is 0:19:16.960 --> 0:19:22.240 both still possible and constitutional. Now, Richard Cordray, who was 0:19:22.280 --> 0:19:25.080 the former director of the CFPB, wrote an op ed 0:19:25.160 --> 0:19:28.800 in The Washington Post saying this decision will actually help 0:19:28.920 --> 0:19:35.400 the bureau's enforcement work since the constitutional challenges are settled. Yeah, 0:19:35.440 --> 0:19:39.960 I definitely think that's true. Again, you know, the opinion 0:19:40.240 --> 0:19:44.720 is written in such a narrow way that it puts 0:19:44.800 --> 0:19:47.879 to rest a lot of the questions that have been 0:19:47.960 --> 0:19:55.119 percolating about the overall legitimacy of the CFPB and the 0:19:55.200 --> 0:19:58.640 degree of installation that's enjoys. So I think with those 0:19:58.760 --> 0:20:02.000 issues more or less off the table, UH, it can 0:20:02.040 --> 0:20:05.960 go about its business with a greater degree of latitude 0:20:06.280 --> 0:20:08.280 than at least you know, some of the officials may 0:20:08.320 --> 0:20:11.600 have felt they had. What is it about the CFPB 0:20:11.920 --> 0:20:18.680 that has had conservatives in an uproar since it was established? Well, 0:20:19.200 --> 0:20:23.440 if you think about kind of the politics of interest groups, 0:20:23.960 --> 0:20:30.679 the cfpbs mission is to defend an interest group, consumers 0:20:30.800 --> 0:20:34.199 that typically hasn't had an awful lot of political power 0:20:35.240 --> 0:20:39.920 at the expense of politically powerful groups banks, credit card 0:20:40.000 --> 0:20:43.040 companies and the like. And so I think that's been 0:20:43.480 --> 0:20:49.000 controversial from the beginning. The CFPB has also a rich 0:20:49.080 --> 0:20:52.400 cordre is you know, an example of this has had 0:20:52.800 --> 0:20:57.679 leaders who have taken aggressive positions, who have identified problems 0:20:57.680 --> 0:21:01.760 instead of worked really to bring strong reforms into place. 0:21:02.400 --> 0:21:06.560 Um they have uh sort of pioneered a lot of 0:21:06.880 --> 0:21:12.400 new regulatory approaches, a lot of satirical work testing consumers, 0:21:12.520 --> 0:21:17.399 um uh, trying to draw upon a broader base of 0:21:17.520 --> 0:21:22.479 fact finding in generating reforms. So, you know, they've stepped 0:21:22.480 --> 0:21:25.560 on a lot of toades. Senator Warren, who was fundamental 0:21:25.880 --> 0:21:28.600 in the establishment of the CFPB. It's sort of like 0:21:28.640 --> 0:21:31.520 her baby, people say. She tweeted that the Court just 0:21:31.640 --> 0:21:34.880 handed over more power to Wall Street's army of lawyers 0:21:34.920 --> 0:21:37.560 and lobbyists to push out a director who fights for 0:21:37.600 --> 0:21:41.200 the American people. It is her baby. But again, I 0:21:41.240 --> 0:21:46.040 think there was a lot of potential for the Supreme 0:21:46.080 --> 0:21:52.040 Court reasoning to be more expansive and to really cripple 0:21:52.560 --> 0:21:56.800 the CFPBS ability to function. And I think the opinion 0:21:56.960 --> 0:22:01.120 is written it's pretty hands off. Yes, giving the president 0:22:01.240 --> 0:22:06.280 the power to remove a sitting director at will obviously 0:22:06.600 --> 0:22:13.160 provides a degree of political accountability and reduces the agency's insulation. 0:22:13.720 --> 0:22:19.000 But it's a fairly modest limit in comparison to an 0:22:19.000 --> 0:22:23.240 opinion that went into some of the other constitutional challenges 0:22:23.520 --> 0:22:28.159 to the CFPBS legitimacy. Kathy Croninger is the head of 0:22:28.200 --> 0:22:33.600 the CFPB since Cordrey resigned. How has she been handling 0:22:34.119 --> 0:22:37.800 the agency? My sense is the CFPB has been run 0:22:37.920 --> 0:22:42.400 in exactly the way we might think of the ideal 0:22:42.760 --> 0:22:48.199 independent agency. It's not being sort of in the political spotlight. 0:22:48.840 --> 0:22:52.000 It's been doing its work in a lot of different areas. 0:22:52.160 --> 0:22:57.720 It's trying to rely on expertise and science and evidence 0:22:57.840 --> 0:23:00.560 rather than politics. I think those are all things that 0:23:00.720 --> 0:23:04.560 the CFTB or any administrative agency should be doing. Now. 0:23:04.560 --> 0:23:09.440 The irony here is that the Trump administration won this decision, 0:23:09.960 --> 0:23:14.239 but if Trump loses in November, it will allow the 0:23:14.280 --> 0:23:20.840 next president to remove Craninger and a point whoever he wants. Yes, 0:23:21.000 --> 0:23:24.720 And to a certain extent, to Justice Roberts is right, 0:23:25.240 --> 0:23:28.840 when you have a single director, it's kind of ironic 0:23:29.000 --> 0:23:33.760 to think that the president wouldn't have any power in 0:23:34.240 --> 0:23:37.240 choosing who that single director is for what might be 0:23:37.400 --> 0:23:40.800 the entire period of his or her administration. You know, 0:23:40.880 --> 0:23:44.720 that's one of the I think pragmatic differences between a 0:23:44.840 --> 0:23:49.280 single director agency and a multi member agency like the 0:23:49.440 --> 0:23:55.359 sec um for the CFTC. Every president has input in 0:23:55.400 --> 0:23:58.719 a multi member agency, whether or not the president can 0:23:58.760 --> 0:24:02.560 remove the entire or board or the commission. The president 0:24:02.640 --> 0:24:05.480 can nominate people, can sort of change the direction, can 0:24:05.560 --> 0:24:09.040 change the dialogue. So I think that level of input 0:24:09.640 --> 0:24:12.560 is probably valuable. And so I guess what I'm saying is, 0:24:12.600 --> 0:24:15.960 I'm not sure that Chief Justice Roberts is wrong to 0:24:16.119 --> 0:24:22.199 view a single director structure as presenting distinctive concerns. So 0:24:22.240 --> 0:24:26.920 now in this case it was Celia Law appealing. They've 0:24:26.960 --> 0:24:30.960 basically lost, haven't they, because the CFPP can go ahead 0:24:30.960 --> 0:24:34.159 with its enforcement actions. It looks like they can. There 0:24:34.200 --> 0:24:36.960