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Speaker 1: Welcome to the Bloomberg Law Show. I'm June Grosso. I

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Speaker 1: had in this hour. The Supreme Court appears ready to

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Speaker 1: limit the powers of the sec. The justices deal with

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Speaker 1: a question of double jeopardy, Conservative appellate judges deal a

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Speaker 1: severe blow to the Voting Rights Act, and prosecutors are

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Speaker 1: using a rapper's lyrics against him in a racketeering trial.

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Speaker 2: This is Bloomberg Law with June Grusso from Bloomberg Radio.

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Speaker 3: Tuggar, I never killed anybody, but I got something's doing

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Speaker 3: about it. I got this grease on my bag, carry

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Speaker 3: like I'm move in the body. I told him to

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Speaker 3: shoot a hunt around like he's trying to move to

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Speaker 3: bout it. He would light them in the mountain and

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Speaker 3: just get the school. That's truancy about it.

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Speaker 1: That's Grammy's winning rapper Young Thugs twenty eighteen song called Anybody,

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Speaker 1: and prosecutors are going to use those lyrics in the

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Speaker 1: racketeering case against him, saying it's a reference to a

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Speaker 1: killing he ordered. Young Thug, whose real name is Jeffrey

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Speaker 1: Lamar Williams, is on trial with five other defendants in Atlanta, Georgia,

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Speaker 1: in a sprawling racketeering case in which the state accuses

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Speaker 1: him of leading a criminal street gang fronted by his

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Speaker 1: record label, a gang that committed a slew of violent crimes,

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Speaker 1: including murder. Lawyers for the influential rappers say he's innocent

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Speaker 1: of any crimes, that he's an artist with a successful

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Speaker 1: record label and his lyrics are just art. Joining me

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Speaker 1: is Michael Moore, the former US Attorney for the Middle

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Speaker 1: District of Georgia and a partner at Moore Hall. This

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Speaker 1: sort of sounds like a movie script because Georgia is

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Speaker 1: accusing this Grammy winning rapper of leading a street gang

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Speaker 1: that's fronted by his record label, and the crimes include

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Speaker 1: killings and shootings and carjackings.

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Speaker 4: Right, And it's easy, remember, to charge people with a crime,

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Speaker 4: and sometimes harder to prove that. And so the state

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Speaker 4: they'll have to come forward and put on some evidence

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Speaker 4: that the main defendant was really in control of what

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Speaker 4: was going on by other people on the street. I

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Speaker 4: think that gets harder to do if we just have

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Speaker 4: realistic conversations about what actually happens in the real world

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Speaker 4: in certain neighborhoods and areas of town, and you know,

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Speaker 4: that type of thing, and the prosecutors will have to

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Speaker 4: explain how that's not just what i'll call street level crime,

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Speaker 4: but was actually part of this larger umbrella that they've

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Speaker 4: charged as part of this Rico case.

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Speaker 1: Tell us about the Rico indictment of what the prosecution

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Speaker 1: is charging.

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Speaker 4: Rico really deals with racketeer influenced corrupt organizations, and if

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Speaker 4: you think about it, maybe in layman's terms, that's really

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Speaker 4: talking about things like organized crime. And so you saw

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Speaker 4: some reco cases that is going after these organizations the

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Speaker 4: mob basically where they would try to take down the

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Speaker 4: mob leader by essentially attributing the bad conduct of his

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Speaker 4: underlings to him. In other words, they didn't have to

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Speaker 4: find the mafia don pull of the trigger. They could

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Speaker 4: actually have a murder committed by somebody else, but they

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Speaker 4: could talk about this was a goal and an effort

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Speaker 4: of this criminal enterprise to either obtain money or property,

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Speaker 4: and that's how they went after the organization. Recently, you've

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Speaker 4: seen Rico case is used not only in drug conspiracy

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Speaker 4: type cases, but also there was one relatively well known

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Speaker 4: case in Atlanta where a Rico case was used involving

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Speaker 4: public schools and the cheating scandal. Some of those people.

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Speaker 4: I think indications may've got some of them reversed. That

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Speaker 4: somen certainly were convicted, And probably the most famous one

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Speaker 4: right now that we're hearing about is a Trump campaign.

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Speaker 4: But it's a prosecutor's dream really because it allows them

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Speaker 4: to basically paint everybody with the negative brush, and so

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Speaker 4: they can bring in a lot of evidence. They get

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Speaker 4: to attribute all the bad conduct of your Code Defendment

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Speaker 4: to you if you're a defendant, and it's more of

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Speaker 4: a I guess the case involving either directions to do wrong,

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Speaker 4: or involvement to do wrong, or sometimes just knowledge of

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Speaker 4: people who are doing wrong. All that evidence gets to

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Speaker 4: come in, and at the end of the day, the

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Speaker 4: prosecution asks the jury to convict you because you were

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Speaker 4: part of this organization. So it's not an uncontroversial statute.

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Speaker 4: Many people think that it allows prosecutors too much leeway

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Speaker 4: in bringing cases and that they tend most of the

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Speaker 4: time to be complex and involved and sometimes unruly. As

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Speaker 4: you're saying in this.

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Speaker 1: Case, what really interests me in this case is that

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Speaker 1: the judge has ruled that prosecutors can use his lyrics

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Speaker 1: as evidence of his involvement in the crimes. So they

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Speaker 1: can present seventeen sets of lyrics as evidence, provided they

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Speaker 1: can link their content to real world crimes that's been

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Speaker 1: done before. Is it controversial?

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Speaker 5: Though?

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Speaker 4: It is controversial, and I don't know, frankly, how I

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Speaker 4: feel about it. I think it's probably pushing the envelope

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Speaker 4: a little bit. And while it's not the first time,

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Speaker 4: so it's not really pressing a setting. There other cases

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Speaker 4: where this has happened. I do think it raises some

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Speaker 4: pretty unique questions about the First Amendment about you know,

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Speaker 4: artists creativity and then whether or not later that can

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Speaker 4: be used in a case. You can think about cases,

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Speaker 4: you know, woe be it for any country music star

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Speaker 4: to either be charged with drug driving or get a

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Speaker 4: divorce because that's going to come up. Does that mean

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Speaker 4: now that that's going to be effens in their case

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Speaker 4: that they talked about, you know, drinking too many drinks

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Speaker 4: or chasing too many paramoms or whatever the case may be,

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Speaker 4: or you know, smoking too much weed or you know whatever,

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Speaker 4: Is that now going to be the norm? And I

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Speaker 4: think those are the kind of lines where this type

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Speaker 4: of admission of evidence, of the specific type of evidence

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Speaker 4: that it gets blurry fright, Then you know. I was

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Speaker 4: thinking as I thought some about the case that if

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Speaker 4: you're defending a case like this, or you're just representing

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Speaker 4: a music artist, are you well advised to suggest to

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Speaker 4: them to just write a couple of songs with really

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Speaker 4: acceptable lyrics things like I love the police, I've never

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Speaker 4: commit a crime, I don't do drugs, and say, well,

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Speaker 4: here's evidence. Now, by good care, you know that's something

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Speaker 4: that I'll go into jury. That the people who are

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Speaker 4: prosecuting the case would say no. But somehow here this

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Speaker 4: evident is coming in. It limiting instructions to to a jury,

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Speaker 4: And that may be what the judge has in mind

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Speaker 4: when he talks about you have to link it up,

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Speaker 4: and this p may tell them, well, you can only

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Speaker 4: consider this and it looks like it went to an

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Speaker 4: actual crime. Those are often a little propylactic, enough about it.

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Speaker 1: So do you think that admitting these lyrics will be

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Speaker 1: an appellet issue.

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Speaker 4: I think there's no question. It's here, are we getting

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Speaker 4: our hands a little too tightly around the neck of

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Speaker 4: the First Amendment and the free speech of people off

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Speaker 4: for the sake of getting some small piece of evidence

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Speaker 4: in and the hopes that that might be what pushes

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Speaker 4: the jury over the edge to a conviction, as opposed

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Speaker 4: to looking for that evidence through witness testimony, co defendite testimony,

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Speaker 4: physical evidence, videotapes, whatever it is. And even though the

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Speaker 4: evidence has been used in other case, appellate courts are

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Speaker 4: known for shifting or revisiting issues.

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Speaker 1: Later on in the opening statements, the defense attorney told

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Speaker 1: you know his rags to riches story, and he sort

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Speaker 1: of changed the narrative. He said, THUG stands for truly

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Speaker 1: humbled under God, and why I sell the alleged gang

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Speaker 1: doesn't stand for young slime life. It stands for the

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Speaker 1: luxury clothing brand.

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Speaker 4: Well, you know. And sometimes lawyers have to sort of

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Speaker 4: dance with what brung them, if you will. If it's

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Speaker 4: this case, the lawyer may have been looking for some

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Speaker 4: way to make a distinction. I do think though, that

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Speaker 4: the ragged the richest story is the type of thing

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Speaker 4: that plays in what we talk about ambigoo, and that

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Speaker 4: is the lyrics. And is this artist writing about what

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Speaker 4: he saw as his life experience or an experience of

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Speaker 4: his friends, or something that he believed might be relatable

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Speaker 4: in his music genre to his audience, and it is

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Speaker 4: just something there as opposed to some type of cryptic

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Speaker 4: message about crimes that had taken place and that he

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Speaker 4: had been a part of. And so those will to

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Speaker 4: be things they have to ferret out a mindful those

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Speaker 4: how a lawyer might change the narrative. I mean, remember

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Speaker 4: that we've seen in famous cases.

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Speaker 6: A narrative change.

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Speaker 4: We've gone from a bloody crime scene photo to say,

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Speaker 4: means of somebody trying to pull on a leather glove

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Speaker 4: and an argument about it. If it doesn't fit, you

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Speaker 4: must have quit, you know. And so the lawyer may

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Speaker 4: try to change that narrative here in this case to

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Speaker 4: get the jury's attention on this is who he was,

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Speaker 4: This is how he's come up, This is why he

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Speaker 4: writes these lyrics, This is why he has this circle

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Speaker 4: of friends. This is him as a person, But he's

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Speaker 4: now a place where he's so successful that this idea

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Speaker 4: of sort of street crime at the level that's a legend.

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Speaker 4: The indictment is outside of what he does, and that's

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Speaker 4: why he may be talking about things like, you know,

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Speaker 4: designer clues as opposed to the gang name and such

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Speaker 4: as that.

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Speaker 1: I can't let you go without talking about the other

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Speaker 1: reco cause that Willis is bringing in the same courthouse.

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Speaker 1: I mean, do you think that Trump's lawyers will be

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Speaker 1: watching this? I mean the cases are so different.

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Speaker 4: It's different in the nature of the charges, but it's

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Speaker 4: not necessarily different in watching how prosecution things or a

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Speaker 4: prosecution team might think. You know, this isn't a case

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Speaker 4: where we're going to see the da rself, you know,

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Speaker 4: making an appearance every day in the court room, just

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Speaker 4: like we haven't seen in the Trump case. I mean,

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Speaker 4: she's got assistance in there, some different sets of lawyers'

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Speaker 4: handling different cases, but it can't give you a sense

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Speaker 4: of how the case is managed for sort of what

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Speaker 4: the rhythm and the flow of their charging decision and

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Speaker 4: their evidence presentation can mean if they're watching. So I'm

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Speaker 4: sure that the lawyers will have their own group doing

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Speaker 4: some type of recon on this case. And while they

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Speaker 4: won't be talking about things like murder or drug deliving

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Speaker 4: all that, they may be looking for arguments that the

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Speaker 4: state may make in response to objections that the defendance

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Speaker 4: team will make about keeping certain evidence out of the recocase,

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Speaker 4: and how the Rico Statute doesn't just give you carte

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Speaker 4: blanche to bring anything you want to into evidence. So

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Speaker 4: I do think that they have likely been studying the

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Speaker 4: past Reco case, maybe looking at closing arguments, opening statements,

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Speaker 4: how the jury was charged, things that came up like that,

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Speaker 4: and they'll probably be wanting to do the same thing here.

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Speaker 4: The cases are different, but they have the same risks,

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Speaker 4: and the state again has the same risk there, that is,

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Speaker 4: if they stretch too far, you know, if they try

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Speaker 4: to cast too wide and met, they risk missing the

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Speaker 4: big fish that they were after the start with. And

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Speaker 4: so we may see that in this case, and ultimately

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Speaker 4: that may be what happens in the Trump case. But

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Speaker 4: I think likely that case is so far down the

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Speaker 4: road that the lawyers have put in time to be

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Speaker 4: watching this, and that case will be tied up in

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Speaker 4: appellate course for some time. And we're not even sureing

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Speaker 4: the schedule of that trial.

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Speaker 1: Oh it's a pleasure, Thanks so much, Michael. That's Michael

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Speaker 1: Moore of Moore Hall coming up a question of double jeopardy.

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Speaker 1: I'm June Grosso and this is Bloomberg.

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Speaker 2: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 7: They're tough Louisiana, Liby, you shoot me, They'll give you

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Speaker 7: the guest cheaper.

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Speaker 8: No, they won't. It's called double jeopardy.

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Speaker 1: I learned a few things in prison. Neck I could

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Speaker 1: shoot you in the middle of Marty Grin, they can't touch.

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Speaker 2: Me, and the next law professor, I can assure you

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Speaker 2: she is right.

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Speaker 1: Amendments double jeopardy clause. We all know about it from

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Speaker 1: TV and the movies. So why did Georgia prosecutors want

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Speaker 1: to try Damien mckelrath a second time after a jury

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Speaker 1: had found him not guilty of the malice murder of

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Speaker 1: his adoptive mother by reason of insanity. Well, there's a twist.

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Speaker 1: The jury also found Michael Rath guilty, though mentally ill,

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Speaker 1: of felony murder and aggravated assault, and the Georgia Supreme

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Speaker 1: Court ruled that those inconsistent verdicts were illogical and threw

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Speaker 1: them out. But a majority of Supreme Court justices across

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Speaker 1: the ideological spectrum seem to agree that once a person

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Speaker 1: has been acquitted of a charge, the matter is closed.

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Speaker 1: Here's Justice Neil Gorsuch, and.

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Speaker 7: We do not ever talk about whether they make sense

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Speaker 7: to us. They may be products of compromise, they may

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Speaker 7: be inconsistent with verdicts on other counts, we don't question them.

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Speaker 7: And this is a first time this issue has arisen here.

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Speaker 7: Shouldn't that tell us?

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Speaker 1: Something joining me is former federal prosecutor George Newhouse of

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Speaker 1: Richard's Carrington. George tell us about these inconsistent verdicts.

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Speaker 6: So the basic facts are a delusional defendant believed that

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Speaker 6: his mother was trying to poison him and as a

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Speaker 6: result stabbed her to death, called nine to eleven fold

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Speaker 6: the dispatcher what he'd done and why he was right

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Speaker 6: to have done it. He went to trial on three counts,

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Speaker 6: by the way, and that's where this comes up to

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Speaker 6: the three separate charges. The first one under Georgia law

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Speaker 6: is called malice of murder, which is equivalent to a

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Speaker 6: first degree murdered, always the most serious charge, the one

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Speaker 6: that typically can carry in capital punishment. And then there

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Speaker 6: were two other counts, a felony murder rule, which means

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Speaker 6: that he killed someone in connection with committing a felony,

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Speaker 6: in this case, an aggravated assault. And so the third

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Speaker 6: charge was aggravated assault. And you might ask, why do

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Speaker 6: prosecutors bring three separate charges when one act occurred? A killing,

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Speaker 6: and they do that because sometimes they want to present

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Speaker 6: the jury with the option of evicting on a lesser

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Speaker 6: offense if they think they might have a problem with

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Speaker 6: the principal offense. And that's exactly what happened here. The

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Speaker 6: jury deliberated and the defense was he was insane, so

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Speaker 6: he lacked the criminal intent to commit murder, and the

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Speaker 6: jury deliberated and found him not guilty by reason of

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Speaker 6: insanity on the first count, saying he was crazy, But

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Speaker 6: on counts two and three, the felony murder and the

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Speaker 6: aggregated assault, the jury found that he was sane and

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Speaker 6: convicted him. The State of Georgia, unhappy with that, went

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Speaker 6: to the court and said, wow, we need a new

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Speaker 6: trial because these verdicts are logically inconsistent. You can't be

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Speaker 6: crazy on one count, the worst count, but saints on

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Speaker 6: the other counts, And that went all the way to

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Speaker 6: the Georgia Supreme Court, which agreed. The court said the

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Speaker 6: verdicts on these two different counts are logically repugnant, and

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Speaker 6: as a result it vacated the not guilty verdict and

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Speaker 6: told the state that they are free to retry him.

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Speaker 6: And that's what went up to the Supreme Court whether

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Speaker 6: there should be an exception to the double jeopardy clause,

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Speaker 6: and the exception would allow if the verdicts were logically inconsistent,

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Speaker 6: which jury verdicts are, by the way, frequently, they'd be

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Speaker 6: allowed to retry.

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Speaker 1: In this and Justice course, it seemed particularly fervent about

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Speaker 1: respecting the jury's verdict of acquittal.

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Speaker 6: The rule in this country for the last two hundred

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Speaker 6: and thirty years, Justice Corsage pointed out, is you only

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Speaker 6: get one chance, and if that jury verdict comes back

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Speaker 6: not guilty, there it can be no retrial. We don't

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Speaker 6: the court system does not second guests acquittals. So for example,

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Speaker 6: if the acquittal is based upon what's called jury nullification,

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Speaker 6: they simply ignore the evidence. Where that verdict is illogically

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Speaker 6: inconsistent between two different counts, the court system is not

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Speaker 6: allowed to second guess. Then what usually happens, probably happened

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Speaker 6: in this case was the inconsistent verdicts were product of compromise.

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Speaker 6: Justice Corsage addressed that they may be products of compromise.

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Speaker 6: They may be inconsistent with other verdicts. We Justice Courses said,

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Speaker 6: the court system does not question those verdicts, and that

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Speaker 6: has been the longest country for two hundred and thirty years.

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Speaker 6: Inconsistent verdicts happen all the time. I tried one of

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Speaker 6: the prosecutor and the judge said, well, we have two verdicts.

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Speaker 6: One is inconsistent with the other and the case is finished,

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Speaker 6: so double jeopardy apply.

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Speaker 1: Thanks George. That's George Newhouse of Richard's Carrington. The case

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Speaker 1: before the Supreme Court is about a challenge to the

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Speaker 1: power of the Securities and Exchange Commission to bring legal

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Speaker 1: actions in house, and it's another example of the conservative

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Speaker 1: justices target on the administrative state. During oral arguments, Chief

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Speaker 1: Justice John Roberts expressed his concerns about the growing power

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Speaker 1: of federal regulators.

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Speaker 5: The extent of impact of government agencies on daily life

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Speaker 5: today is enormously more significant than it was fifty years ago.

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Speaker 1: The Jocracy case could strip the SEC of a key

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Speaker 1: enforcement tool, and conservative justices like Brett Kavanaugh suggested that

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Speaker 1: people accused of fraud by the agency have a constitutional

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Speaker 1: right to have their cases decided by a jury in

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Speaker 1: federal court instead of by the SEC's in house administrative

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Speaker 1: law judges.

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Speaker 8: That seems problematic to say the government can deprive you

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Speaker 8: of your property, your money, substantial sums in a tribunal

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Speaker 8: that is at least perceived as not being impartial.

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Speaker 1: A change in the law by the court here could

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Speaker 1: have effects far beyond the sec because roughly two dozen agencies,

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Speaker 1: including the EPA, the FTC, and the CFTC have similar

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Speaker 1: enforcement schemes. As Liberal Justice Sonya Sotomayor pointed out to

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Speaker 1: Jarcasy's lawyer Michael McCulloch.

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Speaker 9: All of those agencies.

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Speaker 5: We'll have to go to court.

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Speaker 2: Correct, well, you are, all of their proceedings are now nullified,

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Speaker 2: onto your theory.

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Speaker 1: And Liberal Justice Elena Kagan said that in nineteen seventy

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Speaker 1: seven Supreme Court ruling Atlas Roofing established there was no

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Speaker 1: right to a jury trial here settling the issue in

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Speaker 1: the case that's settled.

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Speaker 7: Well, it's settled only to the extent no one's brought

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Speaker 7: it up and forced this issue since Atlas Roofing, in

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Speaker 7: his Carea's contact.

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Speaker 9: Nobody has had the you know, kutzpa to quote my

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Speaker 9: people to bring it up since Atlas Roofing.

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Speaker 1: My guest is Harold Krent, a professor at the Chicago

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Speaker 1: Kent College of Law. How this case involves George Jarcasey,

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Speaker 1: a former hedge fund manager and conservative radio host, and

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Speaker 1: the SEC found he had committed securities fraud in twenty

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Speaker 1: thirteen for misleading investors. How high are the stakes here?

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Speaker 10: The consequence of dramatic and briefer they are that almost

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Speaker 10: every particular individual or firm erformed agency, many at least,

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Speaker 10: would have the right to a jury trial and not

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Speaker 10: have to go before Administrate of tributal as it is

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Speaker 10: currently the case. That would be one fundamental change. Second

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Speaker 10: would be that all the Ministry of Law judges would

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Speaker 10: have to be subject to Outgill removal, which would undermine

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Speaker 10: the independence, ironically of these administrative determinations. And third, there

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Speaker 10: would be some kind reinvigoration of the non delegation doctrine,

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Speaker 10: which was limited Congress's ability to delegate issues for the

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Speaker 10: Ministry of Agencies to resolve. So very consequential case, the

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Speaker 10: stakes couldn't be higher now.

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Speaker 1: Jocasy contends that defendants in SEC cases have a constitutional

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Speaker 1: right to make their case to a federal jury, and

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Speaker 1: the oral arguments focused almost entirely on that one issue

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Speaker 1: on the Seventh Amendment, which provides that in suits at

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Speaker 1: common law, the right of trial by jury shall be preserved.

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Speaker 1: So tell us about the argument over the sete Amendment.

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Speaker 10: The question is how broad the Seventh Amendment should be

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Speaker 10: construed to extend. On the one hand, an individual has

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Speaker 10: a right to a jury trial, but the courts for

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Speaker 10: one hundred and fifty years, if not more, have said

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Speaker 10: that the jury trial right does not exist if there

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Speaker 10: is a public right involved, And so much of the

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Speaker 10: argument discussed from different perspectives. What is a public right?

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Speaker 10: And the Supreme Court held fifty years ago in a

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Speaker 10: case called Atlas Roofing that a public right would include

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Speaker 10: not only issues between individuals and the government directly, such

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Speaker 10: as taxes and claims like social Security benefits, but also

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Speaker 10: would include anything under a comprehensive congressional scheme that was

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Speaker 10: devised in order to protect the public. And therefore, in

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Speaker 10: light of this unique public nature, there is no right

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Speaker 10: to a jury trial, and that therefore the government can

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Speaker 10: recover fines even outside of a jury context. So this

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Speaker 10: is the precedent that the government relied upon, and it

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Speaker 10: has been cited in lots of cases since involving finding

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Speaker 10: immigration proceedings, in customs proceedings and so forth. So the

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Speaker 10: stakes are very high in this case, Justice.

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Speaker 1: Is Elena Kagan and Katanji Brown. Jackson said that the

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Speaker 1: Atlas ruling settled the issue here, So would the Court

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Speaker 1: have to overrule that nineteen seventy seven president in order

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Speaker 1: to rule for jocacy here?

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Speaker 10: Likely they would do so, at least in substance, if

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Speaker 10: not inform. I mean, Chief Justice Roberts himself said, well,

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Speaker 10: Atlas was fifty years ago, and we've seen a lot

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Speaker 10: of that's happened in the last fifty years, including the

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Speaker 10: increasing power of administrative agencies. So it's time for us

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Speaker 10: to take a good look back at it to see

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Speaker 10: if it makes sense today. And to be fair, some

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Speaker 10: of the more conservative justices, particularly Justice Barrett, was strogving

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Speaker 10: to figure out a limiting principle, how you could make

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Speaker 10: the determination of when the Seventh Amendment right would be triggered.

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Speaker 1: How do you think they're going to rule? Is it

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Speaker 1: going to be a six ' to three ruling? Whatever

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Speaker 1: it is.

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Speaker 10: Again, it's so difficult to judge from an our largument

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Speaker 10: how of course finally going to come out. But I

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Speaker 10: would guess that they will try to articulate a fuzzy line,

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Speaker 10: but a line that is more restrictive of Congress's ability

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Speaker 10: really to determine what kind of suits can be presented

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Speaker 10: before administered eivation suites. I doubt they will go as

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Speaker 10: far as to say that Congress can't allow subsuits to

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Speaker 10: go before, but they'll probably talk about Congress is limited

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Speaker 10: when the suit is either in all respects similar or

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Speaker 10: echoes or derivative of a common law right. So what

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Speaker 10: the Court we'll want to do is say, use the

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Speaker 10: touchstone of a common law right and say, if you

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Speaker 10: have the right to have a jury trial in a

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Speaker 10: similar case in seventeen ninety one a court to Westminster,

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Speaker 10: then Congress cannot effectively deprive you of that right by

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Speaker 10: calling it something else, by changing it slightly and vesting

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Speaker 10: it before an administrative agency.

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Speaker 6: That'd be my educated guess.

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Speaker 1: This is part of a Supreme Court term that could

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Speaker 1: have broad implications for federal regulators. The Justice has heard

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Speaker 1: arguments in October over whether the Consumer Financial Protection Bureau's

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Speaker 1: funding system is constitutional, and in January it will consider

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Speaker 1: whether to overturn the Chevron doctrine, which is a precedent

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Speaker 1: that gives agencies leeway when they interpret ambiguous congressional commands.

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Speaker 1: Why this focus and do you think federal regulators should

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Speaker 1: be afraid of what's going to happen this term.

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Speaker 10: Well, it's plain that the focus has arisen from a

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Speaker 10: deep distrust of the administrative state, and the Court has

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Speaker 10: signaled in a variety of cases that it wants to

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Speaker 10: pare down the size of government, and it thinks Congress

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Speaker 10: has gone too far in empowering administrative agencies with the

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Speaker 10: ability to investigate and to proceed against mostly companies who

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Speaker 10: violate the regulations that these agencies have promulgated in order

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Speaker 10: to enforce a Congressional mission. And so these cases, together

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Speaker 10: with the appointments cases or removal cases, is trying to

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Speaker 10: take another look at how broadly administry of agencies have

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Speaker 10: influence over our lives. But that being said, I think

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Speaker 10: that the Court is proceeding probably a little more slowly

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Speaker 10: now than it thought it might two years ago. My

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Speaker 10: guess is that they will take some steps to curve

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Speaker 10: the power of administrative agencies. But by ignoring the non

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Speaker 10: delegation argument, for instance, they have bycassed an opportunity that

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Speaker 10: really stick a stake in the heart of most administrative agencies.

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Speaker 6: Directly.

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Speaker 1: The justices are always saying things like that's up to Congress,

439
00:23:48,359 --> 00:23:52,160
Speaker 1: that's not up to us. Here you have Congress expanding

440
00:23:52,200 --> 00:23:56,080
Speaker 1: the power of administrative agencies over time, and the conservative

441
00:23:56,320 --> 00:24:00,840
Speaker 1: justices seem to be trying to give the Core's more

442
00:24:01,000 --> 00:24:04,840
Speaker 1: power at the expense of federal agencies supervised by the president.

443
00:24:05,440 --> 00:24:09,480
Speaker 1: Are they trying to take more power for themselves over

444
00:24:10,200 --> 00:24:10,600
Speaker 1: other part?

445
00:24:10,640 --> 00:24:13,040
Speaker 10: Absolutely, there's no question in my mind that the Court

446
00:24:13,160 --> 00:24:16,720
Speaker 10: is sort of redlining what congressmen do and can't do

447
00:24:16,960 --> 00:24:21,040
Speaker 10: in terms of trying to make provisions for running the government.

448
00:24:21,359 --> 00:24:24,000
Speaker 10: It's holding on to the power to be an umpire

449
00:24:24,240 --> 00:24:26,840
Speaker 10: about what it is appropriate and not appropriate in a

450
00:24:26,920 --> 00:24:30,160
Speaker 10: variety of contexts. I mean they've done that most notably

451
00:24:30,320 --> 00:24:32,800
Speaker 10: by saying that if something is a major question, we

452
00:24:33,080 --> 00:24:36,399
Speaker 10: are going to ourselves decide what's a major question and

453
00:24:36,480 --> 00:24:39,680
Speaker 10: then also decide whether we think Congress is clear enough

454
00:24:39,720 --> 00:24:42,360
Speaker 10: in terms of giving power to the agency that itself

455
00:24:42,440 --> 00:24:45,640
Speaker 10: is arrogating to the court the ability to decide how

456
00:24:45,800 --> 00:24:49,119
Speaker 10: far agencies can operate and how creative they can be

457
00:24:49,280 --> 00:24:51,880
Speaker 10: in trying to solve the many problems we face today

458
00:24:51,920 --> 00:24:54,440
Speaker 10: as a country. And so the judges are giving themselves

459
00:24:54,840 --> 00:24:58,399
Speaker 10: more power by becoming umpires in these various aspects of

460
00:24:58,440 --> 00:25:00,960
Speaker 10: the interaction between Congress the Ministry of State.

461
00:25:01,600 --> 00:25:04,240
Speaker 1: So we'll see how far they go in the decisions

462
00:25:04,280 --> 00:25:07,720
Speaker 1: in these three cases. Thanks so much, Hal. That's professor

463
00:25:07,800 --> 00:25:11,080
Speaker 1: Harold Krant of the Chicago Kent College of Law. Coming

464
00:25:11,200 --> 00:25:14,359
Speaker 1: up next. An appellate court deals a blow to voting

465
00:25:14,480 --> 00:25:17,639
Speaker 1: rights cases. I'm June Gross when you're listening to Bloomberg.

466
00:25:18,040 --> 00:25:21,240
Speaker 1: One of the most important pieces of civil rights legislation

467
00:25:21,440 --> 00:25:24,600
Speaker 1: in our history, the Voting Rights Act, was signed into

468
00:25:24,680 --> 00:25:28,680
Speaker 1: law in August of nineteen sixty five by President Lyndon Johnson.

469
00:25:29,200 --> 00:25:35,080
Speaker 4: Today is a triumph for freedom, as huge as any

470
00:25:35,240 --> 00:25:38,880
Speaker 4: victory that's ever been won on any battlefield.

471
00:25:39,359 --> 00:25:41,840
Speaker 1: But the Supreme Court gott it a core part of

472
00:25:41,920 --> 00:25:45,440
Speaker 1: that landmark law in twenty thirteen, and now are ruling

473
00:25:45,560 --> 00:25:49,240
Speaker 1: by the conservative Eighth Circuit Court of Appeals threatens to

474
00:25:49,320 --> 00:25:53,160
Speaker 1: deal a death blow to the Act. The Circuit dismissed

475
00:25:53,160 --> 00:25:57,159
Speaker 1: a lawsuit brought by black Arkansas voters who argued the

476
00:25:57,280 --> 00:26:02,480
Speaker 1: state's congressional map illegally discriminate against minority voters. In a

477
00:26:02,520 --> 00:26:06,240
Speaker 1: two to one decision, the judges ruled that private individuals

478
00:26:06,359 --> 00:26:11,240
Speaker 1: and groups like the ACLU and the NAACP cannot sue

479
00:26:11,400 --> 00:26:15,440
Speaker 1: to enforce the Act. That means only the Justice Department

480
00:26:15,720 --> 00:26:19,000
Speaker 1: can bring those suits. Joining me is elections law expert

481
00:26:19,160 --> 00:26:23,040
Speaker 1: Richard Brefalt, a professor at Columbia Law School. Rich tell

482
00:26:23,119 --> 00:26:26,240
Speaker 1: us what happened in twenty thirteen and what's left of

483
00:26:26,320 --> 00:26:29,040
Speaker 1: the Act before we get to what's happened to it recently.

484
00:26:29,480 --> 00:26:32,520
Speaker 11: So, the Lena Rights Act of sixty five has significally

485
00:26:32,600 --> 00:26:35,760
Speaker 11: made in eighty two had many proviiions, but two of

486
00:26:35,840 --> 00:26:39,240
Speaker 11: them really stood out. One was what's called Section five,

487
00:26:39,680 --> 00:26:43,200
Speaker 11: which had this concept of preclearance, and it basically said

488
00:26:43,440 --> 00:26:47,320
Speaker 11: that for certain problem jurisdictions, jurisdictions which have a serious

489
00:26:47,440 --> 00:26:50,760
Speaker 11: track record of violating voting rights as proven by certain

490
00:26:50,800 --> 00:26:54,280
Speaker 11: tests in the statute, when they change their voting laws,

491
00:26:54,680 --> 00:26:57,320
Speaker 11: that has to be pre approved, pre cleared as the

492
00:26:57,400 --> 00:27:00,000
Speaker 11: language the statue uses, either by the Department of Jobs

493
00:27:00,080 --> 00:27:02,919
Speaker 11: Justice or by a federal court for it comes into effect.

494
00:27:03,000 --> 00:27:05,200
Speaker 11: And it kind of reverses the presumption. It says for

495
00:27:05,320 --> 00:27:09,240
Speaker 11: those problem jurisdictions they have to prove that their new

496
00:27:09,520 --> 00:27:12,240
Speaker 11: law or their new change in voting practice or procedure

497
00:27:12,640 --> 00:27:15,920
Speaker 11: does not burden minority voting rights, so the burden is

498
00:27:15,960 --> 00:27:18,280
Speaker 11: actually on the data of the local government to show

499
00:27:18,320 --> 00:27:21,680
Speaker 11: that they're not clicting any harm. In twenty thirteen, the

500
00:27:21,800 --> 00:27:25,960
Speaker 11: Supreme Court struck down the part of the Statute that

501
00:27:26,119 --> 00:27:30,040
Speaker 11: provided the definition of the jurisdictions that were subject to

502
00:27:30,119 --> 00:27:33,600
Speaker 11: this special treatment. They were called cover jurisdictions, and the

503
00:27:33,720 --> 00:27:37,680
Speaker 11: Court said that Congress basically had failed to update the

504
00:27:37,840 --> 00:27:41,440
Speaker 11: formula that decides what a cover jurisdiction is. It was

505
00:27:41,600 --> 00:27:44,840
Speaker 11: last updated in the nineteen seventies, and the Court said

506
00:27:44,960 --> 00:27:48,040
Speaker 11: it simply cannot be right that that's the right formula

507
00:27:48,200 --> 00:27:51,440
Speaker 11: now in a statute which was most recently updated in

508
00:27:51,480 --> 00:27:54,320
Speaker 11: two thousand and six. So with that decision in twenty thirteen,

509
00:27:54,359 --> 00:27:58,399
Speaker 11: the Supreme Court eliminated preclearance. Complearance is technically on the books,

510
00:27:58,640 --> 00:28:01,480
Speaker 11: but it has nothing to operate on because the provision

511
00:28:01,560 --> 00:28:03,879
Speaker 11: that it works with, which is the definition of the

512
00:28:03,920 --> 00:28:07,600
Speaker 11: covered jurisdictions, is invalid. The other major provision of the

513
00:28:07,680 --> 00:28:10,240
Speaker 11: Act is called Section two, and that's the one that

514
00:28:10,400 --> 00:28:14,240
Speaker 11: basically is used to challenge voting rules around the country

515
00:28:14,480 --> 00:28:18,680
Speaker 11: which are either intentionally discriminatory or have a discriminatory impact

516
00:28:19,080 --> 00:28:21,440
Speaker 11: and really for the parts of the country that were

517
00:28:21,480 --> 00:28:24,760
Speaker 11: never under Section five. Section two is where the action was,

518
00:28:25,000 --> 00:28:27,439
Speaker 11: and since twenty thirteen now is for all of the country.

519
00:28:27,640 --> 00:28:30,399
Speaker 11: Section two is where the action is. Now in Section two,

520
00:28:30,480 --> 00:28:33,920
Speaker 11: the burden is on a plaintiff to show that a

521
00:28:34,040 --> 00:28:37,399
Speaker 11: state or local law is discriminatory, either in intent or

522
00:28:37,440 --> 00:28:40,560
Speaker 11: in effect against who's protected by the Act, which are

523
00:28:40,640 --> 00:28:44,760
Speaker 11: primarily based on race or language minority status. But nonetheless

524
00:28:44,760 --> 00:28:48,320
Speaker 11: Section two has been particularly after the twenty thirteen decision

525
00:28:48,320 --> 00:28:51,760
Speaker 11: that's known as Shelby County. Section two is clearly by

526
00:28:51,880 --> 00:28:55,760
Speaker 11: far the major provision of the Act for enforcing voting rights.

527
00:28:56,400 --> 00:28:59,120
Speaker 1: So now out of the blue are ruling by an

528
00:28:59,200 --> 00:29:04,080
Speaker 1: Eighth Circuit chanel of Republican appointees affirmed a ruling of

529
00:29:04,240 --> 00:29:09,120
Speaker 1: the District Court Judge Trump appointee Lee Rudowski that only

530
00:29:09,200 --> 00:29:12,880
Speaker 1: the US Attorney General can bring suits to vindicate voting

531
00:29:13,000 --> 00:29:16,360
Speaker 1: rights under section two. And I do mean out of

532
00:29:16,400 --> 00:29:20,080
Speaker 1: the blue because none of the parties to the lawsuit

533
00:29:20,320 --> 00:29:23,720
Speaker 1: raised this issue. Judge Rodowski came up with it on

534
00:29:23,840 --> 00:29:26,320
Speaker 1: his own. What's their basis for this ruling?

535
00:29:26,960 --> 00:29:30,840
Speaker 11: So their argument is that Section two, which makes all

536
00:29:30,920 --> 00:29:35,920
Speaker 11: sorts of voting practices and procedures illegal doesn't explicitly say

537
00:29:36,480 --> 00:29:40,440
Speaker 11: that people who are injured by these practices and procedures

538
00:29:40,840 --> 00:29:42,640
Speaker 11: have a right to bring a lawsuit. That's known as

539
00:29:42,640 --> 00:29:45,640
Speaker 11: a private right of action. The statute that basically declares

540
00:29:45,680 --> 00:29:48,800
Speaker 11: that various kinds of voting practices and procedures which are

541
00:29:48,840 --> 00:29:54,320
Speaker 11: discriminatory are illegal, but it doesn't explicitly literally say that

542
00:29:54,480 --> 00:29:57,960
Speaker 11: people who are injured by that can bring a lawsuit. Now,

543
00:29:58,680 --> 00:30:01,479
Speaker 11: since the time of the enact of this statute, especially

544
00:30:01,520 --> 00:30:05,080
Speaker 11: since it was significantly beefed up by Congress in reaction

545
00:30:05,160 --> 00:30:08,200
Speaker 11: to a Supreme Court decision in nineteen eighty two, this

546
00:30:08,320 --> 00:30:11,160
Speaker 11: statue has been used for private claims. I don't know,

547
00:30:11,240 --> 00:30:14,120
Speaker 11: it's hundreds of times, which have been adjudicated by courts,

548
00:30:14,320 --> 00:30:17,560
Speaker 11: including by the Supreme Court as recently as earlier this

549
00:30:17,720 --> 00:30:20,120
Speaker 11: year the Allen v. Milligan decision. So it has been

550
00:30:20,240 --> 00:30:23,880
Speaker 11: used many, many, many many times. But according to the

551
00:30:24,080 --> 00:30:28,040
Speaker 11: Eighth Circuit majority, the Supreme Court has never literally said

552
00:30:28,520 --> 00:30:31,120
Speaker 11: that there's a private right of action. They've just assumed it.

553
00:30:31,840 --> 00:30:35,160
Speaker 11: And in that Allen case, Justice Thomas in his descent

554
00:30:35,280 --> 00:30:37,640
Speaker 11: also raised this as a question about whether or not

555
00:30:37,720 --> 00:30:40,240
Speaker 11: there really is a private right of action. So I

556
00:30:40,360 --> 00:30:42,880
Speaker 11: think he in that case in some earlier cases may

557
00:30:42,920 --> 00:30:45,200
Speaker 11: have planted the seeds of doubt. But as I say,

558
00:30:45,320 --> 00:30:47,720
Speaker 11: until now, I think there have been hundreds of cases

559
00:30:47,840 --> 00:30:49,960
Speaker 11: in the district courts and the courts of appeals which

560
00:30:50,000 --> 00:30:52,600
Speaker 11: have assumed that there's a private right of action, and

561
00:30:52,760 --> 00:30:54,800
Speaker 11: at least a number of cases, not sure if it's

562
00:30:54,800 --> 00:30:57,440
Speaker 11: single digits or double digits of cases in the Supreme

563
00:30:57,520 --> 00:31:00,520
Speaker 11: Court which have assumed a private right of action. And

564
00:31:01,080 --> 00:31:04,440
Speaker 11: this is the first case that has literally said no,

565
00:31:04,760 --> 00:31:07,000
Speaker 11: we don't think it's there. And the fact that there

566
00:31:07,080 --> 00:31:10,840
Speaker 11: have been these many, many, many cases assuming that it's there,

567
00:31:11,240 --> 00:31:14,960
Speaker 11: we don't care about those because nobody ever literally worked

568
00:31:15,000 --> 00:31:17,600
Speaker 11: it through and held that they're a private.

569
00:31:17,400 --> 00:31:21,480
Speaker 1: Writer back and Justice Gorsich has also referred to whether

570
00:31:21,600 --> 00:31:25,719
Speaker 1: private plaintiffs could sue under Section two as quote an

571
00:31:25,840 --> 00:31:30,000
Speaker 1: open question. Wendy Wiser of the Brendan Center for Justice

572
00:31:30,400 --> 00:31:34,480
Speaker 1: has called these comments by the two justices bat signals

573
00:31:34,560 --> 00:31:38,560
Speaker 1: that they're open to considering novel theories to undermine voting rights.

574
00:31:39,040 --> 00:31:42,200
Speaker 1: And maybe the lower court judge who clerked for Justice

575
00:31:42,280 --> 00:31:46,520
Speaker 1: Thomas saw the bat signal. Now, are these judges claiming

576
00:31:46,600 --> 00:31:51,480
Speaker 1: that they're following precedent because this wasn't specifically addressed, even

577
00:31:51,560 --> 00:31:54,280
Speaker 1: though you know there's case after case after case after

578
00:31:54,400 --> 00:31:56,720
Speaker 1: case where private groups sue right.

579
00:31:56,800 --> 00:31:59,360
Speaker 11: I think I would rephrase that to say they claim

580
00:31:59,400 --> 00:32:02,280
Speaker 11: that they're fought following the text of the statute, the

581
00:32:02,360 --> 00:32:05,360
Speaker 11: text of the statute and nothing more, and that they're

582
00:32:05,440 --> 00:32:10,320
Speaker 11: not bound by any inconsistent precedent because there's no precedent

583
00:32:10,440 --> 00:32:13,600
Speaker 11: that literally says the statute does create a private right

584
00:32:13,640 --> 00:32:15,640
Speaker 11: of action. So I think that's how they would put it.

585
00:32:15,960 --> 00:32:18,920
Speaker 11: This is consistent with kind of the dominant approach to

586
00:32:19,080 --> 00:32:22,000
Speaker 11: statue of interpretation in the current Supreme Court in federal courts,

587
00:32:22,000 --> 00:32:24,640
Speaker 11: which is what's called textualism. We're just going to read

588
00:32:24,680 --> 00:32:29,120
Speaker 11: the statute and see what's there, and they don't see

589
00:32:29,680 --> 00:32:33,440
Speaker 11: this literal language there as opposed to seeing that the

590
00:32:33,560 --> 00:32:36,200
Speaker 11: structure of the statute, the purpose of the statue was

591
00:32:36,280 --> 00:32:39,760
Speaker 11: designed to enable people to protect their avoiding rights. Their view,

592
00:32:39,840 --> 00:32:42,760
Speaker 11: there is not a specific little bit of text that

593
00:32:42,920 --> 00:32:43,240
Speaker 11: says it.

594
00:32:43,760 --> 00:32:48,320
Speaker 1: It seems like a very narrow technical argument that ignores

595
00:32:48,440 --> 00:32:51,280
Speaker 1: everything except the words that are not there.

596
00:32:51,720 --> 00:32:54,320
Speaker 11: It's a very technical argument, but it is an argument

597
00:32:54,400 --> 00:32:57,720
Speaker 11: that I'd say resonates with some of the arguments that

598
00:32:57,880 --> 00:33:00,120
Speaker 11: have really persuaded the Stree Court in other areas not

599
00:33:00,240 --> 00:33:03,320
Speaker 11: voting rights. This idea of the private right of act

600
00:33:03,360 --> 00:33:05,480
Speaker 11: that I mean this has come up in other settings

601
00:33:05,520 --> 00:33:09,200
Speaker 11: where Congress passes a law that prohibits certain activity or

602
00:33:09,560 --> 00:33:13,440
Speaker 11: provides for certain benefits, but doesn't literally get people the

603
00:33:13,520 --> 00:33:16,040
Speaker 11: right to sue if those are denied. Maybe this option

604
00:33:16,240 --> 00:33:19,360
Speaker 11: is that the Attorney General will sue or thateral agency

605
00:33:19,400 --> 00:33:22,040
Speaker 11: will sue. And for a long time, the Supreme Court

606
00:33:22,160 --> 00:33:25,160
Speaker 11: was willing to imply private rights of actions as necessary

607
00:33:25,400 --> 00:33:28,760
Speaker 11: to vindicate the rights provide the benefits that Congress authorized.

608
00:33:28,960 --> 00:33:31,320
Speaker 11: In more recent years, the Supreme Court has cut back

609
00:33:31,400 --> 00:33:33,880
Speaker 11: on that and has been less inclined to find a

610
00:33:33,960 --> 00:33:37,360
Speaker 11: private right of action in a statute that doesn't literally

611
00:33:37,560 --> 00:33:37,880
Speaker 11: say that.

612
00:33:38,560 --> 00:33:42,520
Speaker 1: For decades, it's been private parties that have mainly sued

613
00:33:42,640 --> 00:33:47,080
Speaker 1: to enforce the Voting Rights Act. If this decision is affirmed,

614
00:33:47,600 --> 00:33:50,440
Speaker 1: it'll be up to the Justice Department to bring those suits.

615
00:33:51,080 --> 00:33:54,200
Speaker 1: Does it have enough people and resources to do so?

616
00:33:54,840 --> 00:33:57,000
Speaker 11: It's not clear that the Just Apartment have enough staff

617
00:33:57,080 --> 00:33:59,680
Speaker 11: to bring it. And then there might be Justice departments

618
00:33:59,720 --> 00:34:03,040
Speaker 11: that are not interested, that their philosophy is not inclined

619
00:34:03,040 --> 00:34:05,440
Speaker 11: to bring these cases. I can imagine that happening too.

620
00:34:05,840 --> 00:34:09,080
Speaker 11: So yeah, this is a real body blow to any

621
00:34:09,239 --> 00:34:13,080
Speaker 11: effectiveness of the Voting Rights Act. If people can't sue,

622
00:34:13,600 --> 00:34:16,840
Speaker 11: if they believe that there's a violation, the opportunities to

623
00:34:16,960 --> 00:34:19,480
Speaker 11: enforce these rights will be drastically diminished.

624
00:34:19,760 --> 00:34:21,960
Speaker 1: Certainly, there'll be an appeal of this. Thanks so much,

625
00:34:22,080 --> 00:34:25,640
Speaker 1: rich That's Professor Richard Ruffald of Columbia Law School, and

626
00:34:25,760 --> 00:34:27,879
Speaker 1: that's it for this edition of the Bloomberg Law Show.

627
00:34:28,280 --> 00:34:30,560
Speaker 1: Remember you can always get the latest legal news on

628
00:34:30,680 --> 00:34:34,920
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

629
00:34:35,120 --> 00:34:40,120
Speaker 1: and at www dot Bloomberg dot com, slash podcast, Slash Law,

630
00:34:40,560 --> 00:34:43,120
Speaker 1: and remember to tune into The Bloomberg Law Show every

631
00:34:43,200 --> 00:34:47,080
Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso,

632
00:34:47,239 --> 00:34:48,840
Speaker 1: and you're listening to Bloomberg