Speaker 1: Welcome to the Bloomberg Law Show. I'm June Grosso. I
Speaker 1: had in this hour. The Supreme Court appears ready to
Speaker 1: limit the powers of the sec. The justices deal with
Speaker 1: a question of double jeopardy, Conservative appellate judges deal a
Speaker 1: severe blow to the Voting Rights Act, and prosecutors are
Speaker 1: using a rapper's lyrics against him in a racketeering trial.
Speaker 2: This is Bloomberg Law with June Grusso from Bloomberg Radio.
Speaker 3: Tuggar, I never killed anybody, but I got something's doing
Speaker 3: about it. I got this grease on my bag, carry
Speaker 3: like I'm move in the body. I told him to
Speaker 3: shoot a hunt around like he's trying to move to
Speaker 3: bout it. He would light them in the mountain and
Speaker 3: just get the school. That's truancy about it.
Speaker 1: That's Grammy's winning rapper Young Thugs twenty eighteen song called Anybody,
Speaker 1: and prosecutors are going to use those lyrics in the
Speaker 1: racketeering case against him, saying it's a reference to a
Speaker 1: killing he ordered. Young Thug, whose real name is Jeffrey
Speaker 1: Lamar Williams, is on trial with five other defendants in Atlanta, Georgia,
Speaker 1: in a sprawling racketeering case in which the state accuses
Speaker 1: him of leading a criminal street gang fronted by his
Speaker 1: record label, a gang that committed a slew of violent crimes,
Speaker 1: including murder. Lawyers for the influential rappers say he's innocent
Speaker 1: of any crimes, that he's an artist with a successful
Speaker 1: record label and his lyrics are just art. Joining me
Speaker 1: is Michael Moore, the former US Attorney for the Middle
Speaker 1: District of Georgia and a partner at Moore Hall. This
Speaker 1: sort of sounds like a movie script because Georgia is
Speaker 1: accusing this Grammy winning rapper of leading a street gang
Speaker 1: that's fronted by his record label, and the crimes include
Speaker 1: killings and shootings and carjackings.
Speaker 4: Right, And it's easy, remember, to charge people with a crime,
Speaker 4: and sometimes harder to prove that. And so the state
Speaker 4: they'll have to come forward and put on some evidence
Speaker 4: that the main defendant was really in control of what
Speaker 4: was going on by other people on the street. I
Speaker 4: think that gets harder to do if we just have
Speaker 4: realistic conversations about what actually happens in the real world
Speaker 4: in certain neighborhoods and areas of town, and you know,
Speaker 4: that type of thing, and the prosecutors will have to
Speaker 4: explain how that's not just what i'll call street level crime,
Speaker 4: but was actually part of this larger umbrella that they've
Speaker 4: charged as part of this Rico case.
Speaker 1: Tell us about the Rico indictment of what the prosecution
Speaker 1: is charging.
Speaker 4: Rico really deals with racketeer influenced corrupt organizations, and if
Speaker 4: you think about it, maybe in layman's terms, that's really
Speaker 4: talking about things like organized crime. And so you saw
Speaker 4: some reco cases that is going after these organizations the
Speaker 4: mob basically where they would try to take down the
Speaker 4: mob leader by essentially attributing the bad conduct of his
Speaker 4: underlings to him. In other words, they didn't have to
Speaker 4: find the mafia don pull of the trigger. They could
Speaker 4: actually have a murder committed by somebody else, but they
Speaker 4: could talk about this was a goal and an effort
Speaker 4: of this criminal enterprise to either obtain money or property,
Speaker 4: and that's how they went after the organization. Recently, you've
Speaker 4: seen Rico case is used not only in drug conspiracy
Speaker 4: type cases, but also there was one relatively well known
Speaker 4: case in Atlanta where a Rico case was used involving
Speaker 4: public schools and the cheating scandal. Some of those people.
Speaker 4: I think indications may've got some of them reversed. That
Speaker 4: somen certainly were convicted, And probably the most famous one
Speaker 4: right now that we're hearing about is a Trump campaign.
Speaker 4: But it's a prosecutor's dream really because it allows them
Speaker 4: to basically paint everybody with the negative brush, and so
Speaker 4: they can bring in a lot of evidence. They get
Speaker 4: to attribute all the bad conduct of your Code Defendment
Speaker 4: to you if you're a defendant, and it's more of
Speaker 4: a I guess the case involving either directions to do wrong,
Speaker 4: or involvement to do wrong, or sometimes just knowledge of
Speaker 4: people who are doing wrong. All that evidence gets to
Speaker 4: come in, and at the end of the day, the
Speaker 4: prosecution asks the jury to convict you because you were
Speaker 4: part of this organization. So it's not an uncontroversial statute.
Speaker 4: Many people think that it allows prosecutors too much leeway
Speaker 4: in bringing cases and that they tend most of the
Speaker 4: time to be complex and involved and sometimes unruly. As
Speaker 4: you're saying in this.
Speaker 1: Case, what really interests me in this case is that
Speaker 1: the judge has ruled that prosecutors can use his lyrics
Speaker 1: as evidence of his involvement in the crimes. So they
Speaker 1: can present seventeen sets of lyrics as evidence, provided they
Speaker 1: can link their content to real world crimes that's been
Speaker 1: done before. Is it controversial?
Speaker 5: Though?
Speaker 4: It is controversial, and I don't know, frankly, how I
Speaker 4: feel about it. I think it's probably pushing the envelope
Speaker 4: a little bit. And while it's not the first time,
Speaker 4: so it's not really pressing a setting. There other cases
Speaker 4: where this has happened. I do think it raises some
Speaker 4: pretty unique questions about the First Amendment about you know,
Speaker 4: artists creativity and then whether or not later that can
Speaker 4: be used in a case. You can think about cases,
Speaker 4: you know, woe be it for any country music star
Speaker 4: to either be charged with drug driving or get a
Speaker 4: divorce because that's going to come up. Does that mean
Speaker 4: now that that's going to be effens in their case
Speaker 4: that they talked about, you know, drinking too many drinks
Speaker 4: or chasing too many paramoms or whatever the case may be,
Speaker 4: or you know, smoking too much weed or you know whatever,
Speaker 4: Is that now going to be the norm? And I
Speaker 4: think those are the kind of lines where this type
Speaker 4: of admission of evidence, of the specific type of evidence
Speaker 4: that it gets blurry fright, Then you know. I was
Speaker 4: thinking as I thought some about the case that if
Speaker 4: you're defending a case like this, or you're just representing
Speaker 4: a music artist, are you well advised to suggest to
Speaker 4: them to just write a couple of songs with really
Speaker 4: acceptable lyrics things like I love the police, I've never
Speaker 4: commit a crime, I don't do drugs, and say, well,
Speaker 4: here's evidence. Now, by good care, you know that's something
Speaker 4: that I'll go into jury. That the people who are
Speaker 4: prosecuting the case would say no. But somehow here this
Speaker 4: evident is coming in. It limiting instructions to to a jury,
Speaker 4: And that may be what the judge has in mind
Speaker 4: when he talks about you have to link it up,
Speaker 4: and this p may tell them, well, you can only
Speaker 4: consider this and it looks like it went to an
Speaker 4: actual crime. Those are often a little propylactic, enough about it.
Speaker 1: So do you think that admitting these lyrics will be
Speaker 1: an appellet issue.
Speaker 4: I think there's no question. It's here, are we getting
Speaker 4: our hands a little too tightly around the neck of
Speaker 4: the First Amendment and the free speech of people off
Speaker 4: for the sake of getting some small piece of evidence
Speaker 4: in and the hopes that that might be what pushes
Speaker 4: the jury over the edge to a conviction, as opposed
Speaker 4: to looking for that evidence through witness testimony, co defendite testimony,
Speaker 4: physical evidence, videotapes, whatever it is. And even though the
Speaker 4: evidence has been used in other case, appellate courts are
Speaker 4: known for shifting or revisiting issues.
Speaker 1: Later on in the opening statements, the defense attorney told
Speaker 1: you know his rags to riches story, and he sort
Speaker 1: of changed the narrative. He said, THUG stands for truly
Speaker 1: humbled under God, and why I sell the alleged gang
Speaker 1: doesn't stand for young slime life. It stands for the
Speaker 1: luxury clothing brand.
Speaker 4: Well, you know. And sometimes lawyers have to sort of
Speaker 4: dance with what brung them, if you will. If it's
Speaker 4: this case, the lawyer may have been looking for some
Speaker 4: way to make a distinction. I do think though, that
Speaker 4: the ragged the richest story is the type of thing
Speaker 4: that plays in what we talk about ambigoo, and that
Speaker 4: is the lyrics. And is this artist writing about what
Speaker 4: he saw as his life experience or an experience of
Speaker 4: his friends, or something that he believed might be relatable
Speaker 4: in his music genre to his audience, and it is
Speaker 4: just something there as opposed to some type of cryptic
Speaker 4: message about crimes that had taken place and that he
Speaker 4: had been a part of. And so those will to
Speaker 4: be things they have to ferret out a mindful those
Speaker 4: how a lawyer might change the narrative. I mean, remember
Speaker 4: that we've seen in famous cases.
Speaker 6: A narrative change.
Speaker 4: We've gone from a bloody crime scene photo to say,
Speaker 4: means of somebody trying to pull on a leather glove
Speaker 4: and an argument about it. If it doesn't fit, you
Speaker 4: must have quit, you know. And so the lawyer may
Speaker 4: try to change that narrative here in this case to
Speaker 4: get the jury's attention on this is who he was,
Speaker 4: This is how he's come up, This is why he
Speaker 4: writes these lyrics, This is why he has this circle
Speaker 4: of friends. This is him as a person, But he's
Speaker 4: now a place where he's so successful that this idea
Speaker 4: of sort of street crime at the level that's a legend.
Speaker 4: The indictment is outside of what he does, and that's
Speaker 4: why he may be talking about things like, you know,
Speaker 4: designer clues as opposed to the gang name and such
Speaker 4: as that.
Speaker 1: I can't let you go without talking about the other
Speaker 1: reco cause that Willis is bringing in the same courthouse.
Speaker 1: I mean, do you think that Trump's lawyers will be
Speaker 1: watching this? I mean the cases are so different.
Speaker 4: It's different in the nature of the charges, but it's
Speaker 4: not necessarily different in watching how prosecution things or a
Speaker 4: prosecution team might think. You know, this isn't a case
Speaker 4: where we're going to see the da rself, you know,
Speaker 4: making an appearance every day in the court room, just
Speaker 4: like we haven't seen in the Trump case. I mean,
Speaker 4: she's got assistance in there, some different sets of lawyers'
Speaker 4: handling different cases, but it can't give you a sense
Speaker 4: of how the case is managed for sort of what
Speaker 4: the rhythm and the flow of their charging decision and
Speaker 4: their evidence presentation can mean if they're watching. So I'm
Speaker 4: sure that the lawyers will have their own group doing
Speaker 4: some type of recon on this case. And while they
Speaker 4: won't be talking about things like murder or drug deliving
Speaker 4: all that, they may be looking for arguments that the
Speaker 4: state may make in response to objections that the defendance
Speaker 4: team will make about keeping certain evidence out of the recocase,
Speaker 4: and how the Rico Statute doesn't just give you carte
Speaker 4: blanche to bring anything you want to into evidence. So
Speaker 4: I do think that they have likely been studying the
Speaker 4: past Reco case, maybe looking at closing arguments, opening statements,
Speaker 4: how the jury was charged, things that came up like that,
Speaker 4: and they'll probably be wanting to do the same thing here.
Speaker 4: The cases are different, but they have the same risks,
Speaker 4: and the state again has the same risk there, that is,
Speaker 4: if they stretch too far, you know, if they try
Speaker 4: to cast too wide and met, they risk missing the
Speaker 4: big fish that they were after the start with. And
Speaker 4: so we may see that in this case, and ultimately
Speaker 4: that may be what happens in the Trump case. But
Speaker 4: I think likely that case is so far down the
Speaker 4: road that the lawyers have put in time to be
Speaker 4: watching this, and that case will be tied up in
Speaker 4: appellate course for some time. And we're not even sureing
Speaker 4: the schedule of that trial.
Speaker 1: Oh it's a pleasure, Thanks so much, Michael. That's Michael
Speaker 1: Moore of Moore Hall coming up a question of double jeopardy.
Speaker 1: I'm June Grosso and this is Bloomberg.
Speaker 2: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 7: They're tough Louisiana, Liby, you shoot me, They'll give you
Speaker 7: the guest cheaper.
Speaker 8: No, they won't. It's called double jeopardy.
Speaker 1: I learned a few things in prison. Neck I could
Speaker 1: shoot you in the middle of Marty Grin, they can't touch.
Speaker 2: Me, and the next law professor, I can assure you
Speaker 2: she is right.
Speaker 1: Amendments double jeopardy clause. We all know about it from
Speaker 1: TV and the movies. So why did Georgia prosecutors want
Speaker 1: to try Damien mckelrath a second time after a jury
Speaker 1: had found him not guilty of the malice murder of
Speaker 1: his adoptive mother by reason of insanity. Well, there's a twist.
Speaker 1: The jury also found Michael Rath guilty, though mentally ill,
Speaker 1: of felony murder and aggravated assault, and the Georgia Supreme
Speaker 1: Court ruled that those inconsistent verdicts were illogical and threw
Speaker 1: them out. But a majority of Supreme Court justices across
Speaker 1: the ideological spectrum seem to agree that once a person
Speaker 1: has been acquitted of a charge, the matter is closed.
Speaker 1: Here's Justice Neil Gorsuch, and.
Speaker 7: We do not ever talk about whether they make sense
Speaker 7: to us. They may be products of compromise, they may
Speaker 7: be inconsistent with verdicts on other counts, we don't question them.
Speaker 7: And this is a first time this issue has arisen here.
Speaker 7: Shouldn't that tell us?
Speaker 1: Something joining me is former federal prosecutor George Newhouse of
Speaker 1: Richard's Carrington. George tell us about these inconsistent verdicts.
Speaker 6: So the basic facts are a delusional defendant believed that
Speaker 6: his mother was trying to poison him and as a
Speaker 6: result stabbed her to death, called nine to eleven fold
Speaker 6: the dispatcher what he'd done and why he was right
Speaker 6: to have done it. He went to trial on three counts,
Speaker 6: by the way, and that's where this comes up to
Speaker 6: the three separate charges. The first one under Georgia law
Speaker 6: is called malice of murder, which is equivalent to a
Speaker 6: first degree murdered, always the most serious charge, the one
Speaker 6: that typically can carry in capital punishment. And then there
Speaker 6: were two other counts, a felony murder rule, which means
Speaker 6: that he killed someone in connection with committing a felony,
Speaker 6: in this case, an aggravated assault. And so the third
Speaker 6: charge was aggravated assault. And you might ask, why do
Speaker 6: prosecutors bring three separate charges when one act occurred? A killing,
Speaker 6: and they do that because sometimes they want to present
Speaker 6: the jury with the option of evicting on a lesser
Speaker 6: offense if they think they might have a problem with
Speaker 6: the principal offense. And that's exactly what happened here. The
Speaker 6: jury deliberated and the defense was he was insane, so
Speaker 6: he lacked the criminal intent to commit murder, and the
Speaker 6: jury deliberated and found him not guilty by reason of
Speaker 6: insanity on the first count, saying he was crazy, But
Speaker 6: on counts two and three, the felony murder and the
Speaker 6: aggregated assault, the jury found that he was sane and
Speaker 6: convicted him. The State of Georgia, unhappy with that, went
Speaker 6: to the court and said, wow, we need a new
Speaker 6: trial because these verdicts are logically inconsistent. You can't be
Speaker 6: crazy on one count, the worst count, but saints on
Speaker 6: the other counts, And that went all the way to
Speaker 6: the Georgia Supreme Court, which agreed. The court said the
Speaker 6: verdicts on these two different counts are logically repugnant, and
Speaker 6: as a result it vacated the not guilty verdict and
Speaker 6: told the state that they are free to retry him.
Speaker 6: And that's what went up to the Supreme Court whether
Speaker 6: there should be an exception to the double jeopardy clause,
Speaker 6: and the exception would allow if the verdicts were logically inconsistent,
Speaker 6: which jury verdicts are, by the way, frequently, they'd be
Speaker 6: allowed to retry.
Speaker 1: In this and Justice course, it seemed particularly fervent about
Speaker 1: respecting the jury's verdict of acquittal.
Speaker 6: The rule in this country for the last two hundred
Speaker 6: and thirty years, Justice Corsage pointed out, is you only
Speaker 6: get one chance, and if that jury verdict comes back
Speaker 6: not guilty, there it can be no retrial. We don't
Speaker 6: the court system does not second guests acquittals. So for example,
Speaker 6: if the acquittal is based upon what's called jury nullification,
Speaker 6: they simply ignore the evidence. Where that verdict is illogically
Speaker 6: inconsistent between two different counts, the court system is not
Speaker 6: allowed to second guess. Then what usually happens, probably happened
Speaker 6: in this case was the inconsistent verdicts were product of compromise.
Speaker 6: Justice Corsage addressed that they may be products of compromise.
Speaker 6: They may be inconsistent with other verdicts. We Justice Courses said,
Speaker 6: the court system does not question those verdicts, and that
Speaker 6: has been the longest country for two hundred and thirty years.
Speaker 6: Inconsistent verdicts happen all the time. I tried one of
Speaker 6: the prosecutor and the judge said, well, we have two verdicts.
Speaker 6: One is inconsistent with the other and the case is finished,
Speaker 6: so double jeopardy apply.
Speaker 1: Thanks George. That's George Newhouse of Richard's Carrington. The case
Speaker 1: before the Supreme Court is about a challenge to the
Speaker 1: power of the Securities and Exchange Commission to bring legal
Speaker 1: actions in house, and it's another example of the conservative
Speaker 1: justices target on the administrative state. During oral arguments, Chief
Speaker 1: Justice John Roberts expressed his concerns about the growing power
Speaker 1: of federal regulators.
Speaker 5: The extent of impact of government agencies on daily life
Speaker 5: today is enormously more significant than it was fifty years ago.
Speaker 1: The Jocracy case could strip the SEC of a key
Speaker 1: enforcement tool, and conservative justices like Brett Kavanaugh suggested that
Speaker 1: people accused of fraud by the agency have a constitutional
Speaker 1: right to have their cases decided by a jury in
Speaker 1: federal court instead of by the SEC's in house administrative
Speaker 1: law judges.
Speaker 8: That seems problematic to say the government can deprive you
Speaker 8: of your property, your money, substantial sums in a tribunal
Speaker 8: that is at least perceived as not being impartial.
Speaker 1: A change in the law by the court here could
Speaker 1: have effects far beyond the sec because roughly two dozen agencies,
Speaker 1: including the EPA, the FTC, and the CFTC have similar
Speaker 1: enforcement schemes. As Liberal Justice Sonya Sotomayor pointed out to
Speaker 1: Jarcasy's lawyer Michael McCulloch.
Speaker 9: All of those agencies.
Speaker 5: We'll have to go to court.
Speaker 2: Correct, well, you are, all of their proceedings are now nullified,
Speaker 2: onto your theory.
Speaker 1: And Liberal Justice Elena Kagan said that in nineteen seventy
Speaker 1: seven Supreme Court ruling Atlas Roofing established there was no
Speaker 1: right to a jury trial here settling the issue in
Speaker 1: the case that's settled.
Speaker 7: Well, it's settled only to the extent no one's brought
Speaker 7: it up and forced this issue since Atlas Roofing, in
Speaker 7: his Carea's contact.
Speaker 9: Nobody has had the you know, kutzpa to quote my
Speaker 9: people to bring it up since Atlas Roofing.
Speaker 1: My guest is Harold Krent, a professor at the Chicago
Speaker 1: Kent College of Law. How this case involves George Jarcasey,
Speaker 1: a former hedge fund manager and conservative radio host, and
Speaker 1: the SEC found he had committed securities fraud in twenty
Speaker 1: thirteen for misleading investors. How high are the stakes here?
Speaker 10: The consequence of dramatic and briefer they are that almost
Speaker 10: every particular individual or firm erformed agency, many at least,
Speaker 10: would have the right to a jury trial and not
Speaker 10: have to go before Administrate of tributal as it is
Speaker 10: currently the case. That would be one fundamental change. Second
Speaker 10: would be that all the Ministry of Law judges would
Speaker 10: have to be subject to Outgill removal, which would undermine
Speaker 10: the independence, ironically of these administrative determinations. And third, there
Speaker 10: would be some kind reinvigoration of the non delegation doctrine,
Speaker 10: which was limited Congress's ability to delegate issues for the
Speaker 10: Ministry of Agencies to resolve. So very consequential case, the
Speaker 10: stakes couldn't be higher now.
Speaker 1: Jocasy contends that defendants in SEC cases have a constitutional
Speaker 1: right to make their case to a federal jury, and
Speaker 1: the oral arguments focused almost entirely on that one issue
Speaker 1: on the Seventh Amendment, which provides that in suits at
Speaker 1: common law, the right of trial by jury shall be preserved.
Speaker 1: So tell us about the argument over the sete Amendment.
Speaker 10: The question is how broad the Seventh Amendment should be
Speaker 10: construed to extend. On the one hand, an individual has
Speaker 10: a right to a jury trial, but the courts for
Speaker 10: one hundred and fifty years, if not more, have said
Speaker 10: that the jury trial right does not exist if there
Speaker 10: is a public right involved, And so much of the
Speaker 10: argument discussed from different perspectives. What is a public right?
Speaker 10: And the Supreme Court held fifty years ago in a
Speaker 10: case called Atlas Roofing that a public right would include
Speaker 10: not only issues between individuals and the government directly, such
Speaker 10: as taxes and claims like social Security benefits, but also
Speaker 10: would include anything under a comprehensive congressional scheme that was
Speaker 10: devised in order to protect the public. And therefore, in
Speaker 10: light of this unique public nature, there is no right
Speaker 10: to a jury trial, and that therefore the government can
Speaker 10: recover fines even outside of a jury context. So this
Speaker 10: is the precedent that the government relied upon, and it
Speaker 10: has been cited in lots of cases since involving finding
Speaker 10: immigration proceedings, in customs proceedings and so forth. So the
Speaker 10: stakes are very high in this case, Justice.
Speaker 1: Is Elena Kagan and Katanji Brown. Jackson said that the
Speaker 1: Atlas ruling settled the issue here, So would the Court
Speaker 1: have to overrule that nineteen seventy seven president in order
Speaker 1: to rule for jocacy here?
Speaker 10: Likely they would do so, at least in substance, if
Speaker 10: not inform. I mean, Chief Justice Roberts himself said, well,
Speaker 10: Atlas was fifty years ago, and we've seen a lot
Speaker 10: of that's happened in the last fifty years, including the
Speaker 10: increasing power of administrative agencies. So it's time for us
Speaker 10: to take a good look back at it to see
Speaker 10: if it makes sense today. And to be fair, some
Speaker 10: of the more conservative justices, particularly Justice Barrett, was strogving
Speaker 10: to figure out a limiting principle, how you could make
Speaker 10: the determination of when the Seventh Amendment right would be triggered.
Speaker 1: How do you think they're going to rule? Is it
Speaker 1: going to be a six ' to three ruling? Whatever
Speaker 1: it is.
Speaker 10: Again, it's so difficult to judge from an our largument
Speaker 10: how of course finally going to come out. But I
Speaker 10: would guess that they will try to articulate a fuzzy line,
Speaker 10: but a line that is more restrictive of Congress's ability
Speaker 10: really to determine what kind of suits can be presented
Speaker 10: before administered eivation suites. I doubt they will go as
Speaker 10: far as to say that Congress can't allow subsuits to
Speaker 10: go before, but they'll probably talk about Congress is limited
Speaker 10: when the suit is either in all respects similar or
Speaker 10: echoes or derivative of a common law right. So what
Speaker 10: the Court we'll want to do is say, use the
Speaker 10: touchstone of a common law right and say, if you
Speaker 10: have the right to have a jury trial in a
Speaker 10: similar case in seventeen ninety one a court to Westminster,
Speaker 10: then Congress cannot effectively deprive you of that right by
Speaker 10: calling it something else, by changing it slightly and vesting
Speaker 10: it before an administrative agency.
Speaker 6: That'd be my educated guess.
Speaker 1: This is part of a Supreme Court term that could
Speaker 1: have broad implications for federal regulators. The Justice has heard
Speaker 1: arguments in October over whether the Consumer Financial Protection Bureau's
Speaker 1: funding system is constitutional, and in January it will consider
Speaker 1: whether to overturn the Chevron doctrine, which is a precedent
Speaker 1: that gives agencies leeway when they interpret ambiguous congressional commands.
Speaker 1: Why this focus and do you think federal regulators should
Speaker 1: be afraid of what's going to happen this term.
Speaker 10: Well, it's plain that the focus has arisen from a
Speaker 10: deep distrust of the administrative state, and the Court has
Speaker 10: signaled in a variety of cases that it wants to
Speaker 10: pare down the size of government, and it thinks Congress
Speaker 10: has gone too far in empowering administrative agencies with the
Speaker 10: ability to investigate and to proceed against mostly companies who
Speaker 10: violate the regulations that these agencies have promulgated in order
Speaker 10: to enforce a Congressional mission. And so these cases, together
Speaker 10: with the appointments cases or removal cases, is trying to
Speaker 10: take another look at how broadly administry of agencies have
Speaker 10: influence over our lives. But that being said, I think
Speaker 10: that the Court is proceeding probably a little more slowly
Speaker 10: now than it thought it might two years ago. My
Speaker 10: guess is that they will take some steps to curve
Speaker 10: the power of administrative agencies. But by ignoring the non
Speaker 10: delegation argument, for instance, they have bycassed an opportunity that
Speaker 10: really stick a stake in the heart of most administrative agencies.
Speaker 6: Directly.
Speaker 1: The justices are always saying things like that's up to Congress,
Speaker 1: that's not up to us. Here you have Congress expanding
Speaker 1: the power of administrative agencies over time, and the conservative
Speaker 1: justices seem to be trying to give the Core's more
Speaker 1: power at the expense of federal agencies supervised by the president.
Speaker 1: Are they trying to take more power for themselves over
Speaker 1: other part?
Speaker 10: Absolutely, there's no question in my mind that the Court
Speaker 10: is sort of redlining what congressmen do and can't do
Speaker 10: in terms of trying to make provisions for running the government.
Speaker 10: It's holding on to the power to be an umpire
Speaker 10: about what it is appropriate and not appropriate in a
Speaker 10: variety of contexts. I mean they've done that most notably
Speaker 10: by saying that if something is a major question, we
Speaker 10: are going to ourselves decide what's a major question and
Speaker 10: then also decide whether we think Congress is clear enough
Speaker 10: in terms of giving power to the agency that itself
Speaker 10: is arrogating to the court the ability to decide how
Speaker 10: far agencies can operate and how creative they can be
Speaker 10: in trying to solve the many problems we face today
Speaker 10: as a country. And so the judges are giving themselves
Speaker 10: more power by becoming umpires in these various aspects of
Speaker 10: the interaction between Congress the Ministry of State.
Speaker 1: So we'll see how far they go in the decisions
Speaker 1: in these three cases. Thanks so much, Hal. That's professor
Speaker 1: Harold Krant of the Chicago Kent College of Law. Coming
Speaker 1: up next. An appellate court deals a blow to voting
Speaker 1: rights cases. I'm June Gross when you're listening to Bloomberg.
Speaker 1: One of the most important pieces of civil rights legislation
Speaker 1: in our history, the Voting Rights Act, was signed into
Speaker 1: law in August of nineteen sixty five by President Lyndon Johnson.
Speaker 4: Today is a triumph for freedom, as huge as any
Speaker 4: victory that's ever been won on any battlefield.
Speaker 1: But the Supreme Court gott it a core part of
Speaker 1: that landmark law in twenty thirteen, and now are ruling
Speaker 1: by the conservative Eighth Circuit Court of Appeals threatens to
Speaker 1: deal a death blow to the Act. The Circuit dismissed
Speaker 1: a lawsuit brought by black Arkansas voters who argued the
Speaker 1: state's congressional map illegally discriminate against minority voters. In a
Speaker 1: two to one decision, the judges ruled that private individuals
Speaker 1: and groups like the ACLU and the NAACP cannot sue
Speaker 1: to enforce the Act. That means only the Justice Department
Speaker 1: can bring those suits. Joining me is elections law expert
Speaker 1: Richard Brefalt, a professor at Columbia Law School. Rich tell
Speaker 1: us what happened in twenty thirteen and what's left of
Speaker 1: the Act before we get to what's happened to it recently.
Speaker 11: So, the Lena Rights Act of sixty five has significally
Speaker 11: made in eighty two had many proviiions, but two of
Speaker 11: them really stood out. One was what's called Section five,
Speaker 11: which had this concept of preclearance, and it basically said
Speaker 11: that for certain problem jurisdictions, jurisdictions which have a serious
Speaker 11: track record of violating voting rights as proven by certain
Speaker 11: tests in the statute, when they change their voting laws,
Speaker 11: that has to be pre approved, pre cleared as the
Speaker 11: language the statue uses, either by the Department of Jobs
Speaker 11: Justice or by a federal court for it comes into effect.
Speaker 11: And it kind of reverses the presumption. It says for
Speaker 11: those problem jurisdictions they have to prove that their new
Speaker 11: law or their new change in voting practice or procedure
Speaker 11: does not burden minority voting rights, so the burden is
Speaker 11: actually on the data of the local government to show
Speaker 11: that they're not clicting any harm. In twenty thirteen, the
Speaker 11: Supreme Court struck down the part of the Statute that
Speaker 11: provided the definition of the jurisdictions that were subject to
Speaker 11: this special treatment. They were called cover jurisdictions, and the
Speaker 11: Court said that Congress basically had failed to update the
Speaker 11: formula that decides what a cover jurisdiction is. It was
Speaker 11: last updated in the nineteen seventies, and the Court said
Speaker 11: it simply cannot be right that that's the right formula
Speaker 11: now in a statute which was most recently updated in
Speaker 11: two thousand and six. So with that decision in twenty thirteen,
Speaker 11: the Supreme Court eliminated preclearance. Complearance is technically on the books,
Speaker 11: but it has nothing to operate on because the provision
Speaker 11: that it works with, which is the definition of the
Speaker 11: covered jurisdictions, is invalid. The other major provision of the
Speaker 11: Act is called Section two, and that's the one that
Speaker 11: basically is used to challenge voting rules around the country
Speaker 11: which are either intentionally discriminatory or have a discriminatory impact
Speaker 11: and really for the parts of the country that were
Speaker 11: never under Section five. Section two is where the action was,
Speaker 11: and since twenty thirteen now is for all of the country.
Speaker 11: Section two is where the action is. Now in Section two,
Speaker 11: the burden is on a plaintiff to show that a
Speaker 11: state or local law is discriminatory, either in intent or
Speaker 11: in effect against who's protected by the Act, which are
Speaker 11: primarily based on race or language minority status. But nonetheless
Speaker 11: Section two has been particularly after the twenty thirteen decision
Speaker 11: that's known as Shelby County. Section two is clearly by
Speaker 11: far the major provision of the Act for enforcing voting rights.
Speaker 1: So now out of the blue are ruling by an
Speaker 1: Eighth Circuit chanel of Republican appointees affirmed a ruling of
Speaker 1: the District Court Judge Trump appointee Lee Rudowski that only
Speaker 1: the US Attorney General can bring suits to vindicate voting
Speaker 1: rights under section two. And I do mean out of
Speaker 1: the blue because none of the parties to the lawsuit
Speaker 1: raised this issue. Judge Rodowski came up with it on
Speaker 1: his own. What's their basis for this ruling?
Speaker 11: So their argument is that Section two, which makes all
Speaker 11: sorts of voting practices and procedures illegal doesn't explicitly say
Speaker 11: that people who are injured by these practices and procedures
Speaker 11: have a right to bring a lawsuit. That's known as
Speaker 11: a private right of action. The statute that basically declares
Speaker 11: that various kinds of voting practices and procedures which are
Speaker 11: discriminatory are illegal, but it doesn't explicitly literally say that
Speaker 11: people who are injured by that can bring a lawsuit. Now,
Speaker 11: since the time of the enact of this statute, especially
Speaker 11: since it was significantly beefed up by Congress in reaction
Speaker 11: to a Supreme Court decision in nineteen eighty two, this
Speaker 11: statue has been used for private claims. I don't know,
Speaker 11: it's hundreds of times, which have been adjudicated by courts,
Speaker 11: including by the Supreme Court as recently as earlier this
Speaker 11: year the Allen v. Milligan decision. So it has been
Speaker 11: used many, many, many many times. But according to the
Speaker 11: Eighth Circuit majority, the Supreme Court has never literally said
Speaker 11: that there's a private right of action. They've just assumed it.
Speaker 11: And in that Allen case, Justice Thomas in his descent
Speaker 11: also raised this as a question about whether or not
Speaker 11: there really is a private right of action. So I
Speaker 11: think he in that case in some earlier cases may
Speaker 11: have planted the seeds of doubt. But as I say,
Speaker 11: until now, I think there have been hundreds of cases
Speaker 11: in the district courts and the courts of appeals which
Speaker 11: have assumed that there's a private right of action, and
Speaker 11: at least a number of cases, not sure if it's
Speaker 11: single digits or double digits of cases in the Supreme
Speaker 11: Court which have assumed a private right of action. And
Speaker 11: this is the first case that has literally said no,
Speaker 11: we don't think it's there. And the fact that there
Speaker 11: have been these many, many, many cases assuming that it's there,
Speaker 11: we don't care about those because nobody ever literally worked
Speaker 11: it through and held that they're a private.
Speaker 1: Writer back and Justice Gorsich has also referred to whether
Speaker 1: private plaintiffs could sue under Section two as quote an
Speaker 1: open question. Wendy Wiser of the Brendan Center for Justice
Speaker 1: has called these comments by the two justices bat signals
Speaker 1: that they're open to considering novel theories to undermine voting rights.
Speaker 1: And maybe the lower court judge who clerked for Justice
Speaker 1: Thomas saw the bat signal. Now, are these judges claiming
Speaker 1: that they're following precedent because this wasn't specifically addressed, even
Speaker 1: though you know there's case after case after case after
Speaker 1: case where private groups sue right.
Speaker 11: I think I would rephrase that to say they claim
Speaker 11: that they're fought following the text of the statute, the
Speaker 11: text of the statute and nothing more, and that they're
Speaker 11: not bound by any inconsistent precedent because there's no precedent
Speaker 11: that literally says the statute does create a private right
Speaker 11: of action. So I think that's how they would put it.
Speaker 11: This is consistent with kind of the dominant approach to
Speaker 11: statue of interpretation in the current Supreme Court in federal courts,
Speaker 11: which is what's called textualism. We're just going to read
Speaker 11: the statute and see what's there, and they don't see
Speaker 11: this literal language there as opposed to seeing that the
Speaker 11: structure of the statute, the purpose of the statue was
Speaker 11: designed to enable people to protect their avoiding rights. Their view,
Speaker 11: there is not a specific little bit of text that
Speaker 11: says it.
Speaker 1: It seems like a very narrow technical argument that ignores
Speaker 1: everything except the words that are not there.
Speaker 11: It's a very technical argument, but it is an argument
Speaker 11: that I'd say resonates with some of the arguments that
Speaker 11: have really persuaded the Stree Court in other areas not
Speaker 11: voting rights. This idea of the private right of act
Speaker 11: that I mean this has come up in other settings
Speaker 11: where Congress passes a law that prohibits certain activity or
Speaker 11: provides for certain benefits, but doesn't literally get people the
Speaker 11: right to sue if those are denied. Maybe this option
Speaker 11: is that the Attorney General will sue or thateral agency
Speaker 11: will sue. And for a long time, the Supreme Court
Speaker 11: was willing to imply private rights of actions as necessary
Speaker 11: to vindicate the rights provide the benefits that Congress authorized.
Speaker 11: In more recent years, the Supreme Court has cut back
Speaker 11: on that and has been less inclined to find a
Speaker 11: private right of action in a statute that doesn't literally
Speaker 11: say that.
Speaker 1: For decades, it's been private parties that have mainly sued
Speaker 1: to enforce the Voting Rights Act. If this decision is affirmed,
Speaker 1: it'll be up to the Justice Department to bring those suits.
Speaker 1: Does it have enough people and resources to do so?
Speaker 11: It's not clear that the Just Apartment have enough staff
Speaker 11: to bring it. And then there might be Justice departments
Speaker 11: that are not interested, that their philosophy is not inclined
Speaker 11: to bring these cases. I can imagine that happening too.
Speaker 11: So yeah, this is a real body blow to any
Speaker 11: effectiveness of the Voting Rights Act. If people can't sue,
Speaker 11: if they believe that there's a violation, the opportunities to
Speaker 11: enforce these rights will be drastically diminished.
Speaker 1: Certainly, there'll be an appeal of this. Thanks so much,
Speaker 1: rich That's Professor Richard Ruffald of Columbia Law School, and
Speaker 1: that's it for this edition of the Bloomberg Law Show.
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