WEBVTT - Trump Grabs Agency Power & J&J Bankruptcy Trial 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Brossel from Bloomberg Radio. 0:00:08.720 --> 0:00:12.559 The President has already signed seventy three executive orders. That 0:00:12.680 --> 0:00:15.560 is more than double the number signed by Joe Biden 0:00:15.880 --> 0:00:19.320 and more than quadruple the number signed by Barack Obama 0:00:19.480 --> 0:00:20.920 over the same period. 0:00:21.360 --> 0:00:25.400 Despite the enthusiasm from the White House Press Secretary, a 0:00:25.520 --> 0:00:30.000 president signing an executive order is not an indicator of success. 0:00:30.280 --> 0:00:34.080 It's simply a directive. Witness how many of President Trump's 0:00:34.120 --> 0:00:38.640 executive orders are already mired in legal battles. With his 0:00:38.760 --> 0:00:42.920 executive orders, Trump is making a brond push to centralize 0:00:42.920 --> 0:00:45.600 the power of the federal government in the White House. 0:00:46.159 --> 0:00:50.760 And now a judge who's an activist judge wants to 0:00:50.840 --> 0:00:52.600 try and stop us from doing this. 0:00:53.000 --> 0:00:54.680 And why would they want to do that. I campaign 0:00:54.800 --> 0:00:55.000 on this. 0:00:55.120 --> 0:00:57.800 I campaign to the fact that I said government is corrupt. 0:00:58.360 --> 0:01:01.720 And this week, in a to clamp down the power 0:01:01.760 --> 0:01:06.039 of some of Washington's most powerful regulators, Trump issued an 0:01:06.040 --> 0:01:10.560 executive order declaring he has direct control over dozens of 0:01:10.600 --> 0:01:15.240 independent agencies like the Securities in Exchange Commission, the Federal 0:01:15.240 --> 0:01:19.200 Trade Commission, and the Federal Communications Commission. It allows him 0:01:19.240 --> 0:01:23.959 to direct their rulemaking, policy agendas, spending, and interpretations of 0:01:24.000 --> 0:01:29.560 the law, undercutting the congressional protections against political influence that 0:01:29.720 --> 0:01:35.000 independent agencies have historically operated under. Joining me is Carrie Colinisi, 0:01:35.280 --> 0:01:39.400 who directs the University of Pennsylvania Carrie Law School's program 0:01:39.480 --> 0:01:44.319 on Regulation. Carrie, will you broadly explain what Trump's executive 0:01:44.480 --> 0:01:48.240 Order on independent Agencies entails? 0:01:48.600 --> 0:01:53.080 It is taking several strands of White House review and 0:01:53.200 --> 0:01:58.559 oversight of administrative agencies that have normally applied to those 0:01:58.640 --> 0:02:04.360 agencies that are non independent, called executive branch agencies, and 0:02:04.480 --> 0:02:09.880 now applying that same suite of oversight mechanisms to independent agencies. 0:02:10.200 --> 0:02:13.440 The point is that this is now sort of treating 0:02:13.480 --> 0:02:17.080 independent agencies as if they're no longer independent. 0:02:18.440 --> 0:02:22.920 Yeah, explain what being an independent agency up until this 0:02:23.000 --> 0:02:27.000 point entails as opposed to executive branch agencies. 0:02:27.840 --> 0:02:32.959 So executive branch agencies are like the cabinet level departments 0:02:33.240 --> 0:02:37.639 agencies like the Environmental Protection Agency that are headed by 0:02:37.720 --> 0:02:42.400 officials who are appointed by the President, confirmed by the Senate, 0:02:42.639 --> 0:02:46.000 but then they can be removed for any reason by 0:02:46.040 --> 0:02:51.239 the President. So if the President just doesn't like the tie, 0:02:51.440 --> 0:02:54.600 even that one of the administrators might be wearing or 0:02:54.880 --> 0:02:57.480 whatever a tire they might have. You could fire them 0:02:57.520 --> 0:03:00.840 for any reason whatsoever. Usually that be in the form 0:03:00.880 --> 0:03:04.239 of policy disagreements. You know, if they're not following the 0:03:04.560 --> 0:03:07.440 administration's agenda, then. 0:03:07.600 --> 0:03:08.520 They can be fired. 0:03:08.840 --> 0:03:11.880 And that puts a lot of leverage and control on 0:03:12.440 --> 0:03:16.760 what agencies do or don't do. Needless to say, independent 0:03:16.800 --> 0:03:21.200 agencies have been established by Congress with a kind of 0:03:21.360 --> 0:03:25.919 tenure protection where the heads of those agencies can't be 0:03:26.000 --> 0:03:29.799 removed just for any old reason or for policy disputes 0:03:30.320 --> 0:03:33.080 with the president. There has to be some really good 0:03:33.240 --> 0:03:37.760 cause before president can fire the head of an independent agency. 0:03:37.800 --> 0:03:41.400 And those independent agencies include a lot of multi member 0:03:41.440 --> 0:03:46.720 commissions like the Federal Communications Commission, the Federal Trade Commission, 0:03:47.120 --> 0:03:51.520 the Federal Reserve Board. They are headed by officials who 0:03:51.560 --> 0:03:55.200 have fixed terms of office and can enjoy some sense 0:03:55.360 --> 0:03:59.080 of autonomy that comes from knowing that they can't be 0:03:59.240 --> 0:04:03.560 fired just because they're adopting policy decisions that might not 0:04:03.680 --> 0:04:06.920 be in a total alignment with what the White House wants. 0:04:07.360 --> 0:04:12.000 But the President does appoint the heads of these agencies, right, 0:04:12.120 --> 0:04:14.520 so they do share his philosophy. 0:04:14.840 --> 0:04:17.880 Yeah, so there's often in practice a great deal of 0:04:17.920 --> 0:04:22.680 alignment already between what at least a majority of the 0:04:22.720 --> 0:04:26.760 members on these commissions want to do. Many of the 0:04:26.760 --> 0:04:31.560 commissions have a political balance requirement, so they allow for 0:04:31.720 --> 0:04:35.320 a majority of the commissioners to be of the same 0:04:35.360 --> 0:04:38.960 political party as the president, but there needs to be 0:04:39.080 --> 0:04:43.120 some minority of other commissioners. But once you have the 0:04:43.200 --> 0:04:47.400 majority control on a commission and they're appointed by the president, 0:04:48.400 --> 0:04:52.440 they are coming in with an ideology and a predisposition 0:04:52.560 --> 0:04:56.080 to do the sorts of things that the president wants. Anyway, 0:04:56.240 --> 0:05:00.559 so as a practical matter, these agencies are now as 0:05:00.760 --> 0:05:05.560 totally independent as maybe the label an independent agency might 0:05:05.640 --> 0:05:06.520 make them seem. 0:05:06.960 --> 0:05:10.719 Yeah, because when a new administration comes in, you see 0:05:10.760 --> 0:05:15.200 the different kinds of enforcements. For example, the SEC it 0:05:15.279 --> 0:05:18.760 was very tough on crypto, for example, and now with 0:05:18.839 --> 0:05:22.680 a new SEC under President Trump, it seems to be 0:05:23.360 --> 0:05:26.040 letting go of crypto, so to speak. So, I mean, 0:05:26.360 --> 0:05:29.640 you see, the difference is in the way the agencies 0:05:30.040 --> 0:05:32.560 govern from president to president. 0:05:33.160 --> 0:05:37.680 Right, So that always existed and you know, many respects. 0:05:37.400 --> 0:05:41.440 It may be you know, eighty or ninety percent of 0:05:41.480 --> 0:05:45.880 the way there for what a president wants by way 0:05:45.920 --> 0:05:53.040 of controlling the direction of these agencies. This executive order, though, eliminates, 0:05:53.320 --> 0:05:56.960 at least its claiming to eliminate what kind of hands 0:05:57.000 --> 0:06:00.880 off approach that quite frankly many presidents have taken with. 0:06:00.760 --> 0:06:03.640 Respect to some of the. 0:06:03.040 --> 0:06:08.680 Very institutionalized review processes, of having budgets not reviewed by 0:06:08.680 --> 0:06:11.000 the White House, of having regulations not. 0:06:11.040 --> 0:06:12.440 Reviewed by the White House. 0:06:12.760 --> 0:06:15.640 This administration is now claiming, well, We're not only going 0:06:15.680 --> 0:06:19.080 to have our loyalists heading these agencies, but we also 0:06:19.160 --> 0:06:23.200 want to scrutinize your budgets, we want to scrutinize your 0:06:23.279 --> 0:06:27.960 strategic plans, we want to scrutinize your legal decision making, 0:06:28.360 --> 0:06:32.480 we want to scrutinize your important regulations, just like we 0:06:32.600 --> 0:06:36.960 do the Department of Transportation, just like we do the 0:06:37.040 --> 0:06:40.800 Department of Labor. All of those are agencies that are 0:06:40.800 --> 0:06:43.600 headed by folks that have been appointed by the president, 0:06:43.640 --> 0:06:47.640 too right, and share the president's objectives. But you know 0:06:47.839 --> 0:06:52.240 what white houses have found is that you know, they 0:06:52.279 --> 0:06:54.880 want to coordinate and they want to make sure that 0:06:55.360 --> 0:06:58.800 all of these you know, dozens of dozens of agencies 0:06:58.839 --> 0:07:03.960 that are conducting activity, are doing the president's bidding and 0:07:04.080 --> 0:07:07.240 sometimes you know, you can get heads of these agencies 0:07:07.240 --> 0:07:10.520 that have viewpoints that do depart a little bit from 0:07:10.520 --> 0:07:14.080 what the White House wants, or heads of agencies that 0:07:14.120 --> 0:07:19.320 are not as vigilant about carrying out the president's agenda. 0:07:19.360 --> 0:07:25.119 And these institutional processes that the Trump administration says now 0:07:25.160 --> 0:07:28.000 it's going to apply to the independence are there to 0:07:28.080 --> 0:07:31.640 try to really put the hammer down and make sure 0:07:31.680 --> 0:07:35.640 that agencies follow what the White House wants them to do. 0:07:36.040 --> 0:07:39.600 So under this executive order, the agencies would have to 0:07:39.640 --> 0:07:43.800 take positions that are the same as the presidents and 0:07:43.840 --> 0:07:45.080 the Attorney generals. 0:07:45.640 --> 0:07:46.120 That's right. 0:07:46.200 --> 0:07:50.440 Some independent agencies also have independent litigating authority That means 0:07:50.480 --> 0:07:53.800 they can go into court and say some things about 0:07:53.840 --> 0:07:57.720 what the laws that they're implementing say and what they 0:07:57.800 --> 0:08:01.160 mean that haven't been vetted by the Department of Justice 0:08:01.480 --> 0:08:06.360 like an executive branch agency has. And so this executive 0:08:06.480 --> 0:08:11.400 order is aiming to bring that process of coming to 0:08:12.160 --> 0:08:17.360 independent understandings of their statutes under an umbrella of White 0:08:17.400 --> 0:08:21.400 House review and the Attorney General and Department of Justice review. 0:08:22.200 --> 0:08:27.080 And it makes Russell Vaught, the OMB director, like a 0:08:27.200 --> 0:08:29.760 super regulator. Everything goes through him. 0:08:30.320 --> 0:08:33.200 Yeah, you could look at it that way, right, And 0:08:33.240 --> 0:08:36.840 this has been a process for regulations at least that 0:08:36.880 --> 0:08:39.120 have been that's been in place since nineteen eighty one, 0:08:39.360 --> 0:08:44.800 where there's some centralized review of regulations of executive departments 0:08:44.840 --> 0:08:49.319 and agencies. This is now saying independent agencies, you also 0:08:49.480 --> 0:08:54.120 need to have your new regulations reviewed and approved by 0:08:54.760 --> 0:08:57.160 O and B before you can go forward and put 0:08:57.200 --> 0:08:57.600 them out. 0:08:58.000 --> 0:09:03.000 I mean, the agencies have particular expertise, so then you're 0:09:03.040 --> 0:09:07.280 going to have someone who doesn't have that expertise overseeing this. 0:09:08.000 --> 0:09:08.600 That's right. 0:09:09.280 --> 0:09:13.320 It's a particular problem with this latest move to bring 0:09:13.880 --> 0:09:19.280 on board independent financial regulatory bodies under O and B 0:09:19.440 --> 0:09:24.480 review because the particular office within O and B that 0:09:24.679 --> 0:09:29.440 reviews regulations, known as OIRA or the Office of Information 0:09:29.559 --> 0:09:34.200 and Regulatory Affairs, has built up expertise and capacity for 0:09:34.600 --> 0:09:37.480 the kinds of regulations that they've been reviewing over the 0:09:37.600 --> 0:09:41.400 last forty plus years, which are you know, tend to 0:09:41.440 --> 0:09:46.120 be transportation, environmental, health and safety and so forth regulations, 0:09:46.600 --> 0:09:52.600 not financial regulatory decisions, because the financial regulatory agencies haven't 0:09:52.640 --> 0:09:57.040 fallen under the ambit of their review. So if this 0:09:57.160 --> 0:10:02.560 is going to be any meaningful expert oversight of what 0:10:02.920 --> 0:10:07.480 independent financial regulatory bodies are doing. OHIRA will need to 0:10:07.720 --> 0:10:13.000 build up its internal capacity to understand and evaluate the 0:10:13.040 --> 0:10:16.440 benefits and the costs of financial regulations, something it doesn't 0:10:16.440 --> 0:10:17.319 currently possess. 0:10:17.920 --> 0:10:20.880 And how does this order treat the Federal Reserve. 0:10:21.480 --> 0:10:25.600 Well, it brings the Federal Reserve as a regulator under 0:10:25.640 --> 0:10:31.800 the ambit of the Executive Order, but it specifically exempts 0:10:32.000 --> 0:10:36.600 the Federal Reserve in its exercise of monetary policy decision 0:10:36.720 --> 0:10:42.000 making from White House scrutiny and oversight and control under 0:10:42.000 --> 0:10:43.000 the Executive Order. 0:10:43.600 --> 0:10:44.679 So, at least for. 0:10:44.720 --> 0:10:47.240 Now, and this is a good thing for the country, 0:10:47.760 --> 0:10:53.160 the Federal Reserve's monetary policy is supposed to remain independent 0:10:53.200 --> 0:10:57.000 and free from political interference from the White House. Not 0:10:57.200 --> 0:11:01.400 so with respect to say, the banking regulatory functions of. 0:11:01.360 --> 0:11:02.200 The Federal Reserve. 0:11:02.679 --> 0:11:05.880 At least as this order is is now drafted. 0:11:05.800 --> 0:11:10.720 Each agency would have to have a liaison to the 0:11:10.760 --> 0:11:11.400 White House. 0:11:12.400 --> 0:11:12.760 Yeah. 0:11:12.920 --> 0:11:16.640 Yeah, there's supposed to be a liaison to the White House. 0:11:16.720 --> 0:11:18.719 There's DOGE leaders. 0:11:18.280 --> 0:11:22.160 That are now going to, you know, be helping the 0:11:22.200 --> 0:11:27.240 White House oversee what's going on at these agencies. In 0:11:27.280 --> 0:11:29.320 some ways, it seems a bit of an overkill. If 0:11:29.360 --> 0:11:32.040 you already are putting in place loyalists at the very 0:11:32.080 --> 0:11:34.880 top of the agency, why you would need this additional 0:11:34.960 --> 0:11:40.960 layer of scrutiny or oversight. But yeah, that's what's contemplated here. 0:11:41.520 --> 0:11:44.120 Coming up next on the Bloomberg Law Show, I'll continue 0:11:44.160 --> 0:11:48.280 this conversation with Professor Carrie COLINIESI. Well, the Supreme Court 0:11:48.360 --> 0:11:54.440 support Trump's power grab. You're listening to Bloomberg. I've been 0:11:54.480 --> 0:11:58.479 talking to an expert in regulatory law, Professor Carry Colonies 0:11:58.920 --> 0:12:02.600 of the University of Sylvania Law School, about an executive 0:12:02.679 --> 0:12:06.720 order from President Trump this week claiming vast control over 0:12:06.880 --> 0:12:10.320 independent agencies like the Securities and Exchange Commission and the 0:12:10.320 --> 0:12:12.880 Federal Trade Commission. What do you think are some of 0:12:12.920 --> 0:12:18.720 the dangers of a president taking control of independent agencies 0:12:18.960 --> 0:12:21.120 in the way envisioned by this order. 0:12:21.679 --> 0:12:26.080 Well, there's a lot of practicalities behind the order. At least, 0:12:26.200 --> 0:12:29.440 let's start with the regulations that will need to be 0:12:29.520 --> 0:12:34.520 worked out. I've already mentioned the need for expertise by 0:12:34.880 --> 0:12:38.680 folks in the White House Regulatory Review Office, but there's 0:12:38.679 --> 0:12:41.920 also other aspects of that traditional review process that just 0:12:42.040 --> 0:12:45.840 don't fit structurally at all with a multi member commission. 0:12:45.960 --> 0:12:50.800 It's really been a model designed for overseeing agencies that 0:12:50.880 --> 0:12:54.840 are headed by a single administrator. The White House staff 0:12:55.480 --> 0:12:59.760 goes back and forth with agency staff and ultimately even 0:12:59.800 --> 0:13:05.680 with the agency head at times to work out any 0:13:05.720 --> 0:13:10.319 disagreements or iron out any wrinkles that there might be. 0:13:10.880 --> 0:13:12.079 How that works with a. 0:13:12.240 --> 0:13:17.480 Multi member body. I don't really know. In fact, the 0:13:17.600 --> 0:13:23.120 current process that this new Executive Order says will apply 0:13:23.320 --> 0:13:27.560 to independent agencies regulations has a dispute resolution process that 0:13:27.720 --> 0:13:32.160 specifically says the agency head shall be able to appeal 0:13:33.320 --> 0:13:37.120 some disagreement with O and B to the President. It's 0:13:37.160 --> 0:13:39.440 not clear who the agency head is in a multi 0:13:39.480 --> 0:13:42.240 member commission. Do they all have to vote on whether 0:13:42.280 --> 0:13:46.120 they go appeal something to the president or not. There 0:13:46.160 --> 0:13:49.680 are going to be some guidelines that are supposedly issued 0:13:49.720 --> 0:13:52.760 by O and B as to how this new executive 0:13:52.840 --> 0:13:55.040 Order gets worked out, and so I think, you know, 0:13:55.120 --> 0:13:59.640 some of these practicalities will have to remain as to 0:13:59.679 --> 0:14:03.280 the large your issue about, you know, what we're getting 0:14:03.600 --> 0:14:07.160 and what we're losing. I think all agencies, whether they're 0:14:07.160 --> 0:14:12.120 executive branch agencies or independent regulatory agencies, need a degree 0:14:12.160 --> 0:14:16.520 of autonomy from the kind of raw politics that can 0:14:17.080 --> 0:14:20.760 often be important to presidents, and I think are clearly 0:14:20.800 --> 0:14:22.280 important to this president. 0:14:22.800 --> 0:14:24.680 We don't want a government where. 0:14:24.520 --> 0:14:32.320 Agencies are acting on impulses of favoritism retribution, and some 0:14:32.440 --> 0:14:36.720 presidents might want that, this president might want that. And 0:14:37.080 --> 0:14:40.440 if we don't have a degree of autonomy and our 0:14:40.600 --> 0:14:45.720 governmental institutions from that kind of raw politics, we really 0:14:45.720 --> 0:14:46.800 suffer as a country. 0:14:47.560 --> 0:14:52.600 This is all part of the theory of the unitary executive, 0:14:53.120 --> 0:14:57.600 which gives the president sweeping powers sole authority over the 0:14:57.600 --> 0:15:02.720 federal government's executive brand. And the speculation is that the 0:15:02.720 --> 0:15:07.960 Trump administration wants to push the Supreme Court to adopt 0:15:08.000 --> 0:15:09.600 the unitary executive theory. 0:15:10.240 --> 0:15:14.480 Right they're basically acting is if the Court has already 0:15:15.320 --> 0:15:20.800 adopted wholesale the unitary executive theory by in effect overturning 0:15:20.880 --> 0:15:25.680 the nineteen thirty five Supreme Court decision called Humphrey's Executor. 0:15:26.680 --> 0:15:31.120 That decision, the Supreme Court said that Congress can create 0:15:31.440 --> 0:15:36.880 these independent agencies that are headed by officials who have 0:15:37.040 --> 0:15:40.560 some kind of tenure protection and can't be removed at 0:15:40.600 --> 0:15:46.040 will by presidents. You know, this administration is taking action 0:15:46.320 --> 0:15:50.240 that one would expect to see if Humphrey's Executor had 0:15:50.280 --> 0:15:55.560 already been determined to be unconstitutional, that is that Congress 0:15:55.760 --> 0:16:00.560 isn't allowed to insulate any agencies from presidential removal. That 0:16:00.720 --> 0:16:05.240 will they're firing already some officials at the NRB that 0:16:05.320 --> 0:16:09.520 have had good cause protections and taking other actions like 0:16:09.560 --> 0:16:12.080 this executive order that are very aggressive, and I think 0:16:12.080 --> 0:16:15.080 they're setting up and hoping that they'll get the Supreme 0:16:15.120 --> 0:16:19.640 Court to overturn Humphrey's Executor. It wouldn't be a big 0:16:19.680 --> 0:16:23.000 stretch to expect the Supreme Court will do that. The 0:16:23.040 --> 0:16:24.880 Supreme Court's been whittling away. 0:16:24.680 --> 0:16:27.560 At Humphrey's Executor for easily. 0:16:27.440 --> 0:16:30.560 Ten years or so now, and you know it's probably 0:16:30.840 --> 0:16:34.200 expected by most observers to be on the chopping block. 0:16:34.240 --> 0:16:38.960 The big deal will be if Humphrey's executor goes, Will 0:16:39.000 --> 0:16:43.560 it go big time, that is, by sweeping in civil 0:16:43.560 --> 0:16:47.720 service protections and protections for the federal reserves, monetary policy, 0:16:48.480 --> 0:16:52.400 or will there be some way that the Supreme Court says, well, 0:16:52.440 --> 0:16:59.440 it's unconstitutional for Congress to create insulation for every other 0:16:59.680 --> 0:17:05.320 position in government, but we still think it's okay for 0:17:05.680 --> 0:17:09.840 civil servants to be protected with some good cause protections 0:17:09.960 --> 0:17:14.040 or for the Federal Reserve when it's adopting monetary policy 0:17:14.080 --> 0:17:17.200 to have that. Hard to know exactly how the Supreme 0:17:17.240 --> 0:17:20.280 Court will decide when this case comes before us, But 0:17:20.440 --> 0:17:23.800 I think it's headed there, and this administration, I think 0:17:23.920 --> 0:17:27.880 is already acting in effect as if it's been there. 0:17:27.920 --> 0:17:31.120 And they want do we know. 0:17:31.240 --> 0:17:36.600 Which Supreme Court justices are fully behind the unitary executive theory. 0:17:37.200 --> 0:17:40.280 Well, I think there's probably a good majority. 0:17:39.920 --> 0:17:42.520 That are inclined to this. I mean, you know, as 0:17:42.560 --> 0:17:47.600 Chief Justice Roberts even has been kind of spearheading decisions 0:17:47.680 --> 0:17:51.879 to whittle away at Humphrey's executor going back to the 0:17:51.920 --> 0:17:55.440 decisions that first started to say that we couldn't have 0:17:55.680 --> 0:17:59.480 sub agencies that have good cause protection if the head 0:17:59.520 --> 0:18:03.879 agency did that was held to be unconstitutional. Then it 0:18:03.960 --> 0:18:07.280 was held that you can't have a single headed body 0:18:07.480 --> 0:18:11.520 that has an administrator that's got good cause protection. So 0:18:12.119 --> 0:18:16.520 there's a clear majority that looks suspiciously on these They've 0:18:16.560 --> 0:18:21.920 just been moving incrementally and maybe waiting for the case 0:18:21.960 --> 0:18:23.679 that will take it to the next step. 0:18:24.480 --> 0:18:28.440 I don't understand why a judge would want to give 0:18:29.080 --> 0:18:32.200 more power to the head of the executive branch on 0:18:32.480 --> 0:18:35.160 check power. I would think they want to keep more 0:18:35.240 --> 0:18:38.200 balance between the branches of government. 0:18:38.880 --> 0:18:41.760 Yeah, you know, I think if you look at at 0:18:41.800 --> 0:18:43.920 a lot of the cases over the years, and there 0:18:44.000 --> 0:18:47.800 haven't been that many, but when these issues have arisen, 0:18:48.080 --> 0:18:51.920 the courts have been suspicious of Congress's power, believe it 0:18:52.040 --> 0:18:56.800 or not, and Congress's power to kind of interfere with 0:18:56.960 --> 0:19:03.639 the administration of government by putting in place limitations on 0:19:03.920 --> 0:19:08.480 who can head up agencies or how they can be removed. 0:19:08.480 --> 0:19:13.120 And I think there's been, you know, some sensible decisions 0:19:13.160 --> 0:19:16.760 that have said, you know, Congress, you can't pick who 0:19:17.000 --> 0:19:21.720 are the heads of agencies, or you can't yourself have 0:19:21.840 --> 0:19:25.800 a role in deciding whether an agency head is removed 0:19:25.920 --> 0:19:29.520 or not. But you know, now those cases and the 0:19:29.560 --> 0:19:33.080 suspicion of Congress is sort of going to the extreme. 0:19:33.680 --> 0:19:37.560 And you know, we do have justices on the Court 0:19:37.600 --> 0:19:42.000 who have spent time, like Justice Roberts and Justice Kavanaugh 0:19:42.280 --> 0:19:45.520 and so forth, who have spent time working in the 0:19:45.560 --> 0:19:50.080 White House, and maybe that has emboldened them to think 0:19:50.200 --> 0:19:54.639 in presidentialist terms. There's also I think a mindset of 0:19:55.600 --> 0:20:00.199 sort of formalist, rigid hierarchical authority that some of our 0:20:00.960 --> 0:20:04.680 justices and the majority seem to exhibit that they think 0:20:04.760 --> 0:20:07.680 that there should be just one person at the top 0:20:07.920 --> 0:20:12.280 of the executive branch who should get to say everything 0:20:12.680 --> 0:20:16.080 that the government does and have the ability to shape 0:20:16.200 --> 0:20:20.320 the course of all policies. Now that's not really I 0:20:20.359 --> 0:20:25.560 think how the text of the Constitution is necessarily written. 0:20:25.680 --> 0:20:29.760 There are actually no provisions in the Constitution dealing with 0:20:29.800 --> 0:20:35.000 the removal of officials, So you know, it's not something 0:20:35.040 --> 0:20:38.399 that's demanded by the text of the Constitution, Nor is 0:20:38.440 --> 0:20:42.480 it really in our history, whether at the time of 0:20:42.520 --> 0:20:47.000 the founding or subsequently, to say that Congress can't create 0:20:47.280 --> 0:20:51.080 bodies that have some degree of autonomy from the president. 0:20:51.560 --> 0:20:54.439 So we're a month into Trump's second term and the 0:20:54.480 --> 0:20:58.719 administration is already going to the Supreme Court asking for 0:20:59.119 --> 0:21:04.080 an unusual invention, asking the Justices to step into a 0:21:04.119 --> 0:21:08.320 newly filed lawsuit and allow the president to fire the 0:21:08.359 --> 0:21:13.000 head of a federal whistleblower agency Hampton Dellinger. Do you 0:21:13.040 --> 0:21:18.040 think how the Court handles this will be an indication 0:21:18.280 --> 0:21:23.280 of how they're going to respond to other attempts by 0:21:23.520 --> 0:21:25.320 Trump to gain power. 0:21:25.440 --> 0:21:26.160 Yes, or no. 0:21:26.400 --> 0:21:29.200 I mean, it depends on how sweeping they want to 0:21:29.240 --> 0:21:33.000 make their decision. It could be that this is just 0:21:33.040 --> 0:21:38.800 a very narrow decision that follows from a prior precedent, 0:21:38.960 --> 0:21:41.520 like I was saying before about where you know, there's 0:21:42.040 --> 0:21:46.200 double layers of protection that can't exist, or so forth. 0:21:46.400 --> 0:21:49.280 It may be a very narrow decision, in which case 0:21:49.280 --> 0:21:53.359 we might not learn very much. I suspect that's probably 0:21:54.200 --> 0:21:58.520 the easiest thing for the court to do, but you know, 0:21:58.760 --> 0:22:03.440 I prize that Trump versus the United States says, yeah, well, 0:22:03.520 --> 0:22:07.159 are the court wanted to really go at it and 0:22:07.440 --> 0:22:10.359 make a very broad ruling about presidential immunity? 0:22:10.640 --> 0:22:12.920 So we'll have to see. 0:22:12.960 --> 0:22:15.199 Most people are assuming that lawsuits are going to be 0:22:15.240 --> 0:22:19.000 brought over these executive orders, but we've seen that in 0:22:19.080 --> 0:22:24.840 some of these cases over executive orders, the judges are 0:22:24.880 --> 0:22:29.200 finding that the plaintiffs don't have standing to bring the case, 0:22:29.800 --> 0:22:32.760 basically an interest in the outcome of the case. Who 0:22:32.800 --> 0:22:36.160 would be able to bring a lawsuit over this executive order? 0:22:36.760 --> 0:22:39.320 I mean, the heads of the agencies are Trump appointdee, 0:22:39.640 --> 0:22:42.480 so they're not bringing a case right exactly. 0:22:42.760 --> 0:22:45.639 It's going to be difficult because, first of all, the 0:22:45.680 --> 0:22:52.800 executive order itself is hard to challenge. As an executive order. 0:22:52.920 --> 0:22:55.800 It has to be some kind of concrete decision that 0:22:55.880 --> 0:23:01.160 an agency's making that adversely affects somebody that you can 0:23:01.240 --> 0:23:03.960 claim would not have been made that way but for 0:23:04.080 --> 0:23:08.800 the executive order. And there's creative lawyers out there, and 0:23:09.000 --> 0:23:11.440 there will be arguments in lawsuits that I think. 0:23:11.359 --> 0:23:12.280 Will be filed. 0:23:12.400 --> 0:23:17.520 Whether they're persuasive to the lower courts or ultimately to 0:23:17.560 --> 0:23:21.000 the Supreme Court remains to be seen. It is though 0:23:21.040 --> 0:23:25.800 the case that you know, executive orders rarely are themselves 0:23:26.400 --> 0:23:31.480 directly vehicles for litigation. It's the actions that follow from them. 0:23:32.080 --> 0:23:35.600 And as we were talking earlier, sometimes these actions that 0:23:35.720 --> 0:23:39.000 might be thought to follow from them might be just 0:23:39.160 --> 0:23:43.960 due to having a loyalist in these independent agencies to 0:23:44.040 --> 0:23:46.560 begin with. So it may be hard to untangle how 0:23:46.640 --> 0:23:51.200 much an adverse action that is being challenged is due 0:23:51.280 --> 0:23:55.240 to the executive order versus just having a loyalist heading 0:23:55.320 --> 0:23:58.879 up the commission. It's going to be probably facts specific, 0:23:59.240 --> 0:24:02.359 and I think it also is a pretty long shot 0:24:02.440 --> 0:24:07.600 given the predisposition of a majority of the Supreme Court 0:24:07.760 --> 0:24:10.720 to be a pro presidentialist. 0:24:11.000 --> 0:24:13.840 I'm sure Trump will keep the Supreme Court very busy. 0:24:14.040 --> 0:24:18.119 Thanks so much, Carrie Death. Professor Kerry Coliniesi, who directs 0:24:18.160 --> 0:24:22.399 the University of Pennsylvania Carry Law Schools program on regulation. 0:24:22.880 --> 0:24:25.840 Coming up next on the Bloomberg Law Show, Jay and 0:24:25.960 --> 0:24:29.840 Jay is on trial in bankruptcy court over its plan 0:24:29.960 --> 0:24:33.840 to end thousands of lawsuits over its baby powder causing 0:24:33.920 --> 0:24:37.880 cancer in a bankruptcy settlement. I'm June Grosso. When you're 0:24:37.920 --> 0:24:42.680 listening to Bloomberg, Johnson and Johnson is trying to use 0:24:42.720 --> 0:24:46.480 the power of bankruptcy to drive a settlement of thousands 0:24:46.480 --> 0:24:50.240 of lawsuits filed by women or their family members who 0:24:50.280 --> 0:24:53.520 claim it's baby powder gave them cancer. Jay and Jay, 0:24:53.600 --> 0:24:56.560 one of the most profitable companies in the world, has 0:24:56.560 --> 0:25:00.600 put a very small unit into bankruptcy to achieve this end. 0:25:00.960 --> 0:25:05.080 Courts in New Jersey and Philadelphia stopped earlier attempts by 0:25:05.200 --> 0:25:08.320 Jay and Jay to tap bankruptcy, but now the company 0:25:08.359 --> 0:25:11.520 is betting on a different conclusion from a Texas court. 0:25:12.080 --> 0:25:16.200 Joining me is Stephen Church, Bloomberg Bankruptcy Reporter. This case 0:25:16.240 --> 0:25:20.040 has a long and complicated history. Tell us how we 0:25:20.080 --> 0:25:24.399 got to this point. With a trial in Houston Texas Sure. 0:25:24.560 --> 0:25:27.880 For the last ten years, Johnson and Johnson has been 0:25:27.960 --> 0:25:34.240 fighting allegations that painted baby powder, something that has asbestos 0:25:34.320 --> 0:25:39.879 in it, allegedly pauses ovarian cancer and other gynecological cancers 0:25:39.960 --> 0:25:43.640 in women who use this powder just about every day. 0:25:44.200 --> 0:25:47.720 Those lawsuits have slowly been building. There have been more 0:25:47.720 --> 0:25:51.680 and more than filed. Now there are about sixty thousand 0:25:51.760 --> 0:25:55.240 lawsuits that have been filed and another twenty five thousand 0:25:55.320 --> 0:25:58.040 or so claims that have not yet been filed in 0:25:58.119 --> 0:26:01.880 court but are still being prepared by lawyers. The company 0:26:01.920 --> 0:26:06.600 has fought them throughout the entire time and has refused 0:26:06.600 --> 0:26:10.200 to settle, and has claimed repeatedly that there is no 0:26:10.680 --> 0:26:15.199 scientific link between bata by powder and other calc based 0:26:15.240 --> 0:26:18.680 products and cancer. The problem is they've had at least 0:26:18.720 --> 0:26:21.399 one major verdict that went all the way to the 0:26:21.400 --> 0:26:25.280 Supreme Court, forcing Johnson and Johnson to pay out more 0:26:25.320 --> 0:26:29.480 than two billion dollars two about twenty winning. That got 0:26:29.520 --> 0:26:33.320 the company's attention, and they tried to find a new 0:26:33.359 --> 0:26:36.359 way to resolve these all at once. That new way, 0:26:36.840 --> 0:26:39.640 just a few years ago, was to go into bankruptcy court. 0:26:39.960 --> 0:26:44.000 The theory is they took a small unit and made 0:26:44.080 --> 0:26:48.600 this unit responsible for paying off all the CALC claims. 0:26:48.800 --> 0:26:51.919