1 00:00:02,840 --> 00:00:07,960 Speaker 1: You're listening to Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:09,119 --> 00:00:12,520 Speaker 2: The Southern Poverty Law Center has positioned itself as the 3 00:00:12,560 --> 00:00:17,079 Speaker 2: country's pre eminent hate group watchdog, putting out an influential 4 00:00:17,160 --> 00:00:20,959 Speaker 2: list of hate groups. The civil rights nonprofit has for 5 00:00:21,120 --> 00:00:26,120 Speaker 2: years faced scrutiny from Republicans who claim its unfairly targeted 6 00:00:26,400 --> 00:00:31,160 Speaker 2: right wing organizations, and this week, the Justice Department indicted 7 00:00:31,160 --> 00:00:36,520 Speaker 2: the SPLC on federal fraud charges, alleging it improperly raised 8 00:00:36,600 --> 00:00:40,440 Speaker 2: millions of dollars to secretly pay leaders of hate groups 9 00:00:40,520 --> 00:00:46,120 Speaker 2: for inside information. According to Acting Attorney General Todd Blanche. 10 00:00:46,159 --> 00:00:49,960 Speaker 3: The money was passed from SPLC to one sham account, 11 00:00:50,080 --> 00:00:52,639 Speaker 3: to a second sham account, and then loaded onto prepaid 12 00:00:52,640 --> 00:00:55,800 Speaker 3: cards to give to the members of the extremist groups. 13 00:00:56,520 --> 00:01:01,640 Speaker 2: The SBLC said it's outraged by the false saleyations. It's CEO, 14 00:01:01,760 --> 00:01:05,960 Speaker 2: Brian Fair, said, today the federal government has been weaponized 15 00:01:06,000 --> 00:01:09,800 Speaker 2: to dismantle the rights of our nation's most vulnerable people, 16 00:01:10,240 --> 00:01:13,800 Speaker 2: and any organization like ours that tries to stand in 17 00:01:13,880 --> 00:01:17,880 Speaker 2: the breach. My guest is an expert in white collar crime, 18 00:01:18,240 --> 00:01:23,120 Speaker 2: Professor John Coffee of Columbia law school Jack. Until recently, 19 00:01:23,800 --> 00:01:27,840 Speaker 2: the SPLC was working with the FBI to provide the 20 00:01:28,040 --> 00:01:32,800 Speaker 2: intel that was gathered by its informants. That's until FBI 21 00:01:32,880 --> 00:01:38,320 Speaker 2: Director Cash Patel severed the relationship last year. Is there 22 00:01:38,360 --> 00:01:41,720 Speaker 2: anything illegal about hiring informants the way. 23 00:01:41,560 --> 00:01:44,039 Speaker 4: That they did, I don't think so. There could be 24 00:01:44,280 --> 00:01:48,320 Speaker 4: cases of ille gallvie if you are stealing confidential business 25 00:01:48,360 --> 00:01:51,520 Speaker 4: in probation from an organization. There's a famous Supreme Court 26 00:01:51,560 --> 00:01:55,240 Speaker 4: case involving a wolf creature on reporter who sold copies 27 00:01:55,280 --> 00:01:58,760 Speaker 4: of his story to brokers who traded on it before 28 00:01:58,800 --> 00:02:02,400 Speaker 4: it was published. That was seen as a misappropriation of 29 00:02:02,440 --> 00:02:05,920 Speaker 4: the Wall Street Journal's right to confidential information. So you 30 00:02:05,920 --> 00:02:07,720 Speaker 4: could push that a little bit. But that's not what 31 00:02:07,800 --> 00:02:11,160 Speaker 4: they're alleged. They were alleging fraud on the donors. That's 32 00:02:11,200 --> 00:02:13,720 Speaker 4: what they keep saying again and again, and fraud on 33 00:02:13,800 --> 00:02:15,880 Speaker 4: the donors. I think you could put half of the 34 00:02:15,960 --> 00:02:18,520 Speaker 4: donors on the stand and they would testify that they 35 00:02:18,520 --> 00:02:20,679 Speaker 4: were very happy that the money was used to get 36 00:02:20,760 --> 00:02:25,880 Speaker 4: sources within violent organizations to tell the SPLC or what 37 00:02:26,000 --> 00:02:28,120 Speaker 4: they were doing. I don't think there is any reason 38 00:02:28,200 --> 00:02:32,600 Speaker 4: my nonprofit organization can't undertake surveillance trying to reveal to 39 00:02:32,680 --> 00:02:36,400 Speaker 4: the public the behavior of violent and extreme organization. And 40 00:02:36,440 --> 00:02:39,320 Speaker 4: by the way, the FBI does the same thing. They 41 00:02:39,360 --> 00:02:42,760 Speaker 4: pay even larger amounts to informance over the years to 42 00:02:42,800 --> 00:02:45,600 Speaker 4: infiltrate organizations on both the left and the right. 43 00:02:46,000 --> 00:02:48,760 Speaker 2: So then you don't think this charge that the SPLC 44 00:02:48,960 --> 00:02:52,440 Speaker 2: was funding extremist groups will hold up. 45 00:02:53,000 --> 00:02:55,239 Speaker 4: Well, you're allowed to fund the extremist groups. If you 46 00:02:55,280 --> 00:02:58,600 Speaker 4: want to give money to any party, including the Communist Party, 47 00:02:58,720 --> 00:03:01,080 Speaker 4: you're allowed to do that. They gave them money to 48 00:03:01,360 --> 00:03:04,720 Speaker 4: their field agents. The field agents may have passed some 49 00:03:04,840 --> 00:03:06,919 Speaker 4: of that on to the kokclas Klan, but they were 50 00:03:06,960 --> 00:03:11,840 Speaker 4: basically paying people to serve as undercovered agents, which is dangerous. 51 00:03:11,919 --> 00:03:15,919 Speaker 4: There can be reprisals and retribution, and people don't do 52 00:03:16,000 --> 00:03:19,760 Speaker 4: anything dangerous for that being well compensated. Moreover, although they 53 00:03:19,760 --> 00:03:23,119 Speaker 4: talk about a million dollars, these were payments made annually 54 00:03:23,160 --> 00:03:26,000 Speaker 4: over nine years, and if you divide a million dollars 55 00:03:26,000 --> 00:03:28,480 Speaker 4: by nine, it's a more reasonable number to have paid 56 00:03:28,480 --> 00:03:30,280 Speaker 4: an agent to do something. It was dangerous. 57 00:03:30,600 --> 00:03:35,160 Speaker 2: The indictment also charges bank fraud, alleging that the SBLC 58 00:03:35,800 --> 00:03:40,320 Speaker 2: created bank accounts for fictitious entities and use those to 59 00:03:40,360 --> 00:03:42,800 Speaker 2: send money from donors to informants. 60 00:03:43,160 --> 00:03:45,880 Speaker 4: Well, lots of people do this. I think you can 61 00:03:45,920 --> 00:03:49,360 Speaker 4: find cases where that might be criminal if it was 62 00:03:49,480 --> 00:03:52,640 Speaker 4: part of a scheme to defraud. But no one is 63 00:03:52,680 --> 00:03:55,280 Speaker 4: defrauding the bank and the bank said you have to 64 00:03:55,360 --> 00:03:57,760 Speaker 4: change this, it doesn't look appropriate, and they did change it. 65 00:03:58,160 --> 00:04:01,360 Speaker 4: They cooperate. I don't think there's any real bank fraud here. 66 00:04:01,720 --> 00:04:04,320 Speaker 4: That is, I don't think this was material information to 67 00:04:04,360 --> 00:04:08,600 Speaker 4: the bank. It was organizations that were really nonexistent. But 68 00:04:08,760 --> 00:04:11,320 Speaker 4: I don't know that there was any fraud committed on 69 00:04:11,320 --> 00:04:11,760 Speaker 4: the bank. 70 00:04:12,200 --> 00:04:14,560 Speaker 2: And what about the money laundering charge? 71 00:04:15,000 --> 00:04:17,480 Speaker 4: Now, money laundering can only be a crime if you've 72 00:04:17,600 --> 00:04:20,000 Speaker 4: engaged in a crime and take the prostedge of that 73 00:04:20,120 --> 00:04:22,840 Speaker 4: crime and move it through the financial system. If there 74 00:04:22,880 --> 00:04:24,640 Speaker 4: is no crime, there is no money laundering. 75 00:04:24,800 --> 00:04:27,120 Speaker 2: So do you think the Southern Poverty Law Center could 76 00:04:27,160 --> 00:04:30,040 Speaker 2: get this indictment dismissed before trial? 77 00:04:30,400 --> 00:04:33,200 Speaker 4: I don't think it'll be upheld. Depends on the judge 78 00:04:33,560 --> 00:04:36,560 Speaker 4: handling the case. Some judges will let the case go 79 00:04:36,640 --> 00:04:40,160 Speaker 4: forward to see if evidence is accumulated and looks promising 80 00:04:40,160 --> 00:04:42,200 Speaker 4: a trial. But I do think there is a good 81 00:04:42,279 --> 00:04:44,920 Speaker 4: chance that this could be dismissed at the outset. I've 82 00:04:44,920 --> 00:04:49,200 Speaker 4: read lots of indictments. Apartment Justice usually writes strong, specific, 83 00:04:49,320 --> 00:04:53,000 Speaker 4: well reasoned indictments. This is vague and it wanders all around. 84 00:04:53,640 --> 00:04:56,480 Speaker 4: I think it's a very thin and poorly written indictment. 85 00:04:56,839 --> 00:04:59,479 Speaker 4: It won't surprise anyone to say this appears to be 86 00:04:59,480 --> 00:05:02,719 Speaker 4: part of a in which the Trump administration has gone 87 00:05:02,720 --> 00:05:06,280 Speaker 4: against its political enemies. You can talk about cases that 88 00:05:06,320 --> 00:05:09,440 Speaker 4: have been dismissed, including against the Attorney General of New 89 00:05:09,520 --> 00:05:13,039 Speaker 4: York State and other persons, and they are still trying 90 00:05:13,080 --> 00:05:15,760 Speaker 4: to pursue a case against the Chairman of the Federal Reserve. 91 00:05:16,000 --> 00:05:18,760 Speaker 4: Anytime there's a political enemy, there tends to be a 92 00:05:18,760 --> 00:05:20,159 Speaker 4: criminal investigation of them. 93 00:05:20,480 --> 00:05:24,640 Speaker 2: I mean, the SBLC has been the target of Republicans 94 00:05:24,680 --> 00:05:28,919 Speaker 2: for years, and House Republicans held a hearing centered on 95 00:05:29,000 --> 00:05:30,599 Speaker 2: the SBLC in December. 96 00:05:30,880 --> 00:05:33,960 Speaker 4: It's quite possible that Southern Popular Law Center does controversial 97 00:05:34,040 --> 00:05:36,920 Speaker 4: things that's not criminal. You're going to have to show 98 00:05:36,960 --> 00:05:39,920 Speaker 4: that they deflauded some victim. They've been doing this for 99 00:05:39,960 --> 00:05:42,920 Speaker 4: thirty years, so with nothing new, it's been clear they've 100 00:05:42,920 --> 00:05:47,119 Speaker 4: been getting inside information about these organizations. They didn't tell 101 00:05:47,560 --> 00:05:51,159 Speaker 4: the various organizations they were looking into that they were 102 00:05:51,320 --> 00:05:54,799 Speaker 4: conducting surveillance of them. But no one does. The FBI 103 00:05:54,960 --> 00:05:57,159 Speaker 4: does this at a much greater volume, and they helped 104 00:05:57,160 --> 00:05:58,960 Speaker 4: tell people we're conducting surveillance. 105 00:06:00,000 --> 00:06:02,599 Speaker 2: Brought up fed Chair Powell, what do you think about 106 00:06:02,600 --> 00:06:04,480 Speaker 2: the investigation into him? 107 00:06:04,800 --> 00:06:07,320 Speaker 4: Well, I think that's another example of what looks like 108 00:06:07,400 --> 00:06:11,120 Speaker 4: a political retaliation. You aren't doing what I want you 109 00:06:11,200 --> 00:06:14,680 Speaker 4: to do. Chairman Powell isn't even criticizing the president. He's 110 00:06:14,680 --> 00:06:18,640 Speaker 4: not engaged in political criticism. He's simply doing what he 111 00:06:18,680 --> 00:06:21,880 Speaker 4: thinks is is obligation, which is to retain interest rates 112 00:06:21,920 --> 00:06:24,479 Speaker 4: at a level that protects the economy from a rapid 113 00:06:24,520 --> 00:06:28,599 Speaker 4: inflation and disaster. And he's facing reprisal, criminal reprisal for 114 00:06:29,279 --> 00:06:33,600 Speaker 4: a rather strange and not yet carefully spelled out activities 115 00:06:33,600 --> 00:06:36,240 Speaker 4: in connection with the renovation of a further reserve bank. 116 00:06:36,560 --> 00:06:39,400 Speaker 2: Thanks so much for taking the time, Jack. That's Professor 117 00:06:39,480 --> 00:06:43,080 Speaker 2: John Coffee of Columbia Law School. AT and T and 118 00:06:43,279 --> 00:06:46,880 Speaker 2: Verizon are trying to recoup the one hundred four million 119 00:06:46,960 --> 00:06:51,320 Speaker 2: dollars they paid in penalties after the FCC said they 120 00:06:51,360 --> 00:06:56,920 Speaker 2: had illegally sold customer's location data. The companies are challenging 121 00:06:56,960 --> 00:07:02,320 Speaker 2: the FCC's process as unconstantitutional at the Supreme Court, saying 122 00:07:02,320 --> 00:07:05,279 Speaker 2: the fines were assessed without giving them the right to 123 00:07:05,360 --> 00:07:10,360 Speaker 2: a jury trial. Most of the justices appeared skeptical. Chief 124 00:07:10,600 --> 00:07:14,600 Speaker 2: Justice John Roberts told AT and T's lawyer, it seemed 125 00:07:14,640 --> 00:07:15,840 Speaker 2: like a PR problem. 126 00:07:16,240 --> 00:07:16,600 Speaker 1: Council. 127 00:07:16,760 --> 00:07:18,760 Speaker 5: I wonder if, though, at the end of the day, 128 00:07:18,800 --> 00:07:21,640 Speaker 5: you're really just talking about a PR problem, right, and 129 00:07:21,640 --> 00:07:23,720 Speaker 5: you're just saying they're big letters. The language said we 130 00:07:23,760 --> 00:07:28,880 Speaker 5: did something bad, and that's so everybody has to pay 131 00:07:29,720 --> 00:07:33,040 Speaker 5: so they don't get a bad PR. And I'm just 132 00:07:33,120 --> 00:07:37,800 Speaker 5: wondering in terms of the substantive legal issue, though you 133 00:07:37,880 --> 00:07:41,040 Speaker 5: are not obligated to pay until you get a jury. 134 00:07:41,080 --> 00:07:45,160 Speaker 2: And Justice Amy Coney Barrett said, just don't pay the fines. 135 00:07:45,880 --> 00:07:48,600 Speaker 6: Mister, Well, if they are final and if they have 136 00:07:48,720 --> 00:07:50,600 Speaker 6: like in your view, this effect, why do you have 137 00:07:50,680 --> 00:07:51,160 Speaker 6: to pay them? 138 00:07:51,480 --> 00:07:56,760 Speaker 2: But surprise, surprise, the FCC made a concession that amounts 139 00:07:56,840 --> 00:08:00,400 Speaker 2: to a win for the companies. The Justice Department lawyer 140 00:08:00,520 --> 00:08:05,480 Speaker 2: Vivek Suri said companies don't have to pay FCC penalties 141 00:08:05,680 --> 00:08:09,920 Speaker 2: right away, and the FCC can't try to collect a fine, 142 00:08:10,280 --> 00:08:14,720 Speaker 2: add interest or punish a company for not immediately paying that. 143 00:08:14,680 --> 00:08:17,840 Speaker 7: The agency cannot start collecting the money as the SEC 144 00:08:17,880 --> 00:08:20,160 Speaker 7: could in the darkasy scheme. It has to go to 145 00:08:20,240 --> 00:08:23,240 Speaker 7: court in order to collect the money. Second, there's no 146 00:08:23,320 --> 00:08:28,440 Speaker 7: penalty or punishment for failing to pay that order. And 147 00:08:28,520 --> 00:08:32,400 Speaker 7: third that interest doesn't start cruing until the penalty becomes. 148 00:08:32,760 --> 00:08:35,400 Speaker 2: Just as Brett Kavanaugh call that a win for the 149 00:08:35,520 --> 00:08:39,000 Speaker 2: companies and suggested they might be able to get their 150 00:08:39,200 --> 00:08:43,000 Speaker 2: money back. Joining me is an expert in telecommunications and 151 00:08:43,120 --> 00:08:47,640 Speaker 2: internet law. Daniel Lyons, a professor at Boston College Law School. 152 00:08:48,040 --> 00:08:51,840 Speaker 2: Daniel explained the issue that court was considering about the 153 00:08:51,920 --> 00:08:53,080 Speaker 2: right to a jury trial. 154 00:08:53,640 --> 00:08:58,840 Speaker 6: Historically, when regulated entity at the SEC violates FCC rules 155 00:09:00,080 --> 00:09:02,760 Speaker 6: has reserved the right to adjudicate. 156 00:09:02,240 --> 00:09:03,160 Speaker 1: These cases in house. 157 00:09:03,200 --> 00:09:06,440 Speaker 6: So in this case, AT and T and Verizon were 158 00:09:06,720 --> 00:09:09,120 Speaker 6: alleged to have I guess the right way to say 159 00:09:09,120 --> 00:09:12,120 Speaker 6: it is not taken enough care of customer data that 160 00:09:12,120 --> 00:09:15,440 Speaker 6: were shared with third parties, and so they were held 161 00:09:15,640 --> 00:09:19,520 Speaker 6: in violation of a particular part of the Telecmmunications Act 162 00:09:19,520 --> 00:09:21,760 Speaker 6: and were assessed between the two of them a fine 163 00:09:21,760 --> 00:09:23,960 Speaker 6: of one hundred million dollars. So the question that has 164 00:09:24,000 --> 00:09:25,920 Speaker 6: been at the center of this case from the beginning 165 00:09:26,080 --> 00:09:29,520 Speaker 6: is were they entitled to a jury trial on those facts. 166 00:09:30,240 --> 00:09:34,360 Speaker 6: At the time that the FCC proceding began, most of 167 00:09:34,400 --> 00:09:37,319 Speaker 6: the admin law universe thought it was okay for agencies 168 00:09:37,360 --> 00:09:39,640 Speaker 6: to handle these cases in house rather than having to 169 00:09:39,640 --> 00:09:42,640 Speaker 6: go to court. But a couple of years ago the 170 00:09:42,679 --> 00:09:46,760 Speaker 6: Supreme Court issued a case called SEC versus Arcasey, which 171 00:09:46,800 --> 00:09:52,160 Speaker 6: said that in certain cases, agency adjudication of liability outside 172 00:09:52,160 --> 00:09:54,920 Speaker 6: of the court system violated the Seventh Amendment, which says 173 00:09:55,000 --> 00:09:58,480 Speaker 6: that in cases at law where a matter in controversies 174 00:09:58,480 --> 00:10:01,280 Speaker 6: more than twenty dollars, that the defendant has a right 175 00:10:01,320 --> 00:10:02,920 Speaker 6: to a trial before jury. And of course there's no 176 00:10:03,000 --> 00:10:07,640 Speaker 6: juries at agencies. So in the case of this, AT 177 00:10:07,720 --> 00:10:11,120 Speaker 6: and T and Verizon finds AT and T and Verizon 178 00:10:11,200 --> 00:10:15,839 Speaker 6: both challenged the preceding after Jarkazy, alleging that like the 179 00:10:15,840 --> 00:10:20,839 Speaker 6: SEC proceeding in Jarkazy, these proceedings were analogous to suit 180 00:10:20,880 --> 00:10:24,200 Speaker 6: at court of law and therefore should not have been 181 00:10:24,240 --> 00:10:26,679 Speaker 6: handled in house. Instead, they should have been tried by 182 00:10:26,720 --> 00:10:29,000 Speaker 6: the agency before a jury in court. 183 00:10:29,360 --> 00:10:33,560 Speaker 2: So, going outside the legal questions for a minute. I 184 00:10:33,640 --> 00:10:37,959 Speaker 2: find it hard to believe that those two carriers would 185 00:10:38,000 --> 00:10:41,800 Speaker 2: fare well before a jury overclaims of failure to protect 186 00:10:41,880 --> 00:10:45,560 Speaker 2: customer data. I mean, is this just a strategy to 187 00:10:45,760 --> 00:10:48,520 Speaker 2: recoup the fines or do they really mean it. 188 00:10:48,520 --> 00:10:51,079 Speaker 6: It's a good question. I think the short answer is yes, 189 00:10:51,240 --> 00:10:53,760 Speaker 6: because when you go before the court system, you get 190 00:10:54,360 --> 00:10:57,520 Speaker 6: a number of procedural protections that you wouldn't get before 191 00:10:57,520 --> 00:10:59,600 Speaker 6: the agency. So the federal rules of evidence apply, right, 192 00:10:59,679 --> 00:11:02,199 Speaker 6: or the analog if you're a state law case. There 193 00:11:02,200 --> 00:11:06,200 Speaker 6: are somewhat analogous protections in some agency adjudications, but not 194 00:11:06,280 --> 00:11:07,960 Speaker 6: all of them, and they're never as robust as what 195 00:11:08,000 --> 00:11:10,800 Speaker 6: you get in a federal court. More importantly, you get 196 00:11:10,800 --> 00:11:13,880 Speaker 6: in a decision maker that's not an employee of the agency. 197 00:11:13,960 --> 00:11:14,160 Speaker 1: Right. 198 00:11:14,880 --> 00:11:18,040 Speaker 6: Even in the most formal of agency adjudications, they're being 199 00:11:18,040 --> 00:11:21,719 Speaker 6: decided by an administrative law judge. The agency takes some 200 00:11:22,200 --> 00:11:25,560 Speaker 6: efforts internally to make sure that the adjudication side of 201 00:11:25,559 --> 00:11:27,640 Speaker 6: the house is different from the enforcement side of the house. 202 00:11:28,160 --> 00:11:30,360 Speaker 6: But that's I think many critics would say, a pale 203 00:11:30,720 --> 00:11:34,520 Speaker 6: imitation of the constitutional separation of powers that we require 204 00:11:34,520 --> 00:11:36,160 Speaker 6: outside of the admin law context. 205 00:11:36,640 --> 00:11:39,720 Speaker 2: So there was a lot of discussion in the Supreme 206 00:11:39,760 --> 00:11:44,760 Speaker 2: Court arguments about whether the FCC's finds are binding or 207 00:11:44,880 --> 00:11:48,920 Speaker 2: non binding, particularly just as Cavanon, just as Gorse It's 208 00:11:49,040 --> 00:11:51,760 Speaker 2: pressed on that explain why that's important. 209 00:11:52,360 --> 00:11:56,320 Speaker 6: Yeah, So it's a little bit nuanced because the agency's 210 00:11:56,360 --> 00:12:00,160 Speaker 6: position has changed over the course of the preceding says 211 00:12:00,200 --> 00:12:03,760 Speaker 6: Kalvanaugh had a great quip that Verizon's reply REEF started 212 00:12:03,760 --> 00:12:05,959 Speaker 6: by saying the government is in retreat. Kavinaugh agreed with 213 00:12:06,000 --> 00:12:09,840 Speaker 6: that in sort of. When the case began, the agency's 214 00:12:09,960 --> 00:12:12,160 Speaker 6: view was there's no Seventh Amendment problem with this, but 215 00:12:12,160 --> 00:12:15,920 Speaker 6: that was before Jarkazy. After Jarkasey, the agency's view was 216 00:12:16,320 --> 00:12:20,480 Speaker 6: the Seventh Amendment is satisfied because even though we're deciding 217 00:12:20,520 --> 00:12:24,960 Speaker 6: liability and issueing a fine in house, the entities are 218 00:12:24,960 --> 00:12:26,360 Speaker 6: not required. 219 00:12:25,880 --> 00:12:26,800 Speaker 1: To pay immediately. 220 00:12:27,200 --> 00:12:30,480 Speaker 6: So after an FCC proceeding, AT and T has two choices, right, 221 00:12:30,520 --> 00:12:33,120 Speaker 6: So I assume they are found you violated the law 222 00:12:33,240 --> 00:12:36,240 Speaker 6: and you owe a forty seven million dollar fine. AT 223 00:12:36,280 --> 00:12:39,000 Speaker 6: and T gets two choices. It can pay the fine 224 00:12:39,080 --> 00:12:43,360 Speaker 6: and appeal the liability decision before the DC Circuit, or 225 00:12:43,880 --> 00:12:47,280 Speaker 6: it can do nothing, basically say come at me and 226 00:12:47,400 --> 00:12:49,720 Speaker 6: wait to see if the Department of Justice sues on 227 00:12:49,760 --> 00:12:52,880 Speaker 6: behalf of the agency to collect the fine. In the 228 00:12:52,960 --> 00:12:56,440 Speaker 6: latter case, the trial is denovo before a court, but 229 00:12:56,520 --> 00:12:58,880 Speaker 6: in the former case right going straight to if the 230 00:12:58,920 --> 00:13:01,520 Speaker 6: agency pays the finding go straight to the Court of Appeal. 231 00:13:02,080 --> 00:13:04,400 Speaker 6: The court of Appeal doesn't have a jury, and so 232 00:13:04,440 --> 00:13:07,199 Speaker 6: it's essentially waving the jury trial right in order to 233 00:13:07,240 --> 00:13:09,480 Speaker 6: be able to clear its name. So AT and T 234 00:13:09,640 --> 00:13:10,840 Speaker 6: was of the view that this is sort of a 235 00:13:10,840 --> 00:13:14,640 Speaker 6: Hobs's choice, right. I can either challenge the fact that 236 00:13:14,720 --> 00:13:16,920 Speaker 6: I violated the law, in which case I have to 237 00:13:16,960 --> 00:13:19,600 Speaker 6: wave my jury right, or I can sit around with 238 00:13:19,640 --> 00:13:21,920 Speaker 6: this sort of damicals hanging over my head forever and 239 00:13:22,000 --> 00:13:25,600 Speaker 6: see if the DOJ ever comes after me. So at 240 00:13:25,600 --> 00:13:29,240 Speaker 6: the Fifth Circuit and then leading up to the Supreme 241 00:13:29,280 --> 00:13:34,600 Speaker 6: Courts taking a cerciari, the agency's position was the fact 242 00:13:34,640 --> 00:13:37,440 Speaker 6: that you have the option of waiting and seeing if 243 00:13:37,480 --> 00:13:39,920 Speaker 6: we'll sue you is enough to guarantee your jury trial right, 244 00:13:39,960 --> 00:13:44,160 Speaker 6: because you'll get a trial de novo eventually, even though 245 00:13:44,400 --> 00:13:47,400 Speaker 6: you already have been basically tried before the agency. 246 00:13:47,520 --> 00:13:47,880 Speaker 1: X and T. 247 00:13:48,520 --> 00:13:51,800 Speaker 6: There are two I think potential problems with this. One 248 00:13:52,120 --> 00:13:55,040 Speaker 6: is you're not guaranteed a jury trial, right, right. You're 249 00:13:55,040 --> 00:13:57,680 Speaker 6: guaranteed a jury trial right if and only if the 250 00:13:57,720 --> 00:14:00,560 Speaker 6: DOJ chooses to pursue the fine. So you may say, well, 251 00:14:00,600 --> 00:14:02,240 Speaker 6: that's fine. If the DAJA doesn't pursue the fine, you 252 00:14:02,280 --> 00:14:05,040 Speaker 6: don't have to give up the money, But the liability 253 00:14:05,160 --> 00:14:09,319 Speaker 6: ruling would still stand. And finding that a carrier has 254 00:14:09,600 --> 00:14:13,320 Speaker 6: violated the law can have collateral consequences. A PR issues 255 00:14:13,360 --> 00:14:17,120 Speaker 6: right big headlines at and t mishandles customer information, but 256 00:14:17,320 --> 00:14:22,680 Speaker 6: b it can affect future SEC proceedings. So wireless carriers 257 00:14:22,720 --> 00:14:25,440 Speaker 6: operate pursuant to a license to use the spectrum in 258 00:14:25,520 --> 00:14:27,360 Speaker 6: order to be able to send the radio waves to 259 00:14:27,400 --> 00:14:31,000 Speaker 6: and from your cell phone. Those licenses are issued by 260 00:14:31,000 --> 00:14:32,840 Speaker 6: the government for a fixed period, and when the SEC 261 00:14:32,920 --> 00:14:36,480 Speaker 6: decides to renew those licenses, it takes into consideration were 262 00:14:36,520 --> 00:14:39,920 Speaker 6: you a good citizen and willful violations of the law 263 00:14:39,960 --> 00:14:42,200 Speaker 6: can count against you. It can be a grounds for 264 00:14:42,280 --> 00:14:44,560 Speaker 6: the SEC to say we will not renew your license 265 00:14:44,600 --> 00:14:48,000 Speaker 6: going forward. So I think the agency eventually realized the 266 00:14:48,000 --> 00:14:50,360 Speaker 6: difficulties of this argument as well, because by the time 267 00:14:50,520 --> 00:14:53,840 Speaker 6: they were before the Supreme Court and in an argument yesterday, 268 00:14:54,120 --> 00:14:56,800 Speaker 6: the agency's position was that what happens that the agency 269 00:14:56,880 --> 00:15:00,320 Speaker 6: is completely not binding. It's essentially the equivalent of of 270 00:15:00,400 --> 00:15:03,720 Speaker 6: a charging document. The FCC's investigated this and is now 271 00:15:03,760 --> 00:15:07,960 Speaker 6: authorizing the DOJ to go after the entity on these 272 00:15:08,000 --> 00:15:10,600 Speaker 6: grounds and for this amount of money. Only if the 273 00:15:10,640 --> 00:15:14,120 Speaker 6: DOJ then chooses to pursue it in court, is AT 274 00:15:14,200 --> 00:15:16,960 Speaker 6: and T ever liable and ever potentially have to pay 275 00:15:17,040 --> 00:15:19,560 Speaker 6: the fine. So there's a sense in which, no matter 276 00:15:19,600 --> 00:15:21,880 Speaker 6: what happens in the opinion, AT and T and Verison 277 00:15:21,960 --> 00:15:24,560 Speaker 6: have won a huge victory already, and I think many 278 00:15:24,600 --> 00:15:28,320 Speaker 6: of the justices recognized that going forward, the adjudication process 279 00:15:28,400 --> 00:15:29,720 Speaker 6: is going to be very different than it was in 280 00:15:29,760 --> 00:15:32,680 Speaker 6: the past. The basic question left over is kind of 281 00:15:33,120 --> 00:15:36,720 Speaker 6: what possibly can be the preclusive effect of those not 282 00:15:36,880 --> 00:15:39,640 Speaker 6: binding orders in collateral proceedings. 283 00:15:39,920 --> 00:15:42,600 Speaker 2: As to the question about whether AT and T and 284 00:15:42,680 --> 00:15:46,320 Speaker 2: Verizon Seventh Amendment rights were violated, did you think a 285 00:15:46,400 --> 00:15:50,480 Speaker 2: majority of the justices felt they weren't violated. 286 00:15:50,960 --> 00:15:53,080 Speaker 6: I will say he answers a little bit more nuanced. 287 00:15:53,160 --> 00:15:56,160 Speaker 6: I think the agency has conceded that under the way 288 00:15:56,200 --> 00:15:58,600 Speaker 6: the agency did business up until this case, it would 289 00:15:58,640 --> 00:16:00,760 Speaker 6: have been a Seventh Amendment violation, which, like I said, 290 00:16:00,760 --> 00:16:03,400 Speaker 6: I think is already a huge win for AT and T. 291 00:16:03,960 --> 00:16:07,200 Speaker 6: I think the question going forward is does the agency's 292 00:16:07,600 --> 00:16:13,200 Speaker 6: disclaimer of any bindingness by the FCC order solve that problem. 293 00:16:13,600 --> 00:16:16,680 Speaker 6: It seems like much of the court said yes, if 294 00:16:16,680 --> 00:16:20,120 Speaker 6: we accept the government's concession that none of these orders 295 00:16:20,160 --> 00:16:22,960 Speaker 6: are binding unless and until the DOJ seeks to enforce 296 00:16:23,000 --> 00:16:26,240 Speaker 6: them in court, then it's probably not a Seventh Amendment issue. 297 00:16:26,440 --> 00:16:28,280 Speaker 6: I think you're probably going to get a majority on that, 298 00:16:28,640 --> 00:16:31,800 Speaker 6: but I think the advocates were still disputing kind of 299 00:16:31,800 --> 00:16:35,040 Speaker 6: what not binding means. The FCC wanted to hold on 300 00:16:35,080 --> 00:16:37,600 Speaker 6: to the fact that if we find facts in the 301 00:16:37,640 --> 00:16:40,720 Speaker 6: earlier proceeding, we might be able to rely upon those 302 00:16:40,800 --> 00:16:43,080 Speaker 6: in a later proceeding because the later proceeding would also 303 00:16:43,160 --> 00:16:46,960 Speaker 6: be subject to judicial review before a jury, and I 304 00:16:46,960 --> 00:16:49,640 Speaker 6: think AT and T was uncomfortable making even that concession. 305 00:16:49,880 --> 00:16:52,720 Speaker 6: But this feels like a minor issue in the grand 306 00:16:52,760 --> 00:16:53,520 Speaker 6: scheme of the case. 307 00:16:54,240 --> 00:16:56,680 Speaker 2: Question about whether AT and T will be able to 308 00:16:57,200 --> 00:17:00,800 Speaker 2: get back what they paid. Kevin All suggests they were 309 00:17:00,880 --> 00:17:03,760 Speaker 2: duped by the FCC and they should get their money back. 310 00:17:04,920 --> 00:17:05,280 Speaker 1: Yeah. 311 00:17:05,320 --> 00:17:09,160 Speaker 6: So, up until the grant of cerciari. In this case, 312 00:17:09,400 --> 00:17:11,480 Speaker 6: the FCC was under the view that we ordered you 313 00:17:11,520 --> 00:17:14,800 Speaker 6: to pay this fine, and even though we have to 314 00:17:14,800 --> 00:17:17,080 Speaker 6: wait for the DOJ to enforce it, if you want 315 00:17:17,119 --> 00:17:19,120 Speaker 6: to seek your right for immediate appeal, you have to pay. 316 00:17:19,160 --> 00:17:22,119 Speaker 6: This is under DC circuit precedent. If now the agency 317 00:17:22,119 --> 00:17:24,600 Speaker 6: has changed its position in saying, actually, although the order 318 00:17:24,680 --> 00:17:27,040 Speaker 6: said this is a fine, you have to pay it, 319 00:17:27,080 --> 00:17:29,560 Speaker 6: we didn't really need it. Justice Kavanaugh's concern was, well, 320 00:17:29,600 --> 00:17:32,399 Speaker 6: AT and T then paid because they thought they had to, 321 00:17:32,480 --> 00:17:33,560 Speaker 6: and now you're saying they don't. 322 00:17:33,800 --> 00:17:34,400 Speaker 1: I think the. 323 00:17:34,480 --> 00:17:36,720 Speaker 6: FCC had a good response to that, which is, well, 324 00:17:36,840 --> 00:17:38,879 Speaker 6: we told them they always had the option to wait 325 00:17:39,080 --> 00:17:42,400 Speaker 6: and not pay and then see if the DOJ enforces. 326 00:17:42,600 --> 00:17:44,639 Speaker 6: But also if you think they've been duped, that's probably 327 00:17:44,640 --> 00:17:46,880 Speaker 6: a good question to answer on remand right. So raise 328 00:17:46,920 --> 00:17:48,920 Speaker 6: the question, then remand it back to the district court 329 00:17:49,000 --> 00:17:51,040 Speaker 6: for further fact finding on that question. I think that's 330 00:17:51,080 --> 00:17:51,600 Speaker 6: probably fair. 331 00:17:51,680 --> 00:17:53,520 Speaker 2: I mean, what are the chances that they'll get the 332 00:17:53,560 --> 00:17:54,240 Speaker 2: money back? 333 00:17:54,520 --> 00:17:56,520 Speaker 6: I actually think it sounds pretty good at this point. Really, 334 00:17:56,800 --> 00:17:59,239 Speaker 6: I guess the key question is is the DOJ then 335 00:17:59,320 --> 00:18:01,919 Speaker 6: going to go ahead and file a separate lawsuit, in 336 00:18:01,920 --> 00:18:04,880 Speaker 6: which case we will get exactly where you started. You're questioning, 337 00:18:04,880 --> 00:18:07,879 Speaker 6: which would be a trial before a jury of att 338 00:18:08,000 --> 00:18:12,000 Speaker 6: and verising customers about whether their information was mishandled. It 339 00:18:12,040 --> 00:18:13,920 Speaker 6: may or may not go the way the carriers want 340 00:18:13,960 --> 00:18:16,320 Speaker 6: them to. I think that's for the next chapter in 341 00:18:16,320 --> 00:18:17,800 Speaker 6: this case. Right now, they're trying to get out of 342 00:18:17,840 --> 00:18:20,840 Speaker 6: a nearly certain find by the agency, and it seems like, 343 00:18:20,960 --> 00:18:23,960 Speaker 6: regardless of what the court does, they've gotten a concession 344 00:18:23,960 --> 00:18:25,879 Speaker 6: that the find is currently not binding on them. So 345 00:18:25,880 --> 00:18:27,440 Speaker 6: I think they're going to try to get their money back. 346 00:18:27,680 --> 00:18:31,640 Speaker 2: Good luck with that. So I've read that this decision 347 00:18:31,680 --> 00:18:36,160 Speaker 2: could have implications for other federal agencies that assess similar 348 00:18:36,600 --> 00:18:39,840 Speaker 2: civil penalties before holding a jury trial. Even though the 349 00:18:39,920 --> 00:18:44,040 Speaker 2: FCC has made those concessions here, does the decision still 350 00:18:44,119 --> 00:18:46,600 Speaker 2: have those implications for other agencies? 351 00:18:46,640 --> 00:18:46,840 Speaker 1: Does? 352 00:18:46,920 --> 00:18:49,280 Speaker 6: Because the key issue I think the problem for the 353 00:18:49,320 --> 00:18:52,120 Speaker 6: FCC is the statue doesn't say anything about it being 354 00:18:52,119 --> 00:18:54,719 Speaker 6: not binding. In fact, the statues is quite the opposite. 355 00:18:54,800 --> 00:18:57,280 Speaker 6: It says that you have been assessed and uses much 356 00:18:57,320 --> 00:19:00,359 Speaker 6: more mandatory language. It's language that lots of a agency 357 00:19:00,480 --> 00:19:04,920 Speaker 6: enforcement statutes use. And if the Supreme Court says, in 358 00:19:05,040 --> 00:19:08,280 Speaker 6: order to avoid a constitutional Seventh Amendment problem, we're going 359 00:19:08,320 --> 00:19:11,560 Speaker 6: to interpret this statute to only be not binding. As 360 00:19:11,560 --> 00:19:14,119 Speaker 6: the Sec suggests, that's going to have a ripple effect 361 00:19:14,160 --> 00:19:16,240 Speaker 6: to many other agencies as well. What it does is 362 00:19:16,280 --> 00:19:20,239 Speaker 6: it turns what is right now in a largely in 363 00:19:20,320 --> 00:19:24,239 Speaker 6: house alternative, a cheaper alternative to going to court in 364 00:19:24,320 --> 00:19:27,239 Speaker 6: order to settle disputes, to be much more like a 365 00:19:27,280 --> 00:19:30,159 Speaker 6: prosecutor deciding whether or not to charge a case. The 366 00:19:30,200 --> 00:19:32,600 Speaker 6: effect of this is going to be to move the 367 00:19:32,720 --> 00:19:36,440 Speaker 6: question of whether a party is actually liable away from 368 00:19:36,480 --> 00:19:41,160 Speaker 6: agencies and more in toward courts. So right now, agencies 369 00:19:41,440 --> 00:19:44,040 Speaker 6: adjudicate a lot of cases in house as an alternative 370 00:19:44,080 --> 00:19:46,719 Speaker 6: to going to court because it's cheaper, it's faster. If 371 00:19:46,960 --> 00:19:49,639 Speaker 6: this statute and several others like it are interpreted as 372 00:19:49,680 --> 00:19:53,399 Speaker 6: making those agency decisions only not binding unless and until 373 00:19:53,440 --> 00:19:56,280 Speaker 6: the DOJ sews to enforce them in court, it's going 374 00:19:56,320 --> 00:20:00,639 Speaker 6: to make that cheap quick resolution of in force finds 375 00:20:00,760 --> 00:20:04,040 Speaker 6: much less likely to happen. So agencies will stop sort 376 00:20:04,080 --> 00:20:07,159 Speaker 6: of adjudicating many of these cases, or at least fewer 377 00:20:07,200 --> 00:20:09,080 Speaker 6: of I would say, some of them will still handle 378 00:20:09,119 --> 00:20:10,600 Speaker 6: in house, but more of them will be moved into 379 00:20:10,640 --> 00:20:11,480 Speaker 6: the court system. 380 00:20:11,520 --> 00:20:13,879 Speaker 2: Do you see this case as a challenge to the 381 00:20:14,000 --> 00:20:16,320 Speaker 2: power of administrative agencies? 382 00:20:16,760 --> 00:20:20,000 Speaker 6: This is consistent with the broader trend in administrative law 383 00:20:20,040 --> 00:20:21,960 Speaker 6: that we've been seeing for a long time with this 384 00:20:22,040 --> 00:20:27,840 Speaker 6: Supreme Court. Agencies have always been uncomfortable entities for folks 385 00:20:28,320 --> 00:20:31,280 Speaker 6: who believe in sort of an originalist conception of government, 386 00:20:31,320 --> 00:20:36,560 Speaker 6: because the separation of powers between the executive, the legislative, 387 00:20:36,600 --> 00:20:39,560 Speaker 6: and the judiciary are all mashed together in an agency. 388 00:20:39,960 --> 00:20:42,200 Speaker 6: It feels like the long term project of this Court 389 00:20:42,240 --> 00:20:45,960 Speaker 6: has been to try to unwind those and make agencies 390 00:20:46,040 --> 00:20:48,199 Speaker 6: much more into what they appear to be on the 391 00:20:48,240 --> 00:20:51,520 Speaker 6: government org chart right, a branch of the executive as 392 00:20:51,520 --> 00:20:54,959 Speaker 6: opposed to entities that mix the powers in biotional separation 393 00:20:55,000 --> 00:20:57,479 Speaker 6: of powers. Charcasi was a big move in that direction, 394 00:20:57,560 --> 00:20:59,960 Speaker 6: and I think this decision will probably advance that ball 395 00:21:00,000 --> 00:21:00,680 Speaker 6: a little bit more. 396 00:21:00,880 --> 00:21:05,600 Speaker 2: That was a great explanation of the conservative justice's attitude 397 00:21:05,680 --> 00:21:09,600 Speaker 2: toward the so called administrative state. Thanks so much for 398 00:21:09,720 --> 00:21:14,040 Speaker 2: joining me, Daniel. That's professor Daniel Lyons of Boston College 399 00:21:14,119 --> 00:21:20,040 Speaker 2: Law School. The federal government will begin automatically registering eligible 400 00:21:20,119 --> 00:21:23,600 Speaker 2: men between the ages of eighteen and twenty five for 401 00:21:23,680 --> 00:21:27,920 Speaker 2: the military draft starting in December. The measure was included 402 00:21:27,920 --> 00:21:32,359 Speaker 2: in the National Defense Authorization Act that President Trump signed 403 00:21:32,440 --> 00:21:36,280 Speaker 2: last December. This change is getting more attention in light 404 00:21:36,320 --> 00:21:40,240 Speaker 2: of the US war with Iran and raising questions about 405 00:21:40,320 --> 00:21:43,600 Speaker 2: whether it's setting the stage for a draft. Joining me 406 00:21:43,680 --> 00:21:47,280 Speaker 2: is Jeremy Kessler, a professor at Columbia Law School. He 407 00:21:47,359 --> 00:21:51,840 Speaker 2: has a book coming out entitled Conscription and Constitutional Change 408 00:21:51,880 --> 00:21:56,560 Speaker 2: in twentieth century America. What is the situation right now 409 00:21:56,600 --> 00:21:58,600 Speaker 2: with registering for the draft. 410 00:21:59,119 --> 00:22:01,280 Speaker 1: The new law has an gone into effect yet, so 411 00:22:01,440 --> 00:22:03,960 Speaker 1: right now men between the ages of eighteen and twenty 412 00:22:04,000 --> 00:22:08,560 Speaker 1: five are still obligated to send in a registration card 413 00:22:08,880 --> 00:22:12,480 Speaker 1: or sign up online for the draft. But as of 414 00:22:12,480 --> 00:22:15,199 Speaker 1: December twenty twenty six, what's supposed to happen is the 415 00:22:15,200 --> 00:22:21,560 Speaker 1: Selective Service System will issue some regulations that implement automatic registration. 416 00:22:22,000 --> 00:22:24,439 Speaker 1: What that will mean starting at the end of this 417 00:22:24,520 --> 00:22:28,639 Speaker 1: year is that the Selective Service System is going to 418 00:22:28,800 --> 00:22:34,640 Speaker 1: draw on Social Security Administration and DHS databases to essentially 419 00:22:34,640 --> 00:22:37,600 Speaker 1: get a picture of all young men in the United 420 00:22:37,600 --> 00:22:40,119 Speaker 1: States between the ages of eighteen and twenty five and 421 00:22:40,160 --> 00:22:43,480 Speaker 1: will automatically register to them for the draft. And that's 422 00:22:43,640 --> 00:22:44,480 Speaker 1: that's the new thing. 423 00:22:44,720 --> 00:22:46,560 Speaker 2: And is this because a new law was passed. 424 00:22:47,320 --> 00:22:50,760 Speaker 1: It's an amendment to the National Defense Authorization Act, which 425 00:22:50,800 --> 00:22:54,920 Speaker 1: is a kind of omnibus piece of legislation that covers 426 00:22:54,960 --> 00:22:59,800 Speaker 1: many aspects of military preparedness. And it basically just amends 427 00:23:00,080 --> 00:23:03,639 Speaker 1: effectively the Military Selective Service Act, which is the squad 428 00:23:03,680 --> 00:23:06,879 Speaker 1: that's been on the books in various forms for decades. 429 00:23:07,040 --> 00:23:10,240 Speaker 1: And indeed, a lot of it goes back to nineteen 430 00:23:10,320 --> 00:23:13,440 Speaker 1: forty when we had the kind of first peacetime draft 431 00:23:13,520 --> 00:23:15,960 Speaker 1: law prior to World War Two. So that law has 432 00:23:16,000 --> 00:23:22,320 Speaker 1: been amended and modified countless times under different circumstances. And 433 00:23:22,359 --> 00:23:25,919 Speaker 1: what this amendment does is it just says, instead of 434 00:23:25,960 --> 00:23:30,760 Speaker 1: having since nineteen eighty, which is when President Carter reinstated 435 00:23:30,800 --> 00:23:35,840 Speaker 1: the registration requirement, every guy in the United States when 436 00:23:35,840 --> 00:23:39,480 Speaker 1: they turned eighteen, with a few exceptions, was obligated by 437 00:23:39,560 --> 00:23:42,479 Speaker 1: law to register for the draft. You know. So that's 438 00:23:42,520 --> 00:23:44,680 Speaker 1: what I did when I was eighteen. That's what most 439 00:23:45,400 --> 00:23:47,480 Speaker 1: folks have done. You have to mail in a card, 440 00:23:47,800 --> 00:23:49,800 Speaker 1: or later, when we had, you know, the internet, you 441 00:23:49,840 --> 00:23:52,200 Speaker 1: had to go through an online portal, So the obligation 442 00:23:52,440 --> 00:23:56,720 Speaker 1: was on the individual to affirmatively register. If they didn't 443 00:23:56,760 --> 00:24:00,399 Speaker 1: affirmatively register, they were technically committing a federal crime. No 444 00:24:00,440 --> 00:24:04,520 Speaker 1: one really got prosecuted for not registering since this nineteen 445 00:24:04,520 --> 00:24:07,520 Speaker 1: eighty requirement. But the way they would kind of get 446 00:24:07,560 --> 00:24:11,879 Speaker 1: you is if you applied for federal loans, federal student loans, 447 00:24:12,280 --> 00:24:14,439 Speaker 1: or if you applied for an actual job with the 448 00:24:14,440 --> 00:24:17,200 Speaker 1: federal government, you'd be denied the loans, who denied the 449 00:24:17,280 --> 00:24:19,720 Speaker 1: job if you hadn't actually registered for the draft. So 450 00:24:19,760 --> 00:24:22,840 Speaker 1: that was a primary enforcement mechanism. But this amendment to 451 00:24:22,840 --> 00:24:26,200 Speaker 1: the Military Selective Service Act does says there's no more 452 00:24:26,200 --> 00:24:29,760 Speaker 1: affirmative obligation. You don't have to take any step to register. 453 00:24:30,000 --> 00:24:32,360 Speaker 1: We will register you ourselves. 454 00:24:32,880 --> 00:24:36,600 Speaker 2: Why the change. Isn't it better to have people registering 455 00:24:36,680 --> 00:24:41,680 Speaker 2: themselves than having the government looking through databases and then 456 00:24:41,720 --> 00:24:44,119 Speaker 2: at some point perhaps trying to track them down. 457 00:24:44,800 --> 00:24:47,600 Speaker 1: I think that's a great question. So one thing I 458 00:24:47,640 --> 00:24:51,359 Speaker 1: will say is that this push for automatic registration has 459 00:24:51,520 --> 00:24:53,879 Speaker 1: been i won't say a priority, but has been a 460 00:24:53,920 --> 00:24:57,280 Speaker 1: goal of a bipartisan group of folks who are interested 461 00:24:57,560 --> 00:25:02,199 Speaker 1: in kind of streamlining, mainstreaming national service you know, So 462 00:25:02,240 --> 00:25:05,280 Speaker 1: I wouldn't think of the automatic registration requirement simply as 463 00:25:05,320 --> 00:25:09,280 Speaker 1: like a Trump initiative. This has been debated several times 464 00:25:09,359 --> 00:25:12,480 Speaker 1: over the past many years, right, And one way of 465 00:25:12,520 --> 00:25:15,680 Speaker 1: looking at it is just this is more efficient. Why 466 00:25:16,160 --> 00:25:18,360 Speaker 1: require you know, when you turn eighteen? Lost of things 467 00:25:18,359 --> 00:25:22,199 Speaker 1: are going on. It's your eighteenth birthday. Why expect eighteen 468 00:25:22,280 --> 00:25:25,679 Speaker 1: year olds to like figure out, Oh, I have to 469 00:25:25,760 --> 00:25:27,760 Speaker 1: send in, you know, a letter, or I have to 470 00:25:27,800 --> 00:25:30,639 Speaker 1: go online to register for the draft, Like the federal 471 00:25:30,720 --> 00:25:34,720 Speaker 1: government knows you exist, either because you have a security 472 00:25:34,800 --> 00:25:38,159 Speaker 1: number or because if you're an immigrant, you've had a 473 00:25:38,200 --> 00:25:41,280 Speaker 1: point of contact with you know, the immigration authorities for 474 00:25:41,359 --> 00:25:43,800 Speaker 1: the most part. So why not streamline this? That's the 475 00:25:43,880 --> 00:25:46,800 Speaker 1: like nice story. But your question, wouldn't it be better 476 00:25:47,080 --> 00:25:49,960 Speaker 1: to maintain the affirmative obligation? I think is a very 477 00:25:49,960 --> 00:25:53,240 Speaker 1: smart one, because there's a downside. Even if you accept 478 00:25:53,280 --> 00:25:57,480 Speaker 1: that streamlining automatic registration makes sense, And even if you 479 00:25:57,520 --> 00:26:00,560 Speaker 1: think that like the ability to draft people is idea, 480 00:26:01,320 --> 00:26:05,679 Speaker 1: there's a downside. And here's the downside with automatic registration. Okay, 481 00:26:05,880 --> 00:26:09,920 Speaker 1: so now everyone's registered. Great, from the standpoint of you're 482 00:26:09,920 --> 00:26:12,440 Speaker 1: a military planner, you want to know the total population 483 00:26:12,520 --> 00:26:16,840 Speaker 1: of people you could potentially draft. They're registered, how do 484 00:26:16,880 --> 00:26:19,639 Speaker 1: you draft them? And the issue I'm getting at is 485 00:26:20,200 --> 00:26:23,240 Speaker 1: just because you know that a person exists, because you 486 00:26:23,280 --> 00:26:25,440 Speaker 1: have their social Security number and you know they're eighteen, 487 00:26:25,880 --> 00:26:28,520 Speaker 1: or you have their immigration records, doesn't mean you know 488 00:26:28,560 --> 00:26:31,320 Speaker 1: where they live, doesn't mean you know how to get 489 00:26:31,320 --> 00:26:34,760 Speaker 1: in contact with them. So I just want to flag 490 00:26:35,000 --> 00:26:38,800 Speaker 1: that the case for doing this right is efficiency, But 491 00:26:38,880 --> 00:26:42,240 Speaker 1: I'm not sure those efficiencies will pay off if you 492 00:26:42,359 --> 00:26:46,320 Speaker 1: actually start to try to classify and induct these automatically 493 00:26:46,400 --> 00:26:48,760 Speaker 1: registered people, because they have no idea that this is 494 00:26:48,800 --> 00:26:49,399 Speaker 1: even going on. 495 00:26:50,000 --> 00:26:53,600 Speaker 2: And I think many people when they hear about this 496 00:26:54,040 --> 00:26:58,240 Speaker 2: are going to question why they're doing this. Are they 497 00:26:58,280 --> 00:27:01,760 Speaker 2: thinking about reinstating a military draft. 498 00:27:02,480 --> 00:27:06,359 Speaker 1: I think that's a fair question. I would say that 499 00:27:07,040 --> 00:27:10,360 Speaker 1: five or ten years ago, I think when you started 500 00:27:10,400 --> 00:27:15,080 Speaker 1: to get a new round of interest in national service, 501 00:27:15,560 --> 00:27:18,679 Speaker 1: not necessarily military service, but you know, some Democrats and 502 00:27:18,720 --> 00:27:22,040 Speaker 1: some Republicans have floated, wouldn't it be great if everyone 503 00:27:22,119 --> 00:27:24,960 Speaker 1: had some national service publication, whether that's like a Teacher 504 00:27:24,960 --> 00:27:27,080 Speaker 1: for America type thing or a military service. 505 00:27:27,080 --> 00:27:27,560 Speaker 4: What have you? 506 00:27:28,040 --> 00:27:31,240 Speaker 1: As those folks made those kinds of arguments. I think 507 00:27:31,240 --> 00:27:34,560 Speaker 1: you also saw this more technocratic idea of automatic registration. 508 00:27:34,800 --> 00:27:36,920 Speaker 1: We should at least know what the full population of 509 00:27:36,960 --> 00:27:39,520 Speaker 1: people who might be subject to such a national service 510 00:27:39,560 --> 00:27:42,639 Speaker 1: requirement are. All of that when that was going on 511 00:27:42,760 --> 00:27:45,520 Speaker 1: ten years ago or so, I don't think that meant 512 00:27:45,680 --> 00:27:49,239 Speaker 1: we were moving back towards a draft. Today, however, I 513 00:27:49,240 --> 00:27:52,840 Speaker 1: think things are quite different. So in the current context, 514 00:27:53,119 --> 00:27:57,000 Speaker 1: with conflict with Russia, with China, and obviously most aenetically 515 00:27:57,119 --> 00:27:59,600 Speaker 1: right now with Iran, I think it would be silly 516 00:27:59,800 --> 00:28:03,760 Speaker 1: to not interpret this move to automatic registration in the 517 00:28:03,800 --> 00:28:10,280 Speaker 1: context of like an increasingly bellicose global environment. That's one two, 518 00:28:10,440 --> 00:28:12,720 Speaker 1: And this is a point I've made in a recent 519 00:28:13,160 --> 00:28:17,200 Speaker 1: forthcoming article in Boston University Law Review. I don't think 520 00:28:17,240 --> 00:28:19,840 Speaker 1: the general public is aware, and I actually don't think 521 00:28:19,840 --> 00:28:25,280 Speaker 1: most politicians are aware that within a variety of military 522 00:28:25,280 --> 00:28:28,760 Speaker 1: and national security think tanks that have been observing the 523 00:28:28,800 --> 00:28:32,120 Speaker 1: conflict between Russia and Ukraine, for instance, and that most 524 00:28:32,200 --> 00:28:35,119 Speaker 1: recently have been observing what's going on in Iran, I 525 00:28:35,119 --> 00:28:37,280 Speaker 1: don't think folks are aware that there's a growing sense 526 00:28:37,560 --> 00:28:40,560 Speaker 1: that actually, if we were to get into a land war, 527 00:28:40,960 --> 00:28:43,760 Speaker 1: even in a limited land war with any of these 528 00:28:43,800 --> 00:28:47,760 Speaker 1: significant powers Russia, Iran, or China, and maybe even less 529 00:28:47,760 --> 00:28:50,600 Speaker 1: significant ones, we probably would have to go turn back 530 00:28:50,640 --> 00:28:54,080 Speaker 1: on the draft. Now that's a controversial view. I'm reading 531 00:28:54,120 --> 00:28:57,400 Speaker 1: the white papers that these like the Army War College 532 00:28:57,440 --> 00:28:59,840 Speaker 1: is putting out, that the Center for New American Security 533 00:28:59,880 --> 00:29:02,440 Speaker 1: is putting out over the last couple of years. What 534 00:29:02,480 --> 00:29:06,240 Speaker 1: they're doing is they're looking at the casualty rates in 535 00:29:06,320 --> 00:29:09,040 Speaker 1: the war between Ukraine and Russia, and they are seeing 536 00:29:09,280 --> 00:29:13,400 Speaker 1: extremely high casualty rates. And there are two views about 537 00:29:13,440 --> 00:29:15,880 Speaker 1: what those casualty rates mean. And one view is the 538 00:29:15,920 --> 00:29:18,840 Speaker 1: casualty rates in Ukraine and Russia are just because like 539 00:29:19,440 --> 00:29:23,680 Speaker 1: it's like culture and geography, that's how Ukrainians and Russians fight, 540 00:29:24,560 --> 00:29:27,360 Speaker 1: you know, they're just it's an existential struggle to the death. 541 00:29:27,640 --> 00:29:31,080 Speaker 1: So they're not being very careful in terms of exposing 542 00:29:31,120 --> 00:29:36,760 Speaker 1: their soldiers, and particularly they're conscriptive soldiers to fire. That's 543 00:29:36,800 --> 00:29:40,280 Speaker 1: one view, and if that's your view, then the casualty 544 00:29:40,360 --> 00:29:44,240 Speaker 1: rates in Ukraine and Russia, the Ukraine Russia conflict don't 545 00:29:44,240 --> 00:29:47,440 Speaker 1: really are not relevant for gaming out how we would 546 00:29:47,440 --> 00:29:51,440 Speaker 1: fight ilan war in Iran, for instance. The other view, 547 00:29:51,480 --> 00:29:53,560 Speaker 1: which is the view that experts at the Army War 548 00:29:53,680 --> 00:29:56,760 Speaker 1: College and Center from New American Security have recently floated, 549 00:29:56,960 --> 00:29:59,720 Speaker 1: is this is not just about culture and geography. That 550 00:30:01,120 --> 00:30:04,360 Speaker 1: the high casualty rates are related to the use of drones, 551 00:30:04,960 --> 00:30:08,680 Speaker 1: are related to the use of various communications and surveillance 552 00:30:08,720 --> 00:30:13,120 Speaker 1: technologies that are basically all making it easier to strike 553 00:30:13,640 --> 00:30:17,640 Speaker 1: military units that aren't even on the front lines. You know, 554 00:30:17,720 --> 00:30:19,959 Speaker 1: you could try to have a war where you're limiting 555 00:30:20,000 --> 00:30:23,920 Speaker 1: casualties and it might not be up to you, you know, 556 00:30:23,960 --> 00:30:26,080 Speaker 1: if the enemy can kind of hit you with drones 557 00:30:26,080 --> 00:30:28,920 Speaker 1: and so forth. If that's right, if that second interpretation 558 00:30:29,040 --> 00:30:31,360 Speaker 1: is right, then we're going to need a draft because 559 00:30:31,360 --> 00:30:34,040 Speaker 1: we actually have a pretty small army right now. The 560 00:30:34,120 --> 00:30:35,320 Speaker 1: volunteer force is. 561 00:30:36,120 --> 00:30:39,720 Speaker 2: Small, the Air Force men, it's recruiting targets for twenty 562 00:30:39,800 --> 00:30:44,360 Speaker 2: twenty six ahead of the September thirtieth deadline. But is 563 00:30:44,400 --> 00:30:46,880 Speaker 2: that unusual? Has recruiting been difficult? 564 00:30:47,400 --> 00:30:52,360 Speaker 1: Recruitment has you know, is always a challenge to some extent. 565 00:30:53,880 --> 00:30:56,080 Speaker 1: The easiest way to recruit people is to pay them more. 566 00:30:56,320 --> 00:31:00,600 Speaker 1: That's obviously, you know, there tend to be budgetary obstacles 567 00:31:00,640 --> 00:31:03,800 Speaker 1: to that. But the real reason why the kind of 568 00:31:03,880 --> 00:31:07,160 Speaker 1: force in arms we have is quite small historically speaking, 569 00:31:07,960 --> 00:31:14,880 Speaker 1: is because the kind of the new paradigm really since 570 00:31:15,000 --> 00:31:20,920 Speaker 1: the nineties, late eighties nineties for military conflict is we're 571 00:31:20,960 --> 00:31:23,280 Speaker 1: not going to use a lot of soldiers. We're going 572 00:31:23,320 --> 00:31:26,240 Speaker 1: to rely on air power. We're going to lye on 573 00:31:26,600 --> 00:31:32,480 Speaker 1: highly trained, you know, expert war fighters. We're not going 574 00:31:32,520 --> 00:31:39,800 Speaker 1: to get into protracted battles with these enormous casualty rates 575 00:31:39,920 --> 00:31:42,560 Speaker 1: where you're just kind of throwing soldiers into a gap 576 00:31:42,560 --> 00:31:44,680 Speaker 1: and having them be shot at. Right. So the whole 577 00:31:44,720 --> 00:31:47,800 Speaker 1: idea was we don't need a big army because we 578 00:31:47,840 --> 00:31:51,880 Speaker 1: don't want to fight that kind of war anymore. What 579 00:31:51,920 --> 00:31:55,160 Speaker 1: the high casualty rates in the Ukrainian Russian border suggest 580 00:31:55,400 --> 00:31:58,920 Speaker 1: is you might not get to decide that, right. The 581 00:31:59,320 --> 00:32:01,840 Speaker 1: idea of the kind of modern military planners is we 582 00:32:01,880 --> 00:32:05,920 Speaker 1: have highly trained, professional units that actually go in and 583 00:32:06,520 --> 00:32:08,960 Speaker 1: with a lot of air power and they get in 584 00:32:09,000 --> 00:32:12,479 Speaker 1: and they get out. That is not what we're seeing 585 00:32:13,400 --> 00:32:16,720 Speaker 1: in the Ukrainian Russian conflict. The Ukrainians try to do that, 586 00:32:17,360 --> 00:32:24,440 Speaker 1: but they can't really because they quickly get exposed to drones, artillery. 587 00:32:24,720 --> 00:32:28,600 Speaker 1: It's harder to kind of keep your own soldiers safe 588 00:32:28,800 --> 00:32:31,920 Speaker 1: in any event. It's only an analogy to the Ukraine 589 00:32:31,960 --> 00:32:36,040 Speaker 1: Russian conflict. But we've certainly designed our current military to 590 00:32:36,200 --> 00:32:39,560 Speaker 1: be small and nimble, not to be capable of absorbing 591 00:32:39,640 --> 00:32:40,600 Speaker 1: huge casualties. 592 00:32:41,240 --> 00:32:44,240 Speaker 2: In a March eighth interview, the White House Press Secretary 593 00:32:44,440 --> 00:32:47,560 Speaker 2: was asked what she would tell mothers who were worried 594 00:32:47,600 --> 00:32:51,040 Speaker 2: about the draft returning. She said something to the effect 595 00:32:51,160 --> 00:32:54,160 Speaker 2: of Trump doesn't remove any options from the table, but 596 00:32:54,200 --> 00:32:57,920 Speaker 2: there are no current plans to reinstate the draft. But 597 00:32:58,240 --> 00:33:02,560 Speaker 2: what would be the process if Trump decided to reinstate 598 00:33:02,600 --> 00:33:03,120 Speaker 2: the draft. 599 00:33:03,920 --> 00:33:05,320 Speaker 4: Well, so the. 600 00:33:05,360 --> 00:33:09,479 Speaker 1: First thing is that Congress would have to vote to 601 00:33:09,600 --> 00:33:14,320 Speaker 1: authorize induction authority. So right now the Military Selective Service 602 00:33:14,360 --> 00:33:18,160 Speaker 1: Act exists. And to go back to where the interview began, 603 00:33:18,680 --> 00:33:22,240 Speaker 1: there's now going to be automatic registration, so you know, 604 00:33:22,400 --> 00:33:25,880 Speaker 1: millions of folks will be registered for the draft. That 605 00:33:25,920 --> 00:33:28,600 Speaker 1: doesn't mean they can be drafted. Congress would have to 606 00:33:28,720 --> 00:33:33,120 Speaker 1: vote to turn back on induction authority, which means the 607 00:33:33,160 --> 00:33:37,880 Speaker 1: Department of Defense would set a monthly draft call, you know, 608 00:33:38,200 --> 00:33:41,440 Speaker 1: the number of soldiers they want drafted in a given month, 609 00:33:43,520 --> 00:33:46,920 Speaker 1: and then the Selective Service system, the bureaucracy would have 610 00:33:46,960 --> 00:33:52,040 Speaker 1: to rapidly expand, and it would somehow have to get 611 00:33:52,120 --> 00:33:57,640 Speaker 1: notice to everyone registered to either answer a series of 612 00:33:57,720 --> 00:34:02,280 Speaker 1: questions online or more traditional, to go to a selective 613 00:34:02,280 --> 00:34:06,720 Speaker 1: service office to be interviewed and examined. There needs to 614 00:34:06,800 --> 00:34:09,920 Speaker 1: be some kind of interview, whether in person or online, 615 00:34:10,239 --> 00:34:14,160 Speaker 1: in order to classify all these registered people. They're registered, 616 00:34:14,160 --> 00:34:17,759 Speaker 1: but they're not classified. What classified means is are you 617 00:34:18,640 --> 00:34:21,960 Speaker 1: available for military service or are you entitled to some 618 00:34:22,040 --> 00:34:25,359 Speaker 1: kind of deferment as defined in the statute. Deferments might 619 00:34:25,400 --> 00:34:29,839 Speaker 1: be you're enrolled in a program of higher education that's 620 00:34:29,880 --> 00:34:33,040 Speaker 1: important for you know, the national interest. It could be 621 00:34:33,160 --> 00:34:35,319 Speaker 1: that you are the sole provider for your family and 622 00:34:35,360 --> 00:34:38,399 Speaker 1: you have young dependents. There's a host or it could 623 00:34:38,400 --> 00:34:41,120 Speaker 1: be that you're a conscientious subjector or a minister. They 624 00:34:41,160 --> 00:34:44,920 Speaker 1: are a host of statutorily provided for deferments, but we 625 00:34:44,960 --> 00:34:47,920 Speaker 1: don't know who's entitled to what because we haven't classified 626 00:34:47,960 --> 00:34:54,479 Speaker 1: people in sixty years. So the first thing that would 627 00:34:54,520 --> 00:34:58,920 Speaker 1: need to happen is a very rapid effort to classify 628 00:34:59,000 --> 00:35:03,279 Speaker 1: these millions of auto madically registered people. Once they're classified, 629 00:35:03,400 --> 00:35:06,160 Speaker 1: you identify the population who is what's called one A, 630 00:35:06,960 --> 00:35:10,480 Speaker 1: which means available for immediate induction. That means they're physically 631 00:35:10,480 --> 00:35:13,160 Speaker 1: mentally fit and they're not entitled to some other deferment 632 00:35:13,239 --> 00:35:15,719 Speaker 1: or exemption, and then you have to order them to 633 00:35:15,800 --> 00:35:21,080 Speaker 1: report for induction into the armed forces. You could, with 634 00:35:21,160 --> 00:35:25,560 Speaker 1: a lot of bureaucratic labor, maybe do all of that 635 00:35:26,280 --> 00:35:30,120 Speaker 1: in a couple of months, but historically, what it takes 636 00:35:30,160 --> 00:35:33,359 Speaker 1: is a real national mobilization. And what I mean by that, 637 00:35:33,920 --> 00:35:36,880 Speaker 1: it's not enough just to have the bureaucrats hired and 638 00:35:37,000 --> 00:35:40,520 Speaker 1: ready to go. You actually need the American people to 639 00:35:40,719 --> 00:35:45,640 Speaker 1: be essentially putting pressure on their sons to show up. 640 00:35:46,080 --> 00:35:49,480 Speaker 2: Certainly, there's not a national commitment right now anything, But 641 00:35:50,080 --> 00:35:54,520 Speaker 2: thanks so much, Jeremy. That's Columbia Law School professor Jeremy Kessler, 642 00:35:55,120 --> 00:35:57,480 Speaker 2: and that's it for this edition of The Bloomberg Law Show. 643 00:35:57,800 --> 00:36:00,120 Speaker 2: Remember you can always get the latest legal news on 644 00:36:00,200 --> 00:36:04,480 Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, 645 00:36:04,640 --> 00:36:09,680 Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law, 646 00:36:10,080 --> 00:36:12,680 Speaker 2: and remember to tune into The Bloomberg Law Show every 647 00:36:12,719 --> 00:36:16,640 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso 648 00:36:16,760 --> 00:36:18,360 Speaker 2: and you're listening to Bloomberg