WEBVTT - Sarah Palin Takes on the New York Times 0:00:03.160 --> 0:00:07.920 This is Bloomberg Law with June Bresso from Bloomberg Radio. 0:00:09.080 --> 0:00:12.119 There are next door neighbors and you can actually see 0:00:12.320 --> 0:00:16.360 Russia from land here in Alaska. Former Alaska governor and 0:00:16.480 --> 0:00:20.600 vice presidential candidate Sarah Palin is known for her gaffs, 0:00:20.880 --> 0:00:24.920 from saying that Paul Revere warned the British to saying 0:00:24.960 --> 0:00:28.600 the Constitution is based on the Bible. The list goes 0:00:28.720 --> 0:00:31.880 on and on. However, it's not Palin but The New 0:00:31.960 --> 0:00:34.920 York Times that's on trial for false statements in a 0:00:34.960 --> 0:00:39.640 defamation case. Palin claims the newspaper hurt her reputation with 0:00:39.720 --> 0:00:43.120 the twenty seventeen opinion piece that tried to tie her 0:00:43.159 --> 0:00:47.160 political rhetoric to a deadly shooting. It's an uphill battle 0:00:47.240 --> 0:00:51.000 because of the Supreme Courts landmark nineteen sixty four decision 0:00:51.080 --> 0:00:55.040 in New York Times v. Sullivan. But Palin maybe looking 0:00:55.160 --> 0:00:58.480 beyond the New York trial to a Supreme Court where 0:00:58.480 --> 0:01:03.320 two justices have asked it revisiting the Sullivan decision joining 0:01:03.360 --> 0:01:06.120 me is got him hands. A professor at Vanderbilt Law 0:01:06.160 --> 0:01:09.959 School tell us about the New York Times standard that 0:01:10.000 --> 0:01:14.640 Palin is going to have to meet. So in deformation cases. 0:01:15.360 --> 0:01:19.800 The Supreme Court has established that for public figures like 0:01:20.080 --> 0:01:24.319 Sarah Palin, the plaintiff Palin in this case needs to 0:01:24.480 --> 0:01:28.600 establish that actual malice was present, that that that the 0:01:28.640 --> 0:01:33.000 publishers choices were so agreed to this. It's such a 0:01:33.080 --> 0:01:37.520 high level that they meet that actual malice standard. This 0:01:37.600 --> 0:01:41.200 is because part of our First Amendment tradition in this 0:01:41.319 --> 0:01:43.920 country is that we want to encourage speech, We want 0:01:43.920 --> 0:01:48.160 to encourage debate, particularly about public officials, public people, and 0:01:48.240 --> 0:01:52.960 so any kind of lower standard than actual malice might 0:01:53.000 --> 0:01:56.280 discourage that kind of public discourse that the First Amendment 0:01:56.480 --> 0:02:01.400 is aiming to promote. The Time hasn't lost a defamation 0:02:01.480 --> 0:02:05.240 case in more than half a century. So is that 0:02:05.400 --> 0:02:09.519 a very high bar for plaintiffs to get over. Yes, 0:02:09.800 --> 0:02:15.320 it's very difficult for plaintiffs to prevail in defamation cases, 0:02:15.440 --> 0:02:20.000 particularly when they're public officials like Sarah Palin, because of 0:02:20.120 --> 0:02:23.720 the Supreme Court's decisions dating back to the Sullivan case 0:02:23.880 --> 0:02:27.320 from their early sixties. That's why, as you noted, the 0:02:27.440 --> 0:02:31.160 Times says frequently prevailed as it defendant in such cases. 0:02:31.760 --> 0:02:36.160 If Palin loses here, where does Supreme Court take this case? 0:02:37.040 --> 0:02:40.359 Is it likely I think it's hard to say lawyers 0:02:40.480 --> 0:02:43.920 love to disclaim predictive qualities when it comes to the 0:02:43.919 --> 0:02:47.680 Supreme Court. I do think that Palin and her legal 0:02:47.720 --> 0:02:50.799 team realize that it's going to be difficult for them 0:02:50.840 --> 0:02:54.240 to win under the current law. Sometimes people bring cases 0:02:54.440 --> 0:02:57.160 thinking that, well, maybe we'll lose at the trial level, 0:02:57.240 --> 0:03:00.200 maybe we'll even lose at the appellate court level. We're 0:03:00.200 --> 0:03:02.960 going to aim for the Supreme Court so we can 0:03:02.960 --> 0:03:05.120 try to get the change to the law from the 0:03:05.120 --> 0:03:08.240 Supreme Court. And I think in this case that's not 0:03:08.440 --> 0:03:12.800 a wild bet to make, because at least two Supreme 0:03:12.840 --> 0:03:17.400 Court justices have some concerns about the precedent from the 0:03:17.440 --> 0:03:22.440 Sullivan Kates from the sixties, both Justices Thomas and Corsets. 0:03:22.639 --> 0:03:26.680 Clarence Thomas and the Corsets have made written statements saying 0:03:26.840 --> 0:03:31.280 that the Sullivan precedent and potentially the actual malice standard 0:03:31.840 --> 0:03:34.840 need to be revisited or to be revisited by the 0:03:34.840 --> 0:03:39.680 Supreme Court. So it takes four votes on the Supreme 0:03:39.720 --> 0:03:43.680 Court to grant sir serrari for review of a case, 0:03:44.040 --> 0:03:47.440 and we know there are possibly two, so that's halfway there. 0:03:47.840 --> 0:03:50.800 I think the possibility that there are another two. It's 0:03:50.840 --> 0:03:55.800 certainly conceivable to me. What are the reasons for thinking 0:03:55.880 --> 0:04:00.280 it's time to revisit New York Times Sullivan. I think 0:04:00.560 --> 0:04:05.760 that the Sullivan decision, although I think really necessary to 0:04:05.760 --> 0:04:09.160 promote a free press in ensuring that we can have 0:04:09.440 --> 0:04:11.720 a kind of public debate we want in this country, 0:04:12.040 --> 0:04:15.440 has had critics since it came down in the sixties, 0:04:15.560 --> 0:04:19.760 and in part because it's made defamation cases harder for 0:04:19.800 --> 0:04:22.960 plaintiffs to win on If you look at the UK, 0:04:23.160 --> 0:04:27.080 for example, they have a very different standard and so 0:04:27.279 --> 0:04:31.200 it's easier in in libel cases in the UK for 0:04:31.240 --> 0:04:34.240 plaintiffs to prevail. And so I suppose that some people 0:04:35.000 --> 0:04:39.200 feel that Sullivan doesn't work, or maybe in a digital 0:04:39.200 --> 0:04:42.719 economy with a different kind of news media landscape, that 0:04:42.920 --> 0:04:47.080 it's not applicable. So I think that there might be 0:04:47.279 --> 0:04:50.080 appetite and certainly, as I mentioned, there is from the 0:04:50.160 --> 0:04:53.760 justiceist of Coursation Thomas to maybe live in Sullivan or 0:04:53.839 --> 0:04:58.120 make it a bit easier for plaintiffs to win deformation cases. 0:04:58.240 --> 0:05:01.400 I think there are lots of ways that we could 0:05:01.400 --> 0:05:04.440 see the court moving were they to take the Paling 0:05:04.520 --> 0:05:07.360 case or another case like it. You know, I think 0:05:07.400 --> 0:05:10.840 many Supreme Court observers and many citizens have noticed that 0:05:10.880 --> 0:05:13.279 the Supreme Court has been revisiting a lot of its 0:05:13.440 --> 0:05:16.760 long standing precedents in recent years, Rovi Wade being the 0:05:16.800 --> 0:05:20.640 most obvious, and so this might be another entry on 0:05:20.800 --> 0:05:25.440 that list of long standing cases that, given the conservative 0:05:25.520 --> 0:05:29.160 nature and the Supreme Court's current members, could be up 0:05:29.200 --> 0:05:32.080 for revisiting. Can you explain why there has been this 0:05:32.240 --> 0:05:38.200 conservative outcry against the Sullivan decision because it protects what 0:05:38.279 --> 0:05:41.599 people see as liberal media as well as what people 0:05:41.600 --> 0:05:45.120 see as conservative media. It protects them both. Yeah, I 0:05:45.160 --> 0:05:48.320 think that's part of the reasons that I'm concerned about 0:05:48.360 --> 0:05:52.040 the possibility of revisiting Sullivan, because the First Amendment, I 0:05:52.160 --> 0:05:55.040 like to say, doesn't have a partisan balance. We all 0:05:55.080 --> 0:05:58.520 benefit from the person number protections. They don't just accrue 0:05:58.560 --> 0:06:01.880 to liberal sort of servatives. And so what's good for 0:06:01.920 --> 0:06:03.840 the goose is good for the gander. And you could 0:06:03.920 --> 0:06:07.000 see a limiting of Solivan not just harm to New 0:06:07.040 --> 0:06:10.880 York Times, but harm right wing media publications as well. 0:06:11.320 --> 0:06:14.039 I think that there's a lot of antipathy on the 0:06:14.160 --> 0:06:18.120 right towards what they consider the media, the mainstream media, 0:06:18.400 --> 0:06:20.599 and I think that this case is certainly part of 0:06:20.600 --> 0:06:24.320 that trend. I think to think that it's only going 0:06:24.360 --> 0:06:28.760 to harm the mainstream media is shortsighted, as the Sullivan 0:06:28.800 --> 0:06:31.800 decision and the person and that were broadly present all 0:06:31.839 --> 0:06:34.719 of us, not just on one side for the other, 0:06:35.279 --> 0:06:39.120 so that I think is lurking under the surface of 0:06:39.160 --> 0:06:42.560 the appetite for limiting the Solivan decision. I know that 0:06:42.600 --> 0:06:45.880 there's been some scholarship noting that judges have become much 0:06:45.920 --> 0:06:49.799 more hostile to the media in decisions over the last 0:06:49.880 --> 0:06:52.440 few decades, and I think that's the sign of the 0:06:52.560 --> 0:06:57.600 larger public disapproval or maybe hostility towards what they perceive 0:06:57.680 --> 0:07:02.880 of as the mainstream media. Was an editorial piece, is 0:07:02.920 --> 0:07:07.599 that treated differently than a straight news story. That distinction 0:07:08.160 --> 0:07:10.840 I don't think is really drawn in the cases, uh, 0:07:10.880 --> 0:07:14.400 in part because I think that's not always a clear line. 0:07:14.680 --> 0:07:18.000 Certainly for The Times, that they have that distinction between 0:07:18.000 --> 0:07:21.280 the news and the opinion desks, But I don't think 0:07:21.320 --> 0:07:24.840 that's material to this case. The Sulivan decision was actually 0:07:24.880 --> 0:07:27.880 about an advertisement, so it really comes down to what 0:07:28.000 --> 0:07:32.600 the publisher is promulgating in its media. The Times argues 0:07:32.680 --> 0:07:35.480 that it was an honest mistake and that it corrected 0:07:35.520 --> 0:07:39.000 the errors in about twelve hours. Is that a good 0:07:39.000 --> 0:07:42.480 defense under the Sullivan standard. Yeah. I think that's the 0:07:42.600 --> 0:07:48.400 strong point in the Times of favor that they acted expeditiously, 0:07:49.040 --> 0:07:52.880 relatively speaking, to correct it. I think that the plaintift 0:07:52.920 --> 0:07:55.760 Tarapinlan and her legal team would probably note that twelve 0:07:55.800 --> 0:07:59.080 hours in a digital eco system is like twelve days 0:07:59.240 --> 0:08:02.760 in the past, and that's maybe part of why they 0:08:03.200 --> 0:08:08.080 think that Sullivan doesn't work well in today's media landscape 0:08:08.120 --> 0:08:11.560 because of the acceleration of the time horizon. But you know, 0:08:11.680 --> 0:08:14.120 that's not part of the current standard under the law. 0:08:14.400 --> 0:08:17.200 Perhaps it might be if that's where it goes on appeal. 0:08:17.720 --> 0:08:22.160 How would you describe what reckless disregard is, because all 0:08:22.240 --> 0:08:27.320 these pieces go through various levels at newspapers. I think 0:08:27.400 --> 0:08:31.280 that would have to be just completely shutting your eyes 0:08:31.280 --> 0:08:35.160 and ignoring the evidence to a really high degree, because 0:08:35.160 --> 0:08:37.400 it's part of the reason it's a high standard. It 0:08:37.480 --> 0:08:41.600 really needs to demonstrate the complete lack of any kind 0:08:41.640 --> 0:08:43.920 of care. And I think the Times would argue that 0:08:44.000 --> 0:08:46.760 that's not president this case. You know, some of the 0:08:46.760 --> 0:08:50.560 defamation cases that have been going on as of late 0:08:50.880 --> 0:08:53.960 that implicate the standard. You know, I think the dominion 0:08:54.240 --> 0:08:56.880 case based one of them about voting machines there. I 0:08:56.920 --> 0:09:00.160 think the plaintiffs have argued that there's this complete and 0:09:00.320 --> 0:09:02.760 constant putting your head in the stand on the part 0:09:02.800 --> 0:09:05.600 of the media organization in those cases. So it really 0:09:05.720 --> 0:09:08.000 needs to be pretty flagrant, which is part of the 0:09:08.040 --> 0:09:11.880 reason that most plaintiffs have a hard time winning. I'm wondering, 0:09:11.920 --> 0:09:15.760 you know, at night, you have TV hosts saying some 0:09:16.040 --> 0:09:21.360 pretty outrageous things, and without the time standard, would they 0:09:21.400 --> 0:09:24.760 be held on a tighter rein yes, I think so. 0:09:24.920 --> 0:09:28.200 I think that you would see much more caution and 0:09:28.240 --> 0:09:33.040 maybe even hesitancy from members of the media, from interviewees, 0:09:33.640 --> 0:09:37.400 and that cuts both ways. I think that some would 0:09:37.400 --> 0:09:39.680 say that, you know, we need to have more care, 0:09:40.000 --> 0:09:43.680 that the people should be more guarded or thoughtful about 0:09:43.679 --> 0:09:48.520 their statements. But more commonly, at least existing cases, the 0:09:48.600 --> 0:09:50.719 courts have said, no, you know, the First Amendment is 0:09:50.800 --> 0:09:54.400 really broad for a reason, and we are trying to 0:09:54.520 --> 0:09:57.760 avoid a kind of self policing or a fear of 0:09:58.240 --> 0:10:01.400 use and legal action. That the best way to have 0:10:01.520 --> 0:10:03.920 people try to be cautious about what they say is 0:10:03.920 --> 0:10:07.400 not for the specter of the lawsuit to be present, 0:10:07.480 --> 0:10:10.720 but rather for social mores and and other ways of 0:10:10.840 --> 0:10:16.280 societal cohesion about certain ideas is better. Oftentimes lawyers in 0:10:16.360 --> 0:10:18.440 sectors will say, you know, there are lots of social 0:10:18.440 --> 0:10:20.800 problems that we have, but maybe the law is the 0:10:20.800 --> 0:10:23.040 best way to address those. The law is not always 0:10:23.080 --> 0:10:25.560 the best tool to try to promote certain goals or 0:10:25.600 --> 0:10:30.440 discourage certain outcomes. And the broad standard that we have 0:10:30.640 --> 0:10:34.400 now sort of takes lawsuits largely off the table for 0:10:34.480 --> 0:10:38.520 defamation and moves us to a setting where society as 0:10:38.559 --> 0:10:40.760 a whole, or American culture as a whole, can try 0:10:40.800 --> 0:10:43.760 to decide what's inbounds and what's out of bounds. Of course, 0:10:43.760 --> 0:10:46.360 I'm in the polarized era like today. That's very hard 0:10:46.400 --> 0:10:49.760 to achieve, and it maybe even impossible, And perhaps that's 0:10:49.800 --> 0:10:54.439 why the lack of a social mechanism for developing ideas 0:10:54.679 --> 0:10:57.760 is perhaps why some people are more optimistic about some 0:10:57.840 --> 0:11:01.840 kind of legal outcome. Very expensive case, and if it 0:11:01.880 --> 0:11:04.560 goes to the Supreme Court, even more expensive. Is she 0:11:04.640 --> 0:11:07.960 paying her lawyers or these lawyers pro bono or do 0:11:08.000 --> 0:11:10.960 you have any idea about them? I don't know about that. 0:11:11.040 --> 0:11:13.640 I mean, there's lots of ways to finance lawsuits. It 0:11:13.679 --> 0:11:16.880 could be a pro bono. I think sometimes you see 0:11:17.240 --> 0:11:20.840 expensive cases being litigated pro bono because they're high profile, 0:11:21.080 --> 0:11:25.080 or they might accrue some kind of social standing. There 0:11:25.200 --> 0:11:27.839 is litigation financing that seems to be a little odd 0:11:27.840 --> 0:11:30.400 in this kind of situation. But you know, there's all 0:11:30.400 --> 0:11:33.560 sorts of ways that you can imagine the case finance. 0:11:33.600 --> 0:11:36.680 But I think that pro bono or reduced hourly rate 0:11:36.880 --> 0:11:40.400 certainly possible for a high profile case where if they win, 0:11:41.040 --> 0:11:45.640 not only do they win big potentially on a financial reward, 0:11:45.679 --> 0:11:50.040 but they may also win reputationally as the legal team 0:11:50.080 --> 0:11:53.280 that took down or limited Sullivan and took down or 0:11:53.400 --> 0:11:57.960 or harmed the Times. Is this the highest profile defamation 0:11:58.080 --> 0:12:01.480 case that we've seen in a while. This is I 0:12:01.520 --> 0:12:04.720 think the most high profile example of a lot of 0:12:05.080 --> 0:12:08.760 defamation cases that are being litigated right now are being contemplated, 0:12:08.800 --> 0:12:10.840 and I think there's one against the Southern Poverty Law 0:12:10.920 --> 0:12:13.840 Center as well. And so I think those who are 0:12:13.880 --> 0:12:18.080 opposed to Sullivan smell blood in the water because of 0:12:18.240 --> 0:12:21.760 the statements of justice is Courstitch and Thomas, and I 0:12:21.840 --> 0:12:24.839 suspect that we will see if not in this case, 0:12:24.920 --> 0:12:28.559 some other case that may pique the Supreme Court's interest. 0:12:29.160 --> 0:12:32.080 As a scholar in this area, do you think that 0:12:32.360 --> 0:12:37.360 times the Sullivan is the right standard? I think so yes, 0:12:37.559 --> 0:12:41.320 because I think it is really allowed for the growth 0:12:41.880 --> 0:12:47.120 of media and a real strong or stronger media landscape 0:12:47.120 --> 0:12:49.320 than we would have had otherwise. In terms of the 0:12:49.360 --> 0:12:52.800 differences of opinions. I mentioned the UK. If you look there, 0:12:53.160 --> 0:12:55.880 there's a lot of reporting that happens in the US 0:12:56.040 --> 0:12:59.360 that can't be done in the UK, particularly because of 0:12:59.400 --> 0:13:03.000 their higher prevailing rates for livel cases. And so I 0:13:03.000 --> 0:13:05.680 think it is on balanced good. I understand some of 0:13:05.679 --> 0:13:08.400 the concerns, but I think a world without the Sullivan 0:13:08.480 --> 0:13:12.400 case would really be to all of our detriment. Thanks 0:13:12.440 --> 0:13:14.880 for being on the show that's got him, Hans of 0:13:15.000 --> 0:13:22.200 Vanderbilt Law School President. Joe Biden's unprecedented inaugural day firing 0:13:22.240 --> 0:13:24.959 of the Federal Labor Board's top lawyer during the Trump 0:13:25.000 --> 0:13:29.000 administration is teed up for judicial review at a Republican 0:13:29.080 --> 0:13:33.280 dominated US appeals court in New Orleans. Business software firm 0:13:33.400 --> 0:13:37.000 Excella Enterprise says that Biden did not have the legal 0:13:37.040 --> 0:13:41.199 authority to remove former National Labor Relations Board General Counsel 0:13:41.280 --> 0:13:45.320 Peter Robb. The company argues that made the actions of 0:13:45.440 --> 0:13:50.840 Rob's replacement legally invalid. Those actions included issuing an unfair 0:13:50.920 --> 0:13:54.960 labor practice complaint against Excella for failing to bargain with 0:13:55.040 --> 0:13:58.440 a union, leading to an n l RB ruling against 0:13:58.440 --> 0:14:02.160 the company. Joe Aemy is Anne Lafosso, a law professor 0:14:02.200 --> 0:14:05.880 at West Virginia University, and tell us about the issue here. 0:14:06.559 --> 0:14:11.239 So the question here is whether the President was allowed 0:14:11.679 --> 0:14:18.839 to remove the General Council from the National Labor Relations Board, 0:14:19.040 --> 0:14:21.360 which the President did. It was one of his very 0:14:21.440 --> 0:14:23.520 very first acts on January twenty though it might have 0:14:23.520 --> 0:14:27.880 been the twenty one, and he removed the General Council 0:14:28.080 --> 0:14:32.840 Peter Rob and eventually he put in acting General Council 0:14:32.920 --> 0:14:35.560 Peter Or although there was a step in between. There 0:14:35.600 --> 0:14:39.360 was an interim acting one, and then eventually there is 0:14:39.440 --> 0:14:44.200 now a full pledged general Counsel in there, Jennifer Bruzzo, 0:14:44.720 --> 0:14:47.800 who has been with the advice and consent of the Senate, 0:14:47.840 --> 0:14:51.280 has been approved by the Senate, so she's in there legitimately. 0:14:51.320 --> 0:14:54.240 At this point, the question here is whether or not 0:14:54.480 --> 0:14:59.640 that act was constitutional. And if it was unconstitutional, does 0:14:59.680 --> 0:15:04.560 that mean that this case now is void. Do you 0:15:04.640 --> 0:15:08.600 know why Biden moved right away to remove him. Yeah, 0:15:08.800 --> 0:15:14.040 The unions felt that Peter rob was moving in a 0:15:14.040 --> 0:15:17.320 direction that was at a very accelerated pace that was 0:15:17.400 --> 0:15:20.680 very anti union. Now, whether that's true or not, but 0:15:20.720 --> 0:15:25.120 that certainly was the perception of unions, and that he 0:15:25.240 --> 0:15:29.400 was constantly challenging the way the board had done things 0:15:29.600 --> 0:15:35.200 for three quarters of a century. And so unions put 0:15:35.240 --> 0:15:40.000 pressure on Biden to get rid of Rob as soon 0:15:40.040 --> 0:15:43.240 as possible in order to, in their view, limit the 0:15:43.280 --> 0:15:47.000 damage that Rob was doing. Because the general counsel can 0:15:47.120 --> 0:15:51.000 shape exactly what goes before the board, the board can't 0:15:51.000 --> 0:15:54.680 do anything without a case before it, so it's very 0:15:54.720 --> 0:15:56.920 important too. The general counsel is in the n l RB, 0:15:57.720 --> 0:16:01.040 so tell us what the company excels position is here. 0:16:01.760 --> 0:16:06.000 So the company allegedly engaged in unfairly practice. The board 0:16:06.040 --> 0:16:09.280 found that unfairly practice. So the company says, oh, that's 0:16:09.280 --> 0:16:10.880 all well and good. We don't think we did it 0:16:10.880 --> 0:16:13.440 at all. We don't think we acted unlawfully. But even 0:16:13.480 --> 0:16:16.600 if we did act unlawfully, um, this whole case is 0:16:16.680 --> 0:16:19.840 void because the General Council was not allowed to bring 0:16:19.880 --> 0:16:24.920 this case because the General Council was appointed unconstitutionally. Has 0:16:24.960 --> 0:16:30.360 the n l RB ruled on Biden's termination of rob Yes, 0:16:30.560 --> 0:16:33.920 and it says that the Supreme Court's case and Collins v. 0:16:34.040 --> 0:16:37.400 Yellen um closes the door to that. So, in other words, 0:16:37.680 --> 0:16:43.360 that it is perfectly fine what Biden did because the 0:16:43.440 --> 0:16:46.720 case that was before the Supreme Court last term, Collins b. Yellen, 0:16:47.160 --> 0:16:51.920 makes it very clear that the president has removal authority 0:16:51.960 --> 0:16:56.800 over agencies, administrative agencies. So Collins v. Ellen is one 0:16:56.840 --> 0:16:59.600 of two cases. There's Sailor Law and Collins v. Yellen. 0:16:59.680 --> 0:17:02.640 And this is what's really important here is that in 0:17:02.680 --> 0:17:07.080 these two cases, the Supreme Court held that the president 0:17:07.400 --> 0:17:13.240 has authority to remove lesser executive officials. So essentially, Article 0:17:13.359 --> 0:17:17.439 to vest the full executive power in the presidents, and 0:17:17.560 --> 0:17:22.879 that generally requires that the president maintain unrestricted removal power 0:17:23.040 --> 0:17:29.439 over lesser executive officers who exercise significant executive authority, so 0:17:29.520 --> 0:17:33.080 that the president is ultimately accountable to the people for 0:17:33.359 --> 0:17:37.920 those actions. So, in other words, this is a very 0:17:37.960 --> 0:17:42.960 expansive view of executive authority that the president has these 0:17:43.000 --> 0:17:48.480 inherent powers, the full executive power to remove agency heads. 0:17:48.520 --> 0:17:52.240 And therefore, even if Congress wrote into a statute that 0:17:52.280 --> 0:17:57.600 there are restrictions on the president's power removal, those at 0:17:57.680 --> 0:18:01.120 least so far been ruled unconstitution at all. I mean, 0:18:01.280 --> 0:18:05.600 doesn't that answer this case. That's what the board said. 0:18:05.920 --> 0:18:11.240 Now in their briefs, the company has their attorneys have 0:18:11.640 --> 0:18:17.239 argued that, first of all, Um, section three of the 0:18:17.280 --> 0:18:23.439 Act says that the president has the authority to remove 0:18:23.520 --> 0:18:26.879 board members. Well, first of all, that might be, like 0:18:26.960 --> 0:18:31.840 you suggested, that might be unconstitutional. But second, given these 0:18:31.920 --> 0:18:36.600 cases before the Supreme Court. But now, Um, on top 0:18:36.640 --> 0:18:42.560 of this, there's no text. There's actually no restriction on 0:18:42.600 --> 0:18:46.160 the president's removal power in the National Abe Relations Act 0:18:46.520 --> 0:18:50.240 with regard to the General Council. So it should answer 0:18:50.280 --> 0:18:54.119 the question. Now, that's why I think they're probably teeing 0:18:54.200 --> 0:18:57.360 up to re challenge this in the Supreme Court. So 0:18:57.760 --> 0:19:00.479 it would be hard for the Fifth Circuit to go 0:19:00.560 --> 0:19:03.760 against these two presidents because their mandatory authority for the 0:19:03.760 --> 0:19:06.160 Fifth Circuit, And that's even though it's considered the most 0:19:06.200 --> 0:19:11.560 conservative circuit in the country. Yeah, it's conservative, but it's 0:19:11.600 --> 0:19:14.480 not going to be It can't be results oriented right. 0:19:14.920 --> 0:19:17.520 So in other words, that's why a lot of people 0:19:17.560 --> 0:19:20.639 think that conservative means it's gonna come up with a 0:19:20.640 --> 0:19:23.400 conservative result. But I always tell my students what's good 0:19:23.400 --> 0:19:25.639 for the goose is good for the gander. So if 0:19:25.680 --> 0:19:30.400 you have a strong executive um authority, the president now 0:19:30.600 --> 0:19:34.360 is very strong executive power. And by the way, that's 0:19:34.400 --> 0:19:38.439 what Trump put into the Supreme Court, like Kavanaugh is 0:19:38.520 --> 0:19:42.960 known for having very very strong beliefs about a strong 0:19:43.080 --> 0:19:47.240 executive So we have Supreme Court right now that seems 0:19:47.240 --> 0:19:51.880 to at least starting to favor very strong executive powers. Well, now, 0:19:51.960 --> 0:19:55.160 that means when the president is a Democrat, the president 0:19:55.240 --> 0:19:59.000 has strong executive powers. It doesn't matter whether the president 0:19:59.080 --> 0:20:03.199 is pro business, pro labor, or whatever the presidents is. 0:20:03.680 --> 0:20:07.199 That's strong executive powers. And the Fifth Circuit has no 0:20:07.320 --> 0:20:11.840 choice but to go with the Supreme Court's precedents. So 0:20:11.880 --> 0:20:14.040 the only thing the Fifth Circuit can do is if 0:20:14.080 --> 0:20:16.560 it thinks that these cases are not not on point. 0:20:17.240 --> 0:20:20.840 But it's really hard to imagine why they wouldn't be 0:20:20.880 --> 0:20:24.080 on points because one of them, at least one of 0:20:24.119 --> 0:20:27.280 them deals with an independent agency like the National Labor 0:20:27.320 --> 0:20:32.480 Relations Board, And in fact, these cases are weaker than 0:20:32.520 --> 0:20:34.359 the case right now in the n LRB, because in 0:20:34.359 --> 0:20:39.560 the l RB case, there's literally no text that puts 0:20:39.760 --> 0:20:43.399 a limit on the president's removal power. So what they 0:20:43.400 --> 0:20:46.280 could try to argue is, well, the president doesn't have 0:20:46.440 --> 0:20:49.880 removal power because not in the text. Except these cases 0:20:49.880 --> 0:20:53.160 stand for a sort of inherent power that the president 0:20:53.240 --> 0:20:56.960 has to remove under the Constitution. So they're saying that 0:20:57.680 --> 0:21:01.119 the n l r AS removal sections for n l 0:21:01.240 --> 0:21:04.880 r B members also applied to the General Council. Does 0:21:04.960 --> 0:21:08.359 that make sense to you? Under Section three of the Act, 0:21:08.600 --> 0:21:13.280 the President cannot remove board members except for cause. It's 0:21:13.359 --> 0:21:16.960 limited cause to They define it as this one says 0:21:17.000 --> 0:21:19.280 any member of the Board may be removed by the 0:21:19.280 --> 0:21:22.639 President upon notice and hearing for neglect of duty or 0:21:22.720 --> 0:21:26.560 mouthfeasance in office, but for no other cause. And then 0:21:26.600 --> 0:21:29.880 it says nothing about the General Council. So what I'm 0:21:29.920 --> 0:21:35.359 saying is one Section three may be unconstitutional, in which 0:21:35.400 --> 0:21:38.680 case the president could even remove board members based on 0:21:38.800 --> 0:21:42.520 this precedent. But to forget about that, let's say that's constitutional, 0:21:42.600 --> 0:21:46.440 which I think is in grave. That's an highly dubious Now, 0:21:46.480 --> 0:21:51.919 after these precedents, Okay, there's nothing in the text that 0:21:52.080 --> 0:21:55.520 limits president's removal authority of the General Council. There's no 0:21:55.560 --> 0:21:59.320 text like that at all. Doesn't it's silent completely. They 0:21:59.359 --> 0:22:02.679 alleged that it makes the role more political to have 0:22:02.800 --> 0:22:07.040 the president be able to fire the General Counsel without cause. 0:22:07.640 --> 0:22:11.720 Do we accept already that this role is political? Oh? Yeah, absolutely, 0:22:11.760 --> 0:22:13.480 And it does make it even more political. It makes 0:22:13.480 --> 0:22:16.240 it more accountable political, meaning accountable to the people. That's 0:22:16.280 --> 0:22:19.159 what politics is, right. I mean, we can agree or 0:22:19.200 --> 0:22:21.680 disagree whether we want this to be. I mean we're 0:22:21.720 --> 0:22:25.680 stepping into a world now where it looks like if 0:22:25.680 --> 0:22:28.240 there's a change in party, or even if it's not, 0:22:28.600 --> 0:22:33.720 the president can remove the heads of agencies. That is 0:22:33.760 --> 0:22:38.680 definitely what these cases are saying. And now presidents don't 0:22:38.680 --> 0:22:42.200 want to do that completely because there's a couple of reasons. 0:22:42.240 --> 0:22:46.560 One is it creates incredible instability in the agencies, or 0:22:46.560 --> 0:22:48.840 at least some instability, right. You don't want to keep 0:22:48.840 --> 0:22:51.719 on removing heads of agencies, so you want to do 0:22:51.760 --> 0:22:56.440 it at times when you think there's a reason, right, 0:22:56.880 --> 0:23:00.000 but that reason now and I think this is probably 0:23:00.040 --> 0:23:04.280 with the company suggesting can be political after the political 0:23:04.280 --> 0:23:08.760 election and some people think that's good because they'll say that, well, 0:23:09.119 --> 0:23:12.320 if we go from Republicans Democrat, or from Democrat to Republican. 0:23:12.640 --> 0:23:15.399 What we're basically saying is the people want a different 0:23:15.440 --> 0:23:17.480 course of action, and they don't want to wait two 0:23:17.600 --> 0:23:21.159 years into the president's term to see things happening. So, 0:23:21.200 --> 0:23:25.280 for example, unions greatly supported Biden, and so they want 0:23:25.320 --> 0:23:28.120 to see action right away. It would have been delayed. 0:23:28.520 --> 0:23:31.800 Um has Biden not taken this action right away? And 0:23:31.920 --> 0:23:34.520 by the way, if the Republicans win the next time, 0:23:35.200 --> 0:23:40.080 the Republicans can remove Jennifer Brutso right away. So that's 0:23:40.200 --> 0:23:43.840 called accountability to the people. But the problem with that 0:23:43.960 --> 0:23:48.240 view is that our people really are the people really 0:23:48.320 --> 0:23:52.240 voting for a president because of what the president views 0:23:52.280 --> 0:23:55.679 on the National lab Relations Board are Some people might be, 0:23:55.920 --> 0:23:59.200 but others might be because they like the president's views 0:23:59.240 --> 0:24:04.600 on abortion and they want to have certain um judicial picks. 0:24:04.640 --> 0:24:08.119 So this is this is a very interesting debate, and 0:24:08.160 --> 0:24:12.679 this is definitely we are definitely changing from a a 0:24:12.760 --> 0:24:15.439 different model of administrative law here, and that's why I 0:24:15.440 --> 0:24:17.679 think this could easily go to the Supreme Court. The 0:24:17.720 --> 0:24:21.480 President just announced that he's removed UM I think the 0:24:21.520 --> 0:24:26.360 head of the Social Security Administration so recently, so this 0:24:26.440 --> 0:24:28.720 is definitely going to I think this will go to 0:24:28.760 --> 0:24:31.520 the Supreme Court again. Why do you think that if 0:24:31.560 --> 0:24:35.280 the Court has already ruled on this in two other cases, 0:24:35.320 --> 0:24:39.200 why why take this one as well? Maybe not this one, 0:24:39.440 --> 0:24:43.159 but others just to because this is why the first 0:24:43.200 --> 0:24:46.959 one was a five four decision, and there's two strong 0:24:47.040 --> 0:24:51.080 descents in the second one by Gorcage and Thomas and 0:24:51.320 --> 0:24:55.000 Gorcige and Thomas are not fans of this at all. 0:24:55.640 --> 0:24:59.640 So there is what they need to do is they 0:24:59.680 --> 0:25:04.080 need to get They need to convince someone because potentially 0:25:04.560 --> 0:25:08.840 you can look at the first one, Sailor Law, and say, oh, 0:25:09.000 --> 0:25:11.280 what was different about that one that got it closer? 0:25:12.080 --> 0:25:13.920 So they would have to think of some arguments. Why 0:25:13.960 --> 0:25:16.119 would this be different? Is this the right case to 0:25:16.160 --> 0:25:21.880 take up to lessen presidential authority? Do you know where 0:25:21.920 --> 0:25:26.800 Justice Barrett stands on this? I think she would right 0:25:26.880 --> 0:25:32.280 now tend to be with presidential authority. But that's not 0:25:32.320 --> 0:25:35.440