WEBVTT - New Scotus Term: From Abortion Rights to State Secrets 0:00:00.520 --> 0:00:04.040 People are confused with the ruling. Um. And you know, 0:00:04.080 --> 0:00:06.280 I think that the concern that some families had had 0:00:06.280 --> 0:00:08.640 in the very beginning that this day was gonna come 0:00:09.240 --> 0:00:12.239 where they were going to have to relive another trial. Uh, 0:00:12.280 --> 0:00:14.280 and you know they shouldn't have to relive a trial. 0:00:14.920 --> 0:00:18.040 That was former Boston Mayor Marty Walsh a year ago 0:00:18.480 --> 0:00:21.520 after a federal appeals court throughout the death sentence of 0:00:21.560 --> 0:00:25.560 Boston marathon bomber Joe Harsar Naive. That decision will now 0:00:25.600 --> 0:00:27.760 be at the center of one of the biggest cases 0:00:27.800 --> 0:00:30.960 the Supreme Court will hear when it returns in October. 0:00:31.440 --> 0:00:34.519 My guest is constitutional law professor Harold Crent of the 0:00:34.600 --> 0:00:37.720 Chicago Kent College of Law. How what issues will the 0:00:37.760 --> 0:00:41.960 Supreme Court be considering in deciding whether to reinstate the 0:00:42.040 --> 0:00:46.360 death penalty forced Our naive case rises out of the 0:00:46.440 --> 0:00:51.280 awful Boston marathon bombing, and of course was caught red handed. 0:00:51.400 --> 0:00:55.000 He was sentenced to death, and two challenges in this 0:00:55.040 --> 0:00:59.680 case that the first circuit to overturn not the conviction 0:01:00.120 --> 0:01:03.880 but the imposition of the death penalty. The two grounds 0:01:03.880 --> 0:01:07.560 were first that the defense attorney was not permitted to 0:01:07.760 --> 0:01:10.560 question the jurors about the extent to which they had 0:01:10.640 --> 0:01:15.320 read about the bombing prior to being seated as jurors. 0:01:15.440 --> 0:01:19.080 And second, at the capital phase of the mitigation phase, 0:01:19.319 --> 0:01:23.000 Tarnaye argued principally that he was under the spell and 0:01:23.200 --> 0:01:26.399 influence of his older brother, who had been killed in 0:01:26.440 --> 0:01:29.199 the shootout with the police, and that he had tried 0:01:29.240 --> 0:01:33.120 to introduce evidence of a grizzly set of murders that 0:01:33.160 --> 0:01:37.360 the older brother had committed previously, including dominating a friend 0:01:37.520 --> 0:01:40.120 and trying to get the friend to help him commit 0:01:40.200 --> 0:01:44.120 these murders, and the court had rejected the defense's effort 0:01:44.160 --> 0:01:47.320 to introduce this information. So those are the two issues 0:01:47.600 --> 0:01:51.360 raised to the Supreme Court. Why take this case? Because 0:01:51.360 --> 0:01:55.280 the context has changed since Attorney General Merrick Garland has 0:01:55.360 --> 0:01:59.200 stopped all federal executions. I think that the Supreme Court 0:01:59.440 --> 0:02:02.800 might be taking this case not just because of this notoriety, 0:02:02.840 --> 0:02:07.200 but to investigate the use of harmless error in death 0:02:07.200 --> 0:02:10.280 penalty cases. And indeed, the Supreme Court took another case 0:02:10.639 --> 0:02:14.639 where the harmless air doctrine may arise. That case arose 0:02:14.800 --> 0:02:18.920 from when a defendant was shackled in the jury, just 0:02:18.960 --> 0:02:22.280 as we saw in the Chicago seventh movie recently, and 0:02:22.480 --> 0:02:26.720 the Sixth Circuit reversed the conviction on the ground that 0:02:26.880 --> 0:02:31.000 the shackling of a defendant could never be innocent, and 0:02:31.040 --> 0:02:33.240 I think the court took that as well to look 0:02:33.280 --> 0:02:37.160 at the harmless air doctrine. Obviously, the evidence was overwhelming 0:02:37.200 --> 0:02:40.360 with respect to Turnaye, and that may have influenced the 0:02:40.400 --> 0:02:44.399 Supreme Court to take the case. Politically, this is fascinating 0:02:44.800 --> 0:02:48.520 because President Biden has said that he's an opponent of 0:02:48.919 --> 0:02:52.880 the death penalty, but he is acquiesced into allowing the 0:02:52.880 --> 0:02:56.320 Supreme Court to hear this case. Somewhat of a head 0:02:56.360 --> 0:02:59.720 scratcher in terms of why he is allowing the case 0:02:59.760 --> 0:03:02.280 to go forward. The Biden administration could have easily gotten 0:03:02.360 --> 0:03:04.680 rid this case by just saying that they would never 0:03:05.000 --> 0:03:09.120 enforce the death penalty. And but obviously he's willing to 0:03:09.600 --> 0:03:12.160 allow the Court to make these kinds of decisions even 0:03:12.200 --> 0:03:15.520 if he won't use the death penalty during his term. 0:03:15.560 --> 0:03:18.800 So let's turn out to a case that's destined to 0:03:18.880 --> 0:03:22.320 be one of the most watched and perhaps controversial of 0:03:22.639 --> 0:03:25.520 next term, centering on a Mississippi law that would ban 0:03:25.600 --> 0:03:30.359 abortions in almost all cases after fifteen weeks of pregnancy. 0:03:30.360 --> 0:03:33.440 What is Mississippi asking here? This case isn't petic because 0:03:33.440 --> 0:03:37.360 it directly challenges the viability test that the Supreme Court 0:03:37.400 --> 0:03:40.960 has now upheld in the versus Raid and in Planned 0:03:41.000 --> 0:03:45.920 Parenthood versus Casey. Under that scheme, the state had insufficient 0:03:46.080 --> 0:03:49.480 reason or insubition justifications to regulate the women's right to 0:03:49.600 --> 0:03:53.960 choose prior to viability. Under this Mississippi statute or the 0:03:54.040 --> 0:03:58.360 Gestational Age Act, the line that's drawn is really rather 0:03:58.440 --> 0:04:01.000 one of fifteen months, So the point would have to 0:04:01.360 --> 0:04:05.360 jettisone or get rid of the Row framework in order 0:04:05.400 --> 0:04:07.880 to oppose the law here, and it may well do that. 0:04:07.960 --> 0:04:12.040 So this is an incredibly significant decision, and what the 0:04:12.040 --> 0:04:14.760 Court would be replace it with is unclear, except perhaps 0:04:15.000 --> 0:04:17.880 to give the green like the states to ban abortion, 0:04:18.320 --> 0:04:22.560 as many did prior to Roversus Weight. So Mississippi is 0:04:22.600 --> 0:04:26.120 asking for a sweeping ruling here. But can the Justices 0:04:26.240 --> 0:04:30.279 decide this case without overturning Row or Casey. I don't 0:04:30.279 --> 0:04:32.680 think so. That's what's so telling about this case, and 0:04:32.720 --> 0:04:35.520 that they chose to take this case is because there's 0:04:35.720 --> 0:04:37.719 no way that I can see for them to uphold 0:04:37.800 --> 0:04:40.680 the gestational Age Act and still be consistent with the 0:04:40.720 --> 0:04:43.960 framework of Rovers's way. They might adopt a different framework, 0:04:44.080 --> 0:04:47.280 but it would not be the one that focuses on viability. 0:04:47.440 --> 0:04:51.000 As their precedents dictate. The issue in this case hadn't 0:04:51.000 --> 0:04:54.440 divided the lower court, so they could easily have not 0:04:54.600 --> 0:04:57.599 taken this case right. What's amazing is that that took 0:04:57.640 --> 0:05:00.080 the case because this is not a case as with 0:05:00.160 --> 0:05:03.839 others chipping away the abortion right. It is absolutely a 0:05:03.920 --> 0:05:07.120 frontal attack, at least a frontal attack on the framework 0:05:07.160 --> 0:05:11.480 set out in Rovers's way in in Casey, the Supreme 0:05:11.520 --> 0:05:13.440 Court is going to consider making it easier for people 0:05:13.480 --> 0:05:15.440 to walk around with a gun. I mean, that's just 0:05:15.800 --> 0:05:19.800 backwards and dangerous. So I heard that news in my 0:05:19.880 --> 0:05:23.599 heart sank. Like New York City Mayor Bill de Blasio, 0:05:23.640 --> 0:05:27.320 the hearts of gun control advocates across the country sank 0:05:27.400 --> 0:05:29.960 when the Supreme Court announced it would discide whether to 0:05:30.040 --> 0:05:33.839 allow most people to carry a handgun in public. I've 0:05:33.839 --> 0:05:36.360 been talking to Professor Harold Crent of the Chicago Kent 0:05:36.480 --> 0:05:39.440 College of Law, so how this will be the first 0:05:39.480 --> 0:05:42.360 time in more than a decade that the Supreme Court 0:05:42.440 --> 0:05:46.360 takes up a major second Amendment case. What's at stake here? 0:05:46.720 --> 0:05:49.760 The Court has stayed away, as you mentioned, from Second 0:05:49.760 --> 0:05:53.480 Amendment cases for ten years, and the lower courts are split, 0:05:53.600 --> 0:05:57.760 and how to analyze cases when there are certain state 0:05:57.800 --> 0:06:02.080 regulations about background checks, state regulations about what kind of 0:06:02.120 --> 0:06:05.080 guns one can purchase, and state regulations as in this 0:06:05.160 --> 0:06:09.120 case about carrying a pistol concealed carry law which would 0:06:09.120 --> 0:06:12.520 allow someone to carry a pistol in public. And so 0:06:12.680 --> 0:06:15.160 they've divided both in terms of what kind of scrutiny 0:06:15.200 --> 0:06:19.080 to apply as well as in results. Most courts have 0:06:19.200 --> 0:06:22.880 provided the universe into a core and non core gun 0:06:22.920 --> 0:06:27.320 ownership issue. Owning guns at home would be core, having 0:06:27.360 --> 0:06:31.040 an assault weapon would not be core. And the question 0:06:31.080 --> 0:06:35.320 then that's puzzled these courts is whether having a pistol 0:06:35.440 --> 0:06:39.400 in public is such a core right, which then could 0:06:39.440 --> 0:06:43.719 only be limited if there is a compelling governmental state interest. 0:06:43.960 --> 0:06:46.520 And you know, the courts are split and their history 0:06:46.560 --> 0:06:49.560 is split. Some courts have relied upon history and said 0:06:49.640 --> 0:06:55.200 that there is no kind of ingraining history of waving 0:06:55.200 --> 0:06:58.120 around a pistol in public, or even keeping one concealed 0:06:58.160 --> 0:07:01.880 in public, as there is and having hunting rifles or 0:07:01.920 --> 0:07:04.520 and having guns at home. So the courts have been 0:07:04.560 --> 0:07:08.120 split on the historical pedigree of concealed carry as well 0:07:08.360 --> 0:07:11.720 is on the standard of review to apply. So this 0:07:11.760 --> 0:07:14.080 has been your very telling case because the Court will 0:07:14.120 --> 0:07:17.560 have to give some kind of help to lower courts 0:07:17.560 --> 0:07:20.840 about how to analyze the many many Second Amendment cases 0:07:20.880 --> 0:07:24.720 on background checks on licensing that exists, or they may 0:07:24.760 --> 0:07:27.760 take a narrow view and say that in this case, 0:07:28.360 --> 0:07:31.640 New York has said you can only have a license 0:07:31.840 --> 0:07:34.560 if you have good cause, and that good cause is 0:07:34.600 --> 0:07:38.360 open to interpretation in a case by case basis. Do 0:07:38.400 --> 0:07:40.640 you have a fear for your life? Do you live 0:07:40.680 --> 0:07:43.600 in a lousing neighborhood? You know what is the reason 0:07:43.800 --> 0:07:46.920 that you give? And they may decide that that kind 0:07:46.920 --> 0:07:50.640 of subjectivity has no place in the Second Amendment, and 0:07:50.640 --> 0:07:52.240 so they may take a narrow way out and not 0:07:52.360 --> 0:07:54.880 talk about the standard of review at all, but just 0:07:54.960 --> 0:07:58.320 say that states, if they limit a right to carry guns, 0:07:58.600 --> 0:08:02.360 have to do so and object of le verifiable way. 0:08:02.760 --> 0:08:06.520 Looking at the court, you have Justice Brett Kavanagh, who 0:08:06.600 --> 0:08:10.040 joined an opinion with Justice Clarence Thomas, who is an 0:08:10.080 --> 0:08:14.240 avid defender of the Second Amendment that described gun caring 0:08:14.280 --> 0:08:18.520 restrictions as imposing an onerous burden on a fundamental right. 0:08:19.120 --> 0:08:22.800 Where do you see this conservative court on this issue. 0:08:23.000 --> 0:08:26.960 Do they want to move forward with less restrictions on 0:08:27.080 --> 0:08:30.400 the Second Amendment. It's a tough question to predict. In 0:08:30.480 --> 0:08:32.400 terms of the court. I don't think the Court is 0:08:32.400 --> 0:08:35.440 going to go far as Justice Thomas wanted them to. 0:08:35.760 --> 0:08:37.800 He has said in public that this is just like 0:08:37.840 --> 0:08:40.800 the First Amendment, and we shouldn't allow any more kinds 0:08:40.800 --> 0:08:43.679 of restrictions on speech outside the home, and so we 0:08:43.760 --> 0:08:47.720 shouldn't allow restrictions on gun ownership outside the home either. 0:08:47.920 --> 0:08:50.680 On the other hand, the Court has varied Fourth Amendment 0:08:50.760 --> 0:08:53.040 rights whether someone's in the home or outside the home, 0:08:53.040 --> 0:08:55.440 and has done so even this past term. So I 0:08:55.480 --> 0:08:57.800 think that the Court will still be divided. Though my 0:08:57.920 --> 0:09:01.360 guess is that they will strike down the concealed carry 0:09:01.679 --> 0:09:04.640 licensing system that New York has adopted. And I should 0:09:04.679 --> 0:09:08.360 note that Michael Bloomberg, the foundering majority owner of Bloomberg LP, 0:09:08.679 --> 0:09:11.599 the parent company of Bloomberg Radio, is a donor to 0:09:11.679 --> 0:09:15.960 groups that support gun control, including every Town for Gun Safety. 0:09:16.280 --> 0:09:20.559 Now turning to a somewhat less controversial case involving religious rights, 0:09:20.880 --> 0:09:24.360 the Court will consider whether states can exclude religious schools 0:09:24.400 --> 0:09:27.600 from a student aid program because it's used to teach 0:09:27.679 --> 0:09:32.080 religious education. Anybody predicting the outcome of this case would 0:09:32.120 --> 0:09:35.040 have to say that the court will overturn the first 0:09:35.040 --> 0:09:39.000 circuit here and say that the students have a choice 0:09:39.120 --> 0:09:43.400 about whether to use a voucher or funds from the state, 0:09:43.600 --> 0:09:46.040 and if they have the ability to use them in 0:09:46.040 --> 0:09:49.760 a private school, that it would be unconstitutional to prevent 0:09:49.800 --> 0:09:53.240 them from going to use them at a religious private school, 0:09:53.480 --> 0:09:57.160 which in fact is what Maine have required. Maine, because 0:09:57.200 --> 0:10:00.719 it has such small school districts, often give money to 0:10:00.960 --> 0:10:03.640 the students that we don't have enough resources to have 0:10:03.760 --> 0:10:05.640 you go to public school here, so take it to 0:10:05.760 --> 0:10:07.920 a private school of your choice. But they had said 0:10:08.120 --> 0:10:11.440 you can't take it to a private religious school. And again, 0:10:11.720 --> 0:10:15.600 with this court, I'm very confident that they will recognize 0:10:15.640 --> 0:10:20.160 a broader free exercise right and decide that Maine has 0:10:20.200 --> 0:10:23.640 to permit their residents to use the state funds for 0:10:24.040 --> 0:10:28.240 religious education. Well, even before Justice Ammy Coney Barrett got 0:10:28.280 --> 0:10:32.720 on the court, the justices have been ruling in favor 0:10:32.720 --> 0:10:36.240 of religious rights over just about any other rights, and 0:10:36.640 --> 0:10:41.360 this would follow up on the ruling in Espinosa. It's 0:10:41.480 --> 0:10:45.680 very similar to Espinosa. Esponosa was the Montana case, which 0:10:45.679 --> 0:10:49.319 had to do with tax credits, and in this case 0:10:49.360 --> 0:10:53.400 it's not tax credits, it's basically tuition dollars. And I 0:10:53.440 --> 0:10:57.040 think the court is going to follow Espinoza and expand 0:10:57.080 --> 0:10:59.520 it and don't have to expand it that much to 0:10:59.559 --> 0:11:03.200 suggest that the main system is unconstitutional. As well. Last 0:11:03.240 --> 0:11:07.600 night I found this He's Detaining number twenty four. Well's 0:11:07.640 --> 0:11:10.840 your video. They water boarded him a hundred and eighty 0:11:10.920 --> 0:11:15.200 three times. Everything they got from him who was either 0:11:15.280 --> 0:11:17.959 a lie or something they already had. If it works, 0:11:18.080 --> 0:11:19.719 why do you need to do it a hundred and 0:11:19.840 --> 0:11:22.480 eighty three times? Because if what we did to him 0:11:22.640 --> 0:11:24.440 ever came out in the court of law, the case 0:11:24.559 --> 0:11:28.439 is over. The movie, appropriately called The Report, is about 0:11:28.480 --> 0:11:31.599 the CIA's use of torture at black sides following the 0:11:31.640 --> 0:11:36.000 September eleventh attacks and the Senate Intelligence Committees report on 0:11:36.120 --> 0:11:41.400 the CIA's rendition, detention, and Interrogation program, commonly called the 0:11:41.559 --> 0:11:45.920 torture program. Now. The first detainee taken to the CIA's 0:11:46.000 --> 0:11:50.160 first black site, Abou Zu Beta, who was repeatedly tortured 0:11:50.280 --> 0:11:53.640 and water boarded at least eighty three times. Is taking 0:11:53.720 --> 0:11:56.319 his case to the Supreme Court. I've been talking to 0:11:56.400 --> 0:11:59.520 Professor Harold Crant of the Chicago Kent College of Law. 0:12:00.160 --> 0:12:04.120 Zubaida is what's known as a forever prisoner, held without 0:12:04.280 --> 0:12:08.719 formal charges at Guantanamo Bay for fifteen years. What's he 0:12:08.840 --> 0:12:12.400 asking the court? After he was captured in Pakistan, he 0:12:12.559 --> 0:12:16.720 was taken to a CIA black site in Poland where 0:12:16.760 --> 0:12:20.360 he was interrogated and tortured for a great deal of 0:12:20.480 --> 0:12:25.720 time and actually did provide useful information. Zubaida, through his attorneys, 0:12:25.880 --> 0:12:30.120 try to challenge what happened in Poland and suggest that 0:12:30.240 --> 0:12:34.280 Poland was complicit in the CIA's torture campaign, and the 0:12:34.360 --> 0:12:37.920 European Human Rights agree with him, and that set off 0:12:38.160 --> 0:12:43.360 continuing inquiry in Poland. Now, during this Polish investigation, he 0:12:43.520 --> 0:12:47.319 asked for and Poland courts agreed for information from the 0:12:47.440 --> 0:12:50.480 United States which would then shed light on what happened 0:12:50.679 --> 0:12:55.160 in Poland. And he sent a subpoena to two psychologists 0:12:55.200 --> 0:12:59.160 where contractors of the CIA for information about this black 0:12:59.240 --> 0:13:02.800 site in particular where he was held. And these CIA 0:13:02.960 --> 0:13:07.040 contractors had talked publicly about their role in the torture campaign, 0:13:07.320 --> 0:13:10.079 but had not disclosed details about what happened at this 0:13:10.200 --> 0:13:13.760 particular site. And the lower court said that the CIA 0:13:13.880 --> 0:13:16.439 did not have to give up any kind of information 0:13:16.600 --> 0:13:19.680 because of the state secrets privilege, But the Ninth Circuit reversed, 0:13:20.000 --> 0:13:24.559 so the state secrets privilege protects information the government says 0:13:24.640 --> 0:13:28.880 would harm national security if exposed tell us the basis 0:13:29.040 --> 0:13:33.080 of the Ninth circuits reversal relatively controversial because the Ninth 0:13:33.080 --> 0:13:35.520 Circuit said that the lower court should have made a 0:13:35.760 --> 0:13:40.080 line by line determination about the testimony, what testimony would 0:13:40.080 --> 0:13:43.920 be allowed that didn't reveal a state secret and should 0:13:43.920 --> 0:13:46.520 be permitted. And I think that they were influenced by 0:13:46.520 --> 0:13:49.920 the fact that the discussion of these prisons that were 0:13:50.120 --> 0:13:52.760 directed by the CIA is common knowledge, and so they 0:13:52.840 --> 0:13:55.360 thought that the government was pushing too much of this 0:13:55.480 --> 0:13:58.120 information under the rug and that they should not be 0:13:58.200 --> 0:14:00.920 allowed to make a blanket refusal to allow any kind 0:14:01.000 --> 0:14:03.679 of information. So the Ninth Circuit said, you've got to 0:14:03.720 --> 0:14:07.080 make a line by line determination, and the government said 0:14:07.400 --> 0:14:10.200 state secret privilege, you get to dismiss the entire case. 0:14:10.520 --> 0:14:13.600 It's too dangerous to have the court segregate information that's 0:14:13.600 --> 0:14:16.280 permissible already in the public domain, or would not reveal 0:14:16.360 --> 0:14:20.440 a state secret from that, which is problematic. So we'll 0:14:20.480 --> 0:14:24.440 have to see. It's a very strange procedural posture. But nonetheless, 0:14:24.480 --> 0:14:26.960 at the heart of it is the question about state secrets. 0:14:27.000 --> 0:14:29.160 Should we allow it the government or to have an 0:14:29.200 --> 0:14:32.680 immunity because state secrets and not have to respond to 0:14:32.760 --> 0:14:35.120 this request for information, or do we say, okay, it's 0:14:35.240 --> 0:14:38.360 like an evidentiary privilege. And obviously the government wouldn't have 0:14:38.440 --> 0:14:40.720 to disclose anything that's the state secret, but at the 0:14:40.800 --> 0:14:43.720 same time it does have a duty to disclose anything 0:14:43.800 --> 0:14:46.360 that's connected with it. It does not raise the kind 0:14:46.440 --> 0:14:48.920 of dangers that a state's secret would. Now, let's turn 0:14:49.040 --> 0:14:52.840 from the CIA to the FBI. In a case originally 0:14:52.960 --> 0:14:56.359 brought by three Muslim men who claimed they were targets 0:14:56.560 --> 0:15:00.960 of an FBI dragnet surveillance program only because of their 0:15:01.040 --> 0:15:04.960 religion like a zoobay there's this case arises after nine 0:15:05.040 --> 0:15:08.360 eleven and some of the credible overreaction that our government 0:15:08.400 --> 0:15:11.160 took in terms of law enforcements in this case, they 0:15:11.280 --> 0:15:16.400 infiltrated Muslim community, including taping conversations in a mosque simply 0:15:16.440 --> 0:15:18.920 because the FBI wanted to get tabs on what was 0:15:19.000 --> 0:15:21.600 going on to make sure there was no terantsort as 0:15:21.640 --> 0:15:24.520 a proactive measure. In this case, there were about eleven 0:15:24.600 --> 0:15:29.040 different claims that were brought Fourth Amendment, religion claims and 0:15:29.160 --> 0:15:32.200 so forth, and in this particular case, the Ninth Circuit 0:15:32.400 --> 0:15:36.320 overturned the District Court and held that some of the 0:15:36.400 --> 0:15:40.000 claims could go forward. And as in Zooby, there one 0:15:40.040 --> 0:15:42.200 of the claims that the government had used as a 0:15:42.280 --> 0:15:47.320 defense was state secrets that they didn't want to disclose, methodology, names, 0:15:47.680 --> 0:15:51.280 and the means by which this illegal surveillance took place. 0:15:51.560 --> 0:15:54.520 And Ninth Circuit limited the state secrets as they did 0:15:54.560 --> 0:15:57.280 in zoo Beta, holding that the district court had to 0:15:57.360 --> 0:16:01.400 make a narrow decision about what was actually a state 0:16:01.520 --> 0:16:04.560 secret and what was legal and what was not. And 0:16:04.760 --> 0:16:08.080 the Ninth Circuit, in doing this, adopted a view that 0:16:08.280 --> 0:16:12.880 the FISA Act, the Foreign Intelligence Surveillance Act, actually modified 0:16:13.000 --> 0:16:16.480 this common law state secrets privilege and narrowed it so 0:16:16.720 --> 0:16:19.280 that the result would not be dismissal of the case, 0:16:19.440 --> 0:16:22.800 but rather just in camera inspection by the lower court 0:16:22.880 --> 0:16:26.840 to determine what in fact had to be excised. So 0:16:27.080 --> 0:16:30.040 this is the Ninth Circuits suggesting that the state secrets 0:16:30.080 --> 0:16:34.760 privilege goes too far. Considering this and Zoo beta is 0:16:34.840 --> 0:16:38.360 the Court taking an interest in state secrets? The Court 0:16:38.480 --> 0:16:40.440 is clearly taking an interest in state secrets that it 0:16:40.480 --> 0:16:45.160 has not returned to state secrets really since the Reynolds 0:16:45.240 --> 0:16:48.440 case during the Cold War. And they may use these 0:16:48.480 --> 0:16:53.400 two cases together to suggest the exact contours of the doctrine. 0:16:53.400 --> 0:16:55.840 They don't have to use many other technical issues involved 0:16:56.040 --> 0:16:59.080 in the case, but the clear import the least at 0:16:59.360 --> 0:17:02.280 first glance, would be that the Court wants to say, 0:17:02.920 --> 0:17:05.720 this is a common law privilege, how far does it extend? 0:17:06.280 --> 0:17:10.560 How should it be applied attorney to immigration? The Supreme 0:17:10.600 --> 0:17:13.720 Court is going to consider whether federal courts can review 0:17:13.800 --> 0:17:18.000 decisions by immigration officials, and a question that both parties 0:17:18.000 --> 0:17:20.760 of the appeal asked the justices to take up. But 0:17:21.040 --> 0:17:25.200 lower courts are split. So this is a case on 0:17:25.320 --> 0:17:28.240 the first glance has to do with just trying to 0:17:28.359 --> 0:17:33.040 reconcile a a split in the circuits, but it does 0:17:33.200 --> 0:17:38.480 have to do also with control of of administrative agencies. 0:17:38.560 --> 0:17:42.040 Here the Bureau of Immigration Appeals and the Court in 0:17:42.119 --> 0:17:45.639 a variety of cases, is suggesting that it is concerned 0:17:46.080 --> 0:17:51.439 by the unreviewable discretion and power that administrative agencies wield. 0:17:51.960 --> 0:17:55.680 So it might be that the Court is taking this 0:17:55.800 --> 0:17:59.040 case just to vet the question about how much we 0:17:59.200 --> 0:18:03.600 want to re statutes to allow them to preclude judicial review. 0:18:04.119 --> 0:18:07.240 In this case, Um, it's actually a very narrow case. 0:18:07.720 --> 0:18:12.200 They had to do what they discretionary right to ask 0:18:12.280 --> 0:18:16.199 for discretionary relief from the agency to stay in this country, 0:18:16.640 --> 0:18:19.880 even though because of the fact that the individual here 0:18:20.000 --> 0:18:22.080 has a job and there's a what end you can 0:18:22.119 --> 0:18:23.920 if you have a good job, you can ask for 0:18:24.000 --> 0:18:27.800 discretionary relief, and the agency and the two to one 0:18:27.880 --> 0:18:33.840 vote had turned him down because he had either negligently 0:18:34.320 --> 0:18:38.600 or purposefully in the past check off a box that 0:18:39.840 --> 0:18:42.760 he was UM a U. S citizen when he was 0:18:43.280 --> 0:18:46.879 applying for a driver's license, and they used that reason 0:18:46.920 --> 0:18:50.159 to say you can't apply for discretionary relief. And the 0:18:50.280 --> 0:18:54.240 courts said that they read the the the statute to 0:18:54.440 --> 0:18:59.840 preclude review over facts, allowing petitions for discretionary relief, but 0:19:00.080 --> 0:19:04.720 not for laws and any kind of legal challenge. So 0:19:05.640 --> 0:19:07.639 it's a very narrow case. In terms of whether you 0:19:07.720 --> 0:19:11.920 can have factual review. But it does go then sort 0:19:11.960 --> 0:19:14.480 of immunize the agency from any kind of judicial review, 0:19:14.760 --> 0:19:18.679 at least with respect to factual determinations. And so again 0:19:20.080 --> 0:19:22.399 the court may take it just to clean up and 0:19:22.560 --> 0:19:25.840 make sure that the courts are all sort of uniform 0:19:25.920 --> 0:19:31.680 and interpreting this right to have a discretionary appeal, or 0:19:32.320 --> 0:19:35.480 they may also be looking at this because they are 0:19:35.720 --> 0:19:40.760 reluctant to allow a preclusion and review provision to um 0:19:41.119 --> 0:19:46.960 immunize a agency from any kind of judicial oversight. Let's 0:19:47.000 --> 0:19:52.080 turn to another case involving agencies and medicare reimbarrassment. This 0:19:52.200 --> 0:19:57.920 involves the controversial Chevron doctrine, which basically says that courts 0:19:58.280 --> 0:20:02.560 have to defer to government agencies when a law's language 0:20:02.680 --> 0:20:07.119 is ambiguous. So in some ways the American hospital cases 0:20:07.160 --> 0:20:13.760 are very um detailed. Question about medicare reimbursement at different rates, 0:20:14.240 --> 0:20:19.760 and the question is can the agency um change the 0:20:19.920 --> 0:20:25.240 rate of reimbursements that it had previously recognized And but 0:20:25.400 --> 0:20:30.040 the interesting issue that comes up is that the agency's 0:20:30.119 --> 0:20:35.280 power to change the rates of reimbursement um stem from 0:20:35.560 --> 0:20:38.960 language in the statute that allows them to calculate and 0:20:39.280 --> 0:20:45.800 adjust reimbursements as they find necessary. And that's what the 0:20:45.880 --> 0:20:51.399 agency did. But it's very broad language adjustment power. And 0:20:51.520 --> 0:20:56.480 can this adjustment power be used by the agency to 0:20:56.760 --> 0:21:01.879 change the methodology with which they had imburst hospitals for 0:21:02.359 --> 0:21:06.840 drug purchases in the past. So the Chevron doctrine is 0:21:06.880 --> 0:21:12.919 implicated because if you defer to all reasonable agency constructions 0:21:13.359 --> 0:21:18.359 of the term of open ended terms like adjustment, in essence, 0:21:18.359 --> 0:21:23.960 you're giving agencies incredible power. So this case may be 0:21:24.280 --> 0:21:29.720 used as a reason to once again limit deference to 0:21:29.840 --> 0:21:35.320 administrative agencies interpretations of statutes when they are so open ended, 0:21:35.640 --> 0:21:39.920 and we could give rise to expanded agency power. So 0:21:40.160 --> 0:21:42.800 just like a power to if the term in the 0:21:42.800 --> 0:21:48.440 statute is power to modify or power to adjust, Chevron 0:21:48.520 --> 0:21:52.399 jefference used in that way leads to a great expanse, 0:21:52.960 --> 0:21:55.600 can lead to a great expanse of agency power. And 0:21:55.720 --> 0:22:00.280 so the court might limit Chevron in some other the 0:22:00.440 --> 0:22:03.960 means or as with you know, as justice course that 0:22:04.119 --> 0:22:06.480 should say he wants to get rid of all of 0:22:06.520 --> 0:22:10.840 it all together. How many of the justices have expressed 0:22:10.840 --> 0:22:14.280 a desire just to get rid of the Chevron deference well, 0:22:14.359 --> 0:22:18.520 what's what's fascinating about We have no idea about Justice Barrett, 0:22:18.560 --> 0:22:22.719 by the way, but what's fascinating about Justice course, Justice 0:22:22.800 --> 0:22:29.439 Kavanaugh is they believe in expanded presidential power, even if 0:22:29.480 --> 0:22:32.359 it's never been recognized in the past. But they believe 0:22:32.520 --> 0:22:36.160 in whigdling you down power of the very agencies below 0:22:36.200 --> 0:22:41.000 the president um and so we Justice so Leto would 0:22:41.040 --> 0:22:44.920 probably join in with him, maybe Justice Thomas as well, 0:22:45.440 --> 0:22:49.080 And so it might turn on what Justice Barrett thinks. 0:22:49.680 --> 0:22:54.000 And she really has not had the opportunity to weigh in. 0:22:54.800 --> 0:22:58.320 In terms of the determinants of Chevron doctrine, I would 0:22:58.359 --> 0:23:00.440 expect that this is not going to be the case 0:23:00.920 --> 0:23:04.920 where they will dismantled Chevron altogether. That I could be wrong, 0:23:05.359 --> 0:23:09.720 but rather it does cry out for a limitation that 0:23:09.840 --> 0:23:13.280 many have argued for before, suggesting that when an agency 0:23:14.560 --> 0:23:18.040 can interpret a provision so as to expand its power, 0:23:18.840 --> 0:23:24.080 that's when the reasonableness deference should be discarded, because we 0:23:24.160 --> 0:23:27.200 need a check on an agency to make sure that 0:23:27.320 --> 0:23:30.080 they don't aggradize their own power at the expense of 0:23:30.160 --> 0:23:33.000 the regulated public. Thanks so much, how for giving us 0:23:33.080 --> 0:23:36.720 that introduction to next term at the Supreme Court. That's 0:23:36.720 --> 0:23:39.760 Professor Harold Crent of the Chicago Camp College of Law 0:23:40.160 --> 0:23:43.640 coming up next. The Cleveland Indians are changing their name. 0:23:44.000 --> 0:23:47.200 But what about the other team named the Cleveland Guardians. 0:23:47.520 --> 0:23:51.720 This is Bloomberg. The DC Court of Appeals has ordered 0:23:51.760 --> 0:23:54.080 the release of a man accused of taking part in 0:23:54.160 --> 0:23:57.560 a pepper spray assault on police during the January six 0:23:57.720 --> 0:24:01.240 Capital Riot, a reversal of the order of the district court. 0:24:01.359 --> 0:24:05.040 Judge joining me is former federal prosecutor Robert Mints, a 0:24:05.119 --> 0:24:07.879 partner Ma Carter in English. First of all, is it 0:24:08.040 --> 0:24:12.159 unusual for an appeals court to be reviewing decisions by 0:24:12.240 --> 0:24:16.600 district court judges about whether to release defendants on bail. 0:24:17.440 --> 0:24:20.639 It really is unusual for courts of appeal to be 0:24:20.840 --> 0:24:24.440 taking a look at those decisions, because they're typically left 0:24:24.600 --> 0:24:27.359 up to the trial judge. The trial judge is the 0:24:27.400 --> 0:24:30.960 one who has the most information and here's the arguments 0:24:31.000 --> 0:24:35.400 from counsel, and usually makes that decision based upon two factors, 0:24:35.680 --> 0:24:38.679 whether the individuals a danger to themselves or a danger 0:24:38.800 --> 0:24:41.240 to others. And if the court makes a finding that 0:24:41.359 --> 0:24:44.679 either one of those facts exists, the court will detain 0:24:44.760 --> 0:24:47.720 an individual pre trial and they will have to stay 0:24:47.760 --> 0:24:52.080 in custody until their trial begins. So now, the appeals 0:24:52.160 --> 0:24:57.240