1 00:00:02,840 --> 00:00:07,400 Speaker 1: You're listening to Bloomberg Law with June Grosseo from Bloomberg Radio. 2 00:00:09,080 --> 00:00:11,639 Speaker 2: Over the next two months, the Supreme Court will be 3 00:00:11,720 --> 00:00:17,360 Speaker 2: considering several high profile cases, many involving hot button social issues. 4 00:00:17,800 --> 00:00:21,880 Speaker 2: They range from cases over handguns in public places and 5 00:00:21,960 --> 00:00:26,439 Speaker 2: transgender athletes to President Trump's firing of a Federal Reserve 6 00:00:26,600 --> 00:00:30,400 Speaker 2: governor and the death penalty. Some of these cases involve 7 00:00:30,560 --> 00:00:35,440 Speaker 2: novel issues of law, while others involve longstanding precedents that 8 00:00:35,680 --> 00:00:40,360 Speaker 2: could be overturned. My guest is constitutional law expert David Souper, 9 00:00:40,440 --> 00:00:44,840 Speaker 2: a professor at Georgetown Law David. On Monday, the Justices 10 00:00:44,960 --> 00:00:50,360 Speaker 2: heard oral arguments in the case of Cox Communications versus 11 00:00:50,560 --> 00:00:55,200 Speaker 2: Sony Music Entertainment, which is a case about the music 12 00:00:55,280 --> 00:00:59,440 Speaker 2: industry suing Cox Communications for not shutting down the accounts 13 00:00:59,440 --> 00:01:04,600 Speaker 2: of customers who repeatedly downloaded and distributed songs without permission. 14 00:01:04,959 --> 00:01:10,520 Speaker 1: This is basically about whether you can hold Internet service 15 00:01:10,560 --> 00:01:17,759 Speaker 1: providers and other intermediators responsible for violations of law by 16 00:01:17,840 --> 00:01:21,720 Speaker 1: their subscribers. We all know that these web platforms are 17 00:01:21,800 --> 00:01:28,720 Speaker 1: used for variety of illegal activities, including copyright violations, defamation, revenge, porn, 18 00:01:28,959 --> 00:01:33,840 Speaker 1: and so on, and the question is can the Internet 19 00:01:33,959 --> 00:01:38,800 Speaker 1: service providers be held accountable if they allow this and 20 00:01:38,880 --> 00:01:43,759 Speaker 1: facilitate this lawful activity without making any effort to shut 21 00:01:43,800 --> 00:01:44,240 Speaker 1: it down? 22 00:01:44,959 --> 00:01:48,640 Speaker 2: A jury came back with a one billion dollar damage award. 23 00:01:48,800 --> 00:01:50,720 Speaker 1: That could really cut into the profit statement. 24 00:01:50,880 --> 00:01:53,680 Speaker 2: Yes, so the jury wasn't moved by it. But Cox 25 00:01:53,880 --> 00:01:56,920 Speaker 2: argued that Grandma will be thrown off the Internet because 26 00:01:57,040 --> 00:02:01,880 Speaker 2: Junior visited an illegally downloaded song. But the music industry 27 00:02:02,120 --> 00:02:06,720 Speaker 2: said that Cox opted instead to keep the subscription revenues 28 00:02:06,840 --> 00:02:11,560 Speaker 2: rolling rather than terminating a serial infringer. What's the legal issue? 29 00:02:12,120 --> 00:02:15,799 Speaker 1: I mean, the legal issue is to what extent one 30 00:02:15,919 --> 00:02:22,040 Speaker 1: is accountable for facilitating illegal activities. If I provide you 31 00:02:22,280 --> 00:02:28,240 Speaker 1: with weapons and a getaway car and masks, and you 32 00:02:28,280 --> 00:02:31,520 Speaker 1: show up and rob the First National Bank, I'm going 33 00:02:31,560 --> 00:02:33,840 Speaker 1: to be held accountable for that, even if I never 34 00:02:33,880 --> 00:02:38,320 Speaker 1: came near the bank myself. And here is an Internet 35 00:02:38,360 --> 00:02:42,280 Speaker 1: service provider doing the equivalent and saying who me? Why 36 00:02:42,360 --> 00:02:43,200 Speaker 1: are you talking to me? 37 00:02:43,760 --> 00:02:45,519 Speaker 2: But do you think the Supreme Court took the case 38 00:02:45,560 --> 00:02:46,240 Speaker 2: to reverse it? 39 00:02:47,000 --> 00:02:52,200 Speaker 1: I don't know. The Supreme Court has generally been pretty 40 00:02:52,320 --> 00:02:58,119 Speaker 1: unsympathetic with efforts to deal with other kinds of illegal 41 00:02:58,160 --> 00:03:03,000 Speaker 1: activities that internet service providers have done. But it does 42 00:03:03,280 --> 00:03:07,560 Speaker 1: care some about property rights, and I think it's a 43 00:03:07,560 --> 00:03:12,160 Speaker 1: close call. The Supreme Court has been willing to upend 44 00:03:12,440 --> 00:03:15,440 Speaker 1: the tech industry in defensive copyright in the past, and 45 00:03:15,480 --> 00:03:16,920 Speaker 1: that might be willing to do that here. 46 00:03:17,360 --> 00:03:19,600 Speaker 2: So in December second, the Court's going to hear the 47 00:03:19,639 --> 00:03:24,880 Speaker 2: case of First Women's Choice Resource Center versus Plotkin. So 48 00:03:25,000 --> 00:03:29,400 Speaker 2: this involves an attempt by New Jersey's Attorney General to 49 00:03:29,480 --> 00:03:35,400 Speaker 2: subpoena the records of First Choice Women's Resource Centers. So 50 00:03:35,440 --> 00:03:41,680 Speaker 2: tell us about this. This is about a pregnancy a 51 00:03:41,720 --> 00:03:47,280 Speaker 2: pregnancy services organization and whether or not it well New 52 00:03:47,360 --> 00:03:50,480 Speaker 2: Jersey thought that it was giving out vibes that it 53 00:03:50,640 --> 00:03:55,960 Speaker 2: was going to provide people with references for referrals for abortions, 54 00:03:56,240 --> 00:03:59,000 Speaker 2: when it's just the opposite. 55 00:03:59,240 --> 00:04:04,640 Speaker 1: Yeah. The idea here is that these organizations are doing 56 00:04:04,680 --> 00:04:09,800 Speaker 1: everything they can to simulate an abersion referral service to 57 00:04:10,040 --> 00:04:13,640 Speaker 1: get women who are pregnant and considering abortions in their 58 00:04:13,680 --> 00:04:16,400 Speaker 1: doors so they can talk them out of abortions. And 59 00:04:17,120 --> 00:04:20,760 Speaker 1: the concern is that these are vulnerable people at a 60 00:04:20,880 --> 00:04:23,520 Speaker 1: very difficult time in their life, and that they are 61 00:04:23,560 --> 00:04:28,479 Speaker 1: in effect being defrauded and coerced. The facts in individual 62 00:04:28,600 --> 00:04:32,320 Speaker 1: cases I'm obviously not privy to, but that's the concern. 63 00:04:32,400 --> 00:04:36,440 Speaker 1: In New Jersey wanted to investigate such a center and 64 00:04:36,720 --> 00:04:41,560 Speaker 1: issued a subpoena asking for a lot of information about 65 00:04:41,600 --> 00:04:44,720 Speaker 1: how the place operates, to try to figure out if 66 00:04:44,760 --> 00:04:48,360 Speaker 1: it is committing fraud, if it is coercing people, if 67 00:04:48,360 --> 00:04:53,200 Speaker 1: it is misrepresenting itself. And there are procedures in state 68 00:04:53,279 --> 00:04:57,800 Speaker 1: law that the facility could use to either challenge or 69 00:04:57,920 --> 00:05:01,840 Speaker 1: just ignore. The subpoena forced the state to come after it, 70 00:05:01,920 --> 00:05:06,240 Speaker 1: but the center instead went into federal court and sought 71 00:05:06,320 --> 00:05:10,640 Speaker 1: an order to shut down the state's investigation. This case 72 00:05:10,680 --> 00:05:12,960 Speaker 1: is whether you get to run straight to federal court 73 00:05:13,320 --> 00:05:15,440 Speaker 1: or have to play within the state law rules. 74 00:05:15,880 --> 00:05:20,400 Speaker 2: Do you think that, considering that religion iss entwined here 75 00:05:20,880 --> 00:05:28,760 Speaker 2: and its abortion connected, that the conservatives will be magnanimous 76 00:05:28,800 --> 00:05:31,120 Speaker 2: in allowing them to go to federal court. 77 00:05:32,160 --> 00:05:35,839 Speaker 1: I actually don't. Certainly the majority is going to be 78 00:05:35,920 --> 00:05:40,360 Speaker 1: sympathetic with the Center. But there has been an agenda 79 00:05:40,480 --> 00:05:45,120 Speaker 1: going back fifty years or more of keeping people in 80 00:05:45,360 --> 00:05:49,080 Speaker 1: state court, preventing them from going to federal court when 81 00:05:49,120 --> 00:05:53,440 Speaker 1: their state court proceedings underway, and I would be shocked 82 00:05:53,480 --> 00:05:56,400 Speaker 1: if the Supreme Court was willing to reverse field on 83 00:05:56,560 --> 00:06:00,800 Speaker 1: that just because it likes a particular plaintiff. I would 84 00:06:01,040 --> 00:06:04,200 Speaker 1: expect if the Court is consistent with what it said, 85 00:06:04,800 --> 00:06:08,000 Speaker 1: that it would make them sort things out in state court. 86 00:06:08,120 --> 00:06:11,320 Speaker 1: If it doesn't. If it does rule in favor of 87 00:06:11,560 --> 00:06:14,800 Speaker 1: the pregnancy center, that's going to open the doors to 88 00:06:14,920 --> 00:06:17,799 Speaker 1: a lot of civil rights plaintiffs that have not thought 89 00:06:17,800 --> 00:06:19,080 Speaker 1: they could go to federal court. 90 00:06:19,560 --> 00:06:23,520 Speaker 2: So, now Olivier versus City of Brandon, this involves a 91 00:06:23,720 --> 00:06:27,599 Speaker 2: preacher who wanted to preach in an area where the 92 00:06:27,839 --> 00:06:31,839 Speaker 2: munits beal ordinances did not allow him to. So tell 93 00:06:31,880 --> 00:06:34,520 Speaker 2: us about this and why it's a Supreme Court case. 94 00:06:35,400 --> 00:06:39,640 Speaker 1: Well, the preacher likes to do open air preaching to 95 00:06:39,960 --> 00:06:44,480 Speaker 1: the general public with amplifiers and so on, has already 96 00:06:44,520 --> 00:06:49,280 Speaker 1: been ticketed and fined for that, and believes this ordinance 97 00:06:49,440 --> 00:06:54,400 Speaker 1: is unconstitutionally denying him his right to proselytize for his religion. 98 00:06:54,720 --> 00:06:59,000 Speaker 1: The Supreme Court, in some very technical cases, has said 99 00:06:59,080 --> 00:07:02,400 Speaker 1: you can't bring us civil rights case to challenge a 100 00:07:02,480 --> 00:07:05,799 Speaker 1: criminal conviction. You have to do that within the criminal 101 00:07:05,839 --> 00:07:10,320 Speaker 1: law system. So the contention here is that if he 102 00:07:10,400 --> 00:07:14,240 Speaker 1: doesn't like this law, he needs to fight it through 103 00:07:14,280 --> 00:07:19,280 Speaker 1: appeals of punishments the state issues him. There. The Supreme 104 00:07:19,280 --> 00:07:23,360 Speaker 1: Court invited this sort of thing by creating this technical 105 00:07:23,440 --> 00:07:27,960 Speaker 1: rule to try to keep challenges to civil rights out 106 00:07:28,040 --> 00:07:32,600 Speaker 1: of federal court, and now they have this extremely complicated 107 00:07:32,720 --> 00:07:39,160 Speaker 1: question of whether by having been previously fined, he lost 108 00:07:39,200 --> 00:07:41,120 Speaker 1: his right to file a civil rights action. 109 00:07:41,520 --> 00:07:43,600 Speaker 2: A big case. One of the biggest cases of the 110 00:07:43,720 --> 00:07:48,280 Speaker 2: term is going to be Texas the slaughter about Donald 111 00:07:48,320 --> 00:07:53,080 Speaker 2: Trump firing a Federal Trade commissioner. This is a huge case. 112 00:07:53,160 --> 00:07:54,400 Speaker 2: Tell us why. 113 00:07:54,520 --> 00:07:58,880 Speaker 1: It's a huge case, because it would allow the president 114 00:07:59,520 --> 00:08:05,120 Speaker 1: to so effectively disregard all the provisions designed to give 115 00:08:05,200 --> 00:08:10,000 Speaker 1: independence to federal regulatory agencies. The Federal Trade Commission is 116 00:08:10,200 --> 00:08:13,960 Speaker 1: in charge of ensuring that people don't engage in anti 117 00:08:14,040 --> 00:08:19,160 Speaker 1: competitive practices and don't trick consumers, and that's something that 118 00:08:19,720 --> 00:08:23,560 Speaker 1: companies with ties to either party could engage in. So 119 00:08:23,920 --> 00:08:28,200 Speaker 1: Congress set up the FTC to be somewhat independent. It's 120 00:08:28,240 --> 00:08:32,520 Speaker 1: got commissioners appointed by presidents but for fixed terms, and 121 00:08:32,559 --> 00:08:34,559 Speaker 1: they can't be thrown out in the middle of their 122 00:08:34,679 --> 00:08:39,320 Speaker 1: term without showing misconduct. That way, the FTC is free 123 00:08:39,360 --> 00:08:43,200 Speaker 1: to investigate the president's friends or the preends of other 124 00:08:43,320 --> 00:08:47,840 Speaker 1: influential politicians. And what President Trump is saying is, no, 125 00:08:48,559 --> 00:08:52,240 Speaker 1: I'm in charge of everything in the executive branch. Only 126 00:08:52,320 --> 00:08:55,280 Speaker 1: my people should serve on any of these agencies, and 127 00:08:55,360 --> 00:08:57,719 Speaker 1: I should be able to get rid of these commissioners 128 00:08:57,760 --> 00:08:58,320 Speaker 1: at will. 129 00:08:58,840 --> 00:09:03,960 Speaker 2: Now, this involves the Humphrey's Executor case, which the Conservatives 130 00:09:03,960 --> 00:09:07,560 Speaker 2: have been chipping away at, and the question is whether 131 00:09:07,600 --> 00:09:12,800 Speaker 2: it's going to survive this case. And also the Conservatives 132 00:09:12,880 --> 00:09:17,280 Speaker 2: here over descents from the Liberals, refused to let Rebecca 133 00:09:17,360 --> 00:09:21,040 Speaker 2: Slaughter stay in her job while the case played out, 134 00:09:21,520 --> 00:09:24,400 Speaker 2: which may be an indication or not of what they're thinking. 135 00:09:24,800 --> 00:09:27,600 Speaker 1: I suspect it is an indication of what they're thinking. 136 00:09:27,960 --> 00:09:31,720 Speaker 1: And they have all but signaled that they're willing to 137 00:09:32,080 --> 00:09:37,920 Speaker 1: overrule Humphrey's Executor in every instance except perhaps the Federal Reserve. 138 00:09:38,559 --> 00:09:42,040 Speaker 1: But there's a very curious dynamic here because Humphrey's Executor 139 00:09:42,520 --> 00:09:46,320 Speaker 1: is a Conservative case. It was used to rein in 140 00:09:46,440 --> 00:09:51,120 Speaker 1: President Franklin Roosevelt and force him to put up with 141 00:09:51,200 --> 00:09:54,640 Speaker 1: a Herbert Hoover appointee who was opposing his new deal 142 00:09:55,040 --> 00:09:58,360 Speaker 1: and so here you have a precedent that was put 143 00:09:58,440 --> 00:10:04,000 Speaker 1: in to reign in a wildly popular Democratic president that 144 00:10:04,080 --> 00:10:08,120 Speaker 1: we are chucking when it is limiting a far less 145 00:10:08,160 --> 00:10:12,000 Speaker 1: popular Republican president. And it's not the first time this 146 00:10:12,040 --> 00:10:16,920 Speaker 1: has happened. Chevron was a decision that validated Ronald Reagan's 147 00:10:16,920 --> 00:10:21,520 Speaker 1: anti invenmental policies, and then when it was helpful to 148 00:10:21,960 --> 00:10:26,560 Speaker 1: Joe Biden and Democratic agencies, the Supreme Court overruled it 149 00:10:26,960 --> 00:10:29,880 Speaker 1: a couple of years ago in Low for pride, if 150 00:10:29,880 --> 00:10:32,640 Speaker 1: you have a rule of law, once you establish these 151 00:10:32,679 --> 00:10:37,480 Speaker 1: procedural rules they ought to apply to both Democrats and Republicans. 152 00:10:37,120 --> 00:10:40,280 Speaker 2: Doesn't it seem as if this particular Supreme Court is 153 00:10:40,960 --> 00:10:45,600 Speaker 2: less concerned perhaps about precedent than prior Supreme courts. 154 00:10:46,480 --> 00:10:51,960 Speaker 1: If they overrule Humphrey's executor, that will be the inescapable conclusion. 155 00:10:52,080 --> 00:10:57,360 Speaker 1: And they've certainly given us every indication. Indeed, they've criticized 156 00:10:57,440 --> 00:11:01,160 Speaker 1: lower courts for continuing to follow humphrey Executor, which has 157 00:11:01,200 --> 00:11:04,040 Speaker 1: not been overruled. A very strange process. 158 00:11:04,200 --> 00:11:08,200 Speaker 2: You mentioned the Federal Reserve, and on January twenty first, 159 00:11:08,840 --> 00:11:11,920 Speaker 2: the justices will hear oral arguments in the case of 160 00:11:12,240 --> 00:11:17,000 Speaker 2: Trump versus Cook. Trump wants to fire Federal Reserve Governor 161 00:11:17,160 --> 00:11:20,120 Speaker 2: Lisa Cook. He said he had a reason to fire her, 162 00:11:20,240 --> 00:11:25,080 Speaker 2: which was an unproven allegation of mortgage fraud. The Justice 163 00:11:25,200 --> 00:11:27,720 Speaker 2: is allowed Cook to stay in her role as a 164 00:11:27,760 --> 00:11:31,000 Speaker 2: Federal Reserve governor while the case plays out. Do you 165 00:11:31,000 --> 00:11:34,120 Speaker 2: think that this will be a different result than the 166 00:11:34,160 --> 00:11:34,960 Speaker 2: Slaughter case. 167 00:11:35,440 --> 00:11:38,640 Speaker 1: It's a little hard to know. There was some language 168 00:11:38,679 --> 00:11:43,480 Speaker 1: in one of the Supreme Court shadow doct cases about 169 00:11:43,840 --> 00:11:48,360 Speaker 1: independent agencies where they said this shouldn't apply to the 170 00:11:48,360 --> 00:11:54,040 Speaker 1: Federal Reserve because, by way of its tradition and independence, 171 00:11:54,480 --> 00:11:57,520 Speaker 1: that's somewhat separate. I find that a little bit strange. 172 00:11:57,559 --> 00:11:59,960 Speaker 1: The Federal Trade Commission is a few months younger than 173 00:12:00,040 --> 00:12:03,760 Speaker 1: in the Federal Reserve. They were created almost back to back. 174 00:12:04,240 --> 00:12:08,400 Speaker 1: So if there's tradition on behalf of the Federal Reserve, 175 00:12:08,440 --> 00:12:11,920 Speaker 1: there probably is on the behalf of the Federal Trade Commission. 176 00:12:12,200 --> 00:12:15,880 Speaker 1: But they pretty clearly was firing a warning shot across 177 00:12:15,920 --> 00:12:20,200 Speaker 1: the administration's bow, don't make us decide a Federal Reserve case. 178 00:12:20,360 --> 00:12:24,560 Speaker 1: And the administration, i think, rather disrespectfully said no, we 179 00:12:24,640 --> 00:12:26,880 Speaker 1: are going to make you decide a Federal Reserve case. 180 00:12:27,160 --> 00:12:28,760 Speaker 1: And they fired doctor Cook. 181 00:12:29,120 --> 00:12:32,840 Speaker 2: I guess the administration is really testing the limits. Coming 182 00:12:32,920 --> 00:12:36,800 Speaker 2: up next, I'll continue this conversation with Georgetown Law professor 183 00:12:36,920 --> 00:12:41,599 Speaker 2: David Super. We'll talk about upcoming cases involving campaign finance 184 00:12:41,720 --> 00:12:46,119 Speaker 2: and transgender athletes. I'm June Grosso and you're listening to Bloomberg. 185 00:12:47,960 --> 00:12:52,240 Speaker 2: Fifteen cases are on the Supreme Court's argument calendar for 186 00:12:52,320 --> 00:12:56,360 Speaker 2: the months of December and January. The cases cover issues 187 00:12:56,400 --> 00:13:00,680 Speaker 2: from handguns in public places and transgender athletes, lead to 188 00:13:00,800 --> 00:13:04,720 Speaker 2: President Trump's ability to fire a federal Reserve governor, and 189 00:13:04,840 --> 00:13:08,840 Speaker 2: the damp penalty. I've been talking to constitutional law professor 190 00:13:08,960 --> 00:13:13,880 Speaker 2: David Souper of Georgetown Law. David. Coming up on December 191 00:13:13,960 --> 00:13:20,200 Speaker 2: ninth is a case involving campaign finance, National Republican Senatorial 192 00:13:20,240 --> 00:13:25,840 Speaker 2: Committee versus Federal Election Commission, and the Supreme Court's going 193 00:13:25,880 --> 00:13:30,559 Speaker 2: to consider Republican calls to strike down federal caps on 194 00:13:30,679 --> 00:13:35,719 Speaker 2: the money political parties can spend on advertisements in coordination 195 00:13:35,920 --> 00:13:40,440 Speaker 2: with congressional candidates. So an attempt to strike down more 196 00:13:40,480 --> 00:13:42,000 Speaker 2: political spending caps. 197 00:13:42,720 --> 00:13:47,280 Speaker 1: Yes, there's no limit apparently that they don't want to 198 00:13:47,320 --> 00:13:50,800 Speaker 1: strike down. They got their way in Citizen United and 199 00:13:50,840 --> 00:13:53,520 Speaker 1: a bunch of other cases, but they are apparently not 200 00:13:53,679 --> 00:13:58,640 Speaker 1: done yet. And their argument here is that even when 201 00:13:58,840 --> 00:14:06,320 Speaker 1: there are independent funding organizations that are supposedly separate from 202 00:14:06,559 --> 00:14:10,760 Speaker 1: the parties and campaigns, that they should be allowed to 203 00:14:10,960 --> 00:14:16,679 Speaker 1: function as annexes or adjuncts to the campaigns and coordinate 204 00:14:16,760 --> 00:14:19,920 Speaker 1: their policies. If this happens, no one in their right 205 00:14:19,960 --> 00:14:22,840 Speaker 1: mind would ever give anything to the Republican Party or 206 00:14:22,840 --> 00:14:25,760 Speaker 1: the Democratic Party. They'd give all their money to these 207 00:14:25,800 --> 00:14:30,880 Speaker 1: outside organizations with much less obligation to disclose, and they 208 00:14:30,920 --> 00:14:33,040 Speaker 1: would then do whatever the parties told them to. 209 00:14:33,360 --> 00:14:36,440 Speaker 2: So in this case, when the Trump administration came in, 210 00:14:36,480 --> 00:14:38,680 Speaker 2: they said they weren't going to defend the law, So 211 00:14:39,080 --> 00:14:42,920 Speaker 2: the Supreme Court gave the Democrats an opportunity to step 212 00:14:42,920 --> 00:14:46,640 Speaker 2: in and defend the law. Why are the Republicans against 213 00:14:46,680 --> 00:14:51,160 Speaker 2: these spending caps and the Democrats are for the spending caps. 214 00:14:51,640 --> 00:14:53,960 Speaker 2: It seems like what would be good for one political 215 00:14:54,000 --> 00:14:55,360 Speaker 2: party would be good for the other. 216 00:14:56,280 --> 00:15:00,880 Speaker 1: There's more of a constituency in the Democratic party campaign 217 00:15:00,960 --> 00:15:06,080 Speaker 1: finance reform. The McCain fine Gold Law had both Democratic 218 00:15:06,120 --> 00:15:10,800 Speaker 1: or Republican votes, but more Democratic ones, and the prominent 219 00:15:10,840 --> 00:15:16,800 Speaker 1: Republican supporters are now largely gone. So the Republican Party, 220 00:15:16,880 --> 00:15:21,160 Speaker 1: I think has felt that overall, the more money goes 221 00:15:21,200 --> 00:15:26,200 Speaker 1: into elections, the better off they are, And with many 222 00:15:26,280 --> 00:15:31,000 Speaker 1: of its members on principle opposed to money dominated politics 223 00:15:31,120 --> 00:15:36,560 Speaker 1: and having been badly earned by mister Musk's spending in 224 00:15:36,600 --> 00:15:39,800 Speaker 1: the last election, I think that Democrats may be getting 225 00:15:39,800 --> 00:15:41,680 Speaker 1: religion here like. 226 00:15:41,760 --> 00:15:45,640 Speaker 2: Less term, there is a case involving a death row inmate, 227 00:15:46,320 --> 00:15:49,880 Speaker 2: and this is about whether he can be executed in 228 00:15:49,920 --> 00:15:52,480 Speaker 2: the light of conflicting IQ scores. 229 00:15:53,480 --> 00:15:57,680 Speaker 1: Yes, the Supreme Court decided a long time ago that 230 00:15:57,960 --> 00:16:02,800 Speaker 1: the Eighth Amendments prohibition Cruel and Unusual Punishment means that 231 00:16:02,840 --> 00:16:08,880 Speaker 1: we shouldn't be executing people who are severely mentally deficient. 232 00:16:09,360 --> 00:16:11,600 Speaker 1: We can keep them in jail, but we shouldn't kill them. 233 00:16:11,920 --> 00:16:14,560 Speaker 1: That they may not be able to fully understand what 234 00:16:14,600 --> 00:16:18,840 Speaker 1: we're doing to them, and that that's just blatant cruelty. 235 00:16:19,240 --> 00:16:21,200 Speaker 1: But of course, once you say that, you have to 236 00:16:21,240 --> 00:16:25,720 Speaker 1: define what it is to be mentally deficient. And this 237 00:16:25,760 --> 00:16:29,520 Speaker 1: has come down to IQ scores, typically old ones before 238 00:16:29,520 --> 00:16:35,680 Speaker 1: someone turned eighteen, and the petitioner here has IQ scores 239 00:16:35,720 --> 00:16:38,400 Speaker 1: that are all in a pretty similar range. This is 240 00:16:38,480 --> 00:16:41,400 Speaker 1: not a smart person at all. This is a pretty 241 00:16:41,440 --> 00:16:45,200 Speaker 1: limited person. But the question is what do you do 242 00:16:45,360 --> 00:16:50,360 Speaker 1: about the fairly modest variation among these scores? And the 243 00:16:50,800 --> 00:16:55,040 Speaker 1: Eleventh Circuit in the Southeast looked at them as a 244 00:16:55,040 --> 00:16:59,720 Speaker 1: whole and said, we think this man is too intellectually 245 00:17:00,280 --> 00:17:04,600 Speaker 1: deficient to execute. And the Supreme Court is going to 246 00:17:04,720 --> 00:17:08,400 Speaker 1: now tell us either there's a new formula to use 247 00:17:08,560 --> 00:17:12,360 Speaker 1: with these IQ scores, or how at least you're supposed 248 00:17:12,400 --> 00:17:16,200 Speaker 1: to put the other scores that have minor differences in them. 249 00:17:16,240 --> 00:17:19,840 Speaker 1: This is not a precise science. It's not like weighing 250 00:17:20,080 --> 00:17:24,359 Speaker 1: a stone or determining the carots of a diamond. This 251 00:17:24,560 --> 00:17:29,920 Speaker 1: is a very imprecise thing. The numbers for this inmate 252 00:17:30,359 --> 00:17:34,640 Speaker 1: very relatively little. I've represented people in disability cases where 253 00:17:34,680 --> 00:17:37,840 Speaker 1: the numbers were a lot broader than these. But the 254 00:17:37,880 --> 00:17:41,560 Speaker 1: government is pressing ahead and insisting that we must must 255 00:17:41,640 --> 00:17:44,479 Speaker 1: execute this man, and the Supreme Court will tell us 256 00:17:44,520 --> 00:17:45,159 Speaker 1: whether that's so. 257 00:17:45,640 --> 00:17:48,320 Speaker 2: Yeah, and the Eleventh Circuit is one of the more 258 00:17:48,359 --> 00:17:53,040 Speaker 2: conservative circuits. Let's look now at some cases that will 259 00:17:53,160 --> 00:17:56,960 Speaker 2: definitely be among the most high profile of the term, 260 00:17:57,160 --> 00:18:03,160 Speaker 2: involving transgender athletes in Idaho and West Virginia prohibit transgender 261 00:18:03,200 --> 00:18:07,320 Speaker 2: women and girls from participating on women's and girls sports teams. 262 00:18:07,720 --> 00:18:11,320 Speaker 2: I mean, this is a huge issue across the country. 263 00:18:11,960 --> 00:18:15,199 Speaker 2: Explain what the Supreme Court will be looking at in 264 00:18:15,280 --> 00:18:16,119 Speaker 2: these cases. 265 00:18:16,640 --> 00:18:20,040 Speaker 1: Well, there are various civil rights laws, including ones that 266 00:18:20,119 --> 00:18:25,359 Speaker 1: apply in the educational context, that prohibit discrimination because of sex. 267 00:18:26,160 --> 00:18:31,840 Speaker 1: And the question is are you discriminating against these women 268 00:18:31,920 --> 00:18:36,480 Speaker 1: and girls because of their sex when they're specifically are transgender. 269 00:18:37,200 --> 00:18:39,919 Speaker 1: The leading opinion on this from the Supreme Court is 270 00:18:39,960 --> 00:18:45,479 Speaker 1: by Justice Gorsic, and he said that if these women 271 00:18:45,520 --> 00:18:51,040 Speaker 1: and girls were not born identified as male, no one 272 00:18:51,080 --> 00:18:54,600 Speaker 1: would be hassling them. So it is because of sex, 273 00:18:54,680 --> 00:18:58,520 Speaker 1: because of their sex assigned at birth, that these states 274 00:18:58,560 --> 00:19:00,960 Speaker 1: are treating them a problems, so they are covered by 275 00:19:00,960 --> 00:19:05,359 Speaker 1: civil rights laws. The question, though, is whether there is 276 00:19:05,359 --> 00:19:09,800 Speaker 1: a majority to affirm that position. The three liberal justices 277 00:19:09,960 --> 00:19:13,199 Speaker 1: likely would, I imagine Justice Coursuch would, But then the 278 00:19:13,280 --> 00:19:15,160 Speaker 1: question is where do you get the fifth vote? 279 00:19:15,400 --> 00:19:18,680 Speaker 2: Since that case, since the Boss Stoc Case, this Court 280 00:19:18,800 --> 00:19:24,800 Speaker 2: has ruled consistently against LGBTQ rights in just about every 281 00:19:24,800 --> 00:19:27,439 Speaker 2: case I can think of. So would it be easy 282 00:19:27,520 --> 00:19:33,399 Speaker 2: for the conservative justices to distinguish Bosstoc from the facts. 283 00:19:33,400 --> 00:19:34,800 Speaker 2: In these cases, I. 284 00:19:34,720 --> 00:19:37,200 Speaker 1: Don't know how you do that. In the other cases 285 00:19:37,240 --> 00:19:43,520 Speaker 1: they did distinguish Bosstoc, sometimes persuasively, sometimes not very persuasively. 286 00:19:44,160 --> 00:19:49,359 Speaker 1: But this one I think probably forces them to overrule Bosstoc, 287 00:19:49,560 --> 00:19:53,480 Speaker 1: or make Bosstoc a complete shell of itself, or else 288 00:19:53,520 --> 00:19:57,600 Speaker 1: to follow it. And my hope is that even if 289 00:19:57,640 --> 00:20:00,840 Speaker 1: there are not five justices that would a hand down 290 00:20:00,880 --> 00:20:03,760 Speaker 1: boss Stock today if it was up to them, that 291 00:20:03,880 --> 00:20:07,560 Speaker 1: their respect for their own credibility is going to make 292 00:20:07,600 --> 00:20:10,520 Speaker 1: them reluctant to overrule a case that is so recent. 293 00:20:11,040 --> 00:20:16,240 Speaker 2: Finally, there's on January twentieth Wolford versus Lopez, and this 294 00:20:16,359 --> 00:20:20,760 Speaker 2: is about the right to carry in public places in Hawaii. 295 00:20:21,119 --> 00:20:23,600 Speaker 1: This is, depending on how you look at it, a 296 00:20:23,640 --> 00:20:27,959 Speaker 1: property rights case or a gun rights case. And the 297 00:20:28,440 --> 00:20:33,120 Speaker 1: gun owners say that why did a horrible thing when 298 00:20:33,160 --> 00:20:37,760 Speaker 1: it said you need permission to go into private property 299 00:20:37,880 --> 00:20:41,119 Speaker 1: that is open to the public with a gun. And 300 00:20:41,720 --> 00:20:46,040 Speaker 1: a property right argument is that people have control over 301 00:20:46,080 --> 00:20:48,439 Speaker 1: who comes onto their land. If I don't want you 302 00:20:48,480 --> 00:20:51,160 Speaker 1: on my land, I can say no. If I don't 303 00:20:51,200 --> 00:20:53,320 Speaker 1: want you to bring your gun, I can say no. 304 00:20:53,440 --> 00:20:55,560 Speaker 1: If I don't want you to bring your book, I 305 00:20:55,600 --> 00:20:58,600 Speaker 1: can say no, and if you don't like my conditions, 306 00:20:58,640 --> 00:21:01,600 Speaker 1: you just don't come on to my land. Hawaii is 307 00:21:01,640 --> 00:21:04,320 Speaker 1: saying there are a lot of people who don't want 308 00:21:04,440 --> 00:21:09,160 Speaker 1: guns on their land for a variety of reasons, philosophical reasons, 309 00:21:09,200 --> 00:21:14,000 Speaker 1: personal safety reasons, or concerned about liability. If you have 310 00:21:14,160 --> 00:21:17,000 Speaker 1: someone with a gun on your land and they shoot 311 00:21:17,040 --> 00:21:20,480 Speaker 1: someone or it goes off, you could be facing huge 312 00:21:20,560 --> 00:21:23,960 Speaker 1: liability and in the interim, your insurance premiums go up. 313 00:21:24,040 --> 00:21:27,560 Speaker 1: So the notion here is that we don't want people 314 00:21:27,840 --> 00:21:33,320 Speaker 1: on other people's private property with guns unless they've got permission. 315 00:21:33,520 --> 00:21:37,000 Speaker 1: The practical effect of this likely would be that if 316 00:21:37,040 --> 00:21:40,600 Speaker 1: it's upheld, that stores will start posting signs saying you 317 00:21:40,720 --> 00:21:43,600 Speaker 1: have our permission to be here with your gun, or 318 00:21:43,800 --> 00:21:46,480 Speaker 1: not posting such signs, in which case you can't take 319 00:21:46,520 --> 00:21:49,120 Speaker 1: your gun in there. But this is said to be 320 00:21:49,280 --> 00:21:54,040 Speaker 1: an intrusion on Second Amendment rights, and this will tell 321 00:21:54,119 --> 00:21:57,280 Speaker 1: us whether the court cares more about private property or guns. 322 00:21:57,640 --> 00:21:59,480 Speaker 2: I don't know the answer to that one. I guess 323 00:21:59,480 --> 00:22:02,720 Speaker 2: we'll find out. Thanks so much, David for this preview 324 00:22:02,920 --> 00:22:06,199 Speaker 2: of the cases coming up. That's Professor David super of 325 00:22:06,280 --> 00:22:14,800 Speaker 2: Georgetown Law. The first appeals court to weigh in on 326 00:22:14,840 --> 00:22:20,240 Speaker 2: the Trump administration's attempts to install temporary US attorneys has 327 00:22:20,280 --> 00:22:24,080 Speaker 2: given a thumbs down to President Trump's pick of Alina Habba, 328 00:22:24,520 --> 00:22:28,320 Speaker 2: his former personal attorney, to lead the US Attorney's Office 329 00:22:28,400 --> 00:22:31,760 Speaker 2: in New Jersey. The Third Circuit Court of Appeals said 330 00:22:31,800 --> 00:22:35,640 Speaker 2: that Haba was not lawfully appointed to the job, despite 331 00:22:35,640 --> 00:22:39,840 Speaker 2: the administration's attempt to rely on at least seven statutes 332 00:22:40,160 --> 00:22:43,880 Speaker 2: and a variety of titles for Habba Interim US Attorney, 333 00:22:44,000 --> 00:22:49,120 Speaker 2: Acting US Attorney, first Assistant US Attorney, and special Attorney. 334 00:22:49,560 --> 00:22:52,560 Speaker 2: Joining me is constitutional law Professor Harold Krant of the 335 00:22:52,640 --> 00:22:56,840 Speaker 2: Chicago Kent College of Law. How will you explain the 336 00:22:57,080 --> 00:23:03,400 Speaker 2: sort of tortured attempts to keep Alena Habba in charge 337 00:23:03,440 --> 00:23:06,240 Speaker 2: of the US Attorney's Office in New Jersey. 338 00:23:07,080 --> 00:23:10,840 Speaker 3: The administration is trying to dispense with the niceties of 339 00:23:10,880 --> 00:23:15,960 Speaker 3: the littal Vacancy's reformat, which Congress has passed in order 340 00:23:16,000 --> 00:23:20,720 Speaker 3: to structure who can fill vacant positions, and the administration 341 00:23:20,760 --> 00:23:24,560 Speaker 3: obviously wanted Alena Habba to be the interim US Attorney 342 00:23:24,920 --> 00:23:28,040 Speaker 3: and had the right to under the statute to appoint 343 00:23:28,040 --> 00:23:31,920 Speaker 3: her as interim us attorney, but under that particular statutory 344 00:23:32,000 --> 00:23:36,360 Speaker 3: provision it only lasted for one hundred and twenty days. 345 00:23:36,560 --> 00:23:39,160 Speaker 3: At the expiration of the one hundred and twenty days, therefore, 346 00:23:39,280 --> 00:23:43,400 Speaker 3: under the statute, the right to appoint the interim then 347 00:23:43,480 --> 00:23:47,280 Speaker 3: defaults to the district court judges of that circuit. The 348 00:23:47,280 --> 00:23:51,600 Speaker 3: district court judges met and decided who should replace Alena 349 00:23:51,640 --> 00:23:54,920 Speaker 3: Hobba at the end of the one hundred and twenty days. Unfortunately, 350 00:23:55,160 --> 00:23:59,080 Speaker 3: the administration didn't want to comply with their choice, so 351 00:23:59,240 --> 00:24:02,959 Speaker 3: fired that choice and then tried to strategize how they 352 00:24:03,000 --> 00:24:07,840 Speaker 3: could reappoint Alena Habba into that position even though the 353 00:24:07,880 --> 00:24:10,720 Speaker 3: one hundred and twenty days were over, and they tried 354 00:24:10,760 --> 00:24:13,840 Speaker 3: to appoint her as a special attorney or as interim 355 00:24:13,960 --> 00:24:17,680 Speaker 3: use Attorney a second time in order to fill that position. 356 00:24:18,200 --> 00:24:24,080 Speaker 3: In the meantime, the President had duly transferred to Senate 357 00:24:24,440 --> 00:24:28,439 Speaker 3: his choice for permanent use Attorney, which was Alena Habba. 358 00:24:28,760 --> 00:24:31,040 Speaker 3: The Senate, however, did not act on it because of 359 00:24:31,080 --> 00:24:33,960 Speaker 3: the lack of support, and so the President then was 360 00:24:34,000 --> 00:24:38,240 Speaker 3: embarrassed with that and so rescinded the nomination. So even 361 00:24:38,240 --> 00:24:41,240 Speaker 3: though he tried, at one point tried to follow the 362 00:24:41,240 --> 00:24:44,639 Speaker 3: constitutionally mandated path of making an appointment and subject to 363 00:24:44,720 --> 00:24:48,840 Speaker 3: Senate appointment. He then realized that it wasn't working and 364 00:24:48,880 --> 00:24:51,719 Speaker 3: so tried to get around it the second way by 365 00:24:51,800 --> 00:24:54,760 Speaker 3: withdrawing the nomination and reappointing. 366 00:24:54,080 --> 00:24:55,359 Speaker 4: Her to the interim position. 367 00:24:55,840 --> 00:24:59,720 Speaker 3: So that then led to this brujaha with drug defenders 368 00:25:00,320 --> 00:25:04,359 Speaker 3: sort of trying to get their indictment dismissed and disqualify 369 00:25:04,560 --> 00:25:08,639 Speaker 3: Elena hobbob from continuing in that role, and the District 370 00:25:08,640 --> 00:25:12,560 Speaker 3: Court and now the Quarter of Appeals has basically said, okay, 371 00:25:13,080 --> 00:25:15,720 Speaker 3: Baba should be disqualified, though you're going to we're not 372 00:25:15,720 --> 00:25:17,000 Speaker 3: going to dismiss the indictments. 373 00:25:17,920 --> 00:25:21,800 Speaker 2: The appeals Court panel, which consisted of two George W. 374 00:25:21,920 --> 00:25:27,360 Speaker 2: Bush appointees and a Barack Obama appointee, found Hobba's appointment 375 00:25:27,480 --> 00:25:31,120 Speaker 2: was unlawful on two grounds. Tell us about them. 376 00:25:31,640 --> 00:25:33,879 Speaker 3: And they first held that once the one hundred and 377 00:25:33,920 --> 00:25:36,760 Speaker 3: twenty days are over, the person can no longer fulfill 378 00:25:36,840 --> 00:25:41,160 Speaker 3: the role of interim attorney under the governing federal statute. 379 00:25:41,320 --> 00:25:44,479 Speaker 3: And then secondly they said that there's a bar in 380 00:25:44,520 --> 00:25:47,360 Speaker 3: the statute that no one can serve as interim attorney 381 00:25:47,760 --> 00:25:52,040 Speaker 3: who had been nominated to actually take the job permanently. 382 00:25:52,359 --> 00:25:54,960 Speaker 3: So on those two independent grounds, the Quarter of Appeals 383 00:25:55,280 --> 00:25:58,720 Speaker 3: chastised the President and said the appointment's clause is important, 384 00:25:59,200 --> 00:26:03,359 Speaker 3: and following Congress's guidance of what to do if there's 385 00:26:03,359 --> 00:26:07,879 Speaker 3: a vacancy is important. You didn't do either one. And therefore, 386 00:26:08,160 --> 00:26:11,160 Speaker 3: how they can no longer serve as in om attorney 387 00:26:11,520 --> 00:26:15,879 Speaker 3: and chaos I'm sure is raining in the US Attorney's 388 00:26:15,880 --> 00:26:16,560 Speaker 3: office in New. 389 00:26:16,520 --> 00:26:20,919 Speaker 2: Jersey, impossibly elsewhere. So the courts in New Jersey have 390 00:26:21,000 --> 00:26:24,440 Speaker 2: already been operating in a sort of limbo given her 391 00:26:24,680 --> 00:26:28,199 Speaker 2: uncertain status. Certain types of criminal cases were slowed, and 392 00:26:28,359 --> 00:26:31,800 Speaker 2: some grand jury proceedings. But as you mentioned, the Appeals 393 00:26:31,800 --> 00:26:39,000 Speaker 2: Court decision doesn't touch on the indictments brought under Habba's leadership, 394 00:26:39,400 --> 00:26:41,840 Speaker 2: So where does that stand? And you know, as far 395 00:26:41,880 --> 00:26:43,680 Speaker 2: as the criminal defendants in this very. 396 00:26:43,560 --> 00:26:46,119 Speaker 4: Case, the prosecution can go forward. 397 00:26:46,160 --> 00:26:49,800 Speaker 3: I mean, the question is who will actually decide who 398 00:26:49,880 --> 00:26:50,960 Speaker 3: should prosecute what. 399 00:26:51,080 --> 00:26:52,280 Speaker 4: Cases in New Jersey? 400 00:26:52,400 --> 00:26:55,600 Speaker 3: Because there's no head right now, it's ruderless, it's a 401 00:26:55,640 --> 00:26:56,679 Speaker 3: rudderless ship. 402 00:26:56,840 --> 00:27:00,520 Speaker 4: And so it's it's not that nobody can be prosecuted. 403 00:27:00,640 --> 00:27:01,280 Speaker 4: There's two things. 404 00:27:01,320 --> 00:27:04,800 Speaker 3: One is, there are some limited functions that only the 405 00:27:04,840 --> 00:27:07,640 Speaker 3: head of the office can do, some kind of wiretaps 406 00:27:07,680 --> 00:27:12,240 Speaker 3: and other kinds of activities, So that is a difficult position. 407 00:27:12,280 --> 00:27:14,920 Speaker 3: They'll have to get input from Pam Bondi as the 408 00:27:14,960 --> 00:27:18,280 Speaker 3: Attorney General to take over those kinds of duties. But otherwise, 409 00:27:18,359 --> 00:27:21,320 Speaker 3: just in terms of who prosecutes what case, what are 410 00:27:21,359 --> 00:27:24,439 Speaker 3: the priorities of the office, who presents information to the 411 00:27:24,440 --> 00:27:26,720 Speaker 3: grand jury? No one knows who's going to make those 412 00:27:26,760 --> 00:27:29,360 Speaker 3: sort of decisions. Pam bond you will have to come 413 00:27:29,359 --> 00:27:33,359 Speaker 3: in and in essence be the de facto interim US 414 00:27:33,400 --> 00:27:37,600 Speaker 3: attorney unless they finally decide just for bureaucratic sanity, that 415 00:27:37,640 --> 00:27:40,280 Speaker 3: they put someone in the office. But as you mentioned, 416 00:27:40,280 --> 00:27:44,439 Speaker 3: the indictments still stand, and the two individuals who brought 417 00:27:44,520 --> 00:27:49,840 Speaker 3: this disqualification motion to Lena Haba still face the prison 418 00:27:50,440 --> 00:27:54,120 Speaker 3: if somebody who is a prosecutor can actually take their 419 00:27:54,160 --> 00:27:56,320 Speaker 3: cases and try them before the jury. 420 00:27:56,960 --> 00:28:01,200 Speaker 2: There have been many challenges of federal prosecutors installed as 421 00:28:01,440 --> 00:28:06,200 Speaker 2: interim and acting US attorneys, and judges have ruled that 422 00:28:06,400 --> 00:28:11,320 Speaker 2: not only Habba's appointment was illegal, but also the appointment 423 00:28:11,440 --> 00:28:16,040 Speaker 2: of interim US attorneys in Los Angeles and Nevada, and 424 00:28:16,160 --> 00:28:20,359 Speaker 2: of course in the Eastern District of Virginia. Or a 425 00:28:20,440 --> 00:28:25,760 Speaker 2: judge dismissed the indictments of former FBI Director James Comy 426 00:28:26,000 --> 00:28:28,919 Speaker 2: and New York Attorney General Letitia James because of the 427 00:28:29,000 --> 00:28:33,280 Speaker 2: unlawful appointment of Lindsay Halligan. Explain why the judge throughout 428 00:28:33,320 --> 00:28:37,600 Speaker 2: the indictments that Lindsay Halligan had obtained but not those 429 00:28:37,680 --> 00:28:38,480 Speaker 2: under HABA. 430 00:28:38,680 --> 00:28:40,959 Speaker 3: The Linda Halligan case was special because she was the 431 00:28:40,960 --> 00:28:43,360 Speaker 3: only person who presented to the grand jury. She was 432 00:28:43,360 --> 00:28:45,560 Speaker 3: the one that got the indictment, and of course that 433 00:28:45,680 --> 00:28:49,280 Speaker 3: was after career prosecutors have refused to bring the case 434 00:28:49,640 --> 00:28:53,000 Speaker 3: against Comy and James because they were concerned about the 435 00:28:53,040 --> 00:28:57,120 Speaker 3: probity of the evidence. So now those cases the indictments 436 00:28:57,160 --> 00:29:00,280 Speaker 3: were dismissed, We'll see if they can be reinstated, which 437 00:29:00,320 --> 00:29:05,200 Speaker 3: is possible. But in this case, the indictments stand. But 438 00:29:05,640 --> 00:29:08,200 Speaker 3: the pattern you suggest goes deeper. I mean, it suggests 439 00:29:08,240 --> 00:29:12,320 Speaker 3: that even though Cratcle two is very close to the 440 00:29:12,360 --> 00:29:15,200 Speaker 3: President's heart because he believes he needs to control everybody 441 00:29:15,200 --> 00:29:18,880 Speaker 3: in the bureaucracy in terms of both by appointment and discharge. 442 00:29:19,000 --> 00:29:22,000 Speaker 4: He's not complying with it, and he's not complying with it. 443 00:29:21,920 --> 00:29:26,640 Speaker 3: By refusing to give appointments for the consent Senate's consent, 444 00:29:27,240 --> 00:29:29,880 Speaker 3: and the courts are rebuffing him, saying, you know, look, 445 00:29:30,360 --> 00:29:33,480 Speaker 3: this is a very important constitutional provision. It's important to you, 446 00:29:33,560 --> 00:29:36,400 Speaker 3: it's important to us. You've just got to follow it. 447 00:29:36,720 --> 00:29:39,080 Speaker 3: And the President has set passively refused. 448 00:29:39,480 --> 00:29:43,840 Speaker 2: Yeah, I mean so. In the Lindsay Halligan case, the 449 00:29:43,960 --> 00:29:48,080 Speaker 2: DOJ's Office of Legal Counsel last week said that Halligan 450 00:29:48,120 --> 00:29:51,440 Speaker 2: should continue to be referred to as the Eastern District 451 00:29:51,440 --> 00:29:56,080 Speaker 2: of Virginia's US attorney in court filings, and also in 452 00:29:56,120 --> 00:30:01,120 Speaker 2: California with the US Attorney for Los Angeles. The federal 453 00:30:01,200 --> 00:30:05,000 Speaker 2: judge ruled that he was unlawfully appointed, but is allowing 454 00:30:05,080 --> 00:30:08,440 Speaker 2: him to stay on as the top supervising prosecutor. I mean, 455 00:30:08,720 --> 00:30:11,600 Speaker 2: those decisions don't make any sense to me. Could Haba 456 00:30:11,720 --> 00:30:12,640 Speaker 2: be back in there? 457 00:30:13,120 --> 00:30:16,160 Speaker 3: Yeah, I mean, obviously that's what Pam Bondi tried to 458 00:30:16,160 --> 00:30:19,200 Speaker 3: do by naming her a special prosecutor, which she does 459 00:30:19,280 --> 00:30:22,440 Speaker 3: have the power to name special attorneys to take on 460 00:30:22,560 --> 00:30:25,760 Speaker 3: certain responsibilities of the Department of Justice. 461 00:30:25,800 --> 00:30:29,080 Speaker 4: But courts are trying to maintain, I think, a very 462 00:30:29,120 --> 00:30:29,640 Speaker 4: fine line. 463 00:30:29,680 --> 00:30:33,480 Speaker 3: They're trying to follow the statutes, follow the Constitution, but 464 00:30:33,480 --> 00:30:35,880 Speaker 3: at the same time gives some slack to the administration. 465 00:30:36,280 --> 00:30:39,200 Speaker 3: Not so sure that they should create such a fine line, 466 00:30:39,320 --> 00:30:42,960 Speaker 3: because the president's not complying with the Constitution or the statutes, 467 00:30:43,000 --> 00:30:45,640 Speaker 3: and they've said that, And I'm not sure sure that 468 00:30:45,680 --> 00:30:48,800 Speaker 3: there should be as charitable by allowing these individuals to 469 00:30:48,840 --> 00:30:51,880 Speaker 3: still play such an important role in these offices. So 470 00:30:52,000 --> 00:30:55,040 Speaker 3: we'll have to see if the Department of Justice takes 471 00:30:55,040 --> 00:30:57,640 Speaker 3: any kind of remedial steps to try to put somebody 472 00:30:57,680 --> 00:31:00,200 Speaker 3: else who's a first assistant, for instance. 473 00:31:00,120 --> 00:31:02,920 Speaker 4: Into the office, as the statute provides. 474 00:31:03,680 --> 00:31:06,960 Speaker 2: Turning to the Supreme Court for a moment, the Justice 475 00:31:07,000 --> 00:31:11,280 Speaker 2: has declined for now to let President Trump oust the 476 00:31:11,360 --> 00:31:16,240 Speaker 2: director of the US Copyright Office, deferring a decision until 477 00:31:16,280 --> 00:31:21,800 Speaker 2: they consider two other clashes over Trump's firings. Does that 478 00:31:21,880 --> 00:31:22,840 Speaker 2: just seem logical. 479 00:31:23,080 --> 00:31:26,000 Speaker 3: It's a really interesting case because obviously the Supreme Court 480 00:31:26,040 --> 00:31:28,920 Speaker 3: has taken the position that they want to cut back 481 00:31:29,080 --> 00:31:33,800 Speaker 3: on the idea of if independent agency heads, the idea 482 00:31:33,880 --> 00:31:36,560 Speaker 3: that the president has to have close control over all 483 00:31:37,160 --> 00:31:39,960 Speaker 3: subordinates who are exercising executive power. 484 00:31:40,240 --> 00:31:43,080 Speaker 4: And they've expanded the notion of executive. 485 00:31:42,600 --> 00:31:46,000 Speaker 3: Power with respect to ruling so far, dealing with the 486 00:31:46,640 --> 00:31:49,920 Speaker 3: National Relations Board, with the Federal Trade Commission, the mayor 487 00:31:49,920 --> 00:31:54,320 Speaker 3: as Systems Protection Board, and others. But now they're pausing 488 00:31:54,720 --> 00:31:58,080 Speaker 3: because the question here is can the President also summilary 489 00:31:58,160 --> 00:32:00,880 Speaker 3: dismiss or is at least one of his subordinates. Can 490 00:32:00,920 --> 00:32:04,400 Speaker 3: summary dismiss someone who is head of the Copyright Office, 491 00:32:04,720 --> 00:32:09,040 Speaker 3: which is actually within the Librarian of Congress. So the 492 00:32:09,200 --> 00:32:13,000 Speaker 3: question in this case is really what is executive power? 493 00:32:13,400 --> 00:32:17,880 Speaker 3: Is executive power anything that Congress delegates, or is executive 494 00:32:17,880 --> 00:32:22,360 Speaker 3: power something which is under the president's control Because theoretically 495 00:32:22,400 --> 00:32:25,920 Speaker 3: the gradustor of copyrights is part of the legislative branch, 496 00:32:26,560 --> 00:32:31,200 Speaker 3: gives advice to the Congress and tries to accept the 497 00:32:31,320 --> 00:32:34,360 Speaker 3: Congress's agenda with respect to what to do about copyrights, 498 00:32:34,760 --> 00:32:38,160 Speaker 3: and so can the president therefore have that same kind 499 00:32:38,200 --> 00:32:43,160 Speaker 3: of close control over a officer who is closely aligned 500 00:32:43,160 --> 00:32:46,760 Speaker 3: with Congress, as the Supreme Court seems to want to 501 00:32:46,760 --> 00:32:49,840 Speaker 3: give the president to have close control over officers that 502 00:32:49,920 --> 00:32:54,120 Speaker 3: are closely aligned with the president. So this case somewhat 503 00:32:54,640 --> 00:32:58,560 Speaker 3: challenges their construct of who the president has to have 504 00:32:58,960 --> 00:33:02,840 Speaker 3: close dominion over in terms of officers of the United States. 505 00:33:03,000 --> 00:33:05,480 Speaker 3: So I think the court this is only a preliminary posture. 506 00:33:05,520 --> 00:33:08,200 Speaker 3: There's been no final rulings in this case about whether 507 00:33:08,480 --> 00:33:11,760 Speaker 3: the Register of Copyrights can be discharged for no reason 508 00:33:11,760 --> 00:33:15,479 Speaker 3: at all, as President Trump directed. But I think the 509 00:33:15,520 --> 00:33:18,600 Speaker 3: Court paused because they realize this is a harder case 510 00:33:18,880 --> 00:33:23,280 Speaker 3: because even if they decide that the so called unitary 511 00:33:23,280 --> 00:33:27,360 Speaker 3: executive should expand to include the Federal Trade Commission, of 512 00:33:27,400 --> 00:33:31,200 Speaker 3: the National Labor Relations Board, et cetera, that's another step 513 00:33:31,640 --> 00:33:35,160 Speaker 3: to ask whether it should also apply to officers whom 514 00:33:35,240 --> 00:33:38,600 Speaker 3: Congress has place within the legislative branch. 515 00:33:38,960 --> 00:33:39,680 Speaker 4: So I think the. 516 00:33:39,600 --> 00:33:43,120 Speaker 3: Court is smart to pause and not to take this 517 00:33:43,240 --> 00:33:46,719 Speaker 3: at this point, because it realizes that these kind of 518 00:33:46,760 --> 00:33:49,440 Speaker 3: placements that is trying to say is non executive officer 519 00:33:49,560 --> 00:33:53,240 Speaker 3: significant executive officer not a significant officer are very much 520 00:33:53,360 --> 00:33:56,360 Speaker 3: up for grabs, and they should really go more slowly, 521 00:33:56,640 --> 00:33:58,760 Speaker 3: more carefully in decision making. 522 00:33:59,040 --> 00:34:02,200 Speaker 2: Thanks hell, that's Professor Harold Krent of the Chicago Kent 523 00:34:02,360 --> 00:34:04,800 Speaker 2: College of Law. And that's it for this edition of 524 00:34:04,800 --> 00:34:07,440 Speaker 2: the Bloomberg Law Show. Remember you can always get the 525 00:34:07,520 --> 00:34:10,759 Speaker 2: latest legal news on our Bloomberg Law podcasts. You can 526 00:34:10,760 --> 00:34:15,000 Speaker 2: find them on Apple Podcasts, Spotify, and at www dot 527 00:34:15,040 --> 00:34:19,200 Speaker 2: bloomberg dot com, slash podcast slash Law, And remember to 528 00:34:19,239 --> 00:34:22,319 Speaker 2: tune into The Bloomberg Law Show every weeknight at ten 529 00:34:22,360 --> 00:34:26,120 Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening 530 00:34:26,200 --> 00:34:26,880 Speaker 2: to Bloomberg