1 00:00:02,759 --> 00:00:07,320 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,760 --> 00:00:10,200 Speaker 2: A fellow's fort. 3 00:00:12,000 --> 00:00:16,400 Speaker 3: Are you ready to use your votes? Are you ready 4 00:00:16,520 --> 00:00:17,320 Speaker 3: to vote? 5 00:00:17,440 --> 00:00:17,840 Speaker 1: Like you. 6 00:00:19,920 --> 00:00:25,160 Speaker 2: Because your lives the greater. In Montgomery, Alabama, the city 7 00:00:25,280 --> 00:00:29,080 Speaker 2: considered the crucible of the civil rights movement, thousands of 8 00:00:29,160 --> 00:00:33,239 Speaker 2: people rally this month to protest against the state's efforts 9 00:00:33,280 --> 00:00:39,479 Speaker 2: to dismantle congressional districts with black political representatives. Civil rights leaders, 10 00:00:39,520 --> 00:00:44,040 Speaker 2: democratic members of Congress from across the country, union leaders, 11 00:00:44,040 --> 00:00:47,560 Speaker 2: and pastors spoke at the rally to denounce the US 12 00:00:47,680 --> 00:00:52,680 Speaker 2: Supreme Court's ruling eviscerating the landmark Voting Rights Act and 13 00:00:52,760 --> 00:00:57,640 Speaker 2: the resulting frenzy in southern states to reshape voting districts 14 00:00:57,760 --> 00:01:02,880 Speaker 2: with large minority populations. New Jersey Democratic Senator Cory Booker 15 00:01:03,280 --> 00:01:07,320 Speaker 2: compared the ruling to pass Supreme Court decisions like Dred 16 00:01:07,440 --> 00:01:09,760 Speaker 2: Scott and Plussy versus Ferguson. 17 00:01:10,360 --> 00:01:13,920 Speaker 4: You see, we have seen this before for some people 18 00:01:14,080 --> 00:01:18,880 Speaker 4: in black loops try to deny or take away our rights. 19 00:01:19,120 --> 00:01:23,480 Speaker 2: But yesterday a stunning legal victory for Democrats as a 20 00:01:23,520 --> 00:01:28,200 Speaker 2: panel of federal judges refused to allow Alabama to use 21 00:01:28,240 --> 00:01:32,280 Speaker 2: a congressional map it adopted three years ago, ruling that 22 00:01:32,440 --> 00:01:36,919 Speaker 2: it intentionally discriminated based on race. But this long running 23 00:01:37,000 --> 00:01:40,800 Speaker 2: legal saga is not over yet. The state has appealed 24 00:01:40,800 --> 00:01:44,320 Speaker 2: the decision to the Supreme Court. Joining me is elections 25 00:01:44,400 --> 00:01:48,080 Speaker 2: law expert Richard Brefont, a professor at Columbia Law School. 26 00:01:48,760 --> 00:01:53,240 Speaker 2: Rich this is a long and winding legal and political 27 00:01:53,360 --> 00:01:56,760 Speaker 2: saga in Alabama. Give us some of the background. 28 00:01:57,040 --> 00:01:58,400 Speaker 3: It's incredibly confusing. 29 00:01:58,640 --> 00:02:02,760 Speaker 4: So this later Alabama case really is the ongoing saga 30 00:02:02,880 --> 00:02:06,800 Speaker 4: of endless litigation following Alabama and the twenty twenty census 31 00:02:06,800 --> 00:02:11,560 Speaker 4: and the Alabama's redistricting. Alabama has seven House seats that 32 00:02:11,639 --> 00:02:14,679 Speaker 4: didn't change as a result of a court decision some 33 00:02:14,800 --> 00:02:17,959 Speaker 4: decades earlier. Basically, it has a white majority in six 34 00:02:18,000 --> 00:02:20,400 Speaker 4: seats and a black majority in one. This was as 35 00:02:20,480 --> 00:02:24,720 Speaker 4: of twenty twenty, although the state is about thirty percent black. 36 00:02:25,600 --> 00:02:29,200 Speaker 4: Voting Rights Act case was brought challenging that A three 37 00:02:29,320 --> 00:02:31,959 Speaker 4: judge court that's the kind of court that's created when 38 00:02:32,040 --> 00:02:35,840 Speaker 4: challenges to her districting are brought, found that Alabama had 39 00:02:35,919 --> 00:02:38,799 Speaker 4: violated the Voting Rights Act, that had engaged in a 40 00:02:38,919 --> 00:02:42,160 Speaker 4: legal vote dilution, and ordered a new map, But the 41 00:02:42,200 --> 00:02:45,799 Speaker 4: Supreme Court stepped in before the twenty twenty two election 42 00:02:45,919 --> 00:02:48,560 Speaker 4: and said, no, it's too close to the election, although 43 00:02:48,600 --> 00:02:50,760 Speaker 4: it was actually quite a number of months before. It 44 00:02:50,800 --> 00:02:52,720 Speaker 4: was I think in the spring, but they said it 45 00:02:52,720 --> 00:02:55,240 Speaker 4: was probably too close to the primaries. And so that 46 00:02:55,320 --> 00:02:58,799 Speaker 4: case ultimately one to the Supreme Court, and many people surprised. 47 00:02:58,840 --> 00:03:01,880 Speaker 4: The Supreme Court voted five to four and I think 48 00:03:01,919 --> 00:03:04,960 Speaker 4: it was twenty twenty three voted to affirm with the 49 00:03:05,000 --> 00:03:08,079 Speaker 4: three judge courted founding. This concluded that Alabama had violated 50 00:03:08,120 --> 00:03:11,720 Speaker 4: the voting right sack and indicated that Alabama probably should 51 00:03:11,760 --> 00:03:15,079 Speaker 4: have two black majority but are so called opportunity districts 52 00:03:15,080 --> 00:03:18,359 Speaker 4: where black voters have a real opportunity to elect the 53 00:03:18,600 --> 00:03:22,200 Speaker 4: candidate of choice. I went back to the legislature. Legislature, however, 54 00:03:22,320 --> 00:03:25,720 Speaker 4: did not do that. The legislature basically came up with 55 00:03:25,760 --> 00:03:29,000 Speaker 4: another plan, which was essentially six white majority, one black 56 00:03:29,040 --> 00:03:33,160 Speaker 4: majority district that was then challenged and the three judge 57 00:03:33,160 --> 00:03:35,880 Speaker 4: court said, no, you have not complied with our ruling. 58 00:03:36,080 --> 00:03:38,520 Speaker 4: This still is vote diluted, and we actually think it's 59 00:03:38,840 --> 00:03:44,960 Speaker 4: unconstitutional because it reflects intentional racial discrimination. So they enjoyed 60 00:03:44,960 --> 00:03:48,040 Speaker 4: this new map that's sometimes called the twenty twenty three map, 61 00:03:48,240 --> 00:03:51,160 Speaker 4: and a special master created a map which created two 62 00:03:51,240 --> 00:03:54,480 Speaker 4: black majority districts or one I think is just under 63 00:03:54,560 --> 00:03:57,400 Speaker 4: majority one just over in Alabama for the first time 64 00:03:57,440 --> 00:04:03,120 Speaker 4: since reconstruction elected to black rep exentatives in twenty twenty four. 65 00:04:03,280 --> 00:04:06,320 Speaker 2: And now we have the impact in Alabama of the 66 00:04:06,360 --> 00:04:12,200 Speaker 2: Supreme Court's decision in Louisiana versus Kela. Explain how that 67 00:04:12,320 --> 00:04:15,960 Speaker 2: decision severely weakened the Voting Rights Act. 68 00:04:16,520 --> 00:04:18,160 Speaker 3: The Supreme Court significantly. 69 00:04:18,600 --> 00:04:21,279 Speaker 4: I think the word the Court is using is updated 70 00:04:21,600 --> 00:04:24,560 Speaker 4: its analysis of vote dilution claims under Section to with 71 00:04:24,600 --> 00:04:27,400 Speaker 4: a Voting Rights Act, making it much much much harder 72 00:04:27,440 --> 00:04:31,159 Speaker 4: for them to prevail. At that point, Alabama came in 73 00:04:31,320 --> 00:04:34,480 Speaker 4: and said, you know, we want to reopen this case. 74 00:04:35,040 --> 00:04:37,280 Speaker 4: And so with the Supreme credit down in the earlier 75 00:04:37,320 --> 00:04:42,000 Speaker 4: Alabama case, its basically sustained the injunction that the lower 76 00:04:42,040 --> 00:04:47,400 Speaker 4: court had issued barring Alabama from using its own legislatively 77 00:04:47,440 --> 00:04:50,120 Speaker 4: adopted map. So they went to the Supreme Court this 78 00:04:50,160 --> 00:04:53,880 Speaker 4: is in either late April or very early May, and 79 00:04:53,960 --> 00:04:57,880 Speaker 4: asked the court to lift the injunction on the legislature's 80 00:04:57,880 --> 00:05:01,280 Speaker 4: twenty twenty three map. The court read and said, we're 81 00:05:01,320 --> 00:05:04,039 Speaker 4: sending this back to the lower court for them to 82 00:05:04,080 --> 00:05:07,640 Speaker 4: reconsider their decision in light of our decision in Cala. 83 00:05:08,360 --> 00:05:10,840 Speaker 4: They didn't say the lower court was wrong, but they 84 00:05:10,920 --> 00:05:13,920 Speaker 4: just said, obviously the legal rules have changed, we want 85 00:05:13,920 --> 00:05:17,200 Speaker 4: the lower court to reconsider it. While that was happening, 86 00:05:17,680 --> 00:05:20,719 Speaker 4: the Governor of Alabama called a special session of the legislature. 87 00:05:21,480 --> 00:05:25,360 Speaker 4: At this point, primaries were already ongoing for the Alabama 88 00:05:25,480 --> 00:05:28,680 Speaker 4: the election of candidates for Congress. Basically, the governor said 89 00:05:28,720 --> 00:05:31,800 Speaker 4: and got the legislature, who agree to stop the primaries 90 00:05:32,160 --> 00:05:35,080 Speaker 4: in four of the districts, the two black majority districts 91 00:05:35,080 --> 00:05:38,120 Speaker 4: and adjacent districts which would be most likely impacted by this, 92 00:05:38,240 --> 00:05:39,560 Speaker 4: and said, we really want to go back to the 93 00:05:39,560 --> 00:05:43,080 Speaker 4: twenty twenty three map. So they've now stopped the primaries 94 00:05:43,200 --> 00:05:48,280 Speaker 4: in those four districts, and the legislature basically thinks that 95 00:05:48,560 --> 00:05:52,719 Speaker 4: with the injunction lifted the twenty twenty three map, which 96 00:05:52,760 --> 00:05:56,839 Speaker 4: is the legislature's map, which would be six majority white, 97 00:05:56,880 --> 00:05:59,680 Speaker 4: one black majority district and also for parties and purposes, 98 00:05:59,760 --> 00:06:03,279 Speaker 4: likely six Republican and one Democratic. That was the result 99 00:06:03,320 --> 00:06:07,000 Speaker 4: of the legislature's vote in early May. Earlier mid May, 100 00:06:07,480 --> 00:06:10,320 Speaker 4: the plaintiffs who brought the original case then went right 101 00:06:10,360 --> 00:06:13,880 Speaker 4: back to court before the three judge court which had 102 00:06:14,080 --> 00:06:17,120 Speaker 4: imposed the map that was used in the last election. 103 00:06:17,800 --> 00:06:21,159 Speaker 2: Tell us about the decision of that three judge panel, 104 00:06:21,640 --> 00:06:26,400 Speaker 2: which consisted of two Trump appointees and a Clinton appointee, And. 105 00:06:26,400 --> 00:06:30,320 Speaker 4: That court yesterday issued a one hundred and three page 106 00:06:30,360 --> 00:06:35,159 Speaker 4: opinion where they concluded that the legislature's recent action was 107 00:06:35,480 --> 00:06:39,719 Speaker 4: both unconstitutional and violated the Voting Rights Act, even under 108 00:06:39,760 --> 00:06:41,120 Speaker 4: the Calais standard. 109 00:06:41,800 --> 00:06:42,680 Speaker 3: And the court. 110 00:06:42,480 --> 00:06:45,440 Speaker 4: Basically said, the Supreme Court did not say that we 111 00:06:45,440 --> 00:06:47,840 Speaker 4: were wrong before. They just said you've got to reconsider. 112 00:06:48,360 --> 00:06:51,200 Speaker 4: And the court went through the entire process by which 113 00:06:51,240 --> 00:06:55,919 Speaker 4: Alabama adopted the twenty twenty three plan, including its refusal 114 00:06:56,000 --> 00:06:58,920 Speaker 4: to create a second black majority district, the kinds of 115 00:06:59,040 --> 00:07:02,960 Speaker 4: considerations it can considered in its deliberations, and concluded that 116 00:07:02,960 --> 00:07:07,159 Speaker 4: that was intentional racial discrimination. They then also applied the 117 00:07:07,200 --> 00:07:10,120 Speaker 4: Calais standard and said cala doesn't mean you never can 118 00:07:10,200 --> 00:07:13,280 Speaker 4: prove vote dilution. And they found that that there was 119 00:07:13,360 --> 00:07:18,040 Speaker 4: intentional racial discrimination and given other factors and given just 120 00:07:18,160 --> 00:07:20,720 Speaker 4: how much this appears to be driven by race and 121 00:07:20,760 --> 00:07:24,320 Speaker 4: how much Brace is dominant in Alabama politics, that this 122 00:07:24,400 --> 00:07:27,480 Speaker 4: really was more race than party and therefore violated the 123 00:07:27,520 --> 00:07:28,600 Speaker 4: Voting Rights Act two. 124 00:07:29,000 --> 00:07:29,800 Speaker 3: And then they also had some. 125 00:07:29,800 --> 00:07:33,000 Speaker 4: Analysis about what's called the Percell principle, which is the 126 00:07:33,040 --> 00:07:36,040 Speaker 4: idea that courts should not step in and change the voting. 127 00:07:35,840 --> 00:07:37,080 Speaker 3: Rules on the election. 128 00:07:37,120 --> 00:07:38,880 Speaker 4: But of course they pointed out, it's kind of a 129 00:07:38,920 --> 00:07:42,400 Speaker 4: mess as to what's the baseline. Here is the baseline 130 00:07:42,720 --> 00:07:45,960 Speaker 4: the twenty twenty four map, which is what the current 131 00:07:46,040 --> 00:07:48,520 Speaker 4: members of Congress were elected and what the state was 132 00:07:48,600 --> 00:07:52,080 Speaker 4: using up until early May, or is the baseline the 133 00:07:52,160 --> 00:07:56,080 Speaker 4: map that the state has just reimposed. And the court said, 134 00:07:56,160 --> 00:07:59,720 Speaker 4: going through the analysis that that case requires, we think 135 00:07:59,720 --> 00:08:02,760 Speaker 4: that disruption is so great if the state's going to 136 00:08:02,800 --> 00:08:04,840 Speaker 4: go back to that old twenty twenty three map, and 137 00:08:04,840 --> 00:08:07,680 Speaker 4: that there's actually less disruption if they stick with the 138 00:08:07,680 --> 00:08:10,880 Speaker 4: twenty twenty four maps. So they also felt that justified 139 00:08:10,880 --> 00:08:13,640 Speaker 4: the injunction is to kind of summon up in granting 140 00:08:13,680 --> 00:08:15,560 Speaker 4: an injunction like this, the court as thin because they 141 00:08:15,600 --> 00:08:19,560 Speaker 4: are both the substantive merits, but also whether an injunction 142 00:08:19,720 --> 00:08:22,680 Speaker 4: is wise, and they said yes on the substant merits. 143 00:08:22,800 --> 00:08:26,360 Speaker 4: The Alabama plan is both unconstitutional and violates the Voting 144 00:08:26,400 --> 00:08:30,360 Speaker 4: Rights Act and on the rules for an injunction, we 145 00:08:30,480 --> 00:08:33,880 Speaker 4: think actually that this is really preserving the status quo 146 00:08:34,080 --> 00:08:36,119 Speaker 4: rather than disrupting it on the election. 147 00:08:36,520 --> 00:08:39,600 Speaker 2: So you mentioned one hundred and two page opinion. What 148 00:08:39,679 --> 00:08:42,360 Speaker 2: do you think about the panel's findings. Do you think 149 00:08:42,400 --> 00:08:45,240 Speaker 2: they'll hold up under Supreme Court review? 150 00:08:45,800 --> 00:08:47,599 Speaker 4: It's interesting and just in terms of the judges of 151 00:08:47,640 --> 00:08:51,280 Speaker 4: the two Trump appointees, I think are both judges in Alabama. 152 00:08:51,400 --> 00:08:53,000 Speaker 4: So the way these courts are set up is, you know, 153 00:08:53,000 --> 00:08:55,720 Speaker 4: there's a Court of Appeals judge and two District Court judges, 154 00:08:55,720 --> 00:08:57,720 Speaker 4: and the two district court judges of the Trump judges, 155 00:08:57,880 --> 00:08:59,360 Speaker 4: and they're both from Alabama. 156 00:08:59,480 --> 00:09:00,720 Speaker 3: I think they do a good job. 157 00:09:00,760 --> 00:09:03,400 Speaker 4: I mean, the real question at this point is how 158 00:09:03,440 --> 00:09:05,839 Speaker 4: deeply is the Supreme Court going to get into reviewing 159 00:09:05,960 --> 00:09:09,360 Speaker 4: this decision. I mean, the time really is tight here, 160 00:09:09,720 --> 00:09:13,640 Speaker 4: so it's very time compressed, and you know, they make 161 00:09:13,720 --> 00:09:18,560 Speaker 4: extensive findings of discrimination. Is the Supreme Court really in 162 00:09:18,600 --> 00:09:22,840 Speaker 4: a position to reject those right now? Though they've done 163 00:09:22,880 --> 00:09:25,400 Speaker 4: that in other cases, so I don't want to say 164 00:09:25,440 --> 00:09:28,240 Speaker 4: they won't. There was a recent case from Texas where 165 00:09:28,280 --> 00:09:32,760 Speaker 4: they basically rejected the lower court's findings about really much discussion. 166 00:09:33,080 --> 00:09:34,520 Speaker 3: But they would have to do that. 167 00:09:35,120 --> 00:09:38,480 Speaker 4: They would have to say that no, that this is wrong, 168 00:09:39,200 --> 00:09:41,640 Speaker 4: and you know it's the Supreme Court. They could do 169 00:09:41,679 --> 00:09:43,920 Speaker 4: it on the shadow docket in the procurium opinion with 170 00:09:44,320 --> 00:09:45,160 Speaker 4: long descents. 171 00:09:45,480 --> 00:09:45,920 Speaker 3: They could. 172 00:09:46,000 --> 00:09:49,400 Speaker 4: But I do think that the three judge court went 173 00:09:49,520 --> 00:09:53,920 Speaker 4: through the process by which Alabama did this in twenty 174 00:09:54,000 --> 00:09:57,960 Speaker 4: twenty three, which is the map that would come into effect, 175 00:09:58,240 --> 00:10:00,600 Speaker 4: and great detail, and spend a lot out of time 176 00:10:01,000 --> 00:10:04,840 Speaker 4: basically making their case for both intentional discrimination and for 177 00:10:04,960 --> 00:10:09,079 Speaker 4: trying to comport with Calais. And so they were seeking 178 00:10:09,120 --> 00:10:11,679 Speaker 4: to be faithful to what the Supreme Court did. They 179 00:10:11,679 --> 00:10:14,360 Speaker 4: were not saying, you know, we're not going to follow. 180 00:10:14,440 --> 00:10:17,959 Speaker 4: They actually said that CALAI gives greater way to making 181 00:10:17,960 --> 00:10:21,040 Speaker 4: sure the Voting Rights Act is closer to the Constitution, 182 00:10:21,280 --> 00:10:23,720 Speaker 4: and they said that really should only be applied in 183 00:10:23,800 --> 00:10:28,199 Speaker 4: cases where there's reasonable suspicion of intentional discrimination. When they 184 00:10:28,200 --> 00:10:30,680 Speaker 4: make that case, they also spend a lot of time 185 00:10:30,760 --> 00:10:33,120 Speaker 4: trying to make the case that this was race and 186 00:10:33,200 --> 00:10:37,040 Speaker 4: not party, even though the two were intertwined by talking 187 00:10:37,080 --> 00:10:40,880 Speaker 4: about how in Alabama even white Democrats find a heart 188 00:10:40,880 --> 00:10:44,520 Speaker 4: to vote for a black candidate, How black Republicans don't 189 00:10:44,520 --> 00:10:47,000 Speaker 4: do very well with Republican voters, and how there are 190 00:10:47,000 --> 00:10:52,760 Speaker 4: many relatively socially conservative black Alabamians but they vote Democratic 191 00:10:52,880 --> 00:10:56,000 Speaker 4: because of the party's position on race issues as opposed 192 00:10:56,000 --> 00:10:58,320 Speaker 4: to a Publican party. I'm kind of paraphrasing what the 193 00:10:58,360 --> 00:11:00,720 Speaker 4: court said, so I mean, I think it's struggle. I 194 00:11:00,720 --> 00:11:03,280 Speaker 4: mean the Supreme Court standard in Cala saying you have 195 00:11:03,320 --> 00:11:06,040 Speaker 4: to share it's race and that party is an incredibly 196 00:11:06,040 --> 00:11:09,840 Speaker 4: difficult standard. And we'll see if the Supreme Court finds 197 00:11:09,840 --> 00:11:13,480 Speaker 4: what this court did is persuasive, but they certainly spend 198 00:11:13,520 --> 00:11:15,360 Speaker 4: some pages trying to make that case. 199 00:11:15,760 --> 00:11:18,319 Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue 200 00:11:18,320 --> 00:11:23,280 Speaker 2: this conversation with Columbia Law School professor Richard Brefont. Well, 201 00:11:23,280 --> 00:11:26,160 Speaker 2: look at what's happening with the maps in South Carolina 202 00:11:26,280 --> 00:11:31,959 Speaker 2: and Florida. I'm June Grosso and this is Bloomberg. Alabama 203 00:11:32,040 --> 00:11:36,640 Speaker 2: officials have asked the Supreme Court to reinstate a Republican 204 00:11:36,760 --> 00:11:40,880 Speaker 2: drawn voting map that would eliminate a majority black congressional 205 00:11:40,920 --> 00:11:44,560 Speaker 2: district and give the GOP, a likely pickup in the 206 00:11:44,600 --> 00:11:49,240 Speaker 2: November midterms. The emergency request in the long running legal 207 00:11:49,360 --> 00:11:53,880 Speaker 2: saga follows a lower court decision on Tuesday that rejected 208 00:11:53,880 --> 00:11:57,480 Speaker 2: the proposed map for the third time as the product 209 00:11:57,559 --> 00:12:01,920 Speaker 2: of intentional discrimination against black voters. I've been talking to 210 00:12:01,960 --> 00:12:06,720 Speaker 2: Columbia Law School professor Richard breflt Rich. I mean, the 211 00:12:06,760 --> 00:12:11,280 Speaker 2: Supreme Court can't disturb the factual findings of the three 212 00:12:11,400 --> 00:12:12,560 Speaker 2: judge panel, can it. 213 00:12:12,960 --> 00:12:14,840 Speaker 3: They'd have to decide what their weight is. 214 00:12:15,280 --> 00:12:18,000 Speaker 4: The Court went through the blow by blow the process 215 00:12:18,080 --> 00:12:22,560 Speaker 4: by which the legislature in twenty twenty three enacted the map. 216 00:12:22,679 --> 00:12:24,920 Speaker 4: It's kind of a funny case because the case comes 217 00:12:25,000 --> 00:12:28,120 Speaker 4: up to the Supreme Court based on what the legislature 218 00:12:28,200 --> 00:12:30,800 Speaker 4: did just like a couple of weeks ago. That's the 219 00:12:30,840 --> 00:12:34,120 Speaker 4: one that basically said we're putting off the primaries. But 220 00:12:34,200 --> 00:12:36,840 Speaker 4: it was the Supreme Court, by lifting the injunction, that 221 00:12:36,920 --> 00:12:39,880 Speaker 4: put the twenty twenty three map back into effects of 222 00:12:39,920 --> 00:12:42,240 Speaker 4: this case is very much about the twenty twenty three map, 223 00:12:43,000 --> 00:12:45,000 Speaker 4: and with this Court gives a lot of weight to 224 00:12:45,120 --> 00:12:48,480 Speaker 4: the fact that the legislature in twenty twenty three, when 225 00:12:48,520 --> 00:12:52,559 Speaker 4: it was told to remedy a vote dilution finding didn't 226 00:12:52,640 --> 00:12:55,319 Speaker 4: really do that that and the process by which they 227 00:12:55,320 --> 00:12:58,200 Speaker 4: did and the factors they cited and the findings they 228 00:12:58,200 --> 00:13:02,240 Speaker 4: issued all smacked of intention discrimination. So it's kind of 229 00:13:02,280 --> 00:13:05,840 Speaker 4: weird because in some ways it's not really a review 230 00:13:05,880 --> 00:13:09,120 Speaker 4: of what the legislature just did. It's review of what 231 00:13:09,160 --> 00:13:10,800 Speaker 4: they did three years ago. 232 00:13:11,640 --> 00:13:13,000 Speaker 3: And the law has changed. 233 00:13:12,720 --> 00:13:15,520 Speaker 4: Since then with KELA, So it's kind of like putting 234 00:13:15,559 --> 00:13:18,520 Speaker 4: yourself back into what things were like then and trying 235 00:13:18,559 --> 00:13:23,160 Speaker 4: to figure out with the legislature acting unconstitutionally when it 236 00:13:23,200 --> 00:13:27,040 Speaker 4: did what it did in refusing to create the black 237 00:13:27,080 --> 00:13:30,760 Speaker 4: majority district that they had been more or less directed 238 00:13:30,800 --> 00:13:31,120 Speaker 4: to do. 239 00:13:31,559 --> 00:13:33,600 Speaker 2: So, I mean, it sounds like it would be more 240 00:13:33,600 --> 00:13:37,840 Speaker 2: of a stretch for the Supreme Court to reverse this 241 00:13:38,040 --> 00:13:39,800 Speaker 2: ruling than to affirm it. 242 00:13:39,920 --> 00:13:42,719 Speaker 4: Or on the other hand, they could of course stay it, 243 00:13:43,000 --> 00:13:45,320 Speaker 4: which they have been known to do, and let the 244 00:13:45,440 --> 00:13:48,200 Speaker 4: twenty twenty three I mean, that's effectively what they did 245 00:13:48,280 --> 00:13:51,720 Speaker 4: three years ago, or in the Milligan case, they stayed 246 00:13:51,720 --> 00:13:55,360 Speaker 4: the Court's decision striking down the twenty twenty one map, 247 00:13:55,760 --> 00:13:57,720 Speaker 4: and then a year and a half later they sustained 248 00:13:57,760 --> 00:13:59,559 Speaker 4: the lower corporate after having blocked their decision for a 249 00:13:59,640 --> 00:14:00,280 Speaker 4: year and a half. 250 00:14:00,640 --> 00:14:02,800 Speaker 3: It is not out of the question, given that. 251 00:14:02,920 --> 00:14:08,320 Speaker 4: History, that they might stay this injunction, allow the election 252 00:14:08,440 --> 00:14:10,920 Speaker 4: to go forward on the twenty twenty three map, and 253 00:14:10,960 --> 00:14:14,240 Speaker 4: then conceivably this case comes up on the merits the 254 00:14:14,360 --> 00:14:17,080 Speaker 4: next year. I mean, I don't want to predict that, 255 00:14:17,120 --> 00:14:19,960 Speaker 4: but it's not out of the question that they would 256 00:14:20,040 --> 00:14:24,120 Speaker 4: simply stay this, possibly on Percell grounds. Percell is the 257 00:14:24,200 --> 00:14:26,960 Speaker 4: one about not acting too close to the election, but 258 00:14:27,200 --> 00:14:30,000 Speaker 4: that itself is just a mare's nest, because you know, 259 00:14:30,040 --> 00:14:32,960 Speaker 4: that's always kind of figure out what's the what's the 260 00:14:33,000 --> 00:14:37,200 Speaker 4: status quo, and is the status quo the twenty twenty 261 00:14:37,240 --> 00:14:41,680 Speaker 4: three mappers, the status quo the twenty twenty four map, 262 00:14:42,040 --> 00:14:43,600 Speaker 4: which this would put back in. 263 00:14:44,040 --> 00:14:45,840 Speaker 3: It's surprisingly complicated. 264 00:14:45,960 --> 00:14:50,400 Speaker 2: I mean, the Supreme Court hasn't been particularly solicitous of 265 00:14:50,440 --> 00:14:53,520 Speaker 2: the percel principle lately, shall we say, I mean, do 266 00:14:53,600 --> 00:14:54,960 Speaker 2: they even pay attention to it anymore. 267 00:14:55,040 --> 00:14:57,880 Speaker 4: We're very vigorous about it sometimes, but it's not clear 268 00:14:57,920 --> 00:15:00,280 Speaker 4: that they think it applies to them. It really very 269 00:15:00,360 --> 00:15:03,800 Speaker 4: much about lower courts. I mean, after all, calay itself 270 00:15:03,960 --> 00:15:07,400 Speaker 4: as the mess we've seen in Louisiana and Alabama. CALA 271 00:15:07,480 --> 00:15:10,080 Speaker 4: itself has kind of been consistent with the per Sell principle. 272 00:15:10,360 --> 00:15:12,280 Speaker 4: If they were serious about it, they would have said 273 00:15:12,280 --> 00:15:14,480 Speaker 4: we're not going to apply it to this year, or 274 00:15:14,480 --> 00:15:16,400 Speaker 4: they would have decided much earlier, or they would have 275 00:15:16,440 --> 00:15:18,200 Speaker 4: waited to left the election season was over. 276 00:15:18,560 --> 00:15:24,600 Speaker 2: And because IVY has moved the special primaries to August, 277 00:15:25,400 --> 00:15:29,400 Speaker 2: that gives a Supreme Court more cover, more time. 278 00:15:30,200 --> 00:15:32,360 Speaker 4: I guess, yeah, right, But they don't have a lot 279 00:15:32,400 --> 00:15:34,840 Speaker 4: of time, I think because in order to have that 280 00:15:34,960 --> 00:15:37,400 Speaker 4: primary in August, I mean, a lot of the opinion 281 00:15:37,440 --> 00:15:40,280 Speaker 4: goes through the and a lot of the trial testimony 282 00:15:40,400 --> 00:15:43,240 Speaker 4: in this case on this injunction was about how easy 283 00:15:43,320 --> 00:15:44,760 Speaker 4: or hard is it going to be for the election 284 00:15:44,840 --> 00:15:49,000 Speaker 4: administrators to redraw the lines and to basically to move 285 00:15:49,080 --> 00:15:52,000 Speaker 4: around all of the voter information and make sure voters 286 00:15:52,040 --> 00:15:54,920 Speaker 4: are in the right place, what their precincts are, and 287 00:15:54,960 --> 00:15:57,320 Speaker 4: that they're voting in our place. And normally this is 288 00:15:57,360 --> 00:15:59,800 Speaker 4: a process that takes several months, but it would have 289 00:15:59,880 --> 00:16:02,120 Speaker 4: to be done very soon because the primary might not 290 00:16:02,160 --> 00:16:05,840 Speaker 4: be until August. Candidates have to file before that. I 291 00:16:05,840 --> 00:16:09,240 Speaker 4: don't know the details of the Alabama process, but we're 292 00:16:09,280 --> 00:16:12,200 Speaker 4: now three three and a half months before that primary. 293 00:16:12,200 --> 00:16:15,480 Speaker 4: Typically you need to candidates need to file before then 294 00:16:15,560 --> 00:16:18,920 Speaker 4: and know what districts they're running in, and the election 295 00:16:19,000 --> 00:16:21,920 Speaker 4: commissioners the state local election boards need to have that 296 00:16:22,120 --> 00:16:27,040 Speaker 4: done ASAA. And so I think, actually, if the Court's 297 00:16:27,080 --> 00:16:30,360 Speaker 4: going to do something here, I expect they'll beat this 298 00:16:30,400 --> 00:16:30,960 Speaker 4: week next week. 299 00:16:31,000 --> 00:16:32,360 Speaker 3: I mean, they really don't have much time. 300 00:16:32,760 --> 00:16:35,320 Speaker 4: However, this election is going to happen. I think the 301 00:16:35,400 --> 00:16:38,760 Speaker 4: administrators need to know this already. I mean, they need 302 00:16:38,760 --> 00:16:40,640 Speaker 4: to know it. Yesterday they said they need to know 303 00:16:40,680 --> 00:16:43,200 Speaker 4: it very soon, and the candidates need to know it 304 00:16:43,240 --> 00:16:46,520 Speaker 4: so they know where they're running. So hopefully, I mean 305 00:16:46,560 --> 00:16:49,160 Speaker 4: what day of the weeks this is Wednesday? I mean, 306 00:16:49,200 --> 00:16:51,080 Speaker 4: they really should do it this week or you know, 307 00:16:51,240 --> 00:16:53,280 Speaker 4: worse over the weekend, but in early next week. And 308 00:16:53,280 --> 00:16:55,480 Speaker 4: they've got obviously, this is while they're also doing all 309 00:16:55,480 --> 00:16:57,200 Speaker 4: of their other major cases, right. 310 00:16:57,120 --> 00:17:00,480 Speaker 2: And the Alabama Director of Elections had testified that it 311 00:17:00,520 --> 00:17:05,159 Speaker 2: will take a chaotic, decentralized, and herculean effort for officials 312 00:17:05,200 --> 00:17:09,920 Speaker 2: in this office and counties to reassign voters to new districts. 313 00:17:10,160 --> 00:17:13,040 Speaker 2: If the Supreme Court reversed this, it would open them 314 00:17:13,160 --> 00:17:16,800 Speaker 2: up to more claims of partisanship. 315 00:17:17,200 --> 00:17:19,960 Speaker 4: Yeah, I mean, and again I think maybe less likely 316 00:17:20,000 --> 00:17:22,840 Speaker 4: than reverses stay because that in some ways that comes 317 00:17:22,880 --> 00:17:23,680 Speaker 4: across as well. 318 00:17:23,960 --> 00:17:25,640 Speaker 3: I mean, in some sense it almost makes sense. 319 00:17:25,680 --> 00:17:27,679 Speaker 4: We don't have time to think about this, and it 320 00:17:27,800 --> 00:17:29,760 Speaker 4: just it really turns on what you think the status 321 00:17:29,840 --> 00:17:31,880 Speaker 4: quo it. I think it would be hard for them 322 00:17:31,960 --> 00:17:34,960 Speaker 4: to reverse it on the shadow docket in some early 323 00:17:35,000 --> 00:17:36,480 Speaker 4: because there's a lot of substance here. 324 00:17:36,480 --> 00:17:38,840 Speaker 3: That doesn't mean they won't. I think a stay is. 325 00:17:38,840 --> 00:17:42,760 Speaker 4: More plausible because the state can emphasize, you know, the 326 00:17:42,840 --> 00:17:44,879 Speaker 4: fact that these are heard issues, but that there's an 327 00:17:44,880 --> 00:17:49,280 Speaker 4: election happening, and that the baseline is the twenty twenty 328 00:17:49,320 --> 00:17:52,679 Speaker 4: three map, which the state legislature did adopt, was the 329 00:17:52,680 --> 00:17:55,960 Speaker 4: twenty four map was imposed by a quarter Special Master, 330 00:17:56,560 --> 00:17:59,560 Speaker 4: and the spring Cut has tended to prefer maps that 331 00:17:59,600 --> 00:18:02,320 Speaker 4: were adopt by the legislature's most accord impost one. So 332 00:18:02,720 --> 00:18:04,720 Speaker 4: it would not surprise me if there was a stay. 333 00:18:04,760 --> 00:18:07,040 Speaker 4: I think a substan of reversal would be a. 334 00:18:06,960 --> 00:18:07,600 Speaker 3: Lot more work. 335 00:18:07,960 --> 00:18:12,119 Speaker 2: Since the Calais decision, Southern states have been in a 336 00:18:12,160 --> 00:18:16,680 Speaker 2: sort of frenzy to reshape voting districts to eliminate House 337 00:18:16,720 --> 00:18:21,840 Speaker 2: seats held by black representatives. But yesterday, for the second time, 338 00:18:22,520 --> 00:18:26,880 Speaker 2: South Carolina state senators adjourned without drawing up a new 339 00:18:26,960 --> 00:18:31,560 Speaker 2: map to eliminate that state's one majority black House seat. 340 00:18:32,200 --> 00:18:37,160 Speaker 2: Five Republicans joined Democrats, basically saying it was too late 341 00:18:37,200 --> 00:18:41,159 Speaker 2: because tens of thousands of votes had already been cast 342 00:18:41,240 --> 00:18:42,960 Speaker 2: and what would they do about that? 343 00:18:43,200 --> 00:18:45,520 Speaker 4: But I remember had already started in Louisiana when the 344 00:18:45,560 --> 00:18:47,840 Speaker 4: state changed it, and I think it was about to start, 345 00:18:47,960 --> 00:18:51,040 Speaker 4: and they've already started in Alabama. I do wonder about 346 00:18:51,080 --> 00:18:53,480 Speaker 4: South Carolina whether one thing is it may be that 347 00:18:53,600 --> 00:18:56,520 Speaker 4: it's so late that Trump can't primary them as he 348 00:18:56,600 --> 00:18:59,000 Speaker 4: did the Republicans who didn't go his way in Indiana. 349 00:18:59,520 --> 00:19:01,520 Speaker 4: And the other of course, the district is getting rid 350 00:19:01,520 --> 00:19:04,760 Speaker 4: of Jim Clyburn. He is in his eighties. He's an 351 00:19:05,000 --> 00:19:06,240 Speaker 4: icon of South Carolina. 352 00:19:06,960 --> 00:19:07,840 Speaker 3: It maybe that. 353 00:19:07,840 --> 00:19:11,080 Speaker 4: They're kind of banking on him retiring, or that it 354 00:19:11,119 --> 00:19:14,880 Speaker 4: may be easier in a future year, like next year, 355 00:19:15,160 --> 00:19:17,560 Speaker 4: to get rid of it. I'm just speculating, maybe that 356 00:19:17,600 --> 00:19:20,879 Speaker 4: they might change it for twenty twenty eight, and maybe 357 00:19:20,920 --> 00:19:23,480 Speaker 4: at that point they think they would give him kind 358 00:19:23,480 --> 00:19:24,360 Speaker 4: of a signal. 359 00:19:24,080 --> 00:19:27,560 Speaker 3: To retire, and it would be more of a blind slate. 360 00:19:27,640 --> 00:19:30,119 Speaker 4: I think they may they may not want to be 361 00:19:30,160 --> 00:19:33,760 Speaker 4: seen as taking out, you know, kind of a longstanding 362 00:19:34,280 --> 00:19:36,960 Speaker 4: important figure in the state, and then that it might 363 00:19:36,960 --> 00:19:40,120 Speaker 4: be easier that he retires or if they rewrite the map, 364 00:19:40,160 --> 00:19:41,720 Speaker 4: that might persuade him to retire. 365 00:19:42,080 --> 00:19:43,240 Speaker 3: Right now, it's too late. 366 00:19:43,480 --> 00:19:47,920 Speaker 2: And in Florida, those four seats that dessanti Is created, 367 00:19:48,400 --> 00:19:52,520 Speaker 2: a dessanta Is appointee ruled that the state could continue 368 00:19:52,560 --> 00:19:56,280 Speaker 2: to use those even though they have a law against 369 00:19:56,440 --> 00:20:01,760 Speaker 2: partisan jerrymandering, and even though a descent aid who drew 370 00:20:01,840 --> 00:20:04,439 Speaker 2: the new map said that he had done so based 371 00:20:04,480 --> 00:20:08,040 Speaker 2: partly on the part is in breakdown of voters. But 372 00:20:08,200 --> 00:20:13,440 Speaker 2: still the judge said there was insufficient evidence of impermissible intent, 373 00:20:14,119 --> 00:20:16,679 Speaker 2: and he also cited the Percel principle to keep in 374 00:20:16,720 --> 00:20:20,200 Speaker 2: place the map that just was made in May. 375 00:20:21,080 --> 00:20:23,520 Speaker 4: That is a problem with the per Cell principle is 376 00:20:23,560 --> 00:20:27,320 Speaker 4: that it only applies to courts. It doesn't apply to legislatures, 377 00:20:27,600 --> 00:20:29,760 Speaker 4: so they can do whatever they want. And indeed, you 378 00:20:29,800 --> 00:20:33,320 Speaker 4: see the Alabama three judge courts basically saying, well, the 379 00:20:33,359 --> 00:20:36,399 Speaker 4: reason we're doing this is at this point we're concerned 380 00:20:36,440 --> 00:20:39,119 Speaker 4: about the disruption caused by the legislatures. So we're not 381 00:20:39,160 --> 00:20:41,560 Speaker 4: so concerned about our disruption because for one thing, also, 382 00:20:41,840 --> 00:20:43,320 Speaker 4: the plaintiffs came to court instantly. 383 00:20:43,440 --> 00:20:43,640 Speaker 3: Yeah. 384 00:20:43,720 --> 00:20:45,600 Speaker 4: The other thing that I found troubling, and I haven't 385 00:20:45,680 --> 00:20:48,320 Speaker 4: read the opinion of the judge in Florida about just 386 00:20:48,359 --> 00:20:51,359 Speaker 4: the news accounts, is that he raised some questions about 387 00:20:51,440 --> 00:20:55,520 Speaker 4: in some sets the constitutionality of the Florida Constitutional Provision 388 00:20:55,920 --> 00:20:59,359 Speaker 4: that Bar's part is in Jerrymannerin because it was enacted 389 00:20:59,400 --> 00:21:03,280 Speaker 4: as part of a general provision dealing with districting, and 390 00:21:03,359 --> 00:21:07,440 Speaker 4: it provided for some attention to race, and he suggested, well, 391 00:21:07,480 --> 00:21:11,480 Speaker 4: maybe that's unconstitutional now after Cala, which I don't know 392 00:21:11,520 --> 00:21:14,040 Speaker 4: that that's right, but he raised that question, and if 393 00:21:14,040 --> 00:21:16,600 Speaker 4: that's the case, the whole amendment fails. I mean, again, 394 00:21:16,640 --> 00:21:20,760 Speaker 4: it's a pretty audacious argument to say that both at 395 00:21:20,880 --> 00:21:25,200 Speaker 4: the tention to race, that the Florida Constitution has his unconstitutionals, 396 00:21:25,240 --> 00:21:27,080 Speaker 4: but then to say that the fact that that part 397 00:21:27,240 --> 00:21:30,280 Speaker 4: might be taint the entire amendment, and so you can't 398 00:21:30,280 --> 00:21:34,520 Speaker 4: even enforce the anti partisan part. Leaving aside his factual fighting. 399 00:21:35,040 --> 00:21:37,359 Speaker 4: Now he is only an intermediate judge. It could go 400 00:21:37,400 --> 00:21:41,320 Speaker 4: to Florida Supreme Court again, they have the same timing problem, 401 00:21:41,720 --> 00:21:43,320 Speaker 4: and of course again it is a court. 402 00:21:43,440 --> 00:21:45,280 Speaker 3: I think all the judges are Republican, and. 403 00:21:45,359 --> 00:21:47,520 Speaker 4: Many of them, if not most of them, were probably 404 00:21:47,520 --> 00:21:49,000 Speaker 4: appointed by Governor DeSantis. 405 00:21:49,080 --> 00:21:52,960 Speaker 2: Six of seven appointed by DeSantis. Always more to come, Rich, 406 00:21:53,200 --> 00:21:57,600 Speaker 2: Thanks so much. That's Professor Richard Brufault of Columbia Law School, 407 00:21:57,920 --> 00:22:01,639 Speaker 2: coming up next on the Bloomberg Law Show. President Trump's 408 00:22:01,840 --> 00:22:07,280 Speaker 2: rapid deregulation strategy appears to be falling flat. I'm June 409 00:22:07,320 --> 00:22:13,160 Speaker 2: Grosso and you're listening to Bloomberg. Last spring, President Trump 410 00:22:13,440 --> 00:22:17,720 Speaker 2: called on federal regulators to quickly acts policies using the 411 00:22:17,760 --> 00:22:23,000 Speaker 2: administrative Procedure Acts good cause exception, which allows for agencies 412 00:22:23,040 --> 00:22:26,960 Speaker 2: to act without going through the normal notice and comment process. 413 00:22:27,560 --> 00:22:31,960 Speaker 2: Trump instructed agencies to use the fast track process to 414 00:22:32,000 --> 00:22:34,760 Speaker 2: get rid of rules that run a foul of recent 415 00:22:34,840 --> 00:22:39,760 Speaker 2: Supreme Court decisions, including several that weakened agency power. But 416 00:22:39,800 --> 00:22:43,800 Speaker 2: a Bloomberg Law analysis of rule makings shows that agencies 417 00:22:43,840 --> 00:22:48,440 Speaker 2: have largely declined to follow that White House strategy. Joining 418 00:22:48,480 --> 00:22:52,200 Speaker 2: me is an administrative law expert. Carrie Culinisi, a law 419 00:22:52,240 --> 00:22:55,840 Speaker 2: professor at the University of Pennsylvania who directs the Penn 420 00:22:55,920 --> 00:23:00,439 Speaker 2: Program on Regulation. Carrie, Will you start by explaining what 421 00:23:00,800 --> 00:23:05,879 Speaker 2: the Administrative Procedure Acts good cause exception is. 422 00:23:06,640 --> 00:23:11,760 Speaker 1: Well, we could just start by saying that normally, the 423 00:23:11,800 --> 00:23:16,600 Speaker 1: requirements for an agency to either adopt a new regulation 424 00:23:17,560 --> 00:23:22,639 Speaker 1: or to rescind an existing regulation calls for the agency 425 00:23:22,840 --> 00:23:26,639 Speaker 1: to go through a series of step procedural steps that 426 00:23:26,680 --> 00:23:31,400 Speaker 1: are outlined in the Administrative Procedure Act. Basically, that means 427 00:23:31,760 --> 00:23:36,600 Speaker 1: they have to publish a notice of proposed rulemaking, take 428 00:23:36,720 --> 00:23:42,360 Speaker 1: public comment on that proposal, digest those comments, and then 429 00:23:42,520 --> 00:23:47,680 Speaker 1: they can issue the final rule. However, the Administrative Procedure 430 00:23:47,720 --> 00:23:52,679 Speaker 1: Act contemplates that there may be times when those steps 431 00:23:52,760 --> 00:23:58,840 Speaker 1: are not needed, or when emergency situations arise when they 432 00:23:58,880 --> 00:24:02,919 Speaker 1: can't be followed, and those are circumstances that are covered 433 00:24:02,960 --> 00:24:06,720 Speaker 1: by what is called the good cause exception to notice 434 00:24:06,760 --> 00:24:10,440 Speaker 1: in comment rule making. You could think about after nine 435 00:24:10,480 --> 00:24:15,280 Speaker 1: to eleven, for example, when the Federal Aviation Administration put 436 00:24:15,840 --> 00:24:19,639 Speaker 1: in place requirements for there to be locks on the 437 00:24:19,680 --> 00:24:24,480 Speaker 1: cabin doors of commercial aircraft. They weren't going to wait 438 00:24:24,640 --> 00:24:28,959 Speaker 1: around and put out a proposal, take comment, and issue 439 00:24:28,960 --> 00:24:32,240 Speaker 1: the final rule. They did that just right away by 440 00:24:32,280 --> 00:24:34,200 Speaker 1: invoking the good cause exception. 441 00:24:35,400 --> 00:24:41,880 Speaker 2: According to Bloomberg analysis, the agencies really haven't followed that 442 00:24:42,520 --> 00:24:46,640 Speaker 2: Trump order. So the administration has published about twenty eight 443 00:24:46,720 --> 00:24:51,600 Speaker 2: hundred rules since the close of the mandated regulatory review period, 444 00:24:51,880 --> 00:24:55,280 Speaker 2: and only two agencies have used the good cause exception. 445 00:24:56,040 --> 00:24:59,399 Speaker 2: Why do you think when heads of agencies seem to 446 00:24:59,440 --> 00:25:03,399 Speaker 2: be so eager to please President Trump, why do you 447 00:25:03,440 --> 00:25:05,520 Speaker 2: think they haven't gone through with this? 448 00:25:06,880 --> 00:25:12,679 Speaker 1: Well, the Trump administration has asked for the agencies to 449 00:25:12,760 --> 00:25:22,080 Speaker 1: reconsider their statutory basis for their decisions, and agencies have already, 450 00:25:22,320 --> 00:25:28,360 Speaker 1: in issuing these rules, considered very carefully the statutory basis 451 00:25:28,359 --> 00:25:33,600 Speaker 1: for their decisions. So it's not likely that there are 452 00:25:33,800 --> 00:25:39,959 Speaker 1: that many rules that are really on shaky legal grounds. 453 00:25:40,119 --> 00:25:43,560 Speaker 1: They probably would not have been issued in the first place. 454 00:25:44,680 --> 00:25:48,679 Speaker 2: I remember, during his first administration, Trump came out with 455 00:25:49,040 --> 00:25:53,919 Speaker 2: all these papers, piled up regulations and talked about getting 456 00:25:54,000 --> 00:25:57,280 Speaker 2: rid of them. Did they accomplish much in the first 457 00:25:57,359 --> 00:25:59,320 Speaker 2: term getting rid of regulations? 458 00:26:00,119 --> 00:26:03,520 Speaker 1: Not nearly as much as they claimed, nor probably as 459 00:26:03,560 --> 00:26:07,480 Speaker 1: much as most people think they did. In fact, in 460 00:26:07,520 --> 00:26:12,520 Speaker 1: that famous press conference where he stood aside a huge 461 00:26:12,560 --> 00:26:16,320 Speaker 1: stack of papers even taller than he is on one side, 462 00:26:16,560 --> 00:26:20,919 Speaker 1: representing the regulatory burdens of today, and then there was 463 00:26:20,960 --> 00:26:23,159 Speaker 1: on the other side of him a small stack of 464 00:26:23,160 --> 00:26:28,119 Speaker 1: papers representing regulations from the nineteen sixties. And they maybe 465 00:26:28,160 --> 00:26:30,639 Speaker 1: went up to his shin and he said, you know, 466 00:26:30,680 --> 00:26:33,520 Speaker 1: we're going to get rid of all these regulations and 467 00:26:33,560 --> 00:26:35,320 Speaker 1: get us back down to where we were in the 468 00:26:35,400 --> 00:26:39,520 Speaker 1: nineteen sixties. Well, later in that very same day, his 469 00:26:40,480 --> 00:26:45,320 Speaker 1: chief of regulatory matters, who's now a sitting judge on 470 00:26:45,359 --> 00:26:48,439 Speaker 1: the DC Circuit, she came out and talked to the 471 00:26:48,440 --> 00:26:53,280 Speaker 1: press and said, well, we probably can't do that because 472 00:26:53,760 --> 00:26:57,760 Speaker 1: the statutes that Congress has passed calls for a lot 473 00:26:57,840 --> 00:27:02,840 Speaker 1: of these voluminous regulation, and unless you're going to amend 474 00:27:02,880 --> 00:27:07,520 Speaker 1: the statutes, you can't get rid of the regulations. And 475 00:27:08,119 --> 00:27:11,920 Speaker 1: in point of fact, the first administration didn't achieve very 476 00:27:12,000 --> 00:27:16,320 Speaker 1: much compared with their rhetoric in terms of regulatory reform, 477 00:27:16,359 --> 00:27:21,919 Speaker 1: and so far there has not been a lot of 478 00:27:22,200 --> 00:27:26,320 Speaker 1: rules that have been removed or relaxed. That's not really 479 00:27:26,359 --> 00:27:30,640 Speaker 1: been the kind of changes that this first year, year 480 00:27:30,640 --> 00:27:35,000 Speaker 1: and a half now of the second Trump administration can 481 00:27:35,080 --> 00:27:38,639 Speaker 1: claim as any accomplishment that what they've done more of 482 00:27:38,840 --> 00:27:45,280 Speaker 1: is shifting around and reducing staffs, reducing enforcement of regulations. 483 00:27:45,280 --> 00:27:49,040 Speaker 1: But the kind of durable changes where you would take 484 00:27:49,160 --> 00:27:54,000 Speaker 1: regulations off the books or alleviate the burdens of those 485 00:27:54,040 --> 00:27:57,879 Speaker 1: regulations a boy, how they're written. That just really hasn't 486 00:27:57,960 --> 00:28:04,040 Speaker 1: happened anything like level that the President proclaimed he was 487 00:28:04,119 --> 00:28:08,720 Speaker 1: going to try to do, or maybe even sometimes still 488 00:28:08,840 --> 00:28:12,080 Speaker 1: claims that he has done. It's much much less. 489 00:28:13,040 --> 00:28:16,400 Speaker 2: And I also wonder do agencies really want to get 490 00:28:16,480 --> 00:28:19,960 Speaker 2: rid of the rules and regulations that they use That 491 00:28:19,960 --> 00:28:21,639 Speaker 2: would make them weaker, wouldn't it. 492 00:28:22,160 --> 00:28:25,800 Speaker 1: Well, I think you know they're headed by people right 493 00:28:25,840 --> 00:28:30,640 Speaker 1: now who would be in sync with the President's stated desire, 494 00:28:30,800 --> 00:28:35,639 Speaker 1: presumably to remove regulations, so that might be a priority. 495 00:28:35,960 --> 00:28:39,720 Speaker 1: I will say that sometimes businesses don't want to have 496 00:28:39,800 --> 00:28:46,080 Speaker 1: these regulations removed. They've invested in, whether capital expenditures to 497 00:28:46,240 --> 00:28:51,960 Speaker 1: comply with air pollution requirements or internal computer systems to 498 00:28:52,080 --> 00:28:57,720 Speaker 1: comply with various other kinds of regulatory requirements, and those 499 00:28:57,760 --> 00:29:00,840 Speaker 1: are some costs right now. And also so the last 500 00:29:00,840 --> 00:29:04,480 Speaker 1: thing they probably want is for competitors to be able 501 00:29:04,520 --> 00:29:09,080 Speaker 1: to come into the marketplace who don't have to make 502 00:29:09,120 --> 00:29:10,640 Speaker 1: those sorts of investments. 503 00:29:11,280 --> 00:29:15,880 Speaker 2: So is Trump, instead of the deregulatory push, trying more 504 00:29:15,920 --> 00:29:19,400 Speaker 2: to control those at the top of the agencies by, 505 00:29:19,520 --> 00:29:21,920 Speaker 2: for example, so many firings. 506 00:29:22,520 --> 00:29:25,959 Speaker 1: Yeah, I think there's been certainly a very clear effort 507 00:29:26,080 --> 00:29:30,840 Speaker 1: to decrease the number of personnel. In some agencies, like 508 00:29:30,880 --> 00:29:36,520 Speaker 1: the Consumer Financial Protection Bureau, there's been almost decimation of 509 00:29:36,600 --> 00:29:42,880 Speaker 1: the internal operations on a day to day basis. And 510 00:29:43,080 --> 00:29:45,520 Speaker 1: at other agencies there have been personnel that have been 511 00:29:45,600 --> 00:29:50,760 Speaker 1: moved to different parts of the country and that demoralizes staff. 512 00:29:50,840 --> 00:29:56,640 Speaker 1: We've seen a decline in research offices within various administrative agencies. 513 00:29:57,240 --> 00:30:00,400 Speaker 1: This also, by the way, makes it more difficult if 514 00:30:00,440 --> 00:30:04,760 Speaker 1: you want to deregulate if you have fewer personnel to 515 00:30:05,200 --> 00:30:08,760 Speaker 1: help you. And I'm laughing here, but it's not necessarily 516 00:30:08,840 --> 00:30:11,560 Speaker 1: a laughing matter, because it is a way of really 517 00:30:11,680 --> 00:30:16,800 Speaker 1: undercutting the efficacy of government agencies that are dedicated to 518 00:30:17,400 --> 00:30:21,200 Speaker 1: protecting the public from various harms that Congress has told 519 00:30:21,280 --> 00:30:24,160 Speaker 1: them to work on. But on the other hand, it's 520 00:30:24,320 --> 00:30:29,560 Speaker 1: just a different style of quote unquote deregulating than actually 521 00:30:29,680 --> 00:30:32,960 Speaker 1: changing the rules. And I think when most people have 522 00:30:33,200 --> 00:30:38,360 Speaker 1: historically thought about deregulation. It's been thinking that rules have 523 00:30:38,560 --> 00:30:41,400 Speaker 1: changed or rules have been taken off the books. We've 524 00:30:41,480 --> 00:30:44,760 Speaker 1: gone from that big stack of papers down to a 525 00:30:44,800 --> 00:30:48,160 Speaker 1: small stack of papers. And that's what's just not happening. 526 00:30:48,200 --> 00:30:54,800 Speaker 1: And that's where the longer term effect of an administration 527 00:30:54,960 --> 00:30:58,600 Speaker 1: can really happen. If they really can make changes to 528 00:30:58,680 --> 00:31:01,360 Speaker 1: the rules on the books or peel rules back from 529 00:31:01,400 --> 00:31:04,640 Speaker 1: the books. That's so far not been what the Trump 530 00:31:04,640 --> 00:31:06,280 Speaker 1: administration has accomplished. 531 00:31:06,440 --> 00:31:11,480 Speaker 2: Let's say another administration, the next administration is a democratic 532 00:31:11,520 --> 00:31:16,600 Speaker 2: administration that believes in more government. How difficult is it 533 00:31:16,720 --> 00:31:20,800 Speaker 2: to get these agencies back up to what they were 534 00:31:21,360 --> 00:31:22,160 Speaker 2: before Trump. 535 00:31:22,320 --> 00:31:27,400 Speaker 1: Well, it's a managerial challenge of hiring people, of recruiting 536 00:31:27,480 --> 00:31:32,360 Speaker 1: staff that probably shouldn't be thought of as a trivial one. 537 00:31:32,960 --> 00:31:36,840 Speaker 1: But it's a different kind of challenge than actually going 538 00:31:36,880 --> 00:31:42,520 Speaker 1: through that notice and comment process of trying to put 539 00:31:42,800 --> 00:31:46,080 Speaker 1: rules back on the books. I should also say that 540 00:31:46,440 --> 00:31:53,320 Speaker 1: the Trump administration has reduced the enforcement scrutiny, so rules 541 00:31:53,320 --> 00:31:56,400 Speaker 1: that are on the books are not getting enforced as 542 00:31:56,760 --> 00:32:01,720 Speaker 1: vigorously as they may have in the past, and that's 543 00:32:01,760 --> 00:32:06,400 Speaker 1: something that a new administration can readily pick back up. 544 00:32:06,760 --> 00:32:11,239 Speaker 1: As well, and any business leaders that are listening to 545 00:32:11,280 --> 00:32:14,800 Speaker 1: this ought to be very careful not to think, well, 546 00:32:14,840 --> 00:32:19,200 Speaker 1: there's less enforcement, so I can cut corners on compliance 547 00:32:19,240 --> 00:32:24,400 Speaker 1: with the rules, because there's a general statute of limitations 548 00:32:24,720 --> 00:32:30,360 Speaker 1: that will extend into a new administration. And if that 549 00:32:30,440 --> 00:32:36,080 Speaker 1: new administration is a democratic one, then they could conceivably 550 00:32:36,520 --> 00:32:40,880 Speaker 1: re engaged enforcement arms and go after people who were 551 00:32:41,240 --> 00:32:45,280 Speaker 1: relaxing their compliance during the Trump administration. So just because 552 00:32:45,720 --> 00:32:48,760 Speaker 1: the Trump administration is a little more easy on business 553 00:32:48,800 --> 00:32:52,840 Speaker 1: in terms of enforcement, is probably not a good or 554 00:32:52,920 --> 00:32:57,160 Speaker 1: safe reason for businesses to relax their vigilance when it 555 00:32:57,200 --> 00:32:59,120 Speaker 1: comes to regulatory compliance. 556 00:33:00,240 --> 00:33:04,040 Speaker 2: And Carrie tell us about the administrative law cases that 557 00:33:04,120 --> 00:33:06,080 Speaker 2: are on the Supreme Court's docket. 558 00:33:06,960 --> 00:33:11,000 Speaker 1: Well, there's two prominent cases before the Supreme Court right 559 00:33:11,040 --> 00:33:15,160 Speaker 1: now in the administrative law area that deal with independent agencies. 560 00:33:16,000 --> 00:33:20,560 Speaker 1: So we in the administrative law community, I think generally 561 00:33:20,640 --> 00:33:25,880 Speaker 1: expect the Court to overturn of decades long precedent that 562 00:33:26,360 --> 00:33:31,640 Speaker 1: allowed Congress to create independent agencies and that it means 563 00:33:31,720 --> 00:33:35,440 Speaker 1: to have agencies that are headed up by officials who 564 00:33:35,480 --> 00:33:39,240 Speaker 1: can't be removed at will by the president. So the 565 00:33:39,280 --> 00:33:44,960 Speaker 1: case of Trumphy slaughter squarely has on the Court's agenda 566 00:33:45,120 --> 00:33:50,440 Speaker 1: here whether to overrule a nineteen thirties decision called Humphreys 567 00:33:50,480 --> 00:33:56,600 Speaker 1: Executor and a related case called Trumphy Cook involving an 568 00:33:56,640 --> 00:33:59,680 Speaker 1: attempt by the President to remove a member of the 569 00:33:59,680 --> 00:34:04,840 Speaker 1: Federal Reserve Board of Governors, Lisa Cook, who the administration 570 00:34:05,040 --> 00:34:10,280 Speaker 1: claims to had some mortgage improprieties or some such Anyway, 571 00:34:10,440 --> 00:34:14,320 Speaker 1: the claim there is what counts as a good cause 572 00:34:14,680 --> 00:34:19,600 Speaker 1: for removing an official that's protected from removal at will 573 00:34:19,640 --> 00:34:22,400 Speaker 1: by the president. So we have both a series of 574 00:34:22,400 --> 00:34:26,480 Speaker 1: independent agencies that are protected by at will removal by 575 00:34:26,520 --> 00:34:29,840 Speaker 1: the president. That's on the agenda of the Court right now, 576 00:34:30,320 --> 00:34:34,200 Speaker 1: and then also for whatever agencies that might be left 577 00:34:34,200 --> 00:34:37,800 Speaker 1: as independent, like the Federal Reserve. We think that probably 578 00:34:37,880 --> 00:34:41,200 Speaker 1: the Court will carve out an exception for the Federal Reserve, 579 00:34:41,239 --> 00:34:44,880 Speaker 1: although we don't really know. But if it does, what 580 00:34:45,239 --> 00:34:50,759 Speaker 1: counts as a good cause for removing somebody who's protected 581 00:34:50,920 --> 00:34:53,759 Speaker 1: from at will removal? They can still be removed for 582 00:34:53,880 --> 00:34:59,320 Speaker 1: things like negligence, a neglect, dereliction of duty. The terms 583 00:34:59,400 --> 00:35:02,839 Speaker 1: kind of vary in statutes, but what do they mean, 584 00:35:03,440 --> 00:35:08,160 Speaker 1: and does a claim of some kind of past failure 585 00:35:08,239 --> 00:35:12,600 Speaker 1: to check the right boxes on your mortgage application rise 586 00:35:12,680 --> 00:35:15,920 Speaker 1: to that level. We just never have had a president 587 00:35:16,000 --> 00:35:19,319 Speaker 1: really trying to test those kinds of provisions. So look 588 00:35:19,360 --> 00:35:23,319 Speaker 1: for those two cases to be really the blockbuster administrative 589 00:35:23,360 --> 00:35:25,600 Speaker 1: law cases coming up here in the next month. 590 00:35:25,760 --> 00:35:29,399 Speaker 2: We may know tomorrow when the Supreme Court announces new decisions. 591 00:35:29,880 --> 00:35:33,400 Speaker 2: Thanks so much, Carrie. That's Carrie Clinisi of the University 592 00:35:33,400 --> 00:35:36,680 Speaker 2: of Pennsylvania Law School, And that's it for this edition 593 00:35:36,680 --> 00:35:39,359 Speaker 2: of The Bloomberg Law Show. Remember you can always get 594 00:35:39,360 --> 00:35:42,520 Speaker 2: the latest legal news on our Bloomberg Law Podcast. You 595 00:35:42,520 --> 00:35:46,600 Speaker 2: can find them on Apple Podcasts, Spotify, and at www 596 00:35:46,760 --> 00:35:51,040 Speaker 2: dot Bloomberg dot com, slash podcast slash Law, and remember 597 00:35:51,080 --> 00:35:54,040 Speaker 2: to tune into The Bloomberg Law Show every weeknight at 598 00:35:54,040 --> 00:35:57,520 Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're 599 00:35:57,600 --> 00:35:58,840 Speaker 2: listening to Bloomberg