1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,160 --> 00:00:13,360 Speaker 1: I mean, in this video from California this morning, two, 3 00:00:13,440 --> 00:00:17,840 Speaker 1: let you know that I accept this unexpected honor. 4 00:00:18,320 --> 00:00:22,119 Speaker 2: When Robert F. Kennedy Junior accepted the nomination to run 5 00:00:22,160 --> 00:00:25,159 Speaker 2: as a candidate for the Libertarian Party, he was at 6 00:00:25,239 --> 00:00:29,880 Speaker 2: home in California, and a lawsuit claims that Kennedy's actual 7 00:00:30,000 --> 00:00:34,159 Speaker 2: residence is in California and that he misled voters by 8 00:00:34,240 --> 00:00:37,040 Speaker 2: claiming that his residence was in New York on the 9 00:00:37,080 --> 00:00:40,839 Speaker 2: tens of thousands of nominating petitions submitted to place him 10 00:00:40,840 --> 00:00:43,960 Speaker 2: on the ballot in that state. Following a short trial 11 00:00:43,960 --> 00:00:47,280 Speaker 2: in Albany, judge agreed that the New York address on 12 00:00:47,320 --> 00:00:51,920 Speaker 2: the nominating petition was not Kennedy's real residence, but rather 13 00:00:52,000 --> 00:00:55,440 Speaker 2: a sham address he used to maintain his voter registration 14 00:00:55,840 --> 00:00:59,880 Speaker 2: and to further his political aspirations, and on Monday, Judge 15 00:01:00,080 --> 00:01:05,480 Speaker 2: Christina Reba invalidated Kennedy's New York state nominating petition, ruling 16 00:01:05,520 --> 00:01:09,279 Speaker 2: that quote using a friend's address for political and voting 17 00:01:09,319 --> 00:01:13,000 Speaker 2: purposes while barely stepping foot on the premises does not 18 00:01:13,160 --> 00:01:16,880 Speaker 2: equate to residency under the election law. In an interview 19 00:01:16,880 --> 00:01:21,160 Speaker 2: with CBS six in Albany, Kennedy compared his situation to 20 00:01:21,240 --> 00:01:24,280 Speaker 2: that of his father, the late Senator Robert F. Kennedy, 21 00:01:24,560 --> 00:01:26,559 Speaker 2: when he ran for the Senate in New York. 22 00:01:27,040 --> 00:01:31,920 Speaker 1: He was also, ironically also called a carpetbagger. In other words, 23 00:01:32,000 --> 00:01:34,000 Speaker 1: you know that he didn't really live in New York state. 24 00:01:34,360 --> 00:01:37,720 Speaker 1: So sixty years later, now I'm running and I'm being 25 00:01:37,760 --> 00:01:39,880 Speaker 1: told I don't live in New York State. My driver's 26 00:01:39,959 --> 00:01:42,440 Speaker 1: license here, I vote in this state, my car is 27 00:01:42,480 --> 00:01:47,440 Speaker 1: registered here, my law licenses in this state, not California, 28 00:01:48,640 --> 00:01:51,640 Speaker 1: my law offices in the state. I pay income tagris 29 00:01:51,680 --> 00:01:52,120 Speaker 1: in this state. 30 00:01:52,360 --> 00:01:55,960 Speaker 2: Kennedy acknowledged the decision could create problems for him in 31 00:01:56,040 --> 00:01:59,760 Speaker 2: other states. He's currently facing challenges in more than half 32 00:01:59,800 --> 00:02:03,440 Speaker 2: a day states, some alleging that he falsely listed this 33 00:02:03,520 --> 00:02:07,080 Speaker 2: same New York address. He appealed the decision today to 34 00:02:07,120 --> 00:02:10,399 Speaker 2: the Appellate Division in Albany. Joining me is elections law 35 00:02:10,480 --> 00:02:14,519 Speaker 2: expert Richard Brefald, a professor at Columbia Law School. Rich 36 00:02:14,600 --> 00:02:19,000 Speaker 2: how is residency defined under New York law for election purposes. 37 00:02:19,520 --> 00:02:24,160 Speaker 3: Residency means domicile, which is the place that you maintain 38 00:02:24,320 --> 00:02:26,840 Speaker 3: is your home, and if you are away, you intend 39 00:02:26,840 --> 00:02:30,000 Speaker 3: to return to it. New York law recognizes that people 40 00:02:30,120 --> 00:02:33,280 Speaker 3: can have multiple residents. You can have a main home 41 00:02:33,280 --> 00:02:35,120 Speaker 3: and a summer home and another home, but one of 42 00:02:35,160 --> 00:02:37,480 Speaker 3: them has to be the place that is your primary 43 00:02:37,520 --> 00:02:41,000 Speaker 3: residence in legal terms, your domicile kind of the place 44 00:02:41,040 --> 00:02:44,320 Speaker 3: that you keep as your home and when you are away, 45 00:02:44,520 --> 00:02:46,040 Speaker 3: you intend to return to it. 46 00:02:46,639 --> 00:02:51,320 Speaker 2: Kennedy listed as his residence a friend's house in Katona, 47 00:02:51,440 --> 00:02:54,560 Speaker 2: New York, where he said he rented a bedroom, but 48 00:02:54,680 --> 00:02:58,280 Speaker 2: he admitted at trial that he only spent one night 49 00:02:58,360 --> 00:03:01,280 Speaker 2: there that was about a month ago in June. There's 50 00:03:01,360 --> 00:03:02,840 Speaker 2: no actually. 51 00:03:02,600 --> 00:03:06,079 Speaker 3: After he had already filed giving the place as his residents. 52 00:03:06,240 --> 00:03:09,000 Speaker 2: There's no written lease. He only made a rent payment 53 00:03:09,080 --> 00:03:11,880 Speaker 2: after a New York Post story came out right. He 54 00:03:11,960 --> 00:03:14,520 Speaker 2: moved with his kids and his pets except for the 55 00:03:14,520 --> 00:03:17,920 Speaker 2: Falcons and the Hawk, to California in twenty fourteen. He 56 00:03:18,000 --> 00:03:20,160 Speaker 2: bought a house there and when asked in Trelo if 57 00:03:20,200 --> 00:03:23,200 Speaker 2: he lives in California, he said yes, And when asked 58 00:03:23,240 --> 00:03:25,480 Speaker 2: to be as a physical presence at the house in Bedford, 59 00:03:25,520 --> 00:03:28,480 Speaker 2: he said no. I mean, what is his reason for 60 00:03:28,600 --> 00:03:30,720 Speaker 2: claiming New York residency. 61 00:03:31,160 --> 00:03:34,600 Speaker 3: Oh, his reason, I think is that his running mate 62 00:03:34,840 --> 00:03:39,080 Speaker 3: is a California resident, and under the constitution he went 63 00:03:39,160 --> 00:03:43,560 Speaker 3: into electoral votes, the California electors cannot vote for both 64 00:03:43,560 --> 00:03:46,440 Speaker 3: of them. In other words, if he somehow carried California, 65 00:03:46,640 --> 00:03:49,640 Speaker 3: the California electors are prohibited by the constitution for voting 66 00:03:49,680 --> 00:03:51,960 Speaker 3: for two people from their own state. So he had 67 00:03:51,960 --> 00:03:54,320 Speaker 3: to have a separate residency from his vice president. 68 00:03:54,640 --> 00:03:58,040 Speaker 2: Well, the judge said that he demonstrated a long standing 69 00:03:58,120 --> 00:04:01,680 Speaker 2: pattern of borrowing address is to keep up the appearances 70 00:04:01,760 --> 00:04:04,280 Speaker 2: of New York residency. I mean, at one point he 71 00:04:04,720 --> 00:04:08,360 Speaker 2: claimed residency at a house that his sister had sold 72 00:04:08,400 --> 00:04:10,000 Speaker 2: and neither of them lived in anymore. 73 00:04:10,440 --> 00:04:12,520 Speaker 3: Apparently he's still registered to vote in New York. He 74 00:04:12,520 --> 00:04:15,080 Speaker 3: has a New York driver's license and some other New 75 00:04:15,160 --> 00:04:19,400 Speaker 3: York connections, and in some kind of fairness, he was 76 00:04:19,440 --> 00:04:21,440 Speaker 3: a New York resident for a long while and had 77 00:04:21,480 --> 00:04:24,360 Speaker 3: a lot of connections to New York. But yes, as 78 00:04:24,400 --> 00:04:27,400 Speaker 3: I think the judge found, for quite a long period 79 00:04:27,440 --> 00:04:30,120 Speaker 3: of time. Recently he's been living in California with his 80 00:04:30,200 --> 00:04:33,720 Speaker 3: wife and children and pets, and California has I think 81 00:04:33,720 --> 00:04:35,960 Speaker 3: the court found, and it seems reasonable has been his 82 00:04:36,080 --> 00:04:39,840 Speaker 3: principal residence for the last several years. So the court said, 83 00:04:40,080 --> 00:04:42,760 Speaker 3: you need a specific place for it to be a residence, 84 00:04:42,839 --> 00:04:46,080 Speaker 3: not some general geographic area like he's had connections to 85 00:04:46,120 --> 00:04:48,159 Speaker 3: New York, but you actually need to have, as the 86 00:04:48,200 --> 00:04:51,040 Speaker 3: court has a specific abode in New York in order 87 00:04:51,080 --> 00:04:53,400 Speaker 3: for New York to be a residence, and he doesn't 88 00:04:53,440 --> 00:04:53,839 Speaker 3: have one. 89 00:04:54,120 --> 00:04:56,359 Speaker 2: So some of the reasons he claims residency, or he 90 00:04:56,400 --> 00:05:00,280 Speaker 2: has New York state fishing and falconry licenses, a New 91 00:05:00,360 --> 00:05:04,080 Speaker 2: York state driver's license and vehicle registration, a New York 92 00:05:04,080 --> 00:05:07,800 Speaker 2: state voter registration, a licensed to practice law in New York, 93 00:05:07,800 --> 00:05:10,479 Speaker 2: and he pays New York state taxes. Do any of 94 00:05:10,520 --> 00:05:12,320 Speaker 2: those count toward residency? 95 00:05:12,640 --> 00:05:14,800 Speaker 3: They will all be relevant if he actually had a 96 00:05:14,880 --> 00:05:17,240 Speaker 3: home in New York. I mean again, I think if 97 00:05:17,279 --> 00:05:19,520 Speaker 3: he had an actual home in New York and as 98 00:05:19,520 --> 00:05:22,640 Speaker 3: well as an actual home in California, it would support 99 00:05:22,760 --> 00:05:26,039 Speaker 3: his argument that New York is his primary home. But 100 00:05:26,240 --> 00:05:28,560 Speaker 3: the problem is he has no home in New York 101 00:05:28,680 --> 00:05:31,000 Speaker 3: at all. So I mean, I think those would have 102 00:05:31,040 --> 00:05:34,880 Speaker 3: been relevant if it was more of a contest as 103 00:05:34,880 --> 00:05:37,680 Speaker 3: to whether or not New York or California was his home, 104 00:05:37,839 --> 00:05:40,600 Speaker 3: because as you know, a number of people have homes 105 00:05:40,640 --> 00:05:43,240 Speaker 3: in more than one state, and so that would be 106 00:05:43,360 --> 00:05:45,880 Speaker 3: relevant to deciding, for example, whether or not if you 107 00:05:45,960 --> 00:05:49,039 Speaker 3: maintained one residency is in one state, let's call it 108 00:05:49,080 --> 00:05:51,919 Speaker 3: a vacation home or a summer home in a second state, 109 00:05:52,200 --> 00:05:53,960 Speaker 3: and you want that to argue that the summer home 110 00:05:54,040 --> 00:05:55,359 Speaker 3: was your real home. If you had a lot of 111 00:05:55,360 --> 00:05:58,160 Speaker 3: connections to the summer home state, you might be able 112 00:05:58,200 --> 00:06:00,720 Speaker 3: to be persuasive that you could choose that is your home. 113 00:06:00,800 --> 00:06:03,240 Speaker 3: But in this case, he had none. He had various 114 00:06:03,320 --> 00:06:05,479 Speaker 3: legal ties to New York. Put the low requires that 115 00:06:05,520 --> 00:06:09,240 Speaker 3: he actually has an actual physical residence in New York, 116 00:06:09,520 --> 00:06:11,520 Speaker 3: and that is one thing that he does not appear 117 00:06:11,560 --> 00:06:11,760 Speaker 3: to have. 118 00:06:12,160 --> 00:06:13,960 Speaker 2: Is the law pretty clear on that. 119 00:06:14,480 --> 00:06:17,400 Speaker 3: The language the court uses is your residences is where 120 00:06:17,440 --> 00:06:21,320 Speaker 3: you maintain a fixed, permanent and principal home where if 121 00:06:21,360 --> 00:06:25,599 Speaker 3: you're temporarily located somewhere else, you intend to return to 122 00:06:25,680 --> 00:06:28,599 Speaker 3: that home. So the use of the phrase fixed, permanent 123 00:06:28,640 --> 00:06:29,840 Speaker 3: and principal home. 124 00:06:30,279 --> 00:06:32,800 Speaker 2: And as far as the spare bedroom that he was 125 00:06:32,839 --> 00:06:37,520 Speaker 2: supposedly renting out, court said, quote the court finds Kennedy's 126 00:06:37,560 --> 00:06:41,039 Speaker 2: testimony that he may return to that bedroom to reside 127 00:06:41,080 --> 00:06:44,080 Speaker 2: with his wife, family members, multiple pets, and all of 128 00:06:44,120 --> 00:06:48,679 Speaker 2: his personal belongings to be highly improbable, if not preposterous. 129 00:06:49,040 --> 00:06:52,400 Speaker 2: I mean, when you look at his testimony and the 130 00:06:52,440 --> 00:06:55,919 Speaker 2: testimony of other witnesses, it seems almost like an open 131 00:06:55,960 --> 00:06:59,360 Speaker 2: and shut case, and that the judge didn't have very 132 00:06:59,400 --> 00:07:01,600 Speaker 2: far to go to make her finding. 133 00:07:02,200 --> 00:07:03,880 Speaker 3: I think that's right, I mean, in some sense. To 134 00:07:04,000 --> 00:07:08,400 Speaker 3: judge's first point was how strictly or loosely to I 135 00:07:08,440 --> 00:07:10,960 Speaker 3: have to interpret residence? And she says, under New York 136 00:07:11,000 --> 00:07:14,800 Speaker 3: state law, under near Court of Appeals decisions, some election 137 00:07:15,120 --> 00:07:19,280 Speaker 3: qualifications can be interpreted loosely, but these very formal, specific 138 00:07:19,320 --> 00:07:22,679 Speaker 3: ones have to be interpreted strictly so that the courts 139 00:07:22,680 --> 00:07:25,960 Speaker 3: are consistent from case to case. So the first that is, 140 00:07:25,960 --> 00:07:28,240 Speaker 3: you really do have to show that you're a resident, 141 00:07:28,280 --> 00:07:30,800 Speaker 3: and then she went through what that entails. And then 142 00:07:30,840 --> 00:07:33,480 Speaker 3: there was extensive testimony from all the people who are 143 00:07:33,600 --> 00:07:36,440 Speaker 3: arguably providing him a home, and it was pretty clear 144 00:07:36,760 --> 00:07:39,360 Speaker 3: that his connection to the place he's claiming to be 145 00:07:39,400 --> 00:07:42,760 Speaker 3: a home is extremely attenuated. As he pointed out, it's 146 00:07:42,760 --> 00:07:45,480 Speaker 3: one bedroom in somebody else's house. He's only been there 147 00:07:45,520 --> 00:07:47,880 Speaker 3: one night in the entire time he's had a connection 148 00:07:47,960 --> 00:07:50,679 Speaker 3: to it. He wasn't paying rent until this case became 149 00:07:50,720 --> 00:07:53,400 Speaker 3: a case, and then he paid it retroactively back rent. 150 00:07:53,560 --> 00:07:56,200 Speaker 3: And the home itself is under forclosure. And as she 151 00:07:56,240 --> 00:07:59,680 Speaker 3: points out, he is an entire household in California, and 152 00:07:59,680 --> 00:08:02,520 Speaker 3: it's a seems unlikely that if he were to return 153 00:08:02,560 --> 00:08:04,640 Speaker 3: to New York he would be returning to that one 154 00:08:04,680 --> 00:08:06,560 Speaker 3: bedroom with his whole household. 155 00:08:07,040 --> 00:08:11,000 Speaker 2: He also claimed advice of counsel that his lawyer told 156 00:08:11,080 --> 00:08:11,400 Speaker 2: him this. 157 00:08:11,480 --> 00:08:15,119 Speaker 3: Was okay, it doesn't work. I mean, he's not being 158 00:08:15,240 --> 00:08:18,760 Speaker 3: prosecuted for lying. It's just that he had a fell 159 00:08:18,800 --> 00:08:21,920 Speaker 3: out of form and he filled out before him inaccurately. 160 00:08:22,720 --> 00:08:26,240 Speaker 2: So he's appealing the decision in New York Appellate court, 161 00:08:26,560 --> 00:08:29,000 Speaker 2: and his legal team has said they're going to seek 162 00:08:29,040 --> 00:08:33,480 Speaker 2: injunctive relief in federal court, and they're arguing that the 163 00:08:33,600 --> 00:08:39,320 Speaker 2: US Constitution's Twelfth Amendment governs the residency of presidential and 164 00:08:39,440 --> 00:08:43,720 Speaker 2: vice presidential candidates, not state law. And they made a 165 00:08:43,720 --> 00:08:47,160 Speaker 2: similar argument before the judge in New York who rejected it. 166 00:08:47,800 --> 00:08:48,920 Speaker 2: What do you think of that argument? 167 00:08:49,360 --> 00:08:51,840 Speaker 3: It's kind of a red herring. I mean, yes, New 168 00:08:51,960 --> 00:08:54,960 Speaker 3: York State could not require him to be a resident 169 00:08:55,559 --> 00:08:58,640 Speaker 3: of New York State. That would be unconstitutional. But New 170 00:08:58,720 --> 00:09:01,240 Speaker 3: York State is not doing that because data simply saying 171 00:09:01,600 --> 00:09:03,360 Speaker 3: in order to get on the ballot, you have to 172 00:09:03,360 --> 00:09:05,679 Speaker 3: fill out a form, and you have to fill out 173 00:09:05,679 --> 00:09:09,120 Speaker 3: the form accurately. And the Supreme Court is in the 174 00:09:09,160 --> 00:09:12,440 Speaker 3: past recognized that states can set their own rules for 175 00:09:12,520 --> 00:09:14,960 Speaker 3: getting on the ballot, provided that they're reasonable, rules that 176 00:09:14,960 --> 00:09:17,839 Speaker 3: they're not on duly burdensome, that they're not too hard 177 00:09:17,920 --> 00:09:21,800 Speaker 3: to satisfy. You couldn't require somebody to have a humongous 178 00:09:21,840 --> 00:09:24,199 Speaker 3: number of signatures in a very short period of time. 179 00:09:24,240 --> 00:09:27,040 Speaker 3: That would be too burdensome. But I think a rule 180 00:09:27,080 --> 00:09:28,920 Speaker 3: that simply states you have to put down your place 181 00:09:28,920 --> 00:09:31,960 Speaker 3: of residence is the kind of rule that would probably 182 00:09:32,080 --> 00:09:35,160 Speaker 3: for most candidates, is not on duly burthensome. And the 183 00:09:35,200 --> 00:09:38,080 Speaker 3: Court has recognized the right of the states to in 184 00:09:38,080 --> 00:09:40,880 Speaker 3: effect require certain forms to be filled out in order 185 00:09:40,880 --> 00:09:43,560 Speaker 3: to get on the ballot. So, just to repeat, he 186 00:09:43,640 --> 00:09:45,960 Speaker 3: does not have to be a New York resident, but 187 00:09:46,040 --> 00:09:48,040 Speaker 3: he does have to fill out the form correctly. 188 00:09:48,440 --> 00:09:52,640 Speaker 2: Could this open him up to challenges in other states 189 00:09:52,720 --> 00:09:58,040 Speaker 2: because apparently his campaign used the same address to gather 190 00:09:58,240 --> 00:10:00,000 Speaker 2: signatures in other states. 191 00:10:00,600 --> 00:10:03,400 Speaker 3: You know, that's an interesting question, and I would break 192 00:10:03,440 --> 00:10:06,320 Speaker 3: it up into a couple of parts. So in a 193 00:10:06,360 --> 00:10:08,440 Speaker 3: number of states, now he is actually on the ballot, 194 00:10:08,440 --> 00:10:11,800 Speaker 3: he has been approved by the relevant decision maker, whether 195 00:10:11,800 --> 00:10:14,400 Speaker 3: it's the Secretary of State of that state, or possibly 196 00:10:14,440 --> 00:10:18,080 Speaker 3: even by a court after a litigation. So one issue 197 00:10:18,080 --> 00:10:21,400 Speaker 3: in those states would be can that be reopened once 198 00:10:21,480 --> 00:10:23,199 Speaker 3: the person has actually gotten on the ballot, and that 199 00:10:23,240 --> 00:10:27,160 Speaker 3: would turn on the law of that state. Second question, 200 00:10:27,559 --> 00:10:29,560 Speaker 3: and which would be true both in those states in 201 00:10:29,600 --> 00:10:31,800 Speaker 3: the states where the prosegrating on the ballot has not 202 00:10:31,840 --> 00:10:36,000 Speaker 3: been resolved, is you know, is this required on their forms? 203 00:10:36,320 --> 00:10:41,280 Speaker 3: And how stringently or liberally do they apply the requirements 204 00:10:41,320 --> 00:10:44,360 Speaker 3: of their forms. That would be a second question is 205 00:10:44,400 --> 00:10:46,400 Speaker 3: so that words, some states might be willing to waive 206 00:10:46,520 --> 00:10:50,120 Speaker 3: a mistake. New York was not. So those are really 207 00:10:50,160 --> 00:10:52,559 Speaker 3: sort of two big open questions. He's on the ballot now, 208 00:10:52,600 --> 00:10:54,880 Speaker 3: and I don't know the exact number, but it's around 209 00:10:54,920 --> 00:10:58,439 Speaker 3: twenty states that have been resolved, and that would turn 210 00:10:58,520 --> 00:11:01,679 Speaker 3: on what their rules are on reopening a question like that, 211 00:11:01,840 --> 00:11:03,640 Speaker 3: and I don't have an answer for that. And the 212 00:11:03,679 --> 00:11:06,559 Speaker 3: second would be, you know, was it required in these 213 00:11:06,559 --> 00:11:08,840 Speaker 3: states to fill out this form that to stay a 214 00:11:08,880 --> 00:11:11,559 Speaker 3: place of residence? That seems like a reasonable kind of 215 00:11:11,559 --> 00:11:14,320 Speaker 3: a normal bureaucratic requirement, and it is I think relevant 216 00:11:14,320 --> 00:11:16,720 Speaker 3: to the Twelfth Amendment problem of making sure you don't 217 00:11:16,720 --> 00:11:18,720 Speaker 3: have two people from the same state, which is all 218 00:11:18,760 --> 00:11:20,680 Speaker 3: happens to be your state. But then the question is 219 00:11:21,160 --> 00:11:24,040 Speaker 3: how stringently are they going to enforce that rule? And 220 00:11:24,120 --> 00:11:28,200 Speaker 3: different state courts might have different policies on how strictly 221 00:11:28,520 --> 00:11:30,480 Speaker 3: or loosely they enforced a rule like that. 222 00:11:30,720 --> 00:11:32,800 Speaker 2: Okay, stay with me. Rich Coming up next on the 223 00:11:32,840 --> 00:11:36,120 Speaker 2: Bloomberg Law Show, I'll continue this conversation with Professor Richard 224 00:11:36,160 --> 00:11:39,720 Speaker 2: Brifault of Columbia Law School. We'll talk about Kennedy appealing 225 00:11:39,760 --> 00:11:42,960 Speaker 2: to the Appellate Division in New York and broader election 226 00:11:43,120 --> 00:11:47,160 Speaker 2: problems that may arise this November. I'm June Grosso. When 227 00:11:47,160 --> 00:11:53,199 Speaker 2: you're listening to Bloomberg, Robert F. Kennedy Junior's independent presidential 228 00:11:53,320 --> 00:11:56,600 Speaker 2: campaign suffered a blow this week when a judge in 229 00:11:56,640 --> 00:11:59,600 Speaker 2: New York invalidated his petition to put his name on 230 00:11:59,640 --> 00:12:03,599 Speaker 2: the state ballot, a ruling that could potentially create problems 231 00:12:03,600 --> 00:12:07,560 Speaker 2: for the candidate as he faces challenges elsewhere. And Albany 232 00:12:07,640 --> 00:12:11,880 Speaker 2: judge said the residents listed on Kennedy's nominating petitions was 233 00:12:11,880 --> 00:12:15,400 Speaker 2: a sham address he used to maintain his voter registration 234 00:12:15,800 --> 00:12:19,920 Speaker 2: and to further his political aspirations. Kennedy appealed the New 235 00:12:20,000 --> 00:12:23,760 Speaker 2: York decision to the Appellate Division. Today, I've been talking 236 00:12:23,760 --> 00:12:27,040 Speaker 2: to elections law expert Richard Rfalt, a professor at Columbia 237 00:12:27,120 --> 00:12:30,400 Speaker 2: Law School. Rich before the break, you were talking about 238 00:12:30,520 --> 00:12:35,280 Speaker 2: the possibility of an appellate court waiving this requirement for him. 239 00:12:35,679 --> 00:12:37,920 Speaker 3: It's not out of the question. I mean, you know, 240 00:12:37,960 --> 00:12:41,920 Speaker 3: there is a tension between you know, making someone you 241 00:12:41,960 --> 00:12:45,480 Speaker 3: know available to the voters. And it's not relevant to 242 00:12:45,559 --> 00:12:49,320 Speaker 3: his seriousness as a candidate, either to his eligibility to 243 00:12:49,360 --> 00:12:52,160 Speaker 3: be elected or his seriousness as a candidate. It doesn't 244 00:12:52,160 --> 00:12:54,360 Speaker 3: affect whether or not he's over thirty five and a citizen. 245 00:12:54,400 --> 00:12:57,480 Speaker 3: That's which basically is the eligibility for president. And many 246 00:12:57,559 --> 00:13:00,280 Speaker 3: states do require that you gather a certain number of 247 00:13:00,320 --> 00:13:03,520 Speaker 3: signatures that either you be nominated by your party or 248 00:13:03,559 --> 00:13:05,400 Speaker 3: that if you're running as an independent, you get a 249 00:13:05,400 --> 00:13:08,120 Speaker 3: certain number of signatures, or running is a new party 250 00:13:08,120 --> 00:13:10,199 Speaker 3: that your new party gets a certain number of signatures, 251 00:13:10,559 --> 00:13:13,760 Speaker 3: and those are all designed to establish that the candidate 252 00:13:14,360 --> 00:13:18,680 Speaker 3: is serious not trivilous. He's presumably satisfied that. So I 253 00:13:18,679 --> 00:13:21,960 Speaker 3: could imagine a court saying that a question that doesn't 254 00:13:22,040 --> 00:13:26,560 Speaker 3: bear on his eligibility to serve and seriousness as a 255 00:13:26,600 --> 00:13:29,280 Speaker 3: candidate might be one that we would be willing to waigh. 256 00:13:29,960 --> 00:13:31,800 Speaker 3: So that would be one possibility, But the other would 257 00:13:31,800 --> 00:13:35,079 Speaker 3: be that the court might also stick with what this 258 00:13:35,280 --> 00:13:37,760 Speaker 3: lower court said is to some things which are not 259 00:13:37,840 --> 00:13:41,840 Speaker 3: that burdensome, it's best to be absolutely strict. Otherwise the 260 00:13:41,960 --> 00:13:44,679 Speaker 3: chance of politic explaining a role in different judges applying 261 00:13:44,720 --> 00:13:47,480 Speaker 3: the same rule differently in different cases when it's very large. 262 00:13:47,960 --> 00:13:52,000 Speaker 3: So there is an argument from consistent application the fairly 263 00:13:52,040 --> 00:13:56,360 Speaker 3: straightforward rule that says you should enforce it, versus the 264 00:13:56,480 --> 00:14:00,199 Speaker 3: argument that this does not really go to it is 265 00:14:00,280 --> 00:14:04,120 Speaker 3: eligibility to serve or his seriousness as a candidate. So 266 00:14:04,240 --> 00:14:05,840 Speaker 3: maybe you waive it. I mean, I could see it 267 00:14:05,840 --> 00:14:08,640 Speaker 3: coming out either way. So that he is running for 268 00:14:08,760 --> 00:14:13,000 Speaker 3: a national office, and there is some argument that Court 269 00:14:13,080 --> 00:14:17,040 Speaker 3: should be less restrictive, because I mean, he was going 270 00:14:17,120 --> 00:14:20,240 Speaker 3: to be really in contention that having a rule like 271 00:14:20,280 --> 00:14:22,840 Speaker 3: this to knock somebody off the ballot, that would affect 272 00:14:22,840 --> 00:14:25,520 Speaker 3: a serious national candidate sort off. You don't want individual 273 00:14:25,560 --> 00:14:29,040 Speaker 3: states to be doing that. He's a national candidate running 274 00:14:29,080 --> 00:14:32,080 Speaker 3: for a national office. So I could see that as well. 275 00:14:32,240 --> 00:14:35,120 Speaker 2: Would that be a case for federal court or for 276 00:14:35,440 --> 00:14:37,520 Speaker 2: state court or for both? 277 00:14:38,200 --> 00:14:40,960 Speaker 3: For both? Really, I mean, state courts can can adjudicate 278 00:14:41,000 --> 00:14:43,600 Speaker 3: federal constitutional arguments. And it's a little bit like the 279 00:14:43,720 --> 00:14:46,720 Speaker 3: argument in the Trump in the Colorado Trump case about 280 00:14:46,720 --> 00:14:48,760 Speaker 3: whether or not Trump was eligible for the ballot because 281 00:14:49,240 --> 00:14:52,240 Speaker 3: of his arguable participation in the insurrection, and the US 282 00:14:52,280 --> 00:14:54,920 Speaker 3: Supreme Court saying, well, this ought to be resolved. You know, 283 00:14:55,080 --> 00:14:57,280 Speaker 3: this is a kind of a federal matter should be 284 00:14:57,320 --> 00:15:00,000 Speaker 3: resolved by a federal court. But of course that involved 285 00:15:00,480 --> 00:15:05,120 Speaker 3: an interpretation of a federal constitutional prohibition. This one does 286 00:15:05,200 --> 00:15:08,760 Speaker 3: involve the interpretation of New York state law. And you know, 287 00:15:08,800 --> 00:15:11,960 Speaker 3: one could argue that the only constitutional question, the only 288 00:15:11,960 --> 00:15:15,560 Speaker 3: federal constitutional question here is this an unduly burdensome law 289 00:15:15,960 --> 00:15:19,840 Speaker 3: or an unduly burdensome interpretation that would have the effect 290 00:15:19,880 --> 00:15:23,960 Speaker 3: of impacting a national election, and frankly, requiring somebody to 291 00:15:24,000 --> 00:15:27,000 Speaker 3: accurately fill out the line place of residence does not 292 00:15:27,200 --> 00:15:28,800 Speaker 3: seem unduly burdensome. 293 00:15:29,520 --> 00:15:32,040 Speaker 2: And so what's your gut feeling about what an appellate 294 00:15:32,080 --> 00:15:32,760 Speaker 2: court might do. 295 00:15:33,320 --> 00:15:35,560 Speaker 3: It's very hard to imagine that an impellate court will 296 00:15:35,560 --> 00:15:38,560 Speaker 3: overturn this on the fact. But the real question is 297 00:15:38,600 --> 00:15:40,800 Speaker 3: what do you do with it? Do you decide to basically, 298 00:15:41,160 --> 00:15:43,680 Speaker 3: do you let it go and say, well, you know, 299 00:15:43,840 --> 00:15:45,800 Speaker 3: we don't have to interpret it that strictly, or do 300 00:15:45,840 --> 00:15:47,720 Speaker 3: you do with the trial court didn't say well, you know, 301 00:15:47,800 --> 00:15:51,760 Speaker 3: our presence requires strict application, and then he's not a resident. 302 00:15:52,920 --> 00:15:57,080 Speaker 2: This challenge was brought by four voters with the backing 303 00:15:57,320 --> 00:16:02,880 Speaker 2: of the democratically aligned The Choice Action. The Democrats have 304 00:16:03,720 --> 00:16:09,560 Speaker 2: dedicated a substantial legal and ground operation to challenging third 305 00:16:09,600 --> 00:16:11,240 Speaker 2: party candidate ballot access. 306 00:16:12,080 --> 00:16:14,440 Speaker 3: That's right, Although it's interesting now at least a clink 307 00:16:14,480 --> 00:16:18,760 Speaker 3: to recent surveys, it's now unclear from whom Kennedy pulls 308 00:16:18,800 --> 00:16:22,120 Speaker 3: more votes, Harris or Trump. So it's true, and he 309 00:16:22,200 --> 00:16:24,760 Speaker 3: began obviously he was a Democrat. He comes from an 310 00:16:25,360 --> 00:16:28,720 Speaker 3: obviously an extremely distinguished and famous Democratic family. I think 311 00:16:28,760 --> 00:16:32,000 Speaker 3: people assume Democrats assume that he's going to draw mostly Democrats. 312 00:16:32,280 --> 00:16:35,840 Speaker 3: I guess recent polling surveys suggests that may be closer 313 00:16:35,880 --> 00:16:37,880 Speaker 3: to fifty to fifty as whether he's pulling from Trump 314 00:16:38,000 --> 00:16:40,840 Speaker 3: or Harris. So it's not one hundred percent clear. This 315 00:16:40,960 --> 00:16:43,640 Speaker 3: is a right strategy for the Democrats, but this is 316 00:16:43,680 --> 00:16:46,560 Speaker 3: the strategy they've been pursuing liberal activists. 317 00:16:46,600 --> 00:16:51,359 Speaker 2: Cornell West apparently has been given help from Republican operatives 318 00:16:51,360 --> 00:16:54,320 Speaker 2: and getting his name on the ballot in Wisconsin. He 319 00:16:54,400 --> 00:16:57,200 Speaker 2: would definitely draw from Harris. 320 00:16:57,280 --> 00:17:00,440 Speaker 3: Right, it seems likely, certainly do want to vote. Cornell 321 00:17:00,480 --> 00:17:01,880 Speaker 3: West is unlikely voted for Trump. 322 00:17:02,240 --> 00:17:04,560 Speaker 2: I also want to ask you, so there are all 323 00:17:04,600 --> 00:17:09,360 Speaker 2: these cases from the last presidential election that haven't been 324 00:17:09,480 --> 00:17:13,760 Speaker 2: finally resolved. The case is over fake electors and false 325 00:17:13,800 --> 00:17:17,439 Speaker 2: certifications and all that. You know in different parts of 326 00:17:17,480 --> 00:17:19,840 Speaker 2: the country. You got the Georgia criminal case. I mean, 327 00:17:19,880 --> 00:17:24,360 Speaker 2: are there outstanding questions because of those cases that might 328 00:17:24,400 --> 00:17:27,879 Speaker 2: affect or complicate the upcoming presidential election. 329 00:17:28,359 --> 00:17:30,760 Speaker 3: I don't think some and I think you know those 330 00:17:30,880 --> 00:17:33,200 Speaker 3: are all about I mean, the argument is about the 331 00:17:33,240 --> 00:17:36,240 Speaker 3: so called fake electors, is that they were improperly presenting 332 00:17:36,280 --> 00:17:39,680 Speaker 3: themselves as electors in order to create chaos in Congress 333 00:17:39,680 --> 00:17:42,200 Speaker 3: and under the election, I mean, the states have procedures 334 00:17:42,200 --> 00:17:44,440 Speaker 3: for deciding who wins an election and who the electors are. 335 00:17:44,720 --> 00:17:47,960 Speaker 3: I think the bigger issue that's going to be coming up, 336 00:17:48,480 --> 00:17:50,560 Speaker 3: it is an issue at all in the current election, 337 00:17:50,960 --> 00:17:54,359 Speaker 3: is how much discretion do the state or county boards 338 00:17:54,359 --> 00:17:59,400 Speaker 3: of elections have to decide not to accept what appears 339 00:17:59,400 --> 00:18:01,440 Speaker 3: to be the result of the election, after all, the 340 00:18:01,480 --> 00:18:06,200 Speaker 3: ballots have been calculated and recabulated based on some allegations 341 00:18:06,240 --> 00:18:09,639 Speaker 3: that there was some fraud or misconduct or mistake, and 342 00:18:09,680 --> 00:18:13,200 Speaker 3: wanting to hold it up until that's resolved. Traditionally, I 343 00:18:13,240 --> 00:18:15,600 Speaker 3: mean traditionally and also by law in most states, the 344 00:18:15,680 --> 00:18:18,320 Speaker 3: vote of the board of Elections or the board of 345 00:18:18,359 --> 00:18:21,399 Speaker 3: canvases or they very place to place is supposed to 346 00:18:21,440 --> 00:18:25,520 Speaker 3: be automatic. Once the results have in, they've been you've 347 00:18:25,560 --> 00:18:29,200 Speaker 3: been tested about that, machines have been run again a 348 00:18:30,040 --> 00:18:32,880 Speaker 3: here are the results. In twenty twenty, in a number 349 00:18:32,920 --> 00:18:35,520 Speaker 3: of instances, revolicans tried to stop that and say no, 350 00:18:35,600 --> 00:18:37,639 Speaker 3: there are questions and we're not going to vote yes. 351 00:18:37,680 --> 00:18:40,399 Speaker 3: And this happened in Michigan and Wayne County, but ultimately 352 00:18:40,440 --> 00:18:42,760 Speaker 3: they all went through. This happened again a bunch of 353 00:18:42,800 --> 00:18:46,040 Speaker 3: times in twenty twenty two in state and local races 354 00:18:46,320 --> 00:18:50,760 Speaker 3: where local boards simply refused to certify the results because 355 00:18:50,920 --> 00:18:54,000 Speaker 3: there were conspiracy theories. They were things on the internet 356 00:18:54,440 --> 00:18:57,720 Speaker 3: saying no, there was fraud, the machines were hacked. It 357 00:18:57,800 --> 00:19:01,040 Speaker 3: happened I think in a county in Nevada, count in Arizona, 358 00:19:01,680 --> 00:19:03,960 Speaker 3: and in the end they were basically ordered by their 359 00:19:04,080 --> 00:19:07,639 Speaker 3: state courts to certify the results. The question that's going 360 00:19:07,680 --> 00:19:11,720 Speaker 3: to be that may occur coming up after the election 361 00:19:11,960 --> 00:19:16,640 Speaker 3: is over, is will there be situations like that where 362 00:19:17,200 --> 00:19:20,199 Speaker 3: local boards that decline to do it? Is historically just 363 00:19:20,280 --> 00:19:23,840 Speaker 3: been an automatic, a ministerial function to say, here are 364 00:19:23,840 --> 00:19:27,399 Speaker 3: the numbers. They've been counted and recounted. Here their numbers, 365 00:19:27,400 --> 00:19:29,960 Speaker 3: and we submit them to the state, and the state says, 366 00:19:29,960 --> 00:19:32,119 Speaker 3: here are the numbers, here's the winner. Are we going 367 00:19:32,160 --> 00:19:34,920 Speaker 3: to ask to be seeing county boards or possibly stateboards 368 00:19:34,920 --> 00:19:37,320 Speaker 3: saying yes, we see these numbers, but we don't trust 369 00:19:37,359 --> 00:19:40,200 Speaker 3: them and we want to do more of an investigation. 370 00:19:40,840 --> 00:19:43,440 Speaker 3: And of course the problem with that is it's one 371 00:19:43,440 --> 00:19:46,640 Speaker 3: thing for it to drag out for a congressional race 372 00:19:46,720 --> 00:19:48,919 Speaker 3: or center race. It really can't drag out for the 373 00:19:48,960 --> 00:19:52,800 Speaker 3: presidential case because there's going to be a electoral College 374 00:19:52,880 --> 00:19:54,440 Speaker 3: vote on January sixth, and it is going to be 375 00:19:54,480 --> 00:19:56,280 Speaker 3: an inauguration on January twentieth. 376 00:19:56,440 --> 00:19:59,760 Speaker 2: Thanks so much, rich that's Professor Richard Ruffault of Columbia 377 00:19:59,800 --> 00:20:02,720 Speaker 2: Law School. Coming up next on the Bloomberg Law Show. 378 00:20:03,400 --> 00:20:06,720 Speaker 2: Is at the end of the road for student loan forgiveness. 379 00:20:07,320 --> 00:20:11,800 Speaker 2: This is Bloomberg. The Biden administration has filed an emergency 380 00:20:11,800 --> 00:20:15,359 Speaker 2: appeal with the Supreme Court asking that justice is to 381 00:20:15,440 --> 00:20:19,760 Speaker 2: reinstate the President's Safe Plan, which would lower student loan 382 00:20:19,800 --> 00:20:23,439 Speaker 2: payments for millions of borrowers. The Eighth Circuit blocked the 383 00:20:23,480 --> 00:20:27,800 Speaker 2: plan last week after Republican states brought lawsuits arguing that 384 00:20:27,840 --> 00:20:31,560 Speaker 2: the Biden administration did not have authority from Congress to 385 00:20:31,720 --> 00:20:35,240 Speaker 2: enact the plan, a student loan repayment program that ties 386 00:20:35,320 --> 00:20:38,199 Speaker 2: how much someone pays each month to their income. The 387 00:20:38,280 --> 00:20:41,720 Speaker 2: administration is asking the Supreme Court to lift the lower 388 00:20:41,760 --> 00:20:45,800 Speaker 2: court ruling. My guest is constitutional law Professor Michael Dorf 389 00:20:46,400 --> 00:20:51,240 Speaker 2: of Cornell Law School. Is the Save Plan different from 390 00:20:51,320 --> 00:20:55,720 Speaker 2: the program of student debt forgiveness that Supreme Court invalidated. 391 00:20:56,200 --> 00:20:59,040 Speaker 4: Yes, I mean it had some different details in terms 392 00:20:59,080 --> 00:21:01,359 Speaker 4: of who is eligible and what you had do to file. 393 00:21:01,840 --> 00:21:06,119 Speaker 4: But the more important piece in terms of the legal 394 00:21:06,280 --> 00:21:10,760 Speaker 4: aspect is that it relied on a different set of statutory. 395 00:21:10,200 --> 00:21:13,760 Speaker 2: Authorities, and a three judge panel of the Eighth Circuit 396 00:21:13,880 --> 00:21:18,440 Speaker 2: with three Republican appointees called the plan a vast assertion 397 00:21:18,640 --> 00:21:22,879 Speaker 2: of newfound power. Tell us about that decision. 398 00:21:23,359 --> 00:21:26,760 Speaker 4: So the court had two issues to decide. It first 399 00:21:26,800 --> 00:21:31,200 Speaker 4: needed to decide whether there was standing for the plaintiffs, 400 00:21:31,480 --> 00:21:34,720 Speaker 4: which were a bunch of states that were basically led 401 00:21:34,760 --> 00:21:38,280 Speaker 4: by Republicans, and there it essentially relied on the Supreme 402 00:21:38,280 --> 00:21:41,000 Speaker 4: Court case because Missouri is one of the plaintiffs. In 403 00:21:41,200 --> 00:21:44,000 Speaker 4: the earlier case. The Supreme Court said that Missouri had 404 00:21:44,080 --> 00:21:49,880 Speaker 4: standing because this corporation that Missouri had chartered to process loans, 405 00:21:50,040 --> 00:21:52,760 Speaker 4: known as Mochila, could suffer legal injury and that injury 406 00:21:52,760 --> 00:21:56,520 Speaker 4: would be translated to the states. The sensive on that 407 00:21:56,520 --> 00:21:58,280 Speaker 4: point in the Supreme Court. But that's sort of what 408 00:21:58,320 --> 00:21:59,760 Speaker 4: are under the bridge. So there was really no issue 409 00:21:59,760 --> 00:22:03,440 Speaker 4: about standing for the Eighth Circuit to decide. The heart 410 00:22:03,480 --> 00:22:08,720 Speaker 4: of the matter was whether this was something authorized by 411 00:22:08,800 --> 00:22:11,639 Speaker 4: an Act of Congress, and the Biden administration had a 412 00:22:11,760 --> 00:22:15,080 Speaker 4: decent argument that if you read the literal text of 413 00:22:15,119 --> 00:22:17,919 Speaker 4: the statute, it does seem to give the Secretary of 414 00:22:18,000 --> 00:22:24,640 Speaker 4: Education broad discretion to modify loans to delay payments, including 415 00:22:24,680 --> 00:22:28,240 Speaker 4: on principle. But the Court said two things. First, they said, 416 00:22:28,720 --> 00:22:32,679 Speaker 4: where there are other parts of the same statutory's team 417 00:22:32,840 --> 00:22:37,160 Speaker 4: that expressly grant to the Department of Education the authority 418 00:22:37,240 --> 00:22:42,440 Speaker 4: to forgive loans, and given that Congress did those expressly, 419 00:22:43,080 --> 00:22:46,200 Speaker 4: it's unlikely that Congress would have intended for the Secretary 420 00:22:46,200 --> 00:22:50,119 Speaker 4: of Education in this more general language to be able 421 00:22:50,160 --> 00:22:53,679 Speaker 4: to forgive loans. The second thing they said was the 422 00:22:53,800 --> 00:22:58,359 Speaker 4: language you quoted, which is that in the last few years, 423 00:22:58,400 --> 00:23:02,960 Speaker 4: the Supreme Court and especially Justice Roberts, have relied on 424 00:23:03,040 --> 00:23:05,240 Speaker 4: something that has come to be known as the major 425 00:23:05,320 --> 00:23:09,000 Speaker 4: Questions doctrine, and the basic idea there is that if 426 00:23:09,000 --> 00:23:12,000 Speaker 4: an agency is going to be exercising power over a 427 00:23:12,240 --> 00:23:16,440 Speaker 4: very large part of the economy or our social life, 428 00:23:17,160 --> 00:23:21,080 Speaker 4: then you need to find authorization for the agency to 429 00:23:21,160 --> 00:23:24,720 Speaker 4: do so in the express language of Congress. So it's 430 00:23:24,800 --> 00:23:26,920 Speaker 4: kind of what someone is called a clear statement rule. 431 00:23:27,119 --> 00:23:29,880 Speaker 4: Although there's some debate among administrative law scholars and even 432 00:23:29,960 --> 00:23:33,320 Speaker 4: by Justice Barrett questioning whether that's exactly how to understand it. 433 00:23:33,560 --> 00:23:35,680 Speaker 4: But in any event, that's what the Eighth Circuit said. 434 00:23:35,720 --> 00:23:38,000 Speaker 4: They said, Look, this is just not the kind of 435 00:23:38,119 --> 00:23:41,440 Speaker 4: thing that Congress has given you power to do. Maybe 436 00:23:41,480 --> 00:23:44,040 Speaker 4: Congress could do that, maybe Congress could do it itself, 437 00:23:44,040 --> 00:23:44,960 Speaker 4: but they haven't. 438 00:23:44,680 --> 00:23:47,600 Speaker 2: Done in order to issue the injunction. Did the Eighth 439 00:23:47,640 --> 00:23:49,880 Speaker 2: Circuit find that there was a reparable injury? 440 00:23:50,240 --> 00:23:54,040 Speaker 4: Yeah, well so that's the interesting thing. Yes, although the 441 00:23:54,080 --> 00:23:58,320 Speaker 4: core of the decision in the courtes this is likelihood 442 00:23:58,320 --> 00:24:01,880 Speaker 4: of success on the merit It's really kind of hard 443 00:24:01,920 --> 00:24:05,160 Speaker 4: to see how there's an irreparable injury to Missouri because 444 00:24:05,200 --> 00:24:07,480 Speaker 4: they're going to be collecting a little bit less in 445 00:24:07,480 --> 00:24:11,640 Speaker 4: interest through this entity that they've created to process loans, 446 00:24:12,080 --> 00:24:16,600 Speaker 4: but that there is not a reparable injury to the 447 00:24:16,800 --> 00:24:20,320 Speaker 4: hundreds of thousands or millions of borrowers who now have 448 00:24:20,480 --> 00:24:22,719 Speaker 4: to pay off these student loans when they thought they 449 00:24:22,720 --> 00:24:25,440 Speaker 4: were going to be eligible for some forgiveness. Court doesn't 450 00:24:25,480 --> 00:24:28,800 Speaker 4: say that the borrowers don't have an injury or even 451 00:24:28,840 --> 00:24:31,040 Speaker 4: an irreparable injury. But the court doesn't really get to 452 00:24:31,119 --> 00:24:34,960 Speaker 4: the question of balancing of the equities, which is typically 453 00:24:35,000 --> 00:24:38,040 Speaker 4: the last step in one of these decisions, whether the 454 00:24:38,119 --> 00:24:41,480 Speaker 4: grand injunctive belief, which also applies for pliminary injunction and 455 00:24:41,520 --> 00:24:45,200 Speaker 4: also applies to the review of an injunctive case. 456 00:24:45,720 --> 00:24:49,919 Speaker 2: Is this sort of the world with Republican courts post 457 00:24:50,119 --> 00:24:51,160 Speaker 2: Chevron deference? 458 00:24:51,560 --> 00:24:54,440 Speaker 4: Yeah, So the interesting thing about this decision is, I 459 00:24:54,440 --> 00:24:56,479 Speaker 4: mean you're referring, of course, to the Supreme Court's decision 460 00:24:56,680 --> 00:25:00,639 Speaker 4: in the Low or Bright against Ramondo case earlier this year. 461 00:25:00,960 --> 00:25:05,080 Speaker 4: There the Court did away with this long standing doctrine 462 00:25:05,160 --> 00:25:08,520 Speaker 4: we're forty years old that said that courts will defer 463 00:25:08,600 --> 00:25:13,680 Speaker 4: to reasonable agency interpretations of statute, and certainly, overruling Chevron 464 00:25:13,880 --> 00:25:16,360 Speaker 4: made it easier for the Eighth Circuit to rule as 465 00:25:16,359 --> 00:25:20,720 Speaker 4: it did. But remember the Supreme Court invalidated the Biden 466 00:25:20,800 --> 00:25:27,480 Speaker 4: administration's first student that forgiveness program without having overruled Chevron efforts. 467 00:25:27,520 --> 00:25:30,520 Speaker 4: They just didn't apply it because they said, you don't 468 00:25:30,520 --> 00:25:33,320 Speaker 4: even get to that due to the major questions doctrine. 469 00:25:33,520 --> 00:25:38,240 Speaker 2: Republican attorneys general filed separate lawsuits over the Safe Plan, 470 00:25:38,400 --> 00:25:42,680 Speaker 2: this one and one filed in Kansas. The Tenth Circuit 471 00:25:43,320 --> 00:25:47,800 Speaker 2: said the plan could take effect while the court battle continues. 472 00:25:47,880 --> 00:25:51,600 Speaker 2: So now you have an Eighth Circuit decision contrary to 473 00:25:51,640 --> 00:25:54,920 Speaker 2: the Tenth Circuit decision. Does this mean that the Supreme 474 00:25:55,000 --> 00:25:56,919 Speaker 2: Court is going to take up the case? 475 00:25:57,560 --> 00:26:00,480 Speaker 4: Presumably yes. I mean, the you know what thing about 476 00:26:00,480 --> 00:26:03,400 Speaker 4: this case and so many other Supreme Court heres these days, 477 00:26:03,520 --> 00:26:05,879 Speaker 4: is there hasn't been a trial. This is on a 478 00:26:05,880 --> 00:26:07,880 Speaker 4: preliminary injunction, and maybe you don't need a trial because 479 00:26:07,880 --> 00:26:10,520 Speaker 4: it's really just a pure question of law. But it's 480 00:26:10,640 --> 00:26:14,680 Speaker 4: technically what they were doing was addressing whether to keep 481 00:26:14,720 --> 00:26:18,560 Speaker 4: a stafe pending appeal in place or to modify it. 482 00:26:18,880 --> 00:26:23,040 Speaker 4: But the bottom line of the Eighth Circuit ruling is 483 00:26:23,400 --> 00:26:29,560 Speaker 4: that the program is enjoined indefinitely pending Supreme Court reversal 484 00:26:30,240 --> 00:26:33,199 Speaker 4: or potentially I suppose the case could go back to 485 00:26:33,200 --> 00:26:35,399 Speaker 4: the district court and somehow the district court could find 486 00:26:35,560 --> 00:26:37,679 Speaker 4: the case comes out the other way. But you know 487 00:26:37,840 --> 00:26:41,680 Speaker 4: that would result in reversal almost immediately, because here likelihood 488 00:26:41,720 --> 00:26:44,480 Speaker 4: of success in the merits means we think the merits 489 00:26:44,640 --> 00:26:46,600 Speaker 4: favor the challengers, meaning the state. 490 00:26:47,000 --> 00:26:49,600 Speaker 2: Prepping for this interview, I started looking at the different 491 00:26:50,440 --> 00:26:54,280 Speaker 2: proposals the Biden administration has come up with in order 492 00:26:54,320 --> 00:26:57,040 Speaker 2: to try to give student loan relief, and there are, 493 00:26:57,119 --> 00:27:00,400 Speaker 2: you know, different versions of what they've done, and they're 494 00:27:00,520 --> 00:27:04,360 Speaker 2: even the Education Department is moving forward with a broader 495 00:27:04,440 --> 00:27:08,480 Speaker 2: student loan forgiveness plan that it's going to enact in September. 496 00:27:08,800 --> 00:27:10,879 Speaker 2: I mean, is there any point anymore for the Biden 497 00:27:10,880 --> 00:27:14,639 Speaker 2: administration to keep trying it gets blocked every time? 498 00:27:15,480 --> 00:27:17,520 Speaker 4: Well, you know, it depends on what you mean by 499 00:27:17,560 --> 00:27:21,720 Speaker 4: a point, right, If the point is to actually deliver 500 00:27:22,720 --> 00:27:27,440 Speaker 4: that forgiveness to borrowers, probably not. You know, you would 501 00:27:27,480 --> 00:27:32,440 Speaker 4: think that if you want to deliver that forgiveness through 502 00:27:32,680 --> 00:27:36,320 Speaker 4: existing statutory authority for one of the federal agencies, you 503 00:27:36,359 --> 00:27:40,640 Speaker 4: would start with the strongest case for doing so, and 504 00:27:41,119 --> 00:27:45,280 Speaker 4: you know, the backups tend to have somewhat weaker arguments. 505 00:27:45,280 --> 00:27:49,880 Speaker 4: Although I will say that the argument for the programmer 506 00:27:50,000 --> 00:27:54,600 Speaker 4: was just struck down didn't rely on the kind of 507 00:27:54,640 --> 00:27:59,320 Speaker 4: emergency theory that the previous one did. So it's possible 508 00:27:59,760 --> 00:28:02,600 Speaker 4: that they will eventually hit upon something that the Supreme 509 00:28:02,640 --> 00:28:05,640 Speaker 4: Court and the lower federal courts accept. I just think 510 00:28:05,680 --> 00:28:07,400 Speaker 4: it's not very likely. 511 00:28:07,800 --> 00:28:10,600 Speaker 2: I think in your column you said that, do you 512 00:28:10,640 --> 00:28:13,040 Speaker 2: think that there's no way that there'll be any kind 513 00:28:13,119 --> 00:28:17,640 Speaker 2: of debt relief, certainly before the end of the Biden administration. 514 00:28:18,280 --> 00:28:21,080 Speaker 4: Yeah, I think that's right, just given the case of litigation. Right, 515 00:28:21,080 --> 00:28:23,080 Speaker 4: so you could throw a hail Mary, you could appeal 516 00:28:23,160 --> 00:28:27,080 Speaker 4: to the US Supreme Court and hope that they side 517 00:28:27,200 --> 00:28:31,000 Speaker 4: with the Tenth Circuit rather than the Eighth Circuit. But 518 00:28:31,400 --> 00:28:36,320 Speaker 4: you know that, again, given how closely the Eighth Circuit 519 00:28:36,480 --> 00:28:40,760 Speaker 4: logic tracks the logic of the Supreme Court's own opinion 520 00:28:40,800 --> 00:28:43,720 Speaker 4: in Biden against Nebraska, the earlier case, I don't think 521 00:28:43,760 --> 00:28:44,840 Speaker 4: that's going to happen. 522 00:28:45,440 --> 00:28:50,520 Speaker 2: Why are the Republican states so bent, so driven to 523 00:28:50,560 --> 00:28:53,520 Speaker 2: stop any kind of student loan forgiveness? Is it just 524 00:28:53,560 --> 00:28:57,200 Speaker 2: because it's a Biden administration initiative or is it some 525 00:28:57,360 --> 00:28:57,920 Speaker 2: other reason? 526 00:28:58,800 --> 00:29:02,680 Speaker 4: Well, I think they've got three kinds of reasons. One is, 527 00:29:02,920 --> 00:29:06,040 Speaker 4: you know, anything your forum against I think that there 528 00:29:06,080 --> 00:29:08,520 Speaker 4: is some of that going on here. But I think 529 00:29:08,560 --> 00:29:12,320 Speaker 4: a second piece is that you know they are hostile 530 00:29:12,680 --> 00:29:20,520 Speaker 4: to executive branch agencies doing things that Congress hasn't clearly 531 00:29:20,640 --> 00:29:23,560 Speaker 4: authorized because they're hostile to the administrative state. And you 532 00:29:23,640 --> 00:29:26,959 Speaker 4: saw that in the overruling of Chevron. You've seen that 533 00:29:27,000 --> 00:29:30,160 Speaker 4: in the Major Questions doctrine. You see that in these 534 00:29:30,440 --> 00:29:35,000 Speaker 4: suggestions by various conservative justices that they'd like to revitalize 535 00:29:35,000 --> 00:29:37,960 Speaker 4: the so called non delegation doctrine. I should say that 536 00:29:38,240 --> 00:29:41,920 Speaker 4: the Republicans in Congress are much more hostile to the 537 00:29:41,960 --> 00:29:45,480 Speaker 4: executive doing things that aren't very clearly authorized by Congress 538 00:29:45,560 --> 00:29:47,760 Speaker 4: when it's a Democratic presidents, and they are when it's 539 00:29:47,800 --> 00:29:50,400 Speaker 4: a Republican president. But that's you know that door swings 540 00:29:50,400 --> 00:29:53,160 Speaker 4: both ways. That's just generally true. So and then the 541 00:29:53,160 --> 00:29:55,680 Speaker 4: third thing I'll say is that you know, there are 542 00:29:56,400 --> 00:30:03,040 Speaker 4: I think legitimate policy reasons to it's not necessarily oppose 543 00:30:03,120 --> 00:30:07,880 Speaker 4: the student's debt forgiveness. To think about the issue in 544 00:30:08,000 --> 00:30:12,920 Speaker 4: a broader perspective. So it's true that people who borrowed 545 00:30:12,960 --> 00:30:15,040 Speaker 4: money to go to college or even to go to 546 00:30:15,040 --> 00:30:18,360 Speaker 4: grad school or professional school and now are saddled with 547 00:30:18,400 --> 00:30:22,440 Speaker 4: a lot of debt find that difficult, especially they didn't 548 00:30:22,440 --> 00:30:24,880 Speaker 4: have you fixed rates, which we typically don't for these things, 549 00:30:24,960 --> 00:30:28,040 Speaker 4: especially as we've been in a high interest rate environment 550 00:30:28,160 --> 00:30:31,480 Speaker 4: for the last couple of years. But so do other 551 00:30:31,520 --> 00:30:34,040 Speaker 4: people right there are you know, if you borrow money 552 00:30:34,040 --> 00:30:36,880 Speaker 4: to start a business. You could be saddled with a 553 00:30:36,880 --> 00:30:42,000 Speaker 4: lot of debt. If you went to a less expensive college, 554 00:30:42,560 --> 00:30:45,120 Speaker 4: then you might have gone to that might have given 555 00:30:45,120 --> 00:30:48,920 Speaker 4: you a somewhat more prestigious degree because you didn't want 556 00:30:48,960 --> 00:30:51,200 Speaker 4: to be saddled with debt, and you paid for your 557 00:30:51,320 --> 00:30:54,600 Speaker 4: education out of pocket, or you got loans that aren't 558 00:30:54,640 --> 00:30:57,760 Speaker 4: covered by one of these relief programs. Then you might say, well, 559 00:30:57,760 --> 00:31:01,000 Speaker 4: I'm similarly situated to the people whore get this relief, I 560 00:31:01,040 --> 00:31:03,400 Speaker 4: should get the relief as well. And there is of 561 00:31:03,400 --> 00:31:06,080 Speaker 4: course a revenue hit to the federal government, which means 562 00:31:06,160 --> 00:31:09,360 Speaker 4: either you're going to run larger deficits or you're going 563 00:31:09,440 --> 00:31:11,480 Speaker 4: to have to cut somewhere else. So it's not as 564 00:31:11,520 --> 00:31:16,520 Speaker 4: though student debt forgiveness is a slam dunk on the 565 00:31:16,560 --> 00:31:19,520 Speaker 4: policy side. And so I think it's quite possible that 566 00:31:19,600 --> 00:31:23,840 Speaker 4: some Republicans, probably even some Democrats, think that while this 567 00:31:24,000 --> 00:31:26,920 Speaker 4: may or may not have certain political impacts, and it's 568 00:31:26,960 --> 00:31:30,720 Speaker 4: certainly valuable to the people who get the forgiveness, and 569 00:31:30,800 --> 00:31:34,160 Speaker 4: they certainly you could use it, it's not necessarily the 570 00:31:34,200 --> 00:31:35,920 Speaker 4: best policy of all things considered. 571 00:31:36,200 --> 00:31:38,560 Speaker 2: Next step, I guess we'll see if the Supreme Court 572 00:31:38,600 --> 00:31:41,920 Speaker 2: takes the case. Thanks so much, Mike. That's Professor Michael 573 00:31:41,960 --> 00:31:44,600 Speaker 2: Dwarf of Cornell Law School. And if you're one of 574 00:31:44,600 --> 00:31:48,400 Speaker 2: the millions of borrowers under the saf program, the Education 575 00:31:48,600 --> 00:31:52,360 Speaker 2: Secretary said, the department will place all borrowers enrolled in 576 00:31:52,520 --> 00:31:56,240 Speaker 2: SAVE in an interest free forbearance while the Biden administration 577 00:31:56,480 --> 00:31:59,520 Speaker 2: continues to defend the plan in court. And that's it 578 00:31:59,560 --> 00:32:02,320 Speaker 2: for this of the Bloomberg Law Show. Remember you can 579 00:32:02,360 --> 00:32:05,600 Speaker 2: always get the latest legal news on our Bloomberg Law podcasts. 580 00:32:05,880 --> 00:32:08,880 Speaker 2: You can find them on Apple Podcasts, Spotify, and at 581 00:32:09,040 --> 00:32:14,080 Speaker 2: www dot Bloomberg dot com, slash podcast Slash Law, and 582 00:32:14,160 --> 00:32:17,240 Speaker 2: remember to tune into The Bloomberg Law Show every weeknight 583 00:32:17,320 --> 00:32:20,760 Speaker 2: at ten pm Wall Street Time. I'm June Grosso and 584 00:32:20,800 --> 00:32:22,280 Speaker 2: you're listening to Bloomberg