WEBVTT - Weekend Law: Trump Tariffs, Religion Case & Dua Lipa Win 0:00:02.759 --> 0:00:07.480 This is Bloomberg Law with June Grosseol from Bloomberg Radio. 0:00:08.720 --> 0:00:13.400 My fellow Americans, this is Liberation Day Wednesday. 0:00:13.440 --> 0:00:17.600 On so called Liberation Day, President Donald Trump announced the 0:00:17.680 --> 0:00:21.200 steepest American tariffs in more than a century. 0:00:21.680 --> 0:00:24.279 So sixty seven percent. So we're going to be charging 0:00:24.720 --> 0:00:28.040 a discounted reciprocal tariff of thirty four percent. I think, 0:00:28.520 --> 0:00:30.720 in other words, they charge us, we charge them, we 0:00:30.800 --> 0:00:32.920 charge them lest So how can anybody be upset? 0:00:33.120 --> 0:00:37.440 But obviously plenty of people were upset. In every corner 0:00:37.479 --> 0:00:41.280 of the financial markets, from stocks to bonds to commodities, 0:00:41.560 --> 0:00:45.440 investors were sending Trump a message about the trade war 0:00:45.520 --> 0:00:49.240 he unleashed. Trump imposed the tariffs by invoking a law 0:00:49.280 --> 0:00:53.880 that gives presidents sweeping powers during an economic emergency. But 0:00:54.040 --> 0:00:57.800 no president has ever used that law to impose tariffs 0:00:58.120 --> 0:01:00.800 until now. And now the first law lawsuit has been 0:01:00.880 --> 0:01:05.360 filed saying that the president overstepped his authority and challenging 0:01:05.400 --> 0:01:08.759 the legal justification he used. Joining me is an expert 0:01:08.760 --> 0:01:12.880 in international trade, David Townsend, a partner at Dorsey and Whitney. 0:01:13.240 --> 0:01:16.119 Dave tell us about the law President Trump is using 0:01:16.360 --> 0:01:18.320 to impose these tariffs. 0:01:18.200 --> 0:01:22.120 So these tariffs are imposed under the International Emergency Economic 0:01:22.160 --> 0:01:27.080 Powers Act, or AIPA. AEPA allows the President to declare 0:01:27.440 --> 0:01:31.160 a national emergency with respect to a variety of things 0:01:31.200 --> 0:01:35.039 that the president believes undermine US national security and has 0:01:35.080 --> 0:01:38.839 its basis and origin outside of the United States. Once 0:01:39.160 --> 0:01:42.680 the President declares that national emergency, it provides a legal 0:01:42.720 --> 0:01:45.839 basis for the President to take a number of restrictive 0:01:45.880 --> 0:01:49.240 actions with respect to commerce between the United States and 0:01:49.280 --> 0:01:52.680 the target of the AIPA Executive Order. 0:01:53.000 --> 0:01:56.880 Trump says the emergency is the US trade deficit with 0:01:57.000 --> 0:02:00.880 other nations, which the order describes as an unusual and 0:02:01.000 --> 0:02:04.520 extraordinary threat to the national security and economy of the 0:02:04.640 --> 0:02:09.079 United States. Many, perhaps most people wouldn't see the deficit 0:02:09.160 --> 0:02:11.640 that way. Is it Trump's decision alone? 0:02:11.880 --> 0:02:16.680 Well, Under AEPA, the President is provided by Congress broad 0:02:16.720 --> 0:02:20.880 authority to define what is or is not a national emergency. 0:02:21.360 --> 0:02:25.800 Under AEPA, presidents have declared a wide variety of topics 0:02:25.840 --> 0:02:30.200 to constitute a national emergency, and today there's not been 0:02:30.240 --> 0:02:34.880 any judicial decisions that have reversed a president in how 0:02:34.919 --> 0:02:38.840 they define a national emergency under AEPA, But the use 0:02:38.880 --> 0:02:43.720 of AEPA to impose tariffs is a new use of AEPA. 0:02:44.000 --> 0:02:47.040 President Trump is the first president to use IEPA as 0:02:47.080 --> 0:02:51.399 a basis for increasing tariffs. Previously, IEPA has been used 0:02:51.400 --> 0:02:56.240 for targeting terrorist organizations or foreign countries that are deemed 0:02:56.280 --> 0:03:00.360 to be taking actions to undermine US national security. Trump 0:03:00.400 --> 0:03:03.400 is using IEPA as a basis to change teri frates 0:03:03.440 --> 0:03:05.040 on imports into the United States. 0:03:05.400 --> 0:03:08.680 On Thursday, what appears to be the first legal challenge 0:03:08.760 --> 0:03:12.280 to the tariffs was found by a conservative backed legal 0:03:12.320 --> 0:03:14.800 group in Florida. Tell us about the suit. 0:03:15.160 --> 0:03:19.000 The lawsuit is on behalf of a US importer of 0:03:19.040 --> 0:03:23.520 merchandise from China. The plaintiff in the case alleges that 0:03:23.960 --> 0:03:28.280 the first round of Trump administration tariffs that were imposed 0:03:28.360 --> 0:03:32.960 under AEPA are illegal, that AEPA doesn't authorize the imposition 0:03:33.000 --> 0:03:36.800 of tariffs, and even if it does, that tariffs aren't 0:03:36.840 --> 0:03:41.760 necessary for addressing the national emergency that President Trump declared 0:03:41.960 --> 0:03:45.080 with respect to China, which relates to drug trafficking and 0:03:45.160 --> 0:03:47.400 fentanyl imports into the United States. 0:03:47.760 --> 0:03:50.240 So this suit is about the first set of tariffs 0:03:50.280 --> 0:03:55.200 Trump imposed on Chinese goods leading up to the sweeping 0:03:55.240 --> 0:03:56.760 tariffs announced on Wednesday. 0:03:57.120 --> 0:03:59.960 To use IEPA as a basis to impose ten percent 0:04:00.200 --> 0:04:03.600 tariffs on goods from China and subsequently bumped that up 0:04:03.600 --> 0:04:06.760 to twenty percent tariffs on goods from China. Under AEPA 0:04:06.800 --> 0:04:10.440 also declared national emergencies with respect to Canada and Mexico 0:04:10.760 --> 0:04:14.760 and deferred tariffs, and then ultimately allowed Canadian and Mexican 0:04:14.800 --> 0:04:17.680 goods to be imported into the United States without tariffs 0:04:17.680 --> 0:04:22.120 if they qualify under the US Mexico Canada Agreement USMCA. 0:04:22.240 --> 0:04:25.600 Yeah, the tariff on and off situation has been confusing, 0:04:26.120 --> 0:04:28.920 But then the same theory would work for the so 0:04:29.040 --> 0:04:30.640 called Liberation Day tariffs. 0:04:31.240 --> 0:04:37.240 Well, yes, because the lawsuit alleges that AEPA doesn't authorize 0:04:37.240 --> 0:04:40.800 the president to impose tariffs, and so these reciprocal tariffs 0:04:40.800 --> 0:04:44.240 that were announced on Wednesday would be likewise invalid if 0:04:44.279 --> 0:04:46.039 the plaintiff's theory is correct. 0:04:46.520 --> 0:04:49.760 Is this an uphill battle? Have courts given deference to 0:04:49.800 --> 0:04:51.840 the president in these situations? 0:04:52.360 --> 0:04:57.040 There have been lawsuits under AEPA, But because President Trump 0:04:57.080 --> 0:05:00.279 is the first to use AIPA to impose tariff, there's 0:05:00.440 --> 0:05:03.479 never been a question before a court as to whether 0:05:03.800 --> 0:05:09.279 AEPA authorizes tariffs and so I think it remains to 0:05:09.320 --> 0:05:13.039 be seen how a court would handle the issue. It's 0:05:13.080 --> 0:05:16.839 really one of statutory interpretation and whether the EYEPA statute 0:05:16.880 --> 0:05:19.760 actually permits the president imposed tariff. 0:05:20.400 --> 0:05:24.120 Another thing this lawsuit argues is that Trump is usurping 0:05:24.360 --> 0:05:28.920 Congress's right to control tariffs. I mean, the Constitution does 0:05:28.960 --> 0:05:32.279 give Congress the power to levy tariffs and to regulate 0:05:32.320 --> 0:05:36.200 commerce with foreign nations, not the president right. 0:05:36.240 --> 0:05:42.680 AIPA is a statutory authority that Congress created to delegate 0:05:43.200 --> 0:05:47.560 their constitutional authority to regulate foreign commerce and impose tariff 0:05:47.960 --> 0:05:52.400 to the President. Now, one legal question that remains and 0:05:52.520 --> 0:05:55.479 is unknown at this time is whether APA was ever 0:05:55.520 --> 0:05:58.719 intended to allow the president and does allow the president 0:05:58.880 --> 0:06:02.760 to increase tariff rates. As I noted before, traditionally I 0:06:02.800 --> 0:06:06.039 was used as a basis for economic sanctions against the 0:06:06.080 --> 0:06:08.960 target organizations, individuals, and foreign governments. 0:06:09.160 --> 0:06:13.359 Four Republican senators voted alongside all forty four Democrats and 0:06:13.440 --> 0:06:17.040 two independents on Wednesday to pass a measure that would 0:06:17.040 --> 0:06:21.719 block Trump's tariffs on Canadian imports, and on Thursday, a 0:06:21.800 --> 0:06:26.080 bipartisan Senate bill was introduced that would give Congress final 0:06:26.120 --> 0:06:29.800 approval on tariffs imposed by a president. I don't know. 0:06:29.839 --> 0:06:31.760 It seems like too little, too late. 0:06:32.240 --> 0:06:34.919 I think that's a new development that there is some 0:06:35.000 --> 0:06:40.440 momentum in Congress, including on a bipartisan basis, to reassert 0:06:40.480 --> 0:06:45.760 congressional authority and their constitutional authority to establish tariffs. Congress, 0:06:45.960 --> 0:06:48.560 because they have that constitutional authority, can step in at 0:06:48.600 --> 0:06:51.920 any time. They could reverse the reciprocal tariffs that President 0:06:51.920 --> 0:06:54.880 Trump announced, and they could reverse the Section three one 0:06:54.920 --> 0:06:58.080 tariffs that have been in place since twenty eighteen. They've 0:06:58.160 --> 0:07:01.160 chosen thus far not to do that, but I do 0:07:01.240 --> 0:07:05.000 think what you're seeing now is because these tariffs are 0:07:05.040 --> 0:07:09.920 reaching new countries, including our neighbors such as Canada and Mexico, 0:07:10.040 --> 0:07:13.560 there is some momentum in Congress to re examine and 0:07:13.640 --> 0:07:17.040 potentially check what the president is doing in the tariff space. 0:07:17.600 --> 0:07:20.240 Explain specifically what Congress could do. 0:07:20.600 --> 0:07:25.960 Congress could pass a statute establishing tariff rates for individual countries, 0:07:26.000 --> 0:07:28.960 and that wouldn't take precedents over the executive orders issued 0:07:29.000 --> 0:07:34.600 under AJIPA. Congress also can introduce resolutions terminating a national emergency, 0:07:34.800 --> 0:07:38.280 so in theory, Congress could take action to withdraw the 0:07:38.360 --> 0:07:42.280 legal basis for the reciprocal tariffs that President Trump announced, 0:07:42.480 --> 0:07:44.680 they have not to date done that. And again i'd 0:07:44.720 --> 0:07:48.560 go back to the twenty eighteen tariffs against China. You know, 0:07:48.640 --> 0:07:51.640 that's an example where Congress has the authority to do 0:07:51.720 --> 0:07:54.520 something and to reverse it, but todate has not done. 0:07:54.600 --> 0:07:58.360 So I think the main point, you know, is that 0:07:58.440 --> 0:08:00.640 Congress has a variety of tools they could use here 0:08:00.760 --> 0:08:04.840 to to modify, to reverse, to change what the executive 0:08:04.840 --> 0:08:06.720 branch is doing with prospect to tariffs. 0:08:07.200 --> 0:08:10.200 So it seems unlikely that any bill or resolution opposing 0:08:10.280 --> 0:08:14.520 Trump's tariffs would get through the House. Going beyond American 0:08:14.600 --> 0:08:18.600 law for a moment, do these tariffs violate the rules 0:08:18.640 --> 0:08:20.080 of the World Trade Organization? 0:08:20.560 --> 0:08:24.280 Well, one thing I think is interesting about the Executive 0:08:24.440 --> 0:08:29.280 Order is that it talks about the creation of the 0:08:29.280 --> 0:08:34.320 World Trade Organization and frames some of the issues here 0:08:34.679 --> 0:08:39.000 as the United States allowing other countries to get away 0:08:39.040 --> 0:08:42.720 with breaches of what they promised to do under the WTO. 0:08:43.120 --> 0:08:46.720 So that's the US perspective, I think. On the foreign perspective, 0:08:47.000 --> 0:08:50.520 they'll say, also pointing to the WTO, that we had 0:08:50.559 --> 0:08:53.600 a deal and the United States agreed to keep its 0:08:53.679 --> 0:08:56.880 tariffs low and so they can't just sit by as 0:08:56.920 --> 0:09:00.040 the United States acts and violation of that commitment, and 0:09:00.160 --> 0:09:03.480 thus that becomes a basis for retaliation. And so it's 0:09:03.679 --> 0:09:07.080 hard to have that crystal ball to see whether this 0:09:07.120 --> 0:09:09.920 is going to create a spiraling effect of retaliation or 0:09:09.960 --> 0:09:12.920 counter retaliation or if finstead, we could get to some 0:09:12.960 --> 0:09:15.600 sort of equilibrium or these rates actually come down as 0:09:15.600 --> 0:09:18.560 a result of agreements between the US and trading partners. 0:09:18.760 --> 0:09:22.240 And under the WTO, is there a mechanism if one 0:09:22.320 --> 0:09:25.080 member violates the trade rules. 0:09:25.280 --> 0:09:29.040 Yes, and that would be the complaint of the US 0:09:29.120 --> 0:09:32.520 trading partners. Here is that you could make a good 0:09:32.640 --> 0:09:36.920 argument that the WTO's entire purpose was to help countries 0:09:37.480 --> 0:09:42.040 define when another country is breaching it's WTO obligations through 0:09:42.360 --> 0:09:46.240 the dispute settlement process. There have been a lot of 0:09:46.440 --> 0:09:50.600 complaints from Democrats and Republicans alike about the WTO dispute 0:09:50.600 --> 0:09:54.520 settlement process, but I think the reality is that foreign 0:09:54.520 --> 0:09:59.000 countries view this as the United States walking away from 0:09:59.000 --> 0:10:02.600 that dispute settlement process and going completely to a sort 0:10:02.640 --> 0:10:07.680 of bilateral negotiating process for resolving trade disputes rather than 0:10:08.080 --> 0:10:10.000 multilaterally through the WTO. 0:10:10.600 --> 0:10:13.720 I know you advise companies on tariffs. What are some 0:10:13.800 --> 0:10:16.800 of the concerns that your clients have or perhaps should have. 0:10:17.080 --> 0:10:20.480 A lot of companies realize that the compliance stakes are 0:10:20.520 --> 0:10:24.000 significantly increased when the tariff goes up this much, right, 0:10:24.080 --> 0:10:28.600 because if your compliance practices don't get the country of 0:10:28.640 --> 0:10:31.920 origin correct or the valuation correct, that now translates into 0:10:31.920 --> 0:10:35.080 a fairly significant change in revenue that should have gone 0:10:35.120 --> 0:10:37.320 to the US government if you're getting it incorrect. So 0:10:37.559 --> 0:10:40.800 from a compliance standpoint, it's riskier now than it was 0:10:40.840 --> 0:10:45.080 on Monday. With respect to declarations to US customs. One 0:10:45.120 --> 0:10:47.600 thing that I think is going to generate a lot 0:10:47.600 --> 0:10:53.319 of questions is because the tariff rates differ by different countries. 0:10:53.720 --> 0:10:57.560 If you have product lines that make multiple stops prior 0:10:57.600 --> 0:11:00.600 to be importing into the United States to further assembly, 0:11:00.880 --> 0:11:05.080 are manufacturing, then the country of origin question becomes vitally 0:11:05.120 --> 0:11:08.080 important because you may have a teriff rate down to 0:11:08.120 --> 0:11:10.680 ten percent against the teriff frate that goes up to 0:11:10.760 --> 0:11:13.760 forty nine percent on these reciprocal tariffs, and a lot 0:11:13.800 --> 0:11:16.720 of terif liabilities at stake in applying the rule of 0:11:16.720 --> 0:11:18.679 origin correctly. So I think that's going to be one 0:11:18.679 --> 0:11:22.040 area where companies are examining carefully. The other thing is, 0:11:22.040 --> 0:11:24.439 if you're stuck paying the tariff, the amount of tariff 0:11:24.480 --> 0:11:26.600 you pay is going to be determined on how you 0:11:26.720 --> 0:11:29.679 value the import as it comes into the United States. 0:11:29.720 --> 0:11:32.040 And so a lot of companies who may not have 0:11:32.080 --> 0:11:36.120 thought very hard about valuation because teriff rates or zero 0:11:36.280 --> 0:11:39.079 are very low are looking at that question to make 0:11:39.120 --> 0:11:42.520 sure they're not under or overvaluing the merchandise as it 0:11:42.559 --> 0:11:43.840 comes into the United States. 0:11:43.920 --> 0:11:48.080 It's a complex and evolving situation. Thanks for taking us 0:11:48.120 --> 0:11:51.800 through it. That's David Townsend, a partner at Dorsey and Whitney. 0:11:52.080 --> 0:11:55.960 Coming up next, Catholic Charities appears headed for a win 0:11:56.120 --> 0:11:59.320 at the Supreme Court. I'm June Grosso. When you're listening 0:11:59.360 --> 0:12:00.480 to Bloomberg. 0:12:01.920 --> 0:12:06.520 I thought it was pretty fundamental that we don't treat 0:12:06.559 --> 0:12:10.800 some religions better than other religions, and we certainly don't 0:12:10.840 --> 0:12:14.480 do it based on the content of the religious doctrine 0:12:14.760 --> 0:12:16.320 that those religions preach. 0:12:17.679 --> 0:12:21.080 Isn't it a fundamental premise of our First Amendment that 0:12:21.160 --> 0:12:25.199 the state shouldn't be picking and choosing between religions, between 0:12:25.480 --> 0:12:30.600 certain evangelical sects and Judaism, and Catholicism on the other 0:12:30.720 --> 0:12:36.439 for example, And doesn't it entangle the state tremendously when 0:12:36.480 --> 0:12:39.080 it has to go into a soup kitchen. Send an 0:12:39.120 --> 0:12:42.120 inspector in to see how much prayer is going on. 0:12:43.200 --> 0:12:49.160 Justices across the ideological spectrum suggested that Wisconsin was discriminating 0:12:49.200 --> 0:12:53.240 against Catholic Charities by denying it a religious exemption from 0:12:53.320 --> 0:12:57.600 the state's unemployment tax program. The state argues that Catholic 0:12:57.679 --> 0:13:01.840 Charities doesn't qualify for the tax exemption because the day 0:13:01.880 --> 0:13:06.080 to day services it provides don't involve religious teachings. But 0:13:06.240 --> 0:13:10.880 many of the justices seemed concerned about Wisconsin's contention that 0:13:11.120 --> 0:13:16.600 one way organizations can get the exemption is by actively proselytizing. 0:13:16.920 --> 0:13:20.560 Chief Justice John Roberts and Justice is Amy Cony Barrett 0:13:20.600 --> 0:13:24.679 and Neil Gorsuch question just what that means in practice? 0:13:25.280 --> 0:13:30.120 What is the simplest thing that the Catholic Charities would 0:13:30.200 --> 0:13:34.319 have to do to qualify for the religious exemption in Wisconsin? 0:13:34.520 --> 0:13:34.760 I think? 0:13:34.840 --> 0:13:37.400 Were they sure they have one sign in the dining 0:13:37.440 --> 0:13:40.280 hall saying this meal provided by Catholic Charities. If you 0:13:40.360 --> 0:13:44.679 want to find out about the church, here's a brochure, and. 0:13:44.640 --> 0:13:46.960 I mean, are they playing like hymn's on the radio 0:13:47.120 --> 0:13:50.680 or like Christian rock at the evangelical soup kitchen on 0:13:50.720 --> 0:13:54.000 the radio? You know, is that proselytization or not? Because 0:13:54.000 --> 0:13:55.760 you're forced to sit there and listen to it. 0:13:57.040 --> 0:13:59.080 I just want to know what the test is, So 0:13:59.320 --> 0:14:04.600 repent sins, you get the exemption, not requiring you to 0:14:04.600 --> 0:14:07.400 repent your sins, you don't. I guess you don't get 0:14:07.400 --> 0:14:07.920 the exception. 0:14:08.679 --> 0:14:13.000 Catholic Charities argues this state is violating its religious freedoms 0:14:13.040 --> 0:14:16.880 protected by the First Amendment by making determinations about what 0:14:17.000 --> 0:14:20.800 work qualifies as religious. My guest is Richard Garnett, a 0:14:20.840 --> 0:14:23.960 professor at Notre Dame Law School and founding director of 0:14:24.000 --> 0:14:28.120 the school's Program on Church, State and Society. He was 0:14:28.160 --> 0:14:30.880 part of a group of law and religion professors who 0:14:31.000 --> 0:14:34.880 submitted a brief in support of Catholic Charities. Rick, this 0:14:34.960 --> 0:14:38.640 is an appeal from a decision of the Wisconsin Supreme Court. 0:14:38.840 --> 0:14:41.200 Tell us about the issue before the justices. 0:14:41.600 --> 0:14:45.120 So the justices are being asked to evaluate a ruling 0:14:45.200 --> 0:14:47.880 by a Wisconsin court, and that ruling had to do 0:14:48.560 --> 0:14:52.600 with an exemption that was in place in Wisconsin law, 0:14:52.800 --> 0:14:58.600 it's an exemption from otherwise applicable requirement about providing unemployment insurance. 0:14:58.800 --> 0:15:02.840 So Wisconsin, like a lot of states, has a religious exemption. 0:15:03.000 --> 0:15:06.680 So some employers were exempt from this particular requirement if 0:15:06.720 --> 0:15:11.120 they were religious. And the precise terminology of the exemption 0:15:11.320 --> 0:15:16.400 was that organizations that are operated primarily for religious purposes 0:15:16.520 --> 0:15:20.720 are entitled to the exemption. And Catholic charities, which is 0:15:20.960 --> 0:15:24.280 what it sounds like, a Catholic organization that provides a 0:15:24.360 --> 0:15:28.080 variety of social services, was denied the exemption on the 0:15:28.080 --> 0:15:31.000 theory that, you know, although it's got the word Catholic 0:15:31.040 --> 0:15:34.800 in it, and although it's probably motivated by Catholic concerns, 0:15:35.080 --> 0:15:37.400 that a lot of the things it was doing they 0:15:37.440 --> 0:15:40.440 weren't really religious. They weren't primarily religious. They were the 0:15:40.440 --> 0:15:44.160 same kinds of things that secular organizations do. And so that, 0:15:44.240 --> 0:15:46.520 you know, the Wisconsant Court kind of empsizes, Look, they 0:15:46.640 --> 0:15:49.800 hire some people who aren't Catholic, they serve people regardless 0:15:49.800 --> 0:15:53.480 of their faith, they don't engage in proselytism, they don't 0:15:53.480 --> 0:15:56.640 require people to attend church, so they're not really religious. 0:15:56.840 --> 0:15:59.600 And the Supreme Court took up the case to decide. 0:15:59.600 --> 0:16:03.160 I think whether there wisconsint Court's definition of who gets 0:16:03.200 --> 0:16:07.440 this exemption was in a way discriminatory, that it distinguished 0:16:07.520 --> 0:16:12.920 between religions that engage in kind of overt evangelism when 0:16:12.920 --> 0:16:17.200 they provide services and those that live out their religious 0:16:17.200 --> 0:16:20.440 mission by providing social services to a broad range of people. 0:16:20.920 --> 0:16:25.640 Both liberal Justice Elina Kagan and conservative Justice Neil Gorsuch 0:16:25.880 --> 0:16:28.640 seemed to be on the same page, saying that we 0:16:28.720 --> 0:16:31.320 don't treat some religions better than others. 0:16:31.840 --> 0:16:35.160 Yeah. So we have a well established principle in American 0:16:35.240 --> 0:16:41.360 law that legislatures are permitted to have exemptions for religious 0:16:41.360 --> 0:16:44.760 believers or religious institutions from their laws. These happen all 0:16:44.760 --> 0:16:47.760 the time, right, But one of the important qualifications is 0:16:47.800 --> 0:16:52.080 that legislators aren't allowed to discriminate among religions when they 0:16:52.160 --> 0:16:54.720 are granting these exemptions. So, you know, you couldn't have 0:16:54.920 --> 0:16:59.760 an exemption for Baptist organizations but deny it to Presbyterian ones, 0:17:00.120 --> 0:17:02.840 or an exemption for Buddhist ones but deny it to 0:17:02.920 --> 0:17:05.240 Hindu ones. You're allowed to have religious exemptions, but the 0:17:05.240 --> 0:17:09.480 exemptions themselves can't discriminate among religions. And I think Justice 0:17:09.640 --> 0:17:13.879 Kagan's concern was that the Wisconsant Court in effect had said, 0:17:13.920 --> 0:17:17.879 to count as religious, you have to be religious in 0:17:17.920 --> 0:17:20.199 a certain way. You have to be religious in a 0:17:20.240 --> 0:17:23.640 way that's kind of evangelical. Right where you're serving your 0:17:23.680 --> 0:17:28.479 own you're engaging in evangelization and proselytism. Maybe you know 0:17:28.600 --> 0:17:31.040 you're giving out food at the end of a church service, 0:17:31.040 --> 0:17:33.440 but you're requiring people to attend church beforehand. There was 0:17:33.480 --> 0:17:35.639 constant Court had a premise that I think all the 0:17:35.720 --> 0:17:39.280 justices were uneasy with, namely that it was appropriate for 0:17:39.359 --> 0:17:42.600 a secular court to say, you know, if you're not 0:17:42.680 --> 0:17:46.399 engaging in proselytism, then you're just doing secular stuff. But 0:17:46.520 --> 0:17:49.400 from the perspective of Catholic Charities, you know, when it's 0:17:49.520 --> 0:17:53.320 feeding the hungry, or clothing the naked, or housing the unsheltered, 0:17:53.440 --> 0:17:56.480 it's still engaging in religious activity. And to be clear, 0:17:56.600 --> 0:18:00.800 the Catholic Charities position is not that any time institution 0:18:01.080 --> 0:18:04.879 claims it's religious, it should get an exemption. Everybody acknowledges 0:18:04.960 --> 0:18:07.879 that courts are allowed to ask whether the religious claims 0:18:07.880 --> 0:18:12.040 are sincere, and everyone agrees that it is permissible to 0:18:12.200 --> 0:18:15.960 distinguish between religious organizations on the one hand and secular 0:18:16.000 --> 0:18:19.240 ones on the other. But where the justices got nervous 0:18:19.600 --> 0:18:22.520 was the way the Wisconstant courts seemed to almost engage 0:18:22.520 --> 0:18:25.919 in a little bit of armchair theology when it decided 0:18:25.960 --> 0:18:28.240 that in order to be i think the word to 0:18:28.359 --> 0:18:31.840 use was typically religious, you had to exercise your religion 0:18:31.840 --> 0:18:34.560 in a certain way. And so Justice Kagan, for example, says, well, 0:18:34.560 --> 0:18:37.800 you know, look, in Judaism, a lot of what we 0:18:37.880 --> 0:18:40.200 do when we're active in the world is not engage 0:18:40.240 --> 0:18:42.720 in proselytism. That's not one of the things that we do. 0:18:42.760 --> 0:18:45.200 But we still do exercise our religion when we're providing 0:18:45.240 --> 0:18:47.480 various social services. So that was clearly a theme that 0:18:47.520 --> 0:18:49.840 she was focusing on. And there was also a theme 0:18:49.880 --> 0:18:52.880 in the argument not quite as prominent as this discrimination theme, 0:18:52.920 --> 0:18:55.640 I think, but it was still there that Wisconsin's rule 0:18:56.000 --> 0:19:00.520 had kind of a coercive effect of basically pressuring religious 0:19:00.560 --> 0:19:04.199 institutions to organize themselves in a certain way, because the 0:19:04.240 --> 0:19:06.959 Wisconsin rule was one that said, if a charity is 0:19:07.040 --> 0:19:10.840 separately incorporated from the church itself, then it's going to 0:19:10.880 --> 0:19:13.679 be treated differently than if it's kind of integrated into 0:19:13.840 --> 0:19:16.440 the religious institution, and so the concern was that that 0:19:16.480 --> 0:19:20.200 regime would kind of pressure religious organizations to change their structures. 0:19:20.240 --> 0:19:22.600 But I think the most straightforward part of the case, 0:19:22.640 --> 0:19:24.399 and I think this is what the lawyer for Catholic 0:19:24.440 --> 0:19:27.040 Charity was really leaning on, is that it's a straight 0:19:27.080 --> 0:19:31.199 up black letter rule that governments can't discriminate among religions 0:19:31.359 --> 0:19:35.159 when they are crafting their accommodations. And the Wisconsin Supreme 0:19:35.200 --> 0:19:39.159 Court adopted an interpretation that appears to treat some religions 0:19:39.200 --> 0:19:42.800 as being more authentically religious than others. So I suspect 0:19:42.880 --> 0:19:44.320 the Supreme Court's going to reverse that. 0:19:44.680 --> 0:19:47.359 What was the best argument you think the state put 0:19:47.440 --> 0:19:49.280 forward to defend its claim? 0:19:49.680 --> 0:19:52.399 Maybe two things are worth emphasizing. That one claim the 0:19:52.440 --> 0:19:54.680 state made, but I don't think the justices were moved 0:19:54.720 --> 0:19:57.520 by it was that, look, the language in the Wisconsin 0:19:57.600 --> 0:20:00.359 statute is a lot like the language that appears in 0:20:00.359 --> 0:20:03.399 a whole bunch of other religious exemptions, and so the 0:20:03.760 --> 0:20:06.000 concern that the state was raising was like, if you 0:20:06.040 --> 0:20:08.320 interpret this language really broadly, that's going to have all 0:20:08.400 --> 0:20:11.360 kinds of sweeping effects. And the justices didn't seem as 0:20:11.440 --> 0:20:13.520 moved by that. Another argument the state made, which is 0:20:13.560 --> 0:20:16.600 completely reasonable, is that you know, in order for the 0:20:16.640 --> 0:20:19.600 state to accommodate religion, it has to have some limits 0:20:19.640 --> 0:20:22.960 on that accommodation. Otherwise that reduces the incentive of the 0:20:23.000 --> 0:20:25.040 state to accommodate religion at all, which would be a 0:20:25.080 --> 0:20:27.199 perverse effect. But I think the justices were able to 0:20:27.240 --> 0:20:29.640 respond to that by saying, we agree with you. There 0:20:29.680 --> 0:20:32.120 can be limits on the exemptions. Again, you can make 0:20:32.119 --> 0:20:34.760 sure that the claimants are sincere, and you can make 0:20:34.800 --> 0:20:38.240 sure that they are religious as opposed to secular or 0:20:38.280 --> 0:20:41.000 philosophical or what have you. But what you can't do 0:20:41.440 --> 0:20:45.520 is adopt the definition of religion, which in effect picks 0:20:45.520 --> 0:20:49.400 and chooses among different religions, and I suspect will get 0:20:49.400 --> 0:20:52.840 a pretty consensus ruling from the justices on that point. 0:20:53.040 --> 0:20:57.040 Justice Barrett raised the question of how far the exemptions 0:20:57.080 --> 0:20:59.720 would go, saying, one of the problems here is figuring 0:20:59.720 --> 0:21:02.679 out what the line is. Some say there could be 0:21:02.760 --> 0:21:08.040 broad ramifications if the Justice's side with Catholic charities here. 0:21:08.520 --> 0:21:10.439 I mean, I think she was raising that issue and 0:21:10.760 --> 0:21:13.320 was right to, because anytime you have an exemption from 0:21:13.359 --> 0:21:15.280 a law, there's going to be questions about how far 0:21:15.359 --> 0:21:19.160 the exemption goes. And it is true that in American law, 0:21:19.280 --> 0:21:22.479 you know, we don't really have a clear definition of 0:21:22.520 --> 0:21:25.040 what is or is not religion. But I think that 0:21:25.119 --> 0:21:29.040 the lawyer for Catholic Charities was able to respond just 0:21:29.080 --> 0:21:33.040 by assuring Justice Barrett that in this particular case, in 0:21:33.200 --> 0:21:36.919 order to correct the error that there wis constant court made, 0:21:37.000 --> 0:21:39.320 you don't actually have to issue a very broad ruling. 0:21:39.400 --> 0:21:42.280 You don't have to say again that this religious exemption 0:21:42.840 --> 0:21:47.680 covers any entity that conceivably claims to be religious. It's 0:21:47.720 --> 0:21:51.000 a more narrowed and precise argument than that. It's that 0:21:51.200 --> 0:21:55.199 when the state is engaging in crafting an exemption, it 0:21:55.240 --> 0:21:58.400 can't do so in a way that discriminates among religions. 0:21:58.400 --> 0:22:01.439 So that non discrimination rule, which is the key to 0:22:01.480 --> 0:22:04.480 this case, that would prevent this case from going off 0:22:04.520 --> 0:22:07.000 into some of the concerns that the state raised about 0:22:07.000 --> 0:22:09.440 how you know the exemption, would swallow the rule itself. 0:22:09.600 --> 0:22:12.720 It is possible to accommodate religion and to draw boundaries 0:22:12.760 --> 0:22:15.879 around religion without doing so in a way that discriminates 0:22:16.040 --> 0:22:17.760 among different religions. 0:22:18.480 --> 0:22:21.240 I think most people who listen to the oral arguments 0:22:21.280 --> 0:22:25.080 came to the same conclusion that the justices would rule 0:22:25.200 --> 0:22:28.400 in favor of Catholic Charities. What's your take. 0:22:29.080 --> 0:22:33.440 It seems like most, perhaps even all of the justices 0:22:33.640 --> 0:22:36.920 were pretty skeptical of what the Wisconsin Court had done. 0:22:37.000 --> 0:22:39.919 So it does seem pretty likely that the Catholic Charities 0:22:39.960 --> 0:22:42.560 position is going to win out here. You know, people 0:22:42.600 --> 0:22:44.960 sometimes forget that in the Supreme Court, whatever else they 0:22:45.040 --> 0:22:48.479 might be divided by a lot of these religious freedom 0:22:48.520 --> 0:22:52.960 cases are not divided red versus Blue, Republican versus Democrat. 0:22:53.000 --> 0:22:55.199 There are a fair number of cases that are you know, 0:22:55.320 --> 0:22:57.560 unanimous or close to it. And this might be another 0:22:57.600 --> 0:22:59.159 one is that because. 0:22:58.920 --> 0:23:02.520 There are seven Catholic on the Court. I asked that facetiously, 0:23:02.760 --> 0:23:06.800 but that number of justices of one religion seems unusual. 0:23:06.960 --> 0:23:09.600 I've written a few things about that and how that happened. Yeah, 0:23:09.800 --> 0:23:11.960 especially when one thinks back that, you know, there were 0:23:12.040 --> 0:23:14.880 zero for the first seventy years or so, and then 0:23:15.080 --> 0:23:17.240 I don't think we had a situation where we had 0:23:17.359 --> 0:23:19.399 more than one on the court until you know, the 0:23:19.480 --> 0:23:23.120 nineteen eighties. Perhaps, so that is a change. But America's demographics, 0:23:23.200 --> 0:23:26.800 religious demographics educational demographics have changed a lot, so maybe 0:23:26.800 --> 0:23:27.639 that's part of the story. 0:23:28.040 --> 0:23:30.639 This is the first case involving religion that the Court 0:23:30.680 --> 0:23:33.400 has heard in about two years, and this term there 0:23:33.400 --> 0:23:37.280 are three religion cases. Do you see a trend or 0:23:37.480 --> 0:23:40.719