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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: The Supreme Court stripped the Securities and Exchange Commission of

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Speaker 1: a major tool in fighting securities fraud in a decision

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Speaker 1: that could also have far reaching effects on other regulatory agencies.

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Speaker 1: In a six to three vote down ideological lines, The

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Speaker 1: Justice is ruled today that people accused of fraud by

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Speaker 1: the sec have the constitutional right to a jury trial

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Speaker 1: in federal court, and that the agency's use of in

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Speaker 1: house proceedings violates the Constitution. During the oral arguments, Justice

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Speaker 1: Brett Cavanaugh expressed concerns about the agency's use of in

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Speaker 1: house tribunals.

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Speaker 2: That seems problematic to say the government can deprive you

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Speaker 2: of your property, your money, substantial sums in a tribunal

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Speaker 2: that is at least perceived as not being impartial.

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Speaker 1: The ruling could ripple across the government, potentially affecting other

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Speaker 1: agencies like the FTC, the EPA, and the Agriculture Department.

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Speaker 1: Joining me is Anthony Sabino, a professor in the Department

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Speaker 1: of Law the Peter J. Tobin College of Business at

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Speaker 1: Saint John's University. This was one of the cases we've

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Speaker 1: been waiting for Anthony tell us why it's important.

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Speaker 3: Well, the most important thing about this case June and

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Speaker 3: where it will resonate is this it's a very important

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Speaker 3: preservation of the right to jury trial for all Americans.

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Speaker 3: And that's why this case will have repercussions beyond the

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Speaker 3: esoteric field of securities litigation securities enforcements. Congress back in

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Speaker 3: the aftermath of the Great Recession gave the Security Ties

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Speaker 3: and Exchange Commission expanded powers to bring enforcement actions and

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Speaker 3: to seek civil penalties against malefactors on Wall Street. Okay,

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Speaker 3: and again a laudable goal to be sure and surrey

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Speaker 3: then as it is now. However, what Congress forgot was

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Speaker 3: the fact that when you accuse someone of fraud, they

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Speaker 3: are entitled to a jury trial under the Seventh Amendment.

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Speaker 3: The Congress had, in its wisdom, directed that such actions

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Speaker 3: be brought or could be brought by the SEC before

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Speaker 3: they are in house And I emphasize in house administrative

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Speaker 3: lord judges. And obviously the SEC favors that forum because

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Speaker 3: these are the ALGs who work for the Commissioner. And

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Speaker 3: I'm not cas dispersions upon their neutrality or their abilities,

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Speaker 3: but the bottom line is they are an in house

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Speaker 3: adjudicative body. What the Court said today and again a

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Speaker 3: very eloquent, very area died opinion by Chief Justice Roberts,

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Speaker 3: is that now hold on a second, Okay, these folks

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Speaker 3: are entitled to a jury trial. Why because securities fraud

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Speaker 3: is a subspecies of fraud generally speaking, generic fraud, and

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Speaker 3: most especially in the fact that it is a subspecies

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Speaker 3: of common law fraud, and common law fraud is something

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Speaker 3: where you have always had since before there was in America,

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Speaker 3: and entitlements to a trial by a jury of your peers.

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Speaker 3: And in Congress, in trying to redirect this away from

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Speaker 3: a jury trial, violated the Constitution. And you see what's

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Speaker 3: really a wonderful discussion and hence its historical value and

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Speaker 3: its presidential value in the Chief Justice talking about how

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Speaker 3: the right to a jury trial was taken away from us,

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Speaker 3: stripped away from us by King George the third. It

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Speaker 3: was one of the precipitating factors in the American Revolution.

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Speaker 3: That's why Jefferson discussed in the Declaration of Independence. That's

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Speaker 3: why it's the seventh amendments of the Bill Rights. So

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Speaker 3: it's very much embedded in the fabric of American liberty.

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Speaker 3: Now taking that and looking at securities fraud again as

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Speaker 3: a subspecies of fraud securities for in this country since

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Speaker 3: the thirty three and thirty four Acts were promulgated in

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Speaker 3: those years under FDR's new Deal, those laws have always

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Speaker 3: borrowed liberally from common law traditions. So once again, security's

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Speaker 3: fraud is simply a branch of common law fraud. And

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Speaker 3: as in fact the Chief Justice points out, and he

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Speaker 3: uses that pity observations the Court has said before. In

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Speaker 3: Congress trans plants something from the common law to modern statutes,

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Speaker 3: it takes the old soil with it. And that's exactly

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Speaker 3: what happened here in creating the securities for provisions. Basically,

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Speaker 3: Congress said, okay, let's take common law fraud and all

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Speaker 3: of its elements, and now let's simply couch that in

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Speaker 3: terms of when you commit fraud in a securities transaction.

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Speaker 3: But once again, it's a transplant, and the old soil,

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Speaker 3: as the Chief pointed out today, goes with it. And

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Speaker 3: for that reason, if you're going to try someone in

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Speaker 3: any other kind of fraud June, if you're going to

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Speaker 3: accuse someone in any state or federal court of fraud,

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Speaker 3: you have to prove the traditional elements to the satisfaction

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Speaker 3: of a jury of that defendants peers. So too, is

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Speaker 3: the exact same here. Not to forgive me a bureaucrat

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Speaker 3: who is an alj for the SEC.

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Speaker 1: Well, what was the SEC's position here for its use

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Speaker 1: of in house tribunals?

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Speaker 3: The SEC, in defense of its right to bring folks

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Speaker 3: before one of their in house aljs and not before

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Speaker 3: or a jury, basically said well, no, no, no, wait, wait,

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Speaker 3: this is something different here. This is a penalty created

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Speaker 3: newly out of whole cloth by Congress, and it really

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Speaker 3: is in the realm of public rights. Well, what the

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Speaker 3: heck of public rights? Public rights are rights or remedies

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Speaker 3: that have been created statutorily by Congress, and the Court

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Speaker 3: has long recognized that. Well, if Congress gives you something

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Speaker 3: in that realm, then it's not from the common law.

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Speaker 3: It's something new. So you know what, we can allow

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Speaker 3: this to be adjudicated by an in house alj okay,

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Speaker 3: someone or somebody other than a jury. Well the Supreme

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Speaker 3: Court said, no, that doesn't wash, and it referred to

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Speaker 3: one of my more favorite cases from the bankruptcy realm

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Speaker 3: called Grand Financierra that said, Okay, hold on a second.

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Speaker 3: You have to examine the right, the remedy that's involved,

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Speaker 3: and if it truly is a public right, then yeah,

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Speaker 3: you probably don't have a jury trial, right, But if

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Speaker 3: it's not, if it's based upon the common law, they're

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Speaker 3: entitled to a jury trial. And Grand Finn, the question

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Speaker 3: was if you if use someone in a bankruptcy case

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Speaker 3: of fraudulently emphasis unfraudulently conveying property away from a debtor

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Speaker 3: in order to deprive creditors of payments. The bankruptcy Code

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Speaker 3: is well known for adjusting the relationship between debtors and creditors,

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Speaker 3: and a lot of it is statutory and rights given

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Speaker 3: to you public rights given by Congress. Okay, but however,

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Speaker 3: some points of bankruptcy low like we saw in Grand

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Speaker 3: Finn saying no, no, no, this is just transplanting the

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Speaker 3: old soil of fraudran conveyance under the common law. So

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Speaker 3: guess what jury trial again, same thing here, relying upon

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Speaker 3: Grand Finn for its analysis. The chief said, Nope, fraud

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Speaker 3: is fraud and you get a jury and that's the

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Speaker 3: way it is.

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Speaker 1: So you wholly agree with the reasoning in the Chief's

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Speaker 1: majority opinion.

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Speaker 3: Absolutely, and I also agree with Justice Gorsuch concurrence, which

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Speaker 3: is quite good because he also talks about the historical

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Speaker 3: backgrounds here the right to a jury trial, etc. And

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Speaker 3: he makes a number of points here in that regard that,

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Speaker 3: and again he has a beautiful turn of phrase here

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Speaker 3: where he talks about how the Constitution builds high walls

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Speaker 3: and clip distinctions to safeguard individual liberty, and again the

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Speaker 3: jury trial is one of those. But also what Justice

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Speaker 3: Goorcious points out, and thank you, Jun, because this was

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Speaker 3: going to be our next point. Again, there's going to

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Speaker 3: be a lot of hand ringing, and no doubt Storm

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Speaker 3: won wrong about oh, this is going to cripple the

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Speaker 3: SEC's enforcement efforts. Well, you know, I'm sorry, that's a

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Speaker 3: lot of nonsense and basically just don't believe me on it.

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Speaker 3: Look at the very end of Justice gorcious Concurrence where

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Speaker 3: he says the SEC has lots of enforcement tools or right,

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Speaker 3: all we're saying here is when you sue the civil penalties,

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Speaker 3: then you have to go to a jury. For other remedies,

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Speaker 3: the SEC will probably still be able to go before

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Speaker 3: an alj And in fact, in that realm for example,

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Speaker 3: there are remedies that don't require a jury trial. One

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Speaker 3: of them is restitution, where you return money to to

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Speaker 3: frauded investors, stockholders, what have you. Another one is disgorgmen

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Speaker 3: of legal profits. And in recent years there was the

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Speaker 3: LEU opinion by Justice Sotobayor that recognize that these are

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Speaker 3: equitable remedies and June, as we well know, legal remedies

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Speaker 3: legal causes of action, you have to have a jrewury.

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Speaker 3: That's the Seventh Amendment. Equitable remedies such as we see

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Speaker 3: in the Bankruptcy Code sometimes, as we see sometimes under

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Speaker 3: securities laws, you don't need a jury. It's equitable. So

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Speaker 3: the SEC can today and they shall in the future

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Speaker 3: bring that before the Administrative Law Judge in house and

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Speaker 3: continue the same way they have in the past. So

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Speaker 3: bottom line on that particular point, for those who say

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Speaker 3: this is going to put a dent in SEC enforcements

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Speaker 3: and this is going to be giving license to big guys,

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Speaker 3: my simple answer is no, you're wrong. Okay, the SEC

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Speaker 3: is going to continue to jug along. The major difference is,

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Speaker 3: and again it burdens them slightly, but rightly so, and

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Speaker 3: for good cause. They're going to have to now plead

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Speaker 3: their case before a judge and a dreury in a

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Speaker 3: federal district quarter.

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Speaker 1: This case was sixty three down ideological lines. Why was

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Speaker 1: this liberals conservatives?

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Speaker 3: I really don't think of it that way. As you

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Speaker 3: rightly said, I cannot disagree that you see the so

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Speaker 3: called liberal wing of court. So to Mayor, Jackson and

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Speaker 3: Kagan dissenting here, that is their view about public rights

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Speaker 3: and congressional power. And it's a little bit over expansive. Indeed,

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Speaker 3: in what I've seen from Justice so to Mayor's descent

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Speaker 3: here is she's talking about, basically, the Court is depriving

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Speaker 3: the Article two branch, the executive branch, in the form

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Speaker 3: of the SEC, their rightful power to enforce the law

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Speaker 3: and to adjudicate it internally. And I appreciate that argument,

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Speaker 3: but I think it's ill considered, and I disagree respectfully

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Speaker 3: as follows, the majority is right and with all respect

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Speaker 3: the minority is wrong, because what the majority is saying is, look,

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Speaker 3: what we're doing is this, We're making sure that the

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Speaker 3: executive branch, embodied in this administrative agency, the SEC, does

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Speaker 3: not transgress the Constitution, does not step its bounds and

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Speaker 3: deprive Americans of a jury trial. It's not the self

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Speaker 3: aggrandizement of the Article three courts by saying, oh, now

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Speaker 3: you have to come here to give you a jury trial. No,

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Speaker 3: it's a recognition of the liberty of the American people

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Speaker 3: and anyone so accused of one of these heinous crimes

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Speaker 3: that hey, you're accusing me. Well guess what, I have

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Speaker 3: a jury trial right and the right not to be

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Speaker 3: tried by some administrative person within the executive branch, the

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Speaker 3: Article two branch. So I really think that's the point

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Speaker 3: of contention there. It's a different point of view. But

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Speaker 3: again I say with respect, it's the other way round.

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Speaker 3: It's not depriving the sec of power. It is making

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Speaker 3: sure that the Article three branch, the federal courts do

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Speaker 3: what they constitutionally are bound to do supposed to do,

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Speaker 3: which is oversea jury trial rights. But you, most of all,

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Speaker 3: it's not just about separation of powers and checks and balances.

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Speaker 3: It's about the power of the American people against the government.

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Speaker 3: And it is if you or I or anybody else

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Speaker 3: is accused of, Hey you swindled somebody in stock deal.

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Speaker 3: Oh you think I'm a crook? Oh you think I

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Speaker 3: swindled somebody. That's called fraud. Is it part of that

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Speaker 3: sub branch of securities for it? Yeah, guess what. Okay,

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Speaker 3: if you accuse me of swindling you in a land transaction,

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Speaker 3: selling you my car, Okay, I get a jury trial.

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Speaker 3: It's the same thing here, all right. It's not about

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Speaker 3: just the tension between the branches of government. It's about

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Speaker 3: the tension between the people and government and preserving people's

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Speaker 3: rights to a jury trial. And that's why to me,

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Speaker 3: this case is, of course it's the securities low case.

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Speaker 3: No deny that. But you're going to see this discussion

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Speaker 3: resonate and be repeated again when we talk about preserving

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Speaker 3: the sanctity, if you will, of the jury trial and

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Speaker 3: all sorts of other proceedings. And that's why this will

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Speaker 3: have ramifications for administrative proceedings, enforcement actions in other branches

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Speaker 3: in the federal system as well. Be it anti trust

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Speaker 3: with the FTC, be a consumer products with FLONG, the

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Speaker 3: other agencies. So this thing has traction, that's for sure.

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Speaker 1: Coming up next, does this decision indicate how the court

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Speaker 1: will rule in one of the most high stakes cases

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Speaker 1: of the term. I'm June Grosso and you're listening to

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Speaker 1: Bloomberg in his six to three vote down ideological lines

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Speaker 1: the Supreme Court rule that people accused of fraud by

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Speaker 1: the sec have the constitutional right to a jury trial

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Speaker 1: in federal court. The case is among several this term

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Speaker 1: likely to have broad implications for federal regulators, as conservatives

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Speaker 1: and business interests are urging the Court to constrict the

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Speaker 1: power of the so called administrative state, and during oral

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Speaker 1: arguments in this case, Chief Justice John Roberts expressed his

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Speaker 1: concerns about the growing power of federal regulators.

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Speaker 4: The extent of impact of government agencies on daily life

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Speaker 4: today is enormously more significant than it was fifty years ago.

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Speaker 1: The Court's six conservatives have already reined in federal agency power,

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Speaker 1: including a decision last year that sharply limited the EPA's

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Speaker 1: ability to please water pollution in wetlands. I've been talking

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Speaker 1: to Anthony Sabino, a professor in the Department of Law

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Speaker 1: at the Peter J. Tobin College of Business at Saint

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Speaker 1: John's University. During the oral arguments, the Justice Department said

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Speaker 1: more than two dozen agencies now impose penalties through administrative proceedings,

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Speaker 1: and then only some of those have the option of

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Speaker 1: going to federal court instead, right.

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Speaker 3: And you see that's one of the keys. Okay. And

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Speaker 3: I understand the government's position as much as I disagree

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Speaker 3: with it, and the Court has said, well, sorry, but

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Speaker 3: you're wrong. He's part of the evolution of tarquesy. Now

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Speaker 3: the battle is going to shift. We're going to see

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Speaker 3: increased emphasis and therefore increase litigation over the precise countours

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Speaker 3: of what are remedies. The Chief Justice made a point,

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Speaker 3: a very powerful point, that the expanded enforcement powers of

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Speaker 3: the Securities and Exchange Commission, which now must be subjected

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Speaker 3: to a jury trial, not to an SEC in house

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Speaker 3: o ja. Those are civil penalties that it's designed to be,

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Speaker 3: and I quote them compunitive in nature to punish and

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Speaker 3: to deter. And the Court pointed out that the SEC,

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Speaker 3: if it wins, it doesn't have to give the money

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Speaker 3: back to investors. So that's a purely punitive measure. You

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Speaker 3: have to give someone a jury trul right when you

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Speaker 3: seek that kind of civil penalty. Once again, as I

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Speaker 3: mentioned earlier, the SEC has the power to seek other

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Speaker 3: compensation if you will. This is what just scores It

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Speaker 3: mentions at the very end of his concurrence in the

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Speaker 3: form of disgorgement, or you made some money, give it back, Okay, restitution,

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Speaker 3: you defrauded John Smith, give the money back, et cetera.

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Speaker 3: So there's another branch of remedies that are not penal

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Speaker 3: in nature, are not punitive, they are equitable, and the

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Speaker 3: Supreme Court, when they're faced with that, I have no doubt.

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Speaker 3: And again the groundwork was already laid by Soto Mayor

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Speaker 3: a couple of years ago in the Liu case. Is

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Speaker 3: that Yeah, that can be brought before an administrative law judge,

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Speaker 3: that can be in how the sec and you do

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Speaker 3: not have a right to a jury trial. So once again,

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Speaker 3: this is going to evolved. Your case is going to evolve.

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Speaker 3: It's going to branch off. And I fully expect three

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Speaker 3: years from now, Okay, you and I are going to

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Speaker 3: be having a conversation about another Supreme Court landmark in

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Speaker 3: twenty twenty seven that defines the contours between civil penalties

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Speaker 3: where them is a mandatory jury trail right and an

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Speaker 3: equitable remedy such as disforgment or restitution where nope, okay, equitable.

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Speaker 3: So therefore there's no jury.

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Speaker 1: I'm going to have to get a calendar that goes

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Speaker 1: farther than my current one.

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Speaker 3: You'll die both.

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Speaker 1: So one of the big cases we're waiting for involves

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Speaker 1: the Chevron doctrine and whether that forty year old doctrine

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Speaker 1: will survive or not. It basically means a deference to

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Speaker 1: agencies when regulations are ambiguous. Do you think the decision

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Speaker 1: in this SEC case indicates how the Court will rule

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Speaker 1: in that case?

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Speaker 3: To me, it does. To me, it does once again,

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Speaker 3: and I hate to, you know, pain with a broad brush.

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Speaker 3: With respect to ideologies, the nine justice they're all equal

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Speaker 3: up there. But once again, if I engage in a

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Speaker 3: little political punditry, here we see the division of the

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Speaker 3: justices six to three here today will the Court move

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Speaker 3: along those same lines in Loco Bright, which we hope

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Speaker 3: to get tomorrow possibly, And again I perceive your point,

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Speaker 3: and I agree completely. One of the aspects of darcaesia

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Speaker 3: is this. It's a demonstration that the Constitution must be honored,

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Speaker 3: and sometimes that means the necessity of curtailing the power

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Speaker 3: of administrative agencies, whichever agency that may be, whether it's

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Speaker 3: the SEC here or the Federal Fish and Wildlife Fishery

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Speaker 3: Service in locobright, Okay, So to me, this is in

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Speaker 3: many respects a precursor a flair going up, if you will,

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Speaker 3: And I think they are hints of what might happen

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Speaker 3: tomorrow the next couple of days with respect to local

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Speaker 3: Bright then comes down. And again the whole point is this,

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Speaker 3: and this is why I see the linkage, if you will,

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Speaker 3: the connection, Jarkasy is about honoring the Constitution, its text

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Speaker 3: and the Constitutional plan and saying Americans have a right

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Speaker 3: to a jury trial when they're accused of certain wrongdoing.

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Speaker 3: Loper Bright in terms of whatever it does with Chevron

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Speaker 3: and whatever way it goes, should be about honoring the Constitution,

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Speaker 3: saying what are the boundaries upon administrative agencies, unelected officials,

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Speaker 3: administrative agencies with regard to the American people. So almost

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Speaker 3: the fourth of July. I'm not trying to wrap myself

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Speaker 3: in the flag, but I must say this, all right,

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Speaker 3: This is about American liberty. This is about preserving liberty.

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Speaker 3: This is about freedom. So those are the more transcendental

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Speaker 3: issues that I see here. And bottom line is again, yeah, Jarkazy,

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Speaker 3: all right, I think this is a pretty good sign

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Speaker 3: as to what might very well transpire with lower Bright

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Speaker 3: in the next day or two.

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Speaker 1: A lot of legal experts are warning that getting rid

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Speaker 1: of the Chevron doctor trin could throw long standing regulations

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Speaker 1: into doubt. It could crimp agency power over things like

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Speaker 1: workplace conditions, drug safety, climate change, et cetera. And there

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Speaker 1: would be a deluge of lawsuits challenging agencies and regulations.

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Speaker 3: I firmly do not believe that. And if I may,

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Speaker 3: I'm going to use a word that I've heard mister

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Speaker 3: Biden use quite a lot in recent times, and that's

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Speaker 3: this mallarkey. I think that's a lot of malarkey. Okay,

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Speaker 3: Darcasey is not going to curtail the SEC's enforcement efforts.

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Speaker 3: The basic change is one of tactics, whereby you don't

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Speaker 3: go in front of an in house ostensibly friendly. If

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Speaker 3: I may say so, alj who works in the same

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Speaker 3: building with you is paid by the SEC the same way, etc.

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Speaker 3: You're going to go to an Article three judge appointed

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Speaker 3: for life. But more importantly is you're going to see

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Speaker 3: twelve ordinary American people in that jury box. So the

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Speaker 3: vector the direction of these will change someone in terms

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Speaker 3: of tactically, but still the burden is going to be

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Speaker 3: the same. June when you accuse someone of securities fraud.

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Speaker 3: You have to prove those six elements, which again differ

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Speaker 3: only slowly from the five traditional elements of commonweal fraud.

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Speaker 3: So you still have to make your case. The evidence,

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Speaker 3: burden and persuasion, et cetera with respect to the issues

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Speaker 3: that are being addressed and local vider is this. Agencies

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Speaker 3: aren't going to be curtailed if the Chevron different standard

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Speaker 3: is modified or in fact eradicated and whole apart, all

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Speaker 3: it's saying is it restores a balance. The problem that

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Speaker 3: not just I, but Justice Scalia had during his lifetime

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Speaker 3: that Justice Thomas has now with Chevron is that it

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Speaker 3: basically created an imbalance. It gave an unfair advantage to

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Speaker 3: the agencies to say, Okay, we're an agency, we're the experts,

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Speaker 3: and look where experts has gotten us in recent years.

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Speaker 3: If I may say, so, we're the experts, so you

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Speaker 3: have to listen to us. And it diminished the power

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Speaker 3: of judges to do their job, which is to judge.

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Speaker 3: So now if chefront is curtailed, modified, what have you?

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Speaker 3: It restores balance at this point in time in an

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Speaker 3: administrative case. In the case with an agency, the agency

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Speaker 3: has a clear advantage, and it's a zero sum game.

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Speaker 3: Advantage to the agency means disadvantage to the public. If

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Speaker 3: you modify sharevrun deference, now you restore balance. It's even,

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Speaker 3: as we'd like to say in sports, it's a level

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Speaker 3: playing field. Agency comes in argus the case, citizen comes in,

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Speaker 3: she argus her case. K it's all even, there's a balance.

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Speaker 1: Let's talk about the practical implications of the jocracy case.

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Speaker 1: Because it's expensive to go to trial in federal court.

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Speaker 1: So would a defendant have a choice of federal court

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Speaker 1: or an in house proceeding.

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Speaker 3: You are correct, and I'll give you the perfect anlock

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Speaker 3: for that. Antitrust trists, Okay, as we know, are incredibly complex.

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Speaker 3: They involve literally days, if not weeks of what's incredibly

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Speaker 3: forgive me boring testimony from economists and other experts. And

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Speaker 3: again case in point, the United States versus IBM, that

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Speaker 3: boondoggle which ended in no resolution whatsoever. But basically the

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Speaker 3: parties decided to the defendant. IBM said, okay, no no

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Speaker 3: jury trivel because no jury is going to sit there

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Speaker 3: for years to listen to all this boring evidence. So

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Speaker 3: parties can make a decision and say, look, all right,

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Speaker 3: this case would not be understood by the average lay person.

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Speaker 3: This case is far too arcane and complex. And also,

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Speaker 3: you know what, let's just go see the AOJ and

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Speaker 3: let her decide. And again, let me be clear, I've

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Speaker 3: spoken about the need to limit the power of aljs.

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Speaker 3: That's one of the issues which Tarkaesy bypassed, unfortunately, because

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Speaker 3: that's the one I addressed in Miamigas brief. So I'm

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Speaker 3: a little said they left that out, But I understand

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Speaker 3: the reason as you and I know. It's axiomatic. The

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Speaker 3: court need only decide as much of a case as

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Speaker 3: it needs to. So you say that Tarkaesy has a

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Speaker 3: right to a jury trial, he has to be in

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Speaker 3: front of an Article three judge, we don't need to

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Speaker 3: decide whether it is a power of removal of an ALJ.

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Speaker 3: But again, that'll be the next case. I'm looking forward

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Speaker 3: to writing that Amikas already. We'll see that in a

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Speaker 3: couple of years. But the bottom line is the key

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Speaker 3: differential Jewne is this. It's a choice. If a defendant says,

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Speaker 3: you know what, I'll go with the ALJ. And once

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Speaker 3: again I've talked about the need to check and balance

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Speaker 3: the power of administrative agencies. But I still respect the aljs.

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Speaker 3: I still respect their expertise and the job they have

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Speaker 3: to do. It's a tough job, it's a demanding job.

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Speaker 3: But in the right situation, if a mister Dracaesy or

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Speaker 3: someone like him in the days to come says, you

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Speaker 3: know what, I don't want a jury drial. Okay, the

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Speaker 3: jury's not going to understand this. It's to our canes,

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Speaker 3: too complex. I'll go with the AOJ. That's fine. The

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Speaker 3: important thing is there's a choice. There's a choice. And

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Speaker 3: once again, when you look at the mosaic, if you

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Speaker 3: will all right, and I know there's going to be

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Speaker 3: the handwringing and the nation of teeth. Oh, it's gonna

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Speaker 3: impact the agencies. It's going to handicap the agencies. It's

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Speaker 3: going to make it too more expensive. Again, the answer

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Speaker 3: for me is my opinion is no, They're still going

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Speaker 3: to have to bring their case. The difference is now,

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Speaker 3: wait a jury of defendant's peers as opposed to persuading

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Speaker 3: the single person the ALJ. So there will not be

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Speaker 3: a sea change. There will not be a fundamental change here.

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Speaker 3: SEC enforcement will go on enforcement. These other agencies will

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Speaker 3: go on again. You're simply changing your shifting direction to

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Speaker 3: persuading the jury as opposed to persuading and in house ALJ.

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Speaker 1: Well, we'll find out, perhaps as early as tomorrow, whether

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Speaker 1: the Chevron doctrine will survive. Thanks for being on the show, Anthony.

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Speaker 1: That's Anthony Sabino, a professor in the Department of Law

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Speaker 1: that Peter J. Tobin College of Business at Saint John's University.

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Speaker 1: The Supreme Court has six more cases left before it

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Speaker 1: adjourns for summer vacation. Those cases involve questions of presidential immunity,

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Speaker 1: a criminal charge used against January sixth defendants, the constitutionality

429
00:23:49,800 --> 00:23:54,560
Speaker 1: of Texas and Florida's social media laws, homelessness, and of course,

430
00:23:54,720 --> 00:23:58,200
Speaker 1: the Chevron doctrine. Coming up next on The Bloomberg Lawn Show,

431
00:23:58,600 --> 00:24:03,119
Speaker 1: The Supreme Court allows emergency abortions in Idaho for now.

432
00:24:03,880 --> 00:24:09,080
Speaker 1: This is Bloomberg. The Supreme Court confirmed today that it

433
00:24:09,200 --> 00:24:13,119
Speaker 1: will allow abortions to take place in medical emergencies in

434
00:24:13,240 --> 00:24:17,200
Speaker 1: Idaho for the time being, making official a decision that

435
00:24:17,359 --> 00:24:22,840
Speaker 1: was inadvertently posted online yesterday. Over three descents. The justices

436
00:24:22,960 --> 00:24:27,280
Speaker 1: reinstated a federal trial court order that insures hospitals in

437
00:24:27,320 --> 00:24:31,040
Speaker 1: the state can perform emergency abortions to protect the health

438
00:24:31,080 --> 00:24:33,600
Speaker 1: of the mother. The court had blocked that order in

439
00:24:33,720 --> 00:24:37,720
Speaker 1: January and allowed Idaho to fully enforce its near total

440
00:24:37,800 --> 00:24:41,760
Speaker 1: ban for five months. The court dismissed the case as

441
00:24:41,880 --> 00:24:46,159
Speaker 1: improvidently granted. The about face is at least a temporary

442
00:24:46,240 --> 00:24:51,280
Speaker 1: victory for abortion rights advocates. Doctors and hospital administrators say

443
00:24:51,320 --> 00:24:54,520
Speaker 1: the state's law was keeping them from treating women with

444
00:24:54,680 --> 00:24:58,040
Speaker 1: serious health risks, even if they had no chance to

445
00:24:58,119 --> 00:25:01,520
Speaker 1: deliver a healthy baby. Joining me is an expert in

446
00:25:01,600 --> 00:25:05,760
Speaker 1: reproductive healthcare rights, Mary Ziegler, a professor at UC Davis

447
00:25:05,840 --> 00:25:09,680
Speaker 1: Law School. So, Mary, this was three to three to three,

448
00:25:10,080 --> 00:25:13,760
Speaker 1: and the court as a whole didn't explain its decision.

449
00:25:14,160 --> 00:25:16,120
Speaker 1: So what does this stand for?

450
00:25:16,920 --> 00:25:18,800
Speaker 5: Well, I mean, I think that we have the best

451
00:25:18,880 --> 00:25:22,480
Speaker 5: clues from the the opinion offered by Justice Barrett that

452
00:25:23,000 --> 00:25:26,800
Speaker 5: the three kind of swing conservative justices believed that the

453
00:25:26,920 --> 00:25:29,400
Speaker 5: terms of the litigation had changed in what they saw

454
00:25:29,400 --> 00:25:32,359
Speaker 5: as consequential ways since the court agreed to hear the case.

455
00:25:32,760 --> 00:25:35,400
Speaker 5: And I think the three were interested in this spending

456
00:25:35,480 --> 00:25:38,159
Speaker 5: clause theory that Idaho had raised, but believed that it

457
00:25:38,200 --> 00:25:40,879
Speaker 5: had never been heard by the lower court. So I

458
00:25:40,920 --> 00:25:44,439
Speaker 5: think it stands for the proposition that maybe those justices

459
00:25:44,440 --> 00:25:47,080
Speaker 5: are willing to side with Idaho, maybe they're also interested

460
00:25:47,160 --> 00:25:49,159
Speaker 5: in some kind of what they would view as a

461
00:25:49,160 --> 00:25:52,480
Speaker 5: compromise ruling, but that in either case they weren't ready

462
00:25:52,480 --> 00:25:54,719
Speaker 5: to reach a final conclusion before the election.

463
00:25:55,359 --> 00:25:59,959
Speaker 1: The opinion by the three liberals talked about what's happened

464
00:26:00,280 --> 00:26:04,320
Speaker 1: to women in Idaho who need abortions and didn't get them,

465
00:26:04,359 --> 00:26:09,240
Speaker 1: sort of echoing what Justice Kagan said during the oral arguments.

466
00:26:09,640 --> 00:26:11,000
Speaker 1: How bad has it been in Idaho?

467
00:26:11,400 --> 00:26:14,480
Speaker 5: Yeah, I mean, from what I've gathered, there's evidence that

468
00:26:14,480 --> 00:26:17,640
Speaker 5: there have been significant harms in Idaho, that patients have been,

469
00:26:17,960 --> 00:26:22,280
Speaker 5: you know, airlifted to other states in a handful of circumstances.

470
00:26:22,600 --> 00:26:25,040
Speaker 5: We know that there have been knock on effects in

471
00:26:25,119 --> 00:26:28,400
Speaker 5: terms of people not choosing Idaho for their medical residencies,

472
00:26:28,440 --> 00:26:31,800
Speaker 5: that having further effects on access to care for pregnant

473
00:26:31,840 --> 00:26:34,919
Speaker 5: patients across the state. I think, obviously, in terms of

474
00:26:35,119 --> 00:26:38,159
Speaker 5: scholarly documentation of that were just at the beginning, But

475
00:26:38,400 --> 00:26:41,680
Speaker 5: there is data, I think, including data cited by Justice

476
00:26:41,720 --> 00:26:45,320
Speaker 5: Jackson in her opinion, to the effects that even allowing

477
00:26:45,359 --> 00:26:47,320
Speaker 5: the law to go and to effect when it did

478
00:26:47,400 --> 00:26:48,880
Speaker 5: has had real world effects.

479
00:26:49,200 --> 00:26:52,760
Speaker 1: And so it was only the three liberals who said

480
00:26:52,760 --> 00:26:58,040
Speaker 1: that Imtala requires hospitals to provide abortions, that Idaho's law

481
00:26:58,119 --> 00:27:02,000
Speaker 1: prohibits that you know, Idaho laws preempted by the federal law.

482
00:27:02,560 --> 00:27:05,560
Speaker 5: Yeah, I mean, I think Justice Jackson clearly wanted to

483
00:27:05,600 --> 00:27:08,520
Speaker 5: reach that conclusion. The other two liberals were willing to

484
00:27:08,960 --> 00:27:11,600
Speaker 5: go along with the idea that it was okay to

485
00:27:11,640 --> 00:27:15,640
Speaker 5: defer a decision essentially that the petition had been improvidently Granted,

486
00:27:16,040 --> 00:27:19,240
Speaker 5: it's probably fair to assume that that was a compromise

487
00:27:19,320 --> 00:27:21,840
Speaker 5: on the part of those liberal justices. But Justice Kagan

488
00:27:21,880 --> 00:27:25,399
Speaker 5: did take it upon herself to respond to some of

489
00:27:25,440 --> 00:27:29,360
Speaker 5: the conservative justices points on preemption, and we can certainly

490
00:27:29,400 --> 00:27:32,400
Speaker 5: gather from that that she doesn't think that the preemption

491
00:27:32,560 --> 00:27:36,040
Speaker 5: arguments that Idaho had raised were very good.

492
00:27:36,680 --> 00:27:40,560
Speaker 1: And tell us about the dissent by Alito.

493
00:27:40,359 --> 00:27:42,720
Speaker 5: Well, there was a lot there, and the Justice Alito

494
00:27:42,960 --> 00:27:46,200
Speaker 5: wrote about the spending clause argument. He also spent a

495
00:27:46,240 --> 00:27:48,359
Speaker 5: lot of time on the fact that Emtala uses the

496
00:27:48,440 --> 00:27:53,320
Speaker 5: language unborn child, which Alito suggested created express protection for

497
00:27:53,480 --> 00:27:55,680
Speaker 5: the unborn child, as he put it, and would by

498
00:27:55,720 --> 00:28:00,280
Speaker 5: definition mean no emergency access to abortion for patients. That's

499
00:28:00,280 --> 00:28:04,639
Speaker 5: obviously an interesting and significant conclusion because the statute just

500
00:28:04,760 --> 00:28:07,400
Speaker 5: used the word on worn chet didn't say anything more

501
00:28:07,440 --> 00:28:11,720
Speaker 5: about unborn children than that. So Alito's conclusion seems to

502
00:28:11,720 --> 00:28:14,880
Speaker 5: be if a statute uses language like that, it suggests

503
00:28:14,920 --> 00:28:17,920
Speaker 5: a belief that an unborn child is an equal rights

504
00:28:17,960 --> 00:28:21,199
Speaker 5: holding person or patient, at least for statutory purposes. So

505
00:28:21,640 --> 00:28:25,640
Speaker 5: that's a pretty revealing reading of the statute again, even

506
00:28:25,680 --> 00:28:28,359
Speaker 5: though that isn't going to be the legal upshot, at

507
00:28:28,440 --> 00:28:29,080
Speaker 5: least for now.

508
00:28:29,359 --> 00:28:33,560
Speaker 1: Well, Alito has suggested in oral arguments and elsewhere this

509
00:28:33,800 --> 00:28:36,720
Speaker 1: concept of fetal personhood before, hasn't he.

510
00:28:37,280 --> 00:28:40,840
Speaker 5: Yeah, I mean he's used personhood adjacent language in dabbs,

511
00:28:40,960 --> 00:28:43,720
Speaker 5: so we know that he's been at least open to

512
00:28:43,760 --> 00:28:46,880
Speaker 5: this kind of question. He hasn't, of course, addressed constitutional

513
00:28:46,960 --> 00:28:50,000
Speaker 5: questions of personhood in the sense of the conclusion that

514
00:28:50,440 --> 00:28:54,360
Speaker 5: fetuses have Fourteenth Amendment rights clearly in any of these cases,

515
00:28:54,400 --> 00:28:57,880
Speaker 5: but the way he's approaching the question certainly suggests that

516
00:28:57,920 --> 00:28:59,719
Speaker 5: he may be open to that kinde of argument.

517
00:29:00,240 --> 00:29:03,680
Speaker 1: He also chided the Court he said, the Court has

518
00:29:03,760 --> 00:29:07,360
Speaker 1: simply lost the will to decide the easy, but emotional

519
00:29:07,400 --> 00:29:12,400
Speaker 1: and highly politicized question that the case presents. And then

520
00:29:12,520 --> 00:29:15,880
Speaker 1: Katanji Brown Jackson on the other side, the Court is

521
00:29:15,920 --> 00:29:19,520
Speaker 1: not willing to make a decision here. It's punting, and

522
00:29:19,560 --> 00:29:22,360
Speaker 1: she pointed out that even though this means that there's

523
00:29:22,400 --> 00:29:24,640
Speaker 1: no clarity in the law, no clarity for.

524
00:29:24,640 --> 00:29:28,040
Speaker 5: Doctors, right, I mean, you do see that coming from

525
00:29:28,320 --> 00:29:32,600
Speaker 5: both Jackson and the Conservatives, essentially that the Court took

526
00:29:32,640 --> 00:29:36,200
Speaker 5: this case and should have had the courage to definitively

527
00:29:36,600 --> 00:29:40,320
Speaker 5: resolve it. Of course, you know, neither of those wings

528
00:29:40,320 --> 00:29:42,840
Speaker 5: of the court has a power to make that call.

529
00:29:42,920 --> 00:29:45,520
Speaker 5: Though it's a reminder of kind of where the power

530
00:29:45,720 --> 00:29:47,440
Speaker 5: in the court lies at the moment.

531
00:29:48,120 --> 00:29:52,040
Speaker 1: The Justices took two abortion cases this term, and in

532
00:29:52,160 --> 00:29:54,680
Speaker 1: neither did they reach the merits. In the mif of

533
00:29:54,720 --> 00:29:58,840
Speaker 1: pristone abortion pill case, they went off on procedural grounds. So,

534
00:29:59,440 --> 00:30:02,120
Speaker 1: I mean, will I take the case, especially this case

535
00:30:02,160 --> 00:30:04,320
Speaker 1: where it was an unusual procedure.

536
00:30:04,720 --> 00:30:08,040
Speaker 5: Well, I think that it's hard to know why the

537
00:30:08,080 --> 00:30:10,720
Speaker 5: Court took the case. I imagine that at least at

538
00:30:10,720 --> 00:30:13,800
Speaker 5: some point the conservative justices thought they had the votes

539
00:30:13,840 --> 00:30:17,520
Speaker 5: to side with Idaho and then realized that they didn't,

540
00:30:17,720 --> 00:30:20,400
Speaker 5: potentially because the oral argument in the case was such

541
00:30:20,440 --> 00:30:23,800
Speaker 5: a disaster for the state of Idaho. I think, obviously

542
00:30:23,920 --> 00:30:27,480
Speaker 5: Chief Justice Roberts has been concerned with the Court's reputation

543
00:30:27,600 --> 00:30:30,000
Speaker 5: and the damage to it in the years since Dobbs

544
00:30:30,280 --> 00:30:32,520
Speaker 5: and may have argued that the time was not right

545
00:30:32,680 --> 00:30:37,120
Speaker 5: given the procedural problems and complexities of both cases, And

546
00:30:37,200 --> 00:30:41,000
Speaker 5: he may have found a more receptive audience in Justices

547
00:30:41,080 --> 00:30:44,560
Speaker 5: Barrett and Kavanaugh than he had previously, not only because

548
00:30:44,560 --> 00:30:47,000
Speaker 5: this is an election year, but also because there were

549
00:30:47,280 --> 00:30:51,800
Speaker 5: procedural and strategic mistakes made by the conservative attorneys in

550
00:30:51,880 --> 00:30:52,880
Speaker 5: both of these cases.

551
00:30:53,560 --> 00:30:58,040
Speaker 1: So explain what happens now what this decision actually does. Well.

552
00:30:58,040 --> 00:31:01,120
Speaker 5: In the short term, this decision has effect of reinstating

553
00:31:01,120 --> 00:31:04,200
Speaker 5: an injunction that a district judge put in place in Idaho,

554
00:31:04,280 --> 00:31:08,400
Speaker 5: permitting emergency access. That litigation will continued through the Ninth

555
00:31:08,400 --> 00:31:11,600
Speaker 5: Circuit Court of Appeals. The decision does nothing to disturb

556
00:31:11,920 --> 00:31:14,120
Speaker 5: a ruling by the Fifth Circuit of Court of Appeals

557
00:31:14,200 --> 00:31:19,680
Speaker 5: upholding an injunction against the Biden administration and allowing Texas's

558
00:31:19,880 --> 00:31:23,400
Speaker 5: law to be enforced as written with its very narrow

559
00:31:23,480 --> 00:31:26,360
Speaker 5: abortion exceptions, and it doesn't do anything to change the

560
00:31:26,400 --> 00:31:29,440
Speaker 5: situation on the ground in other states with very narrow exceptions,

561
00:31:29,640 --> 00:31:34,240
Speaker 5: although there is some Impala related litigation potentially proceeding in

562
00:31:34,320 --> 00:31:37,320
Speaker 5: some other states, like Oklahoma, So essentially all of that

563
00:31:37,440 --> 00:31:39,720
Speaker 5: will continue as if none of this ever happened. The

564
00:31:39,760 --> 00:31:42,120
Speaker 5: Supreme Court may come back into the picture. Then again,

565
00:31:42,160 --> 00:31:44,480
Speaker 5: it may not, because if polls are correct and Donald

566
00:31:44,520 --> 00:31:47,640
Speaker 5: Trump wins the twenty twenty four presidential election, a Trump

567
00:31:47,720 --> 00:31:51,000
Speaker 5: administration would almost certainly withdraw the Santala guidance and not

568
00:31:51,360 --> 00:31:53,920
Speaker 5: really try to intervene on behalf of patients facing life

569
00:31:53,920 --> 00:31:55,000
Speaker 5: threatening emergencies.

570
00:31:55,360 --> 00:31:59,600
Speaker 1: And I believe Justice Jackson indicated that that Fifth Circuit

571
00:31:59,640 --> 00:32:02,080
Speaker 1: case will likely be coming up to the court.

572
00:32:02,360 --> 00:32:04,240
Speaker 5: Yeah. No, I think that will be going up to

573
00:32:04,280 --> 00:32:06,400
Speaker 5: the court, and I think the case from the Ninth

574
00:32:06,440 --> 00:32:10,120
Speaker 5: Circuit may too, again unless Biden loses the twenty twenty

575
00:32:10,120 --> 00:32:13,640
Speaker 5: four election and Trump stops interpreting in Tala in this

576
00:32:13,680 --> 00:32:15,160
Speaker 5: way and the case becomes moot.

577
00:32:15,800 --> 00:32:21,000
Speaker 1: Do you surmise that in these cases the justices or

578
00:32:21,080 --> 00:32:24,200
Speaker 1: some of the justices are thinking about the fact that

579
00:32:24,240 --> 00:32:27,160
Speaker 1: there's an election coming up and not wanting to rock

580
00:32:27,200 --> 00:32:29,960
Speaker 1: the boat too much, as Alito says.

581
00:32:29,720 --> 00:32:33,520
Speaker 5: I think that's a possibility. I think that there are Again,

582
00:32:33,560 --> 00:32:36,040
Speaker 5: I think this is a scenario where there were plenty

583
00:32:36,080 --> 00:32:38,680
Speaker 5: off ramps for a course that didn't want to decide

584
00:32:38,680 --> 00:32:42,479
Speaker 5: these questions in an election year, given the fact that

585
00:32:42,640 --> 00:32:45,680
Speaker 5: Idaho did what it did at oral argument, didn't raise

586
00:32:45,720 --> 00:32:48,800
Speaker 5: these questions about the spending clause until later, given that

587
00:32:48,840 --> 00:32:52,080
Speaker 5: there were standing problems in alliance for hipocratic medicine. But

588
00:32:52,160 --> 00:32:54,920
Speaker 5: I think that there were almost certainly political concerns that

589
00:32:55,000 --> 00:32:58,760
Speaker 5: dovetailed with those legal and political and strategic questions.

590
00:32:59,200 --> 00:33:01,720
Speaker 1: So as as far as looking back at this term,

591
00:33:02,000 --> 00:33:06,400
Speaker 1: what conclusions can we make about abortions.

592
00:33:06,160 --> 00:33:08,640
Speaker 5: Well, I think we can conclude. You know, we know

593
00:33:08,800 --> 00:33:11,840
Speaker 5: that there are some divides within the Court about abortion,

594
00:33:12,360 --> 00:33:15,040
Speaker 5: but they concern primarily how much further to the right

595
00:33:15,120 --> 00:33:17,880
Speaker 5: to move the court and how much federal intervention to

596
00:33:17,960 --> 00:33:21,840
Speaker 5: limit voter's ability to decide for themselves which abortion rights

597
00:33:21,920 --> 00:33:24,760
Speaker 5: protections they want. How much in that direction the court

598
00:33:24,840 --> 00:33:27,240
Speaker 5: is going to head. We know that that's on the table.

599
00:33:27,680 --> 00:33:30,120
Speaker 5: We don't know which way the Court ultimately is going

600
00:33:30,160 --> 00:33:33,280
Speaker 5: to go, because again, so many of these substantive questions

601
00:33:33,320 --> 00:33:34,680
Speaker 5: were deferred this.

602
00:33:34,760 --> 00:33:37,000
Speaker 1: Case in the subject of abortion are sure to be

603
00:33:37,360 --> 00:33:41,200
Speaker 1: subjects at the debate this evening between Biden and Trump.

604
00:33:41,480 --> 00:33:44,920
Speaker 1: And speaking of voting, do you know how many states

605
00:33:45,600 --> 00:33:47,920
Speaker 1: will have abortion on the ballot in November?

606
00:33:48,320 --> 00:33:52,640
Speaker 5: So there I think are four states that have confirmed

607
00:33:52,720 --> 00:33:57,760
Speaker 5: ballot initiatives. There are three states where they have submitted

608
00:33:57,840 --> 00:34:00,960
Speaker 5: signatures to get on the ballot, where likely there would

609
00:34:00,960 --> 00:34:06,200
Speaker 5: be a potential upshot there, and then there are three

610
00:34:06,360 --> 00:34:10,680
Speaker 5: where they're further signatures being gathered. So I think a

611
00:34:10,719 --> 00:34:13,160
Speaker 5: lot of those are likely to end up on the ballot,

612
00:34:13,200 --> 00:34:19,520
Speaker 5: but the status of several is still tbd. So Colorado, Florida, Maryland,

613
00:34:20,080 --> 00:34:23,960
Speaker 5: and South Dakota are all guaranteed to be on the ballot,

614
00:34:24,920 --> 00:34:36,719
Speaker 5: and there's several others that are possibilities, including Arizona, Arkansas, Missouri, Montana, Nebraska, Nevada,

615
00:34:37,080 --> 00:34:38,080
Speaker 5: and Pennsylvania.

616
00:34:38,640 --> 00:34:41,759
Speaker 1: We'll be following those closely. Thanks so much, Mary. That's

617
00:34:41,760 --> 00:34:45,600
Speaker 1: Professor Mary Ziegler of UC Davis Law School. And that's

618
00:34:45,640 --> 00:34:48,280
Speaker 1: it for this edition of the Bloomberg Law Show. Remember

619
00:34:48,280 --> 00:34:50,400
Speaker 1: you can always get the latest legal news on our

620
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621
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Speaker 1: and at www dot bloomberg dot com, slash podcast, Slash Law,

622
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Speaker 1: and remember to tune into The Bloomberg Law Show every

623
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Speaker 1: week night at ten pm Wall Street Time. I'm June

624
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Speaker 1: Grosso and you're listening to Bloomberg