WEBVTT - Amy Coney Barrett's Impact on the Supreme Court 0:00:01.120 --> 0:00:04.600 This is a Bloomberg Radio special selecting the next Supreme 0:00:04.640 --> 0:00:08.360 Court Justice. I'm David Weston. Well. President Tromp has made 0:00:08.360 --> 0:00:12.040 it official, nominating Amy Coney Barrett to replace the late 0:00:12.200 --> 0:00:15.240 Justice Ruth Bader Ginsburg on the High Court. She is 0:00:15.280 --> 0:00:22.040 a woman of unparalleled achievement, towering intellect, sterling credentials, and 0:00:22.400 --> 0:00:32.159 unyielding loyalty to the Constitution. Judge Amy Coney Barrett, it's 0:00:32.159 --> 0:00:34.120 a pick that has the potential to shift the balance 0:00:34.120 --> 0:00:36.960 of the Supreme Court for decades to come. Over the 0:00:37.000 --> 0:00:40.360 next hour, we'll look at the implications, discuss the politics 0:00:40.360 --> 0:00:43.599 around the pick, and examine Judge Barrett's record from her 0:00:43.600 --> 0:00:46.639 start as a clerk for Justice Antony Scalia to her 0:00:46.640 --> 0:00:49.320 time on the bench of the Seventh Circuit Court of Appeals. 0:00:49.680 --> 0:00:52.159 But first, let's start with some initial reaction from our 0:00:52.159 --> 0:00:55.880 Bloomberg News and Bloomberg Law Supreme Court reporters Greg Store 0:00:56.160 --> 0:00:59.160 and Kimberly Strawbage Robinson. So, Greg, I'll start with you. 0:00:59.240 --> 0:01:02.720 This hardly came is a surprise. People basically were predicting it. No. Yeah, 0:01:02.720 --> 0:01:04.720 this is a name that we were all talking about 0:01:04.760 --> 0:01:07.039 for days. It's a name McDonald Trump told us. He 0:01:07.080 --> 0:01:11.240 was very seriously considering, and it's somebody who he interviewed 0:01:11.520 --> 0:01:14.880 before he selected Brett Kavanaugh for the last opening. Yeah. 0:01:14.880 --> 0:01:17.479 And at the same time, Kimberly, it's important these days 0:01:17.560 --> 0:01:20.240 to know something about your nominee and how they're likely 0:01:20.280 --> 0:01:23.680 to rule. This nominee is an academic. She's written a 0:01:23.760 --> 0:01:26.800 fair amount, she said, sort of how she approaches judging, 0:01:26.800 --> 0:01:28.960 and so they kind of know her approach, don't they. 0:01:29.360 --> 0:01:32.920 They do. When she was a law professor at Notre Dame, 0:01:33.040 --> 0:01:35.720 she was there for a number of years, she really 0:01:35.760 --> 0:01:40.120 focused on originalism and statutory construction and really in the 0:01:40.160 --> 0:01:43.679 mold of her former boss, Justice Scalia, and on the 0:01:43.760 --> 0:01:46.720 Seventh Circuit. While she hasn't been there that long, just 0:01:46.800 --> 0:01:50.480 since October, that has been her record on the court, 0:01:50.560 --> 0:01:54.680 following those judicial ideologies. Yeah, when you hear things like originalism, 0:01:54.720 --> 0:01:58.880 which certainly is something that Justice Scalia espoused, you automatically 0:01:58.920 --> 0:02:02.240 almost think about role against Wade an abortion, don't you, Greg, 0:02:02.280 --> 0:02:04.760 because that's something that the Conservatives was saying for some time. 0:02:04.960 --> 0:02:07.800 I don't see the right to have an abortion in 0:02:07.840 --> 0:02:11.200 the constitution. Yeah, you certainly do. It really hard to 0:02:11.240 --> 0:02:16.040 square Roe v. Wade with the way that conservatives apply originalism, 0:02:16.440 --> 0:02:19.520 and so yes, that that is almost an implicit criticism 0:02:19.520 --> 0:02:21.520 of the way that decision was made in an amy 0:02:21.560 --> 0:02:24.360 Comy Barrett's case. We also have some things she has 0:02:24.400 --> 0:02:27.880 said about abortion in law review articles where she's made 0:02:27.880 --> 0:02:31.840 clear she has a personal objection to abortion and sees 0:02:31.880 --> 0:02:34.560 it as being immoral. So you can bind those two things, 0:02:34.600 --> 0:02:37.800 and certainly one would expect she's gonna be very skeptical 0:02:37.840 --> 0:02:40.200 of Roe v. Wade comes before the court. Well and Kimberly, 0:02:40.240 --> 0:02:42.639 that takes us almost automatically at the confirmation hearing when 0:02:42.639 --> 0:02:44.520 she was nominated to go on the Court of Appeals 0:02:44.680 --> 0:02:47.480 where you had that now famous exchange with Diane Finstein, 0:02:47.520 --> 0:02:50.200 the senator from California, who pointed to a religion and 0:02:50.240 --> 0:02:52.840 then actually took a fair amount of criticism raising religion 0:02:52.840 --> 0:02:56.440 as an issue. Well, that's right, and Senator Finstein was 0:02:56.440 --> 0:02:59.080 really asking about one of those many articles that Greig 0:02:59.120 --> 0:03:02.760 mentioned at any Coney Barrett wrote when she was an academic, 0:03:03.240 --> 0:03:06.679 which argued that Catholic judges should recuse themselves from death 0:03:06.720 --> 0:03:10.320 penalty cases, which of course has implications for the abortion 0:03:10.520 --> 0:03:13.440 She said that wouldn't be what she does when she's 0:03:13.480 --> 0:03:17.080 sitting on federal Court. But it did bring up this 0:03:17.200 --> 0:03:21.320 controversy where Diane Feinstein said that the dogma lived loudly 0:03:21.520 --> 0:03:24.679 within any Coney Barrett and it really made her sort 0:03:24.720 --> 0:03:27.880 of a hero for religious conservatives. It will be interesting 0:03:27.919 --> 0:03:29.840 to see if this comes up, how it comes up 0:03:29.880 --> 0:03:33.760 in confirmation hearings, Gregg, and those will be apparently happening 0:03:33.800 --> 0:03:35.880 fairly soon if the President of the United States has 0:03:35.960 --> 0:03:38.120 his way. At the same time, if you look at 0:03:38.120 --> 0:03:40.800 her record, it is a pretty stellar record. Number one 0:03:40.800 --> 0:03:43.080 of the class of Notre Dame law school executor, the 0:03:43.160 --> 0:03:44.920 law review clerks in the Supreme Court, and before that 0:03:45.000 --> 0:03:47.920 for a prestigious court appeals judge. It's pretty hard to 0:03:47.960 --> 0:03:50.720 say she's not qualified for the job. Yeah, this isn't 0:03:50.760 --> 0:03:54.080 going to be a fight over qualifications or credentials. There's 0:03:54.120 --> 0:03:57.040 no question she has those, and one will expect that 0:03:57.120 --> 0:03:59.520 she will present herself very well in terms of her 0:03:59.560 --> 0:04:02.280 knowledge of the law, on her ability to do the job. 0:04:02.440 --> 0:04:06.360 You'll really be about the ideology and perhaps any Hayden 0:04:06.440 --> 0:04:09.800 motivations Democrats think she has, and what she would do 0:04:09.880 --> 0:04:12.240 to the Supreme Court. At this time when we're about 0:04:12.240 --> 0:04:15.120 to have a presidential election. Kimberly strikes me there's something 0:04:15.160 --> 0:04:17.280 a little bit artificial when we have a nomination to 0:04:17.320 --> 0:04:19.800 the Supreme Court, we focus on one individual. They are 0:04:19.880 --> 0:04:22.400 one of nine, and we don't want to underestimate the 0:04:23.279 --> 0:04:27.000 collegiality or lack of collegiality, because some justices of outside 0:04:27.000 --> 0:04:29.240 influence because they get along well with others and con 0:04:29.279 --> 0:04:31.839 persuade others. Others are somewhat of loaners. Do we know 0:04:31.920 --> 0:04:35.040 anything about her style on the Seventh Circuit? I think 0:04:35.080 --> 0:04:37.520 we can look at her combromation hearing for the Seventh 0:04:37.520 --> 0:04:40.120 Circuit to see the kind of support that she got 0:04:40.160 --> 0:04:42.240 from the people that she worked with. All of the 0:04:42.320 --> 0:04:45.400 law professors at Notre Dame and backed her nomination to 0:04:45.440 --> 0:04:48.279 the court. And she was hugely popular among her students 0:04:48.320 --> 0:04:50.880 as well. So she does seem like somebody who would 0:04:50.880 --> 0:04:54.839 fit into that collegiality at the Supreme Court. But it's 0:04:55.120 --> 0:04:58.200 famously Ben said that a new justice always changes the court, 0:04:58.240 --> 0:04:59.720 and of course that's going to be true in her 0:04:59.760 --> 0:05:01.760 case as well. Gregg, we are in Bloomberg, so we 0:05:01.760 --> 0:05:03.800 should talk about what we think this might mean or 0:05:03.839 --> 0:05:06.640 not mean for the economy and for business. What would 0:05:06.640 --> 0:05:10.040 business expect of a Justice Barrett. Well, first of all, 0:05:10.080 --> 0:05:11.960 business would tear a lot about our views on the 0:05:12.000 --> 0:05:14.040 Affordable Care Act. The Court's going to hear arguments a 0:05:14.080 --> 0:05:16.839 week after the election. Depending on how that falls out, 0:05:16.920 --> 0:05:19.880 she may or may not participate in that case. She 0:05:20.080 --> 0:05:24.120 was critical of Chief Justice Roberts's reasoning back when he 0:05:24.640 --> 0:05:28.240 cast the kebo to uphold the law in not exactly 0:05:28.320 --> 0:05:31.000 the same issue before the Court now, but related. And 0:05:31.040 --> 0:05:33.640 then you know she haven't because she's not on the 0:05:33.720 --> 0:05:36.279 d C Circuit, which handles so much of the regulatory issues. 0:05:36.360 --> 0:05:39.280 She hasn't had as much regulatory work as say Brett 0:05:39.360 --> 0:05:42.680 Kavanaugh did when he joined the Supreme Court, but one 0:05:42.720 --> 0:05:46.200 would imagine that her instincts would be with people like 0:05:46.279 --> 0:05:49.880 Neil Gorsag and Brett Kavanaugh to be skeptical of agency 0:05:49.920 --> 0:05:53.160 and authority. That could mean scaling back some regulations. You 0:05:53.200 --> 0:05:56.760 talk about Justice Kavanaugh and scale regulation, and Kimberly, it 0:05:56.839 --> 0:06:00.440 brings you back to some challenges to the delegation. Doctor Frankly, 0:06:00.480 --> 0:06:01.640 we saw a little bit of a hint of it, 0:06:01.680 --> 0:06:04.880 perhaps in the CFPP decision last term, where they said, 0:06:04.880 --> 0:06:06.600 basically the president should have the right to fire when 0:06:06.600 --> 0:06:09.080 it's just one person of heads an agency. Does this 0:06:09.320 --> 0:06:12.159 tell us anything about the likelihood that the Supreme Court 0:06:12.240 --> 0:06:15.440 may say, you know, what agencies should be more subject 0:06:15.720 --> 0:06:18.320 to the president? We really don't know. She doesn't have 0:06:18.400 --> 0:06:21.080 a very strong record on that, just given where she 0:06:21.160 --> 0:06:23.159 sits in the federal bench. But the Supreme Court is 0:06:23.160 --> 0:06:26.720 considering a similar case uh this term where the timing 0:06:26.760 --> 0:06:29.240 looks right for a Trumps dominated be seated on the 0:06:29.240 --> 0:06:31.960 court so we could get our first indications whenever they 0:06:31.960 --> 0:06:34.200 hear or an argument how she thinks about this issue. 0:06:34.600 --> 0:06:37.200 Many thanks now to Bloomberg News Supreme Court reporter Gregg 0:06:37.240 --> 0:06:41.720 Store and Bloomberg Law Supreme Court reporter Kimberly Strawbridge Robinson 0:06:42.320 --> 0:06:44.839 for more on the judge and the possible influence she 0:06:44.880 --> 0:06:47.960 could have on the High Court. Welcome Leah Lippmann, Professor 0:06:48.000 --> 0:06:50.719 of Constitutional law at the University of Michigan. So, professor, 0:06:50.720 --> 0:06:53.039 thank you so much for joining us. Let's start out 0:06:53.080 --> 0:06:55.239 first with maybe a disclaimer. I mean, you have served 0:06:55.279 --> 0:06:58.000 on the Court as a clerk for Justice Kennedy. Maybe 0:06:58.040 --> 0:06:59.760 we should be a little cautious about how much we 0:07:00.000 --> 0:07:02.120 and predict about someone when they come up with spru 0:07:02.360 --> 0:07:04.480 Justice because often they're not what we thought they would be. 0:07:04.920 --> 0:07:07.200 I think that that's right, although I do think that 0:07:07.240 --> 0:07:09.760 the parties, and in particular at the Republican Party, have 0:07:09.840 --> 0:07:12.840 gotten a little bit better at selecting sustics whose votes 0:07:12.880 --> 0:07:15.520 that can be more confident. In ye, fair Enough did 0:07:15.600 --> 0:07:17.720 put a lot of work into that. Actually she did 0:07:17.800 --> 0:07:22.200 clerk for Justice Scalia. Uh, and obviously he was an originalist. 0:07:22.280 --> 0:07:24.320 Really believe you got to go back to the original language. 0:07:24.360 --> 0:07:26.600 She also has I understand, as an academic for some 0:07:26.720 --> 0:07:28.840 fifteen years at Notre Dame in law school, wrote on 0:07:28.880 --> 0:07:32.400 the subject, and she embraces that doctrine explain how that 0:07:32.440 --> 0:07:35.720 could affect how she rules at the Supreme Court. So, 0:07:35.880 --> 0:07:38.800 under the doctrine of originalism, you're supposed to interpret the 0:07:38.800 --> 0:07:42.560 Constitution as it was originally understood when it was ratified. 0:07:43.200 --> 0:07:46.680 Um So, using that methodology, Professor Barrett or when she 0:07:46.800 --> 0:07:50.360 was Professor Barrett, authored law review articles explaining that under 0:07:50.960 --> 0:07:54.280 an originalist theory of the Constitution, decisions like Brown for 0:07:54.360 --> 0:07:57.440 support of education, which helps us segregation and public education 0:07:57.440 --> 0:08:00.600 as un constitutional might be wrong, we decide. She also 0:08:00.640 --> 0:08:03.600 suggested that social security as we know it is unconstitutional, 0:08:03.720 --> 0:08:05.560 and that the admission of the state of West Virginia 0:08:05.680 --> 0:08:09.880 was illegal as well. However, her scholarship was grappling with 0:08:09.920 --> 0:08:14.000 this question about what do you do when originalism points 0:08:14.000 --> 0:08:18.520 in one direction and the Supreme Court cases point in another. 0:08:18.680 --> 0:08:21.920 And she did not purport to say what a judge 0:08:21.920 --> 0:08:25.960 should do under those circumstances, and said she was writing 0:08:26.320 --> 0:08:31.240 about how conscientious legislators should behave when they think that 0:08:31.280 --> 0:08:34.280 the original meaning of a constitution point in one direction 0:08:34.360 --> 0:08:37.680 and Supreme Court precedent in another. So we don't really 0:08:37.800 --> 0:08:42.280 know how she will be in cases where the original 0:08:42.320 --> 0:08:45.480 public meaning and her assessment of the Constitution points in 0:08:45.520 --> 0:08:48.120 one direction and the Supreme Court cases point in another. 0:08:48.480 --> 0:08:51.760 The President's nominees to date have really taken two approaches 0:08:51.840 --> 0:08:54.800 to that question. You have Justice Courss on the one hand, 0:08:55.040 --> 0:08:58.120 he largely thinks that when the Supreme Court got it wrong, 0:08:58.160 --> 0:09:01.040 you should just abandon a case, even if the Supreme 0:09:01.040 --> 0:09:04.440 Court has resolved it the other way. Justice Kavanaugh, for 0:09:04.640 --> 0:09:08.839 his part, has not gone as far as Justice Corsich 0:09:08.920 --> 0:09:12.720 as far as abandoning the Supreme Court's prior cases. So 0:09:12.760 --> 0:09:14.559 this is a terribly important point. So we call it 0:09:14.640 --> 0:09:17.600 started decisive right, which is basically, we should follow President. 0:09:17.640 --> 0:09:19.960 We don't turn on a dime in the Supreme Court, 0:09:20.040 --> 0:09:22.680 and particularly perhaps when it comes to the Constitution. We 0:09:22.720 --> 0:09:25.520 saw Chief Justice roberts Just's last term embraced that in 0:09:25.559 --> 0:09:27.959 the abortion case. Do we have a sense of how 0:09:28.000 --> 0:09:30.120 that might cut on the abortion issue. A lot of 0:09:30.120 --> 0:09:33.240 people talk about Amy Corny Barrett in connection with abortion. 0:09:33.720 --> 0:09:38.640 So we don't have any great indication based on Judge 0:09:38.640 --> 0:09:42.480 Barrett or Professor Barrett's writings, either as a scholar or 0:09:42.520 --> 0:09:45.600 as a judge. But I would say the most important 0:09:45.679 --> 0:09:48.600 indication that we have is the fact that the President 0:09:48.760 --> 0:09:53.240 promised to appoint nominees who would overturn Roe versus Wade. 0:09:53.559 --> 0:09:56.800 The fact that Senator Josh Holley of Missouri that he 0:09:56.840 --> 0:10:01.960 would only vote for nominees who would overturn Roe versus Wade. 0:10:02.520 --> 0:10:05.560 And the fact that Senator Holly has indicated that Judge 0:10:05.600 --> 0:10:08.200 Barrett passes his tests, and the fact that the President 0:10:08.559 --> 0:10:12.000 nominated her suggest they believe and they have been told 0:10:12.000 --> 0:10:14.520 by people who know her, that she would vote to 0:10:14.559 --> 0:10:18.720 overturn Row. Another great indication about how she might vote 0:10:18.720 --> 0:10:20.520 in those cases is the fact that both of the 0:10:20.559 --> 0:10:24.040 president's nominees just last term in Louisiana abortion, a case 0:10:24.120 --> 0:10:28.000 that you mentioned, voted to overturn the court's most recent 0:10:28.160 --> 0:10:31.280 abortion case, Whole Woman's Health versus. Teller said that was 0:10:31.360 --> 0:10:34.760 the decision, of course, that invalidated the admitting privileges requirement 0:10:34.800 --> 0:10:37.760 with Texas and accident, and both Justice Gorfish and Justice 0:10:37.800 --> 0:10:41.400 Kavanaugh would have overturned that deficient and allowed Louisiana to 0:10:41.440 --> 0:10:44.440 announce an admitting privileges requirement and to show just how 0:10:44.480 --> 0:10:46.720 powerful it is. Chief Justice Roberts, as I recall, said, 0:10:46.720 --> 0:10:49.079 look at I voted in the dissent on the prior case, 0:10:49.360 --> 0:10:51.480 so I think it's wrong and decided, but I'm still 0:10:51.520 --> 0:10:54.480 going to enforce it because it's the law exactly and teach. 0:10:54.520 --> 0:10:58.160 Justice Roberts is a justice who believes that starry, decisive 0:10:58.280 --> 0:11:02.880 and principles of respect for precedents should occasionally carry today. However, 0:11:02.920 --> 0:11:05.760 the President's too most recent nominees have been more inclined 0:11:05.800 --> 0:11:09.000 to read that's the precedent and just based on that record, 0:11:09.240 --> 0:11:13.520 and again people like Senator Holly's faith in Judge Coney 0:11:13.600 --> 0:11:16.240 Barrett that suggests that she might be more in the 0:11:16.280 --> 0:11:18.680 mold of a Justice Cabinet or juice courseitch than the 0:11:18.720 --> 0:11:21.040 Chief Justice. One of the cases that is scheduled at 0:11:21.080 --> 0:11:23.000 least right now to be argued is the Affordable Care 0:11:23.000 --> 0:11:25.839 Act case coming back up again that as we know, 0:11:26.080 --> 0:11:28.640 some of the Conservatives were disappointed with Chief Justice Drawber's 0:11:28.640 --> 0:11:31.320 first time around. Is I understand it, professor when she 0:11:31.480 --> 0:11:34.760 was professor there has actually been critical of what Chief 0:11:34.800 --> 0:11:38.880 Justice Roberts said in that case. Yes, although this version 0:11:38.960 --> 0:11:42.120 of the Affordable Care Act case is a little bit 0:11:42.240 --> 0:11:46.960 wonkier because it really involves a two steps challenge. And 0:11:47.040 --> 0:11:50.320 the first argument in the case is whether the two 0:11:50.360 --> 0:11:54.160 thousand seventeen amendments to the Affordable Care Act by the 0:11:54.200 --> 0:11:59.000 Republican Congress strengthened the individual mandate and rendered it on 0:11:59.200 --> 0:12:03.880 constitution and all, and if the mandate is in fact unconstitutional, 0:12:04.000 --> 0:12:07.360 whether the rest of the Affordable Care Act must fall 0:12:07.400 --> 0:12:12.280 as well. Those arguments are, to put it mildly, pretty 0:12:12.360 --> 0:12:18.240 legally outlandish. And so even if she disagrees with the 0:12:18.320 --> 0:12:21.719 Chief Justice's vote in the two thousand twelve decision that 0:12:21.840 --> 0:12:25.160 upheld the constitutionality of the Affordable Care Act, that doesn't 0:12:25.160 --> 0:12:29.160 necessarily mean and she would vote with the challengers in 0:12:29.200 --> 0:12:32.400 this case, although the fate of the Affordable Care Acts 0:12:32.440 --> 0:12:38.040 certainly did become a lot more precarious on Justice Ginsburg's passing, 0:12:38.240 --> 0:12:42.400 because to date, every judge who has been appointed by 0:12:42.440 --> 0:12:46.800 a Republican president has endorsed the challenger's arguments, finding that 0:12:46.920 --> 0:12:50.520 the Affordable Care Act as amended is unconstitutional and that 0:12:50.679 --> 0:12:53.080 some of the other provisions in the Affordable Care Act 0:12:53.160 --> 0:12:56.960 have to fall together with that, including its protections for 0:12:57.000 --> 0:13:00.760 people with pre existing conditions. Okay, many thanks, really appreciate 0:13:00.800 --> 0:13:03.000 your being with us. That's Leo Littman. She's professor of 0:13:03.000 --> 0:13:06.240 constitutional law at the University of Michigan. Sources tell us 0:13:06.240 --> 0:13:09.040 President Trump views the judge as a smart, hard nosed 0:13:09.040 --> 0:13:12.199 conservative who can have a long tenure on the High Court, 0:13:12.640 --> 0:13:15.200 But how will her legal views shape the Court's approach 0:13:15.240 --> 0:13:18.200 to the economy and to business. Joining us now to 0:13:18.240 --> 0:13:21.679 help answer that question is Ellen Werman. He is associate 0:13:21.679 --> 0:13:24.200 professor at the Sandra Day O'Connor College of Law at 0:13:24.240 --> 0:13:29.439 Arizona State University. Professor Werman specializes in administrative and constitutional law. 0:13:29.520 --> 0:13:31.640 So welcome, professor, it's great to have you here. We 0:13:31.679 --> 0:13:33.880 tend to think about Supreme Court at least the popular 0:13:33.920 --> 0:13:36.280 culture in terms of abortion and gun control. But there 0:13:36.320 --> 0:13:37.800 are a lot of things the court does that really 0:13:37.840 --> 0:13:40.720 affect business as well. Do we have any sense of 0:13:40.840 --> 0:13:44.760 how a Judge Barrett becoming a justice Barrett might affect business? 0:13:45.160 --> 0:13:47.319 This is a hot topic sort of among lawyer circles 0:13:47.320 --> 0:13:50.200 and legal circles, but also been among the business community. 0:13:50.280 --> 0:13:52.520 Is the role of the administrative state, the role of 0:13:52.520 --> 0:13:55.160 the administrative state in our constitutional system and its impact 0:13:55.360 --> 0:13:58.400 on businesses because, you know, in the traditional separation of 0:13:58.440 --> 0:14:01.439 powers model, Congress makes a law, the President executes the 0:14:01.480 --> 0:14:03.840 law on the courts that judicate the law, and businesses 0:14:03.920 --> 0:14:05.280 kind of know where to go if you want a 0:14:05.360 --> 0:14:07.640 law pass, to go to Congress, right if you're you're 0:14:07.640 --> 0:14:09.240 in trouble, you go to the courts and so on. 0:14:09.480 --> 0:14:13.280 But today, more and more administrative agencies make the regulations 0:14:13.480 --> 0:14:16.040 right that buying businesses and that affect the business community, 0:14:16.040 --> 0:14:18.560 that tells businesses what they can and can do. These 0:14:18.600 --> 0:14:22.120 regulations are made pursued too really really broad delegations of 0:14:22.120 --> 0:14:24.680 power from Congress. You know, Congress likes to pass statutes 0:14:24.760 --> 0:14:27.120 like you know, there shall be clean air, and it 0:14:27.200 --> 0:14:28.880 leaves it up to the agencies to figure out, well, 0:14:28.880 --> 0:14:30.600 who has to pollute less and you know the cost 0:14:31.120 --> 0:14:34.480 on businesses, And so we may see some revival of 0:14:34.560 --> 0:14:37.520 some older doctrines like the non delegation doctrine and other 0:14:37.560 --> 0:14:40.480 doctrines to try to reign in the administrative state. And 0:14:40.480 --> 0:14:42.960 and this has the potential to be a more business 0:14:43.000 --> 0:14:45.560 friendly environment as a result of that. So when you 0:14:45.640 --> 0:14:48.040 talk with the administrative state, you're talking I think larger 0:14:48.080 --> 0:14:50.360 about some of what we call the independent agencies, the 0:14:50.440 --> 0:14:54.360 f c C, the FTC, the sec that are appointed 0:14:54.480 --> 0:14:58.560 by political people, but actually they have some tenure beyond that. 0:14:58.560 --> 0:15:01.280 That's right, and it's not just of these independent agencies, 0:15:01.320 --> 0:15:03.600 the so called independent commissions. What makes them independent is 0:15:03.600 --> 0:15:06.560 that they're somewhat insulated from the president's ability to fire them. 0:15:06.680 --> 0:15:09.560 They're insulated by what's called for cause removal provisions. But 0:15:09.680 --> 0:15:13.160 also you know executive branch agencies that that aren't protected 0:15:13.200 --> 0:15:17.120 that way, the Environmental Protection Agency OSHA, the Occupational Safety 0:15:17.120 --> 0:15:19.480 and Health Administration under the Department of Labor. You know, 0:15:19.600 --> 0:15:23.880 the these can be subcabinet departments. Were in theory there's 0:15:23.880 --> 0:15:25.800 a direct line of controls of the president, but for 0:15:25.840 --> 0:15:29.160 a large measure, They operate pretty autonomously, you know, pursuant 0:15:29.160 --> 0:15:32.280 to these broad authorities that that Congress gives the agencies. 0:15:32.280 --> 0:15:34.520 But yes, but independent agencies are sort of the biggest 0:15:34.520 --> 0:15:37.360 culprit what people tend to think about FTC SEC as 0:15:37.360 --> 0:15:39.680 you say, but it's also other, you know, other agencies 0:15:39.720 --> 0:15:42.640 as well that aren't technically independent. But but they still 0:15:42.640 --> 0:15:46.120 exercise a lot of autonomous power. Given how large the 0:15:46.120 --> 0:15:48.960 country has gotten, the commerce has gotten, business has gotten 0:15:49.400 --> 0:15:51.480 Do we have any alternative but to delegate some of this? 0:15:51.560 --> 0:15:54.800 The president himself can administer every one of these laws. Yeah, 0:15:54.840 --> 0:15:57.720 it's true, you know, the society has gotten more complex. 0:15:57.880 --> 0:16:01.280 Congress doesn't have the capacity and the touching spand even 0:16:01.320 --> 0:16:03.480 if it had the desire, you know, to to legislate 0:16:03.480 --> 0:16:06.400 in more details. So maybe a delegation of powers inevitable. 0:16:06.680 --> 0:16:09.160 But that doesn't mean there aren't you know, other options 0:16:09.200 --> 0:16:11.920 and potentially business friendly options. You know. The reins Act 0:16:12.000 --> 0:16:15.600 is an example. Ran Paul introduces it, I think every year. 0:16:15.880 --> 0:16:18.680 The reins Act basically would say, look for important and 0:16:19.080 --> 0:16:22.440 economically impactful regulations. The agency can go ahead and propose 0:16:22.480 --> 0:16:25.600 the regulation, go through the process, promulgate the regulation, but 0:16:25.640 --> 0:16:28.280 before it actually takes effect, before it has the force 0:16:28.320 --> 0:16:31.080 and effect of actual law, Congress has to vote on it. 0:16:31.280 --> 0:16:33.120 So Judge Barrett has been on the Seventh Circuit Court 0:16:33.160 --> 0:16:35.320 of Appeals. Before that, she was fifteen years at Notre 0:16:35.400 --> 0:16:37.400 Dame Law School on the faculty there. Do we have 0:16:37.440 --> 0:16:40.360 any indication from her writings or rulings or writings how 0:16:40.400 --> 0:16:43.200 she might come down on this issue. I really can't say. 0:16:43.240 --> 0:16:46.960 I mean, as a general, you know, an originalist, someone 0:16:47.000 --> 0:16:49.400 who takes the founder's intention seriously. You know, one can 0:16:49.440 --> 0:16:52.120 assume that you'll have the same or similar views at 0:16:52.200 --> 0:16:55.680 least to Justice Courseitch and Just Justice Kavanaugh and Justice 0:16:55.680 --> 0:16:57.640 Thomas and so on. But you know, I consider myself 0:16:57.640 --> 0:16:59.160 an originalist, and I have a and I write a 0:16:59.160 --> 0:17:00.960 lot on the nondelegation in doctrine, and I have very 0:17:01.000 --> 0:17:04.280 quirky views. You know, My view of what Congress is 0:17:04.280 --> 0:17:06.719 a lot to delegate is actually much more capacious than 0:17:06.760 --> 0:17:10.840 Justice Thomas's view. So there is an intra originalist disagreement 0:17:10.920 --> 0:17:14.000 over the scope of the nondelegation doctrine, over just how 0:17:14.040 --> 0:17:17.119 limited Congress has to be and just where you know, 0:17:17.160 --> 0:17:19.880 the new justice will fall um you know, is yet 0:17:19.920 --> 0:17:22.400 to be determined. Are there possible raifications to go even 0:17:22.440 --> 0:17:25.080 beyond delegation or non delegation to the scope of the 0:17:25.119 --> 0:17:28.080 commerce clause? Because we saw a Chief Justice Roberts, even 0:17:28.119 --> 0:17:30.760 as he voted to uphold the Affordable Care Acts based 0:17:30.800 --> 0:17:33.960 on the tax point, did a lot of Dictum, I thought, 0:17:34.000 --> 0:17:35.480 at least saying, you know what, I'm not sure the 0:17:35.480 --> 0:17:37.760 Commerce Clause goes that broadly, which would be a very 0:17:37.800 --> 0:17:40.760 big departure from where the Supreme Court has been. Yeah, 0:17:40.840 --> 0:17:43.359 I think that's right. Um, I I think we already 0:17:43.440 --> 0:17:46.080 have had the votes before. As you say, under the 0:17:46.080 --> 0:17:48.760 Affordable Care Act case, the Supreme Court basically said in 0:17:49.040 --> 0:17:51.080 the fives or four part of its opinion that it 0:17:51.119 --> 0:17:53.920 would violate the Commerce clause to force people into commerce. 0:17:54.119 --> 0:17:57.080 But even then, you know, forcing people into commerce is 0:17:57.080 --> 0:17:59.480 pretty narrow. I mean, it's not like Congress does something 0:17:59.520 --> 0:18:02.560 like the individ to mandate that often. Right. The reality 0:18:02.640 --> 0:18:05.840 is today almost everything affects commerce. Every you know, all 0:18:05.840 --> 0:18:09.040 economic activity in the States affect interesting commerce somehow, and 0:18:09.119 --> 0:18:11.680 I find it very unlikely that the Supreme Court is 0:18:11.720 --> 0:18:15.320 going to reconsider those cases. Fascinating. This is really truly helpful. 0:18:15.320 --> 0:18:17.960 Thank you so much to Professor Ellen Wherman. He is 0:18:18.119 --> 0:18:21.200 from Arizona State. The pick of Barrett is likely to 0:18:21.320 --> 0:18:25.320 energize conservatives and liberals alike, just over five weeks before 0:18:25.359 --> 0:18:28.400 Americans go to the polls. Barrett is only forty eight 0:18:28.480 --> 0:18:31.840 years old. She also survived a tough confirmation fight in 0:18:31.920 --> 0:18:35.719 tween with a vote that fell largely along party lines. 0:18:36.119 --> 0:18:38.480 How will it shape up this time? Joining us to 0:18:38.520 --> 0:18:42.520 discuss is Bloomberg Political contributors Genie's Anno and Rick Davis. 0:18:42.680 --> 0:18:44.919 Genie is professor of political science that I own a college, 0:18:45.080 --> 0:18:47.919 and Rick is former campaign manager for the late John McCain. 0:18:48.000 --> 0:18:50.280 So welcome to both of you here. Genie, let me 0:18:50.320 --> 0:18:52.479 start with you. I mean, as a practical matter, there 0:18:52.480 --> 0:18:53.800 may be a lot of heat and light here, but 0:18:53.880 --> 0:18:55.359 is there any question about how this is going to 0:18:55.440 --> 0:18:58.120 come out as a practical matter. As a practical matter, 0:18:58.200 --> 0:19:00.560 I don't think so. I think it is be clear 0:19:00.760 --> 0:19:03.840 that we are going to see not just a nomination, 0:19:04.000 --> 0:19:07.680 but a vote on a confirmation, and barring you know, 0:19:07.840 --> 0:19:11.040 something that comes up which is unlikely because this is 0:19:11.119 --> 0:19:13.680 somebody who has been vetted, we are going to see 0:19:13.800 --> 0:19:16.159 a candidate get the vote on the floor. So the 0:19:16.200 --> 0:19:18.720 last time we had one of these Rick, remember Justice Kavanaugh, 0:19:18.720 --> 0:19:21.160 now Justice Kavanaugh, then Judge Kevina. There was a lot 0:19:21.320 --> 0:19:24.560 of electricity in that in that hearing from both sides. 0:19:24.600 --> 0:19:27.520 You remember how Lindsay Graham really went after the Democrats 0:19:27.560 --> 0:19:30.280 at one point. The republic is going to be really 0:19:30.320 --> 0:19:32.600 going after the Democrats are given the fact that they 0:19:32.600 --> 0:19:34.680 have the votes that they sort of lay low. Well, 0:19:34.720 --> 0:19:37.000 I think that they're gonna lay low. They've already set 0:19:37.040 --> 0:19:40.320 the stage. Mitch McConnell, the leader of the Senate Caucus 0:19:40.359 --> 0:19:43.879 of Republicans, has already said that much to do about nothing. 0:19:44.400 --> 0:19:47.600 This President gets to make his pick, and the Senate 0:19:47.600 --> 0:19:49.520 has already counted the votes, and he's got the votes 0:19:49.600 --> 0:19:52.040 to pass us. So he's going to play this out 0:19:52.040 --> 0:19:55.160 as it's a foregone conclusion and try to actually make 0:19:55.200 --> 0:19:57.840 the Democrats look like they're making much to do about nothing. 0:19:58.080 --> 0:19:59.520 One of the things that struck me and looking at 0:19:59.560 --> 0:20:02.280 the membership on the Jiciary Committee's you've got some centators 0:20:02.320 --> 0:20:04.879 up for re elections and some of them not clear 0:20:05.119 --> 0:20:07.040 how it's gonna come out. I mean, Lindsay Graham's the chair. 0:20:07.520 --> 0:20:09.879 He certainly said how he's going to come out. But 0:20:09.960 --> 0:20:12.600 what about Tom Tillison, even more important, maybe Joni Earns 0:20:12.680 --> 0:20:14.560 from Iowa. Rick, does she have to be a little 0:20:14.560 --> 0:20:16.480 careful about how she plays this, You know, look, I 0:20:16.480 --> 0:20:19.159 think all of them do. I mean, I wouldn't exclude 0:20:19.240 --> 0:20:21.600 Lindsey Graham from the list of people who have to 0:20:21.640 --> 0:20:24.000 pay attention to the politics of this. He was in 0:20:24.040 --> 0:20:29.000