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

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Speaker 2: The Supreme Court's conservative majority signaled it's likely to deal

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Speaker 2: another blow to LGBTQ rights by upholding state laws barring

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Speaker 2: transgender girls and women from playing on female school athletic teams.

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Speaker 2: Conservative justices like Samuel Alito and Brett Cavanaugh directed skeptical

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Speaker 2: questions at the lawyers for the transgender athletes who are

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Speaker 2: challenging laws in Idaho and West Virginia as violating the

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Speaker 2: Constitution and Title nine.

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Speaker 3: There are an awful lot of female athletes who are strongly

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Speaker 3: opposed to participation by trans athletes and competitions with them.

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Speaker 3: What do you say about them? Are they bigots? Are

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Speaker 3: they diluted in things thinking that they are subjected to

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Speaker 3: unfair competition?

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Speaker 4: I hate hate that a kid who wants to play

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Speaker 4: sports might not be able to play sports.

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Speaker 5: Hate that, but we have. It's kind of a zero

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Speaker 5: sum game for a lot of teams, and someone who

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Speaker 5: tries out and makes it who is a transgender girl

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Speaker 5: will bump from the starting lineup, from playing time, from

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Speaker 5: the team from the all league, and those things matter

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Speaker 5: to people big time will bump someone.

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Speaker 2: Else The Court has repeatedly ruled against transgender rights in

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Speaker 2: recent years, upholding a state's ban on gender affirming care

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Speaker 2: for transgender youth and allowing President Trump to kick transgender

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Speaker 2: people out of the military and to block passport sex

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Speaker 2: markers that align with gender idea. In light of what

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Speaker 2: seems like an inevitable decision, several justices, including Kavanaugh, repeatedly

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Speaker 2: asked whether a decision in favor of the state bans

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Speaker 2: on transgender athletes would have any effect on challenges to

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Speaker 2: state laws that permit transgender athletes to participate on female

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Speaker 2: teams and.

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Speaker 4: Those states who do allow it, are they is your

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Speaker 4: position that they are violating the Constitution the Equal Protection

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Speaker 4: Clause rights of biological.

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Speaker 5: Girls and women by allowing that.

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Speaker 4: Or do you say that's up to each state to

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Speaker 4: decide and that the Constitution gives discretion to the state

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Speaker 4: whether to allow it or not to allow it.

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Speaker 2: My guest is David Cole, a professor at Georgetown Law

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Speaker 2: and the former National Legal Director of the ACLU. David,

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Speaker 2: let's start with the big question. After listening to these

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Speaker 2: or arguments, does it seem like the justices are going

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Speaker 2: to uphold these state laws that ban transgender athletes.

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Speaker 6: Well, I think the pretty broad consensus of those who

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Speaker 6: listen to the arguments is that they will uphold these laws.

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Speaker 6: I think going in that was also the broad consensus,

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Speaker 6: and I don't think the arguments really changed that assessment.

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Speaker 6: I think they showed the justices, you know, dealing seriously

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Speaker 6: with the implications of how they rule. But I would

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Speaker 6: be surprised if they don't uphold the laws.

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Speaker 2: What legal question do you think the decision will turn on?

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Speaker 2: I mean, there were all kinds of questions about the

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Speaker 2: difference between boys and girls on the basis of sex

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Speaker 2: and where the science is. I mean, what do you

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Speaker 2: think it will turn on?

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Speaker 6: Well, that's the rub. There are many different ways that

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Speaker 6: the court could resolve these cases, including by declaring that actually,

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Speaker 6: because there's a lot of uncertainty and a lot of

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Speaker 6: competing scientific evidence that the states have sought to sort

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Speaker 6: of insert into the record after the district court proceedings

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Speaker 6: were over through ameks briefs and by citing to you know,

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Speaker 6: public reports and the like, those have not been tested

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Speaker 6: and so to the extent that the resolution of the

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Speaker 6: case requires a decision about the factual question of to

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Speaker 6: what extent to transgender athletes who have taken puberty blockers

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Speaker 6: or hormone therapy still have some sort of sex based

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Speaker 6: advantage over cisgender women. That's really something that ought to

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Speaker 6: be sent back to the lower courts, not something that

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Speaker 6: this court should be deciding. Because most of the evidence

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Speaker 6: that the States are relying on post dates the trial

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Speaker 6: and the hearings that were involved in these cases.

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Speaker 2: There was a lot of discussion about athletics being different

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Speaker 2: and about the Javits Amendment tell us about the questions

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Speaker 2: that were raised.

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Speaker 6: Two questions in the cases. One is whether excluding a

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Speaker 6: transgender woman from the women's team violates Title nine of

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Speaker 6: the Civil Rights Act, which requires institutions that receive federal

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Speaker 6: funding not to discriminate on the basis of sex. But

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Speaker 6: the Javits Amendment recognized that sports are different in general,

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Speaker 6: and that therefore there can be men's and women's teams.

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Speaker 6: You can have, you know, certain sports have only a

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Speaker 6: men's team, like football. Often other sports can have only

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Speaker 6: a women's team. Sometimes schools have only a women's volleyball team,

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Speaker 6: or only a women's cross country team, or what have you.

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Speaker 6: As long as the overall opportunities are equally available to

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Speaker 6: all that Congress said was permissible. So under Title nine,

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Speaker 6: Congress sort of blessed sex segregation of sports as not

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Speaker 6: constituting sex discrimination in general, as long as equal opportunities

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Speaker 6: are provided to all. But what this case presents is

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Speaker 6: what happens when you've got a situation where a transwoman

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Speaker 6: is denied the ability to participate in women's sports because

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Speaker 6: she was identified male at birth and can't participate on

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Speaker 6: the men's team either without denying who she is. That's

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Speaker 6: a serious harm, and that might well constitute discrimination under

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Speaker 6: Title nine. That's the argument. And then there's a separate

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Speaker 6: legal question in the cases, which is whether, under the

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Speaker 6: Equal Protection Clause as a constitutional matter, is it constitutional

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Speaker 6: to divide up teams by sex and then to exclude

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Speaker 6: trans women from the women's teeth. And on that issue, again,

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Speaker 6: sports might be different in the sense that the court

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Speaker 6: might say, well, there are real differences between men and

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Speaker 6: women that justify having separate women's and men's teams in general.

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Speaker 6: And indeed, the challengers don't dispute that, yes, of course

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Speaker 6: you can have men's and women's teams, but as applied

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Speaker 6: to transgender women who have eliminated any sex based advantage

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Speaker 6: that they might have by virtue of being biologically male,

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Speaker 6: by taking puberty blockers, by taking hormone therapy, by reducing

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Speaker 6: their testosterone levels to the average level that women have.

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Speaker 6: At that point, it's not clear that the state's interest

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Speaker 6: in having a separate women's team justifies keeping that person

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Speaker 6: off of the women's team because she has eliminated any

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Speaker 6: sex based advantage that she would have. And it's only

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Speaker 6: that category that the plaintiffs are arguing have a constitutional

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Speaker 6: right to participate, not all transgender women, but only those

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Speaker 6: who can demonstrate that they actually don't have any sex

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Speaker 6: based advantage that they are simply situated to the other

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Speaker 6: women on the women's team.

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Speaker 2: It seemed to me like the intent of the three

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Speaker 2: liberal justices, mindful of the trend of rulings against transgender rights,

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Speaker 2: that their intent was to try to marshal support for

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Speaker 2: a very narrow decision.

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Speaker 6: Well, I think there certainly is concern that this decision

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Speaker 6: not preclude or pretermit challenges to other kinds of laws

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Speaker 6: that treat trans people differently. I think you've got some

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Speaker 6: of that concern not just from the liberal justices, but

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Speaker 6: from some of the conservative justices as well, just as

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Speaker 6: Kavanaugh expressed concern what about the Blues states. You know,

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Speaker 6: about half the states permit trans women to participate in

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Speaker 6: women's sports, and some have argued that that's unconstitutional, that

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Speaker 6: that violates Title nine, that you can only do it

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Speaker 6: one way. And he seemed to be concerned about the

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Speaker 6: implications of this case for that kind of policy. Seemed

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Speaker 6: to want to leave it to the legislatures of the states,

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Speaker 6: and if they want to allow trans women, fine, If

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Speaker 6: they don't, that would be fine too. Whereas the Trump

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Speaker 6: administration has taken the position trans women should basically not exist,

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Speaker 6: but they certainly should not be participating in women's sports.

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Speaker 6: And it is illegal for a state to even permit

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Speaker 6: trans women to participate, even where those women have no

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Speaker 6: sex based advantage, because they've eliminated those advantages. So I

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Speaker 6: think they're thinking about those consequences.

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Speaker 2: So the boss Stock case was the last time that

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Speaker 2: transgender advocates won at the Supreme Court, but the Chief

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Speaker 2: Justice was quick to say this isn't that case. He said,

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Speaker 2: the question here is whether or not a sex based

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Speaker 2: classification is necessarily a transgender classification. How far is the

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Speaker 2: Justice is stepping back from the boss Stock case.

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Speaker 6: They haven't stepped back from the boss Stock case yet.

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Speaker 6: I Mean, what the the Bosstoc case said was that

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Speaker 6: when in the employment context, when an employer fires someone

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Speaker 6: because they are transgender, that is sex discrimination. That treating

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Speaker 6: someone differently because of their sex assigned at birth and

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Speaker 6: their gender presentation is a form of sex discrimination. I

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Speaker 6: think in this case they're not going to have to

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Speaker 6: address Bostock because the State argues, we're not actually targeting

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Speaker 6: trans people in any formal way. We're not saying, as

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Speaker 6: the employer did in the Bostock case, I won't hire

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Speaker 6: any trans person. What we are saying is that we

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Speaker 6: are dividing up the teams by birth sex. So those

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Speaker 6: people who were designated male at birth are on the

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Speaker 6: men's team, those people who are designated female at birth

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Speaker 6: are on the women's team, and we exclude from the

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Speaker 6: women's team anyone who was designated male at birth, whether

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Speaker 6: today they present as a and are what we call

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Speaker 6: a cistgender man, or whether today they present as a

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Speaker 6: woman and are what we call a transgender woman. And

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Speaker 6: so the States argument is that they're not actually discriminating

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Speaker 6: on the basis of trans status. Itself. Now we all know,

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Speaker 6: of course, this was driven by trans women athletes in particular,

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Speaker 6: and by a whole set of assumptions about trans women

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Speaker 6: athletes that are not true. As to many trans women athletes,

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Speaker 6: that they have this extraordinary advantage over other women. Some do,

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Speaker 6: But the case was brought by those who, through medical intervention,

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Speaker 6: have ensured that they do not have any sex based advantage.

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Speaker 6: And as to them, the question is if the state's

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Speaker 6: justification for denying you participation on the team because of

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Speaker 6: your sex assigned at birth? Is that permissible when their

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Speaker 6: interests are not furthered by excluding you. Their interests are

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Speaker 6: in making sure that the women's team does not get

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Speaker 6: overrun by people who have a sex based advantage. But

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Speaker 6: those transgender women who have eliminated their sex based advantage

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Speaker 6: through the medical intervention and the like, they don't pose

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Speaker 6: that threat. They don't undermine the fairness or the safety

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Speaker 6: of women's sports.

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Speaker 2: In more than three hours of oral arguments, it seemed

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Speaker 2: like there were a lot of balls in the air.

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Speaker 2: Do you have any idea what they might focus on

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Speaker 2: in the decision?

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Speaker 6: You know, if I had to guess, I would say

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Speaker 6: they know the destination, But they're not sure on the route,

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Speaker 6: and if they are going to rule against the transgender

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Speaker 6: women here, I think it's important that they do so

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Speaker 6: in ways that leave open for future litigation a whole

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Speaker 6: host of other kinds of questions that don't involve sports,

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Speaker 6: don't involve this one area where you do actually have

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Speaker 6: a long history of separate based on generalizable physical differences,

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Speaker 6: the same kinds of arguments about fairness, and they're like,

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Speaker 6: don't apply to bathrooms and don't apply to excluding people

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Speaker 6: from all kinds of activities in life, and so, you know,

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Speaker 6: I think it's important that the Court not decide too

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Speaker 6: much because I think in the long run, we're going

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Speaker 6: to recognize trans people are people. They deserve equal dignity.

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Speaker 6: We should not be treating them as categorically as somehow

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Speaker 6: an illegitimate class, and we need judicial protection to ensure

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Speaker 6: that they have equal protection under the law, precisely because

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Speaker 6: they are a small minority, one that has faced a

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Speaker 6: lot of discrimination over history, and the Court should not

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Speaker 6: write itself out of that task. You know, it's an

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Speaker 6: ongoing task, I think, but it's part of the Court's

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Speaker 6: responsibility is to protect those who can't protect them from

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Speaker 6: the majority, and boy Trans folks are squarely in the

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Speaker 6: middle of that category.

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Speaker 2: It'll be interesting to see what direction they take in

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Speaker 2: their opinion. Thanks for joining me again, David. That's Professor

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Speaker 2: David Cole of Georgetown Law. Coming up next on the

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Speaker 2: Bloomberg Law Show. Louisiana faces off against big oil at

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Speaker 2: the Supreme Court with billions on the line. I'm June

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Speaker 2: Grosso and you're listening to Bloomberg.

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Speaker 7: We now know, having gone to trial with Chevron down

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Speaker 7: in Point Lahash, that they do not dispute that they

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Speaker 7: dumped billions of gallons of produced water from oil wells

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Speaker 7: directly into our marsh, both before and after nineteen eighty.

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Speaker 7: That's why this is such a massive deal for the

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Speaker 7: state of Louisiana.

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Speaker 2: That was Louisiana's Solicitor General, Jay Benjamin Aguanaga, arguing at

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Speaker 2: the Supreme Court in a case where repair of his

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Speaker 2: state's wetlands, which have been called one of the most

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Speaker 2: critically threatened environments in the United States, is at stake

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Speaker 2: and potentially billions of dollars. Back in twenty thirteen, six

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Speaker 2: Louisiana parishes filed forty two nearly identical lawsuits against Chevron, Exxon,

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Speaker 2: and other oil and gas companies, accusing them of violating

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Speaker 2: a state law and demanding that they repair severe damage

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Speaker 2: to the state's coastline from decades of oil and gas production,

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Speaker 2: and last April, in the only case to go to

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Speaker 2: trial so far, a jury and state court ordered Chevron

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Speaker 2: to pay seven hundred and forty five million dollars toward

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Speaker 2: restoring the coastal region. Now, Chevron and the other companies

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Speaker 2: are asking the Supreme Court to move the cases from

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Speaker 2: state court to federal court, which is often seen as

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Speaker 2: a venue friendlier to corporate interests. Chief Justice John Roberts

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Speaker 2: and Justice Neil Gore such expressed concerns about the ripple

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Speaker 2: effects allowing such a move.

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Speaker 1: Well, you're right, obviously that relating to is very broad.

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Speaker 1: But it's hard to see where you stop. I mean,

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Speaker 1: is it a butterfly effect?

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Speaker 5: You know, the butterfly flaps its wings.

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Speaker 8: That has the end.

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Speaker 1: It results halfway around the world.

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Speaker 4: The big thing is related to you being here today,

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Speaker 4: Council right.

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Speaker 2: The ultra conservative Fifth Circuit had ruled that the cases

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Speaker 2: belong in state court. Joining me is an expert in

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Speaker 2: environmental law. Pat Parento, A professor at the Vermont Law

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Speaker 2: and Graduate School pat give us the background on these lawsuits.

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Speaker 1: So this has to do with Louisiana's continuing loss of

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Speaker 1: coastal wetlands. You know, it's the largest loss of wetlands

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Speaker 1: in the nation, and it's causing all kinds of horrific

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Speaker 1: problems for the communities on the coast of Louisiana. The floods,

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Speaker 1: the storms, the loss of fisheries. Much of it relates

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Speaker 1: to the oil and gas activities in extra oil and

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Speaker 1: gas from the Gulf of Mexico. And you know, I've

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Speaker 1: been down there. I've seen the damage that's being done

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Speaker 1: from the oil and gas activities. It's complicated, but one

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Speaker 1: of the major reasons for the loss of wetlands is

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Speaker 1: the discharge of really toxic, polluted water, processed water from

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Speaker 1: the oil and gas extraction activities, both online and offshore,

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Speaker 1: by the way, and also building these canals to move

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Speaker 1: these great big rigs in and out of the gulf,

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Speaker 1: and all of this erodes the wetlands. It contaminates them,

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Speaker 1: it causes the vegetation to die, and when the vegetation dies,

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Speaker 1: the wetlands die. All of this has been going on

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Speaker 1: for decades. All of this has been well understood and

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Speaker 1: researched for that period of time. The oil companies, they've

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Speaker 1: been told that they're causing this damage by the State

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Speaker 1: of Louisiana in violation of the State of Louisiana's permit

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Speaker 1: programs for oil and gas activities, in violation of the

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Speaker 1: state's laws requiring restoration of wetlands that have been damaged,

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Speaker 1: causing billions of dollars worth of damage. And so finally,

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Speaker 1: the parishes of Louisiana, which are counties everywhere else in

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Speaker 1: the country, have had enough. I mean, you know, they've

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Speaker 1: had this uneasy relationship with oil and gas activity, which

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Speaker 1: creates jobs, brings money into the communities, but it's destroying

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Speaker 1: their way of life. So they go to court in

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Speaker 1: Louisiana and they finally got a major jury veric over

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Speaker 1: seven hundred million dollars. That's the backstory of this case.

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Speaker 1: The only question before the Supreme Court is should these

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Speaker 1: cases be heard in federal as opposed to state court.

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Speaker 1: So a purely procedural issue, right, but one with enormous consequences.

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Speaker 2: The six Louisiana parishes sued in twenty thirteen, but yet

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Speaker 2: only one case has gone to trial in all that time.

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Speaker 1: That's right, and you know that is right out of

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Speaker 1: the oil company's playbook. We've seen it in the climate

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Speaker 1: cases as well, which is delay, delay, delay, throw up roadblocks,

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Speaker 1: argue every kind of procedural motion you can to keep

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Speaker 1: the case first from going to trial, getting to a jury.

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Speaker 1: And then now, now, after all these years, and after

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Speaker 1: all the time and effort spent to win a jury verdict,

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Speaker 1: now the oil companies go to the US Supreme Court saying,

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Speaker 1: save our butts, because we've lost big time. We fought,

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Speaker 1: you know, in the state court. We lost, and now

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Speaker 1: we want to set aside that loss and start all

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Speaker 1: over again.

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Speaker 2: And if the Supreme Court rules in favor of the

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Speaker 2: oil companies, that seven hundred and forty five million dollar

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Speaker 2: verdict delivered after a three week trial could be thrown out.

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Speaker 2: But the merits of the cases are not before the court.

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Speaker 1: You know, that question doesn't even get raised. Are they responsible?

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Speaker 1: That's the fiendishly complicated aspect of a case like this, Right,

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Speaker 1: The merits don't count. It's all about which court to

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Speaker 1: hear the merits. After there have been years of litigation

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Speaker 1: in state court, a jury verdict against them. Now they

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Speaker 1: want to start the clock all over again. It's outrageous,

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Speaker 1: but it is the law. I mean, you know the

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Speaker 1: law of removal of cases from state court to federal court.

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Speaker 1: That's well established law. This is a real extension of

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Speaker 1: that law.

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Speaker 2: And the key issue before the Supreme Court is an

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Speaker 2: amendment to the Federal Officer Removal Statue, a law that

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Speaker 2: gives federal courts jurisdiction over civil cases that concern the

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Speaker 2: actions of federal officials or those acting under the orders

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Speaker 2: of a federal official.

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Speaker 1: That was the focus of the oral argument, and in

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Speaker 1: that statute, in Congress's inimitable fashion, they dropped this phrase

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Speaker 1: relating to So that's the focus of the case was

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Speaker 1: the activity of producing oil and gas in the coastal

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Speaker 1: zone of Louisiana related to the federal contracts that these

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Speaker 1: companies and their predecessors had during World War Two. This

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Speaker 1: goes all the way back to the forties. So the

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Speaker 1: question is the government contracted with these companies to refine

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Speaker 1: fuel for the war effort. And what the companies are

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Speaker 1: now arguing is well, in order to refine the fuel,

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Speaker 1: we have to produce the fuel. So the oil and

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Speaker 1: gas production activities that are destroying Louisiana's wetlands are related

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Speaker 1: to our contract to produce fuel for the war effort.

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Speaker 1: That is the key fact in this case. Is that

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Speaker 1: enough to prove that refining oil is related to producing oil.

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Speaker 1: That may be a bit of an oversimplification, but that's

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Speaker 1: the essence of it.

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Speaker 2: And how does the State of Louisiana interpret those words

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Speaker 2: relating to the.

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Speaker 1: State says the two activities are separate. And if you

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Speaker 1: think about this, what is the reason that Congress had

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Speaker 1: for requiring removal of cases from state court to federal court?

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Speaker 1: And the logic of it is, if a company leads

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Speaker 1: all companies have become an agent of the federal government

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Speaker 1: doing the government's bidding, then they should be insulated to

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Speaker 1: some extent from being subject to liability in state court.

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Speaker 1: That's the kind of issue that should be litigated in

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Speaker 1: federal court because the companies are acting as agents of

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Speaker 1: the federal government.

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Speaker 2: I mean, isn't this also about what they're doing now?

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Speaker 2: So how can this depend on something that happened in

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Speaker 2: World War Two?

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Speaker 1: That's true, and that is one of the arguments Louisiana

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Speaker 1: is making. Of course that this has been going on

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Speaker 1: for decades and continues today, so it has nothing to

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Speaker 1: do with World War Two. But if there's logic in this,

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Speaker 1: it's that once an agent, always an agent. I don't

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Speaker 1: buy that. I'm just saying their argument to the court is,

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Speaker 1: you know, everything that we have been doing relates to

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Speaker 1: in the broadest possible sense, relates to these original contracts

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Speaker 1: which carry forward to today. I don't think the Court

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Speaker 1: is going to buy this, but we always have to say,

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Speaker 1: but they might. It sounded to me like at the

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Speaker 1: oral argument, questions coming from Thomas Gorsich, the Chief Justice,

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Speaker 1: questions that were harder to read from Kavanaugh, Barrett. Even

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Speaker 1: Justice Jackson was saying at one point to the oil companies,

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Speaker 1: your argument has some weight that surprised me. So these

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Speaker 1: procedural questions could go either way. But it looks to

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Speaker 1: me and sounds to me like the Court is going

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Speaker 1: to deny the company's argument that these cases should have

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Speaker 1: been brought in federal court and have to be re

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Speaker 1: litigated in federal court.

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Speaker 2: And the State of Louisiana only needs four votes to

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Speaker 2: win because Justice Samuel Alito recused himself from the case

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Speaker 2: due to a stock conflict tied to Kinnacho Phillips, and

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Speaker 2: so four votes would leave in place the lower court decision,

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Speaker 2: the Fifth Circuit decision which ruled that the cases belong

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Speaker 2: in state court.

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Speaker 1: Correct. That's a very good point, and I could easily

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Speaker 1: count four votes, if not five, to deny the oil companies.

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Speaker 2: Pat let's discuss having a trial in state court versus

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Speaker 2: federal court. Here's Paul Clement, the former US Solicitor General

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Speaker 2: who represents Chevron.

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Speaker 9: And so for you know, really since almost the framing

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Speaker 9: of the country, there's been this problem, this issue, this

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Speaker 9: concern with issues that are nationally important but locally unpopular.

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Speaker 2: He also had other arguments, for example, that if the

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Speaker 2: state can prove their case in federal court, then everyone's

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Speaker 2: going to accept the outcome rather than seeing it as

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Speaker 2: a product of local prejudice. Do you agree with that?

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Speaker 1: No, that is a stunning indictment of state jury. I mean,

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Speaker 1: that stands the principle of federalism on it head. To

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Speaker 1: suggest the oil companies can't get a fair trial in Louisiana.

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Speaker 1: Are you kidding me? With all of the dependents of

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Speaker 1: Louisiana on oil and gas production. No, it's the case

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Speaker 1: that the damage that the oil companies are doing have

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Speaker 1: reached a point where it's intolerable for these communities to

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Speaker 1: just continue to absorb it. That's what this case is about.

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Speaker 1: And the pushback to his argument is, don't you want

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Speaker 1: the communities that are closest to the impacts living with

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Speaker 1: the impacts and in the state where the expertise of

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Speaker 1: the legal questions involved, namely, what does Louisiana law require?

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Speaker 1: Have the companies violated that law? Have they done so

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Speaker 1: deliberately over a continuous period of time, have they done

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Speaker 1: so knowingly? All of those kinds of questions are state

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Speaker 1: law questions. They rely on the expertise within the state

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Speaker 1: of Louisiana, in the academic institutions that have studied these problems,

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Speaker 1: in the witnesses that would be called, and so forth,

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Speaker 1: you know, fact witnesses as well as expert witnesses. To

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Speaker 1: suggest that the oil companies should not be held accountable

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Speaker 1: in the state courts where they're doing business and doing

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Speaker 1: this damage is unbelievable.

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Speaker 2: Several justices also expressed concerns about the broader implications of

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Speaker 2: a decision here on things like employment disputes or a

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Speaker 2: suit against an airline manufacturer that has contracts with the US.

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Speaker 1: This business of indicting state courts and state juries sweeps

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Speaker 1: incredibly broadly, as well as their argument that anything that's

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Speaker 1: related to their original contracts from fifty to sixty years

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Speaker 1: ago is covered by them. Both of these arguments are

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Speaker 1: incredibly sweeping, and that's why the Chief Justice picked up

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Speaker 1: on the butterfly effect. So it would be very surprising,

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Speaker 1: I think, for the Court to go that far and

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Speaker 1: buy in to this premise that you can't trust state courts.

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Speaker 2: Thanks so much, Pat. That's professor Pat Parento of the

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Speaker 2: Vermont Lawn Graduate School coming up. Can ice officers be sued?

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Speaker 2: I'm June Grosso and this is Bloomberg. Demonstrations have become

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Speaker 2: common in Minneapolis since an ice officer shot Renee Good

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Speaker 2: last Wednesday. On the day that Good was killed, Vice

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Speaker 2: President J. D. Vance held a news conference and declared

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Speaker 2: with certainty that the ice officer would face no consequences

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Speaker 2: for his actions.

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Speaker 4: You have a federal law enforcement official engaging in federal

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Speaker 4: law enforcement action.

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Speaker 6: That's a federal issue. That guy's protected by absolute immunity.

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Speaker 4: He was doing his job.

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Speaker 2: That's a message that's been reinforced by others in the

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Speaker 2: Trump administration. In fact, on Tuesday, the Department of Homeland

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00:27:54,080 --> 00:27:57,639
Speaker 2: Security posted a clip of White House Deputy Chief of

440
00:27:57,760 --> 00:28:02,760
Speaker 2: Staff Stephen Miller amplified that message.

441
00:28:01,800 --> 00:28:04,879
Speaker 10: To all ICE officers. You have federal immunity in the

442
00:28:04,880 --> 00:28:07,960
Speaker 10: conduct of your duties, and anybody who lays a hand

443
00:28:08,000 --> 00:28:10,439
Speaker 10: on you or tries to stop you, or tries to

444
00:28:10,480 --> 00:28:13,040
Speaker 10: obstruct you is committing a felony.

445
00:28:13,440 --> 00:28:14,720
Speaker 1: You have immunity to.

446
00:28:14,680 --> 00:28:17,879
Speaker 10: Perform your duties, and no one, no city official, no

447
00:28:17,960 --> 00:28:22,600
Speaker 10: state official, no illegal alien, no leftist agitator, or domestic

448
00:28:22,880 --> 00:28:27,960
Speaker 10: insurrectionists can prevent you from fulfilling your legal obligations and duties.

449
00:28:28,320 --> 00:28:32,160
Speaker 2: So are they right? Will ICE officer Jonathan Ross face

450
00:28:32,359 --> 00:28:36,159
Speaker 2: any consequences for killing the mother of three? Joining me

451
00:28:36,240 --> 00:28:40,040
Speaker 2: to answer that question? Is Anya Bidwell, a senior attorney

452
00:28:40,120 --> 00:28:44,400
Speaker 2: at the Institute for Justice. Anya, are these Trump administration

453
00:28:44,720 --> 00:28:49,520
Speaker 2: officials right? Do these ICE officers have absolute immunity?

454
00:28:49,600 --> 00:28:54,120
Speaker 11: I hate to say that they are right, but unfortunately

455
00:28:54,640 --> 00:28:58,960
Speaker 11: they are very close to being right, and there are

456
00:29:00,040 --> 00:29:04,120
Speaker 11: seeing with fewer routes to sue federal officials. It's been

457
00:29:04,160 --> 00:29:07,120
Speaker 11: happening for a long time. It's not just a Trump

458
00:29:07,160 --> 00:29:12,560
Speaker 11: administration invention. But what they're doing now is really exposing

459
00:29:12,600 --> 00:29:17,000
Speaker 11: this gap in accountability between state and local officials, for

460
00:29:17,040 --> 00:29:22,480
Speaker 11: example Derek Chauvin who murdered George Floyd, and federal officials

461
00:29:22,600 --> 00:29:26,840
Speaker 11: like those ICE agents. So previous administrations didn't like to

462
00:29:26,880 --> 00:29:31,000
Speaker 11: advertise that. The Biden administration, the first Trump administration, the

463
00:29:31,000 --> 00:29:34,239
Speaker 11: Bush administration, the Obama administration, they weren't going around and

464
00:29:34,280 --> 00:29:38,240
Speaker 11: talking about absolute community. This administration is happy to talk

465
00:29:38,280 --> 00:29:41,960
Speaker 11: about it because they want to encourage ICE to go

466
00:29:42,200 --> 00:29:45,520
Speaker 11: out there, to not care about repercussions, to not de

467
00:29:45,760 --> 00:29:48,520
Speaker 11: escalate them, and so they're telling them just so you

468
00:29:48,560 --> 00:29:52,360
Speaker 11: guys know, there is nothing that can be done to you.

469
00:29:52,640 --> 00:29:56,120
Speaker 2: Of course, some routes, it appears clear that the federal

470
00:29:56,160 --> 00:30:00,720
Speaker 2: government is not going to prosecute this ICE office. But

471
00:30:00,920 --> 00:30:03,520
Speaker 2: in theory, what about a state prosecution.

472
00:30:04,560 --> 00:30:08,920
Speaker 11: Now, the federal government, if it wanted to, could prosecute

473
00:30:09,560 --> 00:30:13,760
Speaker 11: those officers. But does anybody here really believe that the

474
00:30:13,800 --> 00:30:16,520
Speaker 11: federal government is actually going to do that. Instead of

475
00:30:16,560 --> 00:30:21,840
Speaker 11: investigating Jonathan Ross, they are investigating the wife of Renee

476
00:30:21,840 --> 00:30:24,560
Speaker 11: Good right, So we are not counting on the federal

477
00:30:24,600 --> 00:30:28,080
Speaker 11: government to step in here. The one meaningful mechanism, and

478
00:30:28,320 --> 00:30:33,240
Speaker 11: when it comes to state prosecutions, there's another complication and

479
00:30:33,320 --> 00:30:38,520
Speaker 11: another immunity that comes in. So states generally speaking, cannot

480
00:30:38,560 --> 00:30:43,960
Speaker 11: prosecute federal officials when federal officials are exercising their federal duties.

481
00:30:44,200 --> 00:30:47,920
Speaker 11: So again, the federal government doesn't even feel compelled to

482
00:30:48,080 --> 00:30:51,760
Speaker 11: cooperate with the state government in the situation, doesn't even

483
00:30:51,760 --> 00:30:54,440
Speaker 11: feel compelled to share the evidence because they also know

484
00:30:54,520 --> 00:30:58,920
Speaker 11: that the state itself is really fundamentally unable to prosecute

485
00:30:58,960 --> 00:31:02,160
Speaker 11: a federal officer. So that's where we are right now.

486
00:31:02,240 --> 00:31:05,640
Speaker 11: And Jdvans and Steven Miller are very comfortable going out

487
00:31:05,680 --> 00:31:09,080
Speaker 11: there and telling Ice, you guys are good. There is

488
00:31:09,160 --> 00:31:11,720
Speaker 11: nothing really that plaintiffs can do right now.

489
00:31:11,960 --> 00:31:14,360
Speaker 2: So Minnesota, you know they're going to try to do

490
00:31:14,400 --> 00:31:17,840
Speaker 2: an investigation, right I mean, is there a way, even

491
00:31:17,880 --> 00:31:19,720
Speaker 2: if it's a loser way, is there a way for

492
00:31:19,840 --> 00:31:23,760
Speaker 2: Minnesota to prosecute that ICE officer criminally?

493
00:31:24,000 --> 00:31:26,440
Speaker 8: I would try again. If I'm a state.

494
00:31:26,800 --> 00:31:28,800
Speaker 11: What I'm going to try to do at this point

495
00:31:29,200 --> 00:31:32,440
Speaker 11: is a I'm going to work to pass a statute

496
00:31:32,800 --> 00:31:36,640
Speaker 11: to allow suits for violations of federal constitution in my courts.

497
00:31:37,120 --> 00:31:41,560
Speaker 11: And also I'm going to try to prosecute the officer

498
00:31:41,680 --> 00:31:44,720
Speaker 11: now immediately, there will be a motion to dismiss filed.

499
00:31:45,080 --> 00:31:47,320
Speaker 11: There will be arguments against it. But at least you

500
00:31:47,360 --> 00:31:50,280
Speaker 11: are trying to get out there and try to do something.

501
00:31:50,600 --> 00:31:54,080
Speaker 11: I would also try to just publicly even say here's

502
00:31:54,120 --> 00:31:56,880
Speaker 11: what we want to see, right, some of it is

503
00:31:56,960 --> 00:31:59,560
Speaker 11: public engagement. When you are a state, if we were

504
00:31:59,600 --> 00:32:02,600
Speaker 11: to invent instigate, this is what we would want to see.

505
00:32:02,720 --> 00:32:05,120
Speaker 8: These are the kind of things that would allow us

506
00:32:05,240 --> 00:32:08,640
Speaker 8: to evaluate what took place here. Federal government, are you

507
00:32:08,680 --> 00:32:09,960
Speaker 8: doing this or are you not doing this?

508
00:32:10,280 --> 00:32:13,920
Speaker 11: States certainly can't just sit there and do nothing, but

509
00:32:14,200 --> 00:32:16,160
Speaker 11: it's an uphill battle all the way.

510
00:32:16,320 --> 00:32:20,320
Speaker 2: Renee Goods family has hired attorneys already. So let's turn

511
00:32:20,360 --> 00:32:24,440
Speaker 2: to the possibility of a civil lawsuit for damages. First,

512
00:32:24,760 --> 00:32:29,120
Speaker 2: probably the impossible suing the ICE officer directly.

513
00:32:28,880 --> 00:32:32,680
Speaker 11: Yes, that is impossible because they are ICE agents, and

514
00:32:32,760 --> 00:32:37,560
Speaker 11: even in general, with any federal official, it's extremely difficult.

515
00:32:37,800 --> 00:32:42,400
Speaker 11: So at the root of the problem is really congressional admission.

516
00:32:42,760 --> 00:32:46,280
Speaker 11: After the Civil War, Congress passed a statue called Section

517
00:32:46,600 --> 00:32:50,640
Speaker 11: nineteen eighty three to allow suits for the violation of

518
00:32:50,720 --> 00:32:54,560
Speaker 11: the United States Constitution against state and local officials who

519
00:32:54,640 --> 00:32:59,800
Speaker 11: we essentially weren't complying with reconstruction and violating people's constitutional rights.

520
00:33:00,000 --> 00:33:03,120
Speaker 11: At the time, you could sue federal government in state courts,

521
00:33:03,560 --> 00:33:06,880
Speaker 11: and there was no fear that state courts would be

522
00:33:07,240 --> 00:33:09,800
Speaker 11: easy on federal officials. If anything, state courts at the

523
00:33:09,840 --> 00:33:13,160
Speaker 11: time were hostile to federal officials. So Congress wasn't worried

524
00:33:13,160 --> 00:33:17,959
Speaker 11: about federal officials not getting proper treatment in state courts,

525
00:33:18,200 --> 00:33:21,480
Speaker 11: so they didn't include them in this statute. They only

526
00:33:21,520 --> 00:33:26,200
Speaker 11: included state and local officials, and that admission is now

527
00:33:26,360 --> 00:33:30,520
Speaker 11: used by the Supreme Court as an excuse to deny

528
00:33:31,240 --> 00:33:36,040
Speaker 11: any access to courts to plaintiffs whose violations happened to

529
00:33:36,120 --> 00:33:41,120
Speaker 11: be conducted by federal officials. They're saying Section nineteen eighty

530
00:33:41,120 --> 00:33:44,000
Speaker 11: three does not have federal officials in there.

531
00:33:44,360 --> 00:33:47,000
Speaker 8: There isn't an analog like that for.

532
00:33:47,080 --> 00:33:51,400
Speaker 11: Federal officials, and they say Congress should amend that statute

533
00:33:51,440 --> 00:33:54,200
Speaker 11: include federal officials in there, and then we will have

534
00:33:54,280 --> 00:33:58,680
Speaker 11: no problem opening the courthouse doors. Now, on the other hand,

535
00:33:58,880 --> 00:34:04,680
Speaker 11: there is a problem that circuit courts are interpreting another

536
00:34:05,120 --> 00:34:10,680
Speaker 11: statute that Congress passed as prohibiting suits against federal officials

537
00:34:10,719 --> 00:34:14,160
Speaker 11: in state courts too, so that traditional remedy I told

538
00:34:14,200 --> 00:34:18,480
Speaker 11: you about is also unavailable. So the way that the

539
00:34:18,600 --> 00:34:22,760
Speaker 11: law stands today is that you turn to federal courts

540
00:34:22,800 --> 00:34:25,239
Speaker 11: and the Supreme Court is telling you, you, guys are

541
00:34:25,280 --> 00:34:27,600
Speaker 11: not part of section nineteen eighty three, we can't do

542
00:34:27,600 --> 00:34:31,279
Speaker 11: anything about it. And you go to state courts and

543
00:34:31,320 --> 00:34:35,160
Speaker 11: they're basically saying, well, circuit courts so far have said

544
00:34:35,320 --> 00:34:40,399
Speaker 11: that cases in state courts are unavailable. Though we do

545
00:34:40,480 --> 00:34:44,920
Speaker 11: think that by far the best option right now is

546
00:34:45,040 --> 00:34:49,399
Speaker 11: actually for states to pass their own statutes like that

547
00:34:49,520 --> 00:34:52,839
Speaker 11: section nineteen eighty three that Congress passed back in the day,

548
00:34:53,239 --> 00:34:56,440
Speaker 11: and we as public interest lawyers, we have a really

549
00:34:56,440 --> 00:34:59,680
Speaker 11: good argument to explain to the Supreme Court why that

550
00:34:59,760 --> 00:35:02,160
Speaker 11: kind route actually should be available.

551
00:35:02,480 --> 00:35:05,080
Speaker 2: Let's just say you could to a federal officer. The

552
00:35:05,120 --> 00:35:08,600
Speaker 2: federal officer would probably be indemnified right by the government.

553
00:35:08,800 --> 00:35:10,480
Speaker 2: I mean, they wouldn't have to pay out of their

554
00:35:10,480 --> 00:35:11,600
Speaker 2: own pocket anyway.

555
00:35:12,080 --> 00:35:15,359
Speaker 11: Yes, that's what invariably happens, and it happens with state

556
00:35:15,440 --> 00:35:19,640
Speaker 11: and local officials as well, that they have indemnification provisions

557
00:35:19,680 --> 00:35:23,720
Speaker 11: and the governments invariably indemnify them, but at least then

558
00:35:24,000 --> 00:35:28,200
Speaker 11: the officer is called out, his actions are analyzed, the

559
00:35:28,280 --> 00:35:32,520
Speaker 11: family gets some answers about what happens, because these days

560
00:35:32,560 --> 00:35:34,880
Speaker 11: they don't even feel like they need to explain themselves.

561
00:35:35,239 --> 00:35:39,360
Speaker 11: And then that officer is unnoticed because he did cost

562
00:35:39,440 --> 00:35:41,799
Speaker 11: money to the agency, right, So there is some sort

563
00:35:41,840 --> 00:35:45,600
Speaker 11: of accountability going forward too, and the agencies are much

564
00:35:45,640 --> 00:35:48,960
Speaker 11: more careful about how they hire because they know that

565
00:35:49,000 --> 00:35:51,760
Speaker 11: problematic officers are going to cause them a lot of money.

566
00:35:51,960 --> 00:35:55,359
Speaker 11: And in some situations when the violations are outrageous, then

567
00:35:55,719 --> 00:35:57,920
Speaker 11: the government basically says, you're.

568
00:35:57,800 --> 00:35:59,640
Speaker 8: On your own. We're not going to cover it.

569
00:36:00,440 --> 00:36:04,320
Speaker 11: But fundamentally, the important thing is that if you allow

570
00:36:04,560 --> 00:36:08,640
Speaker 11: families to sue, then they don't carry the burden of

571
00:36:08,680 --> 00:36:12,160
Speaker 11: the constitutional violation, right that they are actually able to

572
00:36:12,280 --> 00:36:16,560
Speaker 11: take control of the situation and get to discovery and

573
00:36:16,680 --> 00:36:19,719
Speaker 11: have the jury determine what happened.

574
00:36:20,080 --> 00:36:23,440
Speaker 2: Finally, let's talk about an option that is available, a

575
00:36:23,520 --> 00:36:27,880
Speaker 2: lawsuit against the federal government. So the family suing Ice

576
00:36:28,040 --> 00:36:29,920
Speaker 2: or the Department of Homeland Security.

577
00:36:30,360 --> 00:36:34,560
Speaker 11: Yes, that is the best route, even though it is

578
00:36:34,800 --> 00:36:38,279
Speaker 11: riddled with complexity. As the lawyer who is representing rene

579
00:36:38,239 --> 00:36:42,359
Speaker 11: a Goods family explained. It is riddled with complexity. It

580
00:36:42,520 --> 00:36:47,680
Speaker 11: is not a really full vindication of anyone's rights, but

581
00:36:47,920 --> 00:36:50,759
Speaker 11: it is the best route to accountability. The way the

582
00:36:50,840 --> 00:36:54,120
Speaker 11: law works now, you file a claim under the Federal

583
00:36:54,160 --> 00:36:58,560
Speaker 11: Thought Claims Act, not against the officer who killed you

584
00:36:58,680 --> 00:37:02,560
Speaker 11: or who hurt you, but against the United States government.

585
00:37:03,040 --> 00:37:06,799
Speaker 11: The statute originally was really intended for things like, you know,

586
00:37:07,040 --> 00:37:12,560
Speaker 11: a USPS driver running over somebody, like a negligent type

587
00:37:12,560 --> 00:37:15,760
Speaker 11: of an act, and then somebody would file a claim

588
00:37:15,920 --> 00:37:19,440
Speaker 11: with the agency and the agency would compensate for that

589
00:37:19,600 --> 00:37:24,040
Speaker 11: negligent action. The statute is not a great fit for

590
00:37:24,280 --> 00:37:29,120
Speaker 11: constitutional violations like these, and the problem with the statute too,

591
00:37:29,560 --> 00:37:34,800
Speaker 11: is that the government invariably invokes the so called discretionary

592
00:37:34,920 --> 00:37:38,880
Speaker 11: function immunity. So they basically say the officer was acting

593
00:37:39,280 --> 00:37:42,319
Speaker 11: within the scope of his duty and he was exercising

594
00:37:42,400 --> 00:37:46,360
Speaker 11: discretion in that he was making a choice between whether

595
00:37:46,440 --> 00:37:50,160
Speaker 11: to turn right or left, and therefore discretion immunity applies,

596
00:37:50,200 --> 00:37:53,279
Speaker 11: and even the federal government cannot be held accountable. So

597
00:37:53,760 --> 00:37:57,400
Speaker 11: those suits are very hard, but it's still the best option,

598
00:37:57,719 --> 00:38:00,120
Speaker 11: the FTCA route against the government.

599
00:37:59,760 --> 00:38:04,040
Speaker 2: That's can you think of a big case recently, or

600
00:38:04,080 --> 00:38:08,280
Speaker 2: you know the last case where plaintiffs won using that route.

601
00:38:08,560 --> 00:38:13,319
Speaker 11: That's a great question. There are no immediate cases that

602
00:38:13,360 --> 00:38:15,920
Speaker 11: come to mind. What comes to my mind is actually

603
00:38:15,920 --> 00:38:18,600
Speaker 11: the case we argued in front of the Supreme Court

604
00:38:18,719 --> 00:38:22,760
Speaker 11: just last year where there was a wrong house raid

605
00:38:23,080 --> 00:38:27,799
Speaker 11: on an innocent families home pre dawn, even though there

606
00:38:27,840 --> 00:38:32,160
Speaker 11: was an address on the mailbox right there in front

607
00:38:32,239 --> 00:38:35,040
Speaker 11: of the house telling the officers that this was a

608
00:38:35,080 --> 00:38:39,319
Speaker 11: wrong house to raid. And so the family sued the

609
00:38:39,360 --> 00:38:44,080
Speaker 11: government for this wrong house raid. It was in Atlanta, Georgia,

610
00:38:44,200 --> 00:38:48,480
Speaker 11: and the government basically argued, you can't sue us because

611
00:38:48,640 --> 00:38:53,920
Speaker 11: the officer exercised judgment and there is supremacy clause immunity

612
00:38:54,000 --> 00:38:57,360
Speaker 11: and discretionary function immunity. And the case went all the

613
00:38:57,360 --> 00:39:00,839
Speaker 11: way to the Supreme Court, and Justice Gore Search even said,

614
00:39:00,880 --> 00:39:03,880
Speaker 11: you'd think there would be a remedy, wouldn't you for

615
00:39:03,960 --> 00:39:06,680
Speaker 11: that kind of a raid, But he said the answer

616
00:39:06,880 --> 00:39:10,759
Speaker 11: is not that simple. And the Supreme Court did not

617
00:39:10,920 --> 00:39:15,080
Speaker 11: rule for the family. They remanded the case back for reconsideration.

618
00:39:15,680 --> 00:39:18,920
Speaker 11: So this is pretty much like the most positive outcome

619
00:39:19,280 --> 00:39:23,680
Speaker 11: is that we get to reargue this case again, years

620
00:39:23,719 --> 00:39:27,280
Speaker 11: and years after this actual wrong house raid.

621
00:39:27,440 --> 00:39:30,800
Speaker 8: And the family still has seen no justice.

622
00:39:30,920 --> 00:39:33,719
Speaker 11: The problem, then, is that not too many lawyers even

623
00:39:33,800 --> 00:39:36,520
Speaker 11: want to argue these cases because it takes years and

624
00:39:36,640 --> 00:39:39,879
Speaker 11: years to get anywhere, as this example demonstrates.

625
00:39:40,200 --> 00:39:43,480
Speaker 2: Yeah, I remember that case because the facts were so outrageous.

626
00:39:43,760 --> 00:39:46,680
Speaker 2: Thanks so much for joining Meanya. That's Anya Bidwell of

627
00:39:46,719 --> 00:39:49,799
Speaker 2: the Institute for Justice, and that's it for this edition

628
00:39:49,840 --> 00:39:52,480
Speaker 2: of the Bloomberg Law Show. Remember you can always get

629
00:39:52,480 --> 00:39:55,640
Speaker 2: the latest legal news on our Bloomberg Law Podcast. You

630
00:39:55,680 --> 00:40:00,120
Speaker 2: can find them on Apple Podcasts, Spotify, and www at

631
00:40:00,160 --> 00:40:04,279
Speaker 2: Bloomberg dot com, slash podcast, Slash Law, and remember to

632
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Speaker 2: tune into The Bloomberg Law Show every weeknight at ten

633
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634
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