1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,800 --> 00:00:12,719 Speaker 2: In twin rulings this week, the Supreme Court expanded the 3 00:00:12,760 --> 00:00:17,239 Speaker 2: president's power to fire top government officials for any reason, 4 00:00:17,600 --> 00:00:20,960 Speaker 2: but carved out an exception for the Federal Reserve Board, 5 00:00:21,160 --> 00:00:25,240 Speaker 2: protecting governors from being fired without proof of wrongdoing. The 6 00:00:25,280 --> 00:00:29,319 Speaker 2: Court was split six to three down ideological lines in 7 00:00:29,360 --> 00:00:33,680 Speaker 2: the decision allowing the President to fire independent regulators like 8 00:00:33,800 --> 00:00:39,199 Speaker 2: former FTC Commissioner Rebecca Slaughter without cause despite laws to 9 00:00:39,240 --> 00:00:43,120 Speaker 2: the contrary, and overturning a ninety year old precedent in 10 00:00:43,159 --> 00:00:46,880 Speaker 2: the process. But the Court was more closely divided five 11 00:00:46,960 --> 00:00:50,600 Speaker 2: to four in the case allowing FED Governor Lisa Cook 12 00:00:50,960 --> 00:00:54,279 Speaker 2: to remain in her job while she fights Trump's attempt 13 00:00:54,320 --> 00:00:59,120 Speaker 2: to fire her over unproven mortgage fraud allegations. Chief Justice 14 00:00:59,200 --> 00:01:03,320 Speaker 2: John Roberts and Justice Brett Kavanaugh join with the liberals 15 00:01:03,360 --> 00:01:07,680 Speaker 2: to make up the majority, reinforcing the Fed's independence from 16 00:01:07,720 --> 00:01:11,520 Speaker 2: the White House. Both had post skeptical questions to the 17 00:01:11,520 --> 00:01:14,360 Speaker 2: Solicitor General during the oral arguments. 18 00:01:14,600 --> 00:01:21,479 Speaker 3: Their position that there's no judicial review, no process required, 19 00:01:22,160 --> 00:01:27,360 Speaker 3: no remedy available, very low bar for cause, that the 20 00:01:27,400 --> 00:01:31,839 Speaker 3: President alone determines. I mean that would weaken, if not shatter, 21 00:01:31,959 --> 00:01:33,479 Speaker 3: the independence of the Federal Reserve. 22 00:01:34,440 --> 00:01:37,320 Speaker 4: It seems to me that if there is any level 23 00:01:37,360 --> 00:01:40,120 Speaker 4: of cause, and you indicate that there is some level 24 00:01:40,160 --> 00:01:42,560 Speaker 4: of cause, right, well, you can't be right about the 25 00:01:42,600 --> 00:01:46,000 Speaker 4: idea that it courts can't order anybody who's been removed 26 00:01:47,120 --> 00:01:48,120 Speaker 4: to be reinstated. 27 00:01:48,480 --> 00:01:52,440 Speaker 2: The Chief wrote the majority opinions in both cases. My 28 00:01:52,560 --> 00:01:56,400 Speaker 2: guest is an expert in constitutional law, Jillian Metzger, a 29 00:01:56,440 --> 00:01:59,640 Speaker 2: professor at Columbia Law School. Jillian, would you say that 30 00:01:59,680 --> 00:02:05,480 Speaker 2: the drastically expanded presidential power, even if the president doesn't 31 00:02:05,520 --> 00:02:08,840 Speaker 2: have the power right now to fire fed Governor Cook? 32 00:02:09,520 --> 00:02:11,480 Speaker 5: I think it did. I mean whether this was the 33 00:02:11,520 --> 00:02:15,080 Speaker 5: expansion or the recognition of what the Court had done before, 34 00:02:15,440 --> 00:02:18,480 Speaker 5: you might quibble on. I think the Court had all 35 00:02:18,520 --> 00:02:22,720 Speaker 5: but overturned Humphrey's executor in some of its earlier decisions. 36 00:02:22,960 --> 00:02:26,360 Speaker 5: It's a little bit unclear to me exactly what Cook 37 00:02:26,480 --> 00:02:29,000 Speaker 5: means in practice. You know, I read one thing where 38 00:02:29,000 --> 00:02:30,320 Speaker 5: Trump is saying he's going to go ahead and do 39 00:02:30,320 --> 00:02:32,600 Speaker 5: it again. We'll get a chance to see. But the 40 00:02:32,639 --> 00:02:36,040 Speaker 5: court really does emphasize and Cook that the removal for 41 00:02:36,160 --> 00:02:40,120 Speaker 5: cause would be judicially reviewable, rejects the idea that it 42 00:02:40,200 --> 00:02:44,280 Speaker 5: can't be, and also has language that emphasizes the need 43 00:02:44,360 --> 00:02:47,160 Speaker 5: for that review in order to protect the actual independence 44 00:02:47,200 --> 00:02:51,360 Speaker 5: and goes out of its way to emphasize it. Notwithstanding Slaughter, 45 00:02:52,080 --> 00:02:55,000 Speaker 5: it sees the Federal Reserve is different. So I think 46 00:02:55,080 --> 00:02:58,360 Speaker 5: it's unclear exactly whether in practice they would be willing 47 00:02:58,400 --> 00:03:02,200 Speaker 5: to tolerate pretextual firings just because of the President provides 48 00:03:02,240 --> 00:03:05,040 Speaker 5: some notice and an opportunity for hearing. And that said, 49 00:03:05,200 --> 00:03:07,919 Speaker 5: what they specify as required is notice that an opportunity 50 00:03:07,960 --> 00:03:10,560 Speaker 5: for hearing are not that elaborate. My guess is that 51 00:03:10,600 --> 00:03:14,440 Speaker 5: the protection will likely come from the judicial review afterwards 52 00:03:14,680 --> 00:03:18,040 Speaker 5: rather than the procedures they outline, But I think again 53 00:03:18,240 --> 00:03:19,919 Speaker 5: we have to see how that works in practice. 54 00:03:20,080 --> 00:03:23,000 Speaker 2: Tell us about the Chief Justice is reasoning in the 55 00:03:23,040 --> 00:03:23,760 Speaker 2: Cook case. 56 00:03:24,360 --> 00:03:27,840 Speaker 5: So Cook came up before the court on an emergency 57 00:03:28,240 --> 00:03:31,040 Speaker 5: application for a stay. So the question the court focused 58 00:03:31,040 --> 00:03:33,200 Speaker 5: on is whether or not the government was likely to 59 00:03:33,240 --> 00:03:36,480 Speaker 5: succeed on the merits to justify granting a stay. The 60 00:03:36,520 --> 00:03:39,440 Speaker 5: courts below had granted an injunctive relief in Cook's favor 61 00:03:39,440 --> 00:03:43,520 Speaker 5: against the government and the government made a number of 62 00:03:43,680 --> 00:03:47,360 Speaker 5: arguments of different degrees of radicalness. They argue that the 63 00:03:47,400 --> 00:03:51,080 Speaker 5: president had found cause. They argue that the president's determinations 64 00:03:51,080 --> 00:03:54,560 Speaker 5: were totally unreviewable. They suggested that requiring cause or review 65 00:03:54,640 --> 00:03:57,720 Speaker 5: might be unconstitutional. So it's an argument that actually Thomas 66 00:03:57,720 --> 00:04:00,440 Speaker 5: makes in his opinion, but the government itself didn't push 67 00:04:00,520 --> 00:04:03,560 Speaker 5: that argument. They accepted that the Court had suggested in 68 00:04:03,600 --> 00:04:05,920 Speaker 5: Wilcox that the Federal Reserve was different, and you could 69 00:04:05,920 --> 00:04:08,320 Speaker 5: have four cause removal. And it gets to the Federal Reserve, 70 00:04:08,440 --> 00:04:11,160 Speaker 5: and the majority does go ahead and says that at 71 00:04:11,240 --> 00:04:15,080 Speaker 5: least the Federal Reserve, as connected to its monetary policy functions, 72 00:04:15,360 --> 00:04:17,599 Speaker 5: the Fed in that regard could be an independ agency 73 00:04:17,680 --> 00:04:20,560 Speaker 5: with four cause removal. And there's some debate among the 74 00:04:20,680 --> 00:04:22,320 Speaker 5: justices about whether or not the Court should do that. 75 00:04:22,440 --> 00:04:25,240 Speaker 5: And you have Barrett dissenting saying, hey, you know, on 76 00:04:25,279 --> 00:04:26,680 Speaker 5: an application for stay. 77 00:04:26,440 --> 00:04:27,520 Speaker 6: This is a tough issue. 78 00:04:27,520 --> 00:04:28,440 Speaker 5: We've just done slaughter. 79 00:04:28,480 --> 00:04:29,440 Speaker 7: We should think offer. 80 00:04:29,960 --> 00:04:32,000 Speaker 5: But really animating the majority seem to be a great 81 00:04:32,000 --> 00:04:34,920 Speaker 5: deal of concern to not have questions about the independence 82 00:04:34,960 --> 00:04:38,039 Speaker 5: of the Federal Reserve lingering out there. That said, there's 83 00:04:38,080 --> 00:04:40,120 Speaker 5: a tension between the courts saying we don't leave open 84 00:04:40,200 --> 00:04:44,080 Speaker 5: questions about protecting the FED, and the fact that all 85 00:04:44,120 --> 00:04:47,680 Speaker 5: it specifies this fairly thin procedure. But then judicial review, 86 00:04:48,040 --> 00:04:50,680 Speaker 5: which seems to be perfectly expectable, that what's going to 87 00:04:50,680 --> 00:04:52,160 Speaker 5: happens to the present is going to remove again. 88 00:04:52,480 --> 00:04:54,440 Speaker 2: So then does it seem like the case will end 89 00:04:54,520 --> 00:04:57,040 Speaker 2: up back at the Supreme Court again? And will the 90 00:04:57,279 --> 00:05:00,920 Speaker 2: justices almost have to take it with these the important 91 00:05:00,960 --> 00:05:04,160 Speaker 2: issues about the FED left unresolved. 92 00:05:04,000 --> 00:05:05,719 Speaker 5: Usually I would say this is kind of thing that 93 00:05:05,760 --> 00:05:07,600 Speaker 5: the Court would take. But having taken it, and one 94 00:05:07,640 --> 00:05:10,080 Speaker 5: of the things they also do is they do specify 95 00:05:10,160 --> 00:05:13,080 Speaker 5: that they think that the threshold for what counts as caused, 96 00:05:13,080 --> 00:05:16,880 Speaker 5: although not as high as Cooks specified, it's still fairly significant. 97 00:05:16,880 --> 00:05:20,200 Speaker 5: And they do emphasize the importance of the Fed's independence, 98 00:05:20,440 --> 00:05:23,000 Speaker 5: and they do say that whatever accounts as caused has 99 00:05:23,040 --> 00:05:25,360 Speaker 5: to be tied to the purposes of the FED and 100 00:05:25,400 --> 00:05:29,360 Speaker 5: its goals. And so those provide some real basis to 101 00:05:29,400 --> 00:05:32,560 Speaker 5: give cause some meaning. And that's also some degree of 102 00:05:32,560 --> 00:05:34,320 Speaker 5: guidance to the lower court. So if a lower court 103 00:05:34,320 --> 00:05:37,479 Speaker 5: applying that guidance, as the Court and envisions would happen, 104 00:05:37,720 --> 00:05:39,919 Speaker 5: comes to the conclusion that what the president's done is 105 00:05:39,960 --> 00:05:43,040 Speaker 5: not cause, and that gets affirmed by an appellate court. 106 00:05:43,080 --> 00:05:45,160 Speaker 5: I'm not sure that the court would find it necessary 107 00:05:45,200 --> 00:05:46,479 Speaker 5: to engage further on that. 108 00:05:46,800 --> 00:05:50,440 Speaker 2: Then we had this six to three decision down ideological 109 00:05:50,520 --> 00:05:53,680 Speaker 2: lines in the Slaughter case, and the only way they 110 00:05:53,720 --> 00:05:56,440 Speaker 2: distinguished the two was the fed is different. 111 00:05:56,839 --> 00:05:59,400 Speaker 5: Honestly, I think it is the decision in both these 112 00:05:59,440 --> 00:06:02,200 Speaker 5: cases how they came out was expected. I found Slaughter 113 00:06:02,279 --> 00:06:05,920 Speaker 5: really disappointing in its reason, in its thinness. A lot 114 00:06:05,960 --> 00:06:09,760 Speaker 5: of the Court's recent decisions have been thin the majorities, 115 00:06:09,920 --> 00:06:11,960 Speaker 5: and one of the things that they just don't deal 116 00:06:12,040 --> 00:06:15,200 Speaker 5: with in any fair way is the historical evidence and 117 00:06:15,279 --> 00:06:17,520 Speaker 5: this opinion. You know, there was great briefing on this 118 00:06:17,640 --> 00:06:20,000 Speaker 5: or is at this point a substantial amount of historical 119 00:06:20,000 --> 00:06:23,440 Speaker 5: evidence and debates, historical debates to be sure about the 120 00:06:23,480 --> 00:06:26,000 Speaker 5: extent to which you had removal protections or the extent 121 00:06:26,040 --> 00:06:27,840 Speaker 5: to which it was clear that the president had at 122 00:06:27,839 --> 00:06:30,320 Speaker 5: will removable power at the time of the founding. You know, 123 00:06:30,480 --> 00:06:33,720 Speaker 5: serious historians have engaged and studied this, and I certainly 124 00:06:33,720 --> 00:06:37,159 Speaker 5: think the balance of that evidence pretty significantly does favor 125 00:06:37,200 --> 00:06:39,600 Speaker 5: the idea that there were number of different kinds of 126 00:06:39,680 --> 00:06:42,600 Speaker 5: controls that were imposed, and that the historical record is 127 00:06:42,760 --> 00:06:44,960 Speaker 5: not at all that the country had come to agreement 128 00:06:45,000 --> 00:06:48,080 Speaker 5: that president had at will removal power in seventeen eighty nine, 129 00:06:48,120 --> 00:06:50,479 Speaker 5: and the Court, you know, references some of that in 130 00:06:50,640 --> 00:06:53,320 Speaker 5: taking on the dissent, but really it's treatment of the 131 00:06:53,400 --> 00:06:56,760 Speaker 5: history is so pathetic, it's so thin, it's so unserious, 132 00:06:56,920 --> 00:06:58,960 Speaker 5: and we're talking about the structure of our government and 133 00:06:59,200 --> 00:07:02,000 Speaker 5: president of the Court, that Congress has relied on, the 134 00:07:02,000 --> 00:07:04,680 Speaker 5: country has relied on, and it really it's such a 135 00:07:04,720 --> 00:07:08,240 Speaker 5: one sided treatment, citing only a couple of scholarship. At 136 00:07:08,240 --> 00:07:10,400 Speaker 5: the point when the opinion discusses the history and claims 137 00:07:10,400 --> 00:07:12,720 Speaker 5: that this is all decided in seventeen eighty nine, you know, 138 00:07:12,800 --> 00:07:15,600 Speaker 5: just sites one side of the debate. No academic would 139 00:07:15,600 --> 00:07:18,200 Speaker 5: ever do that, No serious treatment of the issue should 140 00:07:18,200 --> 00:07:20,480 Speaker 5: ever do that. And then when the Court does engage 141 00:07:20,480 --> 00:07:23,160 Speaker 5: with some of the counteri history, it's just dismissive of 142 00:07:23,240 --> 00:07:25,200 Speaker 5: it and it doesn't really take seriously the actually the 143 00:07:25,280 --> 00:07:28,160 Speaker 5: historical record here is really not in its favor, but 144 00:07:28,280 --> 00:07:31,240 Speaker 5: certainly at a minimum unclear, as scholars of both sides 145 00:07:31,360 --> 00:07:34,480 Speaker 5: have acknowledged, and that does really, I think, affect the 146 00:07:34,520 --> 00:07:36,080 Speaker 5: strength of the majority's argument. 147 00:07:36,320 --> 00:07:39,280 Speaker 2: I mean, the majority opinion is all about the unitary 148 00:07:39,360 --> 00:07:44,000 Speaker 2: executive theory, isn't it that the Constitution vests executive power 149 00:07:44,320 --> 00:07:45,400 Speaker 2: solely in the president. 150 00:07:45,760 --> 00:07:47,840 Speaker 5: I mean, the majority's argument has been, as it has 151 00:07:47,880 --> 00:07:51,120 Speaker 5: been in all these cases. It's the Constitution vests the 152 00:07:51,160 --> 00:07:54,320 Speaker 5: executive power in a president, and that means all the 153 00:07:54,360 --> 00:07:56,840 Speaker 5: executive power in the president. And they gave up and 154 00:07:56,880 --> 00:07:59,880 Speaker 5: didn't want to have any kind of board that when 155 00:08:00,120 --> 00:08:02,560 Speaker 5: on a single person or to preserve energy and effectiveness, 156 00:08:02,560 --> 00:08:05,120 Speaker 5: and that that therefore means president has to have removal power. 157 00:08:05,120 --> 00:08:07,920 Speaker 5: It will as a structural inference. There are huge leaps there. 158 00:08:08,080 --> 00:08:10,760 Speaker 5: It doesn't follow from the fact that the Constitution invests 159 00:08:10,800 --> 00:08:13,840 Speaker 5: the executive power in the president that Congress can impose 160 00:08:13,840 --> 00:08:16,520 Speaker 5: any limits on that removal power. Some moments might go 161 00:08:16,560 --> 00:08:18,480 Speaker 5: too far. But the Court just says the two are 162 00:08:18,520 --> 00:08:20,920 Speaker 5: the same. They're not. They're logically not the same thing. 163 00:08:21,080 --> 00:08:23,440 Speaker 5: And there's a very interesting bit where the Court also 164 00:08:23,560 --> 00:08:25,680 Speaker 5: just rejects out of hand the fact for the last 165 00:08:25,760 --> 00:08:28,559 Speaker 5: hundred plus years, one hundred and fifty years now, we've 166 00:08:28,560 --> 00:08:32,840 Speaker 5: had independent agencies by suggesting that just because we've deviated 167 00:08:32,840 --> 00:08:34,560 Speaker 5: from the true path of the meaning of the Constitution. 168 00:08:34,679 --> 00:08:36,520 Speaker 5: You know, the Court's obligations to go back to it. 169 00:08:36,720 --> 00:08:39,920 Speaker 5: But what's fascinating is that the unitary executive theory is 170 00:08:40,040 --> 00:08:43,560 Speaker 5: itself a modern day creation. The Court is giving voice 171 00:08:43,640 --> 00:08:46,720 Speaker 5: to a theory and understanding of the structure of the 172 00:08:46,760 --> 00:08:49,720 Speaker 5: Constitution that really took hold in the nineteen eighties with 173 00:08:49,840 --> 00:08:53,679 Speaker 5: the Reagan administration. And so it's just a deep kind 174 00:08:53,720 --> 00:08:56,000 Speaker 5: of tragic irony and in some sense, to my mind, 175 00:08:56,080 --> 00:08:58,199 Speaker 5: you want to give a good argument for the unitiy executive, 176 00:08:58,679 --> 00:09:00,880 Speaker 5: it would be that we have, through the constructed an 177 00:09:01,000 --> 00:09:05,360 Speaker 5: argument for presidential control and for presidential centrality over the 178 00:09:05,559 --> 00:09:08,920 Speaker 5: administrative state that didn't previously exist. You could make that argument, 179 00:09:08,960 --> 00:09:10,640 Speaker 5: But the Court doesn't make that. It just makes this 180 00:09:10,679 --> 00:09:15,000 Speaker 5: incredibly thin argument based on its own structural inferences, claims 181 00:09:15,000 --> 00:09:17,199 Speaker 5: about the text, ignoring the historical evidence. 182 00:09:17,520 --> 00:09:20,240 Speaker 2: The law issue in the Slaughter case was passed by 183 00:09:20,320 --> 00:09:25,040 Speaker 2: Congress in nineteen fourteen. It permits a president to remove 184 00:09:25,320 --> 00:09:29,880 Speaker 2: FTC commissioners only for cause. And this Court has repeatedly 185 00:09:30,000 --> 00:09:33,640 Speaker 2: said that this issue or that issue is up to Congress. 186 00:09:33,880 --> 00:09:38,320 Speaker 2: And here Congress said something. Congress did something and they're saying, no, 187 00:09:38,840 --> 00:09:41,520 Speaker 2: it's up to us, and more than one hundred years later. 188 00:09:42,240 --> 00:09:44,480 Speaker 5: That actually is one of the important points here, and 189 00:09:44,520 --> 00:09:46,199 Speaker 5: this is the point that dissent makes, is that the 190 00:09:46,240 --> 00:09:49,320 Speaker 5: separation powers from much of our history has been something 191 00:09:49,360 --> 00:09:52,000 Speaker 5: that the political branches have worked out, They've hashed it out. 192 00:09:52,160 --> 00:09:55,880 Speaker 5: The Court certainly has had decisions making important points Marbury 193 00:09:55,960 --> 00:09:59,319 Speaker 5: versus Madisine and the importance of independent judicial review in 194 00:09:59,400 --> 00:10:01,960 Speaker 5: eighteen oh three, but the separation of powers and the 195 00:10:02,000 --> 00:10:04,520 Speaker 5: sort of balance between the executive branch and the legislative 196 00:10:04,520 --> 00:10:06,640 Speaker 5: branch has really been left to the political powers to 197 00:10:06,679 --> 00:10:10,120 Speaker 5: work out for long swaths of that period. And this 198 00:10:10,280 --> 00:10:14,040 Speaker 5: Court has really discharged up the separation of powers on steroids, 199 00:10:14,120 --> 00:10:16,240 Speaker 5: and the net effect has been that, I mean, it 200 00:10:16,240 --> 00:10:19,200 Speaker 5: empowers the executive branch, for sure, but it really empowers 201 00:10:19,240 --> 00:10:23,200 Speaker 5: the judiciary. It's the judiciary that makes the determinations and 202 00:10:23,280 --> 00:10:25,960 Speaker 5: has the power to say, basically, we're going to cast 203 00:10:26,000 --> 00:10:28,960 Speaker 5: aside one hundred and fifty years of governance in this 204 00:10:29,040 --> 00:10:31,440 Speaker 5: country and the political compromises that result in that. 205 00:10:31,800 --> 00:10:36,839 Speaker 2: In her dissent, Justice Sodomyrs says that the majority refuses 206 00:10:36,920 --> 00:10:40,040 Speaker 2: to say where its theory leads or where it ends? 207 00:10:40,440 --> 00:10:41,600 Speaker 2: Where do you think it leads? 208 00:10:42,080 --> 00:10:45,559 Speaker 5: I think the critical questions are how broad is the 209 00:10:45,600 --> 00:10:48,839 Speaker 5: import of the court's decision. Are we talking about principal 210 00:10:48,920 --> 00:10:51,840 Speaker 5: officers at the top of independent agencies? All of the 211 00:10:51,960 --> 00:10:55,760 Speaker 5: recent decisions dealt with the members of a body that 212 00:10:55,960 --> 00:10:58,800 Speaker 5: was the governing body, not the officers below them or 213 00:10:58,800 --> 00:11:01,440 Speaker 5: the employees below them. In other words, are we talking 214 00:11:01,480 --> 00:11:04,320 Speaker 5: about the constitutionality of the civil service? You look at 215 00:11:04,360 --> 00:11:09,079 Speaker 5: the language of the majority opinion where it says what text, 216 00:11:09,240 --> 00:11:12,240 Speaker 5: history and structure settle our president confirms the president may 217 00:11:12,280 --> 00:11:15,840 Speaker 5: remove his subordinates at will. Well, employees and inferior officers 218 00:11:15,880 --> 00:11:18,880 Speaker 5: are the president's subordinates under the unitary executive theory. And 219 00:11:18,920 --> 00:11:22,120 Speaker 5: if you take that logic seriously, then this isn't just 220 00:11:22,160 --> 00:11:24,160 Speaker 5: about principal officers. This is all the way down, and 221 00:11:24,200 --> 00:11:27,240 Speaker 5: that is transformedive beyond belief. That is chaos, beyond belief. 222 00:11:27,280 --> 00:11:30,360 Speaker 5: That is just a fundamental redoing of how our government 223 00:11:30,400 --> 00:11:34,280 Speaker 5: has operated ever since the spoil system of the eighteen thirties. 224 00:11:34,480 --> 00:11:37,960 Speaker 2: The implications of this decision are certainly far reaching. Thanks 225 00:11:38,000 --> 00:11:41,600 Speaker 2: so much for sharing your insights, Jillian. That's professor Gillian 226 00:11:41,679 --> 00:11:44,760 Speaker 2: Metzger of Columbia Law School coming up next on the 227 00:11:44,760 --> 00:11:49,400 Speaker 2: Bloomberg Law Show. The Supreme Court upholds birthright citizenship in 228 00:11:49,400 --> 00:11:52,760 Speaker 2: a defeat for President Trump. I'm June Grosso and you're 229 00:11:52,800 --> 00:11:57,640 Speaker 2: listening to Bloomberg. The Supreme Court upheld the long held 230 00:11:57,720 --> 00:12:03,240 Speaker 2: principle of birthright citizenship this week, rejecting President Trump's attempt 231 00:12:03,280 --> 00:12:06,760 Speaker 2: to redefine what it means to be an American. Under 232 00:12:06,800 --> 00:12:11,080 Speaker 2: Trump's executive order, only babies born to a US citizen 233 00:12:11,360 --> 00:12:14,679 Speaker 2: or a Green card holder would have citizenship. But in 234 00:12:14,679 --> 00:12:18,560 Speaker 2: a six to three decision, the Court reaffirmed or ruling 235 00:12:18,600 --> 00:12:21,520 Speaker 2: from one hundred and twenty eight years ago that the 236 00:12:21,600 --> 00:12:27,640 Speaker 2: Fourteenth Amendment guarantees citizenship to virtually everyone born on US soil. 237 00:12:28,000 --> 00:12:32,480 Speaker 6: The Supreme Court decided this issue definitively in eighteen ninety eight, 238 00:12:32,880 --> 00:12:37,760 Speaker 6: and again today reaffirmed that the Fourteenth Amendment means that 239 00:12:37,840 --> 00:12:42,040 Speaker 6: everyone born here is a citizen alike that can only 240 00:12:42,040 --> 00:12:45,760 Speaker 6: be changed by constitutional amendment, and that effort will fail. 241 00:12:46,160 --> 00:12:50,360 Speaker 2: The case was personal for Celia Wang, the ACLU attorney 242 00:12:50,400 --> 00:12:53,840 Speaker 2: who argued before the court. She herself is a birthright 243 00:12:53,960 --> 00:12:58,720 Speaker 2: citizen born in Oregon to immigrant parents. Chief Justice John 244 00:12:58,800 --> 00:13:02,840 Speaker 2: Roberts wrote them opinion, saying the Court was keeping the 245 00:13:02,920 --> 00:13:06,520 Speaker 2: promise made by the framers of the fourteenth Amendment, the 246 00:13:06,600 --> 00:13:10,520 Speaker 2: promise of citizenship to everyone born here. Joining me is 247 00:13:10,559 --> 00:13:15,319 Speaker 2: Professor David super of Georgetown Law, an expert in constitutional law. 248 00:13:15,559 --> 00:13:17,600 Speaker 2: So David, this was a six to three decision, but 249 00:13:17,800 --> 00:13:22,920 Speaker 2: not down ideological lines. The Chief and Justices Ammy Cony, Barrett, 250 00:13:22,920 --> 00:13:25,640 Speaker 2: and Brett Kavanaugh join with the liberals to make up 251 00:13:25,640 --> 00:13:28,360 Speaker 2: the sixth and the majority tell us about the Chief's 252 00:13:28,360 --> 00:13:29,920 Speaker 2: majority opinion. 253 00:13:29,880 --> 00:13:34,880 Speaker 1: The Chief Justice looked at the history of the language 254 00:13:34,880 --> 00:13:39,680 Speaker 1: of the fourteenth Amendment and found that, going far back 255 00:13:39,760 --> 00:13:44,280 Speaker 1: into the English common law, someone who is born in 256 00:13:44,360 --> 00:13:47,880 Speaker 1: a place is subject to the jurisdiction of that place. 257 00:13:48,400 --> 00:13:52,240 Speaker 1: And when the fourteenth Amendment says that children that are 258 00:13:52,280 --> 00:13:55,640 Speaker 1: born in the US subject to the US is jurisdiction, 259 00:13:55,880 --> 00:14:00,959 Speaker 1: are citizens, he said that that means what it says citizens, 260 00:14:01,000 --> 00:14:04,400 Speaker 1: except in the very special circumstance of the kids of 261 00:14:04,480 --> 00:14:08,280 Speaker 1: diplomats or perhaps people who were born during a foreign 262 00:14:08,320 --> 00:14:13,080 Speaker 1: military operation. But with those very very limited exceptions, he 263 00:14:13,280 --> 00:14:17,000 Speaker 1: found that the framers of the fourteenth Amendment used well 264 00:14:17,040 --> 00:14:20,120 Speaker 1: known terms from the English common law and we were 265 00:14:20,160 --> 00:14:20,880 Speaker 1: bound by them. 266 00:14:21,360 --> 00:14:24,000 Speaker 2: And he said there was scant evidence to support the 267 00:14:24,080 --> 00:14:28,760 Speaker 2: Trump administrations dramatically revisionist few and I remembered during the 268 00:14:28,880 --> 00:14:32,480 Speaker 2: oral arguments that Justice Elena Kagan pointed out to the 269 00:14:32,520 --> 00:14:37,440 Speaker 2: Solicitor General that he was relying on obscure sources like 270 00:14:37,680 --> 00:14:41,840 Speaker 2: an oration delivered at President Lincoln's funeral. They didn't have 271 00:14:41,920 --> 00:14:43,600 Speaker 2: much law to back them up, did they. 272 00:14:44,040 --> 00:14:48,640 Speaker 1: They really didn't, and they should have understood this. It's 273 00:14:48,680 --> 00:14:51,920 Speaker 1: striking that what their effectively were trying to do is 274 00:14:52,120 --> 00:14:58,120 Speaker 1: overrule a case from the nineteenth century called wom King Art, 275 00:14:58,280 --> 00:15:01,400 Speaker 1: which was handed down by all almost the same Supreme 276 00:15:01,440 --> 00:15:04,920 Speaker 1: Court that gave us separate but equaled plus e v. Ferguson, 277 00:15:05,280 --> 00:15:08,120 Speaker 1: one of the most reactionary courts in the history of 278 00:15:08,160 --> 00:15:13,280 Speaker 1: the country, found that birthright citizenship means what it says, 279 00:15:14,200 --> 00:15:19,400 Speaker 1: and if President Trump is trying to get even farther 280 00:15:19,880 --> 00:15:24,120 Speaker 1: to the right, even deeper into white supremacy than the 281 00:15:24,120 --> 00:15:27,640 Speaker 1: plus v. Ferguson court, that's a challenge. 282 00:15:28,080 --> 00:15:32,080 Speaker 2: Despite that, you had three of the court's most conservative 283 00:15:32,400 --> 00:15:36,440 Speaker 2: justices Clarence Thomas, Samuel Leito, and Neil Gorsitch dissented. Now 284 00:15:36,600 --> 00:15:39,520 Speaker 2: Thomas and Alito are no surprise they even dissented in 285 00:15:39,560 --> 00:15:43,560 Speaker 2: the tariff's case, But how did they defend their descents. 286 00:15:43,400 --> 00:15:47,480 Speaker 1: In many respects? Therefore descents because Justice Kavanaugh agreed with 287 00:15:47,560 --> 00:15:51,760 Speaker 1: the dissenters on the constitutional issues, so only a five 288 00:15:51,840 --> 00:15:57,080 Speaker 1: to four majority said that the Constitution protects people's birthright citizenship. 289 00:15:57,520 --> 00:16:01,040 Speaker 1: Three of them thought that the president can take it 290 00:16:01,080 --> 00:16:06,400 Speaker 1: away himself, and aforethought that Congress could. And it's instructive 291 00:16:06,920 --> 00:16:10,960 Speaker 1: that the dissenters really don't come up with a single 292 00:16:11,120 --> 00:16:16,080 Speaker 1: coherent theory, nor really does the federal government. They're getting 293 00:16:16,080 --> 00:16:18,960 Speaker 1: a scrap from here and a scrap from there and 294 00:16:19,040 --> 00:16:23,240 Speaker 1: trying to weave it into something, and they have quite 295 00:16:23,320 --> 00:16:26,640 Speaker 1: a number of different legal theories going on. But they 296 00:16:26,720 --> 00:16:30,760 Speaker 1: seem to say, well, at some point, the US deviated 297 00:16:31,000 --> 00:16:35,600 Speaker 1: from the English common law. Kind of remarkable from judges who, 298 00:16:36,080 --> 00:16:39,800 Speaker 1: on other occasions treat the common law as practically having 299 00:16:39,960 --> 00:16:44,000 Speaker 1: been handed down on tablets to Moses. But apparently we 300 00:16:44,120 --> 00:16:47,400 Speaker 1: deviated from the English common law. But no one's quite 301 00:16:47,520 --> 00:16:52,400 Speaker 1: sure when or how. Maybe someone said something at someone's funeral, 302 00:16:52,480 --> 00:16:55,560 Speaker 1: so maybe that's a big deal. But they say that 303 00:16:55,640 --> 00:16:59,320 Speaker 1: we've gone off to a different theory, but he can't 304 00:16:59,360 --> 00:17:04,280 Speaker 1: say where, he can't provide legal authority for that, and 305 00:17:04,600 --> 00:17:07,800 Speaker 1: the legal theories they come up with don't make a 306 00:17:07,840 --> 00:17:11,520 Speaker 1: great deal of sense. Taking some of them seriously, they 307 00:17:11,560 --> 00:17:15,520 Speaker 1: would seem to mean that anyone born here to foreign parents, 308 00:17:15,600 --> 00:17:19,200 Speaker 1: no matter how legal the parent status might be, is 309 00:17:19,359 --> 00:17:24,240 Speaker 1: not a US citizen. And if that's true, then why 310 00:17:24,240 --> 00:17:27,880 Speaker 1: did they even bother putting that language into the fourteenth Amendment. 311 00:17:28,320 --> 00:17:34,320 Speaker 2: Are the Conservatives deviating more and more from originalism or textualism? 312 00:17:34,640 --> 00:17:39,360 Speaker 1: It's strikingly unprincipled, and I mean, we've come to expect 313 00:17:39,800 --> 00:17:44,320 Speaker 1: a lot of this from Justice Alito and Justice Kavanaugh. 314 00:17:44,640 --> 00:17:47,600 Speaker 1: I had hoped that Justice Thomas would use this as 315 00:17:47,640 --> 00:17:52,080 Speaker 1: a chance to make a strong pitch for originalism and 316 00:17:52,119 --> 00:17:56,119 Speaker 1: say I don't like this result. I do like this president, 317 00:17:56,520 --> 00:18:00,199 Speaker 1: but originalism tells me that that's what this means. But 318 00:18:00,240 --> 00:18:02,520 Speaker 1: he doesn't do that. He comes up with this very 319 00:18:03,000 --> 00:18:07,439 Speaker 1: convoluted theory, which I think badly undercuts originalism. I was 320 00:18:07,480 --> 00:18:12,320 Speaker 1: also disappointed, frankly with Justice Gorsuch's position here, because I 321 00:18:12,320 --> 00:18:16,520 Speaker 1: think he takes originalism seriously, and the case that they 322 00:18:16,520 --> 00:18:20,520 Speaker 1: were trying to overrule Wan kim Ark is a model 323 00:18:20,560 --> 00:18:24,080 Speaker 1: of originalist reasoning, something that you would think they would 324 00:18:24,119 --> 00:18:26,760 Speaker 1: want to emulate rather than try to pick. 325 00:18:26,800 --> 00:18:30,399 Speaker 2: Apart, speaking of trying to overrule a one hundred and 326 00:18:30,400 --> 00:18:33,960 Speaker 2: twenty eight year old president, on Monday, the court reversed 327 00:18:34,040 --> 00:18:37,960 Speaker 2: a ninety year old president Humphrey's executor in the case 328 00:18:38,040 --> 00:18:42,399 Speaker 2: involving former FTC Commissioner Rebecca Slaughter, and on Tuesday, the 329 00:18:42,440 --> 00:18:45,199 Speaker 2: court reversed a twenty five year old president in the 330 00:18:45,200 --> 00:18:49,439 Speaker 2: case involving campaign finance regulations. Both those were six to 331 00:18:49,480 --> 00:18:53,679 Speaker 2: three decisions, with the Republican appointees in the majority and 332 00:18:53,720 --> 00:18:58,520 Speaker 2: the Democratic appointees in descent. Just as Elena Kagan wrote 333 00:18:58,520 --> 00:19:01,760 Speaker 2: the dissent in the case al eliminating federal limits on 334 00:19:01,880 --> 00:19:06,359 Speaker 2: spending by political parties coordinating with candidates, and she chotted 335 00:19:06,400 --> 00:19:11,400 Speaker 2: the majority for overturning precedents, saying it once again disregards 336 00:19:11,440 --> 00:19:16,000 Speaker 2: and disrespects the core legal principle of starry decisives. Does 337 00:19:16,080 --> 00:19:19,600 Speaker 2: precedent carry any weight for the Conservatives at this point? 338 00:19:19,840 --> 00:19:21,760 Speaker 2: Do they even feel like they have to follow it? 339 00:19:22,200 --> 00:19:25,720 Speaker 1: I think President has stopped mattering very much. There are 340 00:19:25,800 --> 00:19:31,359 Speaker 1: some respectable theories that say that we should follow the 341 00:19:31,400 --> 00:19:36,560 Speaker 1: best reading of the Constitution, we should follow an originalist meaning, 342 00:19:36,880 --> 00:19:41,960 Speaker 1: or we should follow textual analysis or something like that. 343 00:19:42,240 --> 00:19:45,439 Speaker 1: But they don't do that either. And in the case 344 00:19:45,800 --> 00:19:50,479 Speaker 1: overruling Humphrey's executor, they create a bunch of exceptions because 345 00:19:50,520 --> 00:19:52,919 Speaker 1: they think these are good public policy. They don't have 346 00:19:52,960 --> 00:19:57,400 Speaker 1: a coherent originalist theory for these exceptions. Indeed, their theory 347 00:19:57,480 --> 00:20:01,560 Speaker 1: for the whole Slaughter case seem to suggest that the 348 00:20:01,600 --> 00:20:05,239 Speaker 1: federal Reserve should be under the most presidential control. But 349 00:20:05,400 --> 00:20:07,639 Speaker 1: for policy reasons and because they don't want to be 350 00:20:07,640 --> 00:20:12,199 Speaker 1: blamed for a recession, they create an exception so precedent 351 00:20:12,320 --> 00:20:16,560 Speaker 1: doesn't matter, but neither does a coherent theory. This is 352 00:20:17,520 --> 00:20:19,600 Speaker 1: very policy driven judging. 353 00:20:20,320 --> 00:20:22,600 Speaker 2: I was going to say that, you know, you hear 354 00:20:22,720 --> 00:20:28,080 Speaker 2: from Trump and others in the administration complaints about liberal 355 00:20:28,160 --> 00:20:32,359 Speaker 2: activist judges, but it seems like the Supreme Court's conservative 356 00:20:32,640 --> 00:20:34,680 Speaker 2: justices have become activists. 357 00:20:35,040 --> 00:20:39,320 Speaker 1: They have become activists activists in pursuit of what they 358 00:20:39,359 --> 00:20:43,560 Speaker 1: think is good public policy, which is usually conservative but 359 00:20:43,800 --> 00:20:48,160 Speaker 1: sometimes has other wrinkles to it. They're making an exception 360 00:20:48,760 --> 00:20:53,359 Speaker 1: to presidential power over the federal Reserve is not really conservative. 361 00:20:53,960 --> 00:20:56,919 Speaker 1: It's that they don't want to crash the economy, and 362 00:20:56,960 --> 00:20:59,440 Speaker 1: I don't want to crash the economy either, So I'm 363 00:20:59,520 --> 00:21:03,359 Speaker 1: glad the Federal Reserve is not under the President's thumb completely. 364 00:21:03,680 --> 00:21:07,119 Speaker 1: But I don't think that's principal judging. So we're not 365 00:21:07,320 --> 00:21:11,040 Speaker 1: a court of precedent, and we're not really originalist. We 366 00:21:11,200 --> 00:21:16,800 Speaker 1: cite old stuff, but not usually definitive evidence of original 367 00:21:16,840 --> 00:21:20,560 Speaker 1: public meaning, just sort of random old stuff. So we're 368 00:21:20,600 --> 00:21:24,360 Speaker 1: really off on our own with this court doing what 369 00:21:24,400 --> 00:21:25,479 Speaker 1: they think is best. 370 00:21:26,160 --> 00:21:29,080 Speaker 2: The Chief Justice gets to assign the majority opinion when 371 00:21:29,080 --> 00:21:32,920 Speaker 2: he's in the majority, and Roberts wrote the majority opinions 372 00:21:33,160 --> 00:21:36,600 Speaker 2: in two of the most high profile cases of the term, 373 00:21:36,920 --> 00:21:41,560 Speaker 2: this case involving birthright citizenship and the tariff's case. And 374 00:21:41,600 --> 00:21:44,679 Speaker 2: he also wrote the majority opinions in the Cook and 375 00:21:44,760 --> 00:21:47,560 Speaker 2: Slaughter cases this week, and that's been a pattern of 376 00:21:47,560 --> 00:21:50,640 Speaker 2: his over the years. He's the chief that's his right. 377 00:21:50,760 --> 00:21:52,600 Speaker 2: But do you think he should give some of the 378 00:21:52,640 --> 00:21:56,280 Speaker 2: other justices a chance at these high profile cases instead 379 00:21:56,280 --> 00:21:57,480 Speaker 2: of keeping them for himself. 380 00:21:57,800 --> 00:22:00,679 Speaker 1: He hasn't done that all the time, but he has 381 00:22:00,720 --> 00:22:04,120 Speaker 1: certainly done it a great deal, and I think it's 382 00:22:04,240 --> 00:22:08,800 Speaker 1: because he understands the scrutiny the court is under and 383 00:22:08,840 --> 00:22:12,720 Speaker 1: believes that he can write an opinion that will be 384 00:22:12,920 --> 00:22:18,600 Speaker 1: less vulnerable to public criticism than some of his colleagues would. 385 00:22:18,800 --> 00:22:23,440 Speaker 1: He's a very hard worker, He's got impressive skills, and 386 00:22:23,680 --> 00:22:28,760 Speaker 1: I think he believes he will produce the most teflon opinions, 387 00:22:28,960 --> 00:22:31,160 Speaker 1: and history suggests that he may be right. 388 00:22:31,560 --> 00:22:35,679 Speaker 2: How did other Chief Justices handle the assignment of the 389 00:22:35,760 --> 00:22:36,960 Speaker 2: majority opinion? 390 00:22:37,680 --> 00:22:42,280 Speaker 1: It really varies a great deal. There are some very 391 00:22:42,320 --> 00:22:46,520 Speaker 1: important war in court decisions that Chief Justice Warren assigned 392 00:22:46,560 --> 00:22:50,400 Speaker 1: to himself, most obviously Brown versus Board of Education. He 393 00:22:50,520 --> 00:22:53,320 Speaker 1: was trying to get a unanimous court, which he succeeded 394 00:22:53,320 --> 00:22:56,879 Speaker 1: in doing, and felt that having personal control of the 395 00:22:56,920 --> 00:23:01,000 Speaker 1: opinions he was negotiating with the holdouts would allow him 396 00:23:01,040 --> 00:23:04,680 Speaker 1: to make the kinds of modifications that we unify the court. 397 00:23:05,280 --> 00:23:11,040 Speaker 1: Chief Justice Burger assigned himself opinions that seemed interesting and important. 398 00:23:11,119 --> 00:23:14,560 Speaker 1: Chief Justice Burger's skills were probably not on the level 399 00:23:14,600 --> 00:23:17,960 Speaker 1: of either Chief Justice Ward or Chief Justice Roberts, and 400 00:23:18,119 --> 00:23:22,080 Speaker 1: some of those opinions that he assigned himself have puzzled 401 00:23:22,119 --> 00:23:26,280 Speaker 1: people ever since. My sense of Chief Justice Ranquist is 402 00:23:26,320 --> 00:23:30,560 Speaker 1: that he did not particularly abuse the privilege of assigning opinions. 403 00:23:30,840 --> 00:23:34,800 Speaker 1: He certainly took some important ones for himself, but left 404 00:23:35,080 --> 00:23:38,119 Speaker 1: as many for his colleagues. So it's a matter of 405 00:23:38,160 --> 00:23:42,760 Speaker 1: different style. I think we've never had a Chief Justice 406 00:23:43,119 --> 00:23:46,600 Speaker 1: since John Marshall who cared as much about the Court's 407 00:23:46,600 --> 00:23:50,080 Speaker 1: public image as the current Chief Justice does, and I 408 00:23:50,080 --> 00:23:53,879 Speaker 1: think he correctly sees the tone of these opinions as 409 00:23:53,960 --> 00:23:58,560 Speaker 1: being very important to persuading the public that the Court 410 00:23:58,640 --> 00:24:03,320 Speaker 1: is in fact pursuing legal agenda rather than an ideological one. 411 00:24:03,560 --> 00:24:06,480 Speaker 2: As you know, David, Supreme Court approval ratings are near 412 00:24:06,680 --> 00:24:09,640 Speaker 2: historic lows, so the Chief has his work cut out 413 00:24:09,680 --> 00:24:12,919 Speaker 2: for him to get the public to regain their trust 414 00:24:12,960 --> 00:24:15,119 Speaker 2: in the Court. Thanks so much for joining me today, 415 00:24:15,200 --> 00:24:18,520 Speaker 2: David and giving us the historical perspective on the Court. 416 00:24:18,720 --> 00:24:22,320 Speaker 2: That's Professor David super of Georgetown Law, coming up next 417 00:24:22,359 --> 00:24:25,840 Speaker 2: on the Bloomberg Lawn Show. The Supreme Court continues its 418 00:24:25,920 --> 00:24:30,480 Speaker 2: pattern of rolling back campaign finance regulations. I'm June Grosso, 419 00:24:30,520 --> 00:24:36,040 Speaker 2: and you're listening to Bloomberg throughout longstanding federal limits on 420 00:24:36,200 --> 00:24:40,760 Speaker 2: spending by political parties in coordination with candidates, as a 421 00:24:40,840 --> 00:24:45,440 Speaker 2: violation of constitutional free speech rights. In a majority opinion 422 00:24:45,480 --> 00:24:49,560 Speaker 2: written by Justice Brett Cavanaugh, the court's conservatives reverse to 423 00:24:49,560 --> 00:24:53,040 Speaker 2: a twenty five year old precedent in ruling that political 424 00:24:53,080 --> 00:24:56,720 Speaker 2: parties can spend as much as they want in coordination 425 00:24:56,840 --> 00:25:01,920 Speaker 2: with candidates, and resolving Kavanaugh's concern during oral arguments. 426 00:25:02,280 --> 00:25:04,719 Speaker 3: That's the real source of the disadvantage. Right. You can 427 00:25:04,760 --> 00:25:08,040 Speaker 3: give huge money to the outside group, but you can't 428 00:25:08,080 --> 00:25:10,159 Speaker 3: give huge money of the party. So the parties are 429 00:25:10,240 --> 00:25:12,600 Speaker 3: very much weakened compared to the outside groups. 430 00:25:13,000 --> 00:25:16,959 Speaker 2: But writing for the Liberals in dissent, Justice Elena Kegan 431 00:25:17,119 --> 00:25:20,280 Speaker 2: warned that the decision could bring back quid pro quo 432 00:25:20,440 --> 00:25:24,040 Speaker 2: corruption by allowing a political party to serve as an 433 00:25:24,080 --> 00:25:28,119 Speaker 2: alternative checking account for a campaign, with donors giving as 434 00:25:28,200 --> 00:25:31,159 Speaker 2: much as half a million dollars to the party to 435 00:25:31,240 --> 00:25:32,680 Speaker 2: cover accoundidate's bills. 436 00:25:32,960 --> 00:25:35,960 Speaker 8: I mean, everybody knows where the money is coming from 437 00:25:36,280 --> 00:25:39,399 Speaker 8: when it's done this way. So the fact that I 438 00:25:39,440 --> 00:25:41,719 Speaker 8: have a party as a conduit, the fact that I 439 00:25:41,760 --> 00:25:46,119 Speaker 8: have a different private group as a conduit, it's not 440 00:25:46,240 --> 00:25:48,560 Speaker 8: hard to figure out where the money is coming from, 441 00:25:48,840 --> 00:25:51,800 Speaker 8: either for that person the original source of the money 442 00:25:52,160 --> 00:25:53,120 Speaker 8: or for the candidate. 443 00:25:53,400 --> 00:25:58,120 Speaker 2: The decision continues the Conservative Justice's pattern of rolling back 444 00:25:58,240 --> 00:26:02,919 Speaker 2: campaign finance regulations. My guest is Andrew Shapiro, a partner 445 00:26:02,920 --> 00:26:06,320 Speaker 2: in Quinn Emmanuel's appellate practice group. He was the former 446 00:26:06,480 --> 00:26:10,159 Speaker 2: US ambassador to the Czech Republic. Andy, let's start with 447 00:26:10,280 --> 00:26:14,160 Speaker 2: the big question, how important is this decision? How much 448 00:26:14,200 --> 00:26:18,280 Speaker 2: will it change how money is spent in congressional elections. 449 00:26:18,760 --> 00:26:21,240 Speaker 7: I think it's important for two reasons. 450 00:26:21,400 --> 00:26:25,360 Speaker 9: So at a general level, it's important because it's the next, 451 00:26:25,880 --> 00:26:29,920 Speaker 9: maybe almost inevitable step in the evolution of the way 452 00:26:29,960 --> 00:26:34,159 Speaker 9: the Roberts Court looks at campaign finance cases. And so 453 00:26:34,280 --> 00:26:38,160 Speaker 9: maybe by itself it's not an earthquake, but as part 454 00:26:38,200 --> 00:26:41,480 Speaker 9: of a pattern over the last fifteen or twenty years, 455 00:26:42,000 --> 00:26:44,600 Speaker 9: it says a lot. But then, even as a practical matter, 456 00:26:45,040 --> 00:26:50,159 Speaker 9: it is going to allow individuals to give half a 457 00:26:50,200 --> 00:26:54,040 Speaker 9: million dollars or more to a party and the party 458 00:26:54,119 --> 00:26:57,200 Speaker 9: is essentially free to spend it in support of a candidate, 459 00:26:57,240 --> 00:27:01,160 Speaker 9: to pay a candidate's bills. Obviously, that's a much bigger 460 00:27:01,520 --> 00:27:03,640 Speaker 9: bang for the buck that a downer might get than 461 00:27:03,760 --> 00:27:06,480 Speaker 9: just a seven thousand dollars which is currently kept. 462 00:27:06,840 --> 00:27:10,360 Speaker 2: So the majority decision was written by Brett Cavanaught tell 463 00:27:10,440 --> 00:27:14,400 Speaker 2: us about his argument and whether it mirrors the First 464 00:27:14,440 --> 00:27:16,560 Speaker 2: Amendment kind of arguments that we seem to see in 465 00:27:16,600 --> 00:27:18,760 Speaker 2: all these campaign finance cases. 466 00:27:19,440 --> 00:27:23,800 Speaker 9: So Justice Kavanaugh, writing for six members of the Court, 467 00:27:24,200 --> 00:27:26,960 Speaker 9: set this up as essentially just an exercise in a 468 00:27:27,000 --> 00:27:31,040 Speaker 9: balancing test. Try to frame it as a fairly narrow ruling. 469 00:27:31,359 --> 00:27:34,600 Speaker 9: So you have competing interests here. You have the interest 470 00:27:34,680 --> 00:27:39,200 Speaker 9: that Congress and in some prior decisions the Supreme Court 471 00:27:39,200 --> 00:27:42,639 Speaker 9: had identified of trying to keep not just corruption, but 472 00:27:42,760 --> 00:27:45,120 Speaker 9: the appearance of corruption or of a quid pro quo 473 00:27:45,400 --> 00:27:48,280 Speaker 9: out of our politics. That's on one side of the scale. 474 00:27:48,359 --> 00:27:50,520 Speaker 9: On the other side of the scale is the First 475 00:27:50,520 --> 00:27:53,879 Speaker 9: Amendment and the right of individuals or in some of 476 00:27:53,920 --> 00:27:58,120 Speaker 9: these cases, organizations to use their money to get their 477 00:27:58,560 --> 00:28:01,480 Speaker 9: user cross or support candid as they wish. And so 478 00:28:01,560 --> 00:28:04,440 Speaker 9: when you're balancing that, the test that the Court has 479 00:28:04,720 --> 00:28:09,480 Speaker 9: ultimately developed is it has to be closely and narrowly tailored. 480 00:28:09,560 --> 00:28:13,200 Speaker 9: I'm paraphrasing here, but essentially you have to say, this 481 00:28:13,320 --> 00:28:17,800 Speaker 9: specific restriction on speech is closely tailored to accomplishing the 482 00:28:17,840 --> 00:28:20,960 Speaker 9: goal that we want to accomplish, and just as Kevinaugh 483 00:28:21,200 --> 00:28:25,320 Speaker 9: walked through the stated goals, which are avoiding corruption and 484 00:28:25,359 --> 00:28:29,200 Speaker 9: avoiding quid pro quos, maybe one might say quids pro quo, 485 00:28:29,600 --> 00:28:35,000 Speaker 9: and decided that existing mechanisms are sufficient. So he pointed 486 00:28:35,040 --> 00:28:37,720 Speaker 9: to the fact that there is still a cap on 487 00:28:37,800 --> 00:28:40,480 Speaker 9: how much one can give to an individual or to 488 00:28:40,560 --> 00:28:44,840 Speaker 9: a party. He pointed to prohibitions against what is called earmarking. 489 00:28:45,080 --> 00:28:50,280 Speaker 9: That is, I can't specifically and expressly give five hundred 490 00:28:50,320 --> 00:28:53,360 Speaker 9: thousand dollars to the Democratic Party or the Republican Party 491 00:28:53,400 --> 00:28:56,680 Speaker 9: and say spend it in support of this candidate. That's 492 00:28:56,720 --> 00:28:59,840 Speaker 9: still forbidden, and so Justice Kavino said that's a guard rail, 493 00:29:00,240 --> 00:29:04,000 Speaker 9: and he said that the disclosure laws are a guardrail. Right, 494 00:29:04,160 --> 00:29:07,640 Speaker 9: the campaigns still have to disclose in most instances, the 495 00:29:07,720 --> 00:29:09,800 Speaker 9: donors and the parties have to do the same thing. 496 00:29:09,840 --> 00:29:12,720 Speaker 9: And so the idea that having these things out in 497 00:29:12,760 --> 00:29:16,640 Speaker 9: the sunlight will deter corruption, he felt was sufficient, and therefore, 498 00:29:16,680 --> 00:29:19,680 Speaker 9: when doing this balancing test, said those are enough. It's 499 00:29:19,760 --> 00:29:23,360 Speaker 9: not narrowly tailored, and so we do not need and 500 00:29:23,360 --> 00:29:26,640 Speaker 9: cannot justify under the First Amendment having a further restriction, 501 00:29:26,720 --> 00:29:31,840 Speaker 9: saying that parties cannot coordinate their expenditures with individual candidates. 502 00:29:32,200 --> 00:29:35,360 Speaker 2: You mentioned quid pro quote. Writing for the dissenters, the 503 00:29:35,400 --> 00:29:39,120 Speaker 2: three liberals, just as Elena Kagan said, the ruling opens 504 00:29:39,200 --> 00:29:43,800 Speaker 2: up the same opportunities for quid pro quo corruption that 505 00:29:43,920 --> 00:29:48,040 Speaker 2: the limits were meant to check, allowing wealthy donors to 506 00:29:48,160 --> 00:29:53,560 Speaker 2: dodge individual contribution limits by donating through parties instead. Explain 507 00:29:53,640 --> 00:29:55,880 Speaker 2: the concerns that the liberals have. 508 00:29:56,360 --> 00:29:58,560 Speaker 9: Sure, I think a lot of this has to do 509 00:29:58,680 --> 00:30:03,360 Speaker 9: with the different views that the majority and the dissenters 510 00:30:03,400 --> 00:30:06,520 Speaker 9: have about corruption. What does it really mean a quid 511 00:30:06,560 --> 00:30:10,720 Speaker 9: pro quo? So the majority is taking a very narrow view. Essentially, 512 00:30:10,840 --> 00:30:13,320 Speaker 9: they say, well, these laws are meant to prevent quid 513 00:30:13,560 --> 00:30:16,920 Speaker 9: pro quo and corruption, and by that we mean somebody 514 00:30:17,080 --> 00:30:21,520 Speaker 9: very specifically saying I'm giving five hundred thousand dollars to 515 00:30:21,720 --> 00:30:25,720 Speaker 9: the party in support of this candidate, and in exchange, I'm, 516 00:30:26,000 --> 00:30:29,680 Speaker 9: you know, expecting that I will get some relief from 517 00:30:29,880 --> 00:30:34,000 Speaker 9: a government investigation, or that subsidies for my industry. 518 00:30:33,600 --> 00:30:35,080 Speaker 7: Will be approved, et cetera. 519 00:30:35,480 --> 00:30:39,920 Speaker 9: And the justices in the minority, Justice Kagan and Justices 520 00:30:40,160 --> 00:30:44,840 Speaker 9: Soda Mayor and Tanji Brown Jackson take a somewhat broader 521 00:30:44,920 --> 00:30:49,080 Speaker 9: view and say that's overly technical, and everybody knows what's 522 00:30:49,120 --> 00:30:52,720 Speaker 9: going on, even if I'm not specifically saying, hey, you know, 523 00:30:52,960 --> 00:30:56,200 Speaker 9: I'm trying to develop a nuclear power plant here and 524 00:30:56,240 --> 00:30:58,840 Speaker 9: I need approval, and by the way, I'd like to 525 00:30:58,880 --> 00:31:00,959 Speaker 9: give five hundred thousand to the party. 526 00:31:01,320 --> 00:31:04,200 Speaker 7: That's enough. It's enough to do a nudge nudge, wink wink. 527 00:31:04,400 --> 00:31:07,080 Speaker 9: You don't have to have someone expressly saying I'm happy 528 00:31:07,160 --> 00:31:09,120 Speaker 9: to give you five hundred thousand dollars if you approve 529 00:31:09,200 --> 00:31:11,720 Speaker 9: my nuclear power plant. And there's a lot of force 530 00:31:11,800 --> 00:31:14,560 Speaker 9: to some of the examples that Justice Kagan gives in 531 00:31:14,600 --> 00:31:18,640 Speaker 9: that dissent. She points out that the parties can essentially 532 00:31:18,680 --> 00:31:21,920 Speaker 9: be paying the candidate's bills. And you know, the functional 533 00:31:21,920 --> 00:31:25,640 Speaker 9: difference between someone donating to the candidate to pay the 534 00:31:25,640 --> 00:31:28,440 Speaker 9: candidate's bills or donating to the party to pay the 535 00:31:28,480 --> 00:31:29,800 Speaker 9: candidate's bills. 536 00:31:29,560 --> 00:31:30,640 Speaker 7: Can be hard to discern. 537 00:31:30,880 --> 00:31:33,480 Speaker 9: So essentially, now, even though in name there's a seven 538 00:31:33,520 --> 00:31:36,680 Speaker 9: thousand dollars limit on what an individual can give to 539 00:31:36,760 --> 00:31:41,080 Speaker 9: a particular candidate, the party can simply say we're going 540 00:31:41,160 --> 00:31:43,800 Speaker 9: to take the money that this individual gave us, and 541 00:31:43,880 --> 00:31:46,800 Speaker 9: we'll pay your electricity or your rent will pay for 542 00:31:46,880 --> 00:31:47,400 Speaker 9: your ads. 543 00:31:47,640 --> 00:31:50,360 Speaker 7: So she's taking I think of a more practical view. 544 00:31:50,440 --> 00:31:53,840 Speaker 2: From what I've been reading. In the short term, at least, 545 00:31:53,880 --> 00:31:57,440 Speaker 2: this is a win for Republicans. President Trump actually said, 546 00:31:57,480 --> 00:32:00,960 Speaker 2: it's a big win for Republicans. Explain why Republicans might 547 00:32:01,040 --> 00:32:02,800 Speaker 2: benefit more than Democrats. 548 00:32:03,240 --> 00:32:04,600 Speaker 7: Yeah, that's right. In the short term. 549 00:32:04,640 --> 00:32:07,800 Speaker 9: I mean, of course, parties and donors and candidates are 550 00:32:07,880 --> 00:32:10,160 Speaker 9: pretty good at figuring out how to play by whatever 551 00:32:10,200 --> 00:32:12,719 Speaker 9: the rules are as the rules adapt to adapt their 552 00:32:12,760 --> 00:32:16,520 Speaker 9: own strategies. But right now, the Republican Party itself has 553 00:32:16,680 --> 00:32:19,920 Speaker 9: been better at fundraising than the Democratic Party. 554 00:32:19,920 --> 00:32:22,440 Speaker 7: If you're looking at the national committees. 555 00:32:22,200 --> 00:32:26,400 Speaker 9: They have greater number of donors who are ready willing 556 00:32:26,400 --> 00:32:29,400 Speaker 9: and able to write the checks in the hundreds of 557 00:32:29,480 --> 00:32:32,560 Speaker 9: thousands of dollars. And that's why this case was originally 558 00:32:32,640 --> 00:32:37,200 Speaker 9: brought by Republicans. It's the National Republican Senatorial Committee. 559 00:32:37,200 --> 00:32:38,360 Speaker 7: It was originally JD. 560 00:32:38,520 --> 00:32:41,320 Speaker 9: Vance when he was a candidate in Ohio, challenged some 561 00:32:41,440 --> 00:32:45,200 Speaker 9: restrictions against the coordinating. That being said, at least on 562 00:32:45,280 --> 00:32:49,160 Speaker 9: its face, the ruling frees the Democratic Party or some 563 00:32:49,320 --> 00:32:52,320 Speaker 9: future party freese that party up to spend as much 564 00:32:52,320 --> 00:32:55,680 Speaker 9: money as it wants as well in coordination with other candidates. 565 00:32:55,840 --> 00:32:58,640 Speaker 9: The question for the longer term, though, is whether benefits 566 00:32:58,680 --> 00:33:01,760 Speaker 9: one party or not. A certain benefits people who have 567 00:33:01,840 --> 00:33:04,960 Speaker 9: the ability to write really big checks. Back in the 568 00:33:05,040 --> 00:33:09,520 Speaker 9: nineteen seventies, after Watergate, when Congress passed the Federal Election 569 00:33:09,680 --> 00:33:13,760 Speaker 9: Campaign Ad, the idea was to try to limit the 570 00:33:13,800 --> 00:33:18,960 Speaker 9: ability of large donors and large interests to impact government 571 00:33:19,000 --> 00:33:23,320 Speaker 9: policy just by writing big checks. It's difficult to see 572 00:33:23,360 --> 00:33:27,280 Speaker 9: how that is not undermined somewhat by this ruling. Maybe 573 00:33:27,280 --> 00:33:29,600 Speaker 9: it's a correct application of the First Amendment. I'm not 574 00:33:29,800 --> 00:33:32,400 Speaker 9: stating a position on that, but I think it's hard 575 00:33:32,400 --> 00:33:35,600 Speaker 9: to deny that this really will amplify the voices of 576 00:33:35,720 --> 00:33:38,720 Speaker 9: individuals and industries with the deepest pockets. 577 00:33:38,880 --> 00:33:41,520 Speaker 2: Are we going to see more political TV ads because 578 00:33:41,560 --> 00:33:44,760 Speaker 2: of the candidates getting lower rates for TV ads? 579 00:33:45,200 --> 00:33:48,320 Speaker 9: Well, you know, June, it's hard to imagine seeing more 580 00:33:48,360 --> 00:33:52,360 Speaker 9: ads than we sometimes see during the political campaign season. 581 00:33:52,440 --> 00:33:55,880 Speaker 9: But it does seem likely that you will have more 582 00:33:55,920 --> 00:33:59,560 Speaker 9: money going into television ads now because, as you adverted 583 00:33:59,560 --> 00:34:03,480 Speaker 9: to the typically a party and packs and other organizations 584 00:34:03,640 --> 00:34:07,480 Speaker 9: did not get the same favorable rates that candidates campaigns did, 585 00:34:07,680 --> 00:34:11,000 Speaker 9: and now that's essentially out the window because the campaigns 586 00:34:11,000 --> 00:34:13,760 Speaker 9: can just pay the bills. So we may yet see 587 00:34:13,880 --> 00:34:16,640 Speaker 9: even more ads, not just on TV, but they're going 588 00:34:16,719 --> 00:34:18,760 Speaker 9: to be popping up on your computer as well. 589 00:34:19,040 --> 00:34:23,560 Speaker 2: The majority here overruled a two thousand and one decision 590 00:34:24,000 --> 00:34:26,160 Speaker 2: that was the second time in two days that the 591 00:34:26,200 --> 00:34:27,960 Speaker 2: Court overturned a precedent. 592 00:34:28,200 --> 00:34:29,440 Speaker 7: There are certainly a pattern. 593 00:34:29,760 --> 00:34:33,799 Speaker 9: So the decision that was overturned here called Colorado two, 594 00:34:34,040 --> 00:34:37,480 Speaker 9: and traditionally, obviously this was something that was discussed a 595 00:34:37,480 --> 00:34:40,360 Speaker 9: lot in the Dobbs decision as well, But the standard 596 00:34:40,560 --> 00:34:46,239 Speaker 9: has been over the years that the court can overturn 597 00:34:46,320 --> 00:34:51,560 Speaker 9: a precedent only in unusual circumstances, and that there has 598 00:34:51,640 --> 00:34:54,480 Speaker 9: to be a very high bar, something other than just 599 00:34:54,960 --> 00:34:57,359 Speaker 9: that the court thinks. 600 00:34:57,040 --> 00:34:59,040 Speaker 7: The prior decision was wrong. 601 00:34:59,440 --> 00:35:04,640 Speaker 9: And here Justice Kavanaugh said, well, subsequent developments in the 602 00:35:04,680 --> 00:35:08,640 Speaker 9: case law suggests that in this Colorado two decision, which 603 00:35:08,920 --> 00:35:12,240 Speaker 9: had upheld the restrictions that were struck down in this case, 604 00:35:12,560 --> 00:35:15,960 Speaker 9: Justice Kavanaugh said, well, since that time, the standard that 605 00:35:16,040 --> 00:35:19,160 Speaker 9: we use for balancing has changed, and we apply a 606 00:35:19,280 --> 00:35:22,759 Speaker 9: closer type of scrutiny to restrictions on the First Amendment. 607 00:35:23,080 --> 00:35:26,440 Speaker 9: But as Justice Kagan points out, essentially in this decision, 608 00:35:26,480 --> 00:35:30,280 Speaker 9: they applied the same level of scrutiny, and she calls 609 00:35:30,320 --> 00:35:33,520 Speaker 9: them out, saying that what seems to be happening here 610 00:35:33,560 --> 00:35:36,000 Speaker 9: and I think you're right, June, It's happened in some 611 00:35:36,080 --> 00:35:39,800 Speaker 9: other cases. The Court is becoming more comfortable overturning a 612 00:35:39,920 --> 00:35:44,920 Speaker 9: precedent simply because a majority of justices on the current 613 00:35:45,040 --> 00:35:48,840 Speaker 9: Court think that the prior decision was wrong, rather than 614 00:35:49,120 --> 00:35:55,840 Speaker 9: that there is some unusual and identifiable need to overturn 615 00:35:55,880 --> 00:35:57,360 Speaker 9: people's settle expectations. 616 00:35:57,800 --> 00:36:01,400 Speaker 2: Justice Kegan quoted from a dissent by Justice Stephen Bryer 617 00:36:01,480 --> 00:36:04,880 Speaker 2: in the McCutcheon case in twenty fourteen, where he said 618 00:36:04,920 --> 00:36:10,280 Speaker 2: that the decision eviscerates our nation's campaign finance laws, leaving 619 00:36:10,320 --> 00:36:13,200 Speaker 2: a remnant. And at the end of her descent, she said, 620 00:36:13,480 --> 00:36:16,960 Speaker 2: I'm not sure what to call a remnant of a remnant, 621 00:36:17,320 --> 00:36:19,920 Speaker 2: but that is what the Court has left today. Is 622 00:36:19,960 --> 00:36:22,279 Speaker 2: this the end? Or do you think there'll be more 623 00:36:22,320 --> 00:36:25,320 Speaker 2: attacks on what's left of campaign finance laws? 624 00:36:25,520 --> 00:36:28,600 Speaker 9: There still are limits that was up helden Buckley versus Phileia, 625 00:36:28,719 --> 00:36:31,920 Speaker 9: So the seven thousand dollars limit to an individual candidate, 626 00:36:32,000 --> 00:36:34,520 Speaker 9: and these limits, which the majority in descent debated at 627 00:36:34,600 --> 00:36:36,920 Speaker 9: least at the oral argument about is it technically forty 628 00:36:36,920 --> 00:36:38,640 Speaker 9: four thousand or is it five hundred thousand. 629 00:36:38,640 --> 00:36:40,960 Speaker 7: It depends how you characterize it. But there still are 630 00:36:41,000 --> 00:36:41,640 Speaker 7: some limits. 631 00:36:41,880 --> 00:36:45,160 Speaker 9: So is the next challenge going to say limits should 632 00:36:45,200 --> 00:36:46,560 Speaker 9: be out the window as well? 633 00:36:46,920 --> 00:36:47,640 Speaker 7: Or disclosure? 634 00:36:47,920 --> 00:36:53,400 Speaker 9: Disclosure is still one of the guardrails against corruption that 635 00:36:53,680 --> 00:36:56,040 Speaker 9: both the majority and the descent pointed to. 636 00:36:56,200 --> 00:36:57,240 Speaker 7: Here, you can. 637 00:36:57,120 --> 00:37:01,480 Speaker 9: Imagine a challenge in which aidate or a party or 638 00:37:01,480 --> 00:37:04,719 Speaker 9: an organization says that too, is not justified. 639 00:37:04,840 --> 00:37:06,359 Speaker 7: It'll be interesting to see. 640 00:37:06,560 --> 00:37:08,440 Speaker 2: It's been great having you on. Thanks so much for 641 00:37:08,480 --> 00:37:12,480 Speaker 2: your insights. Andy. That's Andrew Shapiro of Quinn Emmanuel, and 642 00:37:12,520 --> 00:37:14,720 Speaker 2: that's it for this edition of The Bloomberg Law Show. 643 00:37:15,040 --> 00:37:17,360 Speaker 2: Remember you can always get the latest legal news on 644 00:37:17,440 --> 00:37:21,719 Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 645 00:37:21,880 --> 00:37:26,919 Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law, 646 00:37:27,320 --> 00:37:29,920 Speaker 2: and remember to tune into The Bloomberg Law Show every 647 00:37:29,960 --> 00:37:33,880 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso, 648 00:37:34,000 --> 00:37:35,600 Speaker 2: and you're listening to Bloomberg