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

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Speaker 2: It is undisputed that my client has alleged an assault

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Speaker 2: that is just brazenly illegal. He was at respondent's mercy

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Speaker 2: in federally funded custody when he handed them a copy

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Speaker 2: of controlling precedent holding that RALUPA protected his right to

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Speaker 2: keep his hair long. They threw it away, handcuffed him

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Speaker 2: to a chair, and shaved him bald.

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Speaker 3: Damon Landor is Arrastafarian who had followed the Nazarite vow

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Speaker 3: forbidding him from cutting his hair for nearly two decades.

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Speaker 3: When Landor was transferred to a new prison in Louisiana

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Speaker 3: with just weeks left on his five month sentence, he

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Speaker 3: carried a copy of an appeals court decision that held

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Speaker 3: that cutting a religious prisoner's dreadlocks violates federal law. But

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Speaker 3: a prison guard threw the ruling into the trash, and

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Speaker 3: despite Landor's please, he was handcuffed to a chair and

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Speaker 3: held down while his knee length dreadlocks were cut off.

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Speaker 3: No one disputes the glaring violation of his religious rights.

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Speaker 3: As Justice Amy Cony Barrett noted, look.

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Speaker 2: The facts of this case are egregious.

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Speaker 1: So if on the facts we were looking for a

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Speaker 1: case in which there should be money damages, this is it.

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Speaker 3: But it's not just about the facts. It's about the

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Speaker 3: law and whether Landor can sue the guards and prison

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Speaker 3: officials for damages under the Religious land Use and Institutionalized

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Speaker 3: Persons Act, better known as RALUPA. While the Supreme Court

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Speaker 3: has repeatedly sided with religious litigants in recent years, a

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Speaker 3: majority of the Conservative justice is led by Justice Neil Gorsuch,

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Speaker 3: appeared skeptical that Landor could sue individual corrections employees.

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Speaker 4: The circuits are unanimously against you and have been for many, many,

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Speaker 4: many years. So saying that something awful's going to happen,

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Speaker 4: it's all. Whatever's happened has happened, right.

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Speaker 3: The Conservatives questioned whether the prison guards had noticed that

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Speaker 3: they could be found individually liable, but the liberals said

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Speaker 3: the prison employees were on notice. Here are Chief Justice

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Speaker 3: John Roberts and Justice Sonya Sotomayor.

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Speaker 5: If you're hired as a prison guard in Louisiana, you

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Speaker 5: don't sit down, And I don't even know if Louisiana

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Speaker 5: does saying, oh, here's our agreement with the federal government,

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Speaker 5: which probably goes on for I don't know how many pages,

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Speaker 5: and you should look at it carefully because you're bound

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Speaker 5: by it.

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Speaker 6: Generally speaking, if you're a prison official, you know you're

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Speaker 6: working in a prison, and you bound by law to

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Speaker 6: pay damages if you violate the law. Do you get

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Speaker 6: an out?

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Speaker 3: Because what my guest is John Miezer, a professor at

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Speaker 3: Notre Dame Law School and director of the school's Religious

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Speaker 3: Liberty Clinic, John tell us about the law that Landor

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Speaker 3: is suing under.

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Speaker 1: That act, which you know shorthand is called RELUPA was

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Speaker 1: passed in two thousand in conjunction with an act that

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Speaker 1: was passed a few years earlier, the Religious Freedom Restoration Act,

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Speaker 1: and both of them sort of target the same goal,

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Speaker 1: which is to, as a matter of federal statutory law,

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Speaker 1: to restore a more robust set of protections for a

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Speaker 1: religious exercise, which which previously had been available under the

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Speaker 1: US Constitution, but then, following a seminal case in nineteen

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Speaker 1: ninety Employment Division versus Smith, it sort of restricted some

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Speaker 1: of those rights as a matter of constitutional law, and

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Speaker 1: then Congress acted to restore them as a matter of

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Speaker 1: statutory law.

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Speaker 3: So explain what the problem is with him using this law.

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Speaker 1: So Relupa, the particular law at issue here focuses on

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Speaker 1: two areas of state and local government activity. One is

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Speaker 1: in land use, you know, decisions about how you can

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Speaker 1: use your property. And then the one relevant here is

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Speaker 1: about religious exercise and jails and prisons. And so there's

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Speaker 1: no doubt that the law Relupa protects mister Landor's rights here.

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Speaker 1: He's a state prisoner, and so therefore Safeguards is right

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Speaker 1: while incarcerated to exercise his religion. And the only question

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Speaker 1: in this case is one of remedies. So the effects

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Speaker 1: are egregious, and I don't think anyone really doubts that

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Speaker 1: while he was in prison his rights were blatantly violated.

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Speaker 1: He's a Rastafarian, which among other things, requires him not

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Speaker 1: to cut his hair. He actually had a judicial decision

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Speaker 1: when he entered the prison that held the prison policy

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Speaker 1: requiring you know, they normally require forced shaving of all

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Speaker 1: the inmates hair. He had a decision saying that couldn't

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Speaker 1: be enforced against Rostafarians like him, But the guards literally

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Speaker 1: threw away that decision, hankuffed him to a chair and

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Speaker 1: shaved his head anyway, so there's no doubt his rights

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Speaker 1: were violated, and the question now is only what sort

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Speaker 1: of remedies does RELUPA allow for him to address that violation.

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Speaker 3: Justice Katanji Brown Jackson read from Reloopa and said, it

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Speaker 3: seems pretty clear. And five years ago the Supreme Court

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Speaker 3: unanimously ruled that the sister statute, the Religious Freedom Restoration Act,

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Speaker 3: permits money damages against federal officials. In that case, Muslims

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Speaker 3: were allowed to sue over their inclusion on the FBI's

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Speaker 3: no fly list. So why doesn't that analysis work for

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Speaker 3: the law here Reloopa.

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Speaker 1: Yeah, so the legal question out of heart is a

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Speaker 1: pretty technical one of congressional power. So what both REFRA

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Speaker 1: and RALUPA, what these laws allow is for someone who's

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Speaker 1: been injured, whose rights have been violated, to file a

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Speaker 1: lawsuit in federal court against those who caused the violation.

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Speaker 1: The statute the words of the law allow you, in

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Speaker 1: that lawsuit to get what is all appropriate relief. So

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Speaker 1: then the whole question becomes, well, what does Congress mean

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Speaker 1: by appropriate relief? One thing that's undisputed relief certainly includes

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Speaker 1: a judicial order that would prevent an ongoing violation of

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Speaker 1: religious rights. So if the jail, so to speak, we're

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Speaker 1: continuing to threaten to violate mister Landor's rights, say they

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Speaker 1: are shaving his head every week, you can get a

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Speaker 1: court order telling them to stop doing that. The question, though,

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Speaker 1: is that you just touched on there is But what

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Speaker 1: about one time harms? What about harms that aren't ongoing?

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Speaker 1: They're over now? How do you remedy those? Does the

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Speaker 1: law allow you to get monetary damages? Which would be

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Speaker 1: the normal way in a lawsuit if you've been harmed,

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Speaker 1: the normal recourse in the law is you're able to

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Speaker 1: get monetary damages to get money to help in some

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Speaker 1: way remedy you repair that harm. But the question here

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Speaker 1: is does RELOOPA allow that you're right riff ra out

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Speaker 1: of the sister statue it was held to allow monetary damages,

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Speaker 1: And the question of well does RELUPA allow the same

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Speaker 1: turns out a very particular idea of the congressional power

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Speaker 1: issue here, which is Congress's use of its spending power.

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Speaker 1: Does the spending claw require something more for a statute

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Speaker 1: to authorize monetary damages? Does appropriate relief clearly enough convey

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Speaker 1: that when a state accepts federal spending it might open

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Speaker 1: itself up or open its officers up to suits for

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Speaker 1: money damages.

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Speaker 3: Did it seem pretty apparent that most of the conservative

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Speaker 3: justices thought that the statute shouldn't apply here.

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Speaker 1: I don't know how clear it is, but I do

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Speaker 1: think a number of justices certainly expressed skepticism about that.

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Speaker 1: So there's a couple of different things going on. One

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Speaker 1: is what does the statute mean? You know, what does

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Speaker 1: appropriate relief mean in context of laws like this? And

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Speaker 1: so that question is does the statute itself is it

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Speaker 1: clear enough that it allows monetary damages? And then the

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Speaker 1: other is, well, okay, even if it is, even if

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Speaker 1: Congress did allow this, does the Constitution let Congress do

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Speaker 1: that through a spending clause law like this? And several

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Speaker 1: justices I think expressed some skepticism on one or both

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Speaker 1: of those questions. But I think I think this skepticism

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Speaker 1: all came back to a similar idea, which is spending

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Speaker 1: clause legislation. Right, it opens up money for state governments

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Speaker 1: to take part in federal programs or to receive federal

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Speaker 1: subsidies for different types of things. Here jails and prisons,

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Speaker 1: and the federal government can attach conditions to those. Sure

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Speaker 1: will help you pay for your prison facilities if you

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Speaker 1: agree to comply with X, Y, and Z. And the

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Speaker 1: Court's concern with laws like this is that states are

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Speaker 1: coming into that bargain with their eyes open, that they

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Speaker 1: understand the conditions they're agreeing to. It's one of notice,

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Speaker 1: one of clarity. So that's I think the driving concern here.

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Speaker 1: I don't think it is so much about whether it

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Speaker 1: would make sense to apply these substantive religious rights in prison.

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Speaker 1: And everyone agrees actually that the prison and its officials

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Speaker 1: are bound substantively to protect the rights that rerelopid demands.

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Speaker 1: But what some of the justices in the Court were

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Speaker 1: really struggling with was how clear was it. Were individuals

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Speaker 1: who work within those prisons really on notice that by

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Speaker 1: signing up to work in the prison they might be

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Speaker 1: suited for things like this.

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Speaker 3: It seemed like a lot of the conservative justices didn't

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Speaker 3: think that there was notice here. At one point, Chief

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Speaker 3: Justice John Roberts said, it's a legal fiction to say

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Speaker 3: that a prison guard knows what he's signing up for here.

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Speaker 3: But the liberals, particularly Justice Sodo Mayor, said, when you

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Speaker 3: sign up to work as a corrections official in a prison.

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Speaker 3: Doesn't that mean you're signing up to obey the law?

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Speaker 3: And you know, the act here was so obviously brutal, right,

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Speaker 3: and the guard just tossed the notice he got from

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Speaker 3: Landor into the trash.

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Speaker 1: I agree with that, I think, and I think mister

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Speaker 1: Landor has a very good argument here, right. So it's

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Speaker 1: of course true, as the Chief Justice pointed out, that

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Speaker 1: there's something of a legal fiction here, but that's you know,

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Speaker 1: these legal fictions run throughout the law. We're all presumed

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Speaker 1: to have knowledge and be aware of the contents of

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Speaker 1: criminal law. You know, is any given person on actually

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Speaker 1: aware of everything that's prohibited by federal or state criminal law? No,

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Speaker 1: of course, not right. But ignorance of the law, even

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Speaker 1: if actually true, we don't allow that ignorance of the

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Speaker 1: law to be excuse to defy it, right. And so

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Speaker 1: you know, just as Sodomayor's point here, which is echoed

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Speaker 1: throughout the argument by mister Landor's council, is that, at

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Speaker 1: least in this context where we're talking about people who

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Speaker 1: sign up to work in a prison or a jail,

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Speaker 1: these officers, we all the time presume they understand their

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Speaker 1: obligations under federal law, under constitutional law, under state law,

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Speaker 1: and they understand that if they violate those obligations, these

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Speaker 1: demands that they protect our rights, that they might be

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Speaker 1: sued for it. And again, I don't know there's any

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Speaker 1: doubt in the case, and I think the state actually

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Speaker 1: concedes that as a substantive matter, the state and its

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Speaker 1: officers were bound to follow the demands of RELUPA. So

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Speaker 1: then the only question is, well, is it different that

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Speaker 1: they need to also know they knew they had to

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Speaker 1: follow RELOOPA, they knew they could get sued under RELOOPA,

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Speaker 1: they knew they could be held subject to junctive relief

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Speaker 1: under LUPA. Do they also need to know that they

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Speaker 1: can be sued for money under ALUOPA. Well, even if

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Speaker 1: that's a separate question, I agree with mister Landor here,

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Speaker 1: that's not a very hard one, because again, as soon

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Speaker 1: as you're understanding that you might be sued as an individual,

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Speaker 1: the normal recourse is that if you're found and violated

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Speaker 1: the law, you might have to pay money damages.

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Speaker 3: Coming up next, where might the justices come out in

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Speaker 3: the case this is Bloomberg. The Supreme Court wrestle with

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Speaker 3: whether a former Louisiana inmate can sue prison officials who

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Speaker 3: cut off his dreadlocks in violation of his Rastafarian religious beliefs.

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Speaker 3: The justices heard arguments in the case of Damon Landor,

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Speaker 3: who wants to sue for money damages under a federal

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Speaker 3: law designed to protect the religious rights of inmates. The

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Speaker 3: court's three liberal justices seemed firmly on Landor's side, but

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Speaker 3: the court short's conservatives seem skeptical. Justice Neil Gorsich led

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Speaker 3: the court's conservative block at oral arguments in pressing the

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Speaker 3: attorneys for Damon Landor on where the Corrections employees should

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Speaker 3: be individually liable for contracts made between state institutions and

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Speaker 3: the federal government under a religious liberty statute.

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Speaker 4: Where did the defendant the individual defendants agree with the

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Speaker 4: federal government to be bound and what notice did they have?

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Speaker 4: And I understand your point earlier to the Chief that

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Speaker 4: they're subject to state regulations.

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Speaker 3: But Liberal Justice Katanji Brown Jackson said the statute was clear.

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Speaker 7: So I guess I'm trying to understand how Congress could

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Speaker 7: have said it any clearer. I mean, to the extent

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Speaker 7: that we're puzzling over whether or not. There's a clear

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Speaker 7: statement in the statute.

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Speaker 6: You know, it says a.

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Speaker 7: Person may assert a violation of this chapter as a

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Speaker 7: claim or defense in a judicial proceeding and obtain appropriate

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Speaker 7: relief against a government. If that doesn't refer to money

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Speaker 7: damages being brought by an individual for a violation of LUPA,

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Speaker 7: what could Congress have meant by appropriate relief here?

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Speaker 3: I've been talking to John Neezer of Notre Dame Law School.

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Speaker 3: Several justices pointed out that all the circuit courts and

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Speaker 3: all the lower courts have ruled against Landor's position here.

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Speaker 3: So why did the Supreme Court even take this case?

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Speaker 3: I mean, there was no circuit split, and it doesn't

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Speaker 3: seem like they took the case to reverse it.

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Speaker 1: Yeah. I think there's a couple of reasons. So one,

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Speaker 1: I think many of the justices questions overstated the level

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Speaker 1: of that agreement. As I mentioned earlier, there's really two

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Speaker 1: different legal questions in the case, which is, what does

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Speaker 1: the law mean? You know, when it's said as appropriate relief?

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Speaker 1: What is a properate relief in contacts? Would that be understated?

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Speaker 1: Thing is, even if the law does allow money damages,

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Speaker 1: can Congress do that in a law like this. So

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Speaker 1: circuit courts have arrived at similar conclusions, which is that

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Speaker 1: RELOPA doesn't allow damages, but they've done it through different paths,

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Speaker 1: and in fact, several courts have found that no, in fact,

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Speaker 1: the law is clear here that just like under RIFRA,

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Speaker 1: appropriate relief does in fact include damages. It's a normal,

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Speaker 1: expected remedy against an individual. And then you know, some

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Speaker 1: of them then said, but as a constitutional matter, the

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Speaker 1: court can't do that. They can't through spending legislation bind

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Speaker 1: these sort of individual third parties who didn't you know,

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Speaker 1: agree to the funds or something like that. And then

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Speaker 1: some courts have come out differently on those questions. So

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Speaker 1: although it's true that damages aren't available generally in federal

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Speaker 1: courts under RELOUPA, I don't think there's a lot of

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Speaker 1: agreement as to why. And then more to the point,

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Speaker 1: this is an area where where the Supreme Court has

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Speaker 1: recently providing more guidance. So under riffra, was you just

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Speaker 1: mentioned this recent case Tanzen, You know, courts weren't necessarily

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Speaker 1: getting that right idea that Riffra allowed monetary DAMA images.

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Speaker 1: The Court came in and said no, no, no, we look

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Speaker 1: at river for appropriate relief does include monetary damages against

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Speaker 1: individuals as the normal recourse. That was a pretty recent decision,

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Speaker 1: So now all around the country courts are having to

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Speaker 1: rethink their older precedent. Oh is it still good law?

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Speaker 1: Do I need to rethink it? After Tanzan and the

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Speaker 1: Court has stepped in to provide that clarity.

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Speaker 3: Justice so do Mayor and some of the other liberal

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Speaker 3: justices warned that ruling against land Or would potentially put

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Speaker 3: dozens of other federal statutes at risk.

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Speaker 1: Yeah, I certainly don't have a good read on just

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Speaker 1: how many statutes might look like this, or you know,

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Speaker 1: maybe relatedly, just how many other interpretations of those statutes

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Speaker 1: might be implicated in either way the Court goes. But

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Speaker 1: I guess I would say that, and I think all

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Speaker 1: the justices acknowledged this. This would certainly not be the

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Speaker 1: first time that the Court had ruled that spending Clause

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Speaker 1: legislation allowed Congress to create the right of action for

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Speaker 1: monetary damages against third parties or individuals. So that wouldn't

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Speaker 1: be sort of groundbreaking, you know, the extent to which

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Speaker 1: Congress can do that, or the terms through which Congress

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Speaker 1: must speak. I don't. Again, I don't think there's great

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Speaker 1: clarity in the law on that now, So ruling in

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Speaker 1: either way in this case is going to help provide guidance,

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Speaker 1: and I'm not sure that I have a strong sense

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Speaker 1: of which side is right. That would be more disruptive

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Speaker 1: to the law as it currently sits today.

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Speaker 3: Were you surprised at the turn that this argument took.

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Speaker 1: I don't know if I would say I'm surprised, you know,

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Speaker 1: I think initially I think you started here actually in

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Speaker 1: our conversation that there's a really strong argument, and I

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Speaker 1: think good reason to believe that. Well, if RIFFRA through

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Speaker 1: the exact same language passed by Congress for the exact

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Speaker 1: same reason to restore religious freedom. If RIFFRA allows monetary damages,

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Speaker 1: it's very hard to understand how you know, it's its

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Speaker 1: sister statute RULUPA doesn't. But I think I understand the

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Speaker 1: complications in the case. You know, it's this it's this

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Speaker 1: ery Dykee question of what Congress must do when it

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Speaker 1: through different enumerated powers. So you know, riff as not

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Speaker 1: spending clause legislation LUPA is they might require different things

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Speaker 1: of Congress. So I do think the case is harder

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Speaker 1: than it might appear at first blush. But I also

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Speaker 1: would hope that the court would ultimately align the reading

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Speaker 1: of the two statutes, and it would be at least

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Speaker 1: a somewhat unusual result if Riffer and Ralupa, these sister

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Speaker 1: statutes passed for the same purposes, allowed different remedies, and

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Speaker 1: it would leave people like mister Landor without any recourse

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Speaker 1: to remedy what all agree was an egregious violation of

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Speaker 1: his rights. And it would leave no ability to hold

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Speaker 1: the individuals who literally threw away a copy of a

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Speaker 1: court decision and to hold them accountable. And I think

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Speaker 1: that would be regrettable certainly.

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Speaker 6: Yeah.

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Speaker 3: And one of the justices I don't remember which justice,

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Speaker 3: asked at one point what happened to the guards who

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Speaker 3: did this? And the only answer was, well, the warden

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Speaker 3: was transferred or left. So one wonders if there was

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Speaker 3: any kind of punishment.

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Speaker 1: Right, And you know, in our religous livery plink, we

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Speaker 1: filed an amigas brief in the case on behalf of

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Speaker 1: a variety of religious organizations was point this out, which

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Speaker 1: point out the danger if someone who's harmed can't get

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Speaker 1: monetary damages. There might be very few and perhaps no options,

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Speaker 1: no mechanisms available to hold these violators accountable. Because if

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Speaker 1: it's a one time thing and it's over and done with,

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Speaker 1: and the court can't issue in order not to do

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Speaker 1: it because the violation has already occurred, well then what

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Speaker 1: can you do? Right? You can scold, you can reprimand

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Speaker 1: the prison and the lower court did here, you know,

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Speaker 1: so really just criticized in a harsh language what had

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Speaker 1: happened to mister Orlando. But beyond that, it's very been

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Speaker 1: mechanism to hold these folks accountable.

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Speaker 3: So, I mean, this court has, you know, repeatedly sided

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Speaker 3: with religious litigants in recent years. I mean, you could

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Speaker 3: go through a lot of cases. But there's the Christian

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Speaker 3: football coach who got to pray at the fifty yard

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Speaker 3: line after games. The Christian web designer who was allowed

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Speaker 3: to refuse to work with same six couples, the Texas

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Speaker 3: death row inmate who got to pray with his pastor.

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Speaker 3: I mean, on and on. If the court doesn't find

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Speaker 3: for the inmate here the Rastafarian, is there a danger

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Speaker 3: that people will say, well, when conservative Christians come before

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Speaker 3: the court, their religious rights are vindicated, but this Rastafarian

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Speaker 3: inmate his are not.

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Speaker 1: People will certainly say it right. I think it's easy

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Speaker 1: to predict that that would be you know, one criticism

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Speaker 1: of the decision if it were to go that way,

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Speaker 1: you know, I don't think it would be accurate or fair.

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Speaker 1: I think the Court is serious and committed to protecting

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Speaker 1: religious freedom. It's a right that, as you just mentioned,

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Speaker 1: in a number of areas, the Court has you know,

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Speaker 1: taken a lot of cases to ensure that it's not

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Speaker 1: being diminished around the country. I think that's true even

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Speaker 1: if they were to rule against mister Landore in this case,

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Speaker 1: and again I think if they were to do so,

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Speaker 1: which would be regrettable, I don't think that would be

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Speaker 1: the right decision. But if the Court were to do so,

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Speaker 1: I think it would not come from any different approach

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Speaker 1: based on the religious background of the plaintiff, but rather

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Speaker 1: based on you know, some of these really difficult structural

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Speaker 1: questions about congressional authority the Court is grappling with. And

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Speaker 1: you know, I would just point out that that those

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Speaker 1: cases in this one provide, and the Court knows this

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Speaker 1: significant protections for all religions. You know, whether any given

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Speaker 1: climate is Christian or not, And certainly not all of

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Speaker 1: the plants in these prior cases have been Christian. There's

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Speaker 1: one just this past term where the lead plants are

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Speaker 1: Muslim families. So I don't think that would be an

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Speaker 1: appropriate reading of the case.

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Speaker 3: Now, I mean, do you have a feel for how

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Speaker 3: it's going to come out or you don't.

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Speaker 1: No, I don't have a feel. I mean, I think

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Speaker 1: this kind of goes back to what we were saying,

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Speaker 1: is like, I think it's a complicated case. I think

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Speaker 1: it's It was obvious to me that in the argument

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Speaker 1: a lot of the justices were really strung with how

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Speaker 1: to draw these lines and these concerns over notice and

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Speaker 1: keeping Congress from overstepping its enumerated powers, which is which

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Speaker 1: itself is a rights protecting idea typically, but with the

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Speaker 1: recognition that here is a seminal piece of legislation to

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Speaker 1: protect religious freedom, a piece of legislation in the Court

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Speaker 1: has repeatedly been sure to safeguard and uphold, and I

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Speaker 1: think there's real tensions with how best to weigh those

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Speaker 1: you know, competing sort of priorities of the court.

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Speaker 3: Yeah, I have to say that the case was so

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Speaker 3: egregious I mean, you have a prison guard tossing a

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Speaker 3: decision in the garbage, and then they forcibly hold him

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Speaker 3: down and cut off his dreadlocks. I thought they took

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Speaker 3: the case to reverse the court below and allow him

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Speaker 3: to sue for damages, especially considering how this court is

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Speaker 3: usually solicitous of religious litigants and the facts here. How

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Speaker 3: often do you have the plane if showing the law

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Speaker 3: to the defendant and the defendant just tossing it out,

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Speaker 3: you can't make these things up.

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Speaker 1: It would be Yeah. No, I mean, I agree, and

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Speaker 1: I think at the end of the day that the

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Speaker 1: simplest reading of the case is what you're saying. This

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Speaker 1: is a blatant violation of this man's rights. He doesn't

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Speaker 1: seem real. They literally threw away the decision. They handcuffed him,

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Speaker 1: they forcibly shaved him, and now the claim is brought

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Speaker 1: under a law that's nearly identical to him, that the

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Speaker 1: court just said allows lawsuits for damages like this. So

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Speaker 1: I agree. I think the easiest thing, simplest thing is yeah,

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Speaker 1: you take it to reverse and to make clear, Yes,

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Speaker 1: RALUPA is just like referra. It allows these damages. And

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Speaker 1: I think that's the right outcome. I do agree though

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Speaker 1: that from the argument it seems the court is certainly

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Speaker 1: struggling with more complications than that.

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Speaker 3: Well, it was great talking to you, John. We'll see

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Speaker 3: how the court comes out. That's Professor John Meser of

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Speaker 3: Notre Dame Law School coming up next. We'll tell you

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Speaker 3: what the Trump has meant told the Supreme Court about

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Speaker 3: its powers to send the military into Chicago. This is Bloomberg.

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Speaker 3: The Supreme Court is considering whether to let President Trump

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Speaker 3: deploy the National Guard to Chicago over the strong objections

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Speaker 3: of city and state officials. The case marks the first

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Speaker 3: time that the Supreme Court has been drawn into Trump's

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Speaker 3: effort to dispatch troops to democratic run cities where he

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Speaker 3: claims crime is rampant and where people are protesting his

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Speaker 3: immigration crackdown. President Trump's administration told the Supreme Court that

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Speaker 3: he could have sent active duty military troops to Chicago

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Speaker 3: to help enforce federal immigration laws, as he urges the

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Speaker 3: Court to instead let him deploy the National Guard. The

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Speaker 3: US Solicitor General John Sower told the court that the

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Speaker 3: president has sweeping discretion to dispatch the military forces of

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Speaker 3: his choosing to deal with domestic disturbances. A federal appeals

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Speaker 3: court decision refused to let Trump deploy the troops, agreeing

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Speaker 3: with Illinois officials that the federal government had failed to

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Speaker 3: show any evidence to justify the use of troops, even

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Speaker 3: giving substantial deference to Trump's claim that protests in Chicago

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Speaker 3: amounted to a rebellion or invasion that necessitated the use

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Speaker 3: of National Guard soldiers. Joining me is constitutional law expert

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Speaker 3: Harold Krant, a professor at the Chicago Kent College of Law.

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00:24:35,960 --> 00:24:38,840
Speaker 3: So the Supreme Court has been thinking about this case

435
00:24:39,240 --> 00:24:44,600
Speaker 3: for since last month, and on October twenty ninth, the

436
00:24:44,760 --> 00:24:49,000
Speaker 3: justices asked whether regular forces refers to active duty troops.

437
00:24:49,080 --> 00:24:51,120
Speaker 3: First of all, explain why they're asking that.

438
00:24:52,640 --> 00:24:57,679
Speaker 8: The question is when the president can federalize the National Guard.

439
00:24:58,119 --> 00:25:01,359
Speaker 8: And under the prinit Statutes, there are two situations in

440
00:25:01,400 --> 00:25:05,000
Speaker 8: which the guards can be nationalized. The first is when

441
00:25:05,040 --> 00:25:08,680
Speaker 8: there's an act of rebellion, and some have claimed that

442
00:25:08,720 --> 00:25:11,439
Speaker 8: the government thinks that there is a rebellion going on

443
00:25:11,560 --> 00:25:14,800
Speaker 8: because of the activities against the border patrol and ice,

444
00:25:15,320 --> 00:25:19,399
Speaker 8: but most judges dismiss that as totally far fetched. And

445
00:25:19,440 --> 00:25:24,880
Speaker 8: the second is when there is the government cannot protect

446
00:25:25,000 --> 00:25:30,000
Speaker 8: or enforce federal law with regular forces. And so the

447
00:25:30,080 --> 00:25:33,280
Speaker 8: question is what does this phrase mean, And it's an

448
00:25:33,359 --> 00:25:37,320
Speaker 8: ambiguous phrase and there's been a disagreement about it for

449
00:25:37,840 --> 00:25:41,320
Speaker 8: a generation. And on one view, what the government says

450
00:25:41,480 --> 00:25:45,119
Speaker 8: is if there is any kind of pressure on federal

451
00:25:45,200 --> 00:25:48,639
Speaker 8: law enforcement, then the National Guard can be federalized. And

452
00:25:48,680 --> 00:25:52,520
Speaker 8: of course the pressure that they're referring to is the

453
00:25:52,600 --> 00:25:57,520
Speaker 8: challenges to ICE and the immigration agents. On the other hand,

454
00:25:57,960 --> 00:26:03,199
Speaker 8: the failure to force federal law with regular forces. Regular

455
00:26:03,200 --> 00:26:06,159
Speaker 8: forces might mean the military, in which case that's a

456
00:26:06,200 --> 00:26:09,640
Speaker 8: reference to the Insurrection Act, which in turn would say

457
00:26:09,720 --> 00:26:13,320
Speaker 8: that the only time you can federalize the National Guard

458
00:26:13,880 --> 00:26:17,120
Speaker 8: is when there is an insurrection and the military can't

459
00:26:17,160 --> 00:26:20,240
Speaker 8: do the job itself. So that's an extreme And there's

460
00:26:20,320 --> 00:26:23,879
Speaker 8: a middle position in which would say that the federal

461
00:26:23,920 --> 00:26:28,280
Speaker 8: government can only federalize the National Guard if general law

462
00:26:28,359 --> 00:26:32,920
Speaker 8: enforcement has broken down such that federal buildings, federal ICE

463
00:26:32,960 --> 00:26:37,320
Speaker 8: agents are in jeopardy of going about and doing their business.

464
00:26:37,520 --> 00:26:41,280
Speaker 8: So those are the three reads of those provisions. But

465
00:26:41,520 --> 00:26:45,359
Speaker 8: the idea of what regular forces mean is really key

466
00:26:45,760 --> 00:26:48,720
Speaker 8: and no one's answered, and obviously the Supreme Court is

467
00:26:48,720 --> 00:26:49,439
Speaker 8: troubled about that.

468
00:26:49,960 --> 00:26:56,040
Speaker 3: Chicago is arguing that it refers to the standing military,

469
00:26:56,200 --> 00:26:59,920
Speaker 3: not to immigration agents or civilians. So what does that mean.

470
00:27:01,520 --> 00:27:04,480
Speaker 8: I'm not sure that Chicago has made the more drastic

471
00:27:04,640 --> 00:27:08,080
Speaker 8: argument that says that regular forces means military. I think

472
00:27:08,080 --> 00:27:12,359
Speaker 8: what Chicago has argued is that the National Guard cannot

473
00:27:12,400 --> 00:27:16,160
Speaker 8: be federalized because there is no rebellion and because there

474
00:27:16,200 --> 00:27:21,439
Speaker 8: is no general failure of law enforcement. The federal agents

475
00:27:21,480 --> 00:27:25,080
Speaker 8: go about do their business. Littal buildings remain unscathed. So

476
00:27:25,200 --> 00:27:28,200
Speaker 8: they've just said, as a factual matter, the court here

477
00:27:28,240 --> 00:27:31,800
Speaker 8: held that there is no credibility to the court's position.

478
00:27:32,440 --> 00:27:35,320
Speaker 8: In fact, the court, I mean sorry, the Chicago ducked

479
00:27:35,440 --> 00:27:39,080
Speaker 8: the question of really what regular forces means that has

480
00:27:39,119 --> 00:27:43,400
Speaker 8: been raised by Amigas in the Supreme Court case, and

481
00:27:43,640 --> 00:27:47,400
Speaker 8: that would the narrow reading of Amigas or Meiki would

482
00:27:47,440 --> 00:27:51,240
Speaker 8: really help Chicago, And I don't think that they have

483
00:27:51,320 --> 00:27:54,480
Speaker 8: filed a supplemental briefing to join in.

484
00:27:55,080 --> 00:28:00,399
Speaker 3: So now the Solicitor General is saying that Trump could

485
00:28:00,400 --> 00:28:04,840
Speaker 3: have sent active duty military troops to Chicago to help

486
00:28:04,960 --> 00:28:08,760
Speaker 3: enforce federal immigration laws, and.

487
00:28:08,720 --> 00:28:11,880
Speaker 8: That could only be done under the Insurrection Act and

488
00:28:11,960 --> 00:28:14,359
Speaker 8: the Insurrection Act says, you know that there has to

489
00:28:14,359 --> 00:28:17,280
Speaker 8: be an invasion, and so you know, unless there's some

490
00:28:17,359 --> 00:28:20,960
Speaker 8: other novel reading of the Insurrection Act, regular forces cannot

491
00:28:20,960 --> 00:28:25,800
Speaker 8: be used for law enforcement absent in invasion. And by

492
00:28:25,840 --> 00:28:29,040
Speaker 8: no stretch of the imagination, have we had an invasion.

493
00:28:29,119 --> 00:28:33,120
Speaker 8: I guess President Trump might say the undocumented immigrants are

494
00:28:33,280 --> 00:28:36,320
Speaker 8: constituted an invasion, but I don't think that even the

495
00:28:36,359 --> 00:28:39,320
Speaker 8: Supreme Court would defer to that kind of reasoning.

496
00:28:39,640 --> 00:28:42,160
Speaker 3: I mean, what does it say that the court it's

497
00:28:42,200 --> 00:28:46,520
Speaker 3: on an X sort of expedited schedule, but not really expedited.

498
00:28:46,680 --> 00:28:50,400
Speaker 3: And in all this time, you know what's happened in

499
00:28:50,520 --> 00:28:54,360
Speaker 3: these cities, Chicago and Portland in LA. At one point,

500
00:28:54,360 --> 00:28:57,080
Speaker 3: the Trump administration was arguing to send the troops that

501
00:28:57,080 --> 00:29:01,400
Speaker 3: were supposed to be in LA to Portland. So I

502
00:29:01,440 --> 00:29:04,040
Speaker 3: guess there isn't an emergency in LA anymore. I mean,

503
00:29:04,760 --> 00:29:06,200
Speaker 3: does it seem inconsistent?

504
00:29:07,160 --> 00:29:07,360
Speaker 5: Yeah?

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00:29:07,400 --> 00:29:10,440
Speaker 8: No, I think that the Supreme Court is very charchairity

506
00:29:10,720 --> 00:29:14,440
Speaker 8: of the President Trump's arguments with respect to the National Guard.

507
00:29:15,240 --> 00:29:18,040
Speaker 8: I don't think they like the idea of the standing

508
00:29:18,120 --> 00:29:21,240
Speaker 8: army in cities, and I think they're even skittish about

509
00:29:21,240 --> 00:29:27,160
Speaker 8: the National Guard and the statutory framework here seems very

510
00:29:27,200 --> 00:29:30,280
Speaker 8: much against the Trump administration. And we don't have rebellion,

511
00:29:30,480 --> 00:29:33,960
Speaker 8: we don't have an invasion, and there is very little

512
00:29:34,000 --> 00:29:39,440
Speaker 8: pressure on ordinary federal law enforcement, even if we don't

513
00:29:39,480 --> 00:29:44,040
Speaker 8: reach how to construe the term federal regular forces in

514
00:29:44,080 --> 00:29:45,160
Speaker 8: the National Guard Act.

515
00:29:46,800 --> 00:29:51,240
Speaker 3: But is the Supreme Court usually hesitant? This Supreme Court

516
00:29:51,920 --> 00:29:56,680
Speaker 3: to constrain the president's authority, thinking that you know, there

517
00:29:56,760 --> 00:30:01,000
Speaker 3: might be emergency situations where the president does have to act.

518
00:30:01,640 --> 00:30:05,160
Speaker 8: Well, there should be huge deference to the president if

519
00:30:05,160 --> 00:30:07,320
Speaker 8: there is an invasion or if there is a rebellion.

520
00:30:08,160 --> 00:30:12,800
Speaker 8: But if there is no colorable invasion or colorable rebellion,

521
00:30:13,080 --> 00:30:15,240
Speaker 8: that puts the Supreme Court in a bind. And I

522
00:30:15,240 --> 00:30:18,560
Speaker 8: think the Supreme Court members have not entered into this

523
00:30:18,640 --> 00:30:21,600
Speaker 8: fray yet because they're really torn about what to do.

524
00:30:22,040 --> 00:30:25,920
Speaker 8: And we're not seeing a kind of quick protection of

525
00:30:26,000 --> 00:30:28,760
Speaker 8: the administration that we have in context in terms of

526
00:30:28,800 --> 00:30:34,040
Speaker 8: discharging federal workers, cutting aid agreements, cutting grants, and so

527
00:30:34,120 --> 00:30:34,920
Speaker 8: on and so forth.

528
00:30:35,800 --> 00:30:39,320
Speaker 3: Trump has won the last twenty three cases that he

529
00:30:39,400 --> 00:30:42,400
Speaker 3: took to the Supreme Court, and the emergency docket.

530
00:30:43,000 --> 00:30:45,000
Speaker 8: It might be the first one might break the streak.

531
00:30:45,040 --> 00:30:47,360
Speaker 8: But I think everybody's watching the tariff case as well,

532
00:30:47,600 --> 00:30:50,720
Speaker 8: another sort of bell weather where it looks like the

533
00:30:50,840 --> 00:30:52,360
Speaker 8: justices may give a little pushback.

534
00:30:52,880 --> 00:30:56,280
Speaker 3: Let's turn to Snap benefits for a moment, though this

535
00:30:56,400 --> 00:31:00,400
Speaker 3: question could be over with the ending of the shut down,

536
00:31:00,600 --> 00:31:03,520
Speaker 3: but I think it's important to talk about the core

537
00:31:03,720 --> 00:31:09,080
Speaker 3: question here about the Snap benefits, where courts ordered Trump

538
00:31:09,720 --> 00:31:12,800
Speaker 3: to the Trump administration to pay the benefits, and the

539
00:31:12,840 --> 00:31:18,640
Speaker 3: Trump administration sent a message to states that were stepping

540
00:31:18,720 --> 00:31:21,800
Speaker 3: up and paying Snap benefits not to do it.

541
00:31:23,080 --> 00:31:26,480
Speaker 8: I'm actually just to shock you. I'm actually somewhat empathetic

542
00:31:26,520 --> 00:31:28,600
Speaker 8: to the Trump administration on this one.

543
00:31:28,840 --> 00:31:30,240
Speaker 1: I mean to dial back the clock.

544
00:31:30,360 --> 00:31:36,560
Speaker 8: The district court judge within the First Circuit made an

545
00:31:36,680 --> 00:31:39,800
Speaker 8: order to the Trump administration that said, you either have

546
00:31:39,840 --> 00:31:44,280
Speaker 8: to pay Snap benefits November in full, or you have

547
00:31:45,040 --> 00:31:49,400
Speaker 8: several days to make partial payment based upon the contingency fund.

548
00:31:50,120 --> 00:31:54,320
Speaker 8: The Trump administration agreed to pay all that was in

549
00:31:54,360 --> 00:31:57,200
Speaker 8: the contingency fund, which was about three quarters of the

550
00:31:57,240 --> 00:32:01,120
Speaker 8: Snap benefits for November, but it did so in a

551
00:32:01,240 --> 00:32:04,880
Speaker 8: kind of dilatorious way and said we can't meet the

552
00:32:04,920 --> 00:32:08,000
Speaker 8: deadline because it's too complicated. To figure out how to

553
00:32:08,000 --> 00:32:11,600
Speaker 8: make partial payments because of the arrangements and agreements we

554
00:32:11,680 --> 00:32:16,600
Speaker 8: have with the states. And so they chose to satisfy

555
00:32:17,040 --> 00:32:20,720
Speaker 8: the court order by making the partial payment from the

556
00:32:20,760 --> 00:32:24,040
Speaker 8: contingency fund as they could do, and they decided not

557
00:32:24,120 --> 00:32:30,360
Speaker 8: to use discretionary funds to make up for the deficit. Now,

558
00:32:30,600 --> 00:32:35,000
Speaker 8: what the court said then was you were moving too slowly.

559
00:32:35,440 --> 00:32:39,640
Speaker 8: You didn't you the government didn't meet the deadline, and therefore,

560
00:32:40,080 --> 00:32:43,800
Speaker 8: as an enforcement mechanism, we will require you to pay

561
00:32:44,080 --> 00:32:50,320
Speaker 8: the entire amount, basically transforming discretionary funds that the Department

562
00:32:50,320 --> 00:32:53,960
Speaker 8: of Agriculture had collected from tariffs into mandatory funding of

563
00:32:54,000 --> 00:32:57,800
Speaker 8: one program snap as opposed to other programs such as

564
00:32:58,720 --> 00:33:04,760
Speaker 8: nutrition for childs and infants. This is, you know, I think,

565
00:33:04,960 --> 00:33:09,920
Speaker 8: quite an intrusion into the general discretion of how the

566
00:33:09,960 --> 00:33:13,760
Speaker 8: Department of Agriculture should pay funds. And even the first

567
00:33:13,760 --> 00:33:16,719
Speaker 8: Circuit seemed to think that if you had a lawsuit

568
00:33:17,240 --> 00:33:20,920
Speaker 8: directed at the Department of Agriculture to require to use

569
00:33:20,960 --> 00:33:25,920
Speaker 8: its discretion in this particular way by paying for the

570
00:33:25,960 --> 00:33:30,800
Speaker 8: deficit in staff, that that lawsuit would be thrown out.

571
00:33:30,800 --> 00:33:33,520
Speaker 8: A court is non just disciple that basically the decision

572
00:33:33,560 --> 00:33:36,040
Speaker 8: of how to use discription rate funds is committed by

573
00:33:36,120 --> 00:33:41,719
Speaker 8: law to agency discretion. So only by using requiring the

574
00:33:41,720 --> 00:33:45,479
Speaker 8: payment of these discretionary funds as a remedy for the

575
00:33:45,520 --> 00:33:52,120
Speaker 8: government's tardy behavior in complying with the court ruling was

576
00:33:52,200 --> 00:33:55,640
Speaker 8: the court able to try to close the gap and

577
00:33:55,800 --> 00:33:59,640
Speaker 8: finalize the staff funding. So I think this is an

578
00:33:59,680 --> 00:34:03,640
Speaker 8: extra ordinary remedy acting. I think the government acted abominably

579
00:34:03,680 --> 00:34:08,280
Speaker 8: here in trying to withhold monies for the staff program.

580
00:34:08,320 --> 00:34:12,280
Speaker 8: But nonetheless, this court order seemed to overstep its bounds

581
00:34:12,920 --> 00:34:16,520
Speaker 8: in requiring that the full payment be made. Obviously, this

582
00:34:16,560 --> 00:34:18,600
Speaker 8: is putting pressure on Congress, and so this whole thing

583
00:34:18,640 --> 00:34:22,319
Speaker 8: maybe become mood quickly, but time still was remaining, so

584
00:34:22,360 --> 00:34:23,120
Speaker 8: we have to see.

585
00:34:23,680 --> 00:34:28,719
Speaker 3: How What about the Trump administration telling states, you know

586
00:34:28,840 --> 00:34:33,719
Speaker 3: you stop, stop what you're doing to pay snap benefits.

587
00:34:34,680 --> 00:34:37,319
Speaker 8: I think what the administration was doing was saying, we

588
00:34:37,360 --> 00:34:40,400
Speaker 8: can't guarantee you that if you pay more than the

589
00:34:40,760 --> 00:34:42,799
Speaker 8: if you fill the gap and pay more than the

590
00:34:42,800 --> 00:34:46,799
Speaker 8: contingency funds we have released, we won't guarantee that we'll

591
00:34:46,840 --> 00:34:50,680
Speaker 8: pay you back. And the government, federal government was right.

592
00:34:51,360 --> 00:34:55,280
Speaker 8: If some states have gone and paid full November staff benefits.

593
00:34:55,440 --> 00:34:58,560
Speaker 8: Others have paid zero. That's a state decision, and I

594
00:34:58,600 --> 00:35:01,279
Speaker 8: think the federal government was just telling them, you know, look,

595
00:35:01,320 --> 00:35:04,360
Speaker 8: if you do this and you pay more than the

596
00:35:04,520 --> 00:35:07,280
Speaker 8: what we've already agreed to pay, you're on the hook yourself.

597
00:35:08,120 --> 00:35:09,320
Speaker 8: And I think that's appropriate.

598
00:35:10,360 --> 00:35:12,680
Speaker 3: I mean, this was very important because this may be

599
00:35:12,760 --> 00:35:17,400
Speaker 3: one of the reasons why the Democrats caved the Snap.

600
00:35:17,680 --> 00:35:20,520
Speaker 8: It might be you know, obviously nobody wants to see

601
00:35:20,840 --> 00:35:23,399
Speaker 8: people go hungry, but ika at one point the Trump

602
00:35:23,440 --> 00:35:26,760
Speaker 8: of administration agreed that they would pay for November step

603
00:35:26,800 --> 00:35:30,239
Speaker 8: and then change their minds. And this changing the mind

604
00:35:30,280 --> 00:35:34,000
Speaker 8: I think infuriated the District court, which led to this

605
00:35:34,160 --> 00:35:39,839
Speaker 8: extraordinary remedy that the court imposed. The Supreme Court has

606
00:35:40,200 --> 00:35:42,279
Speaker 8: given an administrative stay, so we'll have to see how

607
00:35:42,320 --> 00:35:43,440
Speaker 8: this all plays out.

608
00:35:43,719 --> 00:35:46,880
Speaker 3: Thanks Hal. That's Harold Krant of the Chicago Kent College

609
00:35:46,880 --> 00:35:49,520
Speaker 3: of Law, and that's it for this edition of the

610
00:35:49,560 --> 00:35:52,480
Speaker 3: Bloomberg Law Show. Remember you can always get the latest

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613
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615
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