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 --> 00:00:12,560 Speaker 1: The Supreme Court deadlocked four to four on Thursday in 3 00:00:12,640 --> 00:00:16,200 Speaker 1: a major case over the separation of religion and government, 4 00:00:16,560 --> 00:00:20,240 Speaker 1: thwarting an effort to create the nation's first publicly funded 5 00:00:20,400 --> 00:00:25,000 Speaker 1: religious charter school in Oklahoma. The tie was possible because 6 00:00:25,239 --> 00:00:29,120 Speaker 1: Justice Amy Coney Barrett recused herself from the case. The 7 00:00:29,160 --> 00:00:33,839 Speaker 1: Supreme Court's one sentence order didn't reveal which justices were 8 00:00:33,880 --> 00:00:36,640 Speaker 1: on which side of the divide, but during the oral 9 00:00:36,760 --> 00:00:41,520 Speaker 1: arguments it seemed apparent that four conservative justices were likely 10 00:00:41,600 --> 00:00:44,920 Speaker 1: to side with the Catholic charter school, and the three 11 00:00:44,920 --> 00:00:48,919 Speaker 1: liberal justices were likely to side with Oklahoma. Here are 12 00:00:49,120 --> 00:00:51,199 Speaker 1: Justices Brett, Kavanaugh, and Sonya. 13 00:00:51,240 --> 00:00:55,200 Speaker 2: So to Mayor, and then you come in and you say, oh, 14 00:00:55,320 --> 00:00:59,320 Speaker 2: worral religious school. It's like, Oh, No, can't do that. 15 00:00:59,320 --> 00:01:02,520 Speaker 2: That's too much, that's scary. We're not going to do that. 16 00:01:03,560 --> 00:01:06,240 Speaker 2: And our cases have made very clear, and I think 17 00:01:06,240 --> 00:01:08,559 Speaker 2: those are some of the most important cases we've had 18 00:01:09,040 --> 00:01:13,679 Speaker 2: of saying you can't treat religious people and religious institutions 19 00:01:13,760 --> 00:01:17,800 Speaker 2: and religious speech as second class in the United States. 20 00:01:18,959 --> 00:01:22,720 Speaker 3: Because the essence of the establishment clause was, we're not 21 00:01:22,959 --> 00:01:30,080 Speaker 3: going to pay religious leaders to teach their religion. That 22 00:01:30,640 --> 00:01:34,000 Speaker 3: is and has always been the essence. And here we're 23 00:01:34,040 --> 00:01:39,920 Speaker 3: paying Catholic leaders Catholic teachers. You can only be a 24 00:01:39,959 --> 00:01:43,480 Speaker 3: teacher in this school if you're willing to accept the 25 00:01:43,560 --> 00:01:45,080 Speaker 3: teachings of the Catholic Church. 26 00:01:45,840 --> 00:01:49,600 Speaker 1: That left Chief Justice John Roberts as the pivotal vote, 27 00:01:49,800 --> 00:01:53,640 Speaker 1: and the Chief distinguished the Oklahoma case from past Supreme 28 00:01:53,680 --> 00:01:58,040 Speaker 1: Court decisions backing the use of public money for religious schools, 29 00:01:58,080 --> 00:02:01,520 Speaker 1: saying there appeared to be more state involvement in this case. 30 00:02:02,080 --> 00:02:09,560 Speaker 4: Trinity luther and Espinoza Carson, those involved fairly discrete state involvement. 31 00:02:09,680 --> 00:02:12,320 Speaker 4: In Trinity Lutheran, they're going to pave the or you know, 32 00:02:12,400 --> 00:02:16,280 Speaker 4: put woodchips on the on the playground. In Espinosa it 33 00:02:16,360 --> 00:02:21,560 Speaker 4: was a tuition credit, and Carson again tax credits. I mean, 34 00:02:21,960 --> 00:02:29,639 Speaker 4: this does strike me as a much more comprehensive involvement. 35 00:02:30,280 --> 00:02:34,000 Speaker 1: The split leaves in place the Oklahoma Supreme Court decision 36 00:02:34,200 --> 00:02:38,080 Speaker 1: blocking the religious charter school and leaves open the question 37 00:02:38,160 --> 00:02:42,679 Speaker 1: of whether states with taxpayer funded charter school programs are 38 00:02:42,800 --> 00:02:48,880 Speaker 1: constitutionally required to incorporate religious institutions My guest is religious 39 00:02:48,919 --> 00:02:53,919 Speaker 1: liberty expert Stephanie Barkley, a professor at Georgetown Law. How 40 00:02:54,120 --> 00:02:57,720 Speaker 1: important is this case? What would the consequences have been 41 00:02:58,160 --> 00:03:02,440 Speaker 1: if the Court had allowed the nation's first faith based 42 00:03:02,880 --> 00:03:03,560 Speaker 1: charter school. 43 00:03:03,840 --> 00:03:06,120 Speaker 5: So there's really two questions there. The one question is 44 00:03:06,400 --> 00:03:09,360 Speaker 5: if the court had ruled in favor of the faith 45 00:03:09,400 --> 00:03:12,120 Speaker 5: based charter school, how important of a decision would it 46 00:03:12,120 --> 00:03:14,639 Speaker 5: have been? And that would have been a landmark case. 47 00:03:14,680 --> 00:03:16,120 Speaker 5: It would have been the first time that we had 48 00:03:16,360 --> 00:03:19,240 Speaker 5: a face based charter school and would have had some 49 00:03:19,440 --> 00:03:22,639 Speaker 5: significant implications, probably not just for faith based schools and 50 00:03:22,720 --> 00:03:25,639 Speaker 5: charter school but potentially in other states as well. Now 51 00:03:25,639 --> 00:03:28,440 Speaker 5: there's the second question, which is, Okay, well, how significant 52 00:03:28,880 --> 00:03:31,800 Speaker 5: is the court's decision given that it's just, you know, 53 00:03:32,200 --> 00:03:35,400 Speaker 5: a very brief order without an opinion for for split, 54 00:03:35,520 --> 00:03:37,840 Speaker 5: affirming the lower court decision. And at that point the 55 00:03:37,880 --> 00:03:40,400 Speaker 5: answer is as a matter of precedent, that precedent is 56 00:03:40,400 --> 00:03:43,640 Speaker 5: not particularly important. It's not going to tell us, you know, 57 00:03:43,800 --> 00:03:47,000 Speaker 5: much about anything besides the fact that they're affirming this case. 58 00:03:47,040 --> 00:03:50,600 Speaker 5: There weren't five votes to reverse the Supreme Court in Oklahoma, 59 00:03:50,800 --> 00:03:52,840 Speaker 5: and in that way, it's going to be of limited 60 00:03:52,880 --> 00:03:53,760 Speaker 5: presidential effect. 61 00:03:54,240 --> 00:03:58,600 Speaker 1: Does this case reflect tension between the First Amendments two 62 00:03:58,760 --> 00:04:03,000 Speaker 1: religion clauses, the establishment clause and the free exercise Clause. 63 00:04:03,560 --> 00:04:05,960 Speaker 5: I don't think there is a tension between the two 64 00:04:05,960 --> 00:04:09,040 Speaker 5: religion clauses, and the Supreme Court emphasized that in its 65 00:04:09,080 --> 00:04:12,760 Speaker 5: recent case in Kennedy versus Birmerton School District. But largely 66 00:04:12,880 --> 00:04:16,200 Speaker 5: those clauses work together in a mutually reinforcing way. But 67 00:04:16,360 --> 00:04:19,039 Speaker 5: this case does highlight the way in which you could 68 00:04:19,040 --> 00:04:21,919 Speaker 5: get a different outcome under either of those clauses, depending 69 00:04:21,960 --> 00:04:25,479 Speaker 5: on whether we're dealing with a private school or a 70 00:04:25,520 --> 00:04:28,359 Speaker 5: government school. Because if it's a government school, then it 71 00:04:28,440 --> 00:04:32,400 Speaker 5: is pretty clear that government doesn't get to run religious 72 00:04:32,440 --> 00:04:35,359 Speaker 5: programs where it's preferring one type of denomination over another, 73 00:04:35,480 --> 00:04:38,440 Speaker 5: or setting out religious liturgy and things like that would 74 00:04:38,480 --> 00:04:41,560 Speaker 5: be prohibited under the approach to the Establishment Clause. The 75 00:04:41,600 --> 00:04:44,000 Speaker 5: Court has been taking post Kennedy, where it looks at 76 00:04:44,040 --> 00:04:47,120 Speaker 5: the six historical hallmarks of an established religion. Now, if 77 00:04:47,160 --> 00:04:49,960 Speaker 5: it's a private school, then the free exercise clause is 78 00:04:50,000 --> 00:04:53,080 Speaker 5: the relevant focus. Then the question is can the government 79 00:04:53,200 --> 00:04:56,599 Speaker 5: exclude the private school And the trajectory of cases that 80 00:04:56,640 --> 00:05:00,400 Speaker 5: it has had in Trinity Lutheran, Espinoza and Carson makes 81 00:05:00,400 --> 00:05:02,640 Speaker 5: pretty clear that the Court takes the free exercise clause 82 00:05:02,680 --> 00:05:06,359 Speaker 5: prohibits government from excluding religious schools just on that basis. 83 00:05:06,400 --> 00:05:08,919 Speaker 5: So it is a case that highlights for an outcomes 84 00:05:08,960 --> 00:05:11,719 Speaker 5: depending on the government versus private nature of the entity. 85 00:05:12,120 --> 00:05:16,920 Speaker 1: We don't know how the justices voted. The arguments suggested 86 00:05:17,279 --> 00:05:21,640 Speaker 1: perhaps that the Chief Justice was the pivotal vote who 87 00:05:21,760 --> 00:05:23,960 Speaker 1: might have gone with the three liberals. 88 00:05:24,160 --> 00:05:26,640 Speaker 5: I think that that's probably the most likely outcome that 89 00:05:26,720 --> 00:05:30,160 Speaker 5: you had. The Chief Justice Snawyer, Kagan, and Jackson do 90 00:05:30,279 --> 00:05:34,000 Speaker 5: not feel comfortable overruling the Oklahoma Supreme Court. And then 91 00:05:34,480 --> 00:05:40,040 Speaker 5: you had the other four justices, Justice Thomas, Alito, Gorsich, 92 00:05:40,080 --> 00:05:43,400 Speaker 5: and Kavanaugh. It probably would have ruled to overrule the 93 00:05:43,440 --> 00:05:47,000 Speaker 5: Oklahoma Supreme Court. And then of course Justice Spirit is recusing. 94 00:05:47,160 --> 00:05:49,120 Speaker 5: And of course because they only got to four to four, 95 00:05:49,160 --> 00:05:52,840 Speaker 5: that means it's an automatic affirmat of the previous judgment. 96 00:05:53,440 --> 00:05:57,560 Speaker 1: Were you surprised that there weren't five votes for the 97 00:05:57,600 --> 00:05:58,800 Speaker 1: religious charter school. 98 00:05:59,400 --> 00:06:01,960 Speaker 5: I think it's fortunate that there weren't five votes. I 99 00:06:01,960 --> 00:06:04,960 Speaker 5: think it's possible that the Chief was concerned about lack 100 00:06:05,000 --> 00:06:07,240 Speaker 5: of percolation. This is the first case of its time. 101 00:06:07,400 --> 00:06:10,120 Speaker 5: There aren't other cases that have grappled with this yet, 102 00:06:10,440 --> 00:06:13,120 Speaker 5: so hard to read. The tea leaves about exactly what 103 00:06:13,320 --> 00:06:15,760 Speaker 5: was the worry for him, But I think it's promising 104 00:06:16,240 --> 00:06:18,960 Speaker 5: that this court doesn't have an opinion from the chief, 105 00:06:19,080 --> 00:06:21,600 Speaker 5: sort of taking it out in a way that suggests 106 00:06:21,600 --> 00:06:23,359 Speaker 5: that this would be a permanent position, but leaving the 107 00:06:23,400 --> 00:06:26,159 Speaker 5: door open to future challengers and future cases. 108 00:06:26,800 --> 00:06:30,839 Speaker 1: So, then, do you think that states that fund charter 109 00:06:31,000 --> 00:06:35,920 Speaker 1: schools should be required to fund religious charter schools. 110 00:06:36,760 --> 00:06:40,039 Speaker 5: I think that if a state is operating such that 111 00:06:40,080 --> 00:06:42,760 Speaker 5: they're using the label of like a government school, that 112 00:06:42,800 --> 00:06:45,960 Speaker 5: they're really treating it like a voucher, then I think 113 00:06:46,000 --> 00:06:49,640 Speaker 5: probably the functional analysis matters more than the labels do. 114 00:06:49,880 --> 00:06:52,880 Speaker 5: But if the government is really operating charter schools like 115 00:06:52,960 --> 00:06:55,920 Speaker 5: other government schools, then I think government should be entitled 116 00:06:55,960 --> 00:06:59,640 Speaker 5: to make choices about running secular government schools. But really 117 00:06:59,680 --> 00:07:02,599 Speaker 5: just thelevels in the details of how is that particular 118 00:07:02,640 --> 00:07:05,760 Speaker 5: government operating at school system, how much oversight is there, 119 00:07:06,120 --> 00:07:07,880 Speaker 5: is it being even handed in the way it's approaching 120 00:07:07,920 --> 00:07:10,720 Speaker 5: that overside with the different types of charter schools and 121 00:07:10,760 --> 00:07:13,160 Speaker 5: public schools. Those are all going to be questions that 122 00:07:13,280 --> 00:07:15,560 Speaker 5: will be certainly relevant to the Court should a case 123 00:07:15,640 --> 00:07:16,440 Speaker 5: like this rise again. 124 00:07:16,800 --> 00:07:19,920 Speaker 1: The four to four TI was a product of Justice 125 00:07:20,160 --> 00:07:24,280 Speaker 1: amy Cony Barrett recusing herself. So since it's not a 126 00:07:24,360 --> 00:07:29,400 Speaker 1: nationwide precedent, is it likely that proponents of religious charter 127 00:07:29,560 --> 00:07:33,840 Speaker 1: schools will simply try again in a case where Justice 128 00:07:33,880 --> 00:07:35,600 Speaker 1: Barrett can sit on the case. 129 00:07:36,520 --> 00:07:39,040 Speaker 5: So I think that that is certainly not for close 130 00:07:39,440 --> 00:07:42,360 Speaker 5: by the Court's opinion in this case, and a possibility 131 00:07:42,400 --> 00:07:44,240 Speaker 5: at some point in the future. I think the most 132 00:07:44,320 --> 00:07:47,239 Speaker 5: likely next case that you will see in the school 133 00:07:47,280 --> 00:07:51,480 Speaker 5: choice movement is Saint Dominic Academy versus Macon, which would 134 00:07:51,480 --> 00:07:53,960 Speaker 5: be coming out of Maine. It's possible other cases could too, 135 00:07:53,960 --> 00:07:56,880 Speaker 5: but this is one that is already in the court system, 136 00:07:57,160 --> 00:08:00,440 Speaker 5: and it is essentially Carson two point zero, So name 137 00:08:00,680 --> 00:08:03,720 Speaker 5: the same government that the Supreme Court ruled against in 138 00:08:03,800 --> 00:08:07,440 Speaker 5: Carves and revised their laws when the case was sent 139 00:08:07,480 --> 00:08:10,040 Speaker 5: back down to try and find other creative ways to 140 00:08:10,120 --> 00:08:12,560 Speaker 5: keep faith based schools out of what is not a 141 00:08:12,640 --> 00:08:15,520 Speaker 5: charter school system, but it has always included private schools 142 00:08:15,520 --> 00:08:18,600 Speaker 5: and operates more like a traditional tuition boucher program, and 143 00:08:18,640 --> 00:08:21,400 Speaker 5: there are faith based schools that are challenging that right now, 144 00:08:21,400 --> 00:08:23,600 Speaker 5: and that's making its way through the court system. So 145 00:08:23,640 --> 00:08:26,640 Speaker 5: I think we're the court to take another school choice 146 00:08:26,760 --> 00:08:29,520 Speaker 5: sort of case. I think that's a more likely next step. 147 00:08:29,880 --> 00:08:32,079 Speaker 5: There are no cases right now percolating that I'm aware 148 00:08:32,120 --> 00:08:34,839 Speaker 5: of where there's another faith based charter school that has 149 00:08:34,880 --> 00:08:37,480 Speaker 5: been approved or requested to be created and been denied 150 00:08:37,480 --> 00:08:38,960 Speaker 5: and that they're doing over that right now. 151 00:08:39,600 --> 00:08:43,680 Speaker 1: Has the Supreme Court in recent years expanded religious liberty 152 00:08:43,760 --> 00:08:45,800 Speaker 1: rights over other rights? 153 00:08:45,800 --> 00:08:47,760 Speaker 5: I don't think that I would say they've expanded religious 154 00:08:47,800 --> 00:08:51,240 Speaker 5: liberty rights over other rights, but they have certainly given 155 00:08:51,280 --> 00:08:54,319 Speaker 5: a lot of attention to and been solicitous towards religious 156 00:08:54,320 --> 00:08:57,600 Speaker 5: claim although there are certainly religious claimants that have been 157 00:08:57,600 --> 00:08:59,560 Speaker 5: before the courts that didn't win their case, and this 158 00:08:59,640 --> 00:09:01,360 Speaker 5: is another So I think I think this is a 159 00:09:01,400 --> 00:09:04,440 Speaker 5: court that takes balanced and cautious approaches while still being 160 00:09:04,640 --> 00:09:07,360 Speaker 5: sympathetic towards religious liberty claims and wanting to ensure that 161 00:09:07,360 --> 00:09:10,000 Speaker 5: it's providing for best protection under our First Amendments. 162 00:09:10,360 --> 00:09:14,560 Speaker 1: We're waiting for two more decisions from the Court in 163 00:09:14,600 --> 00:09:16,720 Speaker 1: religion cases. Tell us about those. 164 00:09:17,559 --> 00:09:20,720 Speaker 5: One is a case called My Food and that is 165 00:09:21,120 --> 00:09:24,400 Speaker 5: another case in the educational context coming out of Maryland. 166 00:09:24,600 --> 00:09:27,680 Speaker 5: And this is a case where this school district has 167 00:09:27,760 --> 00:09:31,040 Speaker 5: instituted a policy where books are being read to children 168 00:09:31,400 --> 00:09:35,120 Speaker 5: down to elementary school and preschool that deal with issues 169 00:09:35,160 --> 00:09:40,160 Speaker 5: related to sexuality gender identity. And there are parents who 170 00:09:40,920 --> 00:09:44,400 Speaker 5: aren't objecting to those books being read broadly, but would 171 00:09:44,440 --> 00:09:46,760 Speaker 5: like to be able to opt their children out in 172 00:09:46,880 --> 00:09:49,600 Speaker 5: the school in that case has said that they are 173 00:09:49,640 --> 00:09:52,160 Speaker 5: not allowed to opt their children out. Their only option 174 00:09:52,280 --> 00:09:54,560 Speaker 5: is to drop out of school altogether if they don't 175 00:09:54,640 --> 00:09:57,120 Speaker 5: like that policy. So the Supreme Court has hurt oral 176 00:09:57,160 --> 00:10:00,000 Speaker 5: argument in that case, and it seems likely from oral 177 00:10:00,080 --> 00:10:02,520 Speaker 5: arguments that they will rule in favor of the religious 178 00:10:02,520 --> 00:10:05,319 Speaker 5: parents who Muslim parents, Jewish parents, and Christian parents in 179 00:10:05,400 --> 00:10:07,679 Speaker 5: a coalition in that case. Another case is the Catholic 180 00:10:07,760 --> 00:10:10,120 Speaker 5: Charity Is case that the Court heard before that that 181 00:10:10,240 --> 00:10:13,080 Speaker 5: is a case where there is a question of whether 182 00:10:13,400 --> 00:10:18,440 Speaker 5: a Catholic constitution can qualify for tax benefit in the state. 183 00:10:18,800 --> 00:10:22,120 Speaker 5: The decision from the state Supreme Court had said that 184 00:10:22,280 --> 00:10:26,600 Speaker 5: if the Catholic groups were engaging in more typical religious behavior, 185 00:10:26,600 --> 00:10:28,360 Speaker 5: and we're organized in a more typical way, and we're 186 00:10:28,400 --> 00:10:32,560 Speaker 5: doing things like proselytizing to other individuals as part of 187 00:10:32,559 --> 00:10:35,880 Speaker 5: their ministry, then they would qualify for the tax benefits. 188 00:10:35,920 --> 00:10:40,880 Speaker 5: But because this Catholic charity does not proselytize and that's 189 00:10:40,880 --> 00:10:43,400 Speaker 5: not part of their mission. They would serve people of 190 00:10:43,440 --> 00:10:45,880 Speaker 5: their religious groups or not all alike, and they don't 191 00:10:45,880 --> 00:10:48,199 Speaker 5: try and convert people to their theology, because the Catholic 192 00:10:48,320 --> 00:10:51,640 Speaker 5: ministry doesn't do that. On that basis, they don't qualify 193 00:10:51,720 --> 00:10:53,760 Speaker 5: for the tax benefit. And that was another case where 194 00:10:54,040 --> 00:10:57,360 Speaker 5: the court seems quite skeptical of the government action. Justice 195 00:10:57,440 --> 00:11:00,000 Speaker 5: Kagan in that case even asked like, isn't it pretty 196 00:11:00,040 --> 00:11:03,360 Speaker 5: clear the government doesn't get to tell people what ordinary 197 00:11:03,400 --> 00:11:07,480 Speaker 5: religious practices and which practices are approved and which or not. So, 198 00:11:07,640 --> 00:11:09,840 Speaker 5: I mean, it's even impossible in that case the government 199 00:11:09,960 --> 00:11:13,199 Speaker 5: might be facing unanimous defeat. Certainly something is likely that 200 00:11:13,240 --> 00:11:15,520 Speaker 5: they could get eight one or seven two votes in 201 00:11:15,559 --> 00:11:15,960 Speaker 5: that case. 202 00:11:16,200 --> 00:11:19,199 Speaker 1: And we'll find out the results of both those cases 203 00:11:19,720 --> 00:11:23,120 Speaker 1: before July. Thanks so much for joining me, Stephanie. That's 204 00:11:23,160 --> 00:11:27,040 Speaker 1: Professor Stephanie Barkley of Georgetown Law coming up next on 205 00:11:27,040 --> 00:11:30,800 Speaker 1: The Bloomberg Law Show. Families of the Buffalo mass shooting 206 00:11:30,880 --> 00:11:35,200 Speaker 1: victims want to hold social media platforms libel, and they're 207 00:11:35,240 --> 00:11:38,360 Speaker 1: asking a New York appellate court to allow their suit 208 00:11:38,440 --> 00:11:42,239 Speaker 1: to go forward. I'm June Grosso and you're listening to Bloomberg. 209 00:11:43,720 --> 00:11:47,559 Speaker 1: It's been three years since a white supremacist opened fire 210 00:11:47,679 --> 00:11:51,600 Speaker 1: inside a grocery store in Buffalo and killed ten people. 211 00:11:51,920 --> 00:11:55,200 Speaker 1: The eighteen year old shooter pleaded guilty to all state 212 00:11:55,360 --> 00:11:59,920 Speaker 1: charges and was sentenced to eleven concurrent life sentences. Survive 213 00:12:00,280 --> 00:12:03,000 Speaker 1: and families of the victims have been trying to hold 214 00:12:03,080 --> 00:12:08,640 Speaker 1: social media companies responsible for publishing racist content that allegedly 215 00:12:08,760 --> 00:12:12,960 Speaker 1: motivated the shooter to commit the hate crimes targeting people 216 00:12:13,000 --> 00:12:16,800 Speaker 1: in a historically black neighborhood hundreds of miles from his home. 217 00:12:17,520 --> 00:12:22,800 Speaker 6: Our case is fundamentally about the isolation, obsession, lack of 218 00:12:22,840 --> 00:12:29,120 Speaker 6: impulse control, and desensitization resulting from the neurological and psychological 219 00:12:29,200 --> 00:12:33,040 Speaker 6: trauma inflicted on a teenager's brain by a highly addictive 220 00:12:33,040 --> 00:12:34,360 Speaker 6: social media product. 221 00:12:34,880 --> 00:12:40,240 Speaker 1: The social media companies, which include Meta, Discord, Snapchat, and Twitch, 222 00:12:40,640 --> 00:12:45,040 Speaker 1: say Section two thirty of the Communications Decency Act protects 223 00:12:45,040 --> 00:12:48,720 Speaker 1: them from liability for third party content but the trial 224 00:12:48,800 --> 00:12:52,079 Speaker 1: judge ruled that the lawsuits could go forward, and both 225 00:12:52,160 --> 00:12:54,880 Speaker 1: sides were in a New York appellate court this week 226 00:12:55,080 --> 00:12:58,240 Speaker 1: as the companies try to get the suits dismissed. The 227 00:12:58,360 --> 00:13:02,200 Speaker 1: victim's families argued that the algorithms used by the sites 228 00:13:02,240 --> 00:13:06,280 Speaker 1: to deliver content should be considered products under the state's 229 00:13:06,320 --> 00:13:10,720 Speaker 1: product liability law, but the companies argue that non tangible 230 00:13:10,760 --> 00:13:14,520 Speaker 1: things can't be considered products. Here are the attorneys for 231 00:13:14,559 --> 00:13:16,600 Speaker 1: the victims families and Meta. 232 00:13:16,720 --> 00:13:20,560 Speaker 7: Any time a manufacturer places a dangerous product into the 233 00:13:20,559 --> 00:13:24,959 Speaker 7: stream of commerce that they reasonably know creates an unreasonable 234 00:13:25,080 --> 00:13:29,160 Speaker 7: risk of harm to the public, are liable under New 235 00:13:29,240 --> 00:13:34,319 Speaker 7: York State products liability law. It's plain and dirt simple. 236 00:13:35,640 --> 00:13:38,960 Speaker 8: And there are two sort of foundational problems here that 237 00:13:39,080 --> 00:13:42,719 Speaker 8: get us outside of the realm of traditional product liability. 238 00:13:43,120 --> 00:13:48,719 Speaker 8: One is that communicating intangible information is not a product, 239 00:13:48,760 --> 00:13:52,600 Speaker 8: and the second is that services are not products. And 240 00:13:52,720 --> 00:13:57,080 Speaker 8: here we have both of those things. Product liability law 241 00:13:57,200 --> 00:14:00,000 Speaker 8: is geared to the tangible world. 242 00:14:00,200 --> 00:14:03,080 Speaker 1: My guest is Eric Goleman, a professor at Santa Clara 243 00:14:03,200 --> 00:14:06,280 Speaker 1: University Law School and co director of the High Tech 244 00:14:06,360 --> 00:14:09,760 Speaker 1: Law Institute. Eric can you tell us about the allegations 245 00:14:09,800 --> 00:14:11,520 Speaker 1: of the plaintiffs in these cases. 246 00:14:11,920 --> 00:14:16,319 Speaker 9: The case involves the mast shooting in a Buffalo supermarket 247 00:14:16,360 --> 00:14:20,400 Speaker 9: by a white supremacist, and the basic gist of the 248 00:14:20,440 --> 00:14:25,320 Speaker 9: claims is that the shooter was radicalized on Facebook, and 249 00:14:25,360 --> 00:14:28,680 Speaker 9: so in order to fit that into legal doctrines, there's 250 00:14:28,720 --> 00:14:32,640 Speaker 9: a variety of different claims that the victims and families 251 00:14:32,680 --> 00:14:36,240 Speaker 9: have made in order to explain what's wrong with that, 252 00:14:36,640 --> 00:14:40,560 Speaker 9: Why does that actually create legal rights for the victims do? 253 00:14:40,720 --> 00:14:45,160 Speaker 9: Some of those include a claim that Facebook was negligent, 254 00:14:45,480 --> 00:14:49,360 Speaker 9: that it should have done something different to protect the victims, 255 00:14:49,520 --> 00:14:52,080 Speaker 9: and some of it is based on what we sometimes 256 00:14:52,120 --> 00:14:56,280 Speaker 9: call products liability. That Facebook is a product that is 257 00:14:56,400 --> 00:14:59,640 Speaker 9: dangerous and as a result, any harm that's caused by 258 00:14:59,640 --> 00:15:02,680 Speaker 9: a danger this product can be attributable to the supplier 259 00:15:02,760 --> 00:15:03,560 Speaker 9: of that product. 260 00:15:04,000 --> 00:15:07,760 Speaker 1: Are the plaintiffs bringing it under the product liability law 261 00:15:08,160 --> 00:15:11,760 Speaker 1: in order to get around section two thirty No. 262 00:15:11,880 --> 00:15:15,440 Speaker 9: Section two thirty is a defense, whereas the planets have 263 00:15:15,480 --> 00:15:19,240 Speaker 9: to still figure out a claim that actually fits their facts. However, 264 00:15:19,480 --> 00:15:21,880 Speaker 9: they do want to pick claims that are not preempted 265 00:15:21,880 --> 00:15:24,960 Speaker 9: by section two thirty, which says, in short, that websites 266 00:15:25,000 --> 00:15:27,920 Speaker 9: aren't liable for third party content. So the idea is 267 00:15:27,960 --> 00:15:31,400 Speaker 9: that the planiffs are arguing that they're not suing to 268 00:15:31,480 --> 00:15:35,520 Speaker 9: hold Facebook liable for the third party content they're suing 269 00:15:35,680 --> 00:15:39,680 Speaker 9: based on Facebook's contribution to the radicalization of the shooter. 270 00:15:40,000 --> 00:15:44,320 Speaker 1: When you think of product liability, you think of tangible objects. 271 00:15:44,600 --> 00:15:48,600 Speaker 1: You know, a mechanical device that injures you, something like that. 272 00:15:49,080 --> 00:15:53,040 Speaker 1: Has a New York court ever found a streaming service 273 00:15:53,240 --> 00:15:56,600 Speaker 1: or social media to be a product under the state's 274 00:15:56,640 --> 00:15:57,920 Speaker 1: product liability law. 275 00:15:58,400 --> 00:16:01,080 Speaker 9: For decades, there have been legal theories that have held 276 00:16:01,120 --> 00:16:04,560 Speaker 9: that the supply of physical items that are at risk 277 00:16:04,680 --> 00:16:08,800 Speaker 9: of causing physical injury are liable for those physical injuries. 278 00:16:08,840 --> 00:16:12,200 Speaker 9: And one of the classic old cases involve exploding Coca 279 00:16:12,240 --> 00:16:15,560 Speaker 9: cola bottles, and if you didn't manufacture and fill the 280 00:16:15,600 --> 00:16:19,040 Speaker 9: Coca cola bottle properly, it could literally explode and create 281 00:16:19,160 --> 00:16:22,000 Speaker 9: shards of laughs that were projectiles. And so the idea 282 00:16:22,080 --> 00:16:24,120 Speaker 9: is that we want manufacturers to be more careful in 283 00:16:24,160 --> 00:16:26,800 Speaker 9: the manufacturer of an item like that because of the 284 00:16:26,800 --> 00:16:29,600 Speaker 9: physical risk of poses when that item is now in 285 00:16:29,720 --> 00:16:34,720 Speaker 9: consumers homes. There's a very bright line in those doctrines 286 00:16:34,800 --> 00:16:38,400 Speaker 9: between physical items they are capable of causing physical injury, 287 00:16:38,640 --> 00:16:43,880 Speaker 9: and intangible thinks or services which do not pose the 288 00:16:43,920 --> 00:16:47,560 Speaker 9: same risk of sending glass yards as projectiles because there's 289 00:16:47,680 --> 00:16:52,240 Speaker 9: literally nothing like that in their possession. So the laws 290 00:16:52,320 --> 00:16:57,720 Speaker 9: normally limit products liability theories to actual physical products, not 291 00:16:58,160 --> 00:17:03,920 Speaker 9: to services like Internet services like Facebook, So it's a 292 00:17:04,040 --> 00:17:07,159 Speaker 9: leap of the theory to try and expand it to 293 00:17:07,240 --> 00:17:10,640 Speaker 9: cover services. This theory wasn't designed for that purpose, it's 294 00:17:10,680 --> 00:17:14,800 Speaker 9: not optimized to do so. And unlike the regulation of 295 00:17:14,880 --> 00:17:19,320 Speaker 9: Coca Cola bottles exploding with glass chards, there's significant speech 296 00:17:19,359 --> 00:17:23,200 Speaker 9: implications if we try to regulate the dissemination information as 297 00:17:23,200 --> 00:17:25,920 Speaker 9: if it's an exploding coke bottle. So there have been 298 00:17:25,960 --> 00:17:29,120 Speaker 9: plaintiffs across the country that have been trying out the 299 00:17:29,119 --> 00:17:34,600 Speaker 9: theories that Internet services are subject to products liability doctrines 300 00:17:34,760 --> 00:17:37,919 Speaker 9: and courts have split on that issue. Most courts have 301 00:17:38,000 --> 00:17:41,320 Speaker 9: rejected it, some have entertained it, and so it's a 302 00:17:41,480 --> 00:17:44,280 Speaker 9: live frontier in internet law today. 303 00:17:44,600 --> 00:17:47,000 Speaker 1: And had there been rulings bipellet. 304 00:17:46,560 --> 00:17:49,720 Speaker 9: Courts on that, Yes and no. There's been a variety 305 00:17:49,760 --> 00:17:53,159 Speaker 9: of rulings in different fact circumstances, but there's a leading 306 00:17:53,200 --> 00:17:55,520 Speaker 9: case in this area that just came out in February 307 00:17:55,720 --> 00:17:58,840 Speaker 9: from the Fourth Circuit involved a very very similar case 308 00:17:58,920 --> 00:18:03,400 Speaker 9: evolving the shooter who allegedly was radicalized on Facebook, and 309 00:18:03,440 --> 00:18:06,680 Speaker 9: the plaintiffs argued products liability is part of the reasons 310 00:18:06,720 --> 00:18:09,240 Speaker 9: why Facebook should be liable, and in that case the 311 00:18:09,280 --> 00:18:12,199 Speaker 9: Federal peblic Court shut all that down and said that 312 00:18:12,320 --> 00:18:15,560 Speaker 9: Facebook qualified for Section two thirty. Everything that the planets 313 00:18:15,600 --> 00:18:18,600 Speaker 9: are arguing was trying to hold Facebook liable for the 314 00:18:18,640 --> 00:18:21,920 Speaker 9: third party content available on service, and therefore the planets lose. 315 00:18:22,040 --> 00:18:25,440 Speaker 9: So the plainlifs in this case aren't directly bound by 316 00:18:25,440 --> 00:18:28,600 Speaker 9: that ruling, but clearly there's a strong message from that 317 00:18:28,680 --> 00:18:31,080 Speaker 9: ruling that the plantiff's arguments should not be successful. 318 00:18:31,320 --> 00:18:35,440 Speaker 1: Does that issue depend on the state's product liability law, 319 00:18:35,560 --> 00:18:38,399 Speaker 1: because those laws differ from state to state. 320 00:18:38,800 --> 00:18:41,080 Speaker 9: It can we have to look at the terms of 321 00:18:41,119 --> 00:18:44,200 Speaker 9: the exact statute, what it says it covers. That might 322 00:18:44,320 --> 00:18:47,719 Speaker 9: very well restrict plaints claims, but not expand them. In 323 00:18:47,720 --> 00:18:50,920 Speaker 9: other words, there's some limit to the theory that as 324 00:18:50,960 --> 00:18:53,360 Speaker 9: far as it can go, at some point it has 325 00:18:53,440 --> 00:18:56,840 Speaker 9: to stop, either because of doctrines like Section two thirty, 326 00:18:56,920 --> 00:18:59,800 Speaker 9: which Congress enacted as the way to prevent that kind 327 00:18:59,840 --> 00:19:02,520 Speaker 9: of expansion, or because of the First Amendment that the 328 00:19:02,600 --> 00:19:07,040 Speaker 9: Constitution does not permit a physical based legal doctrine to 329 00:19:07,080 --> 00:19:09,040 Speaker 9: extend to the dissemination of speech. 330 00:19:09,680 --> 00:19:13,600 Speaker 1: Eric tell us about the plaintiff's claims about the algorithms. 331 00:19:13,800 --> 00:19:16,320 Speaker 9: So, in order for the shooter to get access to 332 00:19:16,400 --> 00:19:20,240 Speaker 9: the radicalizing content, somebody has to upload it, and then 333 00:19:20,320 --> 00:19:23,479 Speaker 9: Facebook has to make the match to present that to 334 00:19:23,520 --> 00:19:25,600 Speaker 9: the reader to the shooter in this case, and so 335 00:19:25,720 --> 00:19:29,080 Speaker 9: plainists have often claimed that it was the algorithm Facebook 336 00:19:29,119 --> 00:19:31,639 Speaker 9: created that led to this radicalization. Now, there are a 337 00:19:31,640 --> 00:19:34,040 Speaker 9: couple of problems with that theory. One is, it was 338 00:19:34,119 --> 00:19:37,880 Speaker 9: expressly rejected in the Fourth Circuit opinion that I mentioned earlier. 339 00:19:38,320 --> 00:19:41,000 Speaker 9: Federal Peller Court said that's not a way of getting 340 00:19:41,040 --> 00:19:44,240 Speaker 9: around Section two thirty the other piece, and the Appellate 341 00:19:44,280 --> 00:19:47,560 Speaker 9: Court mentioned this as well, that in order for Facebook 342 00:19:47,600 --> 00:19:50,320 Speaker 9: to do anything differently to prevent that recualization, it would 343 00:19:50,320 --> 00:19:53,240 Speaker 9: have to re architect its entire service. In other words, 344 00:19:53,280 --> 00:19:56,320 Speaker 9: there's not a way of it just changing the algorithm 345 00:19:56,320 --> 00:20:00,040 Speaker 9: to eliminate the risk of radicalization without changing any the 346 00:20:00,119 --> 00:20:03,159 Speaker 9: other element of its algorithms. In other words, there's no 347 00:20:03,400 --> 00:20:06,399 Speaker 9: easy fix here for Facebook. Facebook work the way it 348 00:20:06,480 --> 00:20:09,199 Speaker 9: was designed to work. It may matches between people and 349 00:20:09,240 --> 00:20:12,240 Speaker 9: content they might be interested in. Unfortunately, some people are 350 00:20:12,280 --> 00:20:17,119 Speaker 9: interested in content that is antisocial. Facebook's algorithm treats that 351 00:20:17,240 --> 00:20:18,560 Speaker 9: the same as all other content. 352 00:20:18,840 --> 00:20:21,800 Speaker 1: If the court allows the case to go forward, well, 353 00:20:21,840 --> 00:20:25,240 Speaker 1: the plaintiffs have to prove that Facebook or the other 354 00:20:25,359 --> 00:20:29,280 Speaker 1: platforms led to the radicalization of the shooter. And how 355 00:20:29,320 --> 00:20:30,560 Speaker 1: difficult will that be? 356 00:20:31,040 --> 00:20:34,320 Speaker 9: Definitely they'll have to show that what we call causation 357 00:20:34,840 --> 00:20:37,720 Speaker 9: when it comes to negligence. I believe that that will 358 00:20:37,760 --> 00:20:41,159 Speaker 9: also be relevant in the context of strict products liability, 359 00:20:41,240 --> 00:20:44,159 Speaker 9: and it will be difficult. And causation was also an 360 00:20:44,160 --> 00:20:47,200 Speaker 9: issue in the Federal Appellate Court. Rulin I mentioned from 361 00:20:47,240 --> 00:20:50,280 Speaker 9: the Fourth Circuit and the court independently said there was 362 00:20:50,640 --> 00:20:53,800 Speaker 9: not sufficient causation in that case. And when we think 363 00:20:53,840 --> 00:20:58,520 Speaker 9: about what causes someone to radicalize into a white seup 364 00:20:58,520 --> 00:21:01,400 Speaker 9: premisis and even words, will this is a white supremacist 365 00:21:01,400 --> 00:21:04,840 Speaker 9: to then decide to engage in mass murder, there's so 366 00:21:05,000 --> 00:21:08,120 Speaker 9: many things that contribute to that outcome, and it's very 367 00:21:08,160 --> 00:21:11,840 Speaker 9: difficult to pull out one piece and say that's the cause. 368 00:21:12,240 --> 00:21:15,120 Speaker 9: They should bear all the burden of responsibility. In fact, 369 00:21:15,160 --> 00:21:17,439 Speaker 9: it really is a whole of society failure to have 370 00:21:17,720 --> 00:21:20,320 Speaker 9: people who end up in that circumstance, and we really 371 00:21:20,320 --> 00:21:22,760 Speaker 9: need to look at our society across the board to 372 00:21:22,800 --> 00:21:25,119 Speaker 9: figure out what went wrong and what we ought to 373 00:21:25,119 --> 00:21:27,280 Speaker 9: be doing differently, and to try and pin it on 374 00:21:27,400 --> 00:21:30,760 Speaker 9: anyone player in the ecosystem. To say Facebook was the 375 00:21:30,800 --> 00:21:33,600 Speaker 9: reason why this particular person pulled the trigger, I really 376 00:21:33,640 --> 00:21:37,840 Speaker 9: think kind of denies the reality of how we've all 377 00:21:37,880 --> 00:21:41,880 Speaker 9: contributed to a society that can lead to these outcomes and. 378 00:21:42,000 --> 00:21:45,800 Speaker 1: Explain how section two thirty would work here as a defense. 379 00:21:46,320 --> 00:21:50,199 Speaker 9: So the plan I'm started arguing that Facebook radicalized the shooter, 380 00:21:50,520 --> 00:21:56,120 Speaker 9: and Facebook itself normally doesn't publish content itself that it authored. 381 00:21:56,720 --> 00:22:01,240 Speaker 9: It's primary way of engaging in content distribution is to 382 00:22:01,280 --> 00:22:04,400 Speaker 9: gather third party content like the Facebook post that we 383 00:22:04,440 --> 00:22:07,880 Speaker 9: all make as the everyday activity and then share that 384 00:22:07,960 --> 00:22:13,200 Speaker 9: with an audience. And so the content that allegedly radicalized 385 00:22:13,240 --> 00:22:17,720 Speaker 9: the shooter didn't come from Facebook. Facebook most was the 386 00:22:17,760 --> 00:22:21,400 Speaker 9: mechanism by which some author matched with the shooter, and 387 00:22:21,480 --> 00:22:26,480 Speaker 9: so it's impossible really to describe Facebook's role in radicalizing 388 00:22:26,480 --> 00:22:29,840 Speaker 9: the shooter without talking about the content that regalized the shooter, 389 00:22:30,119 --> 00:22:32,480 Speaker 9: all of which came from a third party. And if 390 00:22:32,560 --> 00:22:35,560 Speaker 9: third party content can't create liability for Facebook, section two 391 00:22:35,560 --> 00:22:36,200 Speaker 9: threy will apply. 392 00:22:36,440 --> 00:22:39,080 Speaker 1: Is the easiest path for the appellate court here to 393 00:22:39,119 --> 00:22:41,720 Speaker 1: send the case back to the trial court saying the 394 00:22:41,760 --> 00:22:45,560 Speaker 1: facts have to be developed more before we can make 395 00:22:45,600 --> 00:22:46,200 Speaker 1: a decision. 396 00:22:46,960 --> 00:22:49,639 Speaker 9: So that's essentially what the lower court did. The lower 397 00:22:49,680 --> 00:22:54,119 Speaker 9: court basically said, I understand Facebook's defenses, and yet I 398 00:22:54,240 --> 00:22:56,880 Speaker 9: need to see more facts before I'm prepared to make 399 00:22:56,920 --> 00:23:00,280 Speaker 9: the conclusion that products liability applies, or even that's Section 400 00:23:00,320 --> 00:23:03,040 Speaker 9: two thirty applies. So one possibility is that the pel 401 00:23:03,119 --> 00:23:06,320 Speaker 9: court could say that district court was right. Let's let 402 00:23:06,359 --> 00:23:09,600 Speaker 9: the case continue to evolve in its ordinary manner, and 403 00:23:09,680 --> 00:23:11,359 Speaker 9: once we get more information, then we'll be able to 404 00:23:11,359 --> 00:23:14,400 Speaker 9: figure out what defense is to actually apply in the circumstance. 405 00:23:14,600 --> 00:23:17,760 Speaker 9: Most cases evolving section two thirty don't do that. Most 406 00:23:17,800 --> 00:23:20,440 Speaker 9: cases in section two thirty, and at the motion of 407 00:23:20,440 --> 00:23:22,840 Speaker 9: the Smiths, because it is obvious on the face there's 408 00:23:22,880 --> 00:23:27,440 Speaker 9: nothing that would be produced in discovery that would show 409 00:23:27,600 --> 00:23:30,760 Speaker 9: that Section two thirty didn't apply and here. I don't 410 00:23:30,800 --> 00:23:35,680 Speaker 9: think anyone's contesting that Facebook provided or authored the radicalizing content. 411 00:23:35,880 --> 00:23:38,960 Speaker 9: The allegation is that it match the shooter with third 412 00:23:39,000 --> 00:23:42,359 Speaker 9: party content. So everything that the court needs to know 413 00:23:42,400 --> 00:23:44,399 Speaker 9: about Section two thirty is, I think or are you 414 00:23:44,440 --> 00:23:47,920 Speaker 9: available to it? So punting on that question actually would 415 00:23:47,920 --> 00:23:50,520 Speaker 9: be a disservice to Facebook and I think to all 416 00:23:50,600 --> 00:23:53,800 Speaker 9: other social media that expect to be able to avoid 417 00:23:53,800 --> 00:23:56,119 Speaker 9: the liability for things that they're not legally responsible for. 418 00:23:56,440 --> 00:23:58,080 Speaker 1: But it wouldn't be the first time we've seen a 419 00:23:58,160 --> 00:24:01,320 Speaker 1: court punt when it didn't need to. Thanks Eric. That's 420 00:24:01,359 --> 00:24:05,719 Speaker 1: Professor Eric Goldman of Santa Clara University Law School. A note. 421 00:24:05,920 --> 00:24:09,720 Speaker 1: Michael Bloomberg, the founder majority owner of Bloomberg LP, the 422 00:24:09,800 --> 00:24:12,919 Speaker 1: parent of Bloomberg Radio, is a donor to groups that 423 00:24:13,000 --> 00:24:17,440 Speaker 1: support gun control, including every Town for Gun Safety, which 424 00:24:17,520 --> 00:24:20,960 Speaker 1: represented the plaintiffs here in the lower courts. Coming up, 425 00:24:21,119 --> 00:24:24,800 Speaker 1: President Trump tests the appointments power. I'm June Grosso and 426 00:24:24,840 --> 00:24:29,600 Speaker 1: you're listening to Bloomberg. Hi, everyone, it's Judge Jeanine. 427 00:24:29,720 --> 00:24:32,120 Speaker 4: I'm at the water cooler in the United States Attorney's 428 00:24:32,119 --> 00:24:33,440 Speaker 4: Office in Washington, d C. 429 00:24:33,840 --> 00:24:37,879 Speaker 1: President Trump appointed Jeanine Piro, the former Fox News host 430 00:24:37,960 --> 00:24:41,600 Speaker 1: and prosecutor, to be the interim US Attorney for d C, 431 00:24:42,160 --> 00:24:45,160 Speaker 1: taking the place of Ed Martin, who was the interim 432 00:24:45,240 --> 00:24:48,760 Speaker 1: DC US attorney for close to one hundred and twenty days. 433 00:24:48,920 --> 00:24:53,000 Speaker 1: Having two successive interim appointments test the bounds of the 434 00:24:53,040 --> 00:24:57,640 Speaker 1: appointment's power. It also reflects a growing trend of president's 435 00:24:57,840 --> 00:25:02,960 Speaker 1: leaning on temporary appointments for top roles. In Trump's first administration, 436 00:25:03,440 --> 00:25:08,160 Speaker 1: he appointed three successive officials to temporarily fill the role 437 00:25:08,240 --> 00:25:13,240 Speaker 1: of Secretary of Homeland Security. That practice ultimately backfired in 438 00:25:13,359 --> 00:25:17,040 Speaker 1: court when federal judges found that two of those acting 439 00:25:17,160 --> 00:25:23,480 Speaker 1: secretaries were improperly serving and struck down immigration restrictions they'd issued. 440 00:25:23,840 --> 00:25:26,960 Speaker 1: Joining me is Anne Joseph O'Connell, a professor at Stanford 441 00:25:27,040 --> 00:25:31,439 Speaker 1: Law School who specializes in political appointments. Will you explain 442 00:25:31,480 --> 00:25:34,440 Speaker 1: the provisions that are at play when a US attorney 443 00:25:34,520 --> 00:25:36,520 Speaker 1: is given an interim appointment. 444 00:25:37,040 --> 00:25:40,600 Speaker 10: So, when there's not a Senate confirmed US attorney in 445 00:25:40,640 --> 00:25:45,080 Speaker 10: a particular district, there are two statutes that can provide 446 00:25:45,200 --> 00:25:49,400 Speaker 10: for temporary service. So the first, what we call interim 447 00:25:49,720 --> 00:25:53,919 Speaker 10: US attorneys, is a specific provision in the United States 448 00:25:53,960 --> 00:25:57,760 Speaker 10: Code called section five forty six, and that provision allows 449 00:25:57,840 --> 00:26:02,240 Speaker 10: for the Attorney General to chew a temporary interim US 450 00:26:02,320 --> 00:26:04,800 Speaker 10: attorney for the district in which there is not a 451 00:26:04,840 --> 00:26:09,119 Speaker 10: Senate confirmed person. There are no restrictions on who the 452 00:26:09,160 --> 00:26:11,680 Speaker 10: Attorney General can pick, so they don't have to pick 453 00:26:11,720 --> 00:26:15,360 Speaker 10: someone who's within the Department of Justice, unlike this other 454 00:26:15,520 --> 00:26:18,760 Speaker 10: statutory provision. And so the Attorney General can pick an 455 00:26:18,760 --> 00:26:22,080 Speaker 10: interim US attorney and that person can serve for one 456 00:26:22,160 --> 00:26:25,679 Speaker 10: hundred and twenty days under section five forty six, and 457 00:26:25,720 --> 00:26:29,199 Speaker 10: then after that one hundred and twenty days expires, the 458 00:26:29,320 --> 00:26:35,040 Speaker 10: district Court may right may appoint a US attorney to 459 00:26:35,200 --> 00:26:38,520 Speaker 10: serve until there is a Senate confirmed one. 460 00:26:38,840 --> 00:26:41,520 Speaker 1: So what happened here is the term for ed Martin 461 00:26:41,760 --> 00:26:44,440 Speaker 1: was about to run out, and before the district Court 462 00:26:44,520 --> 00:26:50,320 Speaker 1: could appoint someone, President Trump nominated as another interim US attorney. 463 00:26:50,560 --> 00:26:53,080 Speaker 1: Jeanine Piro, I mean, is that according to the. 464 00:26:53,080 --> 00:26:56,439 Speaker 10: Rules, Well, it depends whether you're looking at the text 465 00:26:56,480 --> 00:26:59,360 Speaker 10: of the rule or the intent of the provision. Under 466 00:26:59,520 --> 00:27:04,239 Speaker 10: the text, I think it's permitted. The provision Section five 467 00:27:04,359 --> 00:27:08,639 Speaker 10: forty six does not explicitly bar successive one hundred and 468 00:27:08,640 --> 00:27:12,160 Speaker 10: twenty day appointments. And I should also note that even 469 00:27:12,200 --> 00:27:16,760 Speaker 10: if the district courts had chosen someone, the President in 470 00:27:16,840 --> 00:27:20,199 Speaker 10: all likelihood could have fired the district court pick and 471 00:27:20,320 --> 00:27:24,440 Speaker 10: picked another interim US attorney or turned this other statute 472 00:27:24,480 --> 00:27:27,320 Speaker 10: the Federal Vacancy's Reform ac So I think the text 473 00:27:27,520 --> 00:27:32,440 Speaker 10: permits successive appointments. There's no explicit bar on it, and 474 00:27:33,040 --> 00:27:37,120 Speaker 10: in the past we have seen successive appointments. Now that's 475 00:27:37,200 --> 00:27:42,280 Speaker 10: the text. When Congress reimposed time limits, so put back 476 00:27:42,400 --> 00:27:45,720 Speaker 10: the one hundred and twenty day constraint on how long 477 00:27:45,800 --> 00:27:48,560 Speaker 10: interim US attorneys can serve. They did that in two 478 00:27:48,560 --> 00:27:53,360 Speaker 10: thousand and seven after a US attorney scandal involving Attorney 479 00:27:53,400 --> 00:27:57,840 Speaker 10: General al Larto Gonzalez, who had fired a number of 480 00:27:58,040 --> 00:28:01,520 Speaker 10: US attorneys. And the scandal was not whether the president 481 00:28:01,840 --> 00:28:04,840 Speaker 10: or the Attorney General could fire US attorneys. It was 482 00:28:04,880 --> 00:28:08,000 Speaker 10: about the reason that was given for those firings. But 483 00:28:08,080 --> 00:28:10,520 Speaker 10: at the time that it happened, there was no limit 484 00:28:10,800 --> 00:28:14,640 Speaker 10: on how long interim US attorneys could serve, and there 485 00:28:14,680 --> 00:28:16,560 Speaker 10: was a period of years where there was kind of 486 00:28:16,600 --> 00:28:19,440 Speaker 10: no time limit. But then in two thousand and seven 487 00:28:19,480 --> 00:28:21,800 Speaker 10: Congress put back this time limit and I think the 488 00:28:21,880 --> 00:28:26,040 Speaker 10: putting back of the time limit suggests strongly that the 489 00:28:26,080 --> 00:28:31,040 Speaker 10: intent of Congress was not to have endless interim appointments 490 00:28:31,080 --> 00:28:32,240 Speaker 10: of US attorneys. 491 00:28:32,359 --> 00:28:34,800 Speaker 1: Was that the intent of the framers as well, In 492 00:28:34,840 --> 00:28:38,360 Speaker 1: other words, they wanted the Senate to advise and consent. 493 00:28:38,920 --> 00:28:40,240 Speaker 1: So we have. 494 00:28:40,280 --> 00:28:44,840 Speaker 10: Had Senate confirmed appointments since the start of the United 495 00:28:44,840 --> 00:28:48,760 Speaker 10: States Constitution under the Appointments Clause, and interestingly, we've had 496 00:28:49,240 --> 00:28:54,040 Speaker 10: statutes that provide for temporary appointments from about the same time. 497 00:28:54,280 --> 00:28:58,080 Speaker 10: The very first Vacancies Act, which applied generally, was in 498 00:28:58,160 --> 00:29:01,160 Speaker 10: seventeen ninety two, and there was another one in seventeen 499 00:29:01,240 --> 00:29:04,160 Speaker 10: ninety five. There it gets a little tricky about kind 500 00:29:04,200 --> 00:29:06,960 Speaker 10: of what were the time limits, because in the seventeen 501 00:29:07,040 --> 00:29:11,000 Speaker 10: ninety five Act, Congress imposed the six month time limit 502 00:29:11,280 --> 00:29:13,000 Speaker 10: on acting officials. 503 00:29:13,400 --> 00:29:17,680 Speaker 1: Hear a lot of actings. Have US presidents been using 504 00:29:17,800 --> 00:29:21,360 Speaker 1: interim positions more and more so I. 505 00:29:21,400 --> 00:29:26,880 Speaker 10: Have done some research on recent administrations and looking at 506 00:29:26,920 --> 00:29:31,600 Speaker 10: the very highest level of positions, so the heads of agencies, 507 00:29:31,720 --> 00:29:37,600 Speaker 10: cabinet secretaries in particular, and definitely recent administrations, and that 508 00:29:37,600 --> 00:29:42,560 Speaker 10: would include President Obama, President Trump's first term, and President Biden. 509 00:29:42,680 --> 00:29:47,600 Speaker 10: Have heavily relied on acting officials, much more I would say, 510 00:29:48,080 --> 00:29:51,920 Speaker 10: than their predecessors in terms of modern government. 511 00:29:52,240 --> 00:29:54,960 Speaker 1: What's the reason for this? I know that President Trump 512 00:29:55,040 --> 00:29:57,240 Speaker 1: in the past has said, you know, he likes the 513 00:29:57,320 --> 00:29:59,760 Speaker 1: idea of it. Is it because it's difficult to get 514 00:29:59,800 --> 00:30:02,640 Speaker 1: p people through the Senate? I mean, what's the reason 515 00:30:02,640 --> 00:30:03,959 Speaker 1: then they're using it more. 516 00:30:04,440 --> 00:30:08,360 Speaker 10: I think there are several reasons. The first is it 517 00:30:08,440 --> 00:30:11,560 Speaker 10: takes time to nominate people. Though I will say that 518 00:30:11,600 --> 00:30:15,280 Speaker 10: President Trump in his second term has a much faster 519 00:30:15,440 --> 00:30:18,960 Speaker 10: nominations pace than he had in his first term. I 520 00:30:19,000 --> 00:30:24,040 Speaker 10: mean six or sevenfold more nominations at one hundred daymark 521 00:30:24,360 --> 00:30:26,600 Speaker 10: in his second term than in his first term. But 522 00:30:26,720 --> 00:30:29,760 Speaker 10: nominations still takes time to find the people and to 523 00:30:29,840 --> 00:30:32,960 Speaker 10: formally nominate them. There's a vetting that occurs, and I 524 00:30:32,960 --> 00:30:37,280 Speaker 10: think for President Trump that betting has really focused on loyalty, 525 00:30:37,360 --> 00:30:42,080 Speaker 10: whereas in other administrations might be focusing on ethical considerations, 526 00:30:42,480 --> 00:30:47,400 Speaker 10: expertise and the like. And then there's the confirmation process. 527 00:30:47,440 --> 00:30:50,440 Speaker 10: And so even as we have now and even as 528 00:30:50,480 --> 00:30:54,080 Speaker 10: we did for President Biden, have a Senate controlled by 529 00:30:54,080 --> 00:30:57,240 Speaker 10: the same party as the White House, it still takes 530 00:30:57,280 --> 00:31:01,200 Speaker 10: time because individual senators. Even though there's no longer a 531 00:31:01,240 --> 00:31:05,320 Speaker 10: sixty vote threshold to move a nomination to a confirmation 532 00:31:05,440 --> 00:31:09,040 Speaker 10: vote that went away in November twenty thirteen, individual senators 533 00:31:09,080 --> 00:31:14,080 Speaker 10: can still delay the confirmation's process, right, And we saw 534 00:31:14,120 --> 00:31:18,960 Speaker 10: this with Senator Tuberbil in the Biden administration. We've seen 535 00:31:19,000 --> 00:31:21,440 Speaker 10: this in other cases as well. Right, Democrats do it 536 00:31:21,480 --> 00:31:24,760 Speaker 10: to Republicans, Republicans do it to Democrats, and that can 537 00:31:24,800 --> 00:31:26,840 Speaker 10: slow it down. And so I think both the nominations 538 00:31:26,840 --> 00:31:30,880 Speaker 10: and confirmation process make acting officials attractive. But I would 539 00:31:30,920 --> 00:31:34,080 Speaker 10: also say that what I think is a large reason 540 00:31:34,360 --> 00:31:38,960 Speaker 10: is that acting officials don't require Senate confirmation, and so 541 00:31:39,040 --> 00:31:42,800 Speaker 10: you can pick people to serve in the temporary capacity 542 00:31:42,880 --> 00:31:45,880 Speaker 10: that the Senate might not confirm. So in President Trump's 543 00:31:45,880 --> 00:31:49,920 Speaker 10: first term, the Republicans, as reported by the media, did 544 00:31:49,920 --> 00:31:53,160 Speaker 10: not want to confirm Ken Kucinelli to a senior post 545 00:31:53,240 --> 00:31:57,440 Speaker 10: in the Department of Homeland Security, but through acting appointments 546 00:31:57,440 --> 00:32:01,120 Speaker 10: and delegations of authority, mister kuch Janelli was able to 547 00:32:01,200 --> 00:32:04,320 Speaker 10: serve in very high profile roles in DHS. And I 548 00:32:04,360 --> 00:32:08,680 Speaker 10: think a similar story for Ed Martin that Republicans booked 549 00:32:09,240 --> 00:32:12,840 Speaker 10: and he was able through the interim provision to serve, 550 00:32:12,920 --> 00:32:15,160 Speaker 10: whereas you know, if he had just been put up 551 00:32:15,160 --> 00:32:17,560 Speaker 10: as a nominee, not as an interim, he might not 552 00:32:17,640 --> 00:32:18,520 Speaker 10: have gotten true. 553 00:32:18,720 --> 00:32:22,960 Speaker 1: Has President Trump pushed the limits of the Vacancy's Act 554 00:32:23,080 --> 00:32:24,840 Speaker 1: further than other presidents. 555 00:32:25,480 --> 00:32:29,200 Speaker 10: I think the Vacancy's Act is pretty capacious. It allows 556 00:32:29,240 --> 00:32:32,120 Speaker 10: the government to function. I think the Vacancies Act should 557 00:32:32,120 --> 00:32:35,800 Speaker 10: be reformed in certain ways because I think it allows 558 00:32:35,840 --> 00:32:39,440 Speaker 10: more than perhaps what we want for an accountable government. 559 00:32:39,840 --> 00:32:43,680 Speaker 10: But I think in this term, President Trump is really 560 00:32:43,800 --> 00:32:47,640 Speaker 10: pushing an argument that no previous president has pushed, which 561 00:32:47,680 --> 00:32:50,880 Speaker 10: is that he believes that if the Vacancy's Act does 562 00:32:50,920 --> 00:32:55,320 Speaker 10: not apply, he has inherent article to authority to name 563 00:32:55,600 --> 00:32:58,840 Speaker 10: acting officials. And this has come up in the Inner 564 00:32:58,840 --> 00:33:02,720 Speaker 10: America Foundation and the African Development Foundation. These are entities 565 00:33:02,760 --> 00:33:06,360 Speaker 10: not covered by the Vacancies Act, where President Trump has 566 00:33:06,560 --> 00:33:11,600 Speaker 10: named acting officials to Senate confirmed Board positions relying on 567 00:33:12,080 --> 00:33:16,240 Speaker 10: claimed inherent article to authority. It seems with the firing 568 00:33:16,280 --> 00:33:19,120 Speaker 10: of the Librarian of Congress that if the Library of 569 00:33:19,120 --> 00:33:21,480 Speaker 10: Congress is not subject to the Vacancies Act, and I 570 00:33:21,520 --> 00:33:24,040 Speaker 10: don't think it is, President Trump, the White House is 571 00:33:24,080 --> 00:33:27,280 Speaker 10: indicated that there is Article two authority to name an 572 00:33:27,360 --> 00:33:30,800 Speaker 10: acting librarian, and I think this is an outrageous claim. 573 00:33:31,320 --> 00:33:34,200 Speaker 10: We have an appointments clause, we have a recess appointments clause. 574 00:33:34,240 --> 00:33:37,280 Speaker 10: It is true that the Vacancies Act and specific agency 575 00:33:37,320 --> 00:33:41,200 Speaker 10: provisions like section five forty six for interim US attorneys 576 00:33:41,240 --> 00:33:45,840 Speaker 10: do allow vast use of temporary appointments, but outside of those, 577 00:33:46,280 --> 00:33:49,280 Speaker 10: presidents need to rely on the appointments clause or the 578 00:33:49,320 --> 00:33:50,080 Speaker 10: recess appointment. 579 00:33:50,440 --> 00:33:55,640 Speaker 1: Some legal experts have suggested that defendants who are prosecuted 580 00:33:55,720 --> 00:34:00,920 Speaker 1: by a successive interim US attorney like Pero could challenge 581 00:34:00,960 --> 00:34:05,120 Speaker 1: their prosecutions based on claims that she's serving in the 582 00:34:05,200 --> 00:34:06,960 Speaker 1: role improperly. 583 00:34:07,000 --> 00:34:10,719 Speaker 10: I think they would definitely have standing to sue, and 584 00:34:10,760 --> 00:34:14,120 Speaker 10: I think their argument would be that under five forty six, 585 00:34:14,320 --> 00:34:18,400 Speaker 10: successive one hundred twenty day appointments are not allowed. And 586 00:34:18,480 --> 00:34:21,680 Speaker 10: I think that is a plausible argument. I just don't 587 00:34:21,719 --> 00:34:25,520 Speaker 10: think it's a winning argument. I think that courts will 588 00:34:25,520 --> 00:34:28,200 Speaker 10: look at the text. Right as Justice Kagan says, we're 589 00:34:28,239 --> 00:34:31,080 Speaker 10: all textless now, that the courts will look at the 590 00:34:31,160 --> 00:34:34,440 Speaker 10: text and see that successive one hundred and twenty day 591 00:34:34,440 --> 00:34:39,319 Speaker 10: appointments are not barred. It's happened in the past and permitted. Now, 592 00:34:39,320 --> 00:34:42,560 Speaker 10: that doesn't mean it shouldn't change. I mean, Congress could 593 00:34:42,719 --> 00:34:46,000 Speaker 10: amend five forty six to make it clear that you 594 00:34:46,080 --> 00:34:49,680 Speaker 10: get one one hundred twenty day appointment, then the district 595 00:34:49,719 --> 00:34:52,480 Speaker 10: court gets to choose. And then I should note that 596 00:34:52,560 --> 00:34:55,680 Speaker 10: there is an alternative to these successive one hundred twenty 597 00:34:55,719 --> 00:34:59,120 Speaker 10: day appointments. While a nomination might be pending to a 598 00:34:59,200 --> 00:35:02,480 Speaker 10: US attorney's lot, is that I believe that the Federal 599 00:35:02,560 --> 00:35:08,680 Speaker 10: Vacancy's Reform Act is available for temporary appointments to these positions. Now, 600 00:35:08,840 --> 00:35:12,799 Speaker 10: the constraint why I think the Trump administration doesn't want 601 00:35:12,840 --> 00:35:15,400 Speaker 10: to turn to the Vacancies Act is that under the 602 00:35:15,480 --> 00:35:18,800 Speaker 10: Vacancy's Act, you can't just choose anyone. You can't choose 603 00:35:18,840 --> 00:35:22,480 Speaker 10: an outsider like the current person. You can't choose an 604 00:35:22,480 --> 00:35:25,880 Speaker 10: outsider to come in as an acting US attorney. You 605 00:35:26,000 --> 00:35:29,200 Speaker 10: either need to choose someone who is the first assistant 606 00:35:29,320 --> 00:35:32,920 Speaker 10: to the US Attorney right, which is typically a career person. 607 00:35:33,400 --> 00:35:36,360 Speaker 10: You need to choose someone who has Senate confirmed already 608 00:35:36,400 --> 00:35:38,560 Speaker 10: to another position, so it has already kind of gone 609 00:35:38,600 --> 00:35:42,240 Speaker 10: through the Senate process. Or you have to choose someone 610 00:35:42,600 --> 00:35:45,760 Speaker 10: who was in the agency for at least ninety days 611 00:35:45,760 --> 00:35:47,280 Speaker 10: in the year before the vacancy. 612 00:35:47,640 --> 00:35:50,600 Speaker 1: So finally, you think there needs to be reform here. 613 00:35:51,000 --> 00:35:56,840 Speaker 10: I think the laws governing temporary appointments are pretty broad 614 00:35:56,960 --> 00:36:01,800 Speaker 10: and likely too broad. On the other hand, we want 615 00:36:01,840 --> 00:36:04,759 Speaker 10: the government to function. We don't want the government to 616 00:36:04,840 --> 00:36:09,160 Speaker 10: come to a standstill. And so finding the balance between 617 00:36:09,719 --> 00:36:15,279 Speaker 10: getting Senate confirmed appointments through a dysfunctional appointments process and 618 00:36:15,800 --> 00:36:20,400 Speaker 10: having the government function is tricky. And sometimes we're on 619 00:36:20,440 --> 00:36:23,000 Speaker 10: the right side of the balance and sometimes we're on 620 00:36:23,120 --> 00:36:26,759 Speaker 10: the wrong side of the balance. And so I think 621 00:36:26,800 --> 00:36:30,640 Speaker 10: that Congress really has a role to play in constraining 622 00:36:30,640 --> 00:36:32,680 Speaker 10: the use of acting an interim appointment. 623 00:36:33,000 --> 00:36:36,640 Speaker 1: Well, a study on vacancies showed that President George W. 624 00:36:36,760 --> 00:36:41,600 Speaker 1: Bush didn't nominate anyone in thirteen percent of vacant Senate 625 00:36:41,640 --> 00:36:46,760 Speaker 1: confirmed roles in federal agencies. President Barack Obama didn't nominate 626 00:36:46,840 --> 00:36:51,240 Speaker 1: anyone in fifteen percent of those roles, and President Trump 627 00:36:51,239 --> 00:36:55,560 Speaker 1: in his first administration didn't nominate anyone in twenty six 628 00:36:55,640 --> 00:36:59,000 Speaker 1: percent of those roles. So it's a growing trend. Thanks 629 00:36:59,040 --> 00:37:03,280 Speaker 1: so much, Ann, that's professor and Joseph O'Connell of Stanford Law. 630 00:37:03,440 --> 00:37:05,759 Speaker 1: And that's it for this edition of The Bloomberg Law Show. 631 00:37:06,120 --> 00:37:08,440 Speaker 1: Remember you can always get the latest legal news on 632 00:37:08,520 --> 00:37:12,799 Speaker 1: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, 633 00:37:12,960 --> 00:37:18,000 Speaker 1: and at www dot Bloomberg dot com slash podcast Slash Law, 634 00:37:18,400 --> 00:37:21,000 Speaker 1: And remember to tune into The Bloomberg Law Show every 635 00:37:21,040 --> 00:37:24,960 Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso 636 00:37:25,080 --> 00:37:26,680 Speaker 1: and you're listening to Bloomberg