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

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Speaker 2: No president has fired a sitting governor in the one

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Speaker 2: hundred and twelve year history of the FED, and Supreme

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Speaker 2: Court justices across the ideological spectrum suggested they're unlikely to

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Speaker 2: permit Donald Trump to be the first president to do so.

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Speaker 2: High among the justice's concerns about Trump attempting to fire

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Speaker 2: Federal Reserve Governor Lisa Cook over unproven mortgage fraud allegations

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Speaker 2: was that it would upend the Fed's independence and rattle

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Speaker 2: the markets. Justices Brett Cavanaugh and Amy Coney Barrett, both

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Speaker 2: Trump appointees, post skeptical questions to the Solicitor General.

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Speaker 3: But on that your position that there's no judicial review,

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Speaker 3: no process required, no remedy available, low bar for cause

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Speaker 3: that the president alone determines. I mean that would weaken,

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Speaker 3: if not shatter, the independence of the Federal Reserve that

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Speaker 3: we just discussed.

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Speaker 4: Justin Sodomaira brought up the public interest here, and we

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Speaker 4: have amicas brace from economists who tell us that if

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Speaker 4: Governor Cook is if we grant you your stay, that

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Speaker 4: it could trigger over session. How should we think about

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Speaker 4: the public interests in a case like this.

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Speaker 2: Both Cook and Federal Reserve Chairman Jerome Powell sat through

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Speaker 2: nearly two hours of oral arguments in the Pack courtroom today.

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Speaker 2: The issue before the court is whether Cook can stay

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Speaker 2: on the job while her challenge to the firing plays

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Speaker 2: out in the lower courts. That's a high bar and

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Speaker 2: includes a showing of irreparable harm to the president, which

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Speaker 2: several justices like Kaitanji Brown Jackson indicated there was no

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Speaker 2: evidence of.

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Speaker 5: So the question is, to what extent do we believe

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Speaker 5: that the president or the public is harmed by allowing

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Speaker 5: miss Cook to remain in her position for the pendency

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Speaker 5: of this case. I'm not sure that we have evidence

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Speaker 5: here that missus Cook is an immediate threat to the public.

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Speaker 2: My guest is an expert in constitutional law, David Super,

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Speaker 2: a professor at Georgetown Law. David, if you just go

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Speaker 2: by the oral arguments, did it seem like there were

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Speaker 2: at least five justices who would vote to keep Lisa

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Speaker 2: Cook in her job while the litigation plays out?

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Speaker 1: I think so. The government's lawyer faced pretty tough questioning

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Speaker 1: from seven justices, and it only takes five.

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Speaker 2: Explain the four cause requirement in the fred Reserve Act.

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Speaker 1: Certainly, the Federal Reserve Act creates the Board of Governors,

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Speaker 1: allows the President to appoint people to that board with

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Speaker 1: Senate confirmation, and provides that once appointed and confirmed, they

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Speaker 1: cannot be removed except for cause. That effectively means that

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Speaker 1: they must do something wrong or fail to do their

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Speaker 1: jobs in order to be removed. It's not just up

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Speaker 1: to the president to fire them anytime he wants. He

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Speaker 1: can fire his chief of staff anytime he wants, but

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Speaker 1: members of the Federal Reserve Board, he has to have

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Speaker 1: a good reason a cause to do it.

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Speaker 2: In general, you mentioned seven justices seem to have problems.

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Speaker 2: Can you quantify or describe what the nature of their

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Speaker 2: concerns were?

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Speaker 1: Well, there's a lot of niceties in this case, but

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Speaker 1: what it comes down to is whether the Federal Reserve

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Speaker 1: will be independent, whether it will exercise its enormous powers

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Speaker 1: based on best expert judgment and the directions given by Congress,

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Speaker 1: or whether it will be just a tool the sitting

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Speaker 1: president who can use it irresponsibly to advance his political fortunes.

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Speaker 2: So Lisa Cook first argues that she was entitled to

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Speaker 2: formal notice and a chance to defend herself before Trump

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Speaker 2: fired her. The Solicitor General seemed to be facing a

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Speaker 2: lot of skeptical questioning about the idea that Trump's social

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Speaker 2: media posts qualified as formal notice, and then Amy Cony

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Speaker 2: Barrett said, why are you afraid of a hearing? It

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Speaker 2: wouldn't be that big of a deal for Trump to

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Speaker 2: give her a face to face meeting. Did you find

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Speaker 2: a lot of skepticism on the justices part that there

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Speaker 2: was notice here?

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Speaker 1: Certainly, social media, particularly one's own personal social media platform,

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Speaker 1: is not a conventional way of giving notice. It's a

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Speaker 1: way of doing public politics. The Slicter General actually went

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Speaker 1: even farther than you say and suggested that the failure

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Speaker 1: of doctor Cook to tweet back at Trump should be

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Speaker 1: held against her, should be held as an admission that

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Speaker 1: what Trump said was true. If I was held responsible

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Speaker 1: for every tweet I ignored, I would be in a

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Speaker 1: very bad way.

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Speaker 2: Was there any argument that she had a hearing?

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Speaker 1: No, there was no hearing. There was no pretense of

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Speaker 1: a hearing. And the argument that this Solicter General was

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Speaker 1: forced to make is that she got the equivalent of

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Speaker 1: a hearing in public in getting adverse social media posts

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Speaker 1: from Trump and not responding to them. That's an argument

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Speaker 1: that even some most conservative justices seem to have a

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Speaker 1: great difficulties.

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Speaker 2: Following, she also argues that Trump's reasons for firing her

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Speaker 2: this mortgage fraud allegations that she has denied, don't qualify

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Speaker 2: as cause. What did you hear from the justices on

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Speaker 2: that the cause requirement?

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Speaker 1: Well, there was less clarity as to what they were

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Speaker 1: thinking about that, at least my take on the argument.

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Speaker 1: There are some statutes that provide considerable detail as to

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Speaker 1: what is caused. This statute isn't really one of them.

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Speaker 1: And some justices, particularly Justice Thomas, seemed to be thinking

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Speaker 1: that that difference between this and other laws means that

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Speaker 1: anything that Trump says is cause is good enough. But

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Speaker 1: there are other justices that seemed responsive to the notion

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Speaker 1: that if the President can just make up any old

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Speaker 1: cause he wants, that there is effectively no independence for

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Speaker 1: the Federal Reserve. And I think that the extreme nature

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Speaker 1: of the argument here that the Slisser General had to

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Speaker 1: make is going to bite them. The essence of doctor

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Speaker 1: Crook's argument is all this information was availed before I

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Speaker 1: was appointed and confirmed. Congress could have taken that into

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Speaker 1: account in deciding whether it confirmed me. They didn't. And

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Speaker 1: the good cause requirement is supposed to relate to something

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Speaker 1: one does on the job. I didn't have this job

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Speaker 1: when I sought those mortgages that Trump is saying are improper.

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Speaker 2: Yeah, I mean there wasn't. The veracity of the allegations

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Speaker 2: isn't really before the court. There was little discussion of it,

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Speaker 2: although the Chief Justice talked about it a little bit, saying,

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Speaker 2: suppose it was an inadvertent mistake contradicted by other documents,

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Speaker 2: and he also asked Cook's lawyer about the evidence that

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Speaker 2: this was at most and inadvertent error. I mean, are

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Speaker 2: the justices going to go there?

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Speaker 3: Do you think?

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Speaker 1: Well, the justice have several ways of dealing with this

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Speaker 1: if we assume which after argument, I think we can

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Speaker 1: that a majority of the court does not want a

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Speaker 1: highly plaic fedal reserve and needs to find some way

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Speaker 1: of keeping doctor Cook on the board. They've got several

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Speaker 1: ways to go. They can say that the hearing was improper,

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Speaker 1: or the absence of a hearing and the notice was improper.

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Speaker 1: They can say that something that happened prior to her

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Speaker 1: taking the job doesn't count as good cause they can

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Speaker 1: say that the lower courts need to look into the

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Speaker 1: merits of this or and this is something Justice Barrett

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Speaker 1: seemed interested in. They can simply say that President Trump

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Speaker 1: is not suffering any legal injury from having doctor Cook

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Speaker 1: continue to serve, and therefore he simply doesn't qualify for

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Speaker 1: a stay of the lower court's injunction.

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Speaker 2: Yeah, so, I mean the Supreme Court doesn't have to

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Speaker 2: definitively resolve whether Trump can fire Cook. The issue is

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Speaker 2: whether she can stay on the job while her challenge

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Speaker 2: to the firing plays out in the lawe lower courts.

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Speaker 2: That's a high bar, isn't it, and includes what you've

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Speaker 2: referred to irreparable harm. So you know where's the irreparable

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Speaker 2: harm to Trump?

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Speaker 1: Well, we have gotten accustom over the last year to

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Speaker 1: the Supreme Court finding that any potential impairment of President

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Speaker 1: Trump's powers is an irreparable injury. But if I asked

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Speaker 1: you to go way back in time one year, that

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Speaker 1: was very extraordinary, and getting the Supreme Court to intervene

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Speaker 1: in lower court cases was very difficult throughout most of

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Speaker 1: this country's history. So perhaps the Court will refert to

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Speaker 1: that and say we shouldn't get involved until this gets

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Speaker 1: fully aired out. The lower courts.

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Speaker 2: Also, you know, talk about pushing the boundaries. John Soer,

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Speaker 2: the Solicitor General, said that the courts shouldn't be allowed

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Speaker 2: to review presidential firing decisions, even if there's a four

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Speaker 2: cause requirement, And the Chief Justice at one point said,

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Speaker 2: why waste our time? If your position is we have

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Speaker 2: no authority, why waste our time? And even just as

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Speaker 2: Alito express concern the administration had handled this in a

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Speaker 2: cursory manner, are the mortgage applications even in the record

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Speaker 2: in this case? So, you know, it seemed like that

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Speaker 2: was going too far for most of the justices, even

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Speaker 2: the conservatives.

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Speaker 1: I think so because the Solicter General's position is that

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Speaker 1: the courts can't look at this. And if the president

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Speaker 1: can fire a Federal Reserve governor based on anything the

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Speaker 1: president makes up, and no matter how absurd and unfounded

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Speaker 1: it is, it can't be reversed. Then effectively there is

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Speaker 1: no four cause requirement in the Federal Reserve Statute, and

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Speaker 1: these people all serve at the pleasure of the president.

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Speaker 1: Many many economists across the political spectrum believe that losing

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Speaker 1: the independence of the Federal Reserve would in the long

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Speaker 1: term reduce invest from an increase infation of this country.

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Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 2: this conversation with Georgetown law professor David Super We'll look

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Speaker 2: at some of the different ways the Court could rule

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Speaker 2: in the case and a sort of warning from Justice

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Speaker 2: Kavanaugh that what goes around comes around. I'm June Grosso

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Speaker 2: and you're listening to Bloomberg. The Supreme Court seems inclined

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Speaker 2: to keep Federal Reserve Governor Lisa Cook in her job

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Speaker 2: as her lawsuit against President Trump for firing her goes

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Speaker 2: forward in the lower courts. The case against Cook stems

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Speaker 2: from allegations she claimed two properties in Michigan and Georgia

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Speaker 2: as primary residences in mortgage applications before she joined the

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Speaker 2: Fed Board. Cook has denied any wrongdoing, and Justice Katanji

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Speaker 2: Brown Jackson pointed out the lack of evidence against her

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Speaker 2: during oral arguments.

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Speaker 5: Today, when an allegation is made about someone's misconduct or whatnot,

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Speaker 5: an opportunity for that person to present evidence, for the

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Speaker 5: other side to present evidence, And even if the President

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Speaker 5: was the final arbiter of this, one would expect that

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Speaker 5: he would do so. On the basis of evidence. So

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Speaker 5: what I'm trying to understand is what is the evidence

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Speaker 5: that has been presented and considered with respect to ms

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Speaker 5: Cook's alleged misconduct.

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Speaker 2: Cook contends that even if the mortgage allegations were true,

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Speaker 2: that isn't grounds for firing her for cause. She also

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Speaker 2: argues that she should have been given notice and an

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Speaker 2: opportunity to contest the allegations, and several of the justices

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Speaker 2: questioned the Solicitor General about why the administration was reluctant

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Speaker 2: to give her that opportunity. Here are Justices Amy Cony, Barrett,

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Speaker 2: and Brett Cavanaugh.

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Speaker 4: Okay, so there's the truth social posts and then you know,

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Speaker 4: burden on her to come back in five days. I

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Speaker 4: understand that's your position. But you know, justice course, such

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Speaker 4: positive sit down the table on the Roosevelt Room, where

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Speaker 4: the President provides mss Cook Governor Cook with the evidence

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Speaker 4: and waits to hear what her response is, gives her

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Speaker 4: a chance to defend herself. I mean, that just wouldn't

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Speaker 4: be that big a deal, it seems, if that's enough.

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Speaker 3: And what's the fear of more process here? In the

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Speaker 3: sense that process protects you, in the sense of helping

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Speaker 3: you make better, more accurate decisions, and it helps process,

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Speaker 3: helps you then convince people on the outside that you've

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Speaker 3: made a considered, thorough appropriate decision. What's the concern about

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Speaker 3: more process.

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Speaker 2: I've been talking to Georgetown law professor David Super David

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Speaker 2: Justice Amy Cony Barrett right at the start of the

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Speaker 2: arguments talked about amikas briefs from economists. She said, we

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Speaker 2: have amkas briefs from economists who tell us that if

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Speaker 2: Governor Cook is fired, that would trigger a recession. And

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Speaker 2: then there was a discussion about the stock market where

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Speaker 2: she didn't want to talk about the stock market, but

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Speaker 2: that was sours answer to that. So I thought it

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Speaker 2: was interesting that, you know, she was referring to the

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Speaker 2: out of court briefs from economists to show, you know,

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Speaker 2: the big picture concern.

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Speaker 1: Well, the elephant in the room is the copious evidence

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Speaker 1: that non independent central banks are very bad for country's economies.

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Speaker 1: And you can look at Russia, you can look at Turkey,

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Speaker 1: you can look at other countries that do not have

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Speaker 1: independent central banks and they have enormous economic trouble as

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Speaker 1: a result. The justices know this, and even if philosophically

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Speaker 1: they'd like to let Trump have his way. I think

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Speaker 1: they don't want to be blamed for throwing the economy

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Speaker 1: into a recession. And to her credit, Justice Barrett put

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Speaker 1: that out on the table and gave the Solicitor General

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Speaker 1: the opportunity to respond. You didn't do much with it,

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Speaker 1: but she gave them a chance.

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Speaker 2: Was there an argument from the Solicitor General that resonated

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Speaker 2: with any of the justices?

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Speaker 1: Well, I mean, the biggest advance damage that the president

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Speaker 1: has in this case is that the Supreme Court is

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Speaker 1: pretty clearly going to strike down security of ten year

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Speaker 1: requirements for the vast majority of executive branch officials. That's

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Speaker 1: the Trump versus Slaughter case. An oral argument on that

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Speaker 1: made pretty clear that the Court is going to overrule

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Speaker 1: Humphrey's executor and allow the President to fire at will

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Speaker 1: members of even very sensitive boards like the Federal Trade Commission.

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Speaker 1: So the question here is always been can the Supreme

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Speaker 1: Court find a way of differentiating the Federal Reserve from

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Speaker 1: the Federal Trade Commission and all those others? And that's

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Speaker 1: I think what this Solster General was trying to go

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Speaker 1: with here is to suggest that the Court should just

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Speaker 1: treat this case like any other once you look at

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Speaker 1: the specifics, the accusations against her, all apart in your hands.

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Speaker 1: She was obviously given no hearing, and as several justices,

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Speaker 1: including Justice Kavanaugh, pointed out, if you allow the president

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Speaker 1: to make up anything and call it cause, then you

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Speaker 1: have effectively ended the fedce independent and that makes them

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Speaker 1: very nervous.

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Speaker 2: Justice Kavanaugh was also looking at the big picture when

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Speaker 2: he talked about basically, what goes around comes around.

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Speaker 3: Let's talk about the real world, downstream effects of this,

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Speaker 3: because if this were set as a precedent, it seems

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Speaker 3: to me, just thinking big picture, what goes around comes around.

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Speaker 3: All the current president's appointees would likely be removed for

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Speaker 3: cause on January twentieth, twenty twenty nine, if there's a

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Speaker 3: democratic president, or January twentieth, twenty thirty three, and then

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Speaker 3: we're really it at will removal. So what are we

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Speaker 3: doing here?

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Speaker 1: Yes, I mean, if one believes, as I do, that

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Speaker 1: President Trump's time horizon here is very short, and he

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Speaker 1: wants what he thinks is good for him right now,

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Speaker 1: doesn't care about the long term impacts, then that's of

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Speaker 1: no concern. But the whole reason we have a Supreme

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Speaker 1: court with life tenures, so they can look at the

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Speaker 1: long term, they can look at the long term impact

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Speaker 1: on the long long term impact on the economy, and

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Speaker 1: that I think is where a court that is generally

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Speaker 1: very sympathetic to President Trump's agenda starts getting extremely nervous.

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Speaker 2: Would you say that, along with the Tariff's decision, this

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Speaker 2: is one of the most important decisions of the term

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Speaker 2: as far as expanding presidential power.

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Speaker 1: Well, these two plus the Fellow Trade Commission case. But

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Speaker 1: I think everyone believes that case is going to expand

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Speaker 1: presidential power radically, So people I think are not spending

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Speaker 1: as much time thinking about that since they feel they

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Speaker 1: already know how it's coming out.

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Speaker 2: Do you think the administration launching a criminal investigation into

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Speaker 2: FED share Powell damages its chances for a win in

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Speaker 2: this case because it tends to show that Trump is

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Speaker 2: trying to reshape the FED rather than just firing one

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Speaker 2: person over unproven allegations.

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Speaker 1: Yes, I think that is certainly in the back of

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Speaker 1: the Justice's minds. Chairman Powell sitting there in the courtroom

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Speaker 1: watching all of this, so obviously, if they needed any reminding,

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Speaker 1: he was there in the flesh. I don't know why

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Speaker 1: they thought that was a good idea, particularly timed when

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Speaker 1: they did it, and particularly against someone like Chairman Powell,

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Speaker 1: who was appointed by President Trump and is pretty widely

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Speaker 1: approved of across the political spectrum, particularly among his fellow Republicans.

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Speaker 1: That makes me as a remarkably hand handed, tone deaf

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Speaker 1: thing to do. I wouldn't like the administration's chances in

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Speaker 1: this case even without the Power investigation, but they basically

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Speaker 1: gave the court no room to pretend that a ruling

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Speaker 1: against doctor Cook is compatible with an independent fed.

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Speaker 2: There were quite a few points of laughter during the

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Speaker 2: arguments while Lisa Cook's attorney, Paul Clement was arguing. He's

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Speaker 2: the former Solicitor General who is one of the premier

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Speaker 2: Supreme Court litigators. This is his fifth argument since October

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Speaker 2: before the justices. There seems to be something with Clement.

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Speaker 2: I don't know how to explain. It's sort of a

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Speaker 2: camaraderie with the justices. It's more of a back and

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Speaker 2: forth rather than skeptical questions.

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Speaker 1: Yes, former Solicitor Clement is an extraordinarily skilled lawyer in

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Speaker 1: general and Supreme Court practitioner in particular, but he's also

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Speaker 1: extremely conservative and is not likely to take a conservative

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Speaker 1: majority of the court for a ride to somewhere they

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Speaker 1: don't want to go. So people have been hiring Solicitor

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Speaker 1: General Clement, I think, to provide reassurance in cases that

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Speaker 1: might otherwise feel uncomfortable to this very conservative supermajority.

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Speaker 2: Is there a possibility that even Justice Alito might rule

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Speaker 2: against the Trump administration here?

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Speaker 1: I mean, he asked reasonable questions, but the town struck

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Speaker 1: me as being largely sympathetic with the president, and I

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Speaker 1: think he is more committed than most to the unitary

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Speaker 1: executive theory, which this would have to be an exception to.

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Speaker 2: When they write the opinion, do they have to explain

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Speaker 2: away what they do with the FTC and you know

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Speaker 2: where does it lead the unitary executive theory.

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Speaker 1: They've got various ways of hiding. The simplest is, because

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Speaker 1: this is a preliminary stage, is to simply say that

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Speaker 1: President Trump hasn't qualified for a stay and decided entirely

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Speaker 1: on procedural grounds. They also could say that they're not

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Speaker 1: required to consider what standards are appropriate for removing Federal

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Speaker 1: Reserve governors because in this case, the President claimed to

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Speaker 1: comply with the law. So all they have to do

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Speaker 1: is decide whether he did. They have a number of

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Speaker 1: ways of hiding. My guess is that they will not

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Speaker 1: be eager to explain how what they're doing here is

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Speaker 1: consistent with what they're going to do in the FTC case, because,

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Speaker 1: let's face it, it isn't. In this case. They know how

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Speaker 1: they want to come out, which is against Trump and

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Speaker 1: in favor of Federal Reserve independence, and they have a

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Speaker 1: huge obstacle to doing that, which is their desire to

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Speaker 1: who end the independence of all the other boards. So

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Speaker 1: the whole argument was basically the justices feeling around for

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Speaker 1: a way that they could decide this case the way

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Speaker 1: they want to without undermining what they're doing to the FDC.

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Speaker 1: And I think at the end of the day there

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Speaker 1: were enough as open to them where they could do that,

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Speaker 1: and they will do that, And the Slister General had

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Speaker 1: to hang his hat entirely on consistency with what they're

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Speaker 1: doing in the FTC case, because the actual decision on

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Speaker 1: doctor Cook is essentially defensible.

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Speaker 2: The arguments went on nearly two hours, but they were

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Speaker 2: really interesting on many different levels, and you can't always

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Speaker 2: say that, thanks so much, David. That's Professor David super

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Speaker 2: of Georgetown Law. Coming up next on the Bloomberg Law Show,

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Speaker 2: the Court's conservative justices appear likely to strike down Hawaii's

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Speaker 2: restrictions on carrying guns. I'm June Grosso and you're listening

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Speaker 2: to Bloomberg. The Supreme Court's conservative justices appeared skeptical of

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Speaker 2: a Hawaii law prohibiting the carrying of a gun in

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Speaker 2: private places that are open to the public unless the

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Speaker 2: property owner gives explicit permission lent. The arguments on Tuesday

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Speaker 2: touched on topics from Hawaii's pre statehood treatment of gun

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Speaker 2: rights to nineteenth century laws aimed at disarming formerly enslaved people.

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Speaker 2: Joining me is Hailey Lawrence, executive director of the Duke

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Speaker 2: Center for Firearms Law. Hailey start by telling us about

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Speaker 2: this Hawaii law.

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Speaker 6: So, back in twenty twenty three, the Hawaii legislature enacted

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Speaker 6: a law that effectively prohibits one from carrying a firearm

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Speaker 6: onto private property without the express permission of the property

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Speaker 6: owner or an agent of the property owner. So, in

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Speaker 6: the case of an apartment, someone who leases the apartment,

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Speaker 6: this flips the default setting of what we normally think

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Speaker 6: of and what most states do, and so Hawaii instead

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Speaker 6: of saying you have a right unless the property owner

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Speaker 6: tells you otherwise, has said by default, you have no

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Speaker 6: right to bring a firearm onto private property, even private

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Speaker 6: property held open to the public, unless you have the

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Speaker 6: express consent from the property owner.

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Speaker 2: Chief Justice Roberts said people don't have to obtain the

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Speaker 2: permission of private property owners before going door to door

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Speaker 2: to canvas for a political candidate, And he questioned why

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Speaker 2: gun rights are being treated differently than free speech rights.

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Speaker 2: I mean, it seems pretty obvious. Why.

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Speaker 7: Yeah, So in.

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Speaker 6: Hawaii's briefs, they try to analogize between the rights that

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Speaker 6: the First Amendment gives and the rights that the Second

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Speaker 6: Amendment gives. The challenge of that is that the court

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Speaker 6: applies fundamentally different tests to evaluate when a First Amendment

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Speaker 6: right has been infringed and when a Second Amendment right

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Speaker 6: has been infringed. And by that I mean in the

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Speaker 6: First Amendment context, the court focuses a lot on interest

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Speaker 6: balance and weighing various burdens that a law or a

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Speaker 6: government action places on someone's right to expression. And in

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Speaker 6: the Second Amendment context, the seminal case we got a

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Speaker 6: few years ago in twenty twenty two was Bruin, which

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Speaker 6: expressly foreclosed the use of interest balancing in Second Amendment cases.

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Speaker 7: Instead, it's focused on history and tradition.

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Speaker 6: Does the modern law that's being challenged have sufficient basis

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Speaker 6: in the nation's history and tradition? And I say nations

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Speaker 6: with emphasis for a reason, the nation's history and tradition.

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Speaker 7: Such that it is constitutional.

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Speaker 6: The reason I put emphasis on nation is because a

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Speaker 6: part of Hawaii's briefing and a lot that they emphasize

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Speaker 6: the oral argument yesterday was that this principle is deeply

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Speaker 6: rooted in Hawaiian legal tradition. The court didn't seem particularly

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Speaker 6: interested in that, and petitioners push back on it, which

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Speaker 6: is interesting for a number of reasons, particularly because Hawaii

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Speaker 6: was in a state until the late twentieth century, and

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Speaker 6: so if the two periods of time for sake of

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Speaker 6: argument that we're focusing on as relevant to determining what

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Speaker 6: the history and tradition are of the nation, Hawaiian laws

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Speaker 6: will never be relevant to that inquiry.

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Speaker 2: Is that the reason why the San Francisco Appellate Court

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Speaker 2: upheld this law and the New Jersey Appellate Court struck

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Speaker 2: down a similar law.

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Speaker 6: No, So, actually the reason why the Ninth Circuit ruled

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Speaker 6: in Hawaii's favor is because of several extra Hawaii historical

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Speaker 6: analogs that the state pointed to. There's several laws from

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Speaker 6: New Jersey and other states in the Northeast that existed

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Speaker 6: at the founding and then again at the reconstruction era.

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Speaker 6: So pointed to several laws over a course of one

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Speaker 6: hundred years from states outside of Hawaii to support the

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Speaker 6: proposition that the government can regulate private property and vindicate

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Speaker 6: the rights of property owners, but also do so.

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Speaker 7: In the gun context.

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Speaker 2: What was Hawaii's best argument in defending its law.

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Speaker 6: So the challenge for Hawaii is that, you know, I

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Speaker 6: think they came into a court that was largely skeptical of.

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Speaker 7: Its arguments to begin with.

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Speaker 6: Justice Jackson is an incisive questioner as ever, and I

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Speaker 6: think did her best to, particularly after the divergence about

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Speaker 6: First Amendment case law, bring us back to first principles

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Speaker 6: of Bruin. The thing I was looking for when I

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Speaker 6: was listening to these arguments yesterday is whether or not

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Speaker 6: the Court is thinking about this as a property rights

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Speaker 6: case or a Second Amendment public carry case. It seems

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Speaker 6: like the conservative justices in particular were focused on this

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Speaker 6: and the framing.

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Speaker 7: Of it as a public carry case.

442
00:27:35,920 --> 00:27:39,160
Speaker 6: And the reason I say that is because so much

443
00:27:39,160 --> 00:27:43,399
Speaker 6: of it talked about the imposition that the law places

444
00:27:43,440 --> 00:27:47,200
Speaker 6: on someone's right to carry a firearm and into private

445
00:27:47,440 --> 00:27:50,440
Speaker 6: places held open to the public. A frequent example that

446
00:27:50,560 --> 00:27:54,159
Speaker 6: was used in oral arguments was a gas station and

447
00:27:54,280 --> 00:27:57,919
Speaker 6: other sort of retail establishments that hold themselves open to

448
00:27:58,000 --> 00:28:02,000
Speaker 6: the public. One thing that I think would interestingly absent

449
00:28:02,240 --> 00:28:05,880
Speaker 6: is sort of like the temporal locations on private property

450
00:28:05,880 --> 00:28:08,320
Speaker 6: held open to the public, and the role that those

451
00:28:08,320 --> 00:28:12,159
Speaker 6: temporal locations would play in this analysis. By that, I

452
00:28:12,200 --> 00:28:15,359
Speaker 6: mean just because a gas station is open for certain

453
00:28:15,359 --> 00:28:17,760
Speaker 6: hours of the day and may or may not welcome

454
00:28:18,080 --> 00:28:21,160
Speaker 6: someone public carrying onto the property, that doesn't mean someone

455
00:28:21,160 --> 00:28:22,919
Speaker 6: has a right to go onto the property when the

456
00:28:22,920 --> 00:28:25,879
Speaker 6: business is closed with a firearm right. And so I

457
00:28:25,920 --> 00:28:29,080
Speaker 6: was interested by the absence of that discussion in the

458
00:28:29,160 --> 00:28:29,880
Speaker 6: oral arguments.

459
00:28:30,000 --> 00:28:33,359
Speaker 2: So, just as Alito talked about the state was relegating

460
00:28:33,400 --> 00:28:36,800
Speaker 2: the Second Amendment to second class status, and that seems

461
00:28:36,840 --> 00:28:39,640
Speaker 2: to be a concern that they have been talking about

462
00:28:39,680 --> 00:28:43,400
Speaker 2: the Conservatives, at least just as Alito and Justice Thomas

463
00:28:43,440 --> 00:28:47,120
Speaker 2: for so long. I mean is that a fair assessment.

464
00:28:47,720 --> 00:28:50,720
Speaker 6: They've certainly been parroting that line for quite some time.

465
00:28:51,800 --> 00:28:55,080
Speaker 6: I think it came up in particularly obvious fashion in

466
00:28:55,160 --> 00:28:59,120
Speaker 6: the First Amendment Second Amendment discussion. But the fundamental differences

467
00:28:59,480 --> 00:29:02,800
Speaker 6: might isn't going to kill someone? My speech doesn't present

468
00:29:02,920 --> 00:29:07,320
Speaker 6: a significant public safety risk, and the speech that does

469
00:29:07,680 --> 00:29:08,520
Speaker 6: is regulated.

470
00:29:08,840 --> 00:29:10,640
Speaker 7: Shouting fire and crowded theater is.

471
00:29:10,640 --> 00:29:13,840
Speaker 6: The obvious example that people come back to. And so

472
00:29:14,440 --> 00:29:16,440
Speaker 6: in my research, in my personal capacity, I don't think

473
00:29:16,440 --> 00:29:19,320
Speaker 6: that the Second Amendment is a disfavored right like they've said.

474
00:29:19,360 --> 00:29:21,560
Speaker 6: But that's the Court's position, and it seems like it

475
00:29:21,600 --> 00:29:24,760
Speaker 6: will guide the rest of this term and its future

476
00:29:24,760 --> 00:29:26,760
Speaker 6: Second Amendment case law for the foreseeable future.

477
00:29:27,400 --> 00:29:31,600
Speaker 2: Explain how the Bruin case, which established that history and

478
00:29:31,720 --> 00:29:36,959
Speaker 2: tradition analysis, how it's been confusing for the lower courts

479
00:29:36,960 --> 00:29:40,480
Speaker 2: and has led to lots of litigation over just what

480
00:29:40,520 --> 00:29:41,239
Speaker 2: the test is.

481
00:29:42,080 --> 00:29:45,960
Speaker 6: Yeah, So the test is the first question is the

482
00:29:46,080 --> 00:29:49,520
Speaker 6: challenge regulation does it invoke the plaintext or the plane

483
00:29:49,520 --> 00:29:52,720
Speaker 6: meeting of the Second Amendment. If the answer is yes,

484
00:29:53,040 --> 00:29:55,720
Speaker 6: then the government bears the burden of showing that the

485
00:29:55,840 --> 00:29:59,600
Speaker 6: challenge law finds sufficient support in the history and tradition

486
00:29:59,720 --> 00:30:02,560
Speaker 6: of the nation's firearms law of regulation. There are a

487
00:30:02,600 --> 00:30:06,400
Speaker 6: lot of open questions about what constitutes an arm. For example,

488
00:30:06,440 --> 00:30:09,880
Speaker 6: there are several cert petitions before the Supreme Court this

489
00:30:09,960 --> 00:30:13,080
Speaker 6: term about large capacity magazines and whether or not that

490
00:30:13,080 --> 00:30:15,320
Speaker 6: falls within the first step of Bruin or the second

491
00:30:15,360 --> 00:30:18,560
Speaker 6: step of Bruin. There are questions about who is covered.

492
00:30:18,680 --> 00:30:23,160
Speaker 6: The Court actually on Tuesday denied several petitions in cases

493
00:30:23,280 --> 00:30:27,000
Speaker 6: arguing that folks who have been convicted of a non

494
00:30:27,160 --> 00:30:31,600
Speaker 6: violent felony should have their firearms rights restored and fall

495
00:30:31,680 --> 00:30:33,800
Speaker 6: within the people covered by the second amendments.

496
00:30:33,880 --> 00:30:34,880
Speaker 7: That's the who question.

497
00:30:35,360 --> 00:30:38,680
Speaker 6: There's also the levels of generality question which comes up

498
00:30:38,680 --> 00:30:43,000
Speaker 6: in the second step of the Bruin inquiry, which is, okay,

499
00:30:43,120 --> 00:30:45,920
Speaker 6: so let's say we have a bunch of examples from

500
00:30:46,000 --> 00:30:50,680
Speaker 6: various periods in history of laws that regulate firearms ownership,

501
00:30:50,760 --> 00:30:54,360
Speaker 6: firearms carrying, what types of firearms you can have, etc.

502
00:30:55,040 --> 00:30:59,520
Speaker 6: The question is that Bruin posited basically, what the why

503
00:30:59,560 --> 00:31:00,120
Speaker 6: and the how?

504
00:31:00,560 --> 00:31:04,000
Speaker 7: So what's being regulated, why is it being regulated, and

505
00:31:04,040 --> 00:31:05,360
Speaker 7: how is it being regulated?

506
00:31:06,040 --> 00:31:09,240
Speaker 6: And so the levels of generality question is challenging because

507
00:31:09,280 --> 00:31:11,800
Speaker 6: one most of the questions were not answered, and Bruin

508
00:31:12,120 --> 00:31:17,120
Speaker 6: two lower cords are struggling to identify the relevant level

509
00:31:17,160 --> 00:31:20,880
Speaker 6: of generality to answer the principles question of like why

510
00:31:20,920 --> 00:31:24,200
Speaker 6: are things being regulated, who is the subject of the regulation,

511
00:31:24,320 --> 00:31:27,000
Speaker 6: what's the purpose of the regulation? Because in Rahemi we've

512
00:31:27,040 --> 00:31:31,040
Speaker 6: got a pretty broad statement of the why and who,

513
00:31:31,360 --> 00:31:35,440
Speaker 6: which is that the government is allowed, in simple terms,

514
00:31:35,720 --> 00:31:38,880
Speaker 6: to disarm people that they find to be dangerous. That

515
00:31:38,960 --> 00:31:43,080
Speaker 6: involved a challenge to a law prohibiting folks subject to

516
00:31:43,200 --> 00:31:48,000
Speaker 6: domestic violence restraining orders from possessing firearms, and so that's

517
00:31:48,040 --> 00:31:50,320
Speaker 6: a pretty high level of generality. If we're talking about

518
00:31:50,400 --> 00:31:54,800
Speaker 6: dangerous people writ large, then that's a pretty high level

519
00:31:54,800 --> 00:32:00,080
Speaker 6: of generality. But in this case, the questions from the justices,

520
00:32:00,400 --> 00:32:04,720
Speaker 6: the arguments themselves, were particularly about historical analogs, were much

521
00:32:04,920 --> 00:32:08,960
Speaker 6: more narrowly focused about, well, this law is about poaching.

522
00:32:09,440 --> 00:32:11,600
Speaker 7: The historical law you're talking about, it's about poaching. But

523
00:32:11,640 --> 00:32:12,680
Speaker 7: this isn't about poaching.

524
00:32:12,720 --> 00:32:16,520
Speaker 6: It's about regulating private property and allowing someone onto your

525
00:32:16,520 --> 00:32:18,760
Speaker 6: private property with a firearm. If you take it at

526
00:32:18,800 --> 00:32:21,720
Speaker 6: a really broad view, they're both about regulating private property

527
00:32:21,920 --> 00:32:24,280
Speaker 6: and the right to carry a firearm onto the private property.

528
00:32:24,400 --> 00:32:26,080
Speaker 6: But if you take it in a much narrower view,

529
00:32:26,160 --> 00:32:28,720
Speaker 6: it's going to be a lot harder to find support

530
00:32:28,760 --> 00:32:32,440
Speaker 6: for modern laws in historical analogs because many of the

531
00:32:32,440 --> 00:32:36,240
Speaker 6: problems that modern firearm laws confront simply didn't exist one

532
00:32:36,320 --> 00:32:37,680
Speaker 6: hundred or two hundred years ago.

533
00:32:37,880 --> 00:32:40,720
Speaker 2: So there have been some cases you mentioned, Rahimi, where

534
00:32:40,920 --> 00:32:44,760
Speaker 2: they ruled against the expansion of gun rights. Is there

535
00:32:44,760 --> 00:32:48,680
Speaker 2: a line that you see them, you know, drawing as

536
00:32:48,680 --> 00:32:52,320
Speaker 2: to when and where they'll allow gun restrictions and where

537
00:32:52,360 --> 00:32:55,360
Speaker 2: they won't, or is it just case by case.

538
00:32:56,000 --> 00:32:57,720
Speaker 6: It's a hard question to answer, and I think it's

539
00:32:57,760 --> 00:33:00,240
Speaker 6: the reason so many lower courts have been struggle willing

540
00:33:00,320 --> 00:33:03,960
Speaker 6: to find a through line, which is that we have

541
00:33:04,040 --> 00:33:06,400
Speaker 6: all of these open questions about the doctrine because it

542
00:33:06,440 --> 00:33:10,040
Speaker 6: is so new, So I, much like them, can't.

543
00:33:09,800 --> 00:33:11,520
Speaker 7: Give you a straight answer one way or the other.

544
00:33:11,600 --> 00:33:15,760
Speaker 2: Unfortunately, if they strike down the Hawaii law, property owners

545
00:33:15,760 --> 00:33:18,800
Speaker 2: can still put up signs that say you can't come

546
00:33:19,200 --> 00:33:23,280
Speaker 2: into my store or my gas station carrying a gun.

547
00:33:23,920 --> 00:33:25,080
Speaker 7: That's exactly right, yep.

548
00:33:25,120 --> 00:33:27,360
Speaker 6: So property owners in Hawaii will still have the right

549
00:33:27,440 --> 00:33:31,040
Speaker 6: to exclude. That's a fundamental right in property law across

550
00:33:31,080 --> 00:33:34,600
Speaker 6: the nation, and that applies even to private property held

551
00:33:34,640 --> 00:33:35,520
Speaker 6: open to the public.

552
00:33:35,840 --> 00:33:38,120
Speaker 2: There are a couple of other states, four other states

553
00:33:38,120 --> 00:33:44,320
Speaker 2: that have similar restrictions. Will this decision automatically invalidate those

554
00:33:44,480 --> 00:33:47,080
Speaker 2: laws or will those have to be challenged in court

555
00:33:47,120 --> 00:33:47,560
Speaker 2: as well?

556
00:33:48,080 --> 00:33:50,959
Speaker 6: As first my understanding is this isn't a facial challenge,

557
00:33:51,320 --> 00:33:55,840
Speaker 6: so would only apply as to Hawaii. California's law, which

558
00:33:55,880 --> 00:33:58,720
Speaker 6: is similar but a little bit more stringent, was also

559
00:33:58,880 --> 00:33:59,800
Speaker 6: challenged below.

560
00:34:00,240 --> 00:34:01,800
Speaker 7: They did not bring a.

561
00:34:02,120 --> 00:34:06,440
Speaker 6: Petition with respect to the California law because the petitioner's

562
00:34:06,480 --> 00:34:09,399
Speaker 6: one below at the ninth Servia on the California law.

563
00:34:09,719 --> 00:34:12,040
Speaker 6: So I don't think there's anything further to do on

564
00:34:12,080 --> 00:34:13,719
Speaker 6: that front. But as far as the other states go,

565
00:34:13,800 --> 00:34:17,560
Speaker 6: I would expect challenges at least in the Federal District

566
00:34:17,560 --> 00:34:21,560
Speaker 6: court applying principles of what we get in Wolford to

567
00:34:21,719 --> 00:34:24,120
Speaker 6: those other laws. Or One of the other open questions

568
00:34:24,120 --> 00:34:29,000
Speaker 6: I neglected to mention before is what laws are appropriate

569
00:34:29,120 --> 00:34:32,719
Speaker 6: for analogy and so a lot of the frankly more

570
00:34:32,760 --> 00:34:37,520
Speaker 6: acerbic exchanges yesterday before the court were about Reconstruction era

571
00:34:37,640 --> 00:34:41,799
Speaker 6: laws that aimed to disarm people of color and newly

572
00:34:41,840 --> 00:34:42,800
Speaker 6: freed slaves.

573
00:34:43,360 --> 00:34:43,600
Speaker 7: Justice.

574
00:34:43,719 --> 00:34:48,000
Speaker 6: Jackson thinks that including them in history and tradition is

575
00:34:48,000 --> 00:34:51,880
Speaker 6: sort of a natural logical result of the Bruin test,

576
00:34:52,120 --> 00:34:55,280
Speaker 6: which is it exists as part of the tradition.

577
00:34:55,560 --> 00:34:59,160
Speaker 7: Repugnant as it may be, it's still part of the tradition.

578
00:35:00,000 --> 00:35:05,120
Speaker 6: And you know, I think it's particularly impactful, meaningful coming

579
00:35:05,120 --> 00:35:08,240
Speaker 6: from her who so regularly fights these sort of battles,

580
00:35:08,239 --> 00:35:11,839
Speaker 6: and I think it just evinces that she is continuing

581
00:35:11,880 --> 00:35:14,400
Speaker 6: to push what she sees as the flaws in Bruin

582
00:35:15,000 --> 00:35:18,120
Speaker 6: with little apparent success, I think, with some of her

583
00:35:18,320 --> 00:35:22,239
Speaker 6: more conservative colleagues. But I think she's highlighting, both for

584
00:35:22,320 --> 00:35:26,720
Speaker 6: the public and for judges across the nation, the methodological

585
00:35:26,719 --> 00:35:29,600
Speaker 6: shortcomings of Bruins and the types of questions the court

586
00:35:29,640 --> 00:35:30,560
Speaker 6: will still have to answer.

587
00:35:31,320 --> 00:35:34,960
Speaker 2: Thanks so much, Haley. That's Haley Lawrence, Executive director of

588
00:35:35,040 --> 00:35:39,080
Speaker 2: the Duke Center for Firearms Law. A note. Michael Bloomberg,

589
00:35:39,120 --> 00:35:42,280
Speaker 2: the founder and majority owner of Bloomberg LP, the parent

590
00:35:42,360 --> 00:35:45,400
Speaker 2: company of Bloomberg Radio, is a donor to groups that

591
00:35:45,440 --> 00:35:50,040
Speaker 2: support gun control, including every Town for Gun Safety. And

592
00:35:50,040 --> 00:35:52,200
Speaker 2: that's it for this edition of The Bloomberg Law Show.

593
00:35:52,560 --> 00:35:54,920
Speaker 2: Remember you can always get the latest legal news on

594
00:35:54,960 --> 00:35:59,239
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595
00:35:59,400 --> 00:36:04,439
Speaker 2: and it doublew dot Bloomberg dot com, slash podcast, slash Law,

596
00:36:04,840 --> 00:36:07,440
Speaker 2: and remember to tune into The Bloomberg Law Show every

597
00:36:07,480 --> 00:36:11,400
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

598
00:36:11,520 --> 00:36:13,120
Speaker 2: and you're listening to Bloomberg