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Speaker 1: You're listening to Bloomberg Law with June Grosseo from Bloomberg Radio.

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Speaker 2: Uncle Bobby's Wedding is a story of a same sex

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Speaker 2: wedding where a niece worries that her uncle will not

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Speaker 2: have as much time for her after he gets married.

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Speaker 2: It's one of five books with LGBTQ characters at the

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Speaker 2: center of a Supreme Court case, and it seemed more

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Speaker 2: like book Club during the Supreme Court oral arguments when

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Speaker 2: liberal Justice Sonya so to Mayor and conservative Justice Samuel

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Speaker 2: Alito gave competing interpretations of the book.

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Speaker 1: Because I'm looking at the books. I've looked through all

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Speaker 1: of them. They have two men Little Bob Bobby's Wedding

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Speaker 1: where they're getting married. One is black and one is white.

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Speaker 1: In this rendition of the book, I had one with mice.

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Speaker 1: The two male mice looked identical to me. Is looking

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Speaker 1: at two men getting married? Is that the religious objection?

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Speaker 3: I don't think anybody can read that and say, well,

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Speaker 3: this is just telling children that there are occasions when

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Speaker 3: men marry other men. Uncle Bobby gets married to his

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Speaker 3: boyfriend Jamie, and everybody's happy and everything is you know,

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Speaker 3: it portrays this everyone accepts this, except for the little

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Speaker 3: girl Chloe, who has reservations about it, but her mother

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Speaker 3: corrects her, No, you shouldn't have any reservations about this.

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Speaker 3: As I said, it has a clear mora, It has

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Speaker 3: a clear moral message.

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Speaker 1: Just answer my question is looking at the pictures, is

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Speaker 1: there any affidavit from any parent that merely looking at

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Speaker 1: people getting married holding hands, none of them are even

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Speaker 1: kissing in any of these books. The most they're doing

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Speaker 1: is holding hands. That exposure to that is coercion.

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Speaker 2: Welcome back to the culture wars at the Supreme Court

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Speaker 2: where public school parents are objecting to incorporating LGBTQ friendly

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Speaker 2: books into elementary school curriculum on religious grounds, and after

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Speaker 2: two and a half hours of oral arguments, it seemed

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Speaker 2: clear that the Conservative justices will back the parents who say,

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Speaker 2: my guest is First Amendment law expert Caroline Malcorbin, a

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Speaker 2: professor at the University of Miami Law School. So, Caroline,

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Speaker 2: in addition to Uncle Bobby's wedding, which was thoroughly discussed

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Speaker 2: at the oral arguments, there's a book called Pride Puppy

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Speaker 2: about a puppy who gets lost at an LGBTQ pride parade.

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Speaker 2: Another called Born Ready is about a transgender child who

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Speaker 2: wants to identify as a boy. The point being these

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Speaker 2: books are not about religion, their stories with LGBTQ characters.

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Speaker 4: Yeah.

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Speaker 5: So, basically, the case that the Supreme Court heard oral

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Speaker 5: argument on Tuesday morning concern a religious liberty challenge brought

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Speaker 5: by parents who argue that they had a constitutional pre

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Speaker 5: exercise right to prevent their children from reading books with

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Speaker 5: LGBTQ characters. And from the tenor of the argument, it

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Speaker 5: does seem quite likely that the Supreme Court will agree

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Speaker 5: with them and grant them this as a constitutional right.

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Speaker 5: And to be clear, these are parents of children in

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Speaker 5: public school.

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Speaker 2: Did the Court readily accept the idea that, you know,

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Speaker 2: books about a puppy who gets lost at an LGBTQ

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Speaker 2: pride parade or a transgender child who wants to identify

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Speaker 2: as a boy, that these are against the Christian beliefs

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Speaker 2: of the parents.

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Speaker 5: So definitely the parents bringing them are religiously conservative, although

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Speaker 5: they're not only Christian. I think there are also some

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Speaker 5: Muslim parents as well. And the justices very much accepted

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Speaker 5: the idea that having children read these books would impose

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Speaker 5: a substantial burden on the parents free exercise, which is

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Speaker 5: a stunning expansion of what it means for the government

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Speaker 5: to impose a substantial burden on someone's religious exercise. So originally,

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Speaker 5: when we thought about government imposed burdens, it would be

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Speaker 5: something like the government is preventing you from observing a

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Speaker 5: tenant of your faith, like the government made it impossible

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Speaker 5: for you to observe your sabbath or participate in the

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Speaker 5: sacramental use of peyote, something that was really central religious practice.

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Speaker 5: The Rabbits Court has already expanded what counts as a

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Speaker 5: substantial burden to not just view yourself violating a religious tenant,

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Speaker 5: but for someone to endorse or facilitate a third party's

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Speaker 5: violation of religious tenants. So we have the Supreme Court

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Speaker 5: being very sympathetic to people who argue that baking a

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Speaker 5: cake for a same sex wedding would be akin to

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Speaker 5: adorsing the sin of same sex marriage or facilitating the

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Speaker 5: sin of same sex marriage. That first expansion was itself

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Speaker 5: already quite a broad reading of what counts as a

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Speaker 5: substantial burden. But what we may see after the Supreme

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Speaker 5: Court hands down its decision in this case is just

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Speaker 5: hearing about people who act in a way that's contrary

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Speaker 5: to your religious tenants suffices to be a substantial religious burden,

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Speaker 5: because that's ultimately what's going on in these public schools.

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Speaker 5: The children are hearing about the existence of two men

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Speaker 5: getting married, or they become aware that there are transgender

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Speaker 5: people in the world, and if that information is not

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Speaker 5: accompanied by a condemnation of it, then it seemed like

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Speaker 5: there were five justices who thought that that could amount

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Speaker 5: on a very serious infringement on the parents' free exercise rights.

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Speaker 5: I am willing to bet that there are at least

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Speaker 5: five justices who thought that there is a free speech

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Speaker 5: violation here.

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Speaker 2: I think there might even be six.

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Speaker 5: What I did say, at least five, though I would

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Speaker 5: say I think Justice Gorsus was going for a different theory.

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Speaker 2: So what were the main concerns of the conservative about

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Speaker 2: these books?

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Speaker 5: The main concern was that they were hearing about LGPT

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Speaker 5: community without hearing the condemnation of it, and therefore, in

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Speaker 5: their eyes, that equates to indoctrinating their children into accepting

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Speaker 5: gay people or transgender people, and that is contrary to

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Speaker 5: their own religions which condemn them.

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Speaker 2: Justice Sodo Mayor said, haven't we made it very clear

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Speaker 2: that the mere exposure to things that you object to

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Speaker 2: is not coercion. And then she talked about this book

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Speaker 2: Uncle Bobby's Wedding, and she said that none of them

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Speaker 2: are even kissing in any of these books. The most

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Speaker 2: they're doing is holding hands. And then Justice Alito actually

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Speaker 2: read from the book, saying there was a clear moral message.

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Speaker 5: His argument was, this book not all only articulate that

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Speaker 5: these people exist, but it also conveys a message that

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Speaker 5: these people are people, and they're okay, and there's nothing

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Speaker 5: wrong with two men marrying each other. And that is

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Speaker 5: what he equates to indoctrination of children in the classroom,

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Speaker 5: which of course is not the only way to think

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Speaker 5: about what those books are doing. One of the central

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Speaker 5: goals of the public schools system is to train children

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Speaker 5: to live.

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Speaker 4: In a democracy.

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Speaker 5: And one of the preconditions for us all coexisting together

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Speaker 5: is that we learn that we're not all alike, and

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Speaker 5: that even if there are people who are different from us,

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Speaker 5: we should still treat them with dignity and humanity and

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Speaker 5: record them the same respect that we ourselves would like

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Speaker 5: to receive. And so I think the reason the school

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Speaker 5: included these books in the first place is to try

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Speaker 5: and teach that very basic civic lesson to little kids.

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Speaker 5: But that message that these books, again, they're surprisingly innocuous.

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Speaker 5: I think the main point of the uncle Bobby's wedding

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Speaker 5: was that she was a little upset her favorite uncle

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Speaker 5: might get married and she wouldn't get to hang out

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Speaker 5: with him anymore. And the message she learned is she

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Speaker 5: didn't lose an uncle, she got another one. You know,

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Speaker 5: that kind of message you often see in children's books.

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Speaker 5: But again, the very presentation of the LGBT community as

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Speaker 5: regular people who we should not condemn as doing something

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Speaker 5: against I don't know, God's orders is considered to be

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Speaker 5: unacceptable to the religiously conservative families.

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Speaker 2: So the issue was whether the children of the parents

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Speaker 2: who object could opt out of the classes that include

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Speaker 2: these books. And apparently the school had tried that and

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Speaker 2: found that it was not manageable.

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Speaker 5: So they argued that they had both the right to

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Speaker 5: notice of when the books would be read and the

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Speaker 5: right to off their children out if they were. And

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Speaker 5: as you said, schools did try. They started off by

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Speaker 5: attempting to accommodate everybody, and it really turned out to

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Speaker 5: be unworkable. And it was unworkable. I suspect for at

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Speaker 5: least a couple of reasons. Although again part of the

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Speaker 5: problem these cases is there's not a well developed record,

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Speaker 5: and so we don't know exactly how these books were

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Speaker 5: or were not you in the various schools. We just

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Speaker 5: sort of have intimations of things that happened. And so

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Speaker 5: one problem is with the notice because it's not always

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Speaker 5: clear cut when a book might end.

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Speaker 2: Up being used.

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Speaker 5: Yes, the teacher might plan a lesson and use it,

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Speaker 5: but a teacher might also say, okay, you know, Tony,

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Speaker 5: it's your turn to pick a book. Which book would

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Speaker 5: you like to read today? And Timmy goes to the

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Speaker 5: bookshelfs and pulls this out right. So, especially in the

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Speaker 5: younger grade, the attorney was trying to argue, you don't

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Speaker 5: have like distinct lessons. Sometimes you kind of hits more flexible,

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Speaker 5: it's more flowing. So that's one issue, and then the

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Speaker 5: other issue is, well, what if you know half the

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Speaker 5: plas stops out, you have to have a whole nother

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Speaker 5: lesson plan to deal with them, because you have to

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Speaker 5: have someone to lack after the kids. You have to

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Speaker 5: have an alternate lesson plan for them, you have to

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Speaker 5: have an alternate space for them. And if you have

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Speaker 5: this kind of scenario multiplied by who knows what kind

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Speaker 5: of factor and who knows what other kind of issues

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Speaker 5: that parents might object to, it becomes absolutely unmanageable to

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Speaker 5: run a school with all these opt outs.

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Speaker 2: The conservative justices, a lot of them couldn't understand why

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Speaker 2: it was such a problem, but all three of the

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Speaker 2: liberal justices focused on the line drawing problems presented by this.

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Speaker 5: Case, because again, the principle that they were arguing for

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Speaker 5: is if there is something in the curriculum that a

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Speaker 5: religious parent objects to on the grounds that it is

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Speaker 5: contrary to their own faith, that they have the right

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Speaker 5: to know in advance that that it's going to be taught,

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Speaker 5: and the right to pull their children from the classroom.

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Speaker 5: So there was no limit by age, there was no

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Speaker 5: limit by subject matter. And of course we live in

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Speaker 5: an magnificently diverse kind of tree where people have all

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Speaker 5: different kinds of beliefs, and so there was one line

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Speaker 5: of questioning is well, what if parents object to interracial marriages,

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Speaker 5: do they get noticed? And what about if there are

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Speaker 5: some object to interfaith marriages, What if some belong to

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Speaker 5: religions that oppose having women who work outside of the home,

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Speaker 5: Are they now entitled to notice any times there is

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Speaker 5: a social studies class or a literagy class that features

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Speaker 5: a woman who's worked outside of the home. What about

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Speaker 5: parents who believe in the literal interpretation of the Bible

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Speaker 5: and take that to mean that evolution is false? Does

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Speaker 5: that mean that they can pull their kids from the

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Speaker 5: evolution section of the of a biology class or and

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Speaker 5: this is another question that was asked, what if a

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Speaker 5: parent objects to a teacher using the appropriate pronoun for

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Speaker 5: transgender child in the class, does that mean that they

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Speaker 5: can say, I don't want my child in this class,

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Speaker 5: I'm entitled to a completely different teacher. And the lawyer

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Speaker 5: for the parents did concede that, yes, there were some

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Speaker 5: parents who would find that to be the substantial burden

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Speaker 5: on their own religious exercise if the teacher uses appropriate

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Speaker 5: pronouns for another transgender child in the class.

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Speaker 2: And coming up next on the Bloomberg Law Show, we'll

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Speaker 2: talk about the next religion case the Supreme Court is

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Speaker 2: taking up next week. I'm June Grosso and this is Bloomberg.

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Speaker 2: A divided US Supreme Court signal they will back public

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Speaker 2: school parents who are seeking to have their children opt

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Speaker 2: out of classroom lessons that incorporate LGBTQ friendly books. The

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Speaker 2: court's conservatives suggested support for parents who say school children

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Speaker 2: are being taught ideas that violate their families religious beliefs.

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Speaker 2: I've been talking to Professor Caroline Malacorbin of the University

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Speaker 2: of Miami Law School. So what is the question that

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Speaker 2: the Supreme Court is going to answer?

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Speaker 5: Well, the question before them is are these parents entitled

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Speaker 5: under the free exercise Clause to have the right of

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Speaker 5: notice and the right to opt their children out. How

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Speaker 5: the court gets there may depend on which route the

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Speaker 5: court takes, because there is more than one. We've been

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Speaker 5: focusing on a very traditional one where the court says, well,

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Speaker 5: this law is not neutral and generally applicable, it's sort

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Speaker 5: of targeting religion. There's a substantial burden on the religious parents,

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Speaker 5: and the law fails to scrutiny. Under traditional doctrine, all

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Speaker 5: three of those requirements must be satisfied. So again, the

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Speaker 5: law is not neutral and generally applicable, but targets religion

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Speaker 5: in some kind of way. Second, what we've been sort

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Speaker 5: of talking about is does this requirement, does this book

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Speaker 5: impose a substantial burden on the parents' right to practice

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Speaker 5: their religions? And finally, can the government justify insisting that

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Speaker 5: everyone read this book? Does it pass the scrutiny? Is

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Speaker 5: there a compelling government interest that everybody read it? And

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Speaker 5: is there no other way the school can accomplish It's

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Speaker 5: really important government interests that don't infringe on the religious parents' rights,

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Speaker 5: And so it's quite easy to see how the court

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Speaker 5: could answer all those questions in a way that would

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Speaker 5: lead to a right. Now, the alternate, which I mentioned

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Speaker 5: briefly before, is something that such this gorstic seemed very

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Speaker 5: fixated on, and under his approach, from what I could glean,

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Speaker 5: is he wouldn't even bother doing a distinct analysis of

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Speaker 5: whether reading the books imposes a substantial burden on the

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Speaker 5: parent's religion, Because the first question is is this a

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Speaker 5: neutral and generally applicable law? Does this target religion in

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Speaker 5: some kind of way? And I think he and some

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Speaker 5: other justices were trying to build an argument that this

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Speaker 5: rule was motivated in part by hostility to religion. And

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Speaker 5: if he can make that claim, then he is going

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Speaker 5: to argue you go directly to strict scrutiny. If there's

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Speaker 5: some kind of discrimination against the religious parents, he would

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Speaker 5: think that in itself is a substantial burden, and strict

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Speaker 5: scrutiny applies. So one way or another, the Quarter is

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Speaker 5: going to say dist infringes on people's religion, and the

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Speaker 5: government can't justify insisting on reading these books because ultimately

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Speaker 5: they could read other books.

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Speaker 2: And Justice Skatanji Brown Jackson asked the question, do we

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Speaker 2: want federal judges quote, flipping through the picture books and

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Speaker 2: deciding whether these are appropriate for five year olds?

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Speaker 1: Yeah.

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Speaker 5: I think she's trying to motivate the very strong sort

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Speaker 5: of balance of power issues and federalism issues, right because

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Speaker 5: one thought is that education should be under local control,

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Speaker 5: and it will be a little less under local control

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Speaker 5: if the Supreme Court justices or deciding what books schools

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Speaker 5: can offer without having any challenges to them and what

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Speaker 5: books they cannot. And of course also she wanted to

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Speaker 5: emphasize that the decisions on the curriculum should be made

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Speaker 5: by the school boards, who are democratically accountable to the

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Speaker 5: people who go to those schools. I mean, the core

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Speaker 5: of our democracy is that the people making little decisions

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Speaker 5: are ultimately accountable to the people who put them into power.

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Speaker 5: And if it's the school board making decisions, then it

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Speaker 5: should be their decisions that people are able to vote on.

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Speaker 5: If it's the court making the decisions, well, the courts

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Speaker 5: are not accountable to the people.

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Speaker 2: I almost don't understand why the Court took this case

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Speaker 2: before the issue could percolate through the lower courts, before

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Speaker 2: it's known how these books are going to be used

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Speaker 2: in lessons or you know, how teachers plan to use them.

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Speaker 2: I mean, it's so amorphous, it's just the books are bad.

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Speaker 5: I cannot answer that question, although it does seem part

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Speaker 5: and parcel of a Supreme Court dedication to ensuring that

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Speaker 5: those who belong to conservative religions pretty much get what

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Speaker 5: they want, especially if it's at the expense of the

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Speaker 5: LGBTQ community.

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Speaker 2: And just to that point, about a dozen cases in

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Speaker 2: the past decade, the Supreme Courts expanded the role of

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Speaker 2: religion in public life, sometimes at the expense of gay rights.

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Speaker 2: So we had the Supreme Court in twenty twenty three

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Speaker 2: ruling in favor of a Christian web designer who didn't

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Speaker 2: want to create sites for same sex weddings, even though

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Speaker 2: she'd never been asked yet to create a same sex

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Speaker 2: wedding site. You had in twenty twenty two the high

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Speaker 2: school football coach they sided with who said he had

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Speaker 2: the constitutional right to pray at the fifty yard line

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Speaker 2: right after games. And then in twenty eighteen, of course,

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Speaker 2: you had the famous case about the baker who didn't

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Speaker 2: want to bake wedding cakes for same sex couples.

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Speaker 5: I can here more. Don't forget the city of Philadelphia

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Speaker 5: has to do a lot. It's government funding to social services,

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Speaker 5: even if they discriminate against LGBTQ parents. And your mention

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Speaker 5: of the coach case, this is the case where the

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Speaker 5: Supreme Court rejected establishment cause challenges to a coach that

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Speaker 5: was praying in front of his students, his players, and

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Speaker 5: some of them said they felt like they had no

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Speaker 5: choice but to participate. And I just want to highlight

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Speaker 5: how the court was so dismissive of the claims of

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Speaker 5: the players that they would feel coerced to participate when

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Speaker 5: the coach who decides whether they play or not is praying,

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Speaker 5: and they seem to say, well, he has their right

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Speaker 5: to pray, and certainly no student would ever feel compelled

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Speaker 5: to join in. That's ridiculous. There's no evidence of it.

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Speaker 5: How could you even suggest something?

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Speaker 1: Right?

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Speaker 5: The really very dismissive of the idea that the students

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Speaker 5: who are not Christians and who do not want to

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Speaker 5: join in the prayer may feel like they have no choice.

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Speaker 5: And yet in this case, the mayor hearing about something

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Speaker 5: seems to be a gross infringement on someone's religious liberty.

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Speaker 5: In other words, caring about an idea that people disagree

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Speaker 5: with is treated very differently. If it's conservative parents whose

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Speaker 5: children are hearing about the existence of LGBT community as

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Speaker 5: opposed to students who are actually present during their coaches prayers.

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Speaker 2: Is there a line that the conservatives won't cross? Where

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Speaker 2: is it? I haven't seen it.

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Speaker 5: Yeah, and again I know you are slu raising. A

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Speaker 5: slightly different point is are they going to be this

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Speaker 5: accommodating to parents making religious claims when they don't agree

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Speaker 5: with them?

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Speaker 1: Right?

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Speaker 5: So what if you have some I don't know, Unitarians

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Speaker 5: saying I do not want my child hearing anything complimentary

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Speaker 5: about Christopher Columbus because he was a you know, a

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Speaker 5: savage colonizer. So you better give me notice and a

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Speaker 5: right to opt out on any kindergarten, first grade, second grade,

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Speaker 5: third grade lessons about Christopher Columbus, or maybe any of

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Speaker 5: the plantis dors. We'll see if those parents claim get

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Speaker 5: the same kind of treatment.

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Speaker 2: And there's another religion case coming up next week. The

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Speaker 2: justices are going to consider whether to approve the country's

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Speaker 2: first public religious charter school.

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Speaker 5: Yes, So the question is if the court does insist

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Speaker 5: that this religious charter school must go ahead, will it

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Speaker 5: do it on the grounds that it's ultimately really a

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Speaker 5: private school, in which case it's not necessarily expanding it's

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Speaker 5: already problematic doctrine that says if you fund a private

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Speaker 5: secular school, you also have to make funding available to

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Speaker 5: a private religious school, as opposed to ruling that said

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Speaker 5: the government must fund public religious schools. That would be

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Speaker 5: astonished and devastating to public school education. But either way,

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Speaker 5: I suspect it's not going to be a great outcome,

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Speaker 5: But I think how it gets decided is going to

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Speaker 5: make a huge difference. I want to emphasize one more

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Speaker 5: point about this argument that part of the mission of

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Speaker 5: public schools is to teach children how to get along

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Speaker 5: with all different kinds of people, and they're making that

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Speaker 5: lesson impossible if they say there are some kinds of

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Speaker 5: people who are so awful that it violates people's religion

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Speaker 5: to even hear about them without getting a moral lesson

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Speaker 5: about how they're going to hell. And again, completely absent

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Speaker 5: in most of the Supreme Court justice's mind is how

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Speaker 5: devastating this kind of right would be for children who

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Speaker 5: belong to LGBT families, children who are gay, children who

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Speaker 5: are transgender. Right, why is half the class leaving when

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Speaker 5: we're finally going to read a story about me? Why

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Speaker 5: is half the class leaving when we're finally going to

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Speaker 5: read a story about me? Is that really what we

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Speaker 5: want for public school education to look like?

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Speaker 2: I haven't thought about that, Thanks Caroline. That's Professor Caroline

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Speaker 2: Malacorbin of the University of Miami Law School.

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Speaker 3: No, I have no intention of firing him.

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Speaker 6: I would like to see him be a little more

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Speaker 6: active in terms of his idea to lower interest Rate's

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Speaker 6: just a perfect time to lower interest rates.

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Speaker 2: President Trump didn't about face on Tuesday saying he won't

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Speaker 2: fire FED chair Edjr. Own Powell despite days of criticism

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Speaker 2: over the Central Banks policies like this. Just five days

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Speaker 2: before I don't think he's.

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Speaker 6: Doing the job. He's lake always do late, a little slow,

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Speaker 6: and I'm not happy with him. I let him know it,

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Speaker 6: and if I want to, he'll be out of their

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Speaker 6: real fast.

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Speaker 2: Believe me, Trump is known to change his mind and

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Speaker 2: his posture could shift yet again. So does he have

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Speaker 2: the power to fire Powell? Joining me to answer that question?

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Speaker 2: Is constitutional law expert Harold Krant, a professor at the

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Speaker 2: Chicago Kent College of Law. The Federal Reserve Act says

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Speaker 2: that members of the Central Banks Board of Governors can

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Speaker 2: only be removed for cause. What does that mean?

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Speaker 4: It means that the president before you movese the governor

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Speaker 4: has to show some kind of neglective duties, misconduct, something

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Speaker 4: along those lines before someone can be removed from office.

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Speaker 4: And more importantly, perhaps is that any kind of removal

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Speaker 4: than can be second guests in a court? In other words,

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Speaker 4: a court has the power than to determine whether the

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Speaker 4: president had cause or not to a member of the

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Speaker 4: Board of Governors.

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Speaker 2: So the law doesn't explicitly provide four cause protection for

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Speaker 2: the role of FED chair. I mean, does it say

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Speaker 2: anything about removal of the FED chair?

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Speaker 4: Well, it's pretty opaque with respect to what are the

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Speaker 4: conditions upon which the chairman can be removed. We have

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Speaker 4: a tradition, and the tradition says that the head of

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Speaker 4: the Fed is protected, is independent, and that's what seems

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Speaker 4: to be in the mind of the Congress that created

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Speaker 4: the structure. In other words, that we didn't want to

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Speaker 4: have politics enter into questions about the interest rates and

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Speaker 4: inflation and the money supply of the country, that it

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Speaker 4: was important to separate politics from that kind of financial oversight.

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Speaker 4: But on the other hand, if you just look at

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Speaker 4: the words of the statute, there's a question that Powell

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Speaker 4: could not be removed as a governor, but he might

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Speaker 4: be able to be removed as head of the Board

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Speaker 4: of Governors. He is given a term, so you could

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Speaker 4: say that Congress intended for him to fill out the term.

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Speaker 4: But on the other hand, again, there is no explicit

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Speaker 4: protections from removal.

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Speaker 2: So we're an uncharted territory. There's no precedence.

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Speaker 4: Here, there's no presidents, there's a there's a history, and

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Speaker 4: there seems to be a widespread political view that it's

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Speaker 4: important to keep politics out of the FED because you

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Speaker 4: don't want to lower the interest rate or raise the

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Speaker 4: interest rates for political reasons, because that may obviously undercut

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Speaker 4: the best interests of the country. But we do know

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Speaker 4: that the members of the Board are protected from at

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Speaker 4: will removal. But on the other hand, the Supreme Court,

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Speaker 4: as you well know, has cut back on the power

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Speaker 4: of Congress to immunize members of the government from at

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Speaker 4: will removal by the president. So in fact, the Trump

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Speaker 4: administration has come down and stated that it believes that

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Speaker 4: all officers of the United States, which would include the

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Speaker 4: members of the Federal Reserve, should be presumably removed at will.

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Speaker 4: And the Court will be hearing challenges to members of

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Speaker 4: the National Labor Relations Board, to members of the Marriage

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Speaker 4: Systems Protection Board presumably the next term. And they could

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Speaker 4: well make a president which would cover somebody like the

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Speaker 4: head of the FED as well. And indeed, the Court

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Speaker 4: in the cell law case of a couple of years ago,

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00:29:26,480 --> 00:29:29,760
Speaker 4: held in particular that a single member head of an

442
00:29:29,840 --> 00:29:33,080
Speaker 4: agency had to be removed at will by the president,

443
00:29:33,440 --> 00:29:36,560
Speaker 4: and that was for the Consumer Financial Protection Board. And

444
00:29:36,640 --> 00:29:39,280
Speaker 4: so the question would be in what way is a

445
00:29:39,320 --> 00:29:43,200
Speaker 4: member of the FED different, or at least the head

446
00:29:43,200 --> 00:29:46,200
Speaker 4: of the FED different from the single member head of

447
00:29:46,240 --> 00:29:49,840
Speaker 4: the Consumer Financial Protection Board? Arguments can be raised, but

448
00:29:50,000 --> 00:29:53,280
Speaker 4: obviously the Court will be thinking about the FED when

449
00:29:53,280 --> 00:29:55,880
Speaker 4: it makes those decisions later on next term.

450
00:29:56,200 --> 00:29:59,560
Speaker 2: Do you think the jump administration is specifically, you know,

451
00:29:59,760 --> 00:30:05,200
Speaker 2: che challenging for cause by firing the NLRB board member

452
00:30:05,280 --> 00:30:08,760
Speaker 2: and the Merit Systems Protection Board member. Do you think

453
00:30:08,760 --> 00:30:12,440
Speaker 2: it's like making a concerted effort to try to expand

454
00:30:12,560 --> 00:30:13,680
Speaker 2: presidential power.

455
00:30:14,280 --> 00:30:16,400
Speaker 4: It absolutely is, and it's making no bones about it.

456
00:30:16,440 --> 00:30:20,520
Speaker 4: In fact, the administration sent a letter to the Senator

457
00:30:20,600 --> 00:30:23,840
Speaker 4: Durbin of Illinois, who's the ranking member of the Judiciary Committee,

458
00:30:24,200 --> 00:30:27,520
Speaker 4: in fact, stating just that that it believes that there

459
00:30:27,600 --> 00:30:30,480
Speaker 4: is no such thing as an independent agency, that all

460
00:30:30,480 --> 00:30:35,040
Speaker 4: agencies must bow to the will and oversight of the President,

461
00:30:35,040 --> 00:30:39,160
Speaker 4: who is the single elected representative of the people, a

462
00:30:39,240 --> 00:30:40,480
Speaker 4: top of our government.

463
00:30:41,560 --> 00:30:48,000
Speaker 2: Justice Roberts temporarily halted the lower court decisions that reinstated

464
00:30:48,160 --> 00:30:51,720
Speaker 2: those two members while the Supreme Court is considering whether

465
00:30:51,800 --> 00:30:54,160
Speaker 2: to take the case. Can you read anything into his

466
00:30:54,680 --> 00:30:57,800
Speaker 2: putting those decisions on whole rather than letting them go forward.

467
00:30:58,160 --> 00:31:03,480
Speaker 4: Well, the the rationale of the Supreme Court's earlier decisions,

468
00:31:03,680 --> 00:31:09,320
Speaker 4: which certainly cover the likely dismissal of the member of

469
00:31:09,360 --> 00:31:12,480
Speaker 4: the National Relationshis Board as well as the American System

470
00:31:12,480 --> 00:31:17,760
Speaker 4: Protection Board, if they would continue in that path. I mean,

471
00:31:17,800 --> 00:31:20,720
Speaker 4: the real question that people have asked is will the

472
00:31:20,760 --> 00:31:25,480
Speaker 4: Supreme Court slow down the process given the amount of

473
00:31:25,560 --> 00:31:29,440
Speaker 4: power that the Trump administration has accumulated for itself, and

474
00:31:29,480 --> 00:31:33,360
Speaker 4: then they rethink that something independence might be a good thing.

475
00:31:33,600 --> 00:31:36,280
Speaker 4: So I do think that it's very likely that the

476
00:31:36,360 --> 00:31:40,480
Speaker 4: trend will continue to amass power in the administration and

477
00:31:40,520 --> 00:31:43,160
Speaker 4: to the President in order to give the president more

478
00:31:43,240 --> 00:31:46,520
Speaker 4: levers of control. The FED is a tricky issue. It's

479
00:31:46,520 --> 00:31:49,880
Speaker 4: a tricky issue because politicians on both sides of the

480
00:31:49,920 --> 00:31:54,880
Speaker 4: aisle have been careful historically to allow the independence of

481
00:31:54,960 --> 00:31:57,400
Speaker 4: the FED and to talk about how important it is

482
00:31:57,440 --> 00:32:02,080
Speaker 4: to have this one position to be somewhat unique. And

483
00:32:02,160 --> 00:32:06,400
Speaker 4: maybe the Court would try to carve out the FED

484
00:32:06,520 --> 00:32:11,960
Speaker 4: as a unique exception, even though its pathway clearly is

485
00:32:12,000 --> 00:32:17,000
Speaker 4: to suggest greater controls for the president with respect to

486
00:32:17,040 --> 00:32:18,600
Speaker 4: all other executive branch officials.

487
00:32:18,760 --> 00:32:22,080
Speaker 2: I never thought that the case Humphrey's Executor would be

488
00:32:22,120 --> 00:32:26,560
Speaker 2: talked about so much that nineteen thirty five landmark ruling

489
00:32:26,840 --> 00:32:28,880
Speaker 2: explain how that plays into all this.

490
00:32:29,480 --> 00:32:32,560
Speaker 4: So in the nineteen thirty five decision of Pumper's Executor,

491
00:32:32,600 --> 00:32:37,280
Speaker 4: the Court held that if you have an agency that

492
00:32:37,680 --> 00:32:41,640
Speaker 4: is engaged in sort of what they called quasi legislative functions,

493
00:32:41,680 --> 00:32:45,920
Speaker 4: which is rulemaking, or quasi judicial functions, which is adjudication,

494
00:32:46,480 --> 00:32:52,320
Speaker 4: that Congressman once can protect those individuals from at will

495
00:32:52,360 --> 00:32:55,480
Speaker 4: remove it by the president because some measure of protection

496
00:32:55,840 --> 00:32:58,400
Speaker 4: would be important for good government to make sure that

497
00:32:58,440 --> 00:33:02,320
Speaker 4: those quasi legislatives and quasi judicial functions would be discharged

498
00:33:02,560 --> 00:33:05,240
Speaker 4: with a great deal of integrity. The Court has since

499
00:33:05,680 --> 00:33:08,360
Speaker 4: taken back from that precedent by saying, if it's a

500
00:33:08,360 --> 00:33:11,680
Speaker 4: single member head, even if it's engaged in similar tasks,

501
00:33:12,000 --> 00:33:15,560
Speaker 4: then the president can remove that individual at will. Now,

502
00:33:15,720 --> 00:33:20,240
Speaker 4: the logic between separating individual members and multi member commissions

503
00:33:20,600 --> 00:33:24,440
Speaker 4: is pretty thin. That's what Chief Justice Roberts relied upon.

504
00:33:24,840 --> 00:33:28,200
Speaker 4: So the question then is in these other cases, will

505
00:33:28,280 --> 00:33:32,600
Speaker 4: the same logic of subjecting these agency officials to oversight

506
00:33:32,640 --> 00:33:37,040
Speaker 4: by the president be extended to multi member commissions as well.

507
00:33:37,280 --> 00:33:39,520
Speaker 4: So that's what we're going to see in the upcoming

508
00:33:39,600 --> 00:33:43,000
Speaker 4: term from the Supreme Court. Whether or not they reconsider

509
00:33:43,200 --> 00:33:45,760
Speaker 4: is a coast call. Again, they may be a little

510
00:33:45,800 --> 00:33:50,560
Speaker 4: worried now about the aggrandizement of the Trump administration, but

511
00:33:50,640 --> 00:33:52,800
Speaker 4: we'll have to see. But again, the head of the

512
00:33:52,840 --> 00:33:55,240
Speaker 4: FED is a little different because there is a multi

513
00:33:55,240 --> 00:34:00,000
Speaker 4: member organization beneath the FED that's namely the Board of Governors.

514
00:34:00,360 --> 00:34:04,240
Speaker 4: Seven members of the Board of Governors. So who knows

515
00:34:04,280 --> 00:34:07,960
Speaker 4: what they'll say about the chief of that organization. With

516
00:34:08,120 --> 00:34:12,440
Speaker 4: respect to the need for independence from the president.

517
00:34:12,480 --> 00:34:15,880
Speaker 2: Powell has said that he doesn't believe the cases that

518
00:34:15,920 --> 00:34:19,400
Speaker 2: are working their way through the courts over Trump's firing

519
00:34:19,440 --> 00:34:23,120
Speaker 2: of other independent federal board and agency members will apply

520
00:34:23,280 --> 00:34:26,480
Speaker 2: to the FED, so suggesting even if the Supreme bourt

521
00:34:26,600 --> 00:34:31,040
Speaker 2: rules for the President there that there might be some

522
00:34:31,080 --> 00:34:33,719
Speaker 2: sort of carve out for the Central Bank. And some

523
00:34:33,800 --> 00:34:38,719
Speaker 2: conservative justices have suggested that, yeah, I mean, the FED is.

524
00:34:38,719 --> 00:34:42,480
Speaker 4: It's not a typical regulatory agency. I mean, it does

525
00:34:43,040 --> 00:34:47,960
Speaker 4: have some regulatory functions over the banks, but obviously is

526
00:34:48,080 --> 00:34:51,360
Speaker 4: most important thing is to affect money supply and to

527
00:34:51,400 --> 00:34:54,600
Speaker 4: try to figure out what kind of curbing inflation in

528
00:34:54,719 --> 00:34:58,560
Speaker 4: terms of interest rates and so forth. And so it

529
00:34:58,800 --> 00:35:02,239
Speaker 4: might be that the court would say this is a

530
00:35:02,280 --> 00:35:06,440
Speaker 4: one off, that this is a unique mixture of authorities.

531
00:35:06,440 --> 00:35:10,520
Speaker 4: It's based upon deep economic expertise as opposed to a

532
00:35:10,560 --> 00:35:15,160
Speaker 4: traditional regulatory agency and carve out the FED for that

533
00:35:15,280 --> 00:35:18,280
Speaker 4: reason won't be easy, but the Court might be tempted

534
00:35:18,320 --> 00:35:21,239
Speaker 4: to do that, and that would be an understandable compromise.

535
00:35:22,239 --> 00:35:22,960
Speaker 1: Well, I mean, like.

536
00:35:23,040 --> 00:35:29,200
Speaker 2: Wall Street looks at the independence of the FED as sacrasanct.

537
00:35:29,440 --> 00:35:32,000
Speaker 4: That's right. Politicians on both sides of the aisle have

538
00:35:32,239 --> 00:35:36,120
Speaker 4: talked about the FED being above politics and how important

539
00:35:36,120 --> 00:35:40,080
Speaker 4: it is for it, said to be removed from the

540
00:35:40,200 --> 00:35:44,719
Speaker 4: normal political channels. And so that's why the President has

541
00:35:44,800 --> 00:35:49,120
Speaker 4: ruffled so many feathers by periodically threatening to fire power

542
00:35:49,160 --> 00:35:51,720
Speaker 4: whom he in fact appointed during this first term.

543
00:35:52,160 --> 00:35:54,880
Speaker 2: Well, at least today, this is not a question we're facing.

544
00:35:55,000 --> 00:35:58,080
Speaker 2: But thanks so much. How that's Professor Harold Krant of

545
00:35:58,160 --> 00:36:01,680
Speaker 2: the Chicago Kent College of Law. And that's it for

546
00:36:01,680 --> 00:36:04,319
Speaker 2: this edition of The Bloomberg Law Show. Remember you can

547
00:36:04,360 --> 00:36:07,600
Speaker 2: always get the latest legal news on our Bloomberg Law podcasts.

548
00:36:07,880 --> 00:36:10,879
Speaker 2: You can find them on Apple Podcasts, Spotify, and at

549
00:36:11,040 --> 00:36:16,080
Speaker 2: www dot Bloomberg dot com, slash podcast Slash Law. And

550
00:36:16,160 --> 00:36:19,239
Speaker 2: remember to tune into The Bloomberg Law Show every weeknight

551
00:36:19,320 --> 00:36:22,759
Speaker 2: at ten pm Wall Street time. I'm June Grosso and

552
00:36:22,800 --> 00:36:24,279
Speaker 2: you're listening to Bloomberg