Speaker 1: You're listening to Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2: Uncle Bobby's Wedding is a story of a same sex
Speaker 2: wedding where a niece worries that her uncle will not
Speaker 2: have as much time for her after he gets married.
Speaker 2: It's one of five books with LGBTQ characters at the
Speaker 2: center of a Supreme Court case, and it seemed more
Speaker 2: like book Club during the Supreme Court oral arguments when
Speaker 2: liberal Justice Sonya so to Mayor and conservative Justice Samuel
Speaker 2: Alito gave competing interpretations of the book.
Speaker 1: Because I'm looking at the books. I've looked through all
Speaker 1: of them. They have two men Little Bob Bobby's Wedding
Speaker 1: where they're getting married. One is black and one is white.
Speaker 1: In this rendition of the book, I had one with mice.
Speaker 1: The two male mice looked identical to me. Is looking
Speaker 1: at two men getting married? Is that the religious objection?
Speaker 3: I don't think anybody can read that and say, well,
Speaker 3: this is just telling children that there are occasions when
Speaker 3: men marry other men. Uncle Bobby gets married to his
Speaker 3: boyfriend Jamie, and everybody's happy and everything is you know,
Speaker 3: it portrays this everyone accepts this, except for the little
Speaker 3: girl Chloe, who has reservations about it, but her mother
Speaker 3: corrects her, No, you shouldn't have any reservations about this.
Speaker 3: As I said, it has a clear mora, It has
Speaker 3: a clear moral message.
Speaker 1: Just answer my question is looking at the pictures, is
Speaker 1: there any affidavit from any parent that merely looking at
Speaker 1: people getting married holding hands, none of them are even
Speaker 1: kissing in any of these books. The most they're doing
Speaker 1: is holding hands. That exposure to that is coercion.
Speaker 2: Welcome back to the culture wars at the Supreme Court
Speaker 2: where public school parents are objecting to incorporating LGBTQ friendly
Speaker 2: books into elementary school curriculum on religious grounds, and after
Speaker 2: two and a half hours of oral arguments, it seemed
Speaker 2: clear that the Conservative justices will back the parents who say,
Speaker 2: my guest is First Amendment law expert Caroline Malcorbin, a
Speaker 2: professor at the University of Miami Law School. So, Caroline,
Speaker 2: in addition to Uncle Bobby's wedding, which was thoroughly discussed
Speaker 2: at the oral arguments, there's a book called Pride Puppy
Speaker 2: about a puppy who gets lost at an LGBTQ pride parade.
Speaker 2: Another called Born Ready is about a transgender child who
Speaker 2: wants to identify as a boy. The point being these
Speaker 2: books are not about religion, their stories with LGBTQ characters.
Speaker 4: Yeah.
Speaker 5: So, basically, the case that the Supreme Court heard oral
Speaker 5: argument on Tuesday morning concern a religious liberty challenge brought
Speaker 5: by parents who argue that they had a constitutional pre
Speaker 5: exercise right to prevent their children from reading books with
Speaker 5: LGBTQ characters. And from the tenor of the argument, it
Speaker 5: does seem quite likely that the Supreme Court will agree
Speaker 5: with them and grant them this as a constitutional right.
Speaker 5: And to be clear, these are parents of children in
Speaker 5: public school.
Speaker 2: Did the Court readily accept the idea that, you know,
Speaker 2: books about a puppy who gets lost at an LGBTQ
Speaker 2: pride parade or a transgender child who wants to identify
Speaker 2: as a boy, that these are against the Christian beliefs
Speaker 2: of the parents.
Speaker 5: So definitely the parents bringing them are religiously conservative, although
Speaker 5: they're not only Christian. I think there are also some
Speaker 5: Muslim parents as well. And the justices very much accepted
Speaker 5: the idea that having children read these books would impose
Speaker 5: a substantial burden on the parents free exercise, which is
Speaker 5: a stunning expansion of what it means for the government
Speaker 5: to impose a substantial burden on someone's religious exercise. So originally,
Speaker 5: when we thought about government imposed burdens, it would be
Speaker 5: something like the government is preventing you from observing a
Speaker 5: tenant of your faith, like the government made it impossible
Speaker 5: for you to observe your sabbath or participate in the
Speaker 5: sacramental use of peyote, something that was really central religious practice.
Speaker 5: The Rabbits Court has already expanded what counts as a
Speaker 5: substantial burden to not just view yourself violating a religious tenant,
Speaker 5: but for someone to endorse or facilitate a third party's
Speaker 5: violation of religious tenants. So we have the Supreme Court
Speaker 5: being very sympathetic to people who argue that baking a
Speaker 5: cake for a same sex wedding would be akin to
Speaker 5: adorsing the sin of same sex marriage or facilitating the
Speaker 5: sin of same sex marriage. That first expansion was itself
Speaker 5: already quite a broad reading of what counts as a
Speaker 5: substantial burden. But what we may see after the Supreme
Speaker 5: Court hands down its decision in this case is just
Speaker 5: hearing about people who act in a way that's contrary
Speaker 5: to your religious tenants suffices to be a substantial religious burden,
Speaker 5: because that's ultimately what's going on in these public schools.
Speaker 5: The children are hearing about the existence of two men
Speaker 5: getting married, or they become aware that there are transgender
Speaker 5: people in the world, and if that information is not
Speaker 5: accompanied by a condemnation of it, then it seemed like
Speaker 5: there were five justices who thought that that could amount
Speaker 5: on a very serious infringement on the parents' free exercise rights.
Speaker 5: I am willing to bet that there are at least
Speaker 5: five justices who thought that there is a free speech
Speaker 5: violation here.
Speaker 2: I think there might even be six.
Speaker 5: What I did say, at least five, though I would
Speaker 5: say I think Justice Gorsus was going for a different theory.
Speaker 2: So what were the main concerns of the conservative about
Speaker 2: these books?
Speaker 5: The main concern was that they were hearing about LGPT
Speaker 5: community without hearing the condemnation of it, and therefore, in
Speaker 5: their eyes, that equates to indoctrinating their children into accepting
Speaker 5: gay people or transgender people, and that is contrary to
Speaker 5: their own religions which condemn them.
Speaker 2: Justice Sodo Mayor said, haven't we made it very clear
Speaker 2: that the mere exposure to things that you object to
Speaker 2: is not coercion. And then she talked about this book
Speaker 2: Uncle Bobby's Wedding, and she said that none of them
Speaker 2: are even kissing in any of these books. The most
Speaker 2: they're doing is holding hands. And then Justice Alito actually
Speaker 2: read from the book, saying there was a clear moral message.
Speaker 5: His argument was, this book not all only articulate that
Speaker 5: these people exist, but it also conveys a message that
Speaker 5: these people are people, and they're okay, and there's nothing
Speaker 5: wrong with two men marrying each other. And that is
Speaker 5: what he equates to indoctrination of children in the classroom,
Speaker 5: which of course is not the only way to think
Speaker 5: about what those books are doing. One of the central
Speaker 5: goals of the public schools system is to train children
Speaker 5: to live.
Speaker 4: In a democracy.
Speaker 5: And one of the preconditions for us all coexisting together
Speaker 5: is that we learn that we're not all alike, and
Speaker 5: that even if there are people who are different from us,
Speaker 5: we should still treat them with dignity and humanity and
Speaker 5: record them the same respect that we ourselves would like
Speaker 5: to receive. And so I think the reason the school
Speaker 5: included these books in the first place is to try
Speaker 5: and teach that very basic civic lesson to little kids.
Speaker 5: But that message that these books, again, they're surprisingly innocuous.
Speaker 5: I think the main point of the uncle Bobby's wedding
Speaker 5: was that she was a little upset her favorite uncle
Speaker 5: might get married and she wouldn't get to hang out
Speaker 5: with him anymore. And the message she learned is she
Speaker 5: didn't lose an uncle, she got another one. You know,
Speaker 5: that kind of message you often see in children's books.
Speaker 5: But again, the very presentation of the LGBT community as
Speaker 5: regular people who we should not condemn as doing something
Speaker 5: against I don't know, God's orders is considered to be
Speaker 5: unacceptable to the religiously conservative families.
Speaker 2: So the issue was whether the children of the parents
Speaker 2: who object could opt out of the classes that include
Speaker 2: these books. And apparently the school had tried that and
Speaker 2: found that it was not manageable.
Speaker 5: So they argued that they had both the right to
Speaker 5: notice of when the books would be read and the
Speaker 5: right to off their children out if they were. And
Speaker 5: as you said, schools did try. They started off by
Speaker 5: attempting to accommodate everybody, and it really turned out to
Speaker 5: be unworkable. And it was unworkable. I suspect for at
Speaker 5: least a couple of reasons. Although again part of the
Speaker 5: problem these cases is there's not a well developed record,
Speaker 5: and so we don't know exactly how these books were
Speaker 5: or were not you in the various schools. We just
Speaker 5: sort of have intimations of things that happened. And so
Speaker 5: one problem is with the notice because it's not always
Speaker 5: clear cut when a book might end.
Speaker 2: Up being used.
Speaker 5: Yes, the teacher might plan a lesson and use it,
Speaker 5: but a teacher might also say, okay, you know, Tony,
Speaker 5: it's your turn to pick a book. Which book would
Speaker 5: you like to read today? And Timmy goes to the
Speaker 5: bookshelfs and pulls this out right. So, especially in the
Speaker 5: younger grade, the attorney was trying to argue, you don't
Speaker 5: have like distinct lessons. Sometimes you kind of hits more flexible,
Speaker 5: it's more flowing. So that's one issue, and then the
Speaker 5: other issue is, well, what if you know half the
Speaker 5: plas stops out, you have to have a whole nother
Speaker 5: lesson plan to deal with them, because you have to
Speaker 5: have someone to lack after the kids. You have to
Speaker 5: have an alternate lesson plan for them, you have to
Speaker 5: have an alternate space for them. And if you have
Speaker 5: this kind of scenario multiplied by who knows what kind
Speaker 5: of factor and who knows what other kind of issues
Speaker 5: that parents might object to, it becomes absolutely unmanageable to
Speaker 5: run a school with all these opt outs.
Speaker 2: The conservative justices, a lot of them couldn't understand why
Speaker 2: it was such a problem, but all three of the
Speaker 2: liberal justices focused on the line drawing problems presented by this.
Speaker 5: Case, because again, the principle that they were arguing for
Speaker 5: is if there is something in the curriculum that a
Speaker 5: religious parent objects to on the grounds that it is
Speaker 5: contrary to their own faith, that they have the right
Speaker 5: to know in advance that that it's going to be taught,
Speaker 5: and the right to pull their children from the classroom.
Speaker 5: So there was no limit by age, there was no
Speaker 5: limit by subject matter. And of course we live in
Speaker 5: an magnificently diverse kind of tree where people have all
Speaker 5: different kinds of beliefs, and so there was one line
Speaker 5: of questioning is well, what if parents object to interracial marriages,
Speaker 5: do they get noticed? And what about if there are
Speaker 5: some object to interfaith marriages, What if some belong to
Speaker 5: religions that oppose having women who work outside of the home,
Speaker 5: Are they now entitled to notice any times there is
Speaker 5: a social studies class or a literagy class that features
Speaker 5: a woman who's worked outside of the home. What about
Speaker 5: parents who believe in the literal interpretation of the Bible
Speaker 5: and take that to mean that evolution is false? Does
Speaker 5: that mean that they can pull their kids from the
Speaker 5: evolution section of the of a biology class or and
Speaker 5: this is another question that was asked, what if a
Speaker 5: parent objects to a teacher using the appropriate pronoun for
Speaker 5: transgender child in the class, does that mean that they
Speaker 5: can say, I don't want my child in this class,
Speaker 5: I'm entitled to a completely different teacher. And the lawyer
Speaker 5: for the parents did concede that, yes, there were some
Speaker 5: parents who would find that to be the substantial burden
Speaker 5: on their own religious exercise if the teacher uses appropriate
Speaker 5: pronouns for another transgender child in the class.
Speaker 2: And coming up next on the Bloomberg Law Show, we'll
Speaker 2: talk about the next religion case the Supreme Court is
Speaker 2: taking up next week. I'm June Grosso and this is Bloomberg.
Speaker 2: A divided US Supreme Court signal they will back public
Speaker 2: school parents who are seeking to have their children opt
Speaker 2: out of classroom lessons that incorporate LGBTQ friendly books. The
Speaker 2: court's conservatives suggested support for parents who say school children
Speaker 2: are being taught ideas that violate their families religious beliefs.
Speaker 2: I've been talking to Professor Caroline Malacorbin of the University
Speaker 2: of Miami Law School. So what is the question that
Speaker 2: the Supreme Court is going to answer?
Speaker 5: Well, the question before them is are these parents entitled
Speaker 5: under the free exercise Clause to have the right of
Speaker 5: notice and the right to opt their children out. How
Speaker 5: the court gets there may depend on which route the
Speaker 5: court takes, because there is more than one. We've been
Speaker 5: focusing on a very traditional one where the court says, well,
Speaker 5: this law is not neutral and generally applicable, it's sort
Speaker 5: of targeting religion. There's a substantial burden on the religious parents,
Speaker 5: and the law fails to scrutiny. Under traditional doctrine, all
Speaker 5: three of those requirements must be satisfied. So again, the
Speaker 5: law is not neutral and generally applicable, but targets religion
Speaker 5: in some kind of way. Second, what we've been sort
Speaker 5: of talking about is does this requirement, does this book
Speaker 5: impose a substantial burden on the parents' right to practice
Speaker 5: their religions? And finally, can the government justify insisting that
Speaker 5: everyone read this book? Does it pass the scrutiny? Is
Speaker 5: there a compelling government interest that everybody read it? And
Speaker 5: is there no other way the school can accomplish It's
Speaker 5: really important government interests that don't infringe on the religious parents' rights,
Speaker 5: And so it's quite easy to see how the court
Speaker 5: could answer all those questions in a way that would
Speaker 5: lead to a right. Now, the alternate, which I mentioned
Speaker 5: briefly before, is something that such this gorstic seemed very
Speaker 5: fixated on, and under his approach, from what I could glean,
Speaker 5: is he wouldn't even bother doing a distinct analysis of
Speaker 5: whether reading the books imposes a substantial burden on the
Speaker 5: parent's religion, Because the first question is is this a
Speaker 5: neutral and generally applicable law? Does this target religion in
Speaker 5: some kind of way? And I think he and some
Speaker 5: other justices were trying to build an argument that this
Speaker 5: rule was motivated in part by hostility to religion. And
Speaker 5: if he can make that claim, then he is going
Speaker 5: to argue you go directly to strict scrutiny. If there's
Speaker 5: some kind of discrimination against the religious parents, he would
Speaker 5: think that in itself is a substantial burden, and strict
Speaker 5: scrutiny applies. So one way or another, the Quarter is
Speaker 5: going to say dist infringes on people's religion, and the
Speaker 5: government can't justify insisting on reading these books because ultimately
Speaker 5: they could read other books.
Speaker 2: And Justice Skatanji Brown Jackson asked the question, do we
Speaker 2: want federal judges quote, flipping through the picture books and
Speaker 2: deciding whether these are appropriate for five year olds?
Speaker 1: Yeah.
Speaker 5: I think she's trying to motivate the very strong sort
Speaker 5: of balance of power issues and federalism issues, right because
Speaker 5: one thought is that education should be under local control,
Speaker 5: and it will be a little less under local control
Speaker 5: if the Supreme Court justices or deciding what books schools
Speaker 5: can offer without having any challenges to them and what
Speaker 5: books they cannot. And of course also she wanted to
Speaker 5: emphasize that the decisions on the curriculum should be made
Speaker 5: by the school boards, who are democratically accountable to the
Speaker 5: people who go to those schools. I mean, the core
Speaker 5: of our democracy is that the people making little decisions
Speaker 5: are ultimately accountable to the people who put them into power.
Speaker 5: And if it's the school board making decisions, then it
Speaker 5: should be their decisions that people are able to vote on.
Speaker 5: If it's the court making the decisions, well, the courts
Speaker 5: are not accountable to the people.
Speaker 2: I almost don't understand why the Court took this case
Speaker 2: before the issue could percolate through the lower courts, before
Speaker 2: it's known how these books are going to be used
Speaker 2: in lessons or you know, how teachers plan to use them.
Speaker 2: I mean, it's so amorphous, it's just the books are bad.
Speaker 5: I cannot answer that question, although it does seem part
Speaker 5: and parcel of a Supreme Court dedication to ensuring that
Speaker 5: those who belong to conservative religions pretty much get what
Speaker 5: they want, especially if it's at the expense of the
Speaker 5: LGBTQ community.
Speaker 2: And just to that point, about a dozen cases in
Speaker 2: the past decade, the Supreme Courts expanded the role of
Speaker 2: religion in public life, sometimes at the expense of gay rights.
Speaker 2: So we had the Supreme Court in twenty twenty three
Speaker 2: ruling in favor of a Christian web designer who didn't
Speaker 2: want to create sites for same sex weddings, even though
Speaker 2: she'd never been asked yet to create a same sex
Speaker 2: wedding site. You had in twenty twenty two the high
Speaker 2: school football coach they sided with who said he had
Speaker 2: the constitutional right to pray at the fifty yard line
Speaker 2: right after games. And then in twenty eighteen, of course,
Speaker 2: you had the famous case about the baker who didn't
Speaker 2: want to bake wedding cakes for same sex couples.
Speaker 5: I can here more. Don't forget the city of Philadelphia
Speaker 5: has to do a lot. It's government funding to social services,
Speaker 5: even if they discriminate against LGBTQ parents. And your mention
Speaker 5: of the coach case, this is the case where the
Speaker 5: Supreme Court rejected establishment cause challenges to a coach that
Speaker 5: was praying in front of his students, his players, and
Speaker 5: some of them said they felt like they had no
Speaker 5: choice but to participate. And I just want to highlight
Speaker 5: how the court was so dismissive of the claims of
Speaker 5: the players that they would feel coerced to participate when
Speaker 5: the coach who decides whether they play or not is praying,
Speaker 5: and they seem to say, well, he has their right
Speaker 5: to pray, and certainly no student would ever feel compelled
Speaker 5: to join in. That's ridiculous. There's no evidence of it.
Speaker 5: How could you even suggest something?
Speaker 1: Right?
Speaker 5: The really very dismissive of the idea that the students
Speaker 5: who are not Christians and who do not want to
Speaker 5: join in the prayer may feel like they have no choice.
Speaker 5: And yet in this case, the mayor hearing about something
Speaker 5: seems to be a gross infringement on someone's religious liberty.
Speaker 5: In other words, caring about an idea that people disagree
Speaker 5: with is treated very differently. If it's conservative parents whose
Speaker 5: children are hearing about the existence of LGBT community as
Speaker 5: opposed to students who are actually present during their coaches prayers.
Speaker 2: Is there a line that the conservatives won't cross? Where
Speaker 2: is it? I haven't seen it.
Speaker 5: Yeah, and again I know you are slu raising. A
Speaker 5: slightly different point is are they going to be this
Speaker 5: accommodating to parents making religious claims when they don't agree
Speaker 5: with them?
Speaker 1: Right?
Speaker 5: So what if you have some I don't know, Unitarians
Speaker 5: saying I do not want my child hearing anything complimentary
Speaker 5: about Christopher Columbus because he was a you know, a
Speaker 5: savage colonizer. So you better give me notice and a
Speaker 5: right to opt out on any kindergarten, first grade, second grade,
Speaker 5: third grade lessons about Christopher Columbus, or maybe any of
Speaker 5: the plantis dors. We'll see if those parents claim get
Speaker 5: the same kind of treatment.
Speaker 2: And there's another religion case coming up next week. The
Speaker 2: justices are going to consider whether to approve the country's
Speaker 2: first public religious charter school.
Speaker 5: Yes, So the question is if the court does insist
Speaker 5: that this religious charter school must go ahead, will it
Speaker 5: do it on the grounds that it's ultimately really a
Speaker 5: private school, in which case it's not necessarily expanding it's
Speaker 5: already problematic doctrine that says if you fund a private
Speaker 5: secular school, you also have to make funding available to
Speaker 5: a private religious school, as opposed to ruling that said
Speaker 5: the government must fund public religious schools. That would be
Speaker 5: astonished and devastating to public school education. But either way,
Speaker 5: I suspect it's not going to be a great outcome,
Speaker 5: But I think how it gets decided is going to
Speaker 5: make a huge difference. I want to emphasize one more
Speaker 5: point about this argument that part of the mission of
Speaker 5: public schools is to teach children how to get along
Speaker 5: with all different kinds of people, and they're making that
Speaker 5: lesson impossible if they say there are some kinds of
Speaker 5: people who are so awful that it violates people's religion
Speaker 5: to even hear about them without getting a moral lesson
Speaker 5: about how they're going to hell. And again, completely absent
Speaker 5: in most of the Supreme Court justice's mind is how
Speaker 5: devastating this kind of right would be for children who
Speaker 5: belong to LGBT families, children who are gay, children who
Speaker 5: are transgender. Right, why is half the class leaving when
Speaker 5: we're finally going to read a story about me? Why
Speaker 5: is half the class leaving when we're finally going to
Speaker 5: read a story about me? Is that really what we
Speaker 5: want for public school education to look like?
Speaker 2: I haven't thought about that, Thanks Caroline. That's Professor Caroline
Speaker 2: Malacorbin of the University of Miami Law School.
Speaker 3: No, I have no intention of firing him.
Speaker 6: I would like to see him be a little more
Speaker 6: active in terms of his idea to lower interest Rate's
Speaker 6: just a perfect time to lower interest rates.
Speaker 2: President Trump didn't about face on Tuesday saying he won't
Speaker 2: fire FED chair Edjr. Own Powell despite days of criticism
Speaker 2: over the Central Banks policies like this. Just five days
Speaker 2: before I don't think he's.
Speaker 6: Doing the job. He's lake always do late, a little slow,
Speaker 6: and I'm not happy with him. I let him know it,
Speaker 6: and if I want to, he'll be out of their
Speaker 6: real fast.
Speaker 2: Believe me, Trump is known to change his mind and
Speaker 2: his posture could shift yet again. So does he have
Speaker 2: the power to fire Powell? Joining me to answer that question?
Speaker 2: Is constitutional law expert Harold Krant, a professor at the
Speaker 2: Chicago Kent College of Law. The Federal Reserve Act says
Speaker 2: that members of the Central Banks Board of Governors can
Speaker 2: only be removed for cause. What does that mean?
Speaker 4: It means that the president before you movese the governor
Speaker 4: has to show some kind of neglective duties, misconduct, something
Speaker 4: along those lines before someone can be removed from office.
Speaker 4: And more importantly, perhaps is that any kind of removal
Speaker 4: than can be second guests in a court? In other words,
Speaker 4: a court has the power than to determine whether the
Speaker 4: president had cause or not to a member of the
Speaker 4: Board of Governors.
Speaker 2: So the law doesn't explicitly provide four cause protection for
Speaker 2: the role of FED chair. I mean, does it say
Speaker 2: anything about removal of the FED chair?
Speaker 4: Well, it's pretty opaque with respect to what are the
Speaker 4: conditions upon which the chairman can be removed. We have
Speaker 4: a tradition, and the tradition says that the head of
Speaker 4: the Fed is protected, is independent, and that's what seems
Speaker 4: to be in the mind of the Congress that created
Speaker 4: the structure. In other words, that we didn't want to
Speaker 4: have politics enter into questions about the interest rates and
Speaker 4: inflation and the money supply of the country, that it
Speaker 4: was important to separate politics from that kind of financial oversight.
Speaker 4: But on the other hand, if you just look at
Speaker 4: the words of the statute, there's a question that Powell
Speaker 4: could not be removed as a governor, but he might
Speaker 4: be able to be removed as head of the Board
Speaker 4: of Governors. He is given a term, so you could
Speaker 4: say that Congress intended for him to fill out the term.
Speaker 4: But on the other hand, again, there is no explicit
Speaker 4: protections from removal.
Speaker 2: So we're an uncharted territory. There's no precedence.
Speaker 4: Here, there's no presidents, there's a there's a history, and
Speaker 4: there seems to be a widespread political view that it's
Speaker 4: important to keep politics out of the FED because you
Speaker 4: don't want to lower the interest rate or raise the
Speaker 4: interest rates for political reasons, because that may obviously undercut
Speaker 4: the best interests of the country. But we do know
Speaker 4: that the members of the Board are protected from at
Speaker 4: will removal. But on the other hand, the Supreme Court,
Speaker 4: as you well know, has cut back on the power
Speaker 4: of Congress to immunize members of the government from at
Speaker 4: will removal by the president. So in fact, the Trump
Speaker 4: administration has come down and stated that it believes that
Speaker 4: all officers of the United States, which would include the
Speaker 4: members of the Federal Reserve, should be presumably removed at will.
Speaker 4: And the Court will be hearing challenges to members of
Speaker 4: the National Labor Relations Board, to members of the Marriage
Speaker 4: Systems Protection Board presumably the next term. And they could
Speaker 4: well make a president which would cover somebody like the
Speaker 4: head of the FED as well. And indeed, the Court
Speaker 4: in the cell law case of a couple of years ago,
Speaker 4: held in particular that a single member head of an
Speaker 4: agency had to be removed at will by the president,
Speaker 4: and that was for the Consumer Financial Protection Board. And
Speaker 4: so the question would be in what way is a
Speaker 4: member of the FED different, or at least the head
Speaker 4: of the FED different from the single member head of
Speaker 4: the Consumer Financial Protection Board? Arguments can be raised, but
Speaker 4: obviously the Court will be thinking about the FED when
Speaker 4: it makes those decisions later on next term.
Speaker 2: Do you think the jump administration is specifically, you know,
Speaker 2: che challenging for cause by firing the NLRB board member
Speaker 2: and the Merit Systems Protection Board member. Do you think
Speaker 2: it's like making a concerted effort to try to expand
Speaker 2: presidential power.
Speaker 4: It absolutely is, and it's making no bones about it.
Speaker 4: In fact, the administration sent a letter to the Senator
Speaker 4: Durbin of Illinois, who's the ranking member of the Judiciary Committee,
Speaker 4: in fact, stating just that that it believes that there
Speaker 4: is no such thing as an independent agency, that all
Speaker 4: agencies must bow to the will and oversight of the President,
Speaker 4: who is the single elected representative of the people, a
Speaker 4: top of our government.
Speaker 2: Justice Roberts temporarily halted the lower court decisions that reinstated
Speaker 2: those two members while the Supreme Court is considering whether
Speaker 2: to take the case. Can you read anything into his
Speaker 2: putting those decisions on whole rather than letting them go forward.
Speaker 4: Well, the the rationale of the Supreme Court's earlier decisions,
Speaker 4: which certainly cover the likely dismissal of the member of
Speaker 4: the National Relationshis Board as well as the American System
Speaker 4: Protection Board, if they would continue in that path. I mean,
Speaker 4: the real question that people have asked is will the
Speaker 4: Supreme Court slow down the process given the amount of
Speaker 4: power that the Trump administration has accumulated for itself, and
Speaker 4: then they rethink that something independence might be a good thing.
Speaker 4: So I do think that it's very likely that the
Speaker 4: trend will continue to amass power in the administration and
Speaker 4: to the President in order to give the president more
Speaker 4: levers of control. The FED is a tricky issue. It's
Speaker 4: a tricky issue because politicians on both sides of the
Speaker 4: aisle have been careful historically to allow the independence of
Speaker 4: the FED and to talk about how important it is
Speaker 4: to have this one position to be somewhat unique. And
Speaker 4: maybe the Court would try to carve out the FED
Speaker 4: as a unique exception, even though its pathway clearly is
Speaker 4: to suggest greater controls for the president with respect to
Speaker 4: all other executive branch officials.
Speaker 2: I never thought that the case Humphrey's Executor would be
Speaker 2: talked about so much that nineteen thirty five landmark ruling
Speaker 2: explain how that plays into all this.
Speaker 4: So in the nineteen thirty five decision of Pumper's Executor,
Speaker 4: the Court held that if you have an agency that
Speaker 4: is engaged in sort of what they called quasi legislative functions,
Speaker 4: which is rulemaking, or quasi judicial functions, which is adjudication,
Speaker 4: that Congressman once can protect those individuals from at will
Speaker 4: remove it by the president because some measure of protection
Speaker 4: would be important for good government to make sure that
Speaker 4: those quasi legislatives and quasi judicial functions would be discharged
Speaker 4: with a great deal of integrity. The Court has since
Speaker 4: taken back from that precedent by saying, if it's a
Speaker 4: single member head, even if it's engaged in similar tasks,
Speaker 4: then the president can remove that individual at will. Now,
Speaker 4: the logic between separating individual members and multi member commissions
Speaker 4: is pretty thin. That's what Chief Justice Roberts relied upon.
Speaker 4: So the question then is in these other cases, will
Speaker 4: the same logic of subjecting these agency officials to oversight
Speaker 4: by the president be extended to multi member commissions as well.
Speaker 4: So that's what we're going to see in the upcoming
Speaker 4: term from the Supreme Court. Whether or not they reconsider
Speaker 4: is a coast call. Again, they may be a little
Speaker 4: worried now about the aggrandizement of the Trump administration, but
Speaker 4: we'll have to see. But again, the head of the
Speaker 4: FED is a little different because there is a multi
Speaker 4: member organization beneath the FED that's namely the Board of Governors.
Speaker 4: Seven members of the Board of Governors. So who knows
Speaker 4: what they'll say about the chief of that organization. With
Speaker 4: respect to the need for independence from the president.
Speaker 2: Powell has said that he doesn't believe the cases that
Speaker 2: are working their way through the courts over Trump's firing
Speaker 2: of other independent federal board and agency members will apply
Speaker 2: to the FED, so suggesting even if the Supreme bourt
Speaker 2: rules for the President there that there might be some
Speaker 2: sort of carve out for the Central Bank. And some
Speaker 2: conservative justices have suggested that, yeah, I mean, the FED is.
Speaker 4: It's not a typical regulatory agency. I mean, it does
Speaker 4: have some regulatory functions over the banks, but obviously is
Speaker 4: most important thing is to affect money supply and to
Speaker 4: try to figure out what kind of curbing inflation in
Speaker 4: terms of interest rates and so forth. And so it
Speaker 4: might be that the court would say this is a
Speaker 4: one off, that this is a unique mixture of authorities.
Speaker 4: It's based upon deep economic expertise as opposed to a
Speaker 4: traditional regulatory agency and carve out the FED for that
Speaker 4: reason won't be easy, but the Court might be tempted
Speaker 4: to do that, and that would be an understandable compromise.
Speaker 1: Well, I mean, like.
Speaker 2: Wall Street looks at the independence of the FED as sacrasanct.
Speaker 4: That's right. Politicians on both sides of the aisle have
Speaker 4: talked about the FED being above politics and how important
Speaker 4: it is for it, said to be removed from the
Speaker 4: normal political channels. And so that's why the President has
Speaker 4: ruffled so many feathers by periodically threatening to fire power
Speaker 4: whom he in fact appointed during this first term.
Speaker 2: Well, at least today, this is not a question we're facing.
Speaker 2: But thanks so much. How that's Professor Harold Krant of
Speaker 2: the Chicago Kent College of Law. And that's it for
Speaker 2: this edition of The Bloomberg Law Show. Remember you can
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