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

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Speaker 2: President Donald Trump's blitz of sweeping, aggressive, and often unlawful

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Speaker 2: executive orders has hit only one roadblock so far, the

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Speaker 2: federal courts. As Trump and Elon Musk slash government agencies,

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Speaker 2: freeze funding, and oust federal workers, the Republican Congress has

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Speaker 2: just gone along. In fact, House Speaker Mike Johnson has

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Speaker 2: said the court should just let Trump do what he wants.

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Speaker 1: And I think that the courts should take a step

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Speaker 1: back and allow these processes to play out. What we're

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Speaker 1: doing is good and right for the American people.

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Speaker 2: It's been federal judges who've put the brakes on many

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Speaker 2: of Trump's early moves to freeze federal grants and loans

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Speaker 2: and birthright citizenship, and remove transgender soldiers from the military.

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Speaker 2: Trump has a history of attacking judges who rule against him,

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Speaker 2: and he remains consistent in that way, blaming judges for

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Speaker 2: slowing down his agenda.

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Speaker 3: We want to weed out the corruption, and it seems

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Speaker 3: hard to believe that a judge could say, we don't

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Speaker 3: want you to do that. Well, so maybe we have

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Speaker 3: to look at the judges because it's very serious. I

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Speaker 3: think it's a very serious violation.

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Speaker 2: A potential showdown between the administration and the judiciary was

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Speaker 2: averted for now when Trump agreed to comply with court orders.

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Speaker 3: Yeah, the answer is I always abide by the courts,

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Speaker 3: always abide by him, and will appeal. But appeals take

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Speaker 3: a long time.

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Speaker 2: My guest is former federal judge Paul Grimm, director of

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Speaker 2: the Bald Judicial Institute at Duke Law School. So looking

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Speaker 2: at the big picture right now, you have judges being

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Speaker 2: attacked by Trump allies, and even the House Speaker saying,

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Speaker 2: I think the court should take a step back. Where

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Speaker 2: are we here?

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Speaker 4: I think that we're at a place where everybody who

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Speaker 4: believes that the firewalls that the Constitution imposes on all

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Speaker 4: three branches of government to make sure that no one

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Speaker 4: branch exercises successive authority in a way that's unaccountable under

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Speaker 4: the law, that anybody who believes in this should be concerned.

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Speaker 4: We know that for well over a decade that the

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Speaker 4: public's perception of the courts has been declining. This is

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Speaker 4: due to a lot of reasons. Part of it is

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Speaker 4: that public figures and public officials from both sides of

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Speaker 4: the political spectrum feel increasingly comfortable attacking individual judges for

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Speaker 4: their decisions when the judges were just trying to do

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Speaker 4: what their job was. It's created by the fact that

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Speaker 4: social media is where a lot of people get their information,

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Speaker 4: and a lot of the information on social media that

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Speaker 4: deals with the courts is by people who may be

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Speaker 4: well intentioned but misinformed, or maybe not even well intentioned

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Speaker 4: and are trying to miss one. Judges are traditionally reluctant

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Speaker 4: to engage with the public. They can't talk about their cases,

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Speaker 4: and that reluctance sort of spills over to make them

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Speaker 4: sometimes more cautious than they should be in terms of

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Speaker 4: communicating to the public. Most of the public has no

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Speaker 4: contact with the digital system. They've never been in the courts,

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Speaker 4: They've never had an engagement with a judge. The media

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Speaker 4: portrayal of judges is not particularly favorable in movies and

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Speaker 4: on TV, and the judges don't speak out for themselves,

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Speaker 4: So who does well? The ABA ethics under the can

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Speaker 4: and eight of the Ethics Model Rules, Commentary three says

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Speaker 4: that lawyers should speak up to defend the system. But

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Speaker 4: when the ABA comes out with a statement or the

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Speaker 4: American College of travelers who does that reach. So we're

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Speaker 4: at a point now where we are a highly polarized

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Speaker 4: society and we are highly divided over many things. We

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Speaker 4: also have a Congress which is highly politicized and highly

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Speaker 4: polarized and does not function the way in which anybody

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Speaker 4: who thinks the legislatures should function thinks is functioning well.

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Speaker 4: And so when Congress is sort of paralyzed by its

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Speaker 4: own polarization, nature reports a vacuum. Who steps into that

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Speaker 4: vacuum in power? It's going to be the president, whether

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Speaker 4: it's a democratic president or a publican president. And the

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Speaker 4: current president has a very specific agenda and very clear

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Speaker 4: ideas about how he wants to proceed, and a very

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Speaker 4: muscular view of the powers of the president needs to

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Speaker 4: be the other branches. And so in that environment, with

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Speaker 4: the number of executive orders and actions that have been

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Speaker 4: initiated in the last month, they have gone into areas that,

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Speaker 4: you know, maybe breaking tradition in terms of what presidents

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Speaker 4: have done, seem to be animated by a very broad

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Speaker 4: view of the authority of the president, and that leads

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Speaker 4: to losses, and the losses lead to cases that have

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Speaker 4: to be started by judges and the judges rule, and

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Speaker 4: then of course if they rule in a way that

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Speaker 4: people who were in favor of the government action that

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Speaker 4: was being challenged. We see this attack upon the judges

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Speaker 4: in a way that is increasingly problematic. It is personal.

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Speaker 4: It calls them things like corrupt or traders, or that

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Speaker 4: they've committed treason. It promotes or implicitly encourages violent It

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Speaker 4: has caused threat and by the way, these are comments

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Speaker 4: that have been raised by people who are both Democrats

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Speaker 4: and Republicans. So I think that we are at a

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Speaker 4: very significant point in our country where the scope and

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Speaker 4: the tone seems to have gotten so extreme, and we

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Speaker 4: have to take all reasonable steps that we can take

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Speaker 4: to speak out in defense of our constitutional structure and

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Speaker 4: to condemn unfair attacks on the judiciary as an institution

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Speaker 4: or individual judges.

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Speaker 2: It seems like one of the worst aggressors is Elon Musk, who,

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Speaker 2: by the way, has more than two hundred million followers

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Speaker 2: on x. I mean, he has called several judges corrupt,

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Speaker 2: call for their impeachment, and he's also reposted photos of

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Speaker 2: at least three judges who ruled against Trump policies. And

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Speaker 2: I'm wondering in light of the fact that the US

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Speaker 2: Marshal Service says that serious threats to federal judges have

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Speaker 2: doubled since twenty twenty one, whether anything else should be done,

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Speaker 2: whether there should be more security, I think.

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Speaker 4: The simple answer is yes. First of all, what's the

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Speaker 4: old expression that the best protection against tate speech is

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Speaker 4: more speech. We need more voices talking about this, all

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Speaker 4: reasonable steps that we can take to speak out in

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Speaker 4: defense of our constitutional structure and why it's important to

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Speaker 4: let it operate the way that it operates, and to

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Speaker 4: call out and to condemn unfair attacks on the judiciary

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Speaker 4: as an institution or on individual judges. I would love

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Speaker 4: to see an open letter signed by retired judges because

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Speaker 4: they could speak more freely. Professors, faith leaders, to the press,

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Speaker 4: business leaders. Can you imagine spending a billion dollars on

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Speaker 4: a new pharmaceutical and then someone steals the information on it,

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Speaker 4: It gets your intellectual property and gets a judgment, and

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Speaker 4: someone says, well, I'm just going to ignore it that judgment.

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Speaker 1: We don't care what that judge said.

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Speaker 4: Signed by all of these people talking about the importance

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Speaker 4: of these core principles separation of powers, rule of law,

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Speaker 4: judicial independence, and the importance of recognizing that the rule

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Speaker 4: of law only functions when the public is willing to

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Speaker 4: accept the decision that they disagree with. And when you

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Speaker 4: have someone that has as big a megaphone and can

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Speaker 4: reach millions and millions of people and post pictures where

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Speaker 4: any reasonable person would say that the result of that

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Speaker 4: is to focus threats of harm or coercion or intimidation

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Speaker 4: or pressure on a government official, any government official trying

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Speaker 4: to do their job. That's something that we should say

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Speaker 4: is going too far. That's beyond fair criticism. That's an

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Speaker 4: attack on an institution. And we need to have every

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Speaker 4: important component of our society that believes that the framework

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Speaker 4: of our government is important to maintain, to speak out

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Speaker 4: to say that that level of personal attacks is wrong

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Speaker 4: and cannot be tolerated.

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Speaker 2: There's been a lot of discussion about whether or not

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Speaker 2: we'll reach the point where the Trump administration decides to

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Speaker 2: defy a court order. But yesterday, after taking some shots

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Speaker 2: at Judge Paul Engelmeyer, who had temporarily blocked Musk's team

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Speaker 2: from accessing some Treasury Department information, Trump said he will

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Speaker 2: obey court orders. Should that give us some comfort that

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Speaker 2: a constitutional crisis can be avoided.

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Speaker 4: Well, it's better than saying that he's not going to fall.

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Speaker 4: I'll say that what I think is important is to

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Speaker 4: try to reach the public because when you have social

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Speaker 4: media hitting people, you know, do we think that we're

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Speaker 4: going to personally dissuade someone with as strong a will

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Speaker 4: as some of the people who've spoken out against the judges.

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Speaker 4: Are we going to persuade them? Perhaps not really, but

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Speaker 4: if we have enough voices joining in saying this is

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Speaker 4: why this kind of talk is dangerous and it should

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Speaker 4: not be engaged in it to help change minds, and

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Speaker 4: I like to look at it as an opportunity where

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Speaker 4: we should be trying to generate light but not heat.

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Speaker 4: And let me give you an example of that. You've

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Speaker 4: got someone that comes out and say, well, we don't

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Speaker 4: think any judge should be in favor of corruption. Okay,

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Speaker 4: well what judge is in favor of corruption? Well, if

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Speaker 4: you said that the decision that was issued by Judge

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Speaker 4: Inglemeyer was a judge that was in favor of corruption,

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Speaker 4: then what I would say is have you read that decision?

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Speaker 4: And I have. Judge Inglemeyer was sitting as a chamber's

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Speaker 4: judge when a temporary respanding order came in and it

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Speaker 4: was the next part say motion for restraining order, which

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Speaker 4: the rules allow, and he was not even a judge

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Speaker 4: assigned to the case. That's judge bargains and he had

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Speaker 4: to act on that, and he issued a five day pause.

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Speaker 4: He said, for five days, i am ordering that the

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Speaker 4: doged adulge people can't have access to this information because

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Speaker 4: the filing show that they may not have had background checks,

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Speaker 4: and they may not have had training in preventing hacking,

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Speaker 4: and millions of people's confidential financial information may be exposed

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Speaker 4: and there may be a danger of hacking. And so

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Speaker 4: for five days, I'm ordering that only Treasury people who

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Speaker 4: have these safe graudu and protections in their training can

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Speaker 4: have access to it. It was issue on the eighth.

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Speaker 4: The government was given until the eleventh, and the plaintiffs

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Speaker 4: nineteen attorneys general were given until the fourteenth. And now

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Speaker 4: it's going to judge bargain. You'll decide on the merit.

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Speaker 4: If you put it that way, say what exactly did

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Speaker 4: the judge do that show that the judge was in

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Speaker 4: favorite of corruption And the answer is no, one in

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Speaker 4: the right mind, if they look at those facts, would

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Speaker 4: say that there is a legitimate basis for criticizing what

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Speaker 4: that judge did. But how do you direct the narrative

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Speaker 4: so that people will take a step back and say, oh,

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Speaker 4: that's what happened. I mean, if you took a poll

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Speaker 4: right now and ask people, you know, if they knew

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Speaker 4: what it was the bothly this judge did, that, you

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Speaker 4: would get any kind of an accurate response. Answers probably know.

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Speaker 4: So how do we have that dialogue? And we can't

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Speaker 4: have that dialogue unless institutions and individuals who still command

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Speaker 4: respect within the community speak out and say we've gone

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Speaker 4: too far, because that's only way we can change opinions.

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Speaker 2: Coming up next, for the first time, a judge says

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Speaker 2: that Trump administration failed to obey an order. Remember you

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Speaker 2: can always get the latest legal news by listening to

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Speaker 2: our Bloomberg Law podcast. You can find them wherever you

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Speaker 2: get your favorite podcasts. I'm June Grosso and you're listening

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Speaker 2: to Bloomberg.

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

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Speaker 2: I've been talking to former federal judge Paul Grimm, director

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Speaker 2: of the Bolt Judicial Institute at Duke Law School, about

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Speaker 2: recent attacks by Trump allies on judges because of their rulings,

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Speaker 2: blocking some Trump orders, at least temporarily. So on Monday,

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Speaker 2: for the first time, a judge said that the Trump

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Speaker 2: administration disobeyed an order that was Rhode Island Judge John

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Speaker 2: McConnell Junior that White has had defied his order to

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Speaker 2: release billions of dollars in federal grants. So the White

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Speaker 2: House is appealing that. But what can a judge do

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Speaker 2: if an administration defies an order? I mean, does a

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Speaker 2: judge have any real power?

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Speaker 4: Well, it's interesting. Judges can act in the way in

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Speaker 4: which judges have authority to act at a circumstances. They

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Speaker 4: can find an individual that has disobeyed an order that

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Speaker 4: was subject to their jurisdiction, or an entity like a

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Speaker 4: government agency in contempt. They can impose monetary fines for

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Speaker 4: contempt to try to coerce compliance with the order. If

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Speaker 4: the contempt lasts long enough and raises to certain levels

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Speaker 4: that constitute criminal contempt, then then they have other sanctions

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Speaker 4: that they can issue as well. And the question that

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Speaker 4: becomes are those tools those limited tools, but existing tools

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Speaker 4: that the courts have to deal with people who are

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Speaker 4: found to be in contempt and non compliant with orders.

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Speaker 4: Are they likely to be effective? Well, the answers probably,

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Speaker 4: in this instance, not too effective. If you held the

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Speaker 4: president and contempt of court, the president would certainly appeal

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Speaker 4: that and it would it would play out. It's not

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Speaker 4: going to cause immediate compliance unlikely. So the tools that

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Speaker 4: the judge has, you know, would range from giving another

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Speaker 4: opportunity or trying to identify some way of purging the

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Speaker 4: contempt and hoping that there's compliance and if not, you know,

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Speaker 4: if they felt that they continued to be a contempt,

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Speaker 4: to to walk down there in issue orders in that direction.

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Speaker 4: Whether that would be effective, whether it be complied with

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Speaker 4: is anybody's guess. So there are limited tools within the

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Speaker 4: judicial arsenal that could be used. You can have a

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Speaker 4: monetary find that continues to increase over a period of time,

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Speaker 4: and if that doesn't induce compliance, then there are other

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Speaker 4: levels of contempt that could be issued as well, But

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Speaker 4: there's not a lot of arrows in the quiver at

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Speaker 4: that point for they judge the issue. If you've got

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Speaker 4: a government or a government figure that says I'm not

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Speaker 4: going to comply.

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Speaker 2: Finally, there's been a lot of talk about a constitutional

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Speaker 2: crisis and the White House Press secretary said that judges

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Speaker 2: are causing constitutional crisis by blocking illegally blocking Trump's agenda.

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Speaker 2: So that's where they're coming from. But at what point

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Speaker 2: do we say we have a constitutional crisis.

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Speaker 4: Well, if you read the papers in the last week,

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Speaker 4: people are already saying that we have it. But I

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Speaker 4: worry that we've let the taglines run the narrative. There's

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Speaker 4: a heightened level of rhetoric esteem used in the language

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Speaker 4: of the people who are attacking the judicial actions and

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Speaker 4: in the language of the people who are talking about

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Speaker 4: whether it's the constitutional crisis. You have an alarming set

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Speaker 4: of circumstances in which there have been challenges to executive action,

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Speaker 4: which is very assertive and not fearful of pushing the

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Speaker 4: boundaries of what past parameters of presidential authority have been.

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Speaker 4: You have individuals and organizations that feel that they've been

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Speaker 4: agreed by that who bring losses. You've got judges that

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Speaker 4: have to respond to it. And we don't get into

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Speaker 4: the details of the particular lawsuit or what the nature

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Speaker 4: of the challenge to the lawsuit was, or understanding the

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Speaker 4: circumstances of the judges ruling. Instead, we get immediately to

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Speaker 4: this the judges are causing it. No, the executive is

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Speaker 4: causing it. I would rather have this be a moment

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Speaker 4: where we are trying to talk about what's the structure

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Speaker 4: of this government that has served us well as well

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Speaker 4: as it can for the last two hundred plus years,

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Speaker 4: and that's based upon these foundational principles of separation of powers,

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Speaker 4: and why separation of powers is important, why it ties

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Speaker 4: into the rule of law while judicial independence is there,

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Speaker 4: and that if these protections are not there, then no

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Speaker 4: one's rights and liberties are safe, No business can prosper,

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Speaker 4: no religion is free to be exercised the way that

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Speaker 4: their believers think it should be. And so all of

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Speaker 4: these things that we value as being sort of the

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Speaker 4: defining nature of our rights and liberties in this country

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Speaker 4: are at peril on that. And that's not a discussion

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Speaker 4: that I hear. Instead, I hear slogan like a constitutional crisis. Well,

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Speaker 4: I guess what I would say is, at one point,

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Speaker 4: if you've got a president that that takes actions that

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Speaker 4: under the law would be perceived as being beyond the

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Speaker 4: order of that president to act, and if the judiciary

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Speaker 4: says it's violation, and if the president disregards it, and

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Speaker 4: if Congress doesn't take action, and the public itself does

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Speaker 4: not feel alarmed by that, they're not bonded by that.

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Speaker 4: But I guess you wake up one morning and what

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Speaker 4: what we thought we were in the country is not

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Speaker 4: what we are now because the people don't care. How

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Speaker 4: do you get the people to care? You got to

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Speaker 4: have a dialogue to talk about what's important about these

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Speaker 4: government structures. Then at least make the effort to try

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Speaker 4: to understand the positions of both sides in anterrational way.

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Speaker 4: Set out the frozen cons so that people who are

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Speaker 4: open minded at least have the opportunity to understand what's

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Speaker 4: the stake and decide what they think is important. And

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Speaker 4: that's what we don't see and fanning the fire by

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Speaker 4: saying constitutional crisis and one side of the equations say well,

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Speaker 4: you're causing it, and the other ones saying that you're

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Speaker 4: pausing it. That's not advancing anything. That's just flaming the fire.

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Speaker 2: A lot of talking going on and not much listening.

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Speaker 2: Thanks so much for joining me on the show. That's

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Speaker 2: Paul Grimm, director of the Bash Judicial Institute at Duke

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Speaker 2: Law School.

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Speaker 3: Because of President Donald Trump, this is a new era

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Speaker 3: at the Southern border.

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Speaker 2: That's Defense Secretary Pete Hegseth during a trip to the

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Speaker 2: southern border last week. And it's not only a new

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Speaker 2: era at the southern border, but also a new era

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Speaker 2: in the military. With heg Seth executing Trump's executive orders,

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Speaker 2: the lawfloorders.

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Speaker 1: Of the President of the United States will be executed

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Speaker 1: inside this Defense Department swiftly and without excuse.

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Speaker 2: Under new rules released by heg Seth, transgender people who

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Speaker 2: want to join the military will be blocked from enlistment,

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Speaker 2: and transgender troops already serving will be blocked from receiving

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Speaker 2: some gender related medical care from military physicians. Joining me

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Speaker 2: is Josh Castenberg, a professor at the University of New

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Speaker 2: Mexico Law School. He served as a lawyer and a

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Speaker 2: judge in the US Air Force. Josh is the next

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Speaker 2: move kicking out transgender people who are currently in the military, Well,

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Speaker 2: not now.

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Speaker 1: I mean that's the possibility in the future, but not now.

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Speaker 1: And one thing to consider about that is that there's

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Speaker 1: no right to serve in the military. There's a right

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Speaker 1: to not be discriminated against on the basis of race,

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Speaker 1: national origin, creed, religion, and the like. But for years,

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Speaker 1: when the government argued to keep gay, openly gay and

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Speaker 1: lesbian men and women out of the military, they would

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Speaker 1: make the argument, there's no right to serve in the military,

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Speaker 1: which is ironic because we still have a draft on

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Speaker 1: the books, and so there's sort of an imbalanced The

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Speaker 1: reason I bring that up is that the administration is

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Speaker 1: willing to bring back on active duty service members who

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Speaker 1: refuse to take the COVID vaccine, thereby violating the commander

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Speaker 1: in chief, you know, President Biden, and vac orders have

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Speaker 1: always been lawful since the days of George Washington in

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Speaker 1: the smallpox vaccine. So they're going to let people who

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Speaker 1: have the marker of disloyalty come back in, but not

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Speaker 1: transgendered persons who may very well be the most loyal

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Speaker 1: of American citizens are being barred from coming in. And

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Speaker 1: that's the disconnect.

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Speaker 2: In this memo, he said individuals with gender dysphoria who

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Speaker 2: have volunteered to serve our country will be treated with

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Speaker 2: dignity and respect by other members of the armed forces,

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Speaker 2: but he puts severe limits on their medical care.

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Speaker 1: Well, that's exactly right. And so here's another aspect of

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Speaker 1: what may be nothing more than double speak, the military

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Speaker 1: has to be very cautious, including the Secretary of Defense,

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Speaker 1: about not engaging in something known as unlawful command influence,

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Speaker 1: which not only permeates the criminal aspects of military service,

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Speaker 1: meaning though you see uniform cut of military justice and

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Speaker 1: court martial enforcement, but also the administrative mechanisms on giving

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Speaker 1: people clearances or taking them away, and promotions, demotions, other

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Speaker 1: administrative actions and the like. So what he's basically said

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Speaker 1: is you're going to comply with the law that's in

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Speaker 1: place of equal treatment. If he hadn't said that, there

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Speaker 1: would be a slew of court cases for people who

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Speaker 1: were being you who believe they were wrongfully denied promotion,

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Speaker 1: or people who were being administratively discharged.

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Speaker 4: And the like.

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Speaker 1: So I wouldn't look at that as being something like, oh,

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Speaker 1: out of the goodness of their heart or to show reasonableness.

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Speaker 1: They have to do that in the unique way that

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Speaker 1: military law works. However, and this is the big however,

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Speaker 1: you have a president who's thought nothing about crossing the

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Speaker 1: line into unlawful command influence, because even though for example,

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Speaker 1: Bowie Bergdahl in the first administration was a deserter and

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Speaker 1: in all likely it deserved to be court martialed commander

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Speaker 1: in chief expressing an order, essentially an order that Bergdaal

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Speaker 1: should be treated like a trader and given the maximum punishment,

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Speaker 1: ironically coming from a president who dodged the draft when

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Speaker 1: he was called into service. But there it is. So

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Speaker 1: you have to have some sort of barrier against this

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Speaker 1: unlawful command influence. And that's all I read into that memo.

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Speaker 2: So, a twenty eight year old transgender service member is

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Speaker 2: suing a lleging that she was told that she had

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Speaker 2: to either be classified as a man or be separated

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Speaker 2: from the military, and said she was required to leave

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Speaker 2: the sleeping area for female troops and sleep by herself

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Speaker 2: in a classroom. That doesn't seem to be the respect

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Speaker 2: that Defense Secretary Pete Hegseth talked about. Where does this

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Speaker 2: fit in?

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Speaker 1: Well, it fits into the administration's policy. And you know,

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Speaker 1: you have to understand, speaking from someone who has served

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Speaker 1: twenty four years in uniform, the constitutional rights of service

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Speaker 1: members do not have the same force and effect that

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Speaker 1: the constitutional rights of ordinary citizens do. And if the

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Speaker 1: military wants to have separation policies based on gender, they

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Speaker 1: can do it. And it falls into the Commander in

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Speaker 1: chief to do unless and this is the big un

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Speaker 1: less Congress acts by passing a law to prevent it.

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Speaker 1: But you know, I look at this as part of

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Speaker 1: an overall sweep of the military to basically not just

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Speaker 1: curb the freedoms of service members, but to shape the

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Speaker 1: military ethos and culture to a point that's like out

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Speaker 1: of a John Wayne green Bereat type movie, a past

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Speaker 1: that never really was, but a pass that people want

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Speaker 1: to embrace anyway, And it's not particularly healthy for the military.

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Speaker 1: But there's more wiggle room for the Secretary of Defense

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Speaker 1: and the service chiefs and the President and to do

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Speaker 1: these very things than there would be, say if they

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Speaker 1: tried to do it to the medical profession or university

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Speaker 1: public universities across the country.

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Speaker 2: Land of legal in the Human Rights Campaign filed a

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Speaker 2: lawsuit last week on behalf of three senior naval officers

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Speaker 2: against the Trump administration over its executive or to ban

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Speaker 2: transgender people from the military.

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Speaker 1: Well, what I think about it in terms of a

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Speaker 1: moral issue and my prediction of it as a legal

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Speaker 1: issue are two different things. Okay, I think anybody who

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Speaker 1: wants to serve, who's faithfully served in the military and

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Speaker 1: meets basic military standards. And I don't mean the standards

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Speaker 1: that have come and gone because they're you know, situationally driven,

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Speaker 1: but I mean military standards in terms of literacy, physical fitness,

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Speaker 1: knowledge of what they're doing. I mean, obviously, someone who's

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Speaker 1: engaged in cyber warfare and someone who's an army ranger

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Speaker 1: may have different you know, there may be different standards

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Speaker 1: in that, but I'm talking about basic st I'm also

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Speaker 1: talking about basic standards of following orders, basic standards of

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Speaker 1: you know, sort of the drug free environment and the

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Speaker 1: like that have been tried and true for a long time.

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Speaker 1: Someone who meets those standards ought to be able to

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Speaker 1: serve because they stood up as less than one percent

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Speaker 1: of the population and they put me in I believe

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Speaker 1: in the country that's the moral issue. So I support

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Speaker 1: LAMBDA in that, But my legal prediction is different. I

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Speaker 1: think unfortunately, there's been a long line of case law

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Speaker 1: that goes to the federal courts of appeal and even

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Speaker 1: to the US Supreme Court, which gives the military far

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Speaker 1: more discretion. The senior military establishments leaders who are civilian

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Speaker 1: far more discretion to change policies that are discriminatory in

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Speaker 1: nature and you know, you think about the donas don't

439
00:25:52,359 --> 00:25:55,600
Speaker 1: tell policy, You think about the prohibition against gays and

440
00:25:55,640 --> 00:25:59,160
Speaker 1: lesbian serving before the Clinton administration. I mean, you think

441
00:25:59,200 --> 00:26:03,359
Speaker 1: about decorated service members from the Vietnam War being shown

442
00:26:03,440 --> 00:26:06,919
Speaker 1: the door and the like and challenging in the courts

443
00:26:06,920 --> 00:26:09,080
Speaker 1: and the court siding with the military. Well, that's the

444
00:26:09,119 --> 00:26:11,560
Speaker 1: case laws. You know what we call in the law

445
00:26:11,600 --> 00:26:15,959
Speaker 1: starry decisives past precedent, And I think Lambda is up

446
00:26:16,000 --> 00:26:18,919
Speaker 1: against the mountain. I side with them as a moral

447
00:26:19,040 --> 00:26:21,919
Speaker 1: issue on this. I just think that, and good on

448
00:26:22,000 --> 00:26:24,280
Speaker 1: them for fighting the fight, but I just don't predict

449
00:26:24,280 --> 00:26:26,640
Speaker 1: it's going to work in the end in the law

450
00:26:26,720 --> 00:26:30,520
Speaker 1: for them. It's a matter of elections being important and

451
00:26:30,640 --> 00:26:33,720
Speaker 1: this particular election setting the stage for the sort.

452
00:26:33,560 --> 00:26:34,439
Speaker 4: Of thing to happen.

453
00:26:35,119 --> 00:26:39,080
Speaker 2: And tell us about the arguments that the transgender service

454
00:26:39,640 --> 00:26:41,440
Speaker 2: members are raising.

455
00:26:42,000 --> 00:26:44,960
Speaker 1: Well, their argument is essentially that they're not being a

456
00:26:45,080 --> 00:26:48,959
Speaker 1: courted equal treatment under the military. And you know, if

457
00:26:49,000 --> 00:26:52,600
Speaker 1: you go back to Supreme Court cases like Chapel versus Wallace,

458
00:26:53,560 --> 00:26:56,760
Speaker 1: there are all these administrative procedures that they have to

459
00:26:56,800 --> 00:27:02,200
Speaker 1: go through, and the courts will do this administrative deference

460
00:27:02,280 --> 00:27:05,840
Speaker 1: to the military itself, and it'll take a long time.

461
00:27:05,920 --> 00:27:10,159
Speaker 1: It'll be exhausting. And I don't imagine that Lambda is

462
00:27:10,160 --> 00:27:11,960
Speaker 1: going to succeed in that.

463
00:27:12,520 --> 00:27:14,520
Speaker 2: I mean, it might get to the Supreme Court, which

464
00:27:15,720 --> 00:27:20,760
Speaker 2: twenty nineteen allowed Trump's restrictions on transgender people in the

465
00:27:20,800 --> 00:27:22,880
Speaker 2: military to take effect.

466
00:27:23,359 --> 00:27:26,160
Speaker 1: Yeah, I don't have faith in the Supreme Court when

467
00:27:26,240 --> 00:27:29,320
Speaker 1: it comes to the rights of service members. And it's

468
00:27:29,359 --> 00:27:32,200
Speaker 1: not just not having faith in Alito and Thomas. I

469
00:27:32,240 --> 00:27:34,720
Speaker 1: don't have faith in the Supreme Court across the board

470
00:27:35,200 --> 00:27:38,280
Speaker 1: because of something that's been well studied but sort of

471
00:27:38,320 --> 00:27:41,199
Speaker 1: faded ever since the end of the Draft, called the

472
00:27:41,240 --> 00:27:46,480
Speaker 1: military difference doctrine. The military difference doctrine is something that

473
00:27:46,560 --> 00:27:50,000
Speaker 1: the Court itself has never articulated, but some legal scholars

474
00:27:50,040 --> 00:27:54,560
Speaker 1: have before my time, which is in matters of national security,

475
00:27:55,359 --> 00:27:58,080
Speaker 1: when the government states that the military needs to be

476
00:27:58,160 --> 00:28:02,399
Speaker 1: composed X, Y, and Z, the courts give extreme deference

477
00:28:02,440 --> 00:28:05,920
Speaker 1: to the military, which they would never do to other institutions.

478
00:28:06,320 --> 00:28:08,800
Speaker 1: And that works for a good and a bad. But

479
00:28:08,880 --> 00:28:12,000
Speaker 1: that difference doctrine has predated World War Two, so it's

480
00:28:12,000 --> 00:28:15,080
Speaker 1: not just the Conservatives. Even the war in court to

481
00:28:15,119 --> 00:28:17,680
Speaker 1: an extent embrace that deference doctrine.

482
00:28:17,880 --> 00:28:20,639
Speaker 2: I want to turn now to book banning by Haig Seth.

483
00:28:21,160 --> 00:28:24,639
Speaker 2: He has banned some books and learning materials in the

484
00:28:24,680 --> 00:28:29,520
Speaker 2: school system that serves the US military families, covering subjects

485
00:28:29,520 --> 00:28:34,159
Speaker 2: that include psychology, immigration, and Black history. There's a chapter

486
00:28:34,600 --> 00:28:37,760
Speaker 2: in a psychology course for Advanced Placement high school students

487
00:28:37,800 --> 00:28:41,640
Speaker 2: about gender and sexuality, a lesson for fifth graders about

488
00:28:41,640 --> 00:28:46,600
Speaker 2: how immigration affects, the US book Becoming Nicole, about a

489
00:28:46,680 --> 00:28:50,959
Speaker 2: family coping to accept their transgender daughter, and a bundle

490
00:28:51,000 --> 00:28:55,360
Speaker 2: of instructional materials created for sixth graders for Black History Month.

491
00:28:56,000 --> 00:28:59,960
Speaker 1: This is amazing too. You know, the Department of Defense

492
00:29:00,120 --> 00:29:06,120
Speaker 1: schools exist for two different reasons. Overseas, they exist because

493
00:29:06,800 --> 00:29:10,720
Speaker 1: you've got military bases. And although I as a kid,

494
00:29:10,760 --> 00:29:13,240
Speaker 1: I went to a school public school in West Germany

495
00:29:13,280 --> 00:29:16,240
Speaker 1: when it was then West Germany, the Dodge schools stood

496
00:29:16,280 --> 00:29:20,720
Speaker 1: up to educate American kids to American standards so that

497
00:29:21,120 --> 00:29:23,840
Speaker 1: when they graduated they'd be able to come back into

498
00:29:23,880 --> 00:29:28,080
Speaker 1: the American economy or go to college without having to

499
00:29:29,080 --> 00:29:32,520
Speaker 1: go through the various hoops that say an Italian or

500
00:29:32,560 --> 00:29:35,960
Speaker 1: a French, or a British, or Japanese or South Korean

501
00:29:36,400 --> 00:29:39,240
Speaker 1: education might give them. Ironically, some of those countries were

502
00:29:39,280 --> 00:29:41,760
Speaker 1: doing a better job than we were, but that's for

503
00:29:41,840 --> 00:29:45,640
Speaker 1: the overseas students. In the United States, the DoD schools

504
00:29:45,680 --> 00:29:49,800
Speaker 1: existed in states that fell below minimum federal standards, and

505
00:29:49,840 --> 00:29:53,040
Speaker 1: those were typically states in the South, and that included Virginia.

506
00:29:53,080 --> 00:29:56,880
Speaker 1: There was a school at Fort Belvoir, for example. But

507
00:29:57,200 --> 00:30:00,800
Speaker 1: having said that the Dodge schools, the Dods schools had

508
00:30:00,920 --> 00:30:04,200
Speaker 1: rarely gotten the attention of the Secretary of Defense. I mean,

509
00:30:04,240 --> 00:30:06,600
Speaker 1: the Secretary of Defense is supposed to be focused on

510
00:30:06,640 --> 00:30:09,480
Speaker 1: whether we need another aircraft carrier or not, or what

511
00:30:09,520 --> 00:30:12,360
Speaker 1: the right you know, alignment of troops is in the

512
00:30:12,360 --> 00:30:15,880
Speaker 1: Middle East, or how much money to spend on future

513
00:30:15,920 --> 00:30:18,960
Speaker 1: warfare versus you know, updating the M one A one

514
00:30:19,040 --> 00:30:23,760
Speaker 1: tank force. We're talking about huge responsibilities that are actually

515
00:30:24,360 --> 00:30:28,240
Speaker 1: at the center of tomorrow's war if tomorrow's war comes.

516
00:30:28,280 --> 00:30:31,160
Speaker 1: The Dodge school seldom got the attention of the Secretary

517
00:30:31,160 --> 00:30:34,920
Speaker 1: of Defense. This is unusual, and it's part of an

518
00:30:35,040 --> 00:30:40,560
Speaker 1: unfortunate pattern of attacking DEI blindly without even understanding what

519
00:30:40,720 --> 00:30:45,360
Speaker 1: DEI is. It's related to the Secretary of Defense's immediate

520
00:30:45,400 --> 00:30:50,120
Speaker 1: blaming of DEI on the military and civilian aircraft collision

521
00:30:50,160 --> 00:30:53,800
Speaker 1: outside of you know, outside of Washington Reagan Airport, which

522
00:30:53,840 --> 00:30:59,000
Speaker 1: was absolutely unethical to do because those investigations take months

523
00:30:59,080 --> 00:31:02,360
Speaker 1: to run down. But it's reminiscent of when the USS

524
00:31:02,400 --> 00:31:06,240
Speaker 1: Iowa's turret exploded in the late eighties and the naval

525
00:31:06,360 --> 00:31:08,920
Speaker 1: leadership the civilian leadership said, oh, it must be the

526
00:31:08,960 --> 00:31:13,200
Speaker 1: gay sailor who committed suicide but accidentally killed forty seven sailors,

527
00:31:13,200 --> 00:31:16,640
Speaker 1: when in effect, all it was was political opportunism. It

528
00:31:16,680 --> 00:31:19,160
Speaker 1: was a worn out gun tour, it dating the World

529
00:31:19,160 --> 00:31:24,280
Speaker 1: War Two, but it's political opportunism at its worst. It's

530
00:31:24,400 --> 00:31:29,200
Speaker 1: like removing alleged DEI material from the curriculum at West Point,

531
00:31:29,200 --> 00:31:32,400
Speaker 1: the Air Force Academy, the Naval Academy, or even the

532
00:31:32,440 --> 00:31:36,760
Speaker 1: military senior colleges like War College and Command and Staff

533
00:31:36,800 --> 00:31:40,840
Speaker 1: colleges that each service branch has, and these schools, all

534
00:31:40,960 --> 00:31:44,640
Speaker 1: of them, every single one of them, exists for the

535
00:31:44,640 --> 00:31:47,520
Speaker 1: betterment of the military community so that we don't have

536
00:31:47,600 --> 00:31:52,360
Speaker 1: another Vietnam. It exists for cultural competency. And that's why

537
00:31:52,400 --> 00:31:55,120
Speaker 1: I say we're turning our minds and hearts back to

538
00:31:55,200 --> 00:31:58,640
Speaker 1: a pre Vietnam War era, which I think ultimately will

539
00:31:58,640 --> 00:32:00,800
Speaker 1: be ruin US the military.

540
00:32:01,560 --> 00:32:04,720
Speaker 2: Well, hopefully things will change in the future. Thanks so much,

541
00:32:04,840 --> 00:32:08,720
Speaker 2: josh That's Professor Joshua Kastenberg at the University of New

542
00:32:08,760 --> 00:32:11,520
Speaker 2: Mexico Law School. And that's it for this edition of

543
00:32:11,520 --> 00:32:14,160
Speaker 2: The Bloomberg Law Show. Remember you can always get the

544
00:32:14,240 --> 00:32:17,480
Speaker 2: latest legal news on our Bloomberg Law podcasts. You can

545
00:32:17,480 --> 00:32:21,720
Speaker 2: find them on Apple Podcasts, Spotify, and at www dot

546
00:32:21,760 --> 00:32:25,920
Speaker 2: bloomberg dot com slash podcast Slash Law, And remember to

547
00:32:25,960 --> 00:32:29,040
Speaker 2: tune into The Bloomberg Law Show every weeknight at ten

548
00:32:29,080 --> 00:32:32,840
Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening

549
00:32:32,920 --> 00:32:33,600
Speaker 2: to Bloomberg