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

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Speaker 1: President Trump plunged the country into chaos, a cruel, nasty,

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Speaker 1: and illegal chaos.

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Speaker 2: Senate Minority Leader Chuck Schumer said that after President Trump's

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Speaker 2: Monday order freezing all federal grants, loans, and financial assistants,

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Speaker 2: his office was flooded with calls from panic people about

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Speaker 2: programs that support everything from nonprofits to school boards to

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Speaker 2: police departments. The blanket freeze caused mass confusion and chaos

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Speaker 2: across the country, with the potential to disrupt a massive

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Speaker 2: segment of federal spending that's relied on by local government, schools,

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Speaker 2: and police departments. New York Attorney General Letitia James was

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Speaker 2: one of twenty two Democratic state ags who sued the

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Speaker 2: Trump administration on Tuesday.

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Speaker 3: Not only does this administration's new policy for people at risk,

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Speaker 3: but it is plainly unconstitutional. The president does not get

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Speaker 3: to decide which laws to enforce and for whom.

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Speaker 2: That same day, a federal judge in Washington temporarily halted

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Speaker 2: the order, and then, in the most significant setback and

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Speaker 2: the biggest about face to date of the president's ten

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Speaker 2: day old term, the White House rescinded the order today.

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Speaker 2: Joining me is Alex Hontos, a partner at Dorsey and

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Speaker 2: Whitney and a former Justice Department attorney. Alex how broad

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Speaker 2: was the scope of this order?

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Speaker 4: So the omb order issued on Monday by the administration

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Speaker 4: was exceptionally brought, covering all forms of federal assistance, with

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Speaker 4: the exception of a few carve outs in the order,

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Speaker 4: so Medicare was carved out, for example, but notably Medicaid

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Speaker 4: was not mentioned. So it covered on its face trillions

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Speaker 4: of dollars of federal spending. That's about as broad as

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Speaker 4: you can get.

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Speaker 2: In his first administration, Trump issued a Muslim travel ban

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Speaker 2: and it took three tries, three different versions before it

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Speaker 2: got approval from the Supreme Court. Is there a way

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Speaker 2: for him to rewrite this and try again.

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Speaker 4: Well, I certainly expect that this will not be the

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Speaker 4: end of the administration's efforts to root out programs that

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Speaker 4: it believes, you know, should not be in federal spending policies, procedures,

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Speaker 4: that kind of thing. So I think they're going to

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Speaker 4: try again. But what is striking about this is instead

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Speaker 4: of targeting specific programs, they did a blanket pause and

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Speaker 4: you know, normally you would do a census of specific programs,

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Speaker 4: first identify programs that were perhaps against your policy objectives,

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Speaker 4: and then work those programs. And that's the angle that

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Speaker 4: they came at this from. They might change that, though,

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Speaker 4: and we might see that next, and in fact that's

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Speaker 4: probably what is coming next.

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Speaker 2: So then they would actually have to do some work

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Speaker 2: to figure that out.

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Speaker 4: Yes, that's right. So there is going to need to

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Speaker 4: be a census, if you will, within the federal government

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Speaker 4: for kind of a cataloging of the programs. And boy,

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Speaker 4: are there a lot of them out there. Thousands of

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Speaker 4: programs and offices and grants and contracts and things of

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Speaker 4: that nature that will need to be assessed, analyzed and

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Speaker 4: then sort of reviewed for whether they're compliant or not

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Speaker 4: compliant with the administration's objectives. So it's a herculean effort.

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Speaker 2: So it will take a while.

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Speaker 4: It'll take a while.

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Speaker 1: That's right.

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Speaker 2: Let's talk about the order itself and the problem with it.

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Speaker 2: The legislative branch is supposed to be the one that

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Speaker 2: decides where the money goes. Is that the basic problem.

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Speaker 4: That's one of the problems.

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Speaker 1: That's right.

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Speaker 4: So under the constitution, the power of the purse. That

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Speaker 4: is the legislative branch's purview, not the executive branch. The

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Speaker 4: executive branch is supposed to execute the laws. Congress gets

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Speaker 4: to dictate where funds are appropriated and stand up certain programs.

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Speaker 4: So that is one of the fundamental challenges that the

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Speaker 4: administration will have if it's trying to defend this kind

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Speaker 4: of behavior in court. Courts are going to be asking

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Speaker 4: questions about separation of powers and authority. There's also you know,

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Speaker 4: lawyers in MySpace this week had a dust off the

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Speaker 4: Empowerment Control Act of nineteen seventy four and kind of

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Speaker 4: go back to the Nixon era, and you know, look

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Speaker 4: through the lens of whether the president has an authority

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Speaker 4: issue when it comes to spending money that Congress has

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Speaker 4: directed be spent, and certainly the legislative branch. Congress believes

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Speaker 4: that when it says to spend money, the president has

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Speaker 4: to do that. And so there are a whole host constitutional,

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Speaker 4: statutory of potential hurdles that the administration is really going

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Speaker 4: to have to get around to effectuate this policy. And

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Speaker 4: those are not even taking into account the political consequences

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Speaker 4: of some of these actions. And you saw that occur

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Speaker 4: shortly after the Omb memo was issued, when red state

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Speaker 4: governors Blue state governors, we're both howling about what this

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Speaker 4: might mean for state budgets. You know, large for profit

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Speaker 4: clients of mine were very concerned about what this might

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Speaker 4: mean for them. Higher education and university clients of mine

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Speaker 4: were equally concerned. So you actually had a broad base

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Speaker 4: of the American economy that really was concerned. So you

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Speaker 4: have multiple challenges if you're the administration. One is a

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Speaker 4: straight legal challenge and that is a fraud area and

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Speaker 4: be played out in the courts principally. But the other

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Speaker 4: is a policy and kind of political issue related to this.

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Speaker 4: And I think they bid off more than they can

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Speaker 4: chew here in rolling this out in the way they did,

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Speaker 4: because they certainly galvanized opposition in an incredibly fast way.

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Speaker 4: I'm not so sure that the honeymoon for this administration

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Speaker 4: is over, but it might be, and this might be

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Speaker 4: the beginning of the end, at least of the honeymoon

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Speaker 4: for the administration.

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Speaker 2: How much discretion does a president have not to spend

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Speaker 2: the money that's been appropriated by Congress? I mean, is

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Speaker 2: that a settled issue?

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Speaker 4: Yeah, So it depends the lawyer's favorite answer, right, So,

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Speaker 4: certain programs direct the expenditure of funds. If a statute

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Speaker 4: directs the expenditure of funds, the president's ability to not

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Speaker 4: spend those funds is significantly constrained. You know, there can

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Speaker 4: be some timing issues and that kind of thing where

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Speaker 4: the president might have some flex ability, but if the

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Speaker 4: president is directed to spend, that's weak round for the

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Speaker 4: president to try to defend and say I don't have

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Speaker 4: to spend now. In other types of programs, where an

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Speaker 4: appropriation is made, say to an agency the Defense Department,

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Speaker 4: to further some general objective or innovation or something like that,

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Speaker 4: where the Congress has not been crystal clear about who

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Speaker 4: and what and why the expenditures will go out, the

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Speaker 4: executive might claim to have more authority to have discretion

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Speaker 4: to choose who gets those grant awards, for example, or

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Speaker 4: contract awards, but there are still regulatory overlays that would

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Speaker 4: apply even in that context as well. So while there

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Speaker 4: is discretion at some level, it's cabined in many ways

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Speaker 4: by statutes of general applicability. So on the government contract side,

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Speaker 4: there's a Competition and Contracting Act where basically competition for

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Speaker 4: government contract towards is the general rule. Another example is

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Speaker 4: the Administrative Procedures Act, where if the agency is going

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Speaker 4: to do something and it falls within the purview of

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Speaker 4: the APA, it has to do it in a certain way.

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Speaker 1: Right.

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Speaker 4: So you have these general statutes that may confine presidential

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Speaker 4: executive discretion. You have the specific statutes that may develop

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Speaker 4: or create a particular program that would have limitations on

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Speaker 4: presidential discretion. And you have both of those things that

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Speaker 4: will be I think used by certainly adversaries of the

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Speaker 4: administration's attempts, those affected by the administrations attempts to change

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Speaker 4: grants or cancel grants. Those things, they will be leveraged,

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Speaker 4: and there will be arguments in court about whether, in

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Speaker 4: a given context or the issuance of an memo, perhaps

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Speaker 4: the president overstepped.

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Speaker 2: Other presidents have tried to get around this very issue before,

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Speaker 2: have any of them been successful.

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Speaker 4: I don't know that any other president has done what

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Speaker 4: the president tried to do this week. And the idea

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Speaker 4: of sort of stopping everything, which is a bit overblown June,

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Speaker 4: but not that much overblown that I can't think of

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Speaker 4: a time when another president has tried to do that.

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Speaker 4: I do think there's some interesting parallels, and I want to,

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Speaker 4: you know, think about a little bit during the Biden administration.

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Speaker 4: The Biden administration somewhat famously tried to use federal contracts

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Speaker 4: as a vehicle for policy objectives. So, you know, very

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Speaker 4: common example is the federal contractor vaccine mandate, where the

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Speaker 4: Biden administration was trying to require that anyone who was

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Speaker 4: a federal contractor had to have a vaccinated workforce. Another

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Speaker 4: example that President Biden tried was the government contractor minimum wage. Now,

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Speaker 4: both of those efforts were attacked in the courts by

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Speaker 4: constituencies affected contractors' states that basically said the president lacked

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Speaker 4: the authority to take those steps. And there's a bit

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Speaker 4: of a mixed bag, but by and large, the courts

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Speaker 4: agreed with those challenges and said that President Biden didn't

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Speaker 4: have the authority to use sort of contractual terms with

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Speaker 4: governmental counterparties contractors for example, to implement those policy objectives.

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Speaker 4: That existing law did not allow him to go that far.

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Speaker 4: And so I think you're going to see a lot

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Speaker 4: of that authority that was used against President Biden's initiatives,

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Speaker 4: or at least some of his initiatives sort to turn

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Speaker 4: back around now as a basis to challenge this and

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Speaker 4: future efforts by the Trump administration to sort of do

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Speaker 4: the same thing but just to effectuate different policies.

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Speaker 2: During his campaign, he vowed to abolish the Empowerment law altogether.

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Speaker 2: So if he was able to do that, let's just

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Speaker 2: say he's able to do that, he's able to get

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Speaker 2: the votes. Does that eliminate his problems here or not?

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Speaker 4: It doesn't eliminate his problems. He's got two problems on that.

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Speaker 4: One is the statute itself, the empowerment Statute itself, So

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Speaker 4: he would have to get that repealed, which would require

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Speaker 4: congressional action more substantially changed. So that's that's a big if.

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Speaker 4: But even if that could happen June, you still have

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Speaker 4: and you will have deployed constitutional arguments that you know, fundamentally,

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Speaker 4: the power of the purse is a core legislative function,

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Speaker 4: and the idea that the legislature appropriates funds and you know,

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Speaker 4: decides how much is spent in the United States, that's

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Speaker 4: pretty clear, I think from the text of the Constitution

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Speaker 4: that's what that's about. And if it's possible for a

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Speaker 4: president to accept the appropriation from Congress and just not

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Speaker 4: spend it at all. That seems to significantly erode the

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Speaker 4: constitutional protection afforded by the spending costs, and so I

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Speaker 4: think there will be challenges to this kind of regardless.

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Speaker 4: I think you're going to see challenges raising statutory and

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Speaker 4: constitutional challenges to the president's authority if that is something

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Speaker 4: that he presses.

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Speaker 2: Thanks Alex. That's Alex Hontos of Dorsey and Whitney. Coming

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Speaker 2: up next, the impact of Trump's executive order recognizing only

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Speaker 2: two sexes. I'm June Gross when you're listening to Bloomberg.

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Speaker 3: It will henceforth be the official policy of the United

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Speaker 3: States government that there are only two genders, male and female.

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Speaker 2: President Trump's order on day one directing the federal government

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Speaker 2: to recognize only two sexes is bound to draw legal challenges,

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Speaker 2: clashing with recent interpretations of a US Supreme Court case

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Speaker 2: that cemented anti bias protections for LGBTQ plus workers. The

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Speaker 2: boss Doc v. Clayton County decision was the foundation for

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Speaker 2: agency actions like the eeoc's Harassment Guidance addressing gender identity protections,

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Speaker 2: which advises employers against misgendering and barring employees from using

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Speaker 2: the bathrooms fitting the gender with which they identify. Trump's

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Speaker 2: order addressing so called gender ideology extremism is part of

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Speaker 2: his broader push to roll back Biden era diversity, equity

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Speaker 2: and inclusion policies. Joining me is David Lopez, a professor

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Speaker 2: at Rutger's Law School and the former General Counsel for

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Speaker 2: the EEOC under President Barack Obama. David, what does this

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Speaker 2: order on only two sexes actually do? I mean, what

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Speaker 2: does it direct the federal government to do?

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Speaker 1: Well? I mean, first of all, the executive order is

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Speaker 1: to status to the executive Orders, so it can't change

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Speaker 1: existing law and it can't change you know, the boss

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Speaker 1: DOOC decision. But it basically requires that the federal government

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Speaker 1: act consistently with the order in terms of recognizing only

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Speaker 1: two sexes and really erasing you know, transgender and other

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Speaker 1: non binary identities. Right. And so that has, in turn,

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Speaker 1: I think, cascaded through the federal government in terms of

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Speaker 1: their actions in terms of you know, even allowing individuals

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Speaker 1: to identify their pronouns in their message signature. And then

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Speaker 1: I think ornatency like EOC, I think probably more damaging

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Speaker 1: is that it really places and center as a priority,

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Speaker 1: you know, to address issues related to the executive order,

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Speaker 1: and of course they cook at all in the protection

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Speaker 1: of women. But you know, basically the first statement of

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Speaker 1: the acting share of the it was, you know, basically

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Speaker 1: identified you know, a couple priorities sort of anti dei

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Speaker 1: and then sort of this issue of women being compelled

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Speaker 1: I guess to go to restrooms with transgender individuals. And

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Speaker 1: you know, certainly those are not anywhere near the top

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Speaker 1: of the type of discrimination that POLKSI out in the

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Speaker 1: field offices. It's just an ideologically driven agenda, so that

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Speaker 1: has actual, cansible material consequences.

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Speaker 2: So in the Biden administration policies, did they protect workers

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Speaker 2: from misgendering and allow them to use bathrooms that aligned

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Speaker 2: with their gender identity?

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Speaker 1: I mean, I think what's important remember is that, you know,

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Speaker 1: Boston came out a few years ago and Boss Stock

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Speaker 1: expressly ruled that the prohibition against sex discrimination embraced sexual

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Speaker 1: orientation and gender identity, and that the courts have been

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Speaker 1: sort of working that through. But I think in the interim,

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Speaker 1: I think it's important to remember that the Eleventh Circuit,

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Speaker 1: which is one of the most conservative circuits, you know,

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Speaker 1: ruled that misgendering someone deliberately over time does constitute harassment

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Speaker 1: under Title seven. And then the Tenth Circuit upheld a

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Speaker 1: jury verdict, a very large story verdict and ruling by

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Speaker 1: during the Western District of Oklahoma and not necessarily regarded

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Speaker 1: as you know, the most liberal part of the country

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Speaker 1: on behalf of a transgender professor who is then my tenure.

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Speaker 1: And so what that illustrates to me is that when

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Speaker 1: people look at the law and they look at the

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Speaker 1: fact and the injustices that people are suffering based on

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Speaker 1: gender identity, both the law and factor on the site.

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Speaker 1: So what the Biden administration did is, you know, when

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Speaker 1: it issues guidances, I mean they don't invent stuff, right,

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Speaker 1: They basically what the policymakers do is they look at, hey,

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Speaker 1: what if the courts decided, what are the issues out there?

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Speaker 1: What's the logical reading of the US Supreme Court's decision

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Speaker 1: and stock And that's what they include in the guidances. Right. So, again,

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Speaker 1: an administrative agency like the e SC when it issues

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Speaker 1: a guidance or issue to technical assistance, they can't make

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Speaker 1: the law. I mean, they don't make the law. They

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Speaker 1: give basically their best, you know, the agency's best interpretation

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Speaker 1: of the law based on what the courts are doing, right,

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Speaker 1: And they do that so that employers understand their responsibilities

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Speaker 1: and employees understand the rights and employee wants to contest it.

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Speaker 1: They do all the time, you know. Unfortunately, the guidances

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Speaker 1: aren't always deferred to by the courts, and sometimes the

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Speaker 1: courts you know, go against them completely right, But what

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Speaker 1: the EESC is trying to do is it's trying to

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Speaker 1: provide a mechanism for the good faith employers who don't

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Speaker 1: want to discriminate.

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Speaker 2: The Biden administration. EEOC policies. Do they test the boundaries

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Speaker 2: of the law or were they clearly within what the

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Speaker 2: courts have said?

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Speaker 1: Well, they're completely consistent with what the courts have sat

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Speaker 1: up right, And I think what's happening now is that

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Speaker 1: this whole anti transgender movement they're looking for, you know,

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Speaker 1: kind of carveouts to argue that what the Supreme Court

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Speaker 1: said and Boss Stock they really did not mean. I mean,

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Speaker 1: Boss Stock is a decision that related directly to gender identity.

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Speaker 1: The gender identity case was actually an EEOC case, the

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Speaker 1: Harris Funier Holmes case, and there's really no language in

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Speaker 1: there that kind of supports a carve out, and so

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Speaker 1: what's happening instead is it's sort of like this, you know,

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Speaker 1: political movement that is funded by millions and millions of dollars,

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Speaker 1: and you saw it first in the campaign, and you

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Speaker 1: continue to see it that you know, really kind of

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Speaker 1: attacks at its core. I think what the Supreme Court did,

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Speaker 1: and it's really really important to remember, really important to

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Speaker 1: remember that, you know, the EOC participated as a meekus

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Speaker 1: and several of the cases that addressed issues of sexual

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Speaker 1: orientation and gender identity. As I mentioned, a gender identity

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Speaker 1: case that went to the Supreme Court was the Harris

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Speaker 1: Funeral Homes case. Right, So that was one of the

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Speaker 1: three that were part of the sort of the Boss

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Speaker 1: Doc trilogy. And this happened at the beginning of the

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Speaker 1: first Trump administration. The first Trump administration would not defend

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Speaker 1: the e SC position and actually switch sides at the

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Speaker 1: Supreme Court and actually ended up on the losing side

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Speaker 1: of the case. And I would also say, you know,

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Speaker 1: frankly on the losing side of history and morality. Right.

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Speaker 1: So this is part of a consistent track record, and

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Speaker 1: you know, right now what they're trying to do is

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Speaker 1: by executive FIAT try to you know, almost like gaslight

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Speaker 1: people and are thinking that the law is when it's not.

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Speaker 1: But you see these decisions. You see the Supreme Court,

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Speaker 1: you see the Eleventh Circuit, you see the tenth Circuit

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Speaker 1: that goes really in the opposite direction.

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Speaker 2: The EC let's say, issues guidance under the Trump administration,

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Speaker 2: will the guidance itself be challenged in court?

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Speaker 1: Well, I mean, I think you said, you know the guidances,

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Speaker 1: and you know, guidance can mean different things. Guidance could

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Speaker 1: be something, you know, actually a policy guidance that's issued

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Speaker 1: by the Commission after a vote, or it could be

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Speaker 1: you know, sort of a much more modest technical assistant

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Speaker 1: that is issued by its Office of Legal Counsel. And

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Speaker 1: so I think certainly the Biden administration you saw, you know,

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Speaker 1: really numerous challenges to both the harassment guidance but also

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Speaker 1: to the regulations under the Pregnancy Workers Fairness Act. So

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Speaker 1: it's not uncommon the challenge of guidance in the courts.

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Speaker 1: I mean, I think a lot of people have to

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Speaker 1: ask about what the ultimate purpose is and the ultimate

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Speaker 1: endgame in terms of challenging the guidances, because what's going

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Speaker 1: to happen is that the courts are going to just

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Speaker 1: you know, look at the statute with the case on

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Speaker 1: make their rollings based on that.

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Speaker 2: At the end of the day, the Department of Justice

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Speaker 2: is already backing off its defense of the EEOC in

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Speaker 2: a lawsuit by seventeen republic and led States over its

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Speaker 2: twenty twenty four workplace harassment guidance. So that's the first

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Speaker 2: example I guess of what the Trump administration intends to do.

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Speaker 1: Yeah, I mean, I think that's also consistent with the

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Speaker 1: executive order. So you know, on one hand, an executive

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Speaker 1: order cannot make law, but an executive order can basically

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Speaker 1: direct the conduct of I would say cabinet level agencies

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Speaker 1: like the EOC is kind of falling in line on

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Speaker 1: this or not the agency, but the acting chair of

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Speaker 1: the EOC is falling in line and this also, And

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Speaker 1: I think that's what you can expect, right. I think

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Speaker 1: that it's basically almost like throwing in the towel on

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Speaker 1: this guidance. But the interesting thing is that given what

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Speaker 1: I regard as unlawful terminations of Commissioners Charlotte Burrows and

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Speaker 1: Jocelyn Samuels last night, BOC has left out quorum and

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Speaker 1: that guidance is still good guidance, right, and so we'll

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Speaker 1: see how this plays out, right, But I think what's

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Speaker 1: really important to remember again is that the Supreme Court

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Speaker 1: has ruled. So you know, a lot of this sort

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Speaker 1: of satellite litigation around the guidance center around the EEC

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Speaker 1: trying to give its best reading of the Supreme Court's

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Speaker 1: decision and other court decisions across the country. You know,

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Speaker 1: at the end of the day, if the EEC has

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Speaker 1: turned into a zombie agency, or if the you know,

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Speaker 1: Department of Justice Civil Rights Division has said that they're

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Speaker 1: pausing all litigation and investigations, you know, you have a

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Speaker 1: private right of action, You have the private bar out there.

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Speaker 1: You know, people are still bringing cases under this, and

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Speaker 1: I have faith in our federal courts. You know, I

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Speaker 1: tell my students, it's like, you're not going to love

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Speaker 1: all of these decisions, and you're gonna hate some of them,

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Speaker 1: and some of them are going to just stly piss

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Speaker 1: you off, right, And you know there's some judges that

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Speaker 1: will often almost rule like they work for the administration.

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Speaker 1: But I just think you only have to look at

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Speaker 1: what the Elements Kit did and what the ten Circuit did,

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Speaker 1: and about regular folks coming out in Oklahoma here in

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Speaker 1: the fact and saying, hey, what happened to this infessor?

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Speaker 1: That's an injustice And not only is an injustice if

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Speaker 1: you look at the jury verdict, they considered it an

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Speaker 1: outrageous injustice. Right. So, I think when people hear the

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Speaker 1: stories and hear the narratives instead of you know, get

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Speaker 1: kind of caught up in the gas lighting and the

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Speaker 1: sort of right wing media bubble. You know. I think

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Speaker 1: both the courts and the people respond consistent below and

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Speaker 1: consistent with I think humanity.

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Speaker 2: Let me ask you one thing about Boss Stock. And

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Speaker 2: this is a Supreme Court that has overturned precedent. Suppose

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Speaker 2: a case involving misgendering or the bathroom use, whatever comes

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Speaker 2: before this Supreme Court. It's a different Supreme Court than

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Speaker 2: heard the boss Stock case. Will the boss Stock case

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Speaker 2: still be recognized as precedent.

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Speaker 1: I think they're going to firm Boss Stock. You know,

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Speaker 1: I've been wrong before. I err on the side of

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Speaker 1: last half full, but I think boss Stock is going

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Speaker 1: to be okay. I mean, I think there may be

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Speaker 1: some issues that come up with respect to religious exercise,

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Speaker 1: But if you remember in the Harris Spunier Holmes case,

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Speaker 1: they raised the Religious Freedom Restoration Act defense and they

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Speaker 1: were basically smacked down by the Sixth Circuit. And I

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Speaker 1: think they recognized that this was kind of a road

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Speaker 1: to nowhere, and they didn't raise it in the Supreme Court.

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Speaker 1: And so you know, there certainly will be litigation in

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Speaker 1: that area. But in terms of coming back and reversing

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Speaker 1: Boss Stock, I'm hoping it doesn't happen. I actually haven't

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Speaker 1: heard of being a fairy s effort to do that,

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Speaker 1: but you do hear about, you know, these sort of

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Speaker 1: carveouts with respect to restroom usage or to the exercise

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Speaker 1: of the employer's religious liberty. So I think there's certainly

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Speaker 1: been more litigation, but I with hope the boss Stock

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Speaker 1: is said Boss Stock. Yet you also have to understand

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Speaker 1: the politics here is really the politics of penching down

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Speaker 1: because the transgender community is not particularly a large voting block,

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Speaker 1: and they really depend on really raising their voices, but

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Speaker 1: on the allyship of people of good conscience. That certainly

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Speaker 1: Boss Stock was a historical decision with respect to sexual orientation,

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Speaker 1: and you know, it was really an effort to kind

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Speaker 1: of put the court on the right side of history.

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Speaker 1: I don't see boss Stock being reversed. I just think

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Speaker 1: that it's an extremely popular decision.

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Speaker 2: Stay with me, David. Coming up next, Trump's unprecedented firing

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Speaker 2: of two EEOC commissioners. You're listening to Bloomberg. President Donald

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Speaker 2: Trump has fired two Democratic Equal Employment Opportunity Commission members

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Speaker 2: in an unprecedented move that undercuts the Democrats voting majority

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Speaker 2: on the board. It leaves two seats on the five

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Speaker 2: member civil rights panel to be filed by nominations from

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Speaker 2: the new administration. The firings contradict the historical precedent of

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Speaker 2: leaving commissioners in place at the independent agency. Both have

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Speaker 2: said they'll explore their legal options. I've been talking to

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Speaker 2: David Lopez, a professor at Rutgers Law School and a

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Speaker 2: former EEOC General counsel. David, firing the commissioners is unprecedented,

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Speaker 2: But is it illegal?

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Speaker 1: I suspect that the system will be litigated, and I

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Speaker 1: certainly believe that it's illegal. I worked with the commission,

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Speaker 1: you know, for several years, and you know the Commission

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Speaker 1: was structured by Congress in nineteen sixty four as an

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Speaker 1: independent agency, you know, deliberately set apart from the different

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Speaker 1: cabinet agencies and deliberately set apart from the sort of

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Speaker 1: the whims of a particular executive's political moment, right, And

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Speaker 1: it was structured as a bipartisan agency so it would

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Speaker 1: have diverse exchange of viewpoints, and the commissioners were given

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Speaker 1: set terms because it was recognized that that was important

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Speaker 1: to maintain the independence of judgment of the agency. You know,

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Speaker 1: this is sort of kind of an overtly political move

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Speaker 1: against two I think, you know, extremely hard working, intelligent,

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Speaker 1: well known civil rights advocates who are basically doing their job, right.

437
00:27:07,920 --> 00:27:10,359
Speaker 1: I mean, they were basically doing their job trying to

438
00:27:10,560 --> 00:27:15,720
Speaker 1: educate the country about discrimination and opposing discriminatory practice. And

439
00:27:15,760 --> 00:27:18,679
Speaker 1: so many people have said in the employment to me, like,

440
00:27:18,760 --> 00:27:21,000
Speaker 1: if this were a private sector case, this would be

441
00:27:21,040 --> 00:27:24,400
Speaker 1: like a slam dunk, because you know, clearly the motivation

442
00:27:24,960 --> 00:27:29,240
Speaker 1: here was that they were opposing discriminatory practices. But I think,

443
00:27:29,480 --> 00:27:32,000
Speaker 1: you know, sort of separately, the structure of the agencies

444
00:27:32,240 --> 00:27:36,640
Speaker 1: is one of independents that I actually regard this as illegal,

445
00:27:36,920 --> 00:27:38,840
Speaker 1: and you know, if it's litigated, we'll see what the

446
00:27:38,840 --> 00:27:41,040
Speaker 1: court say. There are a couple other things though that

447
00:27:41,040 --> 00:27:44,120
Speaker 1: our importanner mentioned one is if it's tied up litigation,

448
00:27:44,240 --> 00:27:46,160
Speaker 1: what does that mean about a quorum for the Commission.

449
00:27:46,359 --> 00:27:50,000
Speaker 1: Without a quorum, it really fobbles the ability agency to

450
00:27:50,040 --> 00:27:52,879
Speaker 1: do its work in all areas, right in terms of

451
00:27:53,200 --> 00:27:56,920
Speaker 1: approving the litigation, in terms of coming up to the

452
00:27:56,920 --> 00:28:01,320
Speaker 1: internal policies, in terms of addressing you know, complacent discrimination

453
00:28:01,400 --> 00:28:03,800
Speaker 1: in the federal sector, it's really bad. And when you

454
00:28:03,840 --> 00:28:06,639
Speaker 1: couple that with, you know, I think the hiring freeze,

455
00:28:06,960 --> 00:28:09,479
Speaker 1: and couple that with what I found to be an

456
00:28:09,520 --> 00:28:14,600
Speaker 1: extremely curious first statement by the acting chair which seemed

457
00:28:14,600 --> 00:28:18,760
Speaker 1: to almost like mimic wholesale the Trump Executive Order and

458
00:28:18,960 --> 00:28:21,439
Speaker 1: thus suggesting like sort of an abandonment of like the

459
00:28:21,480 --> 00:28:24,359
Speaker 1: independence of the agency. You know, I think that there's

460
00:28:24,359 --> 00:28:25,200
Speaker 1: perilous times.

461
00:28:25,720 --> 00:28:29,679
Speaker 2: I mean, is there really bipartisanship at the agency?

462
00:28:30,480 --> 00:28:32,480
Speaker 1: I will say, And I just think I really think

463
00:28:32,520 --> 00:28:34,520
Speaker 1: it's important for your listeners to know, and I think

464
00:28:34,520 --> 00:28:39,360
Speaker 1: the listeners do know this is that the whole bipartisanship

465
00:28:39,560 --> 00:28:42,440
Speaker 1: and independence of that agency is built into the culture

466
00:28:42,920 --> 00:28:47,600
Speaker 1: from top to bottom, and the agency has been through

467
00:28:47,600 --> 00:28:52,360
Speaker 1: democratic administrations and Republican administrations. But I think that you know,

468
00:28:52,440 --> 00:28:55,240
Speaker 1: certainly the commitment of the Civil Servant goes back to

469
00:28:55,280 --> 00:28:57,720
Speaker 1: sort of the original vision, and that is that civil

470
00:28:57,800 --> 00:29:01,760
Speaker 1: rights is not a partisan issue. It's an American issue.

471
00:29:01,920 --> 00:29:07,440
Speaker 1: And you know, I work under chairs and commissioners of

472
00:29:07,840 --> 00:29:11,600
Speaker 1: a different party, and I know that when Cary Domingus

473
00:29:11,640 --> 00:29:13,800
Speaker 1: came in, one of the first things she did is

474
00:29:13,840 --> 00:29:18,440
Speaker 1: she developed basically a program to address a backfast discrimination

475
00:29:18,560 --> 00:29:22,400
Speaker 1: against Arab and Muslims and people from South Asia. When

476
00:29:22,520 --> 00:29:26,840
Speaker 1: cher Naomier came in, she really made an effort to

477
00:29:26,880 --> 00:29:32,920
Speaker 1: reinvigorate the Commission's focus on anti black racism, you know,

478
00:29:32,960 --> 00:29:36,200
Speaker 1: the original you know, catalyst for the Commission. I worked

479
00:29:36,240 --> 00:29:40,240
Speaker 1: with Vicki Litnick for several years. We didn't agree on everything,

480
00:29:40,960 --> 00:29:45,160
Speaker 1: maybe fifty percent, but you know, she cared about civil rights,

481
00:29:45,360 --> 00:29:49,680
Speaker 1: she cared about the agency, and she certainly always you know,

482
00:29:49,960 --> 00:29:52,680
Speaker 1: I think carried out I think sort of the vision

483
00:29:52,800 --> 00:29:55,920
Speaker 1: of Congress in terms of the independence, in terms of

484
00:29:55,280 --> 00:29:59,400
Speaker 1: the bipartisan deliberation, and so, you know, I think with

485
00:29:59,440 --> 00:30:02,800
Speaker 1: the Trump and theministration, we find ourselves, you know, in

486
00:30:02,840 --> 00:30:06,400
Speaker 1: both administrations in a different world. That really, really I

487
00:30:06,400 --> 00:30:08,840
Speaker 1: think puts against the grain of what Congress is trying

488
00:30:08,880 --> 00:30:12,920
Speaker 1: to do with this agency as part of this like

489
00:30:13,080 --> 00:30:16,040
Speaker 1: landmarks where I checked and a scary time. But you

490
00:30:16,040 --> 00:30:17,840
Speaker 1: know people are ready. I mean people are going to

491
00:30:17,880 --> 00:30:21,080
Speaker 1: push back. I mean, I think that's that's to be expected.

492
00:30:21,200 --> 00:30:24,360
Speaker 1: And to sort of almost like as a first statement,

493
00:30:24,400 --> 00:30:28,440
Speaker 1: to say that you're abandoning or not to mention at

494
00:30:28,440 --> 00:30:32,800
Speaker 1: all the legacy and the sacrifice of people and the

495
00:30:32,840 --> 00:30:37,280
Speaker 1: original catalyst in the civil rights movement for this agency,

496
00:30:37,320 --> 00:30:39,880
Speaker 1: and to act like you know, I mean, to completely

497
00:30:39,880 --> 00:30:42,560
Speaker 1: ignore the issue of anti black racism as well as

498
00:30:42,600 --> 00:30:45,720
Speaker 1: gender and disability, of age and everything else. I certainly

499
00:30:45,760 --> 00:30:48,160
Speaker 1: can say that's not where the people I meet are.

500
00:30:48,640 --> 00:30:51,800
Speaker 1: I worked at that agency in many years, and you

501
00:30:51,840 --> 00:30:55,920
Speaker 1: know they value its commitment to disability, to fight disability

502
00:30:55,920 --> 00:30:59,320
Speaker 1: discrimination and age discrimination and sexual harassment and the work

503
00:30:59,360 --> 00:31:03,880
Speaker 1: on behalf of bleulnerable workers. This just takes us to a

504
00:31:03,880 --> 00:31:06,320
Speaker 1: completely very dystopian place that I do.

505
00:31:06,920 --> 00:31:11,040
Speaker 2: So what would be the possible legal defenses the commissioners

506
00:31:11,080 --> 00:31:15,160
Speaker 2: could raise to being fired by Trump? Is it precedent,

507
00:31:15,240 --> 00:31:16,040
Speaker 2: is it something else?

508
00:31:16,360 --> 00:31:19,800
Speaker 1: I think it's a language understandute itself. I mean, you

509
00:31:19,960 --> 00:31:22,000
Speaker 1: just have to look at the structure of the statute,

510
00:31:22,040 --> 00:31:25,360
Speaker 1: and there's been a lot of litigation on independent agencies,

511
00:31:25,400 --> 00:31:27,680
Speaker 1: but I think it's the structure of the statute itself.

512
00:31:28,400 --> 00:31:33,040
Speaker 2: The EOC is one of several federal agencies facing lawsuits

513
00:31:33,400 --> 00:31:38,280
Speaker 2: from challengers who argue that its leadership is unconstitutionally protected

514
00:31:38,280 --> 00:31:41,080
Speaker 2: from being fired at will. I mean, does it fit

515
00:31:41,160 --> 00:31:44,360
Speaker 2: in with other agencies or does it stand apart for

516
00:31:44,360 --> 00:31:44,920
Speaker 2: some reason?

517
00:31:45,120 --> 00:31:46,520
Speaker 1: Well, I mean you have to look at all the

518
00:31:46,560 --> 00:31:51,240
Speaker 1: agencies separately, and I know that there's ongoing litigation brought

519
00:31:51,280 --> 00:31:55,360
Speaker 1: by basically Elil Musk and Jeff Bezos against the Nationally

520
00:31:55,480 --> 00:32:00,560
Speaker 1: Relations Board. But all agencies function differently, right, agencies have

521
00:32:01,040 --> 00:32:05,320
Speaker 1: you know, I think more defined adjudicatory functions. The EESC

522
00:32:05,960 --> 00:32:08,760
Speaker 1: you know, will engage in some adjudication with respect to

523
00:32:09,480 --> 00:32:12,080
Speaker 1: it's usually delegated with respect in the federal sector, but

524
00:32:12,120 --> 00:32:15,600
Speaker 1: it's mostly what it does is mostly policy, right, And

525
00:32:15,680 --> 00:32:18,840
Speaker 1: I think what's important to remember here is that once

526
00:32:18,880 --> 00:32:21,959
Speaker 1: the litigation has approved, that General Council is independent authority

527
00:32:22,000 --> 00:32:24,400
Speaker 1: over that litigation. So, you know, the sort of silver

528
00:32:24,480 --> 00:32:27,400
Speaker 1: lining here is of litigation should go on. We'll see

529
00:32:27,520 --> 00:32:30,320
Speaker 1: that the litigation should go one that it already brought.

530
00:32:30,680 --> 00:32:32,760
Speaker 1: I mean, every agency is different, so all of these

531
00:32:32,800 --> 00:32:36,400
Speaker 1: cases that will come up or have been raised, will

532
00:32:36,960 --> 00:32:39,880
Speaker 1: you know, involve sort of a different, different factual scenario.

533
00:32:40,440 --> 00:32:43,360
Speaker 2: Do you think Trump is doing these firings just sort

534
00:32:43,400 --> 00:32:48,120
Speaker 2: of shock and awe or he really expects that this

535
00:32:48,240 --> 00:32:50,240
Speaker 2: will you know, that it will take that he'll be

536
00:32:50,280 --> 00:32:52,240
Speaker 2: able to keep these two commissioners off.

537
00:32:52,600 --> 00:32:54,320
Speaker 1: I mean, I think it's a little broader than that.

538
00:32:54,360 --> 00:32:56,640
Speaker 1: And I think you have to understand this in the

539
00:32:56,680 --> 00:33:00,280
Speaker 1: context of gain litigation in the Civil Rights Division and

540
00:33:00,360 --> 00:33:05,760
Speaker 1: in the context of basically getting core functions of the OFCCP.

541
00:33:06,480 --> 00:33:09,680
Speaker 1: Trump has never been accused of having a forward looking vision,

542
00:33:09,920 --> 00:33:12,320
Speaker 1: and this is a backward vision. I mean, this is

543
00:33:12,360 --> 00:33:15,080
Speaker 1: an effort to kind of roll roll the clock back,

544
00:33:15,640 --> 00:33:19,480
Speaker 1: you know, this vision of civil rights agencies or civil

545
00:33:19,520 --> 00:33:24,040
Speaker 1: rights itself as being infused with what you know, he

546
00:33:24,080 --> 00:33:28,520
Speaker 1: would probably regard as like identity politics, ignoring you know,

547
00:33:28,600 --> 00:33:32,360
Speaker 1: the fact that these civil rights agencies have, you know,

548
00:33:32,400 --> 00:33:36,000
Speaker 1: become an engine of opportunity for workers across the country

549
00:33:36,440 --> 00:33:39,480
Speaker 1: who have been you know, shut out because not only

550
00:33:39,520 --> 00:33:42,920
Speaker 1: of race, but also because of because of sex, because

551
00:33:42,960 --> 00:33:47,000
Speaker 1: of disability, because of age, and so in the effort

552
00:33:47,120 --> 00:33:52,080
Speaker 1: to chase this sort of ideological phantasma of what he

553
00:33:52,160 --> 00:33:55,320
Speaker 1: regards as sort of these you know, DEI programs, frount

554
00:33:55,360 --> 00:33:57,400
Speaker 1: am up or what he regards to sort of a

555
00:33:57,680 --> 00:34:01,040
Speaker 1: what does it call it, a radical gender ideolis. You know,

556
00:34:01,120 --> 00:34:03,560
Speaker 1: he's not only wrong on those issues, but he ended

557
00:34:03,640 --> 00:34:06,320
Speaker 1: up throwing out the baby with the bathwater. And I

558
00:34:06,360 --> 00:34:08,200
Speaker 1: think this is by design. I don't think this is

559
00:34:08,200 --> 00:34:10,319
Speaker 1: in the burden. I think this is by design, and

560
00:34:10,360 --> 00:34:13,040
Speaker 1: I think it's part of a broader, kind of long

561
00:34:13,120 --> 00:34:16,600
Speaker 1: term plan to really get government generally. So I don't

562
00:34:16,600 --> 00:34:19,279
Speaker 1: think this is accidental. I mean, this is it's politics,

563
00:34:19,280 --> 00:34:23,680
Speaker 1: because it's always politics, but it's also politics in service

564
00:34:23,760 --> 00:34:27,799
Speaker 1: of kind of a backward looking agenda. I don't know

565
00:34:27,840 --> 00:34:29,839
Speaker 1: what the exact year is. I don't know if it's

566
00:34:30,200 --> 00:34:33,120
Speaker 1: nineteen fifty five or if it's eighteen seventy six. All

567
00:34:33,120 --> 00:34:35,359
Speaker 1: this stuff he's doing, They got the civil service, which

568
00:34:35,440 --> 00:34:39,960
Speaker 1: is based on merit, and replace those folks with political appointees,

569
00:34:40,000 --> 00:34:42,680
Speaker 1: which by definition are not based on merit. You know,

570
00:34:42,719 --> 00:34:44,919
Speaker 1: seems to take us back to like eighteen seventy six,

571
00:34:45,280 --> 00:34:47,640
Speaker 1: which is also the year that reconstruction was gutted. So

572
00:34:48,040 --> 00:34:49,560
Speaker 1: I don't know if the goal is to take us

573
00:34:49,600 --> 00:34:52,120
Speaker 1: back to eighteen seventy six to the Gilded Age, or

574
00:34:52,160 --> 00:34:55,160
Speaker 1: that it takes us back to nineteen sixty three before

575
00:34:55,200 --> 00:34:57,520
Speaker 1: the Civil Rights Act was passed, or nineteen fifty five

576
00:34:57,560 --> 00:35:01,919
Speaker 1: with the Eisenhower deportations. But you know, everything that's being

577
00:35:01,960 --> 00:35:05,960
Speaker 1: done is about taking us backwards instead of addressing changing

578
00:35:06,000 --> 00:35:08,799
Speaker 1: the dynamic world and trying to ask ourselves, how can

579
00:35:08,840 --> 00:35:12,760
Speaker 1: we use everybody's talents, how can we bring everybody on board?

580
00:35:13,160 --> 00:35:14,719
Speaker 1: And so yeah, where to come?

581
00:35:15,000 --> 00:35:19,600
Speaker 2: We are only ten days into his second administration. Thanks

582
00:35:19,600 --> 00:35:21,960
Speaker 2: so much for being on the show. David. That's Professor

583
00:35:22,080 --> 00:35:25,520
Speaker 2: David Lopez of Rutgers Law School. And that's it for

584
00:35:25,560 --> 00:35:28,160
Speaker 2: this edition of The Bloomberg Law Show. Remember you can

585
00:35:28,200 --> 00:35:31,400
Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.

586
00:35:31,719 --> 00:35:34,759
Speaker 2: You can find them on Apple Podcasts, Spotify, and at

587
00:35:34,920 --> 00:35:39,960
Speaker 2: www dot Bloomberg dot com, slash podcast slash Law, And

588
00:35:40,000 --> 00:35:43,080
Speaker 2: remember to tune into The Bloomberg Law Show every weeknight

589
00:35:43,160 --> 00:35:46,600
Speaker 2: at ten pm Wall Street Time. I'm Junie Grosso and

590
00:35:46,680 --> 00:35:48,120
Speaker 2: you're listening to Bloomberg