WEBVTT - Justice Department Escalates Fight with Judiciary 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.640 --> 0:00:12.200 James Boseburg, the chief Judge of the US District Court 0:00:12.280 --> 0:00:15.040 for the District of Columbia, has been at the center 0:00:15.080 --> 0:00:17.640 of the Trump administration's. 0:00:16.800 --> 0:00:19.079 Efforts to deport accused. 0:00:18.600 --> 0:00:23.560 Venezuelan gang members under an eighteenth century wartime law, the 0:00:23.600 --> 0:00:26.720 Alien Enemies Act. He's also been at the center of 0:00:26.720 --> 0:00:31.480 the administration's attacks on the federal judiciary. Attorney General Pam 0:00:31.520 --> 0:00:34.560 Bondi has repeatedly criticized Boseburg. 0:00:35.159 --> 0:00:38.800 This judge has no right to ask those questions. You 0:00:38.880 --> 0:00:44.400 have one unelected federal judge trying to control foreign policies, 0:00:44.680 --> 0:00:48.000 trying to control the Alien Enemies Act, which they have 0:00:48.320 --> 0:00:53.199 no business presiding over. This judge had no right to 0:00:53.280 --> 0:00:57.120 do that. They're meddling in foreign affairs, They're meddling in 0:00:57.240 --> 0:01:00.280 our government. And the question should be why is a 0:01:00.320 --> 0:01:04.040 judge trying to protect terrorists who have invaded our country 0:01:04.480 --> 0:01:09.280 over American citizens, And then, of course Boseburg trying to 0:01:09.319 --> 0:01:13.040 control our foreign policy. These judges are out of control. 0:01:13.360 --> 0:01:16.240 We are going to fight back, and we are going 0:01:16.280 --> 0:01:16.680 to win. 0:01:17.120 --> 0:01:21.240 President Trump has called Boseberg a radical left lunatic of 0:01:21.280 --> 0:01:25.440 a judge, a troublemaker and agitator, even calling for his 0:01:25.520 --> 0:01:29.120 impeachment that led to a rear rebuke from Chief Justice 0:01:29.200 --> 0:01:33.400 John Roberts in March. Now the Justice Department is escalating 0:01:33.480 --> 0:01:38.200 its fight with Boseburg. It's filed an ethics complaint accusing 0:01:38.240 --> 0:01:42.200 the judge of misconduct. My guest is constitutional law expert 0:01:42.280 --> 0:01:46.240 David super, a professor at Georgetown Law. David, why has 0:01:46.280 --> 0:01:49.800 the administration been focusing so much on Judge Boseburg? 0:01:50.440 --> 0:01:54.960 Well cass are assigned to district judges randomly. Judge Boseberg 0:01:55.440 --> 0:02:00.520 have the misfortune of drawing the first case in involving 0:02:00.720 --> 0:02:05.320 the Trump administration's bizarre application of the Alien Enemies Act 0:02:05.720 --> 0:02:09.520 in a non wartime situation, and he did what any 0:02:09.600 --> 0:02:12.799 component judge would do, which is declared illegal. 0:02:13.360 --> 0:02:17.560 The complaint focuses on a March session of the Judicial 0:02:17.600 --> 0:02:21.359 Conference of the United States, a panel of judges led 0:02:21.400 --> 0:02:25.880 by Chief Justice John Roberts. The Justice Department accused Boseburg 0:02:26.000 --> 0:02:30.840 of raising quote concerns that the administration would disregard rulings 0:02:30.880 --> 0:02:35.280 of federal courts, leading to a constitutional crisis, and said 0:02:35.320 --> 0:02:38.320 his comments violated a section of the Code of Conduct 0:02:38.320 --> 0:02:41.639 for federal judges, which says that they should not make 0:02:41.720 --> 0:02:45.200 any public comment on the merits of a matter pending 0:02:45.400 --> 0:02:48.800 or impending in any court. If he did, in fact 0:02:48.840 --> 0:02:52.280 say this, is it at a bounds for a judge 0:02:52.400 --> 0:02:55.520 at a meeting that's supposed to be private to say 0:02:55.560 --> 0:02:56.320 something like that. 0:02:57.000 --> 0:03:00.520 No, of course not. This complaint doesn't pass the last test. 0:03:00.960 --> 0:03:03.600 It's not a public statement if the statement was only 0:03:03.720 --> 0:03:06.359 judges present. I would love to attend meetings to the 0:03:06.440 --> 0:03:09.519 Judicial Conference, but I'm never invited. I'm sure you would too. 0:03:09.760 --> 0:03:13.040 It's a private meeting. By this reasoning someone should bring 0:03:13.080 --> 0:03:18.320 a complaint against Justice Alito or indicating that he thought 0:03:18.639 --> 0:03:22.359 Rovy Wade should be overruled in circulating his draft opinion 0:03:22.400 --> 0:03:25.800 in Bobbs, which later became public, Judge Boseburg is not 0:03:25.880 --> 0:03:30.200 responsible for other people leaking memos about things he said 0:03:30.240 --> 0:03:33.880 in private meetings among judges any more than Justice Alito 0:03:34.320 --> 0:03:37.920 would be responsible for the leak of his draft opinion 0:03:37.960 --> 0:03:39.720 that he shared with other justices. 0:03:39.920 --> 0:03:43.240 In the complaint, the Justice Department also says that Judge 0:03:43.240 --> 0:03:46.760 Boseburg had no basis for saying that because the Trump 0:03:46.840 --> 0:03:51.279 administration has always complied with court orders, but the administration 0:03:51.520 --> 0:03:54.520 violated Boseberg's verbal order in this very case. 0:03:55.320 --> 0:04:00.000 Judge Bozberg's role on the judicial conferences as a representative 0:04:00.000 --> 0:04:03.240 fative of district judges in the District of Columbia, he 0:04:03.440 --> 0:04:08.440 is responsible for reporting what judges on his court are 0:04:08.560 --> 0:04:12.120 concerned about, and it would be at their election of 0:04:12.160 --> 0:04:15.400 his duty if he didn't report concerns that they had. 0:04:16.200 --> 0:04:20.560 Judges on his court had found the administration to be 0:04:20.640 --> 0:04:24.400 out of compliance with a number of court orders by 0:04:24.560 --> 0:04:29.960 administration officials, certainly including the Vice President, arguably including the President, 0:04:30.480 --> 0:04:35.360 had mused about whether they would honor court orders on 0:04:35.480 --> 0:04:40.679 various topics, even Supreme Court orders, certainly orders of district courts, 0:04:41.400 --> 0:04:45.000 and the question of how to deal with the administration 0:04:45.240 --> 0:04:49.039 violating court orders had already been up and down to 0:04:49.120 --> 0:04:52.640 the Supreme Court by that point. Obviously it was something 0:04:52.680 --> 0:04:57.160 they were concerned about. He was not, as we've been told, 0:04:57.440 --> 0:05:01.160 expressing his own views, but rather the views of other 0:05:01.320 --> 0:05:04.680 judges on his bench. I'm sure at other times the 0:05:04.800 --> 0:05:08.440 chief Judge of the District of Columbia may have reported 0:05:08.480 --> 0:05:11.800 that they feel inundated with bent in all cases where 0:05:11.880 --> 0:05:16.240 they feel inundated with crystal meth cases. This is a 0:05:16.240 --> 0:05:20.800 place where judges talk about the challenges of maintaining the judiciary. 0:05:21.160 --> 0:05:23.320 He was doing exactly what he was supposed to be doing. 0:05:23.680 --> 0:05:27.440 Is it concerning that apparently a memo of the meeting 0:05:27.880 --> 0:05:31.520 was leaked to the conservative website the Federalist. 0:05:32.080 --> 0:05:37.160 Well, the Judicial Conference is representing judges and business about it, 0:05:37.200 --> 0:05:41.080 so memos of what happened at this meeting do get 0:05:41.080 --> 0:05:45.440 circulated to judges. President Trump has made a point of 0:05:45.480 --> 0:05:49.720 appointing members of the Federalist Society to the Judiciary, so 0:05:49.960 --> 0:05:53.839 many Federalist Society members received this memo and one of 0:05:53.839 --> 0:05:56.600 them apparently chose to leak it to the Federalist. 0:05:57.279 --> 0:06:01.159 It's also in isolation. They just took about his comment. 0:06:01.880 --> 0:06:04.599 There must have been some kind of discussion that followed that, 0:06:04.839 --> 0:06:09.159 or some remarks and response, but it's just isolated to 0:06:09.200 --> 0:06:12.400 this one comment that he made, which is unusual. 0:06:12.920 --> 0:06:16.960 Well, it is, and they describe his comments as being 0:06:17.160 --> 0:06:21.880 uncalled for, but they don't give us any context to suggest. 0:06:21.520 --> 0:06:22.159 That they weren't. 0:06:22.200 --> 0:06:25.880 And again, Judge Bosberg's role there was to bring to 0:06:26.000 --> 0:06:31.200 the Judicial Conference concerns by judges on his court and 0:06:31.600 --> 0:06:37.920 judges reacting negatively to administration officials and Republican senators suggesting 0:06:38.400 --> 0:06:41.800 that they disregard court orders would be an obvious thing 0:06:41.880 --> 0:06:46.320 to discuss. He doesn't indicate what the point of the 0:06:46.320 --> 0:06:52.760 agenda was, what prompted this, or what anyone else said afterwards. Moreover, 0:06:53.279 --> 0:06:57.080 the Code of Judicial Conduct prohibits comments on the merits 0:06:57.120 --> 0:06:59.720 of the case. This is not a merit issue. This 0:06:59.880 --> 0:07:02.920 is an issue about what does the court do when 0:07:02.960 --> 0:07:06.000 it has decided the merits and one of the parties 0:07:06.200 --> 0:07:07.000 doesn't comply. 0:07:07.440 --> 0:07:11.520 The Justice Department also complains about his handling of the 0:07:11.600 --> 0:07:16.360 case involving the alleged Venezuelan gang members, saying he rushed 0:07:16.360 --> 0:07:21.000 the government through complex litigation, sometimes giving the Trump administration 0:07:21.440 --> 0:07:23.640 less than forty eight hours to respond. 0:07:24.160 --> 0:07:28.640 Well, the rushing was by the administration. The administration could 0:07:28.680 --> 0:07:34.280 have agreed to suspend flights until this matter was litigated, 0:07:34.280 --> 0:07:37.119 and the parties could have submitted their papers in due time. 0:07:37.440 --> 0:07:42.280 The administration was in physical control of all of these people. 0:07:42.320 --> 0:07:45.560 It had no need to send them to Alfalvadore. It 0:07:45.680 --> 0:07:48.320 chose to do it in a great hurry, and that 0:07:48.480 --> 0:07:53.120 led to a quick response from Judge Bosebury, many judges 0:07:53.160 --> 0:07:56.520 would not have given the administration any operatity to respond 0:07:56.720 --> 0:08:00.720 at all when enjoining a crisis that was entirely of 0:08:00.840 --> 0:08:04.760 that party's making. Judge Boseburg bend over backwards to be 0:08:04.880 --> 0:08:10.480 considerate of the administration and to accommodate the schedule, which 0:08:10.560 --> 0:08:14.880 they insisted was very urgent, even though they never explained why. 0:08:15.520 --> 0:08:18.560 If you have a problem with the judge handling your case, 0:08:19.200 --> 0:08:23.120 does a litigan file a misconduct complaint or wait for 0:08:23.160 --> 0:08:23.720 the appeal. 0:08:24.480 --> 0:08:28.320 If what the judge does is sufficiently egregious, you can 0:08:28.480 --> 0:08:32.880 file a misconduct complaint. It's not out now then appropriate. 0:08:33.000 --> 0:08:36.560 But what Judge boseverg here did doesn't mean any of 0:08:36.600 --> 0:08:41.160 the requirements of an improper act. It wasn't public, it 0:08:41.320 --> 0:08:46.319 wasn't on the merits, and wasn't prejudicial. So the normal 0:08:46.360 --> 0:08:50.319 procedure would be either to appeal or in some instances, 0:08:50.360 --> 0:08:53.360 to move for the judge to be recused. But the 0:08:53.400 --> 0:08:57.800 standard even for recusal and for appeal is much much 0:08:57.840 --> 0:09:02.199 higher than this, and the standard judicial misconduct is higher still. 0:09:02.760 --> 0:09:05.280 You said doesn't pass the left test. What do you 0:09:05.320 --> 0:09:06.520 expect to happen here? 0:09:07.240 --> 0:09:10.559 In a normal world? The Chief judge of the DC 0:09:10.760 --> 0:09:15.199 Circuit would dismiss this outright, because this comes from the 0:09:15.320 --> 0:09:21.960 Justice Department and from an administration that has been exceedingly 0:09:22.080 --> 0:09:26.319 vindictive and is cost lines that none of its predecessors 0:09:26.400 --> 0:09:31.120 have in criticizing sitting judges. The chief Judge may refer 0:09:31.160 --> 0:09:33.959 it to a panel, but those judges would then dismiss it. 0:09:34.200 --> 0:09:35.559 We've talked before about this. 0:09:35.559 --> 0:09:39.000 This is the latest in a string of confrontations of 0:09:39.080 --> 0:09:42.480 the Trump administration with the federal courts. They filed a 0:09:42.559 --> 0:09:47.640 misconduct complaint in Fbruary against another DC federal judge, Anna Reyes, 0:09:48.000 --> 0:09:51.520 accusing her of hostile and egregious misconduct for her sharp 0:09:51.640 --> 0:09:55.160 questioning of government lawyers in the case on the Pentagon's 0:09:55.160 --> 0:09:59.440 attempts to ban transgender people from military service. And last 0:09:59.480 --> 0:10:02.440 month they suit every judge in Maryland over a standing 0:10:02.679 --> 0:10:06.839 order that blocked the immediate deportation of migrants, challenging their 0:10:06.880 --> 0:10:08.440 removal for two days. 0:10:08.800 --> 0:10:10.319 Is there a strategy here? 0:10:10.800 --> 0:10:14.480 Well, certainly, the strategies to intimidate federal judges the public 0:10:14.520 --> 0:10:19.560 criticisms of them, which have led reportedly to spikes and 0:10:19.640 --> 0:10:23.040 death threats, is part of this. A suggestion that they 0:10:23.080 --> 0:10:26.160 don't have to follow them, the characterization of them as 0:10:26.280 --> 0:10:29.440 radical leftists. Some of the judges they've called radical leftists 0:10:29.440 --> 0:10:33.080 were appointed by Ronald Reagan, but no mind. So this 0:10:33.280 --> 0:10:36.720 is all part of a broader strategy to delegitimate the courts, 0:10:36.800 --> 0:10:39.920 to have people not believe that the courts can determine 0:10:39.960 --> 0:10:43.400 the law, and they have people do entirely what the 0:10:43.559 --> 0:10:46.760 government says. That's the path of the dictatorship. 0:10:47.559 --> 0:10:51.520 How unusual is it for the Justice Department to file 0:10:51.559 --> 0:10:55.320 a complaint against a federal judge? In the past, under 0:10:55.480 --> 0:10:59.920 other presidents have justice departments taken this course. 0:11:00.360 --> 0:11:03.240 Almost never, and a good example of that is the 0:11:03.280 --> 0:11:09.120 behavior of Judge Cannon in one of President Trump's criminal cases. 0:11:09.200 --> 0:11:14.800 A number of her rulings were very strange, sometimes self initiated, 0:11:15.040 --> 0:11:19.199 rulings in favor of mister Trump, and the Justice Department, 0:11:19.480 --> 0:11:19.880 though it. 0:11:19.840 --> 0:11:21.680 Had plenty of grounds. 0:11:21.640 --> 0:11:24.560 Didn't even move to recuse her, much less vile a 0:11:24.640 --> 0:11:28.880 judicial misconduct complaint. The ordinary views of the Justice Department 0:11:28.920 --> 0:11:32.120 has a strong interest in public respect for the judiciary 0:11:32.120 --> 0:11:35.960 and doesn't want to undermine it. This administration obviously feels differently, 0:11:36.320 --> 0:11:37.199 and tell us. 0:11:37.120 --> 0:11:39.840 A little about Judge Bosberg's reputation. 0:11:40.600 --> 0:11:46.040 Judge Boseburg's an extremely thorough, extremely smart judge. He basically 0:11:46.080 --> 0:11:48.080 gives you what you get. If you give him a 0:11:48.160 --> 0:11:51.480 serious argument, he'll either ruin your favor or give you 0:11:51.520 --> 0:11:54.400 a careful, analytical reason why he won't. If you give 0:11:54.440 --> 0:11:57.240 him a silly argument, he will say so and not 0:11:57.440 --> 0:12:01.200 dignify it with a lot of extra words. He's very 0:12:01.200 --> 0:12:04.400 hard working, very attentive to the law. He's ruled in 0:12:04.440 --> 0:12:08.000 the Trump administration's favor on a number of matters, including 0:12:08.040 --> 0:12:11.959 involving the Alien Enemies Act, because he felt the law 0:12:12.200 --> 0:12:15.120 was in their favor. He's not a partisan. 0:12:15.480 --> 0:12:18.120 And by the way, the DC Appellate Court has not 0:12:18.240 --> 0:12:21.720 yet addressed the complaint against Judge rey As for her 0:12:22.040 --> 0:12:24.760 sharp questioning of government lawyers. 0:12:25.000 --> 0:12:28.800 I will point out that the standard was that lawyers 0:12:28.800 --> 0:12:31.640 shouldn't be sharply questioned. They are only about two judges 0:12:31.720 --> 0:12:33.800 I ever practiced in front of that. I couldn't have 0:12:33.840 --> 0:12:35.200 filed misconduct complaints. 0:12:35.240 --> 0:12:37.240 Again, you have to have a tough skin if you're 0:12:37.280 --> 0:12:40.200 going to be a litigator. Always a pleasure, David, thank you. 0:12:40.520 --> 0:12:44.360 That's Professor David super of Georgetown Law. Coming up next. 0:12:44.679 --> 0:12:49.240 A bload to labor judges. This is Bloomberg. The Third 0:12:49.320 --> 0:12:52.720 Circuit Court of Appeals has found that the Labor Department's 0:12:52.880 --> 0:12:57.160 internal agency judges don't have the power to hear enforcement 0:12:57.200 --> 0:13:00.640 disputes over the H two A visa program for seasonal 0:13:00.679 --> 0:13:03.760 farm workers. It ruled in favor of a New Jersey 0:13:03.920 --> 0:13:06.680 farm that was trying to overturn more than a half 0:13:06.720 --> 0:13:10.479 million dollars in penalties by arguing that the Labor Department's 0:13:10.760 --> 0:13:16.160 judicial system was unconstitutional under Supreme Court precedent, the decision 0:13:16.240 --> 0:13:20.320 could have broad ramifications. Joining me is constitutional law expert 0:13:20.360 --> 0:13:23.800 Harold Krant, a professor at the Chicago Kent College of Law, 0:13:24.280 --> 0:13:26.880 hel tell us about the challenge to the fines here. 0:13:27.280 --> 0:13:31.360 The tourture case concerned administration of the H to A 0:13:31.600 --> 0:13:34.920 visa worker program, which is designed to bring in seasonal 0:13:34.920 --> 0:13:38.520 workers from out of the country to help with orchards 0:13:38.679 --> 0:13:42.040 in this case, or farms, or it could be entertainment 0:13:42.080 --> 0:13:46.560 complexes where there's not enough US domestic workers. And the 0:13:46.640 --> 0:13:49.880 program is a win win. It helps US industries and 0:13:50.080 --> 0:13:53.680 it helps people from outside the borders get a little 0:13:53.720 --> 0:13:56.800 taste of the United States and earn some money at 0:13:56.800 --> 0:13:59.960 the same time, and so In this case, the Department 0:14:00.120 --> 0:14:05.720 Labor alleged that Sun Valley Orchards had violated the requirements 0:14:05.720 --> 0:14:09.720 of the program in many ways, requiring twelve hour working days, 0:14:10.320 --> 0:14:15.160 providing inadequate water supplies, inadequate bathroom breaks, and so far. 0:14:15.320 --> 0:14:19.840 And so they decided to bring an enforcement action, which 0:14:20.400 --> 0:14:23.640 ended up being hundreds of thousands of dollars in fines, 0:14:23.760 --> 0:14:27.520 as a way to punish Sun Orchards, also to give 0:14:27.600 --> 0:14:31.280 some kind of compensation back to the workers, and at 0:14:31.280 --> 0:14:34.320 the same time send a signal to others who were 0:14:34.840 --> 0:14:39.000 using seasonal workers through the H two A program. And 0:14:39.040 --> 0:14:42.560 so this case raised the question then of could this 0:14:42.720 --> 0:14:46.880 enforcement action be brought within the agency itself. And this 0:14:46.960 --> 0:14:50.200 comes on the heels of the Supreme Court's decision in 0:14:50.240 --> 0:14:55.520 the JERKXI case, which surprisingly limited the types of cases 0:14:55.680 --> 0:14:59.720 that can be brought before agency tribunals. And all the 0:14:59.720 --> 0:15:02.480 court appeals are struggling with these cases now because the 0:15:02.520 --> 0:15:06.560 Supreme Court did not make a very clear distinction of 0:15:06.720 --> 0:15:09.600 what type of enforcement claims can be brought before the 0:15:09.600 --> 0:15:13.320 agency and which have to go to court with a jury. 0:15:13.360 --> 0:15:15.480 And that's a huge consequence because if you have an 0:15:15.560 --> 0:15:18.680 enforcement action before court with a jury, it's slower, it's 0:15:18.760 --> 0:15:22.800 more expensive, and as a result, agencies can bring fewer 0:15:22.920 --> 0:15:25.160 enforcement actions and they will have to pick and choose. 0:15:25.480 --> 0:15:27.800 So this case comes on the heels of many now 0:15:28.040 --> 0:15:33.000 across the country struggling with challenges to agency enforcement actions, 0:15:33.040 --> 0:15:35.240 trying to figure out which side of line do they 0:15:35.240 --> 0:15:38.720 fall on. Can they be brought before the agency or 0:15:38.920 --> 0:15:42.280 does the agency have to go to court with the 0:15:42.360 --> 0:15:44.560 jury trial and bring the action there. 0:15:44.840 --> 0:15:49.000 As you mentioned, going a trial is expensive. Why do 0:15:49.760 --> 0:15:54.240 employers prefer going a trial to having an administrative law 0:15:54.360 --> 0:15:55.720 judge decide the case? 0:15:56.880 --> 0:15:59.280 Well, there are several reasons. I mean, one is they 0:15:59.320 --> 0:16:02.960 think that with some credibility, they think that the ALJ 0:16:03.200 --> 0:16:06.440 and the agency which will then decide the case may 0:16:06.480 --> 0:16:10.760 well be biased against them. Some limited data bears us 0:16:10.760 --> 0:16:12.680 out not conclusive. 0:16:12.200 --> 0:16:13.160 But there's some data. 0:16:13.240 --> 0:16:16.000 But on the other hand, they think that the agency 0:16:16.040 --> 0:16:18.800 won't be as likely to bring the action if they 0:16:18.800 --> 0:16:21.800 have to spend so much money on enforcement. So in 0:16:21.880 --> 0:16:26.160 any given case, the goal would be to go to 0:16:26.240 --> 0:16:30.000 court because it takes longer and the agency may not 0:16:30.000 --> 0:16:32.760 be able to expend the resources to see it through. 0:16:33.320 --> 0:16:38.200 Here, the oral arguments hinged on a public rights exception 0:16:38.400 --> 0:16:39.680 in the Jocracy case. 0:16:40.720 --> 0:16:43.840 So what the the people held in Charcracy was that 0:16:44.000 --> 0:16:47.440 it limited what we understood to be the public rights doctrine. 0:16:47.520 --> 0:16:51.080 The public rights doctrine suggested that the Seventh Amendment and 0:16:51.280 --> 0:16:55.720 those kind of key rights that everybody enjoys in terms 0:16:55.840 --> 0:16:58.400 of going to trial and having a jury of your 0:16:58.440 --> 0:17:03.240 peers be a protection doesn't apply if the issues between 0:17:03.280 --> 0:17:07.119 the government and a private individual. That was our old 0:17:07.280 --> 0:17:11.480 understanding of the public rightstock and so that if Congress 0:17:11.520 --> 0:17:16.080 set up an administrative scheme with penalties for dangerous workplace 0:17:16.760 --> 0:17:19.560 or in this case, you don't treat your employees right, 0:17:19.720 --> 0:17:24.480 or another case it's dangerous chemical storage or privacy violations 0:17:24.520 --> 0:17:27.200 of the Congress sets up that scheme, it can choose 0:17:27.520 --> 0:17:32.119 whether to have enforcement in an administrative agency if it 0:17:32.240 --> 0:17:35.080 wanted to, because it had to do with a non 0:17:35.119 --> 0:17:38.359 common law right of action that Congress has created, and 0:17:38.400 --> 0:17:42.960 therefore can decide to use the instrumentality or mechanism of 0:17:42.960 --> 0:17:46.879 an administrative agency to adjudicate it. That was the prior understanding. 0:17:47.200 --> 0:17:50.320 The Supreme Court in Geocracy cut that back, but we 0:17:50.359 --> 0:17:54.640 don't know exactly how far they really said. Two different 0:17:54.640 --> 0:17:57.280 things difficult to reconcile. The first they said, if there 0:17:57.359 --> 0:18:01.520 is a close common law analog to the action, even 0:18:01.560 --> 0:18:04.240 if Congress has created a new one, if it looks 0:18:04.280 --> 0:18:08.639 like a common law action, then the jury trial right remains. 0:18:09.160 --> 0:18:11.920 And so in the Chocracy case itself, it was a 0:18:12.040 --> 0:18:15.760 fraud action against people who had tried to swindle people 0:18:15.840 --> 0:18:18.600 under the securities laws, and so the court there said, 0:18:18.680 --> 0:18:21.560 this looks like a common law fraud action. It has 0:18:21.640 --> 0:18:25.520 to go to a court. And most of the courts 0:18:25.520 --> 0:18:28.160 of appeals that have been resting with this look at 0:18:28.160 --> 0:18:31.560 that line and try to see how close to a 0:18:31.640 --> 0:18:38.080 common law action does this particular issue exist in terms 0:18:38.200 --> 0:18:41.480 of whether or not the enforcement can be placed in 0:18:41.600 --> 0:18:43.720 a court or in an administrative agency. 0:18:43.920 --> 0:18:46.600 So Rob Johnson, a senior attorney at the Institute for 0:18:46.880 --> 0:18:51.080 Justice and counsel for Sun Valley, told Bloomberg this decision 0:18:51.119 --> 0:18:54.880 means that employers facing penalties for H TWOA violations can 0:18:54.880 --> 0:18:57.919 now demand a jury trial in federal court. Is that 0:18:57.960 --> 0:19:01.719 true for all violations or certain violations. 0:19:01.600 --> 0:19:05.080 Probably all violations of the H two A program. This 0:19:05.160 --> 0:19:09.320 doesn't cover, of course, other administrative mechanisms. And indeed, the 0:19:09.359 --> 0:19:13.040 Third Circuit has gone the other way in a separate case, 0:19:13.160 --> 0:19:17.399 but he's right with respect to this particular mechanism for 0:19:17.560 --> 0:19:23.240 seasonal workers. The court held that the particular enforcement looked 0:19:23.520 --> 0:19:27.639 like a common law contract action because of the fact 0:19:27.640 --> 0:19:31.159 that under the program, in essence, the Department of Labor 0:19:31.640 --> 0:19:38.360 enforces employers to provide certain contractual services to these seasonal workers. 0:19:38.800 --> 0:19:42.880 And so the court held that even though interestingly enough, 0:19:42.960 --> 0:19:47.000 this arises in an immigration type of context, because we 0:19:47.200 --> 0:19:53.080 of this pseudocontractual underlying requirement that all infractions have to 0:19:53.119 --> 0:19:56.399 go to court, and you know, turning the lens the 0:19:56.440 --> 0:19:59.320 other way, we know that, in fact, the Supreme Court 0:19:59.400 --> 0:20:04.160 in indocracy itself said the immigration context is different and 0:20:04.200 --> 0:20:07.920 therefore the Congress should have more plenary authority decide where 0:20:08.000 --> 0:20:11.639 immigration violations should be brought. But the Third Circuit decided, 0:20:11.760 --> 0:20:16.200 even though this arose in an immigration type context, the 0:20:16.240 --> 0:20:20.200 real essence of it is a kind of pseudocontractual relationship 0:20:20.240 --> 0:20:23.320 between in this case, the orchard and the seasonal workers, 0:20:23.600 --> 0:20:26.880 and therefore that any infraction had to be brought before 0:20:27.320 --> 0:20:29.800 a jury trial in the Federal District court. 0:20:30.040 --> 0:20:33.360 The implications of this case, how far reaching are they? 0:20:33.480 --> 0:20:38.320 I mean, could it potentially impact other agencies that handle 0:20:38.440 --> 0:20:40.080 enforcement actions. 0:20:40.080 --> 0:20:42.840 Well, there's a number of cases now that are percolating 0:20:42.960 --> 0:20:45.639 around the country in the wake of darctracy, just to 0:20:45.680 --> 0:20:48.760 see where the line should be brought. We know that 0:20:49.280 --> 0:20:52.640 much of the mechanism of agency enforcement has been crippled 0:20:52.680 --> 0:20:56.040 now because of the jocracy decision that instead there'll be 0:20:56.080 --> 0:20:58.840 fewer cases because they have to be brought in just 0:20:58.920 --> 0:21:01.480 a courts. And the question is how to figure out 0:21:01.920 --> 0:21:03.920 which cases had to be brought in court in which 0:21:03.920 --> 0:21:06.440 cases have to be blought before the agency. So to 0:21:06.440 --> 0:21:09.439 show the other side of the coin, the Third Circuit itself, 0:21:09.440 --> 0:21:11.480 in a different case just a couple of months ago, 0:21:12.000 --> 0:21:19.080 decided that finds for not storing hazardous materials correctly, that 0:21:19.080 --> 0:21:22.080 that could be fines could be blought before the agency. 0:21:22.320 --> 0:21:26.919 They're a paint company allegedly had not stored dangerous materials 0:21:26.960 --> 0:21:32.200 carefully enough, and the court in that case under the 0:21:32.200 --> 0:21:36.760 Federal Aviation Administration had decided to bring again the action 0:21:36.920 --> 0:21:41.520 before its own agency, and there was a challenge to it. 0:21:41.800 --> 0:21:45.000 But the Third Circuit said that this civil penalty action 0:21:45.320 --> 0:21:49.320 is okay to proceed before an agency because hazardous waste 0:21:49.400 --> 0:21:52.520 regulations didn't exist of common law, and even though in 0:21:52.560 --> 0:21:55.480 some ways all this was was a super negligence action, 0:21:55.960 --> 0:21:58.800 the court in that case, again the same Third Circuit 0:21:58.840 --> 0:22:02.199 as in the Orchard case, decided that an enforcement nation 0:22:02.320 --> 0:22:04.879 before an agency could go ahead. So these two cases 0:22:04.920 --> 0:22:09.560 within one circuit illustrates how the line suggested by the 0:22:09.560 --> 0:22:14.119 Supreme Court intocracy is almost impossible to apply evenly, and 0:22:14.200 --> 0:22:16.879 so all the courts of appeals are in disarray in 0:22:17.280 --> 0:22:20.919 how to limit the ability of the public rights doctum 0:22:21.000 --> 0:22:24.280 to exist, and which case is the funnel to the 0:22:24.280 --> 0:22:27.520 sederal district courts and which can continue on before the 0:22:27.520 --> 0:22:28.720 agency tribunals. 0:22:29.000 --> 0:22:34.280 The panel consisted of three judges, all appointed by Republican presidents. 0:22:34.560 --> 0:22:36.600 Do you think that made a difference. 0:22:36.200 --> 0:22:39.280 And should they try to appeal to the full circuit, 0:22:39.520 --> 0:22:42.360 which is more evenly balanced the full third Circuit? 0:22:42.520 --> 0:22:44.320 You raise a great point. I mean, I think that 0:22:44.359 --> 0:22:48.840 this is a politicized issue, not in most people's minds, 0:22:48.880 --> 0:22:53.080 but it is in terms of certain kinds of sort 0:22:53.119 --> 0:22:56.639 of judges with an anti regulatory bias, and even members 0:22:56.640 --> 0:22:59.439 of the Supreme Court have held that there should be 0:22:59.480 --> 0:23:02.520 no agent see enforcement tribunals at all. I mean people 0:23:02.600 --> 0:23:05.960 like justice course such in particular, and judges with that 0:23:06.080 --> 0:23:09.240 kind of bias, and they could be Republicans, maybe some Democrats. 0:23:09.240 --> 0:23:13.679 Mostly Republicans would tend to find almost no case appropriate 0:23:13.680 --> 0:23:17.160 to be brought before an agency tribunal, with probably some 0:23:17.200 --> 0:23:21.840 exceptions as for immigration, foreign affairs, et cetera. So to 0:23:21.880 --> 0:23:24.520 a certain extent, they supolicized. I don't think it's exactly 0:23:24.560 --> 0:23:26.639 the same fault lines as we think of in terms 0:23:26.640 --> 0:23:30.160 of pro Trump or anti Trump, but certainly it is 0:23:30.240 --> 0:23:34.960 in terms of anti regulatory Republicans versus others with a 0:23:35.000 --> 0:23:38.080 different bet. So this case, because of the split in 0:23:38.080 --> 0:23:40.920 the third Circuit of one of these cases that we've discussed, 0:23:41.280 --> 0:23:43.480 may go to the Supreme Court, because the Supreme Court 0:23:43.560 --> 0:23:48.199 really does need to clarify the extent of jocracy and 0:23:49.040 --> 0:23:52.119 when the stem of amendment, in other words, eclipses an 0:23:52.200 --> 0:23:55.400 agency's ability to have an enforcement action. 0:23:55.920 --> 0:23:59.320 If you're in favor of agency actions and power, do 0:23:59.359 --> 0:24:01.600 you really want to go to the Supreme Court? Again, 0:24:01.760 --> 0:24:03.439 we want this to go to the Supreme Court. 0:24:03.840 --> 0:24:07.200 I think within the Trump administration itself, there has not 0:24:07.240 --> 0:24:10.679 been a clear signal of what the Trump administration's position 0:24:10.760 --> 0:24:13.720 will be, So the Soitser General will have to sift 0:24:13.760 --> 0:24:17.399 through these cases and decide what their position is. And 0:24:17.400 --> 0:24:20.760 they've made announcements about other administrative law issues, you know, 0:24:20.840 --> 0:24:25.000 principally with the respect to removal of officers, but they've 0:24:25.000 --> 0:24:28.439 been silent with respect to the breadth of dracracy, So 0:24:29.000 --> 0:24:31.840 we don't exactly know their position. One would think they 0:24:31.920 --> 0:24:35.399 might decide to strip their own agencies of power, but 0:24:35.480 --> 0:24:38.240 they haven't done that. So they're obviously probably a little 0:24:38.240 --> 0:24:43.840 bit ambivalent about stapping their own agency's power to have 0:24:44.000 --> 0:24:47.480 these enforcement actions before their own agencies. So that's the 0:24:47.520 --> 0:24:50.080 decision they'll have to make, and they haven't sent a 0:24:50.080 --> 0:24:50.960 clear signal yet. 0:24:51.320 --> 0:24:56.320