1
00:00:03,200 --> 00:00:08,000
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:09,600 --> 00:00:14,160
Speaker 1: During Joe Biden's presidency, workers have racked up victories with

3
00:00:14,400 --> 00:00:19,160
Speaker 1: historic union contracts with the Big three automakers Hollywood Studios,

4
00:00:19,480 --> 00:00:26,480
Speaker 1: UPS and Boeing, and unions freshly established at Apple, Amazon, Microsoft, Chipotle,

5
00:00:26,760 --> 00:00:31,360
Speaker 1: and Starbucks. Biden's appointees have issued rules such as eliminating

6
00:00:31,440 --> 00:00:35,640
Speaker 1: non compete agreements and making more workers eligible for overtime.

7
00:00:35,880 --> 00:00:40,360
Speaker 1: Whatever the details, a second Trump presidency is expected to

8
00:00:40,720 --> 00:00:45,800
Speaker 1: negatively impact American labor and favor corporate America, flying back

9
00:00:45,920 --> 00:00:48,640
Speaker 1: much of the leverage that workers have gained in the

10
00:00:48,720 --> 00:00:53,400
Speaker 1: last four years. Witness an August twelfth interview on X

11
00:00:53,640 --> 00:00:58,440
Speaker 1: where Trump praised Elon Musk for threatening to fire striking workers.

12
00:00:58,720 --> 00:01:01,680
Speaker 1: I mean, I look at what you do.

13
00:00:59,880 --> 00:01:02,319
Speaker 2: You want to quit?

14
00:01:02,840 --> 00:01:03,680
Speaker 1: They go on strike.

15
00:01:03,720 --> 00:01:05,480
Speaker 2: I won't mention the name of the company, but they

16
00:01:05,520 --> 00:01:06,600
Speaker 2: go on strike and use it.

17
00:01:06,640 --> 00:01:07,120
Speaker 1: That's okay.

18
00:01:07,160 --> 00:01:08,040
Speaker 3: You're all gone.

19
00:01:08,200 --> 00:01:08,920
Speaker 1: You're all gone.

20
00:01:08,959 --> 00:01:10,679
Speaker 3: So every one of you is gone, and you are

21
00:01:10,720 --> 00:01:11,200
Speaker 3: the greatest.

22
00:01:11,360 --> 00:01:14,680
Speaker 1: Joining me is an expert in labor law, Kate Andreas,

23
00:01:14,760 --> 00:01:18,000
Speaker 1: a professor at Columbia Law School. Kate, before we talk

24
00:01:18,040 --> 00:01:22,920
Speaker 1: about the consequences for American workers of the next Trump administration.

25
00:01:23,400 --> 00:01:26,720
Speaker 1: Let's talk about this case where the National Labor Relations

26
00:01:26,800 --> 00:01:31,280
Speaker 1: Board overturned a nearly forty year old president. It involves

27
00:01:31,280 --> 00:01:36,480
Speaker 1: Starbucks managers making threats to employees during a union election drive.

28
00:01:36,880 --> 00:01:39,360
Speaker 2: Well, Starbucks managers in this case and an others have

29
00:01:39,440 --> 00:01:41,880
Speaker 2: made a whole host of threats, but the one that

30
00:01:42,000 --> 00:01:45,360
Speaker 2: was particularly an issue in this case was a threat

31
00:01:45,440 --> 00:01:50,680
Speaker 2: by employers that if workers decided to organize, that would

32
00:01:50,800 --> 00:01:54,440
Speaker 2: change their relationship with management in a negative way. So

33
00:01:54,480 --> 00:01:58,000
Speaker 2: the just blow how that that statement was permissible because

34
00:01:58,040 --> 00:02:01,480
Speaker 2: there was an old board decision dating from the nineteen

35
00:02:01,520 --> 00:02:06,920
Speaker 2: eighty five, which held that as a categorical matter, when

36
00:02:06,960 --> 00:02:10,799
Speaker 2: employers stay to workers that union organizing it's going to

37
00:02:10,880 --> 00:02:13,840
Speaker 2: change the dynamic with the company, that that does not

38
00:02:14,160 --> 00:02:17,200
Speaker 2: count as a threat. And so the judge below was

39
00:02:17,240 --> 00:02:21,520
Speaker 2: applying that precedent that dated from the nineteen eighty What

40
00:02:21,600 --> 00:02:25,360
Speaker 2: the board said here was that that precedent should be

41
00:02:25,400 --> 00:02:30,880
Speaker 2: overruled because it's inconsistent with the statute's prohibition on employers

42
00:02:30,960 --> 00:02:33,880
Speaker 2: coercing employees and the exercise of their union rights, and

43
00:02:33,919 --> 00:02:38,280
Speaker 2: it's also intention with other doctrine and including Supreme Court cases,

44
00:02:38,600 --> 00:02:43,520
Speaker 2: would say that employers can't threaten workers who speak to

45
00:02:43,600 --> 00:02:44,400
Speaker 2: organize unions.

46
00:02:44,960 --> 00:02:47,320
Speaker 1: So it was a forty year old precedent and they

47
00:02:47,360 --> 00:02:47,919
Speaker 1: threw it out.

48
00:02:48,200 --> 00:02:50,400
Speaker 2: They overruled it. But it was a forty year old

49
00:02:50,400 --> 00:02:54,519
Speaker 2: president that was in considerable tension with other cases, including

50
00:02:54,880 --> 00:02:58,919
Speaker 2: the Supreme Court decision in an even older precedent called

51
00:02:59,040 --> 00:03:01,880
Speaker 2: Nlar reversus get Fell that dates from the nineteen sixties.

52
00:03:02,080 --> 00:03:05,520
Speaker 2: So the board overruled that old case, but said that

53
00:03:05,560 --> 00:03:08,320
Speaker 2: it wasn't going to apply the new rules of Starbucks

54
00:03:08,360 --> 00:03:10,240
Speaker 2: in this case, and that it would only apply the

55
00:03:10,280 --> 00:03:14,840
Speaker 2: new decision prospectively. That said, Starbucks in the same case

56
00:03:14,919 --> 00:03:19,400
Speaker 2: made a lot of other threats which did violate established law,

57
00:03:19,639 --> 00:03:23,720
Speaker 2: and both the Alegity Administrative Law judge and the Board

58
00:03:23,760 --> 00:03:26,640
Speaker 2: found Starbucks liable of unfairlya for practices based on the

59
00:03:26,680 --> 00:03:27,400
Speaker 2: other threats.

60
00:03:27,560 --> 00:03:32,000
Speaker 1: With this decision, what kind of threats can employers make?

61
00:03:32,720 --> 00:03:34,920
Speaker 2: So employers are not supposed to be making any threats

62
00:03:34,960 --> 00:03:37,840
Speaker 2: when workers try to organize unions that is prohibited by

63
00:03:37,880 --> 00:03:41,120
Speaker 2: the law. What employers can do and what the Supreme

64
00:03:41,160 --> 00:03:43,600
Speaker 2: Court said employers can do in the nineteen sixty nine

65
00:03:43,600 --> 00:03:49,000
Speaker 2: decision is employers can make predictions about what might happen

66
00:03:49,040 --> 00:03:51,480
Speaker 2: in the future regarding things that are outside of the

67
00:03:51,560 --> 00:03:55,840
Speaker 2: employer's control. But when the employers start threatening changes dates

68
00:03:55,840 --> 00:03:58,840
Speaker 2: that are within the employer's control, like we're going to

69
00:03:58,880 --> 00:04:02,080
Speaker 2: change our relationship with you, that becomes a threat and

70
00:04:02,120 --> 00:04:04,920
Speaker 2: it's not permitted because workers have the right to organize

71
00:04:05,040 --> 00:04:08,160
Speaker 2: unions free from coercion by employers.

72
00:04:08,560 --> 00:04:11,440
Speaker 1: If this is in line with prior precedent, why did

73
00:04:11,440 --> 00:04:14,160
Speaker 1: it take forty years for it to be overturned.

74
00:04:14,720 --> 00:04:18,120
Speaker 2: Well, well, I think this board has made a concerted

75
00:04:18,200 --> 00:04:21,520
Speaker 2: effort to look at the doctrine and try to make

76
00:04:21,560 --> 00:04:23,839
Speaker 2: sure it is really all in line with the statute

77
00:04:23,880 --> 00:04:27,520
Speaker 2: and with the protection of workers to organize unions. And

78
00:04:27,560 --> 00:04:30,040
Speaker 2: so there are a number of long standing precedents which

79
00:04:30,040 --> 00:04:32,719
Speaker 2: are intention with those fundamental statute or commitments that the

80
00:04:32,720 --> 00:04:35,440
Speaker 2: Board has been taking a look at and reconsidering in

81
00:04:35,480 --> 00:04:36,400
Speaker 2: the last four years.

82
00:04:36,560 --> 00:04:39,880
Speaker 1: So Starbucks said this ruling unfairly applies a new legal

83
00:04:39,960 --> 00:04:44,760
Speaker 1: standard on Starbucks retroactively, which the NLRB should not do.

84
00:04:44,920 --> 00:04:47,839
Speaker 1: We're considering our next steps. But you said they weren't

85
00:04:47,880 --> 00:04:51,400
Speaker 1: going to make the ruling retroactive, right, Yeah.

86
00:04:51,480 --> 00:04:54,239
Speaker 2: My understanding of the opinion and my reading of it

87
00:04:54,279 --> 00:04:56,479
Speaker 2: is that the Board very clearly said that it was

88
00:04:56,520 --> 00:04:59,960
Speaker 2: only going to apply this rule prospectively for the concern

89
00:05:00,040 --> 00:05:02,200
Speaker 2: that Cerbuck places that the Board wants to make sure

90
00:05:02,240 --> 00:05:04,200
Speaker 2: that the law is clear to those who are covered

91
00:05:04,200 --> 00:05:07,560
Speaker 2: by it, and so this new interpretation of the law

92
00:05:07,560 --> 00:05:10,960
Speaker 2: that brings the law into alignment with the Supreme Court's

93
00:05:10,960 --> 00:05:13,200
Speaker 2: holdings is only going to apply going forward.

94
00:05:14,080 --> 00:05:19,240
Speaker 1: Now, this is the first presidential ruling since the country

95
00:05:19,440 --> 00:05:22,599
Speaker 1: voted to send Donald Trump back to the White House,

96
00:05:22,920 --> 00:05:25,599
Speaker 1: and it was three to one, the three Democrats to

97
00:05:25,640 --> 00:05:30,040
Speaker 1: the one Republican. What likely will happen to the Board

98
00:05:30,560 --> 00:05:32,080
Speaker 1: when Trump takes office.

99
00:05:32,440 --> 00:05:35,359
Speaker 2: I think that we will see the Board over time

100
00:05:35,560 --> 00:05:39,440
Speaker 2: become much more hostile to workers and to workers' rights

101
00:05:39,440 --> 00:05:43,880
Speaker 2: to organize unions. How quickly that happens, though, is an

102
00:05:43,880 --> 00:05:48,080
Speaker 2: open question. The Board is an independent agency, which means

103
00:05:48,080 --> 00:05:50,440
Speaker 2: that the President does not, under the law, have the

104
00:05:50,520 --> 00:05:54,279
Speaker 2: right to fire the Board members. Rather, they serve for terms,

105
00:05:54,320 --> 00:05:58,000
Speaker 2: and so the Board's composition will turn over with time.

106
00:05:58,600 --> 00:06:01,719
Speaker 2: It all goes according to the stat that said, a

107
00:06:01,880 --> 00:06:04,960
Speaker 2: number of business groups have taken the position that those

108
00:06:05,000 --> 00:06:07,560
Speaker 2: protections that the board members have in order to create

109
00:06:07,560 --> 00:06:11,440
Speaker 2: independence are unconstitutional. So it's possible, depending on what happens

110
00:06:11,440 --> 00:06:14,400
Speaker 2: with the litigation challenging the constitutionality of the Board, and

111
00:06:14,440 --> 00:06:17,680
Speaker 2: also depending on what Trump does, that the composition of

112
00:06:17,680 --> 00:06:21,119
Speaker 2: the Board could change more quickly. In any event, once

113
00:06:21,240 --> 00:06:24,640
Speaker 2: Trump has appointed a majority of the Board, I think

114
00:06:24,640 --> 00:06:28,839
Speaker 2: we're likely to see the board rolled back many protections

115
00:06:28,880 --> 00:06:32,719
Speaker 2: for workers right that the Biden Board has affirmed and

116
00:06:32,839 --> 00:06:34,440
Speaker 2: enforced over the last four years.

117
00:06:34,760 --> 00:06:38,320
Speaker 1: Tell us about the role of the General Council Jennifer

118
00:06:38,600 --> 00:06:42,279
Speaker 1: of Rutso, I mean, he can change her position right away, right.

119
00:06:42,760 --> 00:06:46,760
Speaker 2: Right, So. The General Council is the person within the

120
00:06:46,800 --> 00:06:52,359
Speaker 2: board who prosecutes cases and who brings cases, and Jennifer

121
00:06:52,400 --> 00:06:58,080
Speaker 2: Brusso has been very energetic and effective at prosecuting violations

122
00:06:58,120 --> 00:07:01,880
Speaker 2: of the law and making sure that the NOTHERA is

123
00:07:01,920 --> 00:07:05,039
Speaker 2: interpreted in ways that really protect workers rights to organize

124
00:07:05,040 --> 00:07:08,680
Speaker 2: em bargain. I think we can expect that President Trump

125
00:07:08,800 --> 00:07:11,680
Speaker 2: will replace her. He doesn't have to, but I think

126
00:07:11,680 --> 00:07:15,040
Speaker 2: it's likely that he will replace her with someone who's

127
00:07:15,400 --> 00:07:17,960
Speaker 2: much more pro business and anti worker.

128
00:07:18,560 --> 00:07:23,160
Speaker 1: During Joe Biden's presidency, can you describe the strides the

129
00:07:23,160 --> 00:07:25,800
Speaker 1: accomplishments that unions have made.

130
00:07:26,560 --> 00:07:28,840
Speaker 2: Yeah, I mean in lots of ways. I think President

131
00:07:28,840 --> 00:07:32,400
Speaker 2: Biden was one of the most pro union presidents that

132
00:07:32,440 --> 00:07:36,440
Speaker 2: we've had in a very long time, everything ranging from

133
00:07:36,680 --> 00:07:40,640
Speaker 2: the President's decision to join ticket lines to his efforts

134
00:07:40,680 --> 00:07:45,040
Speaker 2: to get employers to settle strikes. That's the president's actions himself,

135
00:07:45,400 --> 00:07:48,360
Speaker 2: but also the National Labor Relations Board and the Department

136
00:07:48,400 --> 00:07:52,560
Speaker 2: of Labor both acted in ways, promulgated rules and issues

137
00:07:52,600 --> 00:07:55,560
Speaker 2: decisions to protect workers rights. So just give you a

138
00:07:55,560 --> 00:07:59,560
Speaker 2: couple of examples of achievements by the board. The National

139
00:07:59,640 --> 00:08:04,040
Speaker 2: Labor Board has made union elections faster. They have also

140
00:08:04,520 --> 00:08:07,400
Speaker 2: changed the standard for who counts as an employer in

141
00:08:07,480 --> 00:08:12,000
Speaker 2: order to try to hold employers to exercise power over

142
00:08:12,080 --> 00:08:16,240
Speaker 2: supply chain or reliable as well as the bordinate subcontracted employers.

143
00:08:16,320 --> 00:08:19,440
Speaker 2: They reversed a number of Trump era rulings that limited

144
00:08:19,760 --> 00:08:22,720
Speaker 2: the ability of workers to organize that limited access to

145
00:08:22,760 --> 00:08:25,920
Speaker 2: the workplace. They made it harder for employers to issue

146
00:08:26,000 --> 00:08:29,080
Speaker 2: rules that appear neutral but have the effect of killing

147
00:08:29,080 --> 00:08:33,480
Speaker 2: workers organizing drives. They sought injunctions to try to reinstate

148
00:08:33,559 --> 00:08:37,720
Speaker 2: workers who are illegually inspired, and they also began to

149
00:08:38,240 --> 00:08:41,800
Speaker 2: seek bargaining orders to lein employers and repeatedly violate the law.

150
00:08:42,200 --> 00:08:44,760
Speaker 2: They issued a stenter that made it easier for the

151
00:08:44,760 --> 00:08:48,880
Speaker 2: Board to order employers to bargain with unions in those circumstances. So,

152
00:08:48,920 --> 00:08:51,800
Speaker 2: in lots of different ways, they made it easier for

153
00:08:51,840 --> 00:08:54,760
Speaker 2: workers to organize unions and made it harder for employers

154
00:08:54,800 --> 00:08:57,960
Speaker 2: to violate employee rights. In the context of the Department

155
00:08:57,960 --> 00:09:00,880
Speaker 2: of Labor as well, they tried to change the standards

156
00:09:00,920 --> 00:09:05,160
Speaker 2: so it's harder to misclassify employees as independent contractors. There

157
00:09:05,200 --> 00:09:08,240
Speaker 2: are various rules that they tried to promulgate to protect

158
00:09:08,320 --> 00:09:11,840
Speaker 2: workers from health and safety violations, for example, from extreme heat,

159
00:09:12,360 --> 00:09:16,959
Speaker 2: and they've gone after child labor violations aggressively. So both

160
00:09:17,000 --> 00:09:19,600
Speaker 2: the National Labor Relations Board and the Department of Labor

161
00:09:19,679 --> 00:09:22,440
Speaker 2: have really worked very hard over the last four years

162
00:09:22,800 --> 00:09:25,920
Speaker 2: to make sure that the law protects workers right and

163
00:09:25,960 --> 00:09:28,160
Speaker 2: they have worked hard to enforce the law as well.

164
00:09:28,679 --> 00:09:32,240
Speaker 1: So that sounds like a lot of accomplishments. I mean,

165
00:09:32,360 --> 00:09:37,160
Speaker 1: how fast can they be unwound or taken away? You know,

166
00:09:37,200 --> 00:09:39,360
Speaker 1: in a Trump administration, I think.

167
00:09:39,160 --> 00:09:42,040
Speaker 2: Something can be done right away. So enforcement policy, we're

168
00:09:42,080 --> 00:09:45,480
Speaker 2: likely to see changed very quickly. So currently, as I said,

169
00:09:45,520 --> 00:09:48,920
Speaker 2: the Biden Department of Labor has been aggressively enforcing against

170
00:09:48,960 --> 00:09:52,120
Speaker 2: child labor violations. They've also been trying to go after

171
00:09:52,520 --> 00:09:55,600
Speaker 2: what's sometimes known as apex corporation, so big corporations that

172
00:09:55,800 --> 00:09:58,480
Speaker 2: affect a lot of the labor markets. We're likely to

173
00:09:58,520 --> 00:10:01,560
Speaker 2: see the enforcement policy means right away, and for the

174
00:10:01,600 --> 00:10:05,920
Speaker 2: Trump administration to adopt a more conciliatory enforcement approach. It

175
00:10:06,000 --> 00:10:10,079
Speaker 2: takes longer to change rules. Those have to be changed

176
00:10:10,120 --> 00:10:15,400
Speaker 2: either through adjudications individual cases or through notice and comment

177
00:10:15,480 --> 00:10:19,440
Speaker 2: rulemaking where the agency tells the public what it plans

178
00:10:19,440 --> 00:10:23,319
Speaker 2: to do or what it's considering, allows effective parties to comment,

179
00:10:23,920 --> 00:10:27,200
Speaker 2: considers those comments, and then issues a new rule. So

180
00:10:27,240 --> 00:10:31,800
Speaker 2: that's enforcement is quick, rule change is slower. The wildcard question,

181
00:10:31,920 --> 00:10:34,640
Speaker 2: I think, is what happens with all the constitutional challenges

182
00:10:34,679 --> 00:10:38,199
Speaker 2: to the agencies. So if those move quickly, we could

183
00:10:38,240 --> 00:10:41,319
Speaker 2: see really radical changes with the nationallyb relation sport and

184
00:10:41,360 --> 00:10:43,240
Speaker 2: the Department of Labor's ability to function.

185
00:10:43,679 --> 00:10:46,880
Speaker 1: Coming up next, I'll continue this conversation with Columbia Law

186
00:10:46,880 --> 00:10:51,079
Speaker 1: School professor Kate Andreas. We'll talk about workers' advocates shifting

187
00:10:51,120 --> 00:10:55,520
Speaker 1: their focus to states and cities. This is bloomberg. Unions

188
00:10:55,559 --> 00:10:59,960
Speaker 1: have been invigorated during the Biden administration with historic union

189
00:11:00,080 --> 00:11:05,440
Speaker 1: in contracts and successful organizing efforts. A second Trump presidency

190
00:11:05,920 --> 00:11:11,640
Speaker 1: is expected to negatively impact American labor and favor corporate America,

191
00:11:11,760 --> 00:11:14,920
Speaker 1: flying back much of the leverage that workers have gained

192
00:11:14,960 --> 00:11:18,079
Speaker 1: in the last four years. I've been talking to Columbia

193
00:11:18,160 --> 00:11:22,000
Speaker 1: Law School professor Kate Andreas, an expert in labor law.

194
00:11:22,720 --> 00:11:26,880
Speaker 1: You know, when he ran, Trump courted union workers and

195
00:11:27,000 --> 00:11:29,520
Speaker 1: he promised that he would do better for them than

196
00:11:29,559 --> 00:11:33,840
Speaker 1: Biden did. Last time Trump ran the government, however, it

197
00:11:33,880 --> 00:11:34,960
Speaker 1: was a different story.

198
00:11:35,400 --> 00:11:39,000
Speaker 2: I think what we know from Trump's track records is

199
00:11:39,000 --> 00:11:41,319
Speaker 2: that when he was in charge of the government, we

200
00:11:41,520 --> 00:11:46,120
Speaker 2: had labor agencies that were very pro business and very

201
00:11:46,160 --> 00:11:50,720
Speaker 2: hostile to workers. So I think that's likely what we

202
00:11:50,760 --> 00:11:53,840
Speaker 2: will see again. We can be hopeful that maybe that's

203
00:11:53,880 --> 00:11:56,040
Speaker 2: not the case, but I think that the past practice

204
00:11:56,080 --> 00:11:58,760
Speaker 2: suggests that we're likely to see a lot of anti

205
00:11:58,760 --> 00:12:01,160
Speaker 2: worker activity from this administration.

206
00:12:01,800 --> 00:12:05,560
Speaker 1: Daniel Vicenti, a regional director for the UAW, said everything

207
00:12:05,600 --> 00:12:10,760
Speaker 1: becomes harder, from organizing to negotiating strong contracts to strikes

208
00:12:11,240 --> 00:12:14,400
Speaker 1: I mean, why would things like strikes become more difficult.

209
00:12:14,520 --> 00:12:16,840
Speaker 2: Yeah, I think he's right that both bargaining and strikes

210
00:12:16,840 --> 00:12:19,040
Speaker 2: can become more difficult. So first of all, say something

211
00:12:19,080 --> 00:12:21,959
Speaker 2: about bargaining and then turn to strikes. The law obligates

212
00:12:22,040 --> 00:12:25,120
Speaker 2: employers to bargain in good faith, but when employers refuse

213
00:12:25,200 --> 00:12:28,480
Speaker 2: to do so, question is what happens. And this agency

214
00:12:28,520 --> 00:12:31,079
Speaker 2: has tried to obligate employers to bargain good faith, and

215
00:12:31,120 --> 00:12:34,079
Speaker 2: the President has also intervened in various contract issutes to

216
00:12:34,160 --> 00:12:37,800
Speaker 2: encourage employers to bargain and to reach settlements that benefit

217
00:12:37,840 --> 00:12:40,319
Speaker 2: workers and so that workers can get their fair share

218
00:12:40,360 --> 00:12:43,640
Speaker 2: of increases in profits. With respective strikes as well, the

219
00:12:43,720 --> 00:12:47,240
Speaker 2: law protects the right to strike. It prevents workers from

220
00:12:47,280 --> 00:12:50,480
Speaker 2: being permanently replaced if they go on what's called an

221
00:12:50,559 --> 00:12:54,600
Speaker 2: unfair labor practice strike. But if they strike in response

222
00:12:54,640 --> 00:12:57,240
Speaker 2: to an unfair labor practice by an employer, they can't

223
00:12:57,280 --> 00:13:01,800
Speaker 2: be replaced permanently. But if the board is much less

224
00:13:01,880 --> 00:13:06,000
Speaker 2: likely to conclude that employers are violating the law, then

225
00:13:06,040 --> 00:13:09,920
Speaker 2: that protection becomes a lot less strong, because when workers

226
00:13:10,000 --> 00:13:12,360
Speaker 2: strike in the absence of an unfair labor practice, they

227
00:13:12,360 --> 00:13:15,400
Speaker 2: can be permanently replaced. So that's just one example, but

228
00:13:15,440 --> 00:13:18,920
Speaker 2: the entire legal climate changes, and if you have the

229
00:13:19,040 --> 00:13:23,400
Speaker 2: agency no longer working to protect employees rights to organize,

230
00:13:23,440 --> 00:13:26,559
Speaker 2: to bargain, to strike, the kind of ground on which

231
00:13:26,800 --> 00:13:31,000
Speaker 2: workers are trying to enforce their rights. That said, we

232
00:13:31,000 --> 00:13:35,640
Speaker 2: should overstate the effect of a change in administration. If

233
00:13:35,679 --> 00:13:39,800
Speaker 2: workers act collectively and engage in strikes, they frequently have

234
00:13:39,960 --> 00:13:44,240
Speaker 2: enough economic power, even absence the threat of effective legal enforcement,

235
00:13:44,720 --> 00:13:46,160
Speaker 2: to win in victories.

236
00:13:46,880 --> 00:13:52,160
Speaker 1: What is the status of Starbucks and union organizations. Apparently

237
00:13:52,240 --> 00:13:58,080
Speaker 1: about five hundred Starbucks nationwide have voted to unionize. I mean,

238
00:13:58,160 --> 00:14:00,720
Speaker 1: this has been going on for a long time. What

239
00:14:00,800 --> 00:14:01,760
Speaker 1: stage are they at?

240
00:14:02,120 --> 00:14:04,960
Speaker 2: So lots and lots of Starbucks workers around the country

241
00:14:04,960 --> 00:14:07,920
Speaker 2: have voted to organize, and it's really gunning actually, So

242
00:14:08,000 --> 00:14:10,080
Speaker 2: it's just within the last few years unit from having

243
00:14:10,280 --> 00:14:14,160
Speaker 2: zero organized Starbucks to several hundreds. The problem is that

244
00:14:14,240 --> 00:14:17,680
Speaker 2: for quite a while Starbucks was roukeenly violating the law

245
00:14:17,679 --> 00:14:20,560
Speaker 2: when workers try to organize, and also it's refusing to bargain,

246
00:14:21,120 --> 00:14:24,080
Speaker 2: and so that has closing down. But my understanding is

247
00:14:24,120 --> 00:14:26,600
Speaker 2: that there has been a shift and that Starbucks is

248
00:14:26,640 --> 00:14:29,600
Speaker 2: now bargaining with the union with the workers, and so

249
00:14:29,720 --> 00:14:32,680
Speaker 2: I'm hopeful that we will see the workers reach the

250
00:14:32,680 --> 00:14:35,160
Speaker 2: first contract and be able to continue to build their

251
00:14:35,520 --> 00:14:37,840
Speaker 2: organization and other workers will be able to join the

252
00:14:37,920 --> 00:14:38,600
Speaker 2: union as well.

253
00:14:38,840 --> 00:14:43,040
Speaker 1: So do you see labor advocates perhaps shifting from federal

254
00:14:43,280 --> 00:14:48,520
Speaker 1: objectives to securing policy gains in states and cities, such

255
00:14:48,560 --> 00:14:52,240
Speaker 1: as some of the ballot measures that we saw go

256
00:14:52,360 --> 00:14:53,920
Speaker 1: through on Tuesday.

257
00:14:54,360 --> 00:14:57,160
Speaker 2: Yeah, I think the possibility of federal labor law reform

258
00:14:57,800 --> 00:15:00,000
Speaker 2: has been elusive for quite a while and has now

259
00:15:00,240 --> 00:15:03,680
Speaker 2: certainly not achievable. At least, federal labor law reformat will

260
00:15:03,760 --> 00:15:06,760
Speaker 2: further protect workers, right, So I expect that we'll continue

261
00:15:06,800 --> 00:15:10,160
Speaker 2: to see workers organizing unions and engaging in collective action

262
00:15:10,240 --> 00:15:12,200
Speaker 2: across the country the way they have been, but that

263
00:15:12,280 --> 00:15:15,600
Speaker 2: we will also see more effort to try to win

264
00:15:16,000 --> 00:15:19,440
Speaker 2: labor reforms at the state level in states where doing

265
00:15:19,440 --> 00:15:22,520
Speaker 2: so is politically achievable, And workers really have achieved a

266
00:15:22,520 --> 00:15:26,080
Speaker 2: great deal at the state level in recent years, providing

267
00:15:26,160 --> 00:15:28,360
Speaker 2: a model for what might happen in the future. So,

268
00:15:28,480 --> 00:15:31,240
Speaker 2: just to give you a couple examples, workers have one

269
00:15:31,400 --> 00:15:35,320
Speaker 2: significant increases in the minimum wage through ballot initiatives as

270
00:15:35,320 --> 00:15:38,040
Speaker 2: well as through legislation at the state level, and they've

271
00:15:38,040 --> 00:15:40,120
Speaker 2: been able to do that not only in blue states

272
00:15:40,160 --> 00:15:43,119
Speaker 2: but also in really conservative states because there is overwhelming

273
00:15:43,120 --> 00:15:47,800
Speaker 2: support for improving workers conditions even in red states. One

274
00:15:47,800 --> 00:15:49,960
Speaker 2: thing is we're likely to see more Baalid initiative that

275
00:15:50,000 --> 00:15:52,720
Speaker 2: increase the minimum wage. Another thing is that I think

276
00:15:52,760 --> 00:15:56,119
Speaker 2: we're likely to see more effort to pass state laws

277
00:15:56,280 --> 00:16:00,640
Speaker 2: that enable workers to organize unions and bargains for workers

278
00:16:00,640 --> 00:16:04,080
Speaker 2: who are not covered by federal law. So states can't

279
00:16:04,120 --> 00:16:08,800
Speaker 2: pass union organizing and bargaining laws for workers who are

280
00:16:08,800 --> 00:16:12,320
Speaker 2: covered by federal labor law, that's preempted. But for groups

281
00:16:12,320 --> 00:16:15,160
Speaker 2: of workers who aren't covered by federal labor law, like

282
00:16:15,280 --> 00:16:20,080
Speaker 2: gig workers, agricultural workers, and domestic workers, states can legislate.

283
00:16:20,160 --> 00:16:21,920
Speaker 2: And so what we saw in the last collection was

284
00:16:21,960 --> 00:16:25,400
Speaker 2: a very successful effort in Massachusetts to pass a new

285
00:16:25,640 --> 00:16:28,640
Speaker 2: system for uber and less drivers to organize unions and

286
00:16:28,680 --> 00:16:31,040
Speaker 2: to bargain with their employers. And that's the kind of

287
00:16:31,080 --> 00:16:32,680
Speaker 2: thing that I think we're likely to see more of

288
00:16:32,720 --> 00:16:35,880
Speaker 2: going forward. It's a really important breakthrough. So like gig

289
00:16:35,880 --> 00:16:39,760
Speaker 2: workers have a right to coluctive voice on their dogs

290
00:16:39,760 --> 00:16:42,000
Speaker 2: and can work together to improve their conditions.

291
00:16:42,320 --> 00:16:47,160
Speaker 1: How much will the conservative judiciary play a part in

292
00:16:47,440 --> 00:16:51,680
Speaker 1: toning down any gains at the state or city level.

293
00:16:51,800 --> 00:16:56,880
Speaker 2: Well, that's yet to be seen. The conservative judiciary is

294
00:16:57,200 --> 00:17:02,680
Speaker 2: certainly going to play a role constraining what federal labor

295
00:17:02,720 --> 00:17:05,760
Speaker 2: agencies do, because we've seen in the last few years

296
00:17:05,840 --> 00:17:08,960
Speaker 2: the Supreme Court issue a series of decisions that really

297
00:17:09,040 --> 00:17:13,880
Speaker 2: drastically undermine the ability of federal administrative agencies to function.

298
00:17:14,359 --> 00:17:16,880
Speaker 2: So that's at the federal level. With respect to how

299
00:17:16,960 --> 00:17:20,240
Speaker 2: the judiciary will respond to state initiatives, I think it's

300
00:17:20,240 --> 00:17:22,119
Speaker 2: an open question. On the one hand, this is a

301
00:17:22,119 --> 00:17:25,159
Speaker 2: Supreme Court that's been very hostile to labor rights, but

302
00:17:25,200 --> 00:17:27,959
Speaker 2: it's also a Supreme Court that purports to be solicitus

303
00:17:28,000 --> 00:17:30,080
Speaker 2: of state rights, and so we'll have to see what

304
00:17:30,240 --> 00:17:31,520
Speaker 2: happens on that front.

305
00:17:32,000 --> 00:17:35,240
Speaker 1: On election day, Trump appointed a pellic judges on the

306
00:17:35,359 --> 00:17:39,760
Speaker 1: Ninth Circuit struck down a Biden requirement that government contractors

307
00:17:39,760 --> 00:17:43,280
Speaker 1: pay at least fifteen dollars an hour, calling that minimum

308
00:17:43,280 --> 00:17:45,199
Speaker 1: wage rule arbitrary and capricious.

309
00:17:45,680 --> 00:17:49,440
Speaker 2: That role is on very sound legal footing under existing precedent.

310
00:17:49,520 --> 00:17:53,639
Speaker 2: Because the president has the authority under the federal contracting

311
00:17:53,720 --> 00:17:57,040
Speaker 2: laws to set standards for federal contracts, as long as

312
00:17:57,119 --> 00:17:59,360
Speaker 2: doing so in a way that advances the ecmomune efficiency

313
00:17:59,400 --> 00:18:01,720
Speaker 2: and contract And there's lots of studies that show that

314
00:18:01,760 --> 00:18:04,280
Speaker 2: when workers are paid a decent wage, they stay in

315
00:18:04,320 --> 00:18:07,439
Speaker 2: their jobs longer, we have less turnover. And in the past,

316
00:18:07,840 --> 00:18:10,280
Speaker 2: the president required a lot of difference to the president's

317
00:18:10,280 --> 00:18:13,280
Speaker 2: decisions with the respect to contracting. So the court has

318
00:18:13,359 --> 00:18:17,160
Speaker 2: upheld orders by President Bush, by President Kennedy, by President Clinton,

319
00:18:17,800 --> 00:18:20,600
Speaker 2: lots of different executive orders. This decision from the Ninth

320
00:18:20,600 --> 00:18:23,520
Speaker 2: Circuit was really out of line was past precedent, but

321
00:18:23,920 --> 00:18:27,280
Speaker 2: that's not necessarily surprising given what we've seen other conservative

322
00:18:27,560 --> 00:18:30,200
Speaker 2: Trump judges do. What I think it means going forward

323
00:18:30,280 --> 00:18:32,520
Speaker 2: is that it had Tamala Harris one, it would have

324
00:18:32,560 --> 00:18:37,359
Speaker 2: constrained her ability to set fair labor standers in federal contracting.

325
00:18:37,680 --> 00:18:39,960
Speaker 2: I think we're unlikely to see President Trump trying to

326
00:18:40,000 --> 00:18:42,280
Speaker 2: do that, and so in that sense, the decision we'll

327
00:18:42,320 --> 00:18:44,479
Speaker 2: have relatively little effect.

328
00:18:45,119 --> 00:18:47,600
Speaker 1: I saw this. I thought it was interesting that some

329
00:18:47,680 --> 00:18:51,199
Speaker 1: civil rights and environmental lawyers are trying to certify the

330
00:18:51,240 --> 00:18:55,520
Speaker 1: first ever union at the Justice Department before Trump comes

331
00:18:55,600 --> 00:18:57,840
Speaker 1: into office. Is there enough time for that?

332
00:18:58,200 --> 00:19:00,160
Speaker 2: It would be interesting to see. I think there's our

333
00:19:00,160 --> 00:19:04,440
Speaker 2: motivation is strong. They, like other employees, have a right

334
00:19:04,480 --> 00:19:08,159
Speaker 2: to organize, and there's a real danger that the country

335
00:19:08,200 --> 00:19:11,600
Speaker 2: spaces if Trump makes good on his promises to try

336
00:19:11,640 --> 00:19:14,679
Speaker 2: to politicize the government all the way down to staff

337
00:19:15,119 --> 00:19:19,520
Speaker 2: line career workers. So Trump has threatened to transform what

338
00:19:19,720 --> 00:19:25,280
Speaker 2: is essentially a civil service into politically loyal operatives. He

339
00:19:25,359 --> 00:19:27,920
Speaker 2: wants to have the right to fire civil servants who

340
00:19:27,960 --> 00:19:30,600
Speaker 2: aren't loyal to his administration. But I think what's going

341
00:19:30,600 --> 00:19:32,960
Speaker 2: on here as an effort in part to stand that

342
00:19:33,240 --> 00:19:36,520
Speaker 2: and that could be really helpful not only for these lawyers,

343
00:19:36,520 --> 00:19:38,640
Speaker 2: but also for our democracy if they succeed.

344
00:19:39,040 --> 00:19:43,280
Speaker 1: And Kate tell us about the challenges to the constitutionality

345
00:19:43,520 --> 00:19:45,679
Speaker 1: of the National Labor Relations Board.

346
00:19:46,320 --> 00:19:50,040
Speaker 2: Yeah, so there's a series of challenges to administrative agencies.

347
00:19:50,400 --> 00:19:52,720
Speaker 2: The ones that are being brought against the Board are

348
00:19:52,720 --> 00:19:55,480
Speaker 2: being brought in part by Yon Musk by Tesla arguing

349
00:19:55,520 --> 00:19:59,640
Speaker 2: that one that the board is unconstitutional because the board

350
00:19:59,720 --> 00:20:02,840
Speaker 2: members serve for terms and can't be removed at will

351
00:20:02,880 --> 00:20:05,680
Speaker 2: by the president. That's a system that exists across many

352
00:20:05,720 --> 00:20:08,080
Speaker 2: different agencies and has been in place really for the

353
00:20:08,160 --> 00:20:10,879
Speaker 2: last hundred years that the Court is upheld, but several

354
00:20:10,920 --> 00:20:14,359
Speaker 2: corporations are arguing that that violates the Constitution because it

355
00:20:14,400 --> 00:20:18,800
Speaker 2: constrains presidential power. That's one argument. Another is that the

356
00:20:18,960 --> 00:20:23,240
Speaker 2: NRB and the Department of Labor impermissively have administrative law

357
00:20:23,320 --> 00:20:26,160
Speaker 2: judges the judicating cases that really should be done by

358
00:20:26,560 --> 00:20:30,119
Speaker 2: civil juries. Again, that's a system that's existed for the

359
00:20:30,160 --> 00:20:32,720
Speaker 2: last century, but there are arguments are being brought that

360
00:20:32,760 --> 00:20:35,440
Speaker 2: it violates the Separation of Powers and the Seventh Amendment

361
00:20:35,560 --> 00:20:39,120
Speaker 2: to have administrative law judges deciding cases when there's monetary

362
00:20:39,480 --> 00:20:42,119
Speaker 2: finds at stake. That builds on a decision from the

363
00:20:42,119 --> 00:20:45,480
Speaker 2: Supreme Court last year involving the sec. And then a

364
00:20:45,520 --> 00:20:48,480
Speaker 2: third argument is kind of the broadest, which is that

365
00:20:48,560 --> 00:20:53,520
Speaker 2: agencies like the Board that mix adjudicative functions with executive

366
00:20:53,520 --> 00:20:56,200
Speaker 2: functions and rulemaking functions that apply the law and a

367
00:20:56,320 --> 00:20:59,520
Speaker 2: host of different ways, that that violates the separation of powers.

368
00:21:00,080 --> 00:21:02,359
Speaker 2: Of these arguments would have been considered off the wall

369
00:21:02,400 --> 00:21:05,080
Speaker 2: and frivolous just a few years ago, but in a

370
00:21:05,160 --> 00:21:07,600
Speaker 2: series of cases over the last few years, the Supreme

371
00:21:07,640 --> 00:21:11,680
Speaker 2: Court has accepted arguments that challenge in the basics of

372
00:21:11,720 --> 00:21:14,840
Speaker 2: administrative law, and those are all being brought to bear

373
00:21:14,880 --> 00:21:18,680
Speaker 2: now on the board, and a circuit split is developing

374
00:21:19,080 --> 00:21:21,159
Speaker 2: where you have the Fifth Circuit accepting some of these

375
00:21:21,240 --> 00:21:23,520
Speaker 2: arguments and the other circuits that have considered them have

376
00:21:23,960 --> 00:21:26,520
Speaker 2: said these are ridiculous. So it's quite possible that we'll

377
00:21:26,560 --> 00:21:29,959
Speaker 2: see case get to the Supreme Court involving these constitutional

378
00:21:30,080 --> 00:21:32,760
Speaker 2: challenges to the National Abor Relations Board and to other

379
00:21:32,800 --> 00:21:33,720
Speaker 2: agencies as well.

380
00:21:33,840 --> 00:21:36,320
Speaker 1: Administrative law sort of turned on its head in so

381
00:21:36,400 --> 00:21:39,359
Speaker 1: many ways in the last few years. Thanks so much, Kate.

382
00:21:39,600 --> 00:21:43,280
Speaker 1: That's Professor Kate Andreas of Columbia Law School, coming up

383
00:21:43,320 --> 00:21:46,920
Speaker 1: next on the Bloomberg Law Show. The US government's position

384
00:21:47,080 --> 00:21:51,240
Speaker 1: before the Supreme Court in cases over healthcare treatment for

385
00:21:51,359 --> 00:21:55,760
Speaker 1: transgender miners and federal regulations for building at home ghost

386
00:21:55,880 --> 00:22:00,600
Speaker 1: guns will likely flip when Donald Trump takes office. I'm

387
00:22:00,680 --> 00:22:04,560
Speaker 1: June Grosso and you're listening to Bloomberg. With a change

388
00:22:04,560 --> 00:22:09,479
Speaker 1: in administrations, the US government's position could flip in certain

389
00:22:09,520 --> 00:22:14,120
Speaker 1: cases already before the Supreme Court. The disputes over healthcare

390
00:22:14,160 --> 00:22:19,080
Speaker 1: treatments for transgender miners and federal regulations for building at

391
00:22:19,080 --> 00:22:22,440
Speaker 1: home ghost guns are seen as too, where a Trump

392
00:22:22,520 --> 00:22:26,880
Speaker 1: administration may reverse the positions held by the Biden administration.

393
00:22:27,359 --> 00:22:30,920
Speaker 1: Joining me is constitutional law expert Harold Krent, a professor

394
00:22:30,920 --> 00:22:34,480
Speaker 1: at the Chicago Kent College of Law. The Biden administration

395
00:22:34,560 --> 00:22:38,720
Speaker 1: has taken positions in certain cases before the Court. We

396
00:22:38,800 --> 00:22:42,520
Speaker 1: can anticipate that the Trump administration will come in and say,

397
00:22:42,920 --> 00:22:45,840
Speaker 1: forget about it, we don't agree. How often does that

398
00:22:46,040 --> 00:22:49,400
Speaker 1: happen when there's a change in administrations.

399
00:22:48,800 --> 00:22:54,480
Speaker 3: Which relatively common, when the administration transitions that individuals and

400
00:22:54,480 --> 00:22:56,600
Speaker 3: the new administration of a different perspective on the legal

401
00:22:56,640 --> 00:22:59,680
Speaker 3: issues that the Supreme Court has already agreed to take.

402
00:23:00,200 --> 00:23:03,760
Speaker 3: And it depends on the posture of the case what

403
00:23:03,920 --> 00:23:07,000
Speaker 3: happens next, And so even in the cases that the

404
00:23:07,119 --> 00:23:10,080
Speaker 3: Court has already taken the year, there will be different

405
00:23:10,240 --> 00:23:15,000
Speaker 3: kinds of reactions or different kinds of interventions by the

406
00:23:15,160 --> 00:23:18,840
Speaker 3: new administration, the Trump administration to tie to influence or

407
00:23:18,920 --> 00:23:21,280
Speaker 3: alter what the Supreme Court may decide.

408
00:23:21,320 --> 00:23:24,159
Speaker 1: And though the justices or some of the justices have

409
00:23:24,280 --> 00:23:28,760
Speaker 1: seemed irritated at different times about the changes, I mean,

410
00:23:28,800 --> 00:23:32,120
Speaker 1: did they accept the changes Basically in the past.

411
00:23:32,280 --> 00:23:35,240
Speaker 3: They've reacted in different ways, and they shouldn't be irritated.

412
00:23:35,280 --> 00:23:40,000
Speaker 3: I mean politically, administrations have different legal views and they

413
00:23:40,040 --> 00:23:43,440
Speaker 3: want to afford those views, and the court then sometimes

414
00:23:43,480 --> 00:23:47,240
Speaker 3: will reman the case for further consideration in light of

415
00:23:47,280 --> 00:23:51,120
Speaker 3: the change, depending upon the procedural posture, or sometimes they'll

416
00:23:51,160 --> 00:23:54,080
Speaker 3: just take an amicus grief to hear what the new

417
00:23:54,560 --> 00:23:58,040
Speaker 3: administration has to say about it legal issue. But at

418
00:23:58,080 --> 00:24:02,560
Speaker 3: some point it's incredibly salient to factor in what the

419
00:24:02,640 --> 00:24:05,680
Speaker 3: new administration has to say. So, for instance, one of

420
00:24:05,720 --> 00:24:09,800
Speaker 3: the most important cases so far argued in the Ghost

421
00:24:09,880 --> 00:24:15,399
Speaker 3: Gun case. The centerpiece of the litigation is a twenty

422
00:24:15,480 --> 00:24:18,720
Speaker 3: twenty two federal rule issued by the Bureau of Alcoholic

423
00:24:18,720 --> 00:24:24,200
Speaker 3: Tobacco on firearms. If the administration wants to rescind that rule,

424
00:24:24,880 --> 00:24:27,560
Speaker 3: it moves out the entire controversy. So it would be

425
00:24:27,600 --> 00:24:32,440
Speaker 3: of course relevant to hear whether or not the administration

426
00:24:32,520 --> 00:24:36,600
Speaker 3: has taken action before the decision is issued to resin

427
00:24:36,680 --> 00:24:38,160
Speaker 3: the rule that's at the heart of the case.

428
00:24:38,600 --> 00:24:42,879
Speaker 1: The Ghost Gun case has already been argued. One that

429
00:24:42,960 --> 00:24:46,960
Speaker 1: hasn't been argued and that we can anticipate that the

430
00:24:47,000 --> 00:24:51,560
Speaker 1: Trump administration may want to change positions on is the

431
00:24:51,960 --> 00:24:54,919
Speaker 1: transgender rights case. Tell US about that.

432
00:24:54,880 --> 00:24:58,960
Speaker 3: Case's two cases, they're combined both with respect to Kentucky

433
00:24:59,000 --> 00:25:02,760
Speaker 3: and Tennessee's law US limiting the rights to have transgender

434
00:25:02,800 --> 00:25:05,520
Speaker 3: surgery for minors. But what was interesting in the case

435
00:25:05,640 --> 00:25:10,800
Speaker 3: is the US intervened and argued that the Supreme Court

436
00:25:10,800 --> 00:25:14,720
Speaker 3: should pay the US's petition for Surcherai after the Sixth

437
00:25:14,720 --> 00:25:18,919
Speaker 3: Circuit rejected the challenge to their rule. Because of the

438
00:25:18,960 --> 00:25:21,920
Speaker 3: fact that there was only a split in the circuits

439
00:25:21,960 --> 00:25:25,880
Speaker 3: on one issue, which was an eco protection issue as

440
00:25:25,920 --> 00:25:29,760
Speaker 3: opposed to the substitute process issue which the private parties

441
00:25:29,800 --> 00:25:32,760
Speaker 3: had raised in addition to the eco protection challenge to

442
00:25:33,080 --> 00:25:37,200
Speaker 3: the limitations on gender affirming surgery, So the Supreme Court

443
00:25:37,280 --> 00:25:41,840
Speaker 3: actually granted the US's petition and not those of the

444
00:25:41,920 --> 00:25:46,880
Speaker 3: private parties. So technically, if a new Trump administration could

445
00:25:47,040 --> 00:25:50,440
Speaker 3: say we've changed our mind, and then there'd be no

446
00:25:50,920 --> 00:25:56,119
Speaker 3: petition left for the Court to decide, and that is

447
00:25:56,160 --> 00:25:59,840
Speaker 3: a technical possibility. Of course, there's still be a split

448
00:25:59,880 --> 00:26:03,200
Speaker 3: in circuits on the meaning of the protection cause, So

449
00:26:03,280 --> 00:26:06,280
Speaker 3: you would think that the Court could take then one

450
00:26:06,320 --> 00:26:10,000
Speaker 3: of the other petitions and proceed to resolve in the case,

451
00:26:10,040 --> 00:26:12,280
Speaker 3: but need not to if the Court wants to duck it.

452
00:26:12,640 --> 00:26:15,000
Speaker 3: You could simply say, well, the US has withdrawn its

453
00:26:15,000 --> 00:26:17,800
Speaker 3: petition and therefore there's nothing left for us to decide.

454
00:26:18,080 --> 00:26:21,040
Speaker 3: So it's a technical issue that would not be I

455
00:26:21,080 --> 00:26:24,480
Speaker 3: think positive in terms of trying to resolve to sput

456
00:26:24,480 --> 00:26:27,760
Speaker 3: in the circus on such an important issue. But technically

457
00:26:28,200 --> 00:26:33,240
Speaker 3: a Trump administration could cause that dilemma and force the

458
00:26:33,240 --> 00:26:34,200
Speaker 3: Court to make a decision.

459
00:26:34,480 --> 00:26:39,080
Speaker 1: And the Biden administration actually did change the Trump administration's

460
00:26:39,200 --> 00:26:43,000
Speaker 1: position in a challenge to the Affordable Care Act that

461
00:26:43,119 --> 00:26:46,240
Speaker 1: was three months after the case was argued. So the

462
00:26:46,240 --> 00:26:47,760
Speaker 1: Biden administration has done it too.

463
00:26:48,480 --> 00:26:48,640
Speaker 2: Oh.

464
00:26:48,640 --> 00:26:51,840
Speaker 3: Absolutely, It's done by both Democratic and Republican in this rations.

465
00:26:51,880 --> 00:26:54,760
Speaker 3: And I do think it's principle to do that because

466
00:26:55,040 --> 00:26:57,560
Speaker 3: again a good example would be in the ghost gun case.

467
00:26:57,600 --> 00:27:02,840
Speaker 3: If the batf rescinds its regulation, which you know, I

468
00:27:02,880 --> 00:27:05,800
Speaker 3: don't think it should, but if it does, then by

469
00:27:05,840 --> 00:27:10,320
Speaker 3: all stretch of imagination, the case should be rooted out.

470
00:27:10,480 --> 00:27:13,600
Speaker 3: And there's another interesting sort of example too. There's another

471
00:27:13,840 --> 00:27:18,359
Speaker 3: ACA case it's likely to come up before the Court

472
00:27:18,560 --> 00:27:23,199
Speaker 3: if the Fifth Circuit decided to hold unconstitutional part of

473
00:27:23,240 --> 00:27:28,200
Speaker 3: the ACA, which allows a semi private group to determine

474
00:27:28,240 --> 00:27:32,040
Speaker 3: which preventative services should be paid for under the insurance,

475
00:27:32,359 --> 00:27:36,679
Speaker 3: preventative services for screen crew cancers, other kinds of medications

476
00:27:36,680 --> 00:27:39,879
Speaker 3: for cardio, bachelor disease, and so forth, And under the

477
00:27:39,920 --> 00:27:43,400
Speaker 3: statutory scheme and the ACA, a semi private group really

478
00:27:43,440 --> 00:27:47,040
Speaker 3: gets to determine, subject only to a very limited review

479
00:27:47,160 --> 00:27:52,440
Speaker 3: by the administration, which of these kinds of medications insurance

480
00:27:52,640 --> 00:27:56,639
Speaker 3: should cover. And the Fifth Circuit said that it was

481
00:27:56,720 --> 00:28:00,520
Speaker 3: unconstitutional the best, so much authority in this to my

482
00:28:00,680 --> 00:28:07,040
Speaker 3: private group. So the Trump administration could simply agree, and

483
00:28:07,080 --> 00:28:11,159
Speaker 3: then that case would not be right for decision by

484
00:28:11,200 --> 00:28:14,119
Speaker 3: the Supreme Court, and it would take another kind of

485
00:28:14,200 --> 00:28:17,760
Speaker 3: controversy in a different circuit to wind its way up.

486
00:28:17,880 --> 00:28:21,720
Speaker 3: So you know, all these contexts, what the new administration

487
00:28:21,840 --> 00:28:25,679
Speaker 3: thinks is relevant and also changes the procedural posture of

488
00:28:25,720 --> 00:28:28,240
Speaker 3: the case, which may mean it's either less likely or

489
00:28:28,280 --> 00:28:30,440
Speaker 3: more likely that the Supreme Court would take it.

490
00:28:30,480 --> 00:28:35,760
Speaker 1: And there are some cases involving EPA disputes. What happens

491
00:28:35,760 --> 00:28:37,560
Speaker 1: in those cases and.

492
00:28:37,520 --> 00:28:39,600
Speaker 3: We've seen that before, I mean in the change from

493
00:28:39,680 --> 00:28:42,320
Speaker 3: the Obama administration to the Trump administration.

494
00:28:42,680 --> 00:28:43,160
Speaker 2: But in that.

495
00:28:43,200 --> 00:28:48,000
Speaker 3: Case, if the EPA rule is changed, then the challenge

496
00:28:48,000 --> 00:28:52,120
Speaker 3: to the EPA rule becomes moot, or at least practically moot,

497
00:28:52,400 --> 00:28:55,000
Speaker 3: and it makes it much less likely that Supreme Court

498
00:28:55,120 --> 00:28:58,520
Speaker 3: would entertain the case. And it's a parallel to the

499
00:28:58,560 --> 00:29:00,720
Speaker 3: ghost gun case that we just say. So, any kind

500
00:29:00,720 --> 00:29:04,920
Speaker 3: of challenge to a government rule, if the government rule changes,

501
00:29:05,680 --> 00:29:08,560
Speaker 3: is for all intents and purposes moved. Although the Court

502
00:29:08,640 --> 00:29:12,680
Speaker 3: occasionally will say, well, the agency can change its mind again,

503
00:29:13,200 --> 00:29:16,840
Speaker 3: and they say it's not completely mood and hear the case,

504
00:29:17,160 --> 00:29:20,760
Speaker 3: and it's done that occasionally, but I think that's not

505
00:29:21,760 --> 00:29:24,440
Speaker 3: necessarily a principle of practice, even though the Court has

506
00:29:24,480 --> 00:29:26,760
Speaker 3: done it and it has the power to do that

507
00:29:26,960 --> 00:29:30,000
Speaker 3: by saying that the agency can always change its mind

508
00:29:30,040 --> 00:29:33,520
Speaker 3: again and come back with a rule. So we'll issue

509
00:29:33,520 --> 00:29:37,040
Speaker 3: the decision now. But again, normally, the best practice and

510
00:29:37,040 --> 00:29:40,800
Speaker 3: the predicted practice would be for the court to not

511
00:29:40,880 --> 00:29:44,280
Speaker 3: hear a case if the agency changes its regulation.

512
00:29:44,640 --> 00:29:48,080
Speaker 1: I'm asking everyone this question. I'm asking all the legal

513
00:29:48,120 --> 00:29:50,440
Speaker 1: experts I speak to this question. Do you think there'll

514
00:29:50,440 --> 00:29:52,440
Speaker 1: be any changes at the Supreme Court?

515
00:29:53,080 --> 00:29:55,240
Speaker 3: Well, there might be. I mean I think that the

516
00:29:55,360 --> 00:29:59,720
Speaker 3: question is if it appears that the Republican sort of

517
00:29:59,720 --> 00:30:03,680
Speaker 3: strung long hold on the Supreme Court may end. If

518
00:30:03,680 --> 00:30:07,480
Speaker 3: the new second Trump administration may have a democratic successor,

519
00:30:07,960 --> 00:30:10,440
Speaker 3: then certain conservative members of the Court would find it

520
00:30:10,960 --> 00:30:15,440
Speaker 3: a convenient time to retire to allow President Trump to

521
00:30:15,680 --> 00:30:18,600
Speaker 3: fill their vacancies. So the you know, if you think

522
00:30:18,600 --> 00:30:23,960
Speaker 3: about Justice Alito or Justice Thomas, and you know, another

523
00:30:24,040 --> 00:30:28,160
Speaker 3: three years or so, they healthy reasons may stays really

524
00:30:28,200 --> 00:30:30,520
Speaker 3: time for them to step down, and that would be

525
00:30:30,640 --> 00:30:33,400
Speaker 3: a convenient time to do it to allow President Trump

526
00:30:33,440 --> 00:30:36,640
Speaker 3: to replace them. That's speculative, and we certainly don't wish

527
00:30:36,680 --> 00:30:41,000
Speaker 3: anybody ill health, but that's certainly a possibility. And you know,

528
00:30:41,080 --> 00:30:44,320
Speaker 3: all of these changes in administration does give the Supreme

529
00:30:44,320 --> 00:30:48,600
Speaker 3: Court flexibility. So if there are sort of internal reasons

530
00:30:48,640 --> 00:30:52,520
Speaker 3: for court to duck one case but then decide they

531
00:30:52,560 --> 00:30:55,440
Speaker 3: wanted to reach another, the change of the administration gives

532
00:30:55,480 --> 00:30:58,200
Speaker 3: them a good cover to advance their own sort of

533
00:30:58,200 --> 00:31:00,960
Speaker 3: internal agendas if the agenda as exist, and I don't

534
00:31:01,000 --> 00:31:04,120
Speaker 3: know that they do in the cases of the ghost guns,

535
00:31:04,240 --> 00:31:09,080
Speaker 3: or in gender firming care or in the preventative ACA case,

536
00:31:09,640 --> 00:31:14,160
Speaker 3: but they could. And so the Court basically is at

537
00:31:14,200 --> 00:31:16,960
Speaker 3: the end of the day, incredibly powerful in our country,

538
00:31:17,040 --> 00:31:19,960
Speaker 3: and it has the discretion then to decide its own docket,

539
00:31:20,520 --> 00:31:24,760
Speaker 3: and the excuse of the transition can even enhance their

540
00:31:24,840 --> 00:31:28,000
Speaker 3: power decide which issues to address and which not to.

541
00:31:28,720 --> 00:31:32,120
Speaker 1: The Court has been on an administrative law tare against

542
00:31:32,240 --> 00:31:35,920
Speaker 1: regulatory agencies. Do you think we'll still see that in

543
00:31:35,960 --> 00:31:37,080
Speaker 1: a Trump administration.

544
00:31:37,400 --> 00:31:40,040
Speaker 3: That's a great question. I've been wondering that myself, because

545
00:31:40,040 --> 00:31:45,680
Speaker 3: obviously their political leadings clash against their constitutional sort of

546
00:31:46,000 --> 00:31:49,160
Speaker 3: preference for common law decision making as opposed to that

547
00:31:49,200 --> 00:31:52,720
Speaker 3: by the regulatory state. And yet President Trump is going

548
00:31:52,760 --> 00:31:56,280
Speaker 3: to re rely on the regulatory state to push his agenda.

549
00:31:56,640 --> 00:31:59,240
Speaker 3: So it will be fascinating to see whether or not

550
00:31:59,800 --> 00:32:04,160
Speaker 3: the Court continues its aggressive drive. But one of the

551
00:32:04,200 --> 00:32:09,640
Speaker 3: issues that is interesting is what about the FED. The

552
00:32:09,680 --> 00:32:14,120
Speaker 3: FED traditionally has been considered to be independent. President Trump

553
00:32:14,240 --> 00:32:17,240
Speaker 3: has railed against at times the independence of the FED,

554
00:32:17,840 --> 00:32:21,480
Speaker 3: and so he might try to trigger a constitutional crisis

555
00:32:21,720 --> 00:32:25,080
Speaker 3: by firing the head of the FED, and then the

556
00:32:25,080 --> 00:32:28,360
Speaker 3: Court would have to decide whether or not Congress's restrictions

557
00:32:28,400 --> 00:32:32,239
Speaker 3: on the removability of the FED is constitutional or not.

558
00:32:32,360 --> 00:32:37,160
Speaker 3: So that is one instance when the Court might continue

559
00:32:37,240 --> 00:32:39,840
Speaker 3: it's push towards a unitary executive, which of course would

560
00:32:39,880 --> 00:32:42,520
Speaker 3: be embraced by President Trump.

561
00:32:43,040 --> 00:32:45,080
Speaker 1: Thanks so much for being on the show. Hal, That's

562
00:32:45,080 --> 00:32:48,280
Speaker 1: Professor Harold Krent of the Chicago Kent College of Law.

563
00:32:48,840 --> 00:32:51,480
Speaker 1: And that's it for this edition of the Bloomberg Law Podcast.

564
00:32:51,800 --> 00:32:54,200
Speaker 1: Remember you've can always get the latest legal news by

565
00:32:54,240 --> 00:32:58,040
Speaker 1: subscribing and listening to the show on Apple Podcasts, Spotify,

566
00:32:58,360 --> 00:33:02,200
Speaker 1: and at Bloomberg dot com, Rush podcast, slash Law. I'm

567
00:33:02,280 --> 00:33:04,680
Speaker 1: June Grosso and this is Bloomberg