1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. 2 00:00:09,440 --> 00:00:14,400 Speaker 1: Abortion rights advocates say the Supreme Court effectively blessed Texas's 3 00:00:14,480 --> 00:00:17,759 Speaker 1: ban on abortion, the strictest in the nation, with a 4 00:00:17,920 --> 00:00:21,680 Speaker 1: narrow ruling that left the law in force. The decision 5 00:00:21,760 --> 00:00:24,959 Speaker 1: said clinics and doctors could press claims in a federal 6 00:00:25,040 --> 00:00:28,479 Speaker 1: trial court against a handful of state officials, but not 7 00:00:28,720 --> 00:00:31,800 Speaker 1: others named in the lawsuit. The ruling could be a 8 00:00:31,840 --> 00:00:35,479 Speaker 1: bad sign for abortion rights advocates as they wait word 9 00:00:35,560 --> 00:00:38,640 Speaker 1: on the fate of Roe v. Wade, the landmark ruling 10 00:00:38,640 --> 00:00:42,920 Speaker 1: that legalized abortion in this country. My guest is Elizabeth Stepper, 11 00:00:43,159 --> 00:00:46,320 Speaker 1: a professor at the University of Texas Law School, tell 12 00:00:46,440 --> 00:00:50,519 Speaker 1: us what the Supreme Court decided. The Supreme Court issued 13 00:00:50,960 --> 00:00:55,720 Speaker 1: a very narrow win for abortion providers. That's really more 14 00:00:55,760 --> 00:00:59,040 Speaker 1: of a loss in practice. So the Supreme Court held 15 00:00:59,080 --> 00:01:02,720 Speaker 1: that the abortion provide riders could proceed in their lawsuits 16 00:01:02,760 --> 00:01:07,520 Speaker 1: only against state licensing authorities, so the sort of medical boards, 17 00:01:07,600 --> 00:01:12,319 Speaker 1: nursing boards that discipline doctors and nurses. But the court 18 00:01:12,400 --> 00:01:16,200 Speaker 1: said that the abortion providers can't pursue their lawsuit against 19 00:01:16,440 --> 00:01:20,679 Speaker 1: court clerks or state court judges or the Attorney General 20 00:01:20,880 --> 00:01:24,039 Speaker 1: of the State of Texas. In practice, what this means 21 00:01:24,200 --> 00:01:27,120 Speaker 1: is that the abortion providers will go back to federal 22 00:01:27,120 --> 00:01:30,360 Speaker 1: district Court in the state of Texas to litigate against 23 00:01:30,400 --> 00:01:34,560 Speaker 1: the licensing authorities. It means though that sp eight remains 24 00:01:34,600 --> 00:01:37,600 Speaker 1: an effect, it also means that the abortion providers are 25 00:01:37,640 --> 00:01:40,880 Speaker 1: going to have a hard time getting the relief that 26 00:01:40,920 --> 00:01:45,479 Speaker 1: they really need to resume their procedures because even if 27 00:01:45,480 --> 00:01:49,280 Speaker 1: they win in junctions against the licensing authorities and the 28 00:01:49,320 --> 00:01:53,480 Speaker 1: district court concludes that sp A is unconstitutional, that injunction 29 00:01:53,560 --> 00:01:57,160 Speaker 1: isn't going to apply against the court clerks, and the 30 00:01:57,200 --> 00:02:00,720 Speaker 1: court clerks are really essential because the argument us they 31 00:02:00,800 --> 00:02:04,840 Speaker 1: could stop SBA lawsuits from going forward, they would just 32 00:02:04,920 --> 00:02:10,440 Speaker 1: be enjoined blocked, that is, from docketing complaints by private 33 00:02:10,480 --> 00:02:13,680 Speaker 1: citizens that can be filed under the Texas law. So 34 00:02:13,760 --> 00:02:16,440 Speaker 1: because they don't have that, abortion providers really are facing 35 00:02:16,440 --> 00:02:20,000 Speaker 1: a laws they can't start up serving patients again, at 36 00:02:20,040 --> 00:02:22,760 Speaker 1: least at this point. Do you think the court was 37 00:02:22,840 --> 00:02:25,360 Speaker 1: just trying to find a way to allow the case 38 00:02:25,440 --> 00:02:30,639 Speaker 1: to continue to try to quiet the public fewer around it. 39 00:02:31,240 --> 00:02:35,440 Speaker 1: If so, it was very strange, right, Um, It's sort 40 00:02:35,440 --> 00:02:40,160 Speaker 1: of baffling what happened at the Court over the past months, 41 00:02:40,200 --> 00:02:44,400 Speaker 1: because the Supreme Court had SBA before it at the 42 00:02:44,600 --> 00:02:48,320 Speaker 1: end of August, had the opportunity to stop SB eight 43 00:02:48,440 --> 00:02:51,440 Speaker 1: from going into effect, when it failed to do so, 44 00:02:51,600 --> 00:02:55,000 Speaker 1: and frankly surprised a lot of people and failing to 45 00:02:55,080 --> 00:02:57,960 Speaker 1: block the law before it went into effect, given that 46 00:02:58,080 --> 00:03:02,320 Speaker 1: it's straightforwardly uncons institutional to have a six week ban 47 00:03:02,600 --> 00:03:05,800 Speaker 1: under the Court's presidents, that was shocking. So when the 48 00:03:05,840 --> 00:03:10,359 Speaker 1: Court then took up the issue of SPID again, that 49 00:03:10,520 --> 00:03:14,400 Speaker 1: seemed to suggest that the Court was responding to public 50 00:03:14,480 --> 00:03:17,880 Speaker 1: pressure and was going to act differently, if only to 51 00:03:18,000 --> 00:03:22,760 Speaker 1: preserve the authority of federal courts to decide constitutional questions. 52 00:03:23,120 --> 00:03:27,079 Speaker 1: But that's not really what happened. Then last week when 53 00:03:27,080 --> 00:03:30,520 Speaker 1: we got a ruling again from the Court, because the 54 00:03:30,560 --> 00:03:34,920 Speaker 1: Court didn't say that federal courts have the power to 55 00:03:35,320 --> 00:03:40,800 Speaker 1: substantively block these state court clerks from docketing the petition, 56 00:03:40,880 --> 00:03:44,360 Speaker 1: and it's sort of weak relief for the abortion providers 57 00:03:44,400 --> 00:03:47,880 Speaker 1: that they might get an injunction against the licensing authorities, 58 00:03:47,920 --> 00:03:51,360 Speaker 1: because really the licensing authority power is a power to 59 00:03:51,480 --> 00:03:56,840 Speaker 1: discipline after the providers have been sued and after a 60 00:03:56,960 --> 00:04:01,320 Speaker 1: judgment has been issued under spiate in favor of private plaintiffs. 61 00:04:01,320 --> 00:04:04,400 Speaker 1: So it's not super helpful to the providers. It doesn't 62 00:04:05,000 --> 00:04:09,520 Speaker 1: lift the status in Texas, which is that abortion is 63 00:04:09,560 --> 00:04:13,600 Speaker 1: effectively blocked and we don't have our constitutional right to 64 00:04:13,640 --> 00:04:18,560 Speaker 1: abortion in place. Justice Neil Gorst wrote the majority opinion, 65 00:04:19,040 --> 00:04:23,240 Speaker 1: explain his reasoning. So it was an eight one decision, 66 00:04:23,520 --> 00:04:28,440 Speaker 1: but it doesn't really reflect unanimity of the court justice course, 67 00:04:28,480 --> 00:04:31,480 Speaker 1: which had to go through a number of the defendants 68 00:04:31,640 --> 00:04:36,200 Speaker 1: named by the abortion providers. So he said that the 69 00:04:36,279 --> 00:04:42,360 Speaker 1: judges and court clerks have sovereign immunity, so they're immunized 70 00:04:42,760 --> 00:04:48,440 Speaker 1: due to concerns about federalism. So federal courts are limited 71 00:04:48,480 --> 00:04:53,680 Speaker 1: in their ability to tell state actor, especially state court systems, 72 00:04:53,760 --> 00:04:57,240 Speaker 1: what to do, how to approach litigation, and so his 73 00:04:57,360 --> 00:05:01,799 Speaker 1: argument was that these actors have immunity under a doctor 74 00:05:01,960 --> 00:05:05,320 Speaker 1: known as ex parte young. He also said there wasn't 75 00:05:05,320 --> 00:05:09,840 Speaker 1: a real case in controversy because the judges and the 76 00:05:09,839 --> 00:05:13,680 Speaker 1: court clerks are not oppositional to the abortion providers the 77 00:05:13,760 --> 00:05:17,240 Speaker 1: way your average defendant would be. He then said that 78 00:05:17,480 --> 00:05:21,120 Speaker 1: Attorney General Paxton was not a proper defendant. Here, the 79 00:05:21,160 --> 00:05:25,440 Speaker 1: abortion providers had argued that essentially the Attorney General had 80 00:05:25,760 --> 00:05:30,960 Speaker 1: delegated authority, had empowered private citizens around the country to 81 00:05:31,120 --> 00:05:35,240 Speaker 1: act as his agents in the enforcement of this statute. 82 00:05:35,520 --> 00:05:39,080 Speaker 1: But here too, Justice Corsets said the abortion providers had 83 00:05:39,200 --> 00:05:42,800 Speaker 1: not identified a proper defendant, that the Attorney General doesn't 84 00:05:42,839 --> 00:05:45,919 Speaker 1: have the power to force sp A to all that 85 00:05:46,040 --> 00:05:49,960 Speaker 1: was left where the licensing authorities, and they're Justice Gorsuch said, 86 00:05:50,000 --> 00:05:52,520 Speaker 1: you know what, there is evidence in the way that 87 00:05:52,600 --> 00:05:57,080 Speaker 1: the statutory structure worked that the licensing authorities could ultimately 88 00:05:57,200 --> 00:06:00,240 Speaker 1: enforce sp A. The problem with that reason in thing 89 00:06:00,560 --> 00:06:03,040 Speaker 1: is that we could see the State of Texas go 90 00:06:03,120 --> 00:06:06,360 Speaker 1: back to the drawing board, make clear that the licensing 91 00:06:06,440 --> 00:06:10,640 Speaker 1: authorities don't have any power to enforce SB eight, and 92 00:06:10,680 --> 00:06:13,359 Speaker 1: then there's no defendant left at all, no one for 93 00:06:13,400 --> 00:06:16,320 Speaker 1: the abortion providers to sue. And I expect we will 94 00:06:16,360 --> 00:06:19,719 Speaker 1: see that model in other states that are thinking about 95 00:06:19,800 --> 00:06:24,200 Speaker 1: copycat SBA abortion laws. It was an eight to one vote, 96 00:06:24,279 --> 00:06:28,960 Speaker 1: but there is a blistering descent by the liberals. Justice 97 00:06:28,960 --> 00:06:31,840 Speaker 1: Sonia Sotomayor wrote the court should have put an end 98 00:06:31,880 --> 00:06:35,360 Speaker 1: to this madness months ago, before s b A first 99 00:06:35,400 --> 00:06:39,359 Speaker 1: went into effect. So Justice Spread of Mayor on the 100 00:06:39,400 --> 00:06:43,840 Speaker 1: issue of state immunity pointed to the fact that ex 101 00:06:43,920 --> 00:06:48,839 Speaker 1: per Day Young contains an important principle, and that principle 102 00:06:49,040 --> 00:06:55,000 Speaker 1: is that states can't create an end run around the Constitution. 103 00:06:55,480 --> 00:06:59,719 Speaker 1: They can't create a system that doesn't allow federal court 104 00:07:00,040 --> 00:07:03,520 Speaker 1: oversight of federal rights. So even though there's a language 105 00:07:03,520 --> 00:07:07,200 Speaker 1: and export a Young that suggests that normally state court 106 00:07:07,279 --> 00:07:11,240 Speaker 1: judges can't be sued, um that the Supreme Court here 107 00:07:11,360 --> 00:07:15,560 Speaker 1: should have allowed state court clerk to be sued and 108 00:07:15,560 --> 00:07:19,360 Speaker 1: should have done so on the basis that otherwise Texas 109 00:07:19,440 --> 00:07:25,160 Speaker 1: has purposely created a statute that avoids the federal courts 110 00:07:25,240 --> 00:07:31,120 Speaker 1: and allows end run around individuals constitutional rights. What happens 111 00:07:31,120 --> 00:07:35,440 Speaker 1: now in Texas courts, So there's still so much going on. 112 00:07:35,720 --> 00:07:39,280 Speaker 1: So the abortion providers returned to federal courts, and in 113 00:07:39,360 --> 00:07:44,520 Speaker 1: the district court there is litigation in Texas involving fourteen 114 00:07:44,640 --> 00:07:49,600 Speaker 1: cases that were consolidated and where the Texas Judge judge 115 00:07:49,640 --> 00:07:53,360 Speaker 1: people just last week did conclude that a number of 116 00:07:53,360 --> 00:07:58,720 Speaker 1: the provisions were unconstitutional as a matter of the Texas constitutions. 117 00:07:58,760 --> 00:08:02,200 Speaker 1: This was a decision, as he said, was about civil procedure, 118 00:08:02,360 --> 00:08:05,080 Speaker 1: not abortion. So he made a number of rulings in 119 00:08:05,120 --> 00:08:09,760 Speaker 1: those fourteen cases on the issue of standing and the 120 00:08:09,760 --> 00:08:14,600 Speaker 1: statutory damages award, and also where the proceedings can be filed. 121 00:08:15,240 --> 00:08:19,040 Speaker 1: He did not issue an injunction, but we can expect 122 00:08:19,040 --> 00:08:21,760 Speaker 1: that when the providers go back to the various courts 123 00:08:21,800 --> 00:08:25,000 Speaker 1: in which these fourteen cases have been filed, that some 124 00:08:25,840 --> 00:08:30,280 Speaker 1: injunctions will issue again. The problem is that sp eight 125 00:08:30,600 --> 00:08:35,720 Speaker 1: has constructed a regime that doesn't really allow for finality. 126 00:08:35,880 --> 00:08:39,440 Speaker 1: And finality is an important due process rule of law 127 00:08:39,559 --> 00:08:44,559 Speaker 1: value that means you can't keep being food you don't 128 00:08:44,679 --> 00:08:49,079 Speaker 1: have the specter of a future lawsuit hanging over you 129 00:08:49,200 --> 00:08:53,160 Speaker 1: after you win. But SPA creates that exact system, so 130 00:08:54,120 --> 00:08:56,800 Speaker 1: it says things like that there's not going to be 131 00:08:56,840 --> 00:08:59,959 Speaker 1: issue our claim preclusion, so once he's litigated a claim, 132 00:09:00,080 --> 00:09:04,920 Speaker 1: me litigated an issue, it's then not final for later lawsuits. 133 00:09:04,960 --> 00:09:08,240 Speaker 1: It also says that even if you win, if your 134 00:09:08,280 --> 00:09:12,600 Speaker 1: win is ultimately overturned on appeal, you're going to be 135 00:09:12,679 --> 00:09:17,360 Speaker 1: held liable for the abortions provided in the interim. So 136 00:09:17,400 --> 00:09:20,559 Speaker 1: it is possible that we will see some abortion providers 137 00:09:20,600 --> 00:09:25,520 Speaker 1: based on judge People's decision in the Texas courts, and 138 00:09:25,559 --> 00:09:28,920 Speaker 1: the and the subsequent decisions in Texas Court begin to 139 00:09:29,040 --> 00:09:32,400 Speaker 1: perform abortions again, but they will only do so with 140 00:09:32,600 --> 00:09:39,280 Speaker 1: a real cloud of possible potential future litigation hanging over them. 141 00:09:39,320 --> 00:09:43,560 Speaker 1: Everyone is looking towards the Mississippi case. Does this in 142 00:09:43,640 --> 00:09:46,480 Speaker 1: any way indicate what the Court will do in the 143 00:09:46,520 --> 00:09:51,800 Speaker 1: Mississippi case that it will overturn Roe v. Wade. I 144 00:09:51,840 --> 00:09:55,560 Speaker 1: would read the Mississippi case uh one where the outcome 145 00:09:55,640 --> 00:09:59,120 Speaker 1: is fairly predictable, um that Mississippi is going to win. 146 00:09:59,760 --> 00:10:03,680 Speaker 1: I'm not sure the degree to which the SB eight 147 00:10:03,760 --> 00:10:08,600 Speaker 1: opinion tells us anything we didn't already know. Maybe what 148 00:10:08,760 --> 00:10:12,920 Speaker 1: it suggests is that the Conservatives are going to act 149 00:10:13,080 --> 00:10:16,360 Speaker 1: as a block. And I think you know, after the 150 00:10:16,520 --> 00:10:20,120 Speaker 1: oral argument in the Mississippi case, there continued to be 151 00:10:20,160 --> 00:10:24,079 Speaker 1: a lot of discussion over whether Chief Justice Roberts could 152 00:10:24,120 --> 00:10:29,600 Speaker 1: convince other conservative justices to adopt something that looks slightly 153 00:10:29,720 --> 00:10:32,840 Speaker 1: more moderate. It would not be moderate, but slightly more 154 00:10:32,960 --> 00:10:37,959 Speaker 1: moderate or sneaky than saying the words we overrule Roe v. 155 00:10:38,120 --> 00:10:41,800 Speaker 1: Waves I would say that s the eight opinion maybe 156 00:10:41,840 --> 00:10:45,800 Speaker 1: suggests that he has really lost controls of the court, 157 00:10:46,160 --> 00:10:49,480 Speaker 1: that it's no longer the Roberts Court, it might be 158 00:10:49,679 --> 00:10:52,640 Speaker 1: the Barratt Court, it might be the kavanaughh Court, it 159 00:10:52,720 --> 00:10:55,520 Speaker 1: might be the Gorsage Court. And it doesn't look like 160 00:10:55,640 --> 00:11:00,240 Speaker 1: he's going to be able to push conservative justices to 161 00:11:00,400 --> 00:11:03,440 Speaker 1: at least, through a sleight of hand, pretend that they're 162 00:11:03,520 --> 00:11:08,760 Speaker 1: less conservative than they've seen. And without any explanation, the 163 00:11:08,800 --> 00:11:13,000 Speaker 1: Supreme Court turned away the Justice departments bid to block 164 00:11:13,280 --> 00:11:18,200 Speaker 1: the Texas law. What do you make of that? Right? So, 165 00:11:18,480 --> 00:11:23,280 Speaker 1: the Justice Apartment Department had actually um sued and received 166 00:11:23,520 --> 00:11:26,200 Speaker 1: relief on the merits, but district court had ruled that 167 00:11:26,400 --> 00:11:31,000 Speaker 1: s P eight was unconstitutional under Supreme Court doctrine UM. 168 00:11:31,080 --> 00:11:33,160 Speaker 1: And then the Keiths went up to the Fifth Circuit, 169 00:11:33,320 --> 00:11:39,400 Speaker 1: which lifted UH, stayed the injunction um, and blocked abortions 170 00:11:39,480 --> 00:11:42,880 Speaker 1: yet again. They briefly were being performed for about a 171 00:11:42,880 --> 00:11:46,680 Speaker 1: thirty six hour period UM, and the Justice Department went 172 00:11:46,720 --> 00:11:50,440 Speaker 1: to the Supreme Court, which is now UH dismissed the 173 00:11:50,440 --> 00:11:54,800 Speaker 1: petition as improvidently granted, which is a Supreme Court way 174 00:11:54,840 --> 00:11:57,880 Speaker 1: of saying, oops, we should not have granted this petition. 175 00:11:58,320 --> 00:12:00,960 Speaker 1: Let's send it back to the Fifth ar gut for 176 00:12:01,200 --> 00:12:04,840 Speaker 1: oral argument and decision on the merits. So the Justice 177 00:12:04,840 --> 00:12:08,840 Speaker 1: Department is now in the fifth circuit um and we'll 178 00:12:08,880 --> 00:12:12,920 Speaker 1: see when the Court is willing to hear arguments in 179 00:12:13,000 --> 00:12:16,760 Speaker 1: that matter. I would suspect sometime early in the new year. 180 00:12:17,360 --> 00:12:19,559 Speaker 1: Was it was that just a Supreme Court kicking the 181 00:12:19,640 --> 00:12:23,160 Speaker 1: can down the road for a bit. So it was, 182 00:12:24,000 --> 00:12:28,120 Speaker 1: you know, after oral argument on s B A, folks 183 00:12:28,280 --> 00:12:31,600 Speaker 1: predicted that the abortion providers would win. And because the 184 00:12:31,640 --> 00:12:37,160 Speaker 1: abortion providers won and would be able to speak full relief, 185 00:12:37,960 --> 00:12:40,640 Speaker 1: it made less sense for the Department of Justice to 186 00:12:40,679 --> 00:12:45,160 Speaker 1: pursue a lawsuit because there were individuals who could assert 187 00:12:45,800 --> 00:12:50,160 Speaker 1: the Constitution against this law. But the Supreme Court didn't 188 00:12:50,160 --> 00:12:54,360 Speaker 1: really give abortion providers a win. Right. There's still no 189 00:12:55,480 --> 00:12:59,680 Speaker 1: person who can globally challenge s B eight in the 190 00:12:59,679 --> 00:13:02,600 Speaker 1: federal all courts. So that actually should have put more 191 00:13:02,720 --> 00:13:06,959 Speaker 1: pressure on siding with the United States at the Supreme Court. 192 00:13:07,080 --> 00:13:09,400 Speaker 1: But it's exactly the opposite of what the Court did. 193 00:13:09,640 --> 00:13:12,959 Speaker 1: It really did kick the can down the road, maybe 194 00:13:13,000 --> 00:13:17,120 Speaker 1: with the idea that by the time the Justice Department 195 00:13:17,200 --> 00:13:20,439 Speaker 1: suit comes back to it, it will have a viscerated 196 00:13:20,520 --> 00:13:25,160 Speaker 1: the right to abortion in the Mississippi Gay Indscent Justice 197 00:13:25,240 --> 00:13:29,800 Speaker 1: Sonia Soto Mayor said the ruling could reach beyond abortion 198 00:13:30,080 --> 00:13:35,400 Speaker 1: to enact laws that nullify constitutional rights from abortion to guns, 199 00:13:35,440 --> 00:13:39,240 Speaker 1: to religion. And that's exactly what the governor is trying 200 00:13:39,280 --> 00:13:45,080 Speaker 1: to do in California with regard to guns. Yes and no, um, 201 00:13:45,120 --> 00:13:49,520 Speaker 1: you know, to some extent, it's a political stunt. Um, 202 00:13:49,559 --> 00:13:55,040 Speaker 1: it's a political stunt because the California law that the 203 00:13:55,120 --> 00:13:59,480 Speaker 1: governor may or may not propose is one that doesn't 204 00:13:59,559 --> 00:14:05,040 Speaker 1: actually infringe on constitutional rights. Right. So the idea is that, um, 205 00:14:05,120 --> 00:14:09,120 Speaker 1: the law would allow one s fellow citizens to sue 206 00:14:09,120 --> 00:14:14,720 Speaker 1: one for you know, providing ghost guns, providing assault weapons 207 00:14:14,800 --> 00:14:18,840 Speaker 1: and manufacturing them, um, and so on owning them. But 208 00:14:18,960 --> 00:14:22,000 Speaker 1: none if those are rights protected by the U. S. 209 00:14:22,040 --> 00:14:26,400 Speaker 1: Constitution or any interpretation of the Supreme Court. The Supreme 210 00:14:26,480 --> 00:14:32,280 Speaker 1: Court relatively recently determined that the Second Amendment, which creates 211 00:14:32,320 --> 00:14:36,440 Speaker 1: a right to form militias, extends to gun ownership in 212 00:14:36,560 --> 00:14:39,520 Speaker 1: one's home. But they were talking about handguns, and they 213 00:14:39,520 --> 00:14:43,160 Speaker 1: were talking about in one's home. And courts of appeals 214 00:14:43,160 --> 00:14:47,360 Speaker 1: that have dealt with issues of assault weapons or ghost 215 00:14:47,400 --> 00:14:51,920 Speaker 1: guns have actually sided with the government held that there 216 00:14:52,040 --> 00:14:55,760 Speaker 1: was no violation of constitutional rights. So in that sense, 217 00:14:55,800 --> 00:14:58,280 Speaker 1: it's the dis analogy. We would have to see something 218 00:14:58,800 --> 00:15:02,720 Speaker 1: um that got it with core of constitutional rights, which 219 00:15:02,760 --> 00:15:06,520 Speaker 1: is possible. The Supreme Court has really handed both blue 220 00:15:06,560 --> 00:15:10,480 Speaker 1: and red states a template for designing an espiate that 221 00:15:10,720 --> 00:15:14,680 Speaker 1: applies the speech or guns or the takings clause. Thanks 222 00:15:14,680 --> 00:15:17,520 Speaker 1: for being on the Bloomberg Last Show, Liz. That's Professor 223 00:15:17,560 --> 00:15:23,360 Speaker 1: Elizabeth Supper of the University of Texas Law School. The 224 00:15:23,400 --> 00:15:26,000 Speaker 1: House has voted to whole former White House Chief of 225 00:15:26,080 --> 00:15:29,960 Speaker 1: Staff Mark Meadows in contempt of Congress after he stopped 226 00:15:30,000 --> 00:15:34,280 Speaker 1: cooperating with the January six committee investigating the Capital Insurrection. 227 00:15:34,560 --> 00:15:37,360 Speaker 1: Meadows is the first former White House Chief of Staff 228 00:15:37,600 --> 00:15:41,920 Speaker 1: nearly fifty years to face prosecution. Here's Committee Chair Benny 229 00:15:42,040 --> 00:15:45,680 Speaker 1: Thompson and Committee Vice Chair Liz Cheney. And when a 230 00:15:45,760 --> 00:15:50,479 Speaker 1: witness defies the law, that amounts to more than obstruction 231 00:15:51,080 --> 00:15:54,760 Speaker 1: our investigation. It's an attack on the rule of law. 232 00:15:56,440 --> 00:15:59,360 Speaker 1: We wish that we did not have to meet today 233 00:16:00,240 --> 00:16:05,480 Speaker 1: to urge our colleagues to vote vote criminal contempt for 234 00:16:05,560 --> 00:16:07,760 Speaker 1: one of our former colleagues and the former chief of 235 00:16:07,800 --> 00:16:11,800 Speaker 1: staff to President Trump. We don't take this step lightly, 236 00:16:12,520 --> 00:16:16,920 Speaker 1: but Republicans denounced what they called overreached by the Democrats. 237 00:16:16,960 --> 00:16:21,120 Speaker 1: Here's Representative Jim Banks. MR. Meadows agreed to sit for 238 00:16:21,160 --> 00:16:25,040 Speaker 1: a deposition if it was limited to areas not protected 239 00:16:25,080 --> 00:16:29,600 Speaker 1: by executive privilege. He tried to cooperate, but the Select 240 00:16:29,640 --> 00:16:34,600 Speaker 1: Committee didn't care. The near party line two two to 241 00:16:34,720 --> 00:16:38,000 Speaker 1: two hundred eight vote on Tuesday is the second time 242 00:16:38,040 --> 00:16:40,440 Speaker 1: the Special Committee has sought to punish a witness for 243 00:16:40,560 --> 00:16:44,640 Speaker 1: defying a subpoena. Former Trump adviser Steve Bannon has already 244 00:16:44,680 --> 00:16:48,200 Speaker 1: been indicted for criminal contempt for refusing to testify to 245 00:16:48,240 --> 00:16:51,720 Speaker 1: the panel, and he awaits trial in July. The question 246 00:16:51,760 --> 00:16:55,120 Speaker 1: now is whether the Justice Department will decide to prosecute 247 00:16:55,160 --> 00:16:59,440 Speaker 1: Meadows as it's prosecuting Bannon. Joining me is William Banks, 248 00:16:59,440 --> 00:17:03,560 Speaker 1: a profess or at Syracuse University Law School. What's the 249 00:17:03,640 --> 00:17:07,400 Speaker 1: import of the House voting to hold Meadows in contempt 250 00:17:07,440 --> 00:17:11,600 Speaker 1: of Congress? Well, I think the Meadows case is similar 251 00:17:11,680 --> 00:17:15,399 Speaker 1: to the Bannon matter and others that may be coming 252 00:17:15,440 --> 00:17:19,760 Speaker 1: down the pike. With the continuing investigation. They authorized the 253 00:17:19,880 --> 00:17:24,280 Speaker 1: Justice Department to proceed with prosecution. It's a referral, it's 254 00:17:24,320 --> 00:17:27,199 Speaker 1: not a prosecution itself, and it is certainly not the 255 00:17:27,320 --> 00:17:29,760 Speaker 1: end of the road. So, just as they did in 256 00:17:29,800 --> 00:17:32,600 Speaker 1: the Bannon matter, the Department is going to have to 257 00:17:32,680 --> 00:17:37,320 Speaker 1: consider whether to convene a grand jury to indict Meadows. 258 00:17:37,480 --> 00:17:40,280 Speaker 1: The questions are a bit different with Meadows than they 259 00:17:40,280 --> 00:17:42,800 Speaker 1: were with Bannon, because the Meadows, of course, with Chief 260 00:17:42,800 --> 00:17:46,080 Speaker 1: of Staff, he had a close relationship with the President 261 00:17:46,119 --> 00:17:49,199 Speaker 1: as an official matter. Bannon did not certainly did not 262 00:17:49,359 --> 00:17:53,400 Speaker 1: at that time. So the questions about executive privilege will 263 00:17:53,440 --> 00:17:58,439 Speaker 1: be a little more delicate and nuanced, I suppose in 264 00:17:58,680 --> 00:18:02,560 Speaker 1: deciding to what extent Meadows might be privileged in the 265 00:18:02,640 --> 00:18:06,720 Speaker 1: material that he wishes to withhold from the committees. As 266 00:18:06,760 --> 00:18:10,080 Speaker 1: we know, he was cooperating up to a point, and 267 00:18:10,160 --> 00:18:12,840 Speaker 1: some of the stuff that he turned over seemingly is 268 00:18:12,960 --> 00:18:17,240 Speaker 1: of value in the January sixth investigation. So I would 269 00:18:17,240 --> 00:18:20,239 Speaker 1: think that there's more there that the committees would very 270 00:18:20,320 --> 00:18:23,119 Speaker 1: much like to have, and Justice will have to figure 271 00:18:23,119 --> 00:18:26,240 Speaker 1: out whether they can reasonably request it in light of 272 00:18:26,280 --> 00:18:29,399 Speaker 1: claims of privilege that he might make. His claims of 273 00:18:29,480 --> 00:18:32,600 Speaker 1: privilege would have been stronger if he hadn't turned over 274 00:18:32,640 --> 00:18:36,720 Speaker 1: those documents, and if he hadn't written a book on 275 00:18:36,880 --> 00:18:39,879 Speaker 1: his time in the White House. Will justice consider that 276 00:18:39,960 --> 00:18:43,080 Speaker 1: as well? I think they will, And you know, I 277 00:18:43,119 --> 00:18:46,920 Speaker 1: think there's lots of room to navigate the area of 278 00:18:47,520 --> 00:18:50,840 Speaker 1: executive privilege. And you know, underlying all of this is 279 00:18:50,840 --> 00:18:53,920 Speaker 1: the fact now that the president that he was trying 280 00:18:53,920 --> 00:18:56,800 Speaker 1: to protect is no longer the president, and that the 281 00:18:56,800 --> 00:19:01,440 Speaker 1: current president has authorized the investigations, so that colors what 282 00:19:01,640 --> 00:19:05,320 Speaker 1: the courts might say about arguments of privilege at this 283 00:19:05,480 --> 00:19:09,479 Speaker 1: stage of the game. Turning to another subject, the District 284 00:19:09,560 --> 00:19:13,360 Speaker 1: of Columbia has sued the Proud Boys and the Oathkeepers 285 00:19:13,880 --> 00:19:17,840 Speaker 1: to right wing groups for allegedly conspiring to terrorize the 286 00:19:17,960 --> 00:19:23,840 Speaker 1: US capital on January six. Tell us more about the lawsuit. Well, 287 00:19:23,880 --> 00:19:27,960 Speaker 1: this is a very interesting development. The government of the 288 00:19:28,040 --> 00:19:33,760 Speaker 1: District of Columbia is suing in civil court the Proud 289 00:19:33,800 --> 00:19:37,040 Speaker 1: Boys and the Oathkeepers and many of the individual members 290 00:19:37,080 --> 00:19:41,560 Speaker 1: of those organizations for damages as a result of their 291 00:19:41,600 --> 00:19:45,639 Speaker 1: attack on the Capitol on January the six. As we 292 00:19:45,720 --> 00:19:51,159 Speaker 1: all know, there there is ongoing criminal investigations of January 293 00:19:51,240 --> 00:19:54,280 Speaker 1: six by the federal government, and many of the Proud 294 00:19:54,320 --> 00:19:59,320 Speaker 1: Boys and Oathkeepers have been implicated in those criminal investigations. 295 00:19:59,320 --> 00:20:01,840 Speaker 1: Some of them have than charged, a few of them 296 00:20:01,840 --> 00:20:06,240 Speaker 1: have even taken Please most of them are defending against 297 00:20:06,240 --> 00:20:09,920 Speaker 1: those actions, but the civil suit is something different. D C. 298 00:20:10,160 --> 00:20:13,360 Speaker 1: Of course, the DC police in particular, we're a hard 299 00:20:13,480 --> 00:20:19,840 Speaker 1: hit on January six and the many injuries two officers. 300 00:20:20,200 --> 00:20:25,040 Speaker 1: Tremendous amount of resource was committed to defending the District 301 00:20:25,119 --> 00:20:28,960 Speaker 1: Columbia on that day and the days after, So the 302 00:20:29,280 --> 00:20:33,159 Speaker 1: DC is trying to recoup some of what they lost. 303 00:20:34,280 --> 00:20:38,639 Speaker 1: The Proud Boys dissolved their national leadership after January six. 304 00:20:38,680 --> 00:20:42,239 Speaker 1: That is being run by local chapters. So where is 305 00:20:42,640 --> 00:20:48,040 Speaker 1: the money for damages going to come from? If DC wins. Yeah, 306 00:20:48,119 --> 00:20:50,560 Speaker 1: well that's a very good question. There may not be 307 00:20:50,720 --> 00:20:53,439 Speaker 1: much money for damages except to the scent any of 308 00:20:53,480 --> 00:20:57,679 Speaker 1: these individuals have have means, and probably not many of 309 00:20:57,720 --> 00:21:01,200 Speaker 1: them do. It is true that they've dissolved their national 310 00:21:01,280 --> 00:21:04,520 Speaker 1: leadership and their strategy seems to have changed to try 311 00:21:04,560 --> 00:21:11,679 Speaker 1: to influence local communities, school boards, local governments, and the like. 312 00:21:12,480 --> 00:21:16,080 Speaker 1: That certainly doesn't insulate them from from the reach of 313 00:21:16,200 --> 00:21:19,919 Speaker 1: federal law and litigation, but they may be judgment proof, 314 00:21:20,200 --> 00:21:22,239 Speaker 1: so that you know if there is a judgment. I 315 00:21:22,240 --> 00:21:25,199 Speaker 1: think the law lines up very strongly in favor of 316 00:21:25,240 --> 00:21:28,800 Speaker 1: the government here. If they do get a judgment in court, 317 00:21:29,280 --> 00:21:33,280 Speaker 1: it may be relatively unenforceable, but still would send an 318 00:21:33,320 --> 00:21:37,960 Speaker 1: important symbolic message. The d C Attorney General said, this 319 00:21:38,080 --> 00:21:40,159 Speaker 1: act was not a protest or a rally. It was 320 00:21:40,200 --> 00:21:44,440 Speaker 1: a coordinated act of domestic terrorism. So why aren't they 321 00:21:44,480 --> 00:21:50,760 Speaker 1: being prosecuted for that by the Justice Department Domestic terrorism? Yeah, well, 322 00:21:51,600 --> 00:21:54,399 Speaker 1: there are a couple of issues here. The basic issue 323 00:21:54,480 --> 00:21:58,800 Speaker 1: is that there is not a discrete crime of domestic terrorism. 324 00:21:58,880 --> 00:22:01,920 Speaker 1: There are a series of times that can be charged 325 00:22:02,080 --> 00:22:05,240 Speaker 1: related to the acts that we would call domestic terrorism, 326 00:22:05,800 --> 00:22:08,800 Speaker 1: but because of concerns about the First Amendment, and because 327 00:22:08,800 --> 00:22:13,800 Speaker 1: of concerns based on our history of protecting expressive conduct, 328 00:22:14,240 --> 00:22:18,760 Speaker 1: we've been very careful not to define something called domestic terrorism. 329 00:22:19,359 --> 00:22:22,200 Speaker 1: The other point, though, is that you know the law 330 00:22:22,440 --> 00:22:25,960 Speaker 1: is an historical irony here. The law into which these 331 00:22:26,440 --> 00:22:30,960 Speaker 1: individuals are being sued was was passed after the Civil War, 332 00:22:31,000 --> 00:22:34,399 Speaker 1: and it's known euphemistically as the Ku Klux Klan Act 333 00:22:35,080 --> 00:22:37,680 Speaker 1: because it was put into place in eighteen seventy one 334 00:22:38,119 --> 00:22:40,960 Speaker 1: to allow the government to stand in the way of 335 00:22:41,040 --> 00:22:44,760 Speaker 1: the clan that was trying to disrupt the newly reconstituted 336 00:22:44,800 --> 00:22:47,920 Speaker 1: states in the South, and they were doing essentially with 337 00:22:48,040 --> 00:22:51,000 Speaker 1: the Proud Boys and the Oathkeepers did on January six, 338 00:22:51,400 --> 00:22:54,520 Speaker 1: trying to interfere with the conduct of government affairs and 339 00:22:54,640 --> 00:22:57,679 Speaker 1: government business by getting in the way of government officials. 340 00:22:58,520 --> 00:23:01,119 Speaker 1: So I want you to listen to what a lawyer 341 00:23:01,160 --> 00:23:06,159 Speaker 1: for two of the defendants named in the suit, Jonathan Moseley, said, quote, 342 00:23:06,359 --> 00:23:09,359 Speaker 1: neither the Proud Boys nor the Oath Keepers were remotely 343 00:23:09,480 --> 00:23:13,240 Speaker 1: interested in obstructing the Joint Session of Congress on January six, 344 00:23:13,600 --> 00:23:16,880 Speaker 1: because that would leave no one as president, elevating Nancy 345 00:23:16,920 --> 00:23:21,239 Speaker 1: Pelosi to the presidency. So I'm wondering how you take that, 346 00:23:21,320 --> 00:23:23,919 Speaker 1: whether it's just sort of tongue in cheek. It's not 347 00:23:24,000 --> 00:23:28,280 Speaker 1: a real defense. It's not a defense. I mean. So, 348 00:23:28,440 --> 00:23:33,119 Speaker 1: of course, the charges in the indictment or in the 349 00:23:33,200 --> 00:23:36,359 Speaker 1: civil action here today. The complaint by the way, runs 350 00:23:36,359 --> 00:23:41,560 Speaker 1: at pages I read through it this morning and and 351 00:23:41,640 --> 00:23:49,080 Speaker 1: I was cursing you under my breath. I'm sorry, I'm joking. 352 00:23:49,600 --> 00:23:52,800 Speaker 1: Is quite an interesting complaint. So that the charges under 353 00:23:52,840 --> 00:23:55,359 Speaker 1: the federal law of the so called ku Klux Klan 354 00:23:55,440 --> 00:23:58,720 Speaker 1: actor is going to require that the development who that 355 00:23:58,880 --> 00:24:05,359 Speaker 1: the individuals conspired to intend to intimidate, to coerce, to 356 00:24:05,600 --> 00:24:09,560 Speaker 1: disrupt UH these officials from going about their business. I 357 00:24:09,560 --> 00:24:12,640 Speaker 1: think from what we've learned in the criminal investigation so 358 00:24:12,680 --> 00:24:15,200 Speaker 1: far and what we could see from video and still 359 00:24:15,200 --> 00:24:18,720 Speaker 1: images of that day, that's exactly what was going on. 360 00:24:19,640 --> 00:24:23,000 Speaker 1: Whether it was to leave Nancy Pelosi as as putative 361 00:24:23,040 --> 00:24:26,760 Speaker 1: president or not. They were attempting to disrupt the affairs 362 00:24:26,960 --> 00:24:29,960 Speaker 1: of Congress as they tried to certify the results of 363 00:24:30,040 --> 00:24:34,520 Speaker 1: the election. So it's going to require proof. But the proof, 364 00:24:35,040 --> 00:24:39,960 Speaker 1: you know, is essentially been developed by the Justice Department 365 00:24:40,000 --> 00:24:43,080 Speaker 1: on the criminal side and and the civil court. The 366 00:24:43,160 --> 00:24:47,359 Speaker 1: dc UH officials who are prosecuting the case bringing the 367 00:24:47,440 --> 00:24:51,600 Speaker 1: case concertainly suit use that material to approve their case 368 00:24:51,640 --> 00:24:55,320 Speaker 1: against these individual Proud Boys and Keepers and against the 369 00:24:55,400 --> 00:24:59,600 Speaker 1: organizations themselves. This isn't the first civil lawsuit that's been 370 00:24:59,720 --> 00:25:02,800 Speaker 1: fine held against the members of the extremist groups who 371 00:25:02,840 --> 00:25:06,480 Speaker 1: stormed the capital, because several members of Congress have sued 372 00:25:06,560 --> 00:25:09,919 Speaker 1: leaders of the two organizations, former President Donald Trump and 373 00:25:10,000 --> 00:25:15,640 Speaker 1: his former attorney Rudy Giuliani for conspiring to incite the insurrection. 374 00:25:15,840 --> 00:25:19,840 Speaker 1: Seven Capital police officers have also filed a similar lawsuit, 375 00:25:20,119 --> 00:25:23,280 Speaker 1: so the cases would seem to have the same witnesses. 376 00:25:23,600 --> 00:25:28,520 Speaker 1: Could the cases be consolidated and tried together? That seems 377 00:25:28,600 --> 00:25:32,960 Speaker 1: unlikely given the disperate nature of the plaintiffs here. You know, 378 00:25:33,400 --> 00:25:36,080 Speaker 1: members of Congress and the DC government aren't going to 379 00:25:36,160 --> 00:25:41,400 Speaker 1: be co plaintiffs in a lawsuit. There would be an 380 00:25:41,440 --> 00:25:44,879 Speaker 1: interest in consolidating at least for the purposes of proof, 381 00:25:44,920 --> 00:25:49,840 Speaker 1: and maybe the the federal district court judges in DC 382 00:25:49,920 --> 00:25:52,720 Speaker 1: can figure out a way to get that done if 383 00:25:52,760 --> 00:25:55,480 Speaker 1: it goes that far. You know. The other the other 384 00:25:55,560 --> 00:25:58,520 Speaker 1: important action here that serves as a president, of course, 385 00:25:59,119 --> 00:26:03,719 Speaker 1: is the Charlotteville judgment against some of the same groups 386 00:26:03,720 --> 00:26:07,760 Speaker 1: and individuals. It was recently determined by a federal court 387 00:26:08,080 --> 00:26:13,520 Speaker 1: in Charlottesville with massive assessment of damages. As you question 388 00:26:13,600 --> 00:26:16,320 Speaker 1: you raised before about whereas that money going to come 389 00:26:16,400 --> 00:26:19,760 Speaker 1: from to pay the damages? No one knows, but you know, 390 00:26:19,800 --> 00:26:24,720 Speaker 1: a significant million, multimillion dollar damages award was given for 391 00:26:24,800 --> 00:26:30,600 Speaker 1: the actions undertaken in seventeen in the Charlottesville riot. Thanks 392 00:26:30,640 --> 00:26:33,240 Speaker 1: for being in the show, Bill. That's William Banks, a 393 00:26:33,280 --> 00:26:39,720 Speaker 1: professor at Syracuse University Law School, a divine. US Supreme 394 00:26:39,800 --> 00:26:43,960 Speaker 1: Court left in force New York's mandate that healthcare workers 395 00:26:44,040 --> 00:26:48,679 Speaker 1: be vaccinated against COVID nineteen, refusing to order exemptions for 396 00:26:48,800 --> 00:26:51,879 Speaker 1: twenty providers who say they object to the shot on 397 00:26:52,000 --> 00:26:55,639 Speaker 1: religious grounds. There was no explanation from the majority, but 398 00:26:55,760 --> 00:26:58,960 Speaker 1: this case follows a similar rejection in a main case 399 00:26:59,000 --> 00:27:03,320 Speaker 1: in October, Justice says Neil Gorsuch, Clarence Thomas, and Samuel 400 00:27:03,359 --> 00:27:07,640 Speaker 1: Alito dissented, with gore Such suggesting that New York Governor 401 00:27:07,720 --> 00:27:11,639 Speaker 1: Kathy Hokel had acted out of anti religious animals, among 402 00:27:11,680 --> 00:27:14,760 Speaker 1: other remarks. Hopel had said in September that people with 403 00:27:14,800 --> 00:27:19,480 Speaker 1: religious objections to vaccine mandates quote, aren't listening to God 404 00:27:19,600 --> 00:27:22,920 Speaker 1: and what God wants. Joining me is Dorrit Rees, a 405 00:27:23,000 --> 00:27:26,840 Speaker 1: professor at UC Hastings College of Law who specializes in 406 00:27:26,960 --> 00:27:32,000 Speaker 1: vaccine policy. There was no opinion from the majority, but 407 00:27:32,359 --> 00:27:37,800 Speaker 1: was this expected? Yes and no. So on one hand, 408 00:27:38,480 --> 00:27:42,320 Speaker 1: we already have one taste on related stat the main 409 00:27:42,359 --> 00:27:46,160 Speaker 1: case in which the majority super courts refused to stay 410 00:27:46,680 --> 00:27:49,960 Speaker 1: similar mandates. On the other hand, the New York factor 411 00:27:49,960 --> 00:27:53,480 Speaker 1: were a little treatiers on two grounds. First, New York 412 00:27:53,560 --> 00:27:56,280 Speaker 1: initially proposed to have a really dious exemption and then 413 00:27:56,320 --> 00:27:58,600 Speaker 1: took it out. And that is the issue for the 414 00:27:58,640 --> 00:28:01,920 Speaker 1: disrecord judge that's insually stayed their mandates in one of 415 00:28:02,000 --> 00:28:07,160 Speaker 1: the three cases. And second Justice sus quoted statements from 416 00:28:07,280 --> 00:28:09,880 Speaker 1: the current acting Governor of New York could be used 417 00:28:09,920 --> 00:28:14,440 Speaker 1: to suggest those hostivities religions here. So Justices Neil Gorse, 418 00:28:14,800 --> 00:28:19,880 Speaker 1: Clarence Thomas, and Samuel Alito dissented. Justice Gorsage, as you say, 419 00:28:20,000 --> 00:28:23,960 Speaker 1: criticized the New York Governor Kathy Hokel, But he also 420 00:28:24,080 --> 00:28:28,360 Speaker 1: suggested that she had acted out of anti religious animus. 421 00:28:29,040 --> 00:28:32,440 Speaker 1: Did that seem like it was going a little too far? No, 422 00:28:32,720 --> 00:28:36,520 Speaker 1: And here's right the Justice is building on. First of all, 423 00:28:36,560 --> 00:28:39,400 Speaker 1: I think it's unjustified that this is building on the 424 00:28:39,480 --> 00:28:41,880 Speaker 1: decision from two sousand and eighteen by the Supreme Court 425 00:28:42,200 --> 00:28:46,240 Speaker 1: in Masterpiece Take Shop. In that case, the Supreme Court 426 00:28:46,320 --> 00:28:50,840 Speaker 1: majority found that the Colorado Commission of the Rights acted 427 00:28:50,880 --> 00:28:54,400 Speaker 1: after hostility to religion when it's penalized the baker that 428 00:28:54,480 --> 00:28:57,360 Speaker 1: refused to say he cake for a same sex couple, 429 00:28:58,040 --> 00:29:01,240 Speaker 1: and the Supreme Court you stay meant by commission members 430 00:29:01,280 --> 00:29:05,120 Speaker 1: to show stility to religion. So in this use. The 431 00:29:05,360 --> 00:29:09,040 Speaker 1: Justice was following that earlier precedent. He was not targeting 432 00:29:09,320 --> 00:29:12,600 Speaker 1: the governor out of the blue. He was following a 433 00:29:12,680 --> 00:29:15,600 Speaker 1: previous Supreme Court decision that did look at artificial states. 434 00:29:16,200 --> 00:29:19,480 Speaker 1: The problem with that is in that previous case you 435 00:29:19,640 --> 00:29:23,840 Speaker 1: had a limited commission, and the statements by members could 436 00:29:23,880 --> 00:29:26,960 Speaker 1: be used to suggest how the commissioned in entirety view. 437 00:29:27,200 --> 00:29:30,520 Speaker 1: Even then, it was problematic because Latin on specific statement 438 00:29:30,840 --> 00:29:35,480 Speaker 1: is treating. Here. The statements in question were the governor 439 00:29:35,560 --> 00:29:39,400 Speaker 1: and statement outside the amandaged the Health Department man that 440 00:29:39,480 --> 00:29:43,120 Speaker 1: did not include this statement, and the governor wasn't the 441 00:29:43,240 --> 00:29:46,680 Speaker 1: one that issued the decision, So using the statement, it's 442 00:29:46,760 --> 00:29:50,280 Speaker 1: somewhat out of context. But the question of hostility to 443 00:29:50,360 --> 00:29:54,000 Speaker 1: religion is now part of our laws. So let me 444 00:29:54,040 --> 00:29:57,080 Speaker 1: ask you this about the vaccine itself and about the 445 00:29:57,160 --> 00:30:01,920 Speaker 1: religious objections to the vaccine. The petitioners said that they 446 00:30:02,000 --> 00:30:05,880 Speaker 1: objected to the vaccine's origin from abortion derived fetal cell 447 00:30:06,000 --> 00:30:10,160 Speaker 1: lines and testing development or production. But New York said 448 00:30:10,480 --> 00:30:14,120 Speaker 1: first of all that none of the vaccines contain aborted cells, 449 00:30:14,520 --> 00:30:17,479 Speaker 1: but the use of fetal cell lines for testing is common, 450 00:30:17,920 --> 00:30:21,800 Speaker 1: including for the rebel of vaccination, and that healthcare workers 451 00:30:21,800 --> 00:30:26,719 Speaker 1: are already required to take. So what is the religious objection? 452 00:30:27,160 --> 00:30:30,600 Speaker 1: So first of all, we're now it's really tricky ground. 453 00:30:31,480 --> 00:30:35,680 Speaker 1: We can't when we examine religious objection assess whether it's logical. 454 00:30:36,320 --> 00:30:41,840 Speaker 1: The question is and the argument you're raising kind of 455 00:30:42,360 --> 00:30:46,000 Speaker 1: show how tricky is to a type of it's really 456 00:30:46,160 --> 00:30:50,800 Speaker 1: hard to say when do we move from the belief valid. 457 00:30:51,360 --> 00:30:55,880 Speaker 1: The city is well placed to assess whether the objections here. 458 00:30:55,880 --> 00:30:59,080 Speaker 1: For example, it can say, if you've taken mm R 459 00:30:59,200 --> 00:31:03,480 Speaker 1: but in which the rubella vaccine has been grown on 460 00:31:03,600 --> 00:31:06,400 Speaker 1: cell lines descendants from abortion from the ninety six feet 461 00:31:07,280 --> 00:31:11,000 Speaker 1: if you've taken that and you're now exchuses to take 462 00:31:11,040 --> 00:31:13,080 Speaker 1: a copage. But since that has a much more tenuous 463 00:31:13,160 --> 00:31:16,520 Speaker 1: connection to those things that old Ler's cell lines, you 464 00:31:16,600 --> 00:31:19,120 Speaker 1: need to explain to us why and why we should 465 00:31:19,160 --> 00:31:22,200 Speaker 1: believe you that this really is the reason for your objections. 466 00:31:23,120 --> 00:31:27,240 Speaker 1: That's totally sad, because you can say, if if you 467 00:31:27,280 --> 00:31:29,640 Speaker 1: don't have a problem with the closer connection, we don't 468 00:31:29,720 --> 00:31:33,120 Speaker 1: believe you that now you have this problem. On the 469 00:31:33,240 --> 00:31:38,080 Speaker 1: other hand, if a person makes a valid distinction here, 470 00:31:39,520 --> 00:31:43,640 Speaker 1: then you can't disfuse them because you think their position 471 00:31:43,720 --> 00:31:46,360 Speaker 1: doesn't make sense. The question is not that their position 472 00:31:46,440 --> 00:31:49,520 Speaker 1: makes sense, the question does they see I know this 473 00:31:49,680 --> 00:31:51,640 Speaker 1: is a really hard line to draw. It's one of 474 00:31:51,720 --> 00:31:53,440 Speaker 1: the problems with it is existed, and one of the 475 00:31:53,480 --> 00:31:56,720 Speaker 1: reasons I think it makes sense not to give a 476 00:31:56,720 --> 00:32:00,240 Speaker 1: really dessition in these cases because at the end of 477 00:32:00,280 --> 00:32:05,480 Speaker 1: the day, we can't really assess whinc who was not 478 00:32:05,960 --> 00:32:09,480 Speaker 1: without the kind of close politics policy of people's belief 479 00:32:10,400 --> 00:32:14,320 Speaker 1: is that can lead to the state they rect trying 480 00:32:14,360 --> 00:32:16,920 Speaker 1: to step into people's conscious It's really hard to do. 481 00:32:17,760 --> 00:32:20,760 Speaker 1: And further, the reality is that we have a lot 482 00:32:20,800 --> 00:32:23,320 Speaker 1: of the things that for most of these people, the 483 00:32:23,480 --> 00:32:26,479 Speaker 1: concern is more about the safety of the vaccine than 484 00:32:26,560 --> 00:32:30,000 Speaker 1: about any religious issue. If that's the reality, the concern 485 00:32:30,080 --> 00:32:33,600 Speaker 1: really is more about safety. We're going on is that 486 00:32:33,720 --> 00:32:36,480 Speaker 1: a lot of people are making untrue praise about religions, 487 00:32:37,000 --> 00:32:41,480 Speaker 1: and applying a religious exemption would probably reward the people 488 00:32:41,520 --> 00:32:44,640 Speaker 1: that are better applying about this rather than the people 489 00:32:44,800 --> 00:32:47,760 Speaker 1: who might really be re feered. There are some people 490 00:32:47,800 --> 00:32:51,360 Speaker 1: that probably have some religious objectives to the vaccines. For example, 491 00:32:51,920 --> 00:32:56,080 Speaker 1: is there maybe people who for years have rejected modern 492 00:32:56,120 --> 00:33:00,560 Speaker 1: medicine and religious grounds. Some of these people may really 493 00:33:00,680 --> 00:33:06,360 Speaker 1: believe that the connection to the NINETI abortion is a 494 00:33:06,680 --> 00:33:09,680 Speaker 1: strong reason not to use this vaccine. But there's a 495 00:33:09,760 --> 00:33:11,760 Speaker 1: lot of reasons to think that many of these people 496 00:33:11,800 --> 00:33:14,600 Speaker 1: are are looking to get out of vaccines because they're 497 00:33:14,600 --> 00:33:17,960 Speaker 1: concerned about safety and are last enought of this because 498 00:33:17,960 --> 00:33:23,800 Speaker 1: they've found this arguments online policy. This is frankly not 499 00:33:24,040 --> 00:33:27,120 Speaker 1: very easy to do. So do you think this is 500 00:33:28,000 --> 00:33:32,040 Speaker 1: the last case that we'll see involving the vaccine and 501 00:33:32,160 --> 00:33:37,840 Speaker 1: religious objections at the Supreme Court? Or they'll try again? Oh, 502 00:33:38,080 --> 00:33:39,960 Speaker 1: there are going There's going to be a lot more cases. 503 00:33:40,200 --> 00:33:42,720 Speaker 1: Remember that these cases haven't been fully decided by the 504 00:33:42,760 --> 00:33:46,280 Speaker 1: Supreme Court either. Right now, the only decision is not 505 00:33:46,640 --> 00:33:50,640 Speaker 1: to give an emergency to stay for the mandates. We 506 00:33:50,760 --> 00:33:53,720 Speaker 1: don't even know how the FO Court will decide when 507 00:33:53,760 --> 00:33:57,400 Speaker 1: the food cases before them and in the previous case, 508 00:33:57,480 --> 00:33:59,680 Speaker 1: and I think that we can assume that that's there 509 00:33:59,720 --> 00:34:03,680 Speaker 1: still the reasoning. In the main case, Justices Cavano and 510 00:34:03,840 --> 00:34:07,960 Speaker 1: Justice Connie Barette and signed onto a concurrence but said 511 00:34:08,280 --> 00:34:10,720 Speaker 1: we're not giving a stay because we think this shouldn't 512 00:34:10,719 --> 00:34:14,680 Speaker 1: be done during their emergency basis. We shouldn't change the 513 00:34:14,760 --> 00:34:17,160 Speaker 1: law during an emergency procedure, we should wait for the 514 00:34:17,200 --> 00:34:20,080 Speaker 1: school case. They didn't say how they think they're going 515 00:34:20,160 --> 00:34:23,320 Speaker 1: to decide the folcase. So then why see case is 516 00:34:23,360 --> 00:34:27,000 Speaker 1: the second case on exactly the same issue. In this 517 00:34:27,239 --> 00:34:31,440 Speaker 1: previous case Mills versus though the Supreme Court was asked 518 00:34:31,520 --> 00:34:35,600 Speaker 1: to give a stake for main healthcare worker mandates, which 519 00:34:35,680 --> 00:34:38,160 Speaker 1: also didn't give a reached exemption. So this is kind 520 00:34:38,200 --> 00:34:42,080 Speaker 1: of the second romp in that's the case. Justices a 521 00:34:42,200 --> 00:34:45,600 Speaker 1: conny Bread and Cavano is signed onto a concurrency said, 522 00:34:45,840 --> 00:34:48,080 Speaker 1: we don't want to do this on an emergency basis. 523 00:34:49,040 --> 00:34:53,800 Speaker 1: So let's discuss where the other vaccine mandate lawsuits stand. 524 00:34:54,480 --> 00:34:58,200 Speaker 1: President Biden mandated that employers with more than a hundred 525 00:34:58,280 --> 00:35:03,520 Speaker 1: employees ensure that their employees are fully vaccinated or undergo 526 00:35:03,880 --> 00:35:07,520 Speaker 1: regular testing and where a face covering at work. It 527 00:35:07,640 --> 00:35:10,760 Speaker 1: was set to take effect January fourth, but it's already 528 00:35:10,800 --> 00:35:15,320 Speaker 1: been challenged. How many lawsuits are there challenging the mandate. 529 00:35:16,520 --> 00:35:20,040 Speaker 1: I think right now there's twelve lasses, all consolidated in 530 00:35:20,120 --> 00:35:23,239 Speaker 1: the sixth circuits. So they've been consolidated, agree to be 531 00:35:23,320 --> 00:35:26,960 Speaker 1: addressed together. Do they have a similar reason for objecting 532 00:35:27,040 --> 00:35:30,800 Speaker 1: to the mandate. The case has it's basically a vaccinated 533 00:35:30,920 --> 00:35:35,120 Speaker 1: or test requirements for employers, so there's no question anyone 534 00:35:35,120 --> 00:35:39,240 Speaker 1: with religious object to get tested. So it's not about 535 00:35:39,280 --> 00:35:42,440 Speaker 1: religious freedom. The argument things the Oceans are focusing on 536 00:35:42,880 --> 00:35:47,520 Speaker 1: two things. First schedual versus state parers and second the 537 00:35:47,640 --> 00:35:50,919 Speaker 1: power of Osha. The car of Sha is to act 538 00:35:51,080 --> 00:35:54,800 Speaker 1: without specific assolization from Congress, and the car of ocean 539 00:35:54,880 --> 00:35:58,239 Speaker 1: more generally ends applying it. Here is this within what 540 00:35:58,880 --> 00:36:03,399 Speaker 1: can do using the requirements? Do you take anything from 541 00:36:03,440 --> 00:36:06,400 Speaker 1: the fact that through a lottery the cases before the 542 00:36:06,520 --> 00:36:11,520 Speaker 1: Sixth Circuit, which is conservative leaning. So right now we're 543 00:36:11,560 --> 00:36:13,360 Speaker 1: waiting for a decision on whether this is being to 544 00:36:13,400 --> 00:36:17,560 Speaker 1: be heard on banks or by a panel. The conservative 545 00:36:17,640 --> 00:36:20,440 Speaker 1: leaning is great to have a lot more implications if 546 00:36:20,480 --> 00:36:22,360 Speaker 1: it's heard on banks than if it's on a panel. 547 00:36:22,800 --> 00:36:25,880 Speaker 1: Then we're great to after yourself with the panel, and 548 00:36:26,440 --> 00:36:30,200 Speaker 1: you can have different pannel in practically every course. It's 549 00:36:30,239 --> 00:36:36,600 Speaker 1: probably is a question the conservative conservative justices may be 550 00:36:36,760 --> 00:36:42,200 Speaker 1: more inclined to more carefully scrutinized administrative action and tampered 551 00:36:42,239 --> 00:36:45,000 Speaker 1: down on them. And we've seen several decisions from conservatives 552 00:36:45,880 --> 00:36:51,480 Speaker 1: court which seens more aggressive in reviewing the administrative states. 553 00:36:52,560 --> 00:36:59,440 Speaker 1: So it does matter, but it's also really descends on 554 00:36:59,480 --> 00:37:03,160 Speaker 1: the city judge and how they seek. For example, is 555 00:37:03,239 --> 00:37:07,360 Speaker 1: the Seventh Circuit in a decision by one of the 556 00:37:08,040 --> 00:37:11,800 Speaker 1: leading conservative justices of thea in the US Justice instruments 557 00:37:12,160 --> 00:37:18,839 Speaker 1: upheld Indiana University's seen them, so it's MATTERSS. It makes 558 00:37:18,840 --> 00:37:24,520 Speaker 1: a difference, but it's also masters specific justice judges artist 559 00:37:24,560 --> 00:37:29,600 Speaker 1: who beside the case and which arguments. Well, thanks for 560 00:37:29,640 --> 00:37:32,760 Speaker 1: being on the Bloomberg Law Show. Dort that storet Reese 561 00:37:32,960 --> 00:37:36,239 Speaker 1: a professor at you see Hastings College of Law. And 562 00:37:36,360 --> 00:37:38,439 Speaker 1: that's it for this edition of the Bloomberg Law Show. 563 00:37:38,840 --> 00:37:41,319 Speaker 1: Remember you can always get the latest legal news, honor 564 00:37:41,360 --> 00:37:45,480 Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 565 00:37:45,719 --> 00:37:50,680 Speaker 1: and at www dot Bloomberg dot com, slash podcast, Slash Law, 566 00:37:51,160 --> 00:37:53,239 Speaker 1: and remember your tune in to The Bloomberg Law Show 567 00:37:53,400 --> 00:37:57,239 Speaker 1: every weeknight at ten pm Wall Street Time. I'm June 568 00:37:57,280 --> 00:38:04,920 Speaker 1: Grossow and you're listening to Bloomberg o