Latest / Bloomberg Law / SCOTUS Not Likely to Allow Trump to Fire Fed's Lisa Cook

Transcript

SCOTUS Not Likely to Allow Trump to Fire Fed's Lisa Cook · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: No president has fired a sitting governor in the one
0:12
Speaker 2: hundred and twelve year history of the FED, and Supreme
0:15
Speaker 2: Court justices across the ideological spectrum suggested they're unlikely to
0:21
Speaker 2: permit Donald Trump to be the first president to do so.
0:25
Speaker 2: High among the justice's concerns about Trump attempting to fire
0:29
Speaker 2: Federal Reserve Governor Lisa Cook over unproven mortgage fraud allegations
0:35
Speaker 2: was that it would upend the Fed's independence and rattle
0:38
Speaker 2: the markets. Justices Brett Cavanaugh and Amy Coney Barrett, both
0:43
Speaker 2: Trump appointees, post skeptical questions to the Solicitor General.
0:48
Speaker 3: But on that your position that there's no judicial review,
0:54
Speaker 3: no process required, no remedy available, low bar for cause
1:02
Speaker 3: that the president alone determines. I mean that would weaken,
1:06
Speaker 3: if not shatter, the independence of the Federal Reserve that
1:08
Speaker 3: we just discussed.
1:10
Speaker 4: Justin Sodomaira brought up the public interest here, and we
1:15
Speaker 4: have amicas brace from economists who tell us that if
1:18
Speaker 4: Governor Cook is if we grant you your stay, that
1:21
Speaker 4: it could trigger over session. How should we think about
1:24
Speaker 4: the public interests in a case like this.
1:26
Speaker 2: Both Cook and Federal Reserve Chairman Jerome Powell sat through
1:30
Speaker 2: nearly two hours of oral arguments in the Pack courtroom today.
1:34
Speaker 2: The issue before the court is whether Cook can stay
1:37
Speaker 2: on the job while her challenge to the firing plays
1:41
Speaker 2: out in the lower courts. That's a high bar and
1:44
Speaker 2: includes a showing of irreparable harm to the president, which
1:48
Speaker 2: several justices like Kaitanji Brown Jackson indicated there was no
1:52
Speaker 2: evidence of.
1:54
Speaker 5: So the question is, to what extent do we believe
2:01
Speaker 5: that the president or the public is harmed by allowing
2:05
Speaker 5: miss Cook to remain in her position for the pendency
2:09
Speaker 5: of this case. I'm not sure that we have evidence
2:13
Speaker 5: here that missus Cook is an immediate threat to the public.
2:19
Speaker 2: My guest is an expert in constitutional law, David Super,
2:22
Speaker 2: a professor at Georgetown Law. David, if you just go
2:26
Speaker 2: by the oral arguments, did it seem like there were
2:29
Speaker 2: at least five justices who would vote to keep Lisa
2:33
Speaker 2: Cook in her job while the litigation plays out?
2:37
Speaker 1: I think so. The government's lawyer faced pretty tough questioning
2:43
Speaker 1: from seven justices, and it only takes five.
2:46
Speaker 2: Explain the four cause requirement in the fred Reserve Act.
2:51
Speaker 1: Certainly, the Federal Reserve Act creates the Board of Governors,
2:56
Speaker 1: allows the President to appoint people to that board with
3:01
Speaker 1: Senate confirmation, and provides that once appointed and confirmed, they
3:06
Speaker 1: cannot be removed except for cause. That effectively means that
3:11
Speaker 1: they must do something wrong or fail to do their
3:15
Speaker 1: jobs in order to be removed. It's not just up
3:19
Speaker 1: to the president to fire them anytime he wants. He
3:22
Speaker 1: can fire his chief of staff anytime he wants, but
3:26
Speaker 1: members of the Federal Reserve Board, he has to have
3:29
Speaker 1: a good reason a cause to do it.
3:32
Speaker 2: In general, you mentioned seven justices seem to have problems.
3:36
Speaker 2: Can you quantify or describe what the nature of their
3:40
Speaker 2: concerns were?
3:42
Speaker 1: Well, there's a lot of niceties in this case, but
3:45
Speaker 1: what it comes down to is whether the Federal Reserve
3:47
Speaker 1: will be independent, whether it will exercise its enormous powers
3:53
Speaker 1: based on best expert judgment and the directions given by Congress,
3:58
Speaker 1: or whether it will be just a tool the sitting
4:00
Speaker 1: president who can use it irresponsibly to advance his political fortunes.
4:06
Speaker 2: So Lisa Cook first argues that she was entitled to
4:10
Speaker 2: formal notice and a chance to defend herself before Trump
4:14
Speaker 2: fired her. The Solicitor General seemed to be facing a
4:18
Speaker 2: lot of skeptical questioning about the idea that Trump's social
4:22
Speaker 2: media posts qualified as formal notice, and then Amy Cony
4:25
Speaker 2: Barrett said, why are you afraid of a hearing? It
4:28
Speaker 2: wouldn't be that big of a deal for Trump to
4:30
Speaker 2: give her a face to face meeting. Did you find
4:33
Speaker 2: a lot of skepticism on the justices part that there
4:36
Speaker 2: was notice here?
4:37
Speaker 1: Certainly, social media, particularly one's own personal social media platform,
4:44
Speaker 1: is not a conventional way of giving notice. It's a
4:47
Speaker 1: way of doing public politics. The Slicter General actually went
4:51
Speaker 1: even farther than you say and suggested that the failure
4:56
Speaker 1: of doctor Cook to tweet back at Trump should be
5:01
Speaker 1: held against her, should be held as an admission that
5:04
Speaker 1: what Trump said was true. If I was held responsible
5:08
Speaker 1: for every tweet I ignored, I would be in a
5:12
Speaker 1: very bad way.
5:13
Speaker 2: Was there any argument that she had a hearing?
5:15
Speaker 1: No, there was no hearing. There was no pretense of
5:18
Speaker 1: a hearing. And the argument that this Solicter General was
5:23
Speaker 1: forced to make is that she got the equivalent of
5:28
Speaker 1: a hearing in public in getting adverse social media posts
5:34
Speaker 1: from Trump and not responding to them. That's an argument
5:38
Speaker 1: that even some most conservative justices seem to have a
5:42
Speaker 1: great difficulties.
5:43
Speaker 2: Following, she also argues that Trump's reasons for firing her
5:48
Speaker 2: this mortgage fraud allegations that she has denied, don't qualify
5:54
Speaker 2: as cause. What did you hear from the justices on
5:57
Speaker 2: that the cause requirement?
5:59
Speaker 1: Well, there was less clarity as to what they were
6:03
Speaker 1: thinking about that, at least my take on the argument.
6:06
Speaker 1: There are some statutes that provide considerable detail as to
6:12
Speaker 1: what is caused. This statute isn't really one of them.
6:16
Speaker 1: And some justices, particularly Justice Thomas, seemed to be thinking
6:22
Speaker 1: that that difference between this and other laws means that
6:27
Speaker 1: anything that Trump says is cause is good enough. But
6:31
Speaker 1: there are other justices that seemed responsive to the notion
6:36
Speaker 1: that if the President can just make up any old
6:39
Speaker 1: cause he wants, that there is effectively no independence for
6:43
Speaker 1: the Federal Reserve. And I think that the extreme nature
6:49
Speaker 1: of the argument here that the Slisser General had to
6:53
Speaker 1: make is going to bite them. The essence of doctor
6:56
Speaker 1: Crook's argument is all this information was availed before I
7:01
Speaker 1: was appointed and confirmed. Congress could have taken that into
7:05
Speaker 1: account in deciding whether it confirmed me. They didn't. And
7:09
Speaker 1: the good cause requirement is supposed to relate to something
7:13
Speaker 1: one does on the job. I didn't have this job
7:17
Speaker 1: when I sought those mortgages that Trump is saying are improper.
7:22
Speaker 2: Yeah, I mean there wasn't. The veracity of the allegations
7:27
Speaker 2: isn't really before the court. There was little discussion of it,
7:30
Speaker 2: although the Chief Justice talked about it a little bit, saying,
7:34
Speaker 2: suppose it was an inadvertent mistake contradicted by other documents,
7:38
Speaker 2: and he also asked Cook's lawyer about the evidence that
7:41
Speaker 2: this was at most and inadvertent error. I mean, are
7:45
Speaker 2: the justices going to go there?
7:47
Speaker 3: Do you think?
7:48
Speaker 1: Well, the justice have several ways of dealing with this
7:51
Speaker 1: if we assume which after argument, I think we can
7:55
Speaker 1: that a majority of the court does not want a
7:59
Speaker 1: highly plaic fedal reserve and needs to find some way
8:03
Speaker 1: of keeping doctor Cook on the board. They've got several
8:06
Speaker 1: ways to go. They can say that the hearing was improper,
8:11
Speaker 1: or the absence of a hearing and the notice was improper.
8:14
Speaker 1: They can say that something that happened prior to her
8:17
Speaker 1: taking the job doesn't count as good cause they can
8:22
Speaker 1: say that the lower courts need to look into the
8:26
Speaker 1: merits of this or and this is something Justice Barrett
8:31
Speaker 1: seemed interested in. They can simply say that President Trump
8:36
Speaker 1: is not suffering any legal injury from having doctor Cook
8:41
Speaker 1: continue to serve, and therefore he simply doesn't qualify for
8:46
Speaker 1: a stay of the lower court's injunction.
8:49
Speaker 2: Yeah, so, I mean the Supreme Court doesn't have to
8:52
Speaker 2: definitively resolve whether Trump can fire Cook. The issue is
8:55
Speaker 2: whether she can stay on the job while her challenge
8:58
Speaker 2: to the firing plays out in the lawe lower courts.
9:01
Speaker 2: That's a high bar, isn't it, and includes what you've
9:03
Speaker 2: referred to irreparable harm. So you know where's the irreparable
9:07
Speaker 2: harm to Trump?
9:08
Speaker 1: Well, we have gotten accustom over the last year to
9:12
Speaker 1: the Supreme Court finding that any potential impairment of President
9:17
Speaker 1: Trump's powers is an irreparable injury. But if I asked
9:22
Speaker 1: you to go way back in time one year, that
9:25
Speaker 1: was very extraordinary, and getting the Supreme Court to intervene
9:29
Speaker 1: in lower court cases was very difficult throughout most of
9:33
Speaker 1: this country's history. So perhaps the Court will refert to
9:37
Speaker 1: that and say we shouldn't get involved until this gets
9:41
Speaker 1: fully aired out. The lower courts.
9:43
Speaker 2: Also, you know, talk about pushing the boundaries. John Soer,
9:47
Speaker 2: the Solicitor General, said that the courts shouldn't be allowed
9:51
Speaker 2: to review presidential firing decisions, even if there's a four
9:55
Speaker 2: cause requirement, And the Chief Justice at one point said,
9:59
Speaker 2: why waste our time? If your position is we have
10:01
Speaker 2: no authority, why waste our time? And even just as
10:04
Speaker 2: Alito express concern the administration had handled this in a
10:08
Speaker 2: cursory manner, are the mortgage applications even in the record
10:12
Speaker 2: in this case? So, you know, it seemed like that
10:16
Speaker 2: was going too far for most of the justices, even
10:19
Speaker 2: the conservatives.
10:20
Speaker 1: I think so because the Solicter General's position is that
10:25
Speaker 1: the courts can't look at this. And if the president
10:29
Speaker 1: can fire a Federal Reserve governor based on anything the
10:34
Speaker 1: president makes up, and no matter how absurd and unfounded
10:38
Speaker 1: it is, it can't be reversed. Then effectively there is
10:42
Speaker 1: no four cause requirement in the Federal Reserve Statute, and
10:46
Speaker 1: these people all serve at the pleasure of the president.
10:49
Speaker 1: Many many economists across the political spectrum believe that losing
10:55
Speaker 1: the independence of the Federal Reserve would in the long
10:58
Speaker 1: term reduce invest from an increase infation of this country.
11:02
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
11:05
Speaker 2: this conversation with Georgetown law professor David Super We'll look
11:09
Speaker 2: at some of the different ways the Court could rule
11:11
Speaker 2: in the case and a sort of warning from Justice
11:15
Speaker 2: Kavanaugh that what goes around comes around. I'm June Grosso
11:19
Speaker 2: and you're listening to Bloomberg. The Supreme Court seems inclined
11:25
Speaker 2: to keep Federal Reserve Governor Lisa Cook in her job
11:29
Speaker 2: as her lawsuit against President Trump for firing her goes
11:33
Speaker 2: forward in the lower courts. The case against Cook stems
11:36
Speaker 2: from allegations she claimed two properties in Michigan and Georgia
11:40
Speaker 2: as primary residences in mortgage applications before she joined the
11:45
Speaker 2: Fed Board. Cook has denied any wrongdoing, and Justice Katanji
11:49
Speaker 2: Brown Jackson pointed out the lack of evidence against her
11:53
Speaker 2: during oral arguments.
11:54
Speaker 5: Today, when an allegation is made about someone's misconduct or whatnot,
12:00
Speaker 5: an opportunity for that person to present evidence, for the
12:04
Speaker 5: other side to present evidence, And even if the President
12:07
Speaker 5: was the final arbiter of this, one would expect that
12:10
Speaker 5: he would do so. On the basis of evidence. So
12:12
Speaker 5: what I'm trying to understand is what is the evidence
12:16
Speaker 5: that has been presented and considered with respect to ms
12:21
Speaker 5: Cook's alleged misconduct.
12:23
Speaker 2: Cook contends that even if the mortgage allegations were true,
12:28
Speaker 2: that isn't grounds for firing her for cause. She also
12:32
Speaker 2: argues that she should have been given notice and an
12:34
Speaker 2: opportunity to contest the allegations, and several of the justices
12:39
Speaker 2: questioned the Solicitor General about why the administration was reluctant
12:44
Speaker 2: to give her that opportunity. Here are Justices Amy Cony, Barrett,
12:48
Speaker 2: and Brett Cavanaugh.
12:50
Speaker 4: Okay, so there's the truth social posts and then you know,
12:53
Speaker 4: burden on her to come back in five days. I
12:55
Speaker 4: understand that's your position. But you know, justice course, such
12:58
Speaker 4: positive sit down the table on the Roosevelt Room, where
13:02
Speaker 4: the President provides mss Cook Governor Cook with the evidence
13:06
Speaker 4: and waits to hear what her response is, gives her
13:09
Speaker 4: a chance to defend herself. I mean, that just wouldn't
13:11
Speaker 4: be that big a deal, it seems, if that's enough.
13:15
Speaker 3: And what's the fear of more process here? In the
13:18
Speaker 3: sense that process protects you, in the sense of helping
13:23
Speaker 3: you make better, more accurate decisions, and it helps process,
13:26
Speaker 3: helps you then convince people on the outside that you've
13:29
Speaker 3: made a considered, thorough appropriate decision. What's the concern about
13:34
Speaker 3: more process.
13:35
Speaker 2: I've been talking to Georgetown law professor David Super David
13:39
Speaker 2: Justice Amy Cony Barrett right at the start of the
13:42
Speaker 2: arguments talked about amikas briefs from economists. She said, we
13:47
Speaker 2: have amkas briefs from economists who tell us that if
13:51
Speaker 2: Governor Cook is fired, that would trigger a recession. And
13:53
Speaker 2: then there was a discussion about the stock market where
13:56
Speaker 2: she didn't want to talk about the stock market, but
13:58
Speaker 2: that was sours answer to that. So I thought it
14:01
Speaker 2: was interesting that, you know, she was referring to the
14:03
Speaker 2: out of court briefs from economists to show, you know,
14:07
Speaker 2: the big picture concern.
14:09
Speaker 1: Well, the elephant in the room is the copious evidence
14:15
Speaker 1: that non independent central banks are very bad for country's economies.
14:21
Speaker 1: And you can look at Russia, you can look at Turkey,
14:24
Speaker 1: you can look at other countries that do not have
14:26
Speaker 1: independent central banks and they have enormous economic trouble as
14:30
Speaker 1: a result. The justices know this, and even if philosophically
14:35
Speaker 1: they'd like to let Trump have his way. I think
14:38
Speaker 1: they don't want to be blamed for throwing the economy
14:41
Speaker 1: into a recession. And to her credit, Justice Barrett put
14:45
Speaker 1: that out on the table and gave the Solicitor General
14:48
Speaker 1: the opportunity to respond. You didn't do much with it,
14:51
Speaker 1: but she gave them a chance.
14:52
Speaker 2: Was there an argument from the Solicitor General that resonated
14:55
Speaker 2: with any of the justices?
14:57
Speaker 1: Well, I mean, the biggest advance damage that the president
15:01
Speaker 1: has in this case is that the Supreme Court is
15:05
Speaker 1: pretty clearly going to strike down security of ten year
15:09
Speaker 1: requirements for the vast majority of executive branch officials. That's
15:14
Speaker 1: the Trump versus Slaughter case. An oral argument on that
15:18
Speaker 1: made pretty clear that the Court is going to overrule
15:22
Speaker 1: Humphrey's executor and allow the President to fire at will
15:28
Speaker 1: members of even very sensitive boards like the Federal Trade Commission.
15:32
Speaker 1: So the question here is always been can the Supreme
15:36
Speaker 1: Court find a way of differentiating the Federal Reserve from
15:41
Speaker 1: the Federal Trade Commission and all those others? And that's
15:44
Speaker 1: I think what this Solster General was trying to go
15:49
Speaker 1: with here is to suggest that the Court should just
15:53
Speaker 1: treat this case like any other once you look at
15:56
Speaker 1: the specifics, the accusations against her, all apart in your hands.
16:01
Speaker 1: She was obviously given no hearing, and as several justices,
16:05
Speaker 1: including Justice Kavanaugh, pointed out, if you allow the president
16:10
Speaker 1: to make up anything and call it cause, then you
16:14
Speaker 1: have effectively ended the fedce independent and that makes them
16:18
Speaker 1: very nervous.
16:20
Speaker 2: Justice Kavanaugh was also looking at the big picture when
16:23
Speaker 2: he talked about basically, what goes around comes around.
16:27
Speaker 3: Let's talk about the real world, downstream effects of this,
16:31
Speaker 3: because if this were set as a precedent, it seems
16:35
Speaker 3: to me, just thinking big picture, what goes around comes around.
16:41
Speaker 3: All the current president's appointees would likely be removed for
16:48
Speaker 3: cause on January twentieth, twenty twenty nine, if there's a
16:51
Speaker 3: democratic president, or January twentieth, twenty thirty three, and then
16:58
Speaker 3: we're really it at will removal. So what are we
17:01
Speaker 3: doing here?
17:02
Speaker 1: Yes, I mean, if one believes, as I do, that
17:05
Speaker 1: President Trump's time horizon here is very short, and he
17:09
Speaker 1: wants what he thinks is good for him right now,
17:12
Speaker 1: doesn't care about the long term impacts, then that's of
17:15
Speaker 1: no concern. But the whole reason we have a Supreme
17:18
Speaker 1: court with life tenures, so they can look at the
17:21
Speaker 1: long term, they can look at the long term impact
17:24
Speaker 1: on the long long term impact on the economy, and
17:27
Speaker 1: that I think is where a court that is generally
17:30
Speaker 1: very sympathetic to President Trump's agenda starts getting extremely nervous.
17:36
Speaker 2: Would you say that, along with the Tariff's decision, this
17:39
Speaker 2: is one of the most important decisions of the term
17:43
Speaker 2: as far as expanding presidential power.
17:46
Speaker 1: Well, these two plus the Fellow Trade Commission case. But
17:51
Speaker 1: I think everyone believes that case is going to expand
17:54
Speaker 1: presidential power radically, So people I think are not spending
17:58
Speaker 1: as much time thinking about that since they feel they
18:01
Speaker 1: already know how it's coming out.
18:03
Speaker 2: Do you think the administration launching a criminal investigation into
18:08
Speaker 2: FED share Powell damages its chances for a win in
18:13
Speaker 2: this case because it tends to show that Trump is
18:17
Speaker 2: trying to reshape the FED rather than just firing one
18:22
Speaker 2: person over unproven allegations.
18:25
Speaker 1: Yes, I think that is certainly in the back of
18:28
Speaker 1: the Justice's minds. Chairman Powell sitting there in the courtroom
18:33
Speaker 1: watching all of this, so obviously, if they needed any reminding,
18:38
Speaker 1: he was there in the flesh. I don't know why
18:41
Speaker 1: they thought that was a good idea, particularly timed when
18:44
Speaker 1: they did it, and particularly against someone like Chairman Powell,
18:49
Speaker 1: who was appointed by President Trump and is pretty widely
18:53
Speaker 1: approved of across the political spectrum, particularly among his fellow Republicans.
18:59
Speaker 1: That makes me as a remarkably hand handed, tone deaf
19:03
Speaker 1: thing to do. I wouldn't like the administration's chances in
19:07
Speaker 1: this case even without the Power investigation, but they basically
19:12
Speaker 1: gave the court no room to pretend that a ruling
19:16
Speaker 1: against doctor Cook is compatible with an independent fed.
19:20
Speaker 2: There were quite a few points of laughter during the
19:24
Speaker 2: arguments while Lisa Cook's attorney, Paul Clement was arguing. He's
19:29
Speaker 2: the former Solicitor General who is one of the premier
19:32
Speaker 2: Supreme Court litigators. This is his fifth argument since October
19:38
Speaker 2: before the justices. There seems to be something with Clement.
19:42
Speaker 2: I don't know how to explain. It's sort of a
19:44
Speaker 2: camaraderie with the justices. It's more of a back and
19:48
Speaker 2: forth rather than skeptical questions.
19:52
Speaker 1: Yes, former Solicitor Clement is an extraordinarily skilled lawyer in
19:56
Speaker 1: general and Supreme Court practitioner in particular, but he's also
20:01
Speaker 1: extremely conservative and is not likely to take a conservative
20:08
Speaker 1: majority of the court for a ride to somewhere they
20:11
Speaker 1: don't want to go. So people have been hiring Solicitor
20:15
Speaker 1: General Clement, I think, to provide reassurance in cases that
20:20
Speaker 1: might otherwise feel uncomfortable to this very conservative supermajority.
20:26
Speaker 2: Is there a possibility that even Justice Alito might rule
20:31
Speaker 2: against the Trump administration here?
20:33
Speaker 1: I mean, he asked reasonable questions, but the town struck
20:39
Speaker 1: me as being largely sympathetic with the president, and I
20:42
Speaker 1: think he is more committed than most to the unitary
20:46
Speaker 1: executive theory, which this would have to be an exception to.
20:50
Speaker 2: When they write the opinion, do they have to explain
20:53
Speaker 2: away what they do with the FTC and you know
20:57
Speaker 2: where does it lead the unitary executive theory.
21:01
Speaker 1: They've got various ways of hiding. The simplest is, because
21:05
Speaker 1: this is a preliminary stage, is to simply say that
21:09
Speaker 1: President Trump hasn't qualified for a stay and decided entirely
21:16
Speaker 1: on procedural grounds. They also could say that they're not
21:20
Speaker 1: required to consider what standards are appropriate for removing Federal
21:26
Speaker 1: Reserve governors because in this case, the President claimed to
21:31
Speaker 1: comply with the law. So all they have to do
21:33
Speaker 1: is decide whether he did. They have a number of
21:36
Speaker 1: ways of hiding. My guess is that they will not
21:39
Speaker 1: be eager to explain how what they're doing here is
21:43
Speaker 1: consistent with what they're going to do in the FTC case, because,
21:47
Speaker 1: let's face it, it isn't. In this case. They know how
21:50
Speaker 1: they want to come out, which is against Trump and
21:52
Speaker 1: in favor of Federal Reserve independence, and they have a
21:56
Speaker 1: huge obstacle to doing that, which is their desire to
22:00
Speaker 1: who end the independence of all the other boards. So
22:03
Speaker 1: the whole argument was basically the justices feeling around for
22:08
Speaker 1: a way that they could decide this case the way
22:11
Speaker 1: they want to without undermining what they're doing to the FDC.
22:14
Speaker 1: And I think at the end of the day there
22:16
Speaker 1: were enough as open to them where they could do that,
22:19
Speaker 1: and they will do that, And the Slister General had
22:24
Speaker 1: to hang his hat entirely on consistency with what they're
22:29
Speaker 1: doing in the FTC case, because the actual decision on
22:33
Speaker 1: doctor Cook is essentially defensible.
22:36
Speaker 2: The arguments went on nearly two hours, but they were
22:40
Speaker 2: really interesting on many different levels, and you can't always
22:44
Speaker 2: say that, thanks so much, David. That's Professor David super
22:48
Speaker 2: of Georgetown Law. Coming up next on the Bloomberg Law Show,
22:52
Speaker 2: the Court's conservative justices appear likely to strike down Hawaii's
22:57
Speaker 2: restrictions on carrying guns. I'm June Grosso and you're listening
23:02
Speaker 2: to Bloomberg. The Supreme Court's conservative justices appeared skeptical of
23:09
Speaker 2: a Hawaii law prohibiting the carrying of a gun in
23:12
Speaker 2: private places that are open to the public unless the
23:15
Speaker 2: property owner gives explicit permission lent. The arguments on Tuesday
23:20
Speaker 2: touched on topics from Hawaii's pre statehood treatment of gun
23:24
Speaker 2: rights to nineteenth century laws aimed at disarming formerly enslaved people.
23:30
Speaker 2: Joining me is Hailey Lawrence, executive director of the Duke
23:34
Speaker 2: Center for Firearms Law. Hailey start by telling us about
23:37
Speaker 2: this Hawaii law.
23:39
Speaker 6: So, back in twenty twenty three, the Hawaii legislature enacted
23:43
Speaker 6: a law that effectively prohibits one from carrying a firearm
23:47
Speaker 6: onto private property without the express permission of the property
23:51
Speaker 6: owner or an agent of the property owner. So, in
23:54
Speaker 6: the case of an apartment, someone who leases the apartment,
23:56
Speaker 6: this flips the default setting of what we normally think
23:59
Speaker 6: of and what most states do, and so Hawaii instead
24:04
Speaker 6: of saying you have a right unless the property owner
24:07
Speaker 6: tells you otherwise, has said by default, you have no
24:10
Speaker 6: right to bring a firearm onto private property, even private
24:14
Speaker 6: property held open to the public, unless you have the
24:17
Speaker 6: express consent from the property owner.
24:19
Speaker 2: Chief Justice Roberts said people don't have to obtain the
24:22
Speaker 2: permission of private property owners before going door to door
24:26
Speaker 2: to canvas for a political candidate, And he questioned why
24:29
Speaker 2: gun rights are being treated differently than free speech rights.
24:34
Speaker 2: I mean, it seems pretty obvious. Why.
24:36
Speaker 7: Yeah, So in.
24:38
Speaker 6: Hawaii's briefs, they try to analogize between the rights that
24:42
Speaker 6: the First Amendment gives and the rights that the Second
24:44
Speaker 6: Amendment gives. The challenge of that is that the court
24:46
Speaker 6: applies fundamentally different tests to evaluate when a First Amendment
24:51
Speaker 6: right has been infringed and when a Second Amendment right
24:53
Speaker 6: has been infringed. And by that I mean in the
24:56
Speaker 6: First Amendment context, the court focuses a lot on interest
24:59
Speaker 6: balance and weighing various burdens that a law or a
25:03
Speaker 6: government action places on someone's right to expression. And in
25:07
Speaker 6: the Second Amendment context, the seminal case we got a
25:10
Speaker 6: few years ago in twenty twenty two was Bruin, which
25:13
Speaker 6: expressly foreclosed the use of interest balancing in Second Amendment cases.
25:18
Speaker 7: Instead, it's focused on history and tradition.
25:21
Speaker 6: Does the modern law that's being challenged have sufficient basis
25:25
Speaker 6: in the nation's history and tradition? And I say nations
25:28
Speaker 6: with emphasis for a reason, the nation's history and tradition.
25:32
Speaker 7: Such that it is constitutional.
25:34
Speaker 6: The reason I put emphasis on nation is because a
25:37
Speaker 6: part of Hawaii's briefing and a lot that they emphasize
25:40
Speaker 6: the oral argument yesterday was that this principle is deeply
25:44
Speaker 6: rooted in Hawaiian legal tradition. The court didn't seem particularly
25:48
Speaker 6: interested in that, and petitioners push back on it, which
25:51
Speaker 6: is interesting for a number of reasons, particularly because Hawaii
25:55
Speaker 6: was in a state until the late twentieth century, and
25:58
Speaker 6: so if the two periods of time for sake of
26:01
Speaker 6: argument that we're focusing on as relevant to determining what
26:04
Speaker 6: the history and tradition are of the nation, Hawaiian laws
26:07
Speaker 6: will never be relevant to that inquiry.
26:10
Speaker 2: Is that the reason why the San Francisco Appellate Court
26:14
Speaker 2: upheld this law and the New Jersey Appellate Court struck
26:18
Speaker 2: down a similar law.
26:20
Speaker 6: No, So, actually the reason why the Ninth Circuit ruled
26:23
Speaker 6: in Hawaii's favor is because of several extra Hawaii historical
26:28
Speaker 6: analogs that the state pointed to. There's several laws from
26:31
Speaker 6: New Jersey and other states in the Northeast that existed
26:35
Speaker 6: at the founding and then again at the reconstruction era.
26:38
Speaker 6: So pointed to several laws over a course of one
26:40
Speaker 6: hundred years from states outside of Hawaii to support the
26:44
Speaker 6: proposition that the government can regulate private property and vindicate
26:48
Speaker 6: the rights of property owners, but also do so.
26:51
Speaker 7: In the gun context.
26:53
Speaker 2: What was Hawaii's best argument in defending its law.
26:57
Speaker 6: So the challenge for Hawaii is that, you know, I
27:01
Speaker 6: think they came into a court that was largely skeptical of.
27:05
Speaker 7: Its arguments to begin with.
27:07
Speaker 6: Justice Jackson is an incisive questioner as ever, and I
27:10
Speaker 6: think did her best to, particularly after the divergence about
27:14
Speaker 6: First Amendment case law, bring us back to first principles
27:18
Speaker 6: of Bruin. The thing I was looking for when I
27:20
Speaker 6: was listening to these arguments yesterday is whether or not
27:23
Speaker 6: the Court is thinking about this as a property rights
27:25
Speaker 6: case or a Second Amendment public carry case. It seems
27:29
Speaker 6: like the conservative justices in particular were focused on this
27:32
Speaker 6: and the framing.
27:33
Speaker 7: Of it as a public carry case.
27:35
Speaker 6: And the reason I say that is because so much
27:39
Speaker 6: of it talked about the imposition that the law places
27:43
Speaker 6: on someone's right to carry a firearm and into private
27:47
Speaker 6: places held open to the public. A frequent example that
27:50
Speaker 6: was used in oral arguments was a gas station and
27:54
Speaker 6: other sort of retail establishments that hold themselves open to
27:58
Speaker 6: the public. One thing that I think would interestingly absent
28:02
Speaker 6: is sort of like the temporal locations on private property
28:05
Speaker 6: held open to the public, and the role that those
28:08
Speaker 6: temporal locations would play in this analysis. By that, I
28:12
Speaker 6: mean just because a gas station is open for certain
28:15
Speaker 6: hours of the day and may or may not welcome
28:18
Speaker 6: someone public carrying onto the property, that doesn't mean someone
28:21
Speaker 6: has a right to go onto the property when the
28:22
Speaker 6: business is closed with a firearm right. And so I
28:25
Speaker 6: was interested by the absence of that discussion in the
28:29
Speaker 6: oral arguments.
28:30
Speaker 2: So, just as Alito talked about the state was relegating
28:33
Speaker 2: the Second Amendment to second class status, and that seems
28:36
Speaker 2: to be a concern that they have been talking about
28:39
Speaker 2: the Conservatives, at least just as Alito and Justice Thomas
28:43
Speaker 2: for so long. I mean is that a fair assessment.
28:47
Speaker 6: They've certainly been parroting that line for quite some time.
28:51
Speaker 6: I think it came up in particularly obvious fashion in
28:55
Speaker 6: the First Amendment Second Amendment discussion. But the fundamental differences
28:59
Speaker 6: might isn't going to kill someone? My speech doesn't present
29:02
Speaker 6: a significant public safety risk, and the speech that does
29:07
Speaker 6: is regulated.
29:08
Speaker 7: Shouting fire and crowded theater is.
29:10
Speaker 6: The obvious example that people come back to. And so
29:14
Speaker 6: in my research, in my personal capacity, I don't think
29:16
Speaker 6: that the Second Amendment is a disfavored right like they've said.
29:19
Speaker 6: But that's the Court's position, and it seems like it
29:21
Speaker 6: will guide the rest of this term and its future
29:24
Speaker 6: Second Amendment case law for the foreseeable future.
29:27
Speaker 2: Explain how the Bruin case, which established that history and
29:31
Speaker 2: tradition analysis, how it's been confusing for the lower courts
29:36
Speaker 2: and has led to lots of litigation over just what
29:40
Speaker 2: the test is.
29:42
Speaker 6: Yeah, So the test is the first question is the
29:46
Speaker 6: challenge regulation does it invoke the plaintext or the plane
29:49
Speaker 6: meeting of the Second Amendment. If the answer is yes,
29:53
Speaker 6: then the government bears the burden of showing that the
29:55
Speaker 6: challenge law finds sufficient support in the history and tradition
29:59
Speaker 6: of the nation's firearms law of regulation. There are a
30:02
Speaker 6: lot of open questions about what constitutes an arm. For example,
30:06
Speaker 6: there are several cert petitions before the Supreme Court this
30:09
Speaker 6: term about large capacity magazines and whether or not that
30:13
Speaker 6: falls within the first step of Bruin or the second
30:15
Speaker 6: step of Bruin. There are questions about who is covered.
30:18
Speaker 6: The Court actually on Tuesday denied several petitions in cases
30:23
Speaker 6: arguing that folks who have been convicted of a non
30:27
Speaker 6: violent felony should have their firearms rights restored and fall
30:31
Speaker 6: within the people covered by the second amendments.
30:33
Speaker 7: That's the who question.
30:35
Speaker 6: There's also the levels of generality question which comes up
30:38
Speaker 6: in the second step of the Bruin inquiry, which is, okay,
30:43
Speaker 6: so let's say we have a bunch of examples from
30:46
Speaker 6: various periods in history of laws that regulate firearms ownership,
30:50
Speaker 6: firearms carrying, what types of firearms you can have, etc.
30:55
Speaker 6: The question is that Bruin posited basically, what the why
30:59
Speaker 6: and the how?
31:00
Speaker 7: So what's being regulated, why is it being regulated, and
31:04
Speaker 7: how is it being regulated?
31:06
Speaker 6: And so the levels of generality question is challenging because
31:09
Speaker 6: one most of the questions were not answered, and Bruin
31:12
Speaker 6: two lower cords are struggling to identify the relevant level
31:17
Speaker 6: of generality to answer the principles question of like why
31:20
Speaker 6: are things being regulated, who is the subject of the regulation,
31:24
Speaker 6: what's the purpose of the regulation? Because in Rahemi we've
31:27
Speaker 6: got a pretty broad statement of the why and who,
31:31
Speaker 6: which is that the government is allowed, in simple terms,
31:35
Speaker 6: to disarm people that they find to be dangerous. That
31:38
Speaker 6: involved a challenge to a law prohibiting folks subject to
31:43
Speaker 6: domestic violence restraining orders from possessing firearms, and so that's
31:48
Speaker 6: a pretty high level of generality. If we're talking about
31:50
Speaker 6: dangerous people writ large, then that's a pretty high level
31:54
Speaker 6: of generality. But in this case, the questions from the justices,
32:00
Speaker 6: the arguments themselves, were particularly about historical analogs, were much
32:04
Speaker 6: more narrowly focused about, well, this law is about poaching.
32:09
Speaker 7: The historical law you're talking about, it's about poaching. But
32:11
Speaker 7: this isn't about poaching.
32:12
Speaker 6: It's about regulating private property and allowing someone onto your
32:16
Speaker 6: private property with a firearm. If you take it at
32:18
Speaker 6: a really broad view, they're both about regulating private property
32:21
Speaker 6: and the right to carry a firearm onto the private property.
32:24
Speaker 6: But if you take it in a much narrower view,
32:26
Speaker 6: it's going to be a lot harder to find support
32:28
Speaker 6: for modern laws in historical analogs because many of the
32:32
Speaker 6: problems that modern firearm laws confront simply didn't exist one
32:36
Speaker 6: hundred or two hundred years ago.
32:37
Speaker 2: So there have been some cases you mentioned, Rahimi, where
32:40
Speaker 2: they ruled against the expansion of gun rights. Is there
32:44
Speaker 2: a line that you see them, you know, drawing as
32:48
Speaker 2: to when and where they'll allow gun restrictions and where
32:52
Speaker 2: they won't, or is it just case by case.
32:56
Speaker 6: It's a hard question to answer, and I think it's
32:57
Speaker 6: the reason so many lower courts have been struggle willing
33:00
Speaker 6: to find a through line, which is that we have
33:04
Speaker 6: all of these open questions about the doctrine because it
33:06
Speaker 6: is so new, So I, much like them, can't.
33:09
Speaker 7: Give you a straight answer one way or the other.
33:11
Speaker 2: Unfortunately, if they strike down the Hawaii law, property owners
33:15
Speaker 2: can still put up signs that say you can't come
33:19
Speaker 2: into my store or my gas station carrying a gun.
33:23
Speaker 7: That's exactly right, yep.
33:25
Speaker 6: So property owners in Hawaii will still have the right
33:27
Speaker 6: to exclude. That's a fundamental right in property law across
33:31
Speaker 6: the nation, and that applies even to private property held
33:34
Speaker 6: open to the public.
33:35
Speaker 2: There are a couple of other states, four other states
33:38
Speaker 2: that have similar restrictions. Will this decision automatically invalidate those
33:44
Speaker 2: laws or will those have to be challenged in court
33:47
Speaker 2: as well?
33:48
Speaker 6: As first my understanding is this isn't a facial challenge,
33:51
Speaker 6: so would only apply as to Hawaii. California's law, which
33:55
Speaker 6: is similar but a little bit more stringent, was also
33:58
Speaker 6: challenged below.
34:00
Speaker 7: They did not bring a.
34:02
Speaker 6: Petition with respect to the California law because the petitioner's
34:06
Speaker 6: one below at the ninth Servia on the California law.
34:09
Speaker 6: So I don't think there's anything further to do on
34:12
Speaker 6: that front. But as far as the other states go,
34:13
Speaker 6: I would expect challenges at least in the Federal District
34:17
Speaker 6: court applying principles of what we get in Wolford to
34:21
Speaker 6: those other laws. Or One of the other open questions
34:24
Speaker 6: I neglected to mention before is what laws are appropriate
34:29
Speaker 6: for analogy and so a lot of the frankly more
34:32
Speaker 6: acerbic exchanges yesterday before the court were about Reconstruction era
34:37
Speaker 6: laws that aimed to disarm people of color and newly
34:41
Speaker 6: freed slaves.
34:43
Speaker 7: Justice.
34:43
Speaker 6: Jackson thinks that including them in history and tradition is
34:48
Speaker 6: sort of a natural logical result of the Bruin test,
34:52
Speaker 6: which is it exists as part of the tradition.
34:55
Speaker 7: Repugnant as it may be, it's still part of the tradition.
35:00
Speaker 6: And you know, I think it's particularly impactful, meaningful coming
35:05
Speaker 6: from her who so regularly fights these sort of battles,
35:08
Speaker 6: and I think it just evinces that she is continuing
35:11
Speaker 6: to push what she sees as the flaws in Bruin
35:15
Speaker 6: with little apparent success, I think, with some of her
35:18
Speaker 6: more conservative colleagues. But I think she's highlighting, both for
35:22
Speaker 6: the public and for judges across the nation, the methodological
35:26
Speaker 6: shortcomings of Bruins and the types of questions the court
35:29
Speaker 6: will still have to answer.
35:31
Speaker 2: Thanks so much, Haley. That's Haley Lawrence, Executive director of
35:35
Speaker 2: the Duke Center for Firearms Law. A note. Michael Bloomberg,
35:39
Speaker 2: the founder and majority owner of Bloomberg LP, the parent
35:42
Speaker 2: company of Bloomberg Radio, is a donor to groups that
35:45
Speaker 2: support gun control, including every Town for Gun Safety. And
35:50
Speaker 2: that's it for this edition of The Bloomberg Law Show.
35:52
Speaker 2: Remember you can always get the latest legal news on
35:54
Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
35:59
Speaker 2: and it doublew dot Bloomberg dot com, slash podcast, slash Law,
36:04
Speaker 2: and remember to tune into The Bloomberg Law Show every
36:07
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
36:11
Speaker 2: and you're listening to Bloomberg