Latest / Bloomberg Law / Weekend Law: Vampire Gun Rule & Trump Headed for SCOTUS Loss

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Weekend Law: Vampire Gun Rule & Trump Headed for SCOTUS Loss · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Hawaii's law restricting the carrying of guns onto private property
0:12
Speaker 2: open to the public like stores, hotels, and gas stations
0:16
Speaker 2: without the consent of the property owner is known as
0:20
Speaker 2: the Vampire rule, and it looks like the Supreme Court's
0:23
Speaker 2: conservative justices are about to drive a stake into it.
0:27
Speaker 2: At oral arguments on Tuesday, the Conservatives were roundly skeptical
0:32
Speaker 2: of the law. Chief Justice John Roberts wanted to know
0:36
Speaker 2: why the Second Amendment was being relegated to second class status.
0:41
Speaker 3: It is a very clear constitutional right under the First Amendment.
0:44
Speaker 3: If I, for example, as a candidate for office, want
0:47
Speaker 3: to walk up to your door on private property and
0:50
Speaker 3: knock on the door and say here, give me your vote,
0:53
Speaker 3: that's exercising your First Amendment right. But you say that
0:56
Speaker 3: it's different when it comes to the Second Amendment.
0:59
Speaker 2: And Samuel Alito wanted to know why Hawaii even needed
1:03
Speaker 2: the law.
1:04
Speaker 4: So, what then, is the big deal about this statute?
1:08
Speaker 4: Why does it matter if store owners and owners of
1:11
Speaker 4: private property is that are generally open to the public
1:15
Speaker 4: don't like guns. Why is it a big deal to
1:18
Speaker 4: say they want people carrying guns to stay.
1:20
Speaker 1: Out, just put up a sign.
1:22
Speaker 2: My guest is a Second Amendment expert Adam Winkler, a
1:25
Speaker 2: professor at UCLA Law School. Adam explained the Hawaii law
1:30
Speaker 2: for us and why it's called the vampire rule.
1:33
Speaker 5: It's called the vampire rule because the traditional legend of
1:37
Speaker 5: the vampire is that they can't go on to private
1:40
Speaker 5: property without the owner's consent, and that's a real limit
1:44
Speaker 5: to vampire's ability to attack people and suck their blood
1:47
Speaker 5: if they can't break in or whatnot. So this case
1:50
Speaker 5: is Wolford versus Lopez, and the question in the case
1:52
Speaker 5: is whether the Second Amendment is infringed by a Hawaii
1:57
Speaker 5: law that requires gun carriers to obtain affirmative permission before
2:02
Speaker 5: bringing their guns onto private property that is otherwise open
2:06
Speaker 5: to the public. And so that's why it's kind of
2:07
Speaker 5: thought as the vampire rule. Do you, like a vampire,
2:10
Speaker 5: have to get affirmative permission? Now, of course, private property
2:13
Speaker 5: owners can prohibit guns from their property. The issue here
2:17
Speaker 5: is the default rule. Most states say that you can
2:20
Speaker 5: bring your guns unless the property owner affirmatively says no,
2:24
Speaker 5: you can't, typically by posting a sign that says no
2:28
Speaker 5: guns allowed. Hawaii and several other states have adopted a
2:31
Speaker 5: different rule. Property owners must affirmatively consent in advance to
2:36
Speaker 5: people bringing guns on their property.
2:38
Speaker 2: So why does the government say that violates the Second Amendment.
2:42
Speaker 5: Well, it goes back to this history and tradition test
2:46
Speaker 5: that was established by the Bruin case a few years ago.
2:50
Speaker 5: And in that case, the Supreme Court said that for
2:52
Speaker 5: a gun law to be constitutionally permissible, it has to
2:55
Speaker 5: be consistent with the tradition of gun regulation in the
2:58
Speaker 5: seventeen and eighteen hundreds. And the gun challengers here are saying,
3:03
Speaker 5: one that there isn't a history and tradition of a
3:06
Speaker 5: default rule requiring affirmative consent in advance for people to
3:10
Speaker 5: bring guns onto private property that's open to the public,
3:13
Speaker 5: and two that the consequences of Hawaii's law are devastating
3:19
Speaker 5: for gun carrying. The Supreme Court has said, you have
3:21
Speaker 5: a right to carry guns in public, and if the
3:25
Speaker 5: default rule established by Hawaii and several other states like
3:28
Speaker 5: California stands, then gun owners really won't be able to
3:32
Speaker 5: carry their guns around because they couldn't even stop at
3:35
Speaker 5: a gas station without affirmatively first getting consent, so it
3:38
Speaker 5: would effectively nullify the right to bear arms.
3:41
Speaker 2: So as far as the history and tradition test, Hawaii
3:44
Speaker 2: did present historical evidence to support the gun law, including
3:48
Speaker 2: an eighteen thirty three law in place during the reign
3:50
Speaker 2: of King Kamehameha and in eighteen sixty five Louisiana law,
3:55
Speaker 2: but it didn't seem that was enough for the conservative justices.
3:58
Speaker 2: Brett Kavanaugh said, there's no sufficient history case closed.
4:03
Speaker 5: Well, the real challenge of applying Bruin's history and tradition
4:07
Speaker 5: tests is in part that there's often not much of
4:12
Speaker 5: a tradition of anything when it comes to regulating guns,
4:16
Speaker 5: besides sort of racist gun laws, and you know, a
4:20
Speaker 5: couple laws here and there, and so it's hard to
4:23
Speaker 5: find consistency or predictability. The Ninth Circuit here said that
4:28
Speaker 5: there was a national tradition of prohibiting the carrying of
4:30
Speaker 5: firearms on private property without consent. Yet several justices in
4:34
Speaker 5: the oral arguments suggest that there was no such history.
4:37
Speaker 5: And the challenge of Bruin with regards to say default
4:41
Speaker 5: rules for private property that's open to the public is
4:44
Speaker 5: that there really weren't default rules in either direction. In
4:47
Speaker 5: the seventeen and eighteen hundreds, and so once again we're
4:50
Speaker 5: trying to figure out the constitutionality of modern laws by
4:54
Speaker 5: reference to analogies to a tradition that didn't exist in either.
5:00
Speaker 5: In many of these cases.
5:02
Speaker 2: Justice Samuel Alito told Hawai's attorney Neil Katieu, you're relegating
5:07
Speaker 2: the Second Amendment to second class status, and the Chief
5:10
Speaker 2: Justice compared it to the First Amendment allowing a political
5:14
Speaker 2: candidate to walk up to someone's door to campaign. Quote,
5:17
Speaker 2: you say it's different for the Second Amendment, What exactly
5:21
Speaker 2: is the distinction. Isn't the distinction obvious that in one
5:25
Speaker 2: you're carrying a weapon that can hurt people and the
5:28
Speaker 2: other you're carrying pamphlets.
5:30
Speaker 5: Well, it would seem that that would be a pretty
5:32
Speaker 5: viable distinction. It might not lead to the outcome that
5:36
Speaker 5: the challengers hope for, or even might not necessarily lead
5:39
Speaker 5: to the outcome that Hawaii is hoping for, but it
5:42
Speaker 5: just highlights what's happened a continuing rhetoric that we see
5:45
Speaker 5: among the conservative justices, which is that the Second Amendment
5:49
Speaker 5: they feel is being treated like a second class right
5:52
Speaker 5: because courts are upholding gun laws and in upholding gun laws.
5:57
Speaker 5: They are not treating the Second Amendment the amount of
6:00
Speaker 5: respect that they want. What was surprising about this oral
6:04
Speaker 5: argument was not that some of the justices said that
6:06
Speaker 5: the Second Amendment is being treated like a second class right.
6:09
Speaker 5: We've seen that argument made time and again by Clarence Thomas,
6:13
Speaker 5: by Neil Gorsich, by Sam Alido. What was surprising in
6:17
Speaker 5: this case was that the Chief Justice voiced that concern.
6:21
Speaker 5: He suggested that the Second Amendment was being unfairly treated
6:25
Speaker 5: like a disfavored right to stink from the First Amendment.
6:28
Speaker 5: And that's surprising because the Chief Justice we've sort of
6:31
Speaker 5: all thought to be somewhat reluctant to expanding Second Amendment
6:37
Speaker 5: protections beyond Bruin and Heller, and this suggested that maybe
6:41
Speaker 5: he did agree with the more conservative colleagues that the
6:44
Speaker 5: Second Amendment needs more protection, that the courts need to
6:47
Speaker 5: be striking down more gun laws right now.
6:49
Speaker 2: You're an expert on the Second Amendment. Do you think
6:52
Speaker 2: it's a disfavored amendment or it's being relegated to second
6:56
Speaker 2: class status?
6:57
Speaker 5: I personally don't, but I do recognize that the courts
7:00
Speaker 5: are really struggling right now to try to figure out
7:02
Speaker 5: what the Second Amendment means, where it applies, and what
7:06
Speaker 5: is constitutionally permissible. And I think it really comes back
7:09
Speaker 5: a little bit, at least to this history and tradition
7:12
Speaker 5: test established by Bruin. It has really left the lower
7:15
Speaker 5: courts in chaos. That where the Supreme Court said, the
7:18
Speaker 5: reason why we need this history and tradition test is
7:21
Speaker 5: going to limit judicial activism, prevent judges from imposing their
7:25
Speaker 5: values on the Constitution, and provide more predictability. But instead,
7:29
Speaker 5: what we've seen is tremendous inconsistency in the lower courts,
7:33
Speaker 5: tremendous disagreement over the scope of gun laws, and in
7:36
Speaker 5: part because the history and tradition of gun regulation. There
7:39
Speaker 5: is a history in tradition, but it's very different kinds
7:42
Speaker 5: of gun laws than we have today. Truth be told
7:44
Speaker 5: that if we really seriously applied this Bruin test, then
7:48
Speaker 5: a whole raft of gun laws that are widely accepted
7:51
Speaker 5: would not be constitutionally permissible. We didn't have background checks
7:55
Speaker 5: back in the seventeen and eighteen hundreds or anything like it.
7:58
Speaker 5: We didn't have bands on felon possessing firearms or anything
8:01
Speaker 5: really like it, and we didn't have bands on the
8:04
Speaker 5: mentally ill possessing firearms back in the seventeen and eighteen hundreds.
8:07
Speaker 5: These are all modern twentieth century inventions, and yet the
8:11
Speaker 5: court says we have to find analogies back in the
8:15
Speaker 5: seventeen and eighteen hundreds. It's proven very difficult for the courts.
8:18
Speaker 5: One difficult issue that's arisen in these cases is how
8:22
Speaker 5: to think about the history of racist gun laws in America.
8:26
Speaker 5: One thing there's been a lot of in the seventeen
8:28
Speaker 5: and eighteen hundreds was gun laws that prohibited people who
8:32
Speaker 5: were African American, for instance, from possessing firearms. In these
8:36
Speaker 5: racist gun laws, the courts have kind of struggled with
8:38
Speaker 5: how to figure out how to apply them, and that
8:41
Speaker 5: came up in this case. You know, obviously you can't
8:44
Speaker 5: look at those gun laws and say, well, there's a
8:45
Speaker 5: principle that we can discriminate on the basis of race
8:48
Speaker 5: in our gun laws. Today, no one would accept that conclusion.
8:52
Speaker 5: But do those laws nonetheless reflect a measure of governmental
8:56
Speaker 5: authority to regulate guns? And if they do, then it
9:01
Speaker 5: would seem that that's part of the history and tradition
9:03
Speaker 5: of gun laws and something that speaks to the extent
9:06
Speaker 5: of government authority to regulate guns. In this case, Hawaii
9:10
Speaker 5: relied on an eighteen sixty five law from Louisiana that
9:14
Speaker 5: restricted gun carrying on premises and plantations without the owner's consent.
9:19
Speaker 5: Neil Gorsich said that that was an outlier and part
9:22
Speaker 5: of the Black Codes, and so it should be completely ignored.
9:25
Speaker 5: Kaitanji Brown Jackson said no, said that if we ignore
9:29
Speaker 5: those laws, then we aren't really looking at the full
9:32
Speaker 5: history and tradition of gun regulation, as Bruin requires. And
9:36
Speaker 5: so this has become a recurring problem in these cases,
9:39
Speaker 5: and it'll be interesting to see what the court here
9:41
Speaker 5: says that might sort that out.
9:44
Speaker 2: Liberal Justices Sonya Sotomayor and Katanji Brown Jackson seemed open
9:49
Speaker 2: to the argument that the laws better understood as a
9:52
Speaker 2: matter of property rights and trespassing rather than as a
9:55
Speaker 2: gun regulation, but Justice Gorzitz rejected that outright. So what
10:00
Speaker 2: about property rights here?
10:02
Speaker 5: Well, it is a difficult issue, right, because we do
10:05
Speaker 5: recognize that private property owners can prohibit people from coming
10:08
Speaker 5: on to their property, and even a property that's open
10:12
Speaker 5: to the public, generally, you can prevent someone from coming
10:14
Speaker 5: on your property if you don't want to do business
10:16
Speaker 5: with them. Obviously, with the exception of things that are
10:19
Speaker 5: prohibited by the Civil Rights Act or whatnot, you can't
10:21
Speaker 5: prohibit on the basis of race, or sex or national origin.
10:24
Speaker 5: But generally you could prohibit someone from coming onto your
10:27
Speaker 5: property if you didn't like the fact that they weren't
10:29
Speaker 5: wearing shoes, or they weren't wearing a shirt. And well,
10:32
Speaker 5: it's at issue here is whether they could prohibit you
10:35
Speaker 5: from coming on if you'd have a gun. Now, obviously
10:37
Speaker 5: there's a difference between not having a shirt and having
10:39
Speaker 5: a gun, and that there is a constitutional right to
10:42
Speaker 5: have and to carry a firearm. But generally we think
10:45
Speaker 5: that your constitutional rights do not extend onto someone else's
10:48
Speaker 5: private property. And so this case poses a real challenge
10:51
Speaker 5: to the court how to think about private property rights
10:54
Speaker 5: in the context of an amendment that does say that
10:57
Speaker 5: you can carry firearms in public.
10:59
Speaker 2: Would you say it's pretty clear that the Conservatives intend
11:02
Speaker 2: to strike the Hawaii law down.
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Speaker 5: It did seem like all six of the Conservative justices
11:08
Speaker 5: voiced significant skepticism about Hawaii's law and are likely to
11:13
Speaker 5: vote to strike Hawaii's law down. There was some skepticism However,
11:19
Speaker 5: by Amy Comy Barrett about whether this law was constitutionally invalid.
11:24
Speaker 5: She asked whether states could require consent before gun owners
11:29
Speaker 5: carry on too private property that isn't open to the public,
11:32
Speaker 5: and the lawyer for the challengers in this case said
11:35
Speaker 5: that states could not require such consent, and Justice Barrett
11:40
Speaker 5: voiced skepticism about that, saying, wait, so you're suggesting that
11:43
Speaker 5: states could not prevent people from bringing guns into my
11:46
Speaker 5: private home or the home of Neil Gorsich. But nonetheless,
11:50
Speaker 5: she generally seems skeptical of Hawaii's law, and I would
11:53
Speaker 5: expect Hawai's law to be struck down at least based
11:56
Speaker 5: on the tenor of the oral argument.
11:58
Speaker 2: There are similar measures in four other states California, Maryland,
12:02
Speaker 2: New York, and New Jersey. If the Court strikes down
12:05
Speaker 2: the Hawaii law, will those fall as well?
12:09
Speaker 5: It seems likely that's the case. You know, it's possible
12:12
Speaker 5: you might see a more narrow ruling that only looks
12:14
Speaker 5: at some of the particularities of Hawaii's law, but I
12:19
Speaker 5: don't think that's likely.
12:21
Speaker 2: Finally, the Court has expanded gun right since Bruin, but
12:24
Speaker 2: there have been cases here and there where they allowed
12:27
Speaker 2: restrictions like the ghost gun restrictions and the restrictions on
12:31
Speaker 2: people with domestic violence restraining orders against them. Do you
12:35
Speaker 2: understand where the line is for the conservative justices?
12:39
Speaker 5: Well, I think this is really a difficult issue. What
12:41
Speaker 5: the Supreme Court said and the Rahimi case where they
12:44
Speaker 5: upheld the ban on domestic abusers subject to a restraining
12:47
Speaker 5: order from possessing firearms, is that there was a history
12:49
Speaker 5: and tradition of banning gun possession by dangerous people. Now
12:53
Speaker 5: that seems like that would lead to believe that, you know,
12:56
Speaker 5: felons can be banned from having firearms. There's a case
12:59
Speaker 5: the Supreme Court set here later this term on whether
13:02
Speaker 5: unlawful users of controlled substances can be prohibited from possessing firearms.
13:07
Speaker 5: Presumably the reason there is because they're dangerous, and one
13:09
Speaker 5: would think that the Raheemi case would lead to the
13:12
Speaker 5: substance abuser ban being upheld. But the difficulty even there
13:16
Speaker 5: is that Raheemi drew on analogies to some laws in
13:20
Speaker 5: the eighteen hundreds that actually didn't prohibit dangerous people from
13:24
Speaker 5: possessing firearms. They prohibited some people from carrying guns in
13:28
Speaker 5: some circumstances, but none of those laws that the court
13:31
Speaker 5: cited to prohibited someone from having a gun in their
13:35
Speaker 5: home and using it for self defense, which is exactly
13:38
Speaker 5: what the substance abuser ban does and what the ban
13:40
Speaker 5: on felons and possession does. And so it seems like
13:44
Speaker 5: again it's going to be about the dueling analogies to
13:46
Speaker 5: a historical tradition that is ambiguous and frankly just not
13:50
Speaker 5: that helpful in deciding the constitutionality of modern gun laws.
13:54
Speaker 2: It's been great having you on again, Adam, Thanks so
13:56
Speaker 2: much fast, Professor Adam Winkler of UCLA LASS. And now
14:01
Speaker 2: a note. Michael Bloomberg, the founder and majority owner of
14:04
Speaker 2: Bloomberg LP, the parent company of Bloomberg Radio, is a
14:08
Speaker 2: donor to groups that support gun control, including Every Town
14:12
Speaker 2: for Gun Safety.
14:14
Speaker 6: The President, by your own admission, cannot fire someone for
14:20
Speaker 6: disagreeing with his policy choices. You've conceded that, correct, correct,
14:26
Speaker 6: all right, So it's not as if keeping her is
14:30
Speaker 6: going to twart any right he has to run the department,
14:34
Speaker 6: because he has none. He's conceded that on policy he
14:39
Speaker 6: does not.
14:40
Speaker 2: In the one hundred and twelve year history of the
14:42
Speaker 2: Federal Reserve, no president has ever tried to fire a
14:46
Speaker 2: governor from the board, and the Supreme Court indicated they're
14:50
Speaker 2: unlikely to permit President Trump to be the first to
14:53
Speaker 2: do so. On Wednesday, Supreme Court Justice is across the
14:57
Speaker 2: ideological spectrum expressed learns about the implications of Trump removing
15:03
Speaker 2: Federal Reserve Governor Lisa Cook over unproven mortgage fraud allegations,
15:08
Speaker 2: concerns that it would upend the Fed's independence and rattle
15:12
Speaker 2: the markets. Justice is Brett Kavanaugh and Amy Cony Barrett,
15:16
Speaker 2: both Trump appointees, pose skeptical questions to the US Solicitor General,
15:22
Speaker 2: who argues, on behalf of the federal government.
15:25
Speaker 7: Your position that there's no judicial review, no process required,
15:32
Speaker 7: no remedy available, very low bar for cause that the
15:38
Speaker 7: president alone determines. I mean that would weaken, if not shattered,
15:42
Speaker 7: the independence of the Federal Reserve.
15:45
Speaker 8: Justine Sodomaira brought up the public interests here, and we
15:49
Speaker 8: have amicus brace from economists who tell us that if
15:52
Speaker 8: Governor Cook is if we grant you your stay, that
15:55
Speaker 8: it could trigger overcession.
15:57
Speaker 2: Both Cook and Federal Reserve Chairman Jerome Owl sat through
16:01
Speaker 2: nearly two hours of arguments in the packed courtroom. Cook
16:05
Speaker 2: has denied any wrongdoing, and the threshold for an emergency
16:08
Speaker 2: intervention by the Court is high and includes a showing
16:12
Speaker 2: of irreparable harm to the president, something several jaunctices, including
16:18
Speaker 2: Katanji Brown Jackson, said there was no evidence of.
16:22
Speaker 9: So the question is to what extent do we believe
16:29
Speaker 9: that the President or the public is harmed by allowing
16:33
Speaker 9: Miss Cook to remain in her position for the pendency
16:37
Speaker 9: of this case, I'm not sure that we have evidence
16:41
Speaker 9: here that missus Cook is an immediate threat to the public.
16:47
Speaker 2: The decision in this case could set a crucial precedent
16:50
Speaker 2: for the President's influence over the Central Bank and his
16:54
Speaker 2: attempt to further expand presidential power. My guest is constitutional
16:59
Speaker 2: law experts David Super, a professor at Georgetown Law. David,
17:04
Speaker 2: at this point, the Supreme Court doesn't have to definitively
17:07
Speaker 2: resolve whether Trump can fire Cook. The issue right now
17:11
Speaker 2: is whether Cook can stay on the job while her
17:14
Speaker 2: challenge to the firing plays out in the lower courts.
17:18
Speaker 2: If you just go by the oral arguments, did it
17:21
Speaker 2: seem like there were at least five justices who would
17:24
Speaker 2: vote to prevent Trump from firing.
17:26
Speaker 1: Cook, I think so. The government's lawyer faced pretty tough
17:31
Speaker 1: questioning from seven justices, and it only takes five. There's
17:36
Speaker 1: a lot of niceties in this case, but what it
17:39
Speaker 1: comes down to is whether the Federal Reserve will be independent,
17:42
Speaker 1: whether it will exercise its enormous powers based on best
17:46
Speaker 1: expert judgment and the directions given by Congress, or whether
17:51
Speaker 1: it will be just a tool of the sitting president
17:54
Speaker 1: who can use it irresponsibly to advance his political fortunes.
17:58
Speaker 2: And explain the four couse requirement in the Federal Reserve Act.
18:03
Speaker 1: Certainly, the Federal Reserve Act creates the Board of Governors,
18:08
Speaker 1: allows the President to appoint people to that board with
18:12
Speaker 1: Senate confirmation, and provides that once appointed and confirmed, they
18:17
Speaker 1: cannot be removed except for cause. That effectively means that
18:22
Speaker 1: they must do something wrong or fail to do their
18:26
Speaker 1: jobs in order to be removed. It's not just up
18:30
Speaker 1: to the president to fire them anytime he wants. He
18:33
Speaker 1: can fire his chief of staff anytime he wants, but
18:36
Speaker 1: members of the Federal Reserve Board he has to have
18:39
Speaker 1: a good reason a cause to do it.
18:41
Speaker 2: Cook argues that even if the mortgage fraud allegations were true,
18:45
Speaker 2: that is in grounds for firing her for cause. What
18:49
Speaker 2: did you hear from the justices on the four cause requirement?
18:53
Speaker 1: Well, there was less clarity as to what they were
18:56
Speaker 1: thinking about that, at least my take on the argument.
18:59
Speaker 1: There are some statutes that provide considerable detail as to
19:05
Speaker 1: what is caused. This statute isn't really one of them.
19:09
Speaker 1: And some justices, particularly Justice Thomas, seemed to be thinking
19:16
Speaker 1: that that difference between this and other laws means that
19:20
Speaker 1: anything that Trump says is cause is good enough. But
19:24
Speaker 1: there were other justices that seem responsive to the notion
19:29
Speaker 1: that if the President can just make up any old
19:32
Speaker 1: cause he wants, that there is effectively no independence for
19:36
Speaker 1: the Federal Reserve. And I think that the extreme nature
19:42
Speaker 1: of the argument here that the Slisser General had to
19:45
Speaker 1: make is going to bite them. The essence of doctor
19:48
Speaker 1: Crook's argument is all this information was available before I
19:53
Speaker 1: was appointed and confirmed. Congress could have taken that into
19:57
Speaker 1: account in deciding whether to confirm me. They didn't. And
20:02
Speaker 1: the good cause requirement is supposed to relate to something
20:05
Speaker 1: one does on the job. I didn't have this job
20:09
Speaker 1: when I sought those mortgages. That Trump is saying are improper.
20:14
Speaker 2: There was an extraordinary amicus or friend of the court
20:17
Speaker 2: brief filed in this case, signed by every living former
20:22
Speaker 2: chair of the Federal Reserve, as well as six former
20:25
Speaker 2: Treasury secretaries and other experts, warning about how a decision
20:30
Speaker 2: for Trump would affect the Fed's independence and the long
20:33
Speaker 2: term stability of the economy, and Justice Barrett took note
20:37
Speaker 2: of that.
20:38
Speaker 1: Well, the elephant in the room is the copious evidence
20:45
Speaker 1: that non independent central banks are very bad for country's economies.
20:51
Speaker 1: And you can look at Russia, you can look at Turkey,
20:54
Speaker 1: you can look at other countries that do not have
20:56
Speaker 1: independent central banks, and they have enormous economic trouble as
21:00
Speaker 1: a result. The justices know this, and even if philosophically
21:04
Speaker 1: they'd like to let Trump have his way, I think
21:08
Speaker 1: they don't want to be blamed for throwing the economy
21:10
Speaker 1: into a recession. And to her credit, Justice Barrett put
21:15
Speaker 1: that out on the table and gave the Solicitor General
21:18
Speaker 1: the opportunity to respond. You didn't do much with it,
21:20
Speaker 1: but she gave them a chance.
21:22
Speaker 2: Cook is also arguing that she should have been given
21:24
Speaker 2: notice and an opportunity to be heard to contest the
21:28
Speaker 2: allegations before she was fired, and all the Trump appointees
21:32
Speaker 2: pushed the Solicitor General to explain why that wasn't done.
21:36
Speaker 2: With the question sort of hanging in the air, what
21:39
Speaker 2: was the president afraid of?
21:40
Speaker 8: You know, justice? Course it positive sit down across the
21:44
Speaker 8: table in the Roosevelt run where the President provides ms
21:48
Speaker 8: Cook Governor Cook with the evidence and waits to hear
21:51
Speaker 8: what her response is. Gives her a chance to defend herself.
21:54
Speaker 8: I mean, it just wouldn't be that big a deal.
21:57
Speaker 7: And what's the fear of more process here? In the
22:00
Speaker 7: sense that process protects you in the sense of helping
22:05
Speaker 7: you make better, more accurate decisions, and it helps process
22:08
Speaker 7: helps you then convince people on the outside that you've
22:11
Speaker 7: made a considered, thorough appropriate decision. What's the concern about
22:16
Speaker 7: more process?
22:17
Speaker 2: And some of the justices seemed almost incredulous that the
22:21
Speaker 2: Solicitor General was contending that Trump's social media posts constituted
22:26
Speaker 2: formal notice to Cook.
22:28
Speaker 1: Certainly, social media, particularly one's own personal social media platform,
22:35
Speaker 1: is not a conventional way of giving notice. It's a
22:38
Speaker 1: way of doing public politics. This slicter general actually went
22:42
Speaker 1: even farther than you say, and suggested that the failure
22:47
Speaker 1: of doctor Cook to tweet back at Trump should be
22:52
Speaker 1: held against or should be held as an admission that
22:55
Speaker 1: what Trump said was true. If I was held responsible
22:59
Speaker 1: for every tweet I ignored, I would be in a
23:02
Speaker 1: very bad way. And there was no hearing. There was
23:06
Speaker 1: no pretense of a hearing. And the argument that the
23:11
Speaker 1: Solicitor General was forced to make is that she got
23:15
Speaker 1: the equivalent of a hearing in public in getting adverse
23:20
Speaker 1: social media posts from Trump and not responding to them.
23:25
Speaker 1: That's an argument that even most conservative justices seemed to
23:29
Speaker 1: have a great difficulties following.
23:31
Speaker 2: Unlike past arguments, it was really an uphill battle for
23:35
Speaker 2: the Solicitor General. Did any of his arguments seem to
23:39
Speaker 2: resonate with the justices?
23:41
Speaker 1: Well, I mean, the biggest advantage that the president has
23:45
Speaker 1: in this case is that the Supreme Court is pretty
23:49
Speaker 1: clearly going to strike down security of ten year requirements
23:54
Speaker 1: for the vast majority of executive branch officials. That's the
23:59
Speaker 1: Trump versus Slaughter case. An oral argument on that made
24:03
Speaker 1: pretty clear that the Court is going to overrule Humphrey's
24:06
Speaker 1: executor and allow the president to fire at will members
24:12
Speaker 1: of even very sensitive boards like the Federal Trade Commission.
24:16
Speaker 1: So the question here is always been can the Supreme
24:19
Speaker 1: Court find a way of differentiating the Federal Reserve from
24:24
Speaker 1: the Federal Trade Commission and all those others? And that's
24:27
Speaker 1: I think what this Lister General was trying to go
24:31
Speaker 1: with here is to suggest that the Court should just
24:36
Speaker 1: treat this case like any other. Once you look at
24:39
Speaker 1: the specifics, the accusations against her fall apart in your hands.
24:44
Speaker 1: She was obviously given no hearing, and as several justices,
24:48
Speaker 1: including Justice Kavanaugh, pointed out, if you allow the president
24:53
Speaker 1: to make up anything and call it cause, then you
24:57
Speaker 1: have effectively ended the Fed's independent and that makes them
25:01
Speaker 1: very nervous.
25:02
Speaker 2: It's a high bar for the Supreme Court to intervene
25:05
Speaker 2: on an emergency basis and includes a showing of a
25:09
Speaker 2: reparable harm to the president. And as many of the
25:12
Speaker 2: justices pointed out, you know, where's the irreparable harm to Trump?
25:16
Speaker 1: Well, we have gotten a custom over the last year
25:20
Speaker 1: to the Supreme Court finding that any potential impairment of
25:25
Speaker 1: President Trump's powers is an irreparable injury. But if I
25:30
Speaker 1: ask you to go way back in time one year,
25:33
Speaker 1: that was very extraordinary and getting the Supreme Court to
25:37
Speaker 1: intervene in lower court cases was very difficult throughout most
25:41
Speaker 1: of this country's history. So perhaps the Court will revert
25:45
Speaker 1: to that and say we shouldn't get involved until this
25:49
Speaker 1: gets fully aired out in the lower courts.
25:51
Speaker 2: Coming up next, more with Professor David super on what
25:54
Speaker 2: the decision might look like. I'm June Grass. When you're
25:57
Speaker 2: listening to Bloomberg, Let's.
26:01
Speaker 7: Talk about the real world, downstream effects of this, because
26:06
Speaker 7: if this were set as a precedent, it seems to me,
26:11
Speaker 7: just thinking big picture, what goes around comes around. All
26:16
Speaker 7: the current president's appointees would likely be removed for cause
26:22
Speaker 7: on January twentieth, twenty twenty nine, if there's a democratic president,
26:26
Speaker 7: or January twentieth, twenty thirty three, and then we're really
26:33
Speaker 7: at at will removal. So what are we doing here?
26:36
Speaker 2: Concerns about the unique nature of the Federal Reserve were
26:40
Speaker 2: at the center of the Supreme Court oral arguments over
26:43
Speaker 2: President Trump's attempts to fire Fed Governor Lisa Cook. So far,
26:47
Speaker 2: the Court has largely accommodated Trump's assertions of sweeping presidential power,
26:53
Speaker 2: lifting about twenty lower court rulings that were blocking his agenda,
26:58
Speaker 2: but that success may be coming to an end. Conservative
27:02
Speaker 2: and liberal justices alike signaled they'll defy Trump as he
27:06
Speaker 2: tries to exert control of the nation's central bank by
27:10
Speaker 2: firing Cook based on unproven allegations that she'd committed mortgage
27:15
Speaker 2: fraud before her appointment by claiming two properties as her
27:19
Speaker 2: principal residence. Cook denies the allegations and argues that even
27:24
Speaker 2: if they were true, that doesn't constitute grounds for firing
27:28
Speaker 2: her for cause. Chief Justice John Roberts seemed to agree, disputing,
27:33
Speaker 2: Solicitor General John Sowers claimed that the misstatements, even if inadvertent,
27:38
Speaker 2: constituted at least gross negligence.
27:42
Speaker 5: Even if it was invertn or mistake, it's quite a
27:45
Speaker 5: big mistake, so to speak, in a key financial representation
27:48
Speaker 5: made in the context.
27:49
Speaker 3: Of integral I mean, I suppose we can debate that
27:52
Speaker 3: with how significant it is in a stack of papers
27:54
Speaker 3: you have to fill out when you're buying.
27:58
Speaker 1: Real estate.
27:59
Speaker 2: The Chief also seemed a bit perturbed with the Solicitor
28:02
Speaker 2: General's rather extreme position that the courts can't even review
28:06
Speaker 2: the president's decision to fire a Federal Reserve governor, and
28:10
Speaker 2: that they basically have no role whatsoever to play.
28:14
Speaker 3: General Sauer, If you're correct that courts do not have
28:18
Speaker 3: the authority to reinstate a removed officer, why are we
28:22
Speaker 3: wasting our time wondering if there's cause or not? Because
28:25
Speaker 3: even if we say yes, there is cause, shouldn't have
28:28
Speaker 3: removed her, but we don't have the authority to order
28:31
Speaker 3: her reinstatement. What's the How is that consistent with the
28:37
Speaker 3: time and energy being spent on determining if there's cause.
28:40
Speaker 2: Even one of the most conservative justices on the court,
28:43
Speaker 2: Samuel Alito, express some annoyance with the administration, and it's
28:48
Speaker 2: rushed to push the case forward.
28:50
Speaker 4: Is there any reason why this whole matter had to
28:53
Speaker 4: be handled by everybody, by the executive branch, by the
28:58
Speaker 4: district court circuit in such a hurried manner. You began
29:04
Speaker 4: by laying out what you claim to be the factual
29:07
Speaker 4: basis for the four cause removal, but no court has
29:12
Speaker 4: ever explored those facts. Are the mortgage applications even in
29:17
Speaker 4: the record in this case.
29:18
Speaker 2: Two lower courts block Trump from removing Cook. While the
29:22
Speaker 2: legal fight moves forward. I've been talking to constitutional law
29:26
Speaker 2: expert David super, a professor at Georgetown Law David, Let's
29:30
Speaker 2: talk about the extreme nature of the administration's position here,
29:35
Speaker 2: that the President doesn't have to provide any notice, any
29:38
Speaker 2: hearing to a Fed governor before firing them, and that
29:42
Speaker 2: the courts can't review that decision. The Chief basically said,
29:46
Speaker 2: why are you wasting our time? Here? Was the administration
29:49
Speaker 2: going too far from most of the justices?
29:52
Speaker 1: I think so because the Solicitor General's position is that
29:57
Speaker 1: the courts can't look at this. And if the President
30:01
Speaker 1: can fire a Federal Reserve governor based on anything the
30:06
Speaker 1: President makes up, and no matter how absurd and unfounded
30:10
Speaker 1: it is, it can't be reversed, then effectively there is
30:14
Speaker 1: no foe cause requirement in the Federal Reserve Statute, and
30:18
Speaker 1: these people all serve at the pleasure of the President. Many,
30:21
Speaker 1: many economists across the political spectrum believe that losing the
30:26
Speaker 1: independence of the Federal Reserve would in the long term
30:30
Speaker 1: reduce investment and increase infation in this country.
30:34
Speaker 2: And Justice Kavanaugh in particular seem very concerned about the repercussions,
30:40
Speaker 2: making that what goes around comes around argument and ending
30:44
Speaker 2: by saying, so what are we doing here?
30:46
Speaker 1: Yes? I mean if Ron believes as I do. The
30:49
Speaker 1: President Trump's time horizon here is very short, and he
30:53
Speaker 1: wants what he thinks is good for him right now.
30:56
Speaker 1: Doesn't care about the long term impacts. Then that's of
30:59
Speaker 1: no concern. But the whole reason we have the Supreme
31:02
Speaker 1: Court with life tenures so that they can look at
31:05
Speaker 1: the long term. They can look at the long term
31:07
Speaker 1: impact on the long and long term impact on the economy.
31:11
Speaker 1: And that, I think is where a court that is
31:14
Speaker 1: generally very sympathetic to President Trump's agenda starts getting extremely nervous.
31:20
Speaker 2: I wonder what you think about the timing here of
31:22
Speaker 2: the Justice Department's criminal investigation into FED Chair Jerome Powell.
31:28
Speaker 10: The threat of criminal charges is a consequence of the
31:31
Speaker 10: Federal Reserve setting interest rates based on our best assessment
31:35
Speaker 10: of what will serve the public, rather than following the
31:38
Speaker 10: preferences of the president.
31:40
Speaker 2: Isn't that investigation a bad look here because it tends
31:43
Speaker 2: to show that Trump is trying to reshape the FED,
31:47
Speaker 2: that it's all about interest rates rather than about the
31:50
Speaker 2: actions of one Fed governor.
31:53
Speaker 1: Yes, I think that is certainly the back of the
31:56
Speaker 1: Justice's minds, Chairman of Powell, sitting there in the courtroom
32:00
Speaker 1: watching all of this, so obviously, if they needed any reminding,
32:06
Speaker 1: he was there in the flesh. I don't know why
32:08
Speaker 1: they thought that was a good idea, particularly timed when
32:11
Speaker 1: they did it, and particularly against someone like Chairman Powell,
32:16
Speaker 1: who was appointed by President Trump and is pretty widely
32:21
Speaker 1: approved of across the political spectrum, particularly among his fellow Republicans.
32:26
Speaker 1: That strikes me as a remarkably handhanded and tone deaf
32:30
Speaker 1: thing to do. I wouldn't like the administration's chances in
32:34
Speaker 1: this case even without the Powell investigation, but they basically
32:39
Speaker 1: gave the court no room to pretend that a ruling
32:43
Speaker 1: against doctor Cook is compatible with an independent fed.
32:47
Speaker 2: You know, the tone of the arguments changed completely when
32:51
Speaker 2: the Solicitor General sat down and Lisa Cook's attorney, former
32:55
Speaker 2: Solicitor General Paul Clement, stood up to argue. As you know,
32:59
Speaker 2: he's one of the premier Supreme Court litigators. This is
33:03
Speaker 2: the fifth time he's argued before the Court since October,
33:07
Speaker 2: and it's hard to describe, but it seems less like
33:09
Speaker 2: the justices are questioning him and more like they're having
33:13
Speaker 2: a discussion. There was even laughter as he sort of
33:16
Speaker 2: sparred with Justice Neil Gorsuch.
33:19
Speaker 4: That's part of the reason I resisted the idea that
33:21
Speaker 4: you have to go to mandamus, because I do think
33:24
Speaker 4: you would have declaratory judgment.
33:26
Speaker 7: I do think declaratory judgment.
33:27
Speaker 4: I has to put that aside for them, and I
33:31
Speaker 4: tried to as long as I could.
33:32
Speaker 1: All right, then I give up.
33:35
Speaker 4: Then to answer your question, I really had to get
33:36
Speaker 4: to declaratory judgment.
33:38
Speaker 1: Former Slicen Cleman is an extraordinarily skilled lawyer in general
33:42
Speaker 1: and Supreme Court practitioner in particular. But he's also extremely
33:47
Speaker 1: conservative and is not likely to take a conservative majority
33:53
Speaker 1: of the Court for a ride to somewhere they don't
33:56
Speaker 1: want to go. So people have been hiring General Clement,
34:01
Speaker 1: I think, to provide reassurance in cases that might otherwise
34:06
Speaker 1: feel uncomfortable to this very conservative supermajority.
34:10
Speaker 2: So what do you think a decision in the case
34:12
Speaker 2: will look like.
34:13
Speaker 1: Well, the Justice have several ways of dealing with this.
34:16
Speaker 1: If we assume, which after argument, I think we can,
34:20
Speaker 1: that a majority of the Court does not want a
34:24
Speaker 1: highly politicized federal Reserve and needs to find some way
34:28
Speaker 1: of keeping doctor Cook on the board. They've got several
34:31
Speaker 1: ways to go. They can say that the hearing was improper,
34:36
Speaker 1: or the absence of a hearing and the notice was improper.
34:39
Speaker 1: They can say that something that happened prior to her
34:42
Speaker 1: taking the job doesn't count as good cause. They can
34:47
Speaker 1: say that the lower courts need to look into the
34:51
Speaker 1: merits of this or and this is something Justice Barrett
34:56
Speaker 1: seemed interested in. They can simply say that President Trump
35:01
Speaker 1: is not suffering any legal injury from having doctor Cook
35:06
Speaker 1: continue to serve, and therefore he simply doesn't qualify for
35:11
Speaker 1: a stay of the Lower courts injunction.
35:14
Speaker 2: Is it possible that even Justice Alito might vote against
35:17
Speaker 2: the Trump administration here?
35:19
Speaker 1: I mean, he asked reasonable questions, but the tone struck
35:24
Speaker 1: me as being largely sympathetic with the president, and I
35:28
Speaker 1: think he is more committed than most to the unitary
35:32
Speaker 1: executive theory, which this would have to be an exception to.
35:36
Speaker 2: When they write their opinion, Do they have to explain
35:39
Speaker 2: away that exception to the unitary executive theory and also
35:44
Speaker 2: their likely decision allowing Trump to fire the FTC commissioner.
35:49
Speaker 1: They've got various ways of hiding. The simplest is, because
35:54
Speaker 1: this is a preliminary stage. Is to simply say that
35:58
Speaker 1: President Trump hasn't qualify find for a stay and decided
36:04
Speaker 1: entirely on procedural grounds. They also could say that they're
36:08
Speaker 1: not required to consider what standards are appropriate for removing
36:13
Speaker 1: Federal Reserve governors because in this case, the President claimed
36:19
Speaker 1: to comply with the law, so all they have to
36:21
Speaker 1: do is decide whether he did. They have a number
36:24
Speaker 1: of ways of hiding. My guess is that they will
36:27
Speaker 1: not be eager to explain how what they're doing here
36:31
Speaker 1: is consistent with what they're going to do in the
36:33
Speaker 1: FTC case, because, let's face it, it isn't. In this case.
36:37
Speaker 1: They know how they want to come out, which is
36:39
Speaker 1: against Trump and in favor of Federal Reserve independence, and
36:43
Speaker 1: they have a huge obstacle to doing that, which is
36:46
Speaker 1: their desire to end the independence of all the other boards.
36:51
Speaker 1: So the whole argument was basically the justices feeling around
36:56
Speaker 1: for a way that they could decide this case the
36:59
Speaker 1: way they want to without undermining what they're doing to
37:02
Speaker 1: the FDC. And I think at the end of the day,
37:04
Speaker 1: there were enough paths open to them where they could
37:07
Speaker 1: do that, and they will do that. And the Slister
37:11
Speaker 1: General had to hang his hat entirely on consistency with
37:16
Speaker 1: what they're doing in the FDC case, because the actual
37:21
Speaker 1: decision on doctor Cook is essentially defensible.
37:24
Speaker 2: Would you say that, along with the Tariff's decision, which
37:27
Speaker 2: we're still waiting for, that this is one of the
37:30
Speaker 2: most important decisions of the term as far as the
37:33
Speaker 2: expansion of presidential power.
37:36
Speaker 1: Well, these two plus the Fellow Trade Commission case. But
37:40
Speaker 1: I think everyone believes that case is going to expand
37:43
Speaker 1: presidential power radically, So people I think are not spending
37:48
Speaker 1: as much time thinking about that since they feel they
37:50
Speaker 1: already know how it's coming out.
37:52
Speaker 2: It's shaping up to be a more controversial term than
37:55
Speaker 2: I initially thought it would be. Thanks so much David
37:59
Speaker 2: for going through all that and outs of the case.
38:01
Speaker 2: That's Professor David Super of Georgetown Law. And that's it
38:06
Speaker 2: for this edition of The Bloomberg Law Show. Remember you
38:08
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