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National Monuments at Risk & SNAP Benefits · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: It's been thirteen months in counting since the Tenth Circuit
0:12
Speaker 2: heard oral arguments in a case over the president's executive
0:17
Speaker 2: authority to protect or abolish US national monuments. This comes
0:22
Speaker 2: as the White House is rolling back public lands protections.
0:27
Speaker 2: The Tenth Circuit heard oral arguments in September of twenty
0:30
Speaker 2: twenty four in Garfield County versus Biden, a case plaintiffs
0:36
Speaker 2: are aiming at the Supreme Court as they challenge the
0:39
Speaker 2: president's executive power to block mining, oil and gas drilling,
0:44
Speaker 2: and other developments under the Antiquities Act. In May, the
0:47
Speaker 2: Trump Justice Department outlined a rationale for abolishing national monuments,
0:53
Speaker 2: many of which have been declared by presidents to protect
0:56
Speaker 2: large swaths of public land from development. But President Donald
1:01
Speaker 2: Trump has been largely hostile to large national monuments. The
1:06
Speaker 2: Interior Department, which manages most of the one hundred and
1:10
Speaker 2: thirty eight national monuments, has been cutting staff, expanding mining,
1:14
Speaker 2: oil drilling, and logging on federal lands, and is also
1:18
Speaker 2: reviewing whether it can open national monuments to mining. My
1:22
Speaker 2: guest is environmental law expert Pat Parento, a professor at
1:26
Speaker 2: the Vermont Law and Graduate School, Pat tell us about
1:29
Speaker 2: this case, Garfield County versus Biden, which is before the
1:34
Speaker 2: Tenth Circuit.
1:35
Speaker 3: So this is a challenge to President Biden's reinitiation of
1:41
Speaker 3: a National monument designation for Bears Ears in Utah, Southern Utah.
1:47
Speaker 3: It's over a million acres. It's one of the richest
1:51
Speaker 3: archaeological and Native American cultural artifact pieces of property in
1:57
Speaker 3: the entire United States. Are like five vibes who claimed
2:01
Speaker 3: various you know, heritage and interests in this area. And
2:06
Speaker 3: you know, it's another one of these designations under the
2:09
Speaker 3: Antiquities Act, the nineteen six law. There have been one
2:14
Speaker 3: hundred and fifty different designations by you know, Republican and
2:19
Speaker 3: Democratic presidents over the years.
2:21
Speaker 1: So this one is.
2:23
Speaker 3: A challenge from the state of Utah challenging the Bears
2:27
Speaker 3: Ears Monument. There's another related challenge to a monument in Colorado,
2:33
Speaker 3: the Grand staircase Escalante National Monuments. So both of these
2:38
Speaker 3: cases are working their way through the.
2:40
Speaker 2: Courts, and the lower court ruled that the Antiquities Act
2:45
Speaker 2: doesn't allow judicial review for monument designations.
2:51
Speaker 1: Correct.
2:51
Speaker 3: Basically, the lower court judge Utah Federal judge ruled that
3:00
Speaker 3: the Antiquities Act is a delegation of authority to the
3:04
Speaker 3: president that gives him complete discretion and leaves no role
3:11
Speaker 3: for the courts to review actions that the president takes
3:15
Speaker 3: under the Antiquities Act. And as we may talk, that
3:20
Speaker 3: was the focus of the argument in the Tenth Circuit
3:23
Speaker 3: Court of Appeals in September.
3:26
Speaker 2: So are there other acts where it's been determined that
3:31
Speaker 2: there can be no court review of what a president
3:34
Speaker 2: or an agency does.
3:37
Speaker 3: No. This is a doctrine in administrative law known as
3:41
Speaker 3: committed to agency discretion or in this case, committed to
3:46
Speaker 3: the president's discretion. And the Overton Park case is is
3:51
Speaker 3: the seminal case on this doctrine, and it basically says
3:55
Speaker 3: there's a presumption that you can review actions that federal
4:00
Speaker 3: agencies take, except where there's quote no law to apply.
4:05
Speaker 3: So that's one of the questions here is does the
4:08
Speaker 3: Antiquities Act give the courts standards that they can use
4:14
Speaker 3: to judge whether or not a president has exceeded his authority.
4:19
Speaker 3: That's the claim that Utah is making that Biden had
4:23
Speaker 3: no authority to designate something this large under the Antiquities Act,
4:29
Speaker 3: And from what I've read about the oral argument in
4:32
Speaker 3: the Tenth Circuit, it seems to me that the Court
4:36
Speaker 3: is likely to rule that there's at least some limited
4:41
Speaker 3: ability of courts to review presidential declarations like this, designations
4:48
Speaker 3: like this. Exactly how the Court's going to come down
4:51
Speaker 3: on that, and what it says to the lower court
4:54
Speaker 3: if it sends this case back to the lower court,
4:58
Speaker 3: what kind of guidance it gives the lower courts?
5:01
Speaker 1: That I think is sort of where we are right now.
5:04
Speaker 2: So, the Trump Justice Department in May declared that presidential
5:09
Speaker 2: authority to create or abolish monuments is one of the
5:13
Speaker 2: White House's most sweeping unilateral powers, and that a US
5:18
Speaker 2: president has the power to create and undo national monuments
5:22
Speaker 2: under the Antiquities Act. So that is a reversal of
5:26
Speaker 2: a nineteen thirty eight Justice Department opinion.
5:29
Speaker 1: Yes, that's true.
5:31
Speaker 3: There was an Attorney General opinion from nineteen thirty eight
5:35
Speaker 3: which basically said that, you know, presidents have the authority
5:40
Speaker 3: to designate national monuments and very very broad authority to
5:46
Speaker 3: do so without any real significant limitations on the president's authority.
5:52
Speaker 3: And also this opinion said once a monument has been designated,
5:57
Speaker 3: it's up to Congress to decide whether to rescind the
6:01
Speaker 3: designation or reduce it or do something with it. But
6:06
Speaker 3: you know, the Act doesn't explicitly say that subsequent presidents
6:12
Speaker 3: like Trump in this case, have the authority to either
6:16
Speaker 3: rescind altogether a designation, which this latest Justice Department opinion
6:23
Speaker 3: is saying he does have that authority, or substantially reduce it.
6:27
Speaker 3: I mean, over the years, presidents have and Congress has
6:33
Speaker 3: reduced to some extent designations, but only in a very
6:38
Speaker 3: minor way, you know, a few thousand acres, not millions
6:41
Speaker 3: of acres. Right, So we are in a grade zone.
6:45
Speaker 3: Sounds familiar, right, where Yeah, always the statute is far
6:51
Speaker 3: from crystal clear on both whether subsequent presidents can completely
6:57
Speaker 3: rescind a designation or cut it back substantially the way
7:01
Speaker 3: Trump did in these two monument cases we're talking about.
7:05
Speaker 3: In his first term, he reduced the Grand Staircase monument
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Speaker 3: by eighty five percent, and he reduced the Bear's Ears.
7:13
Speaker 1: By forty five percent. So you know, we're in.
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Speaker 3: This area where the courts really are going to struggle
7:20
Speaker 3: with coming up with a rule that says what exactly
7:24
Speaker 3: can subsequent presidents do about prior designations, and how much
7:29
Speaker 3: of that authority is really left to Congress. I mean,
7:33
Speaker 3: these are public lands, after all, they're subject to Congress's
7:38
Speaker 3: property authority under the property clause of the Constitution. So
7:43
Speaker 3: there's a separation of powers argument in all of this,
7:46
Speaker 3: which is, you know, once a designation has been made,
7:49
Speaker 3: maybe the best argument is it's really up to Congress
7:53
Speaker 3: to decide what to do about that, if it wants
7:56
Speaker 3: to do something about that. And instead of having this
7:59
Speaker 3: flip flop between presidents, it's in, it's out, some of
8:03
Speaker 3: it's in, some of it's out.
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Speaker 1: I mean, that's really chaotic.
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Speaker 3: Right, So, if this case gets to the Supreme Court
8:11
Speaker 3: and in, it might maybe not right now because the
8:14
Speaker 3: current posture of the cases is on this question of
8:17
Speaker 3: do the courts.
8:17
Speaker 1: Have any authority at all to review it?
8:20
Speaker 3: But assuming the case does get to the Supreme Court,
8:23
Speaker 3: I would predict that separation of powers will be a
8:26
Speaker 3: central focus for the court.
8:28
Speaker 2: In fact, Chief Justice John Roberts in twenty twenty one,
8:33
Speaker 2: in a case called Massachusetts Lobsterman's Association versus Ramundo, sort
8:39
Speaker 2: of issued an invite to challenge the scope of presidential
8:43
Speaker 2: power under the Antiquities Act. He said, its use has
8:45
Speaker 2: been transformed into a power without any discernible limit to
8:50
Speaker 2: set aside vast and amorphous expanses of terrain.
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Speaker 3: Yeah, that's got a lot of people worry. It was
8:58
Speaker 3: what we call dictum, right, And in fact, in that
9:01
Speaker 3: Lobsterman case, the court denied review and said we're not
9:05
Speaker 3: going to review President Obama's designation of two monuments off
9:09
Speaker 3: the Eastern United States Seamounts and Canyons Monument. So it
9:16
Speaker 3: was dictum. It was not part of the holding. It
9:18
Speaker 3: wasn't the ruling at all. But every time a justice
9:22
Speaker 3: says something raises a question, that gets a lot of
9:26
Speaker 3: people thinking, Okay, well, perhaps Chief Justice Roberts is concerned
9:31
Speaker 3: about this expansive authority that the president is issuing. But
9:36
Speaker 3: on the other hand, what we're seeing from this particular
9:40
Speaker 3: Supreme Court, if anything, is allowing the president to assert
9:45
Speaker 3: all kinds of executive authority under this unitary executive doctrine.
9:50
Speaker 1: Right.
9:51
Speaker 3: So this is going to be an interesting issue if
9:54
Speaker 3: and when it does get to the Supreme Court. You know,
9:57
Speaker 3: will Chief Justice Roberts believe that the enti equities act
10:00
Speaker 3: is is too.
10:01
Speaker 1: Broad a delegation in some respect. We don't know.
10:05
Speaker 3: It's too early to say, but he certainly has flagged
10:09
Speaker 3: the issue, and Utah is relying very heavily on that
10:14
Speaker 3: statement from Chief Justice Roberts.
10:16
Speaker 2: But in March of last year, the Supreme Court had
10:20
Speaker 2: a chance to diminish the president's power to establish new
10:25
Speaker 2: national monuments right in a pair of cases, but they
10:28
Speaker 2: didn't take it.
10:29
Speaker 1: That's right.
10:30
Speaker 3: That case is kind of unusual because it dealt with
10:34
Speaker 3: another federal statute in Oregon. And if we can recall,
10:38
Speaker 3: when the railroads were being built across the western United States,
10:42
Speaker 3: the Congress said to you know, Union Pacific and other railroads,
10:46
Speaker 3: if you build these these lines that we need, we're
10:49
Speaker 3: going to give you every other section of public land
10:52
Speaker 3: as an inducement to make the capital investment in these
10:56
Speaker 3: rail lines.
10:57
Speaker 1: Right. So there was a.
10:58
Speaker 3: Statute in that actually said some of the lands that
11:03
Speaker 3: were designated in the monument were actually authorized by Congress
11:09
Speaker 3: to be logged timbered for timber companies. And it was
11:13
Speaker 3: the timber companies who were arguing to the Supreme Court
11:16
Speaker 3: the President is exceeding his authority to designate these lands
11:20
Speaker 3: as a monument when Congress has.
11:22
Speaker 1: Already said they should be logged. Right.
11:25
Speaker 3: So the Court did not take that case. And certainly,
11:29
Speaker 3: if Justice Roberts was keen on taking a case to
11:33
Speaker 3: review the authority under the Antiquities Act, that might have
11:37
Speaker 3: been a case to do that. It wasn't a clear
11:41
Speaker 3: issue for the Antiquities Act though, because of the fact
11:44
Speaker 3: that this other statute was involved, and it might have
11:47
Speaker 3: been more a question of is there really a conflict
11:51
Speaker 3: between the Antiquities Act and this other statute or not. Ultimately,
11:55
Speaker 3: the Court declined to review it, and Roberts didn't file
12:00
Speaker 3: any kind of dissent or opinion saying we should have
12:04
Speaker 3: taken it. Both Gorsich and Kavanaugh did say that we
12:09
Speaker 3: think the Court should take this case, but probably because
12:12
Speaker 3: of this potential conflict between these statutes, not so much
12:17
Speaker 3: the pure question of does the Antiquities Act give the
12:21
Speaker 3: President broad authority to set aside literally millions of acres
12:26
Speaker 3: of public land. That remains to be seen whether that
12:29
Speaker 3: issue gets to the Supreme Court.
12:32
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
12:34
Speaker 2: this conversation with Professor Pat Parento of the Vermont Law
12:38
Speaker 2: and Graduate School so what's taking the Tenth Circuit so long?
12:43
Speaker 2: I'm June Grosso and you're listening to Bloomberg. The Antiquities
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Speaker 2: Act is a law passed in nineteen oh six that
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Speaker 2: authorizes the president to proclaim national monuments on federal lands
12:57
Speaker 2: to protect significant natural history or scientific features. Presidents have
13:03
Speaker 2: used the Act more than one hundred times to create
13:05
Speaker 2: national monuments, from the Grand Canyon to the Statue of Liberty.
13:10
Speaker 2: A case before the Tenth Circuit Court of Appeals is
13:13
Speaker 2: challenging the president's executive authority to protect or abolish national
13:19
Speaker 2: monuments under the Antiquities Act. The State of Utah is
13:22
Speaker 2: challenging the legal basis for Utah's Grand Staircase, Escalante and
13:28
Speaker 2: Bare Ears, national monuments created by former Presidents Bill Clinton
13:32
Speaker 2: and Barack Obama under the Antiquities Act. President Trump shrank
13:36
Speaker 2: both monuments in twenty seventeen, and then former President Joe
13:41
Speaker 2: Biden expanded them to roughly their original boundaries. I've been
13:45
Speaker 2: talking to environmental law professor Pat Parento of the Vermont
13:49
Speaker 2: Law and Graduate School, So Pat. The Tenth Circuit heard
13:53
Speaker 2: oral arguments in this case last year. In September twenty
13:57
Speaker 2: twenty four, They apparently have the lowest number of pending
14:00
Speaker 2: cases of all the US appeals courts and claims on
14:04
Speaker 2: the website, it has one of the fastest turnaround times
14:07
Speaker 2: of any federal circuit court. But in this case, it's
14:10
Speaker 2: been thirteen months and still no opinion. Is that unheard of?
14:15
Speaker 3: Not unheard of, but very unusual for the Tenth Circuit. Yeah,
14:19
Speaker 3: it's one of the more efficient courts. It's Justice Gorsuch's
14:23
Speaker 3: former court where he was many years on the Tenth Circuit.
14:26
Speaker 3: So yeah, there's a lot of speculation about why is
14:30
Speaker 3: the court taking so long? As they say this was
14:33
Speaker 3: a procedural question, I mean, an important one, but still
14:37
Speaker 3: a technical question of you know, do the court have
14:39
Speaker 3: any authority at all to review designations of national monuments?
14:44
Speaker 3: And so some speculation is, well, there's probably a descent.
14:48
Speaker 3: It's a three judge panel, I forget exactly the makeup
14:51
Speaker 3: of who the appointees are.
14:53
Speaker 1: I think there may be a Trump appointee on the panel.
14:56
Speaker 3: And so one theory is, well, there's probably a descent,
14:59
Speaker 3: that always a longer period of time. Another is that
15:04
Speaker 3: the court is wrestling with should it just reman the
15:07
Speaker 3: case to the district Court with some instructions that yeah,
15:11
Speaker 3: you have a role to play, but it's limited in
15:14
Speaker 3: some way. Or is the court thinking, you know what,
15:18
Speaker 3: maybe we should tackle the real question, the substantive question
15:21
Speaker 3: of what authority.
15:22
Speaker 1: The president has.
15:24
Speaker 3: It was clear from the oral argument that the court
15:28
Speaker 3: that panel understands everybody in Utah in particular, wants this
15:32
Speaker 3: case to go to the Supreme Court. They're counting, you know, again,
15:36
Speaker 3: on what Justice Roberts has said as maybe an indication
15:40
Speaker 3: they could win in the Supreme Court on the limitation
15:43
Speaker 3: on the president's authority. So, I don't know, it's too
15:46
Speaker 3: hard to predict what's taking them this long.
15:50
Speaker 1: I would guess that we're probably.
15:51
Speaker 3: Going to see a decision certainly this year, in the
15:55
Speaker 3: next month or so. Oh yeah, you'd like to think
15:58
Speaker 3: so maybe a Christmas president of it might be a
16:01
Speaker 3: lump of coal and somebody's stocking.
16:04
Speaker 2: The Justice Department outlined a rationale for abolishing national monuments.
16:09
Speaker 2: I mean, is there any doubt that Trump is going
16:11
Speaker 2: to try to maybe not abolish, but certainly cut back
16:14
Speaker 2: on monuments, And I mean he wants to use the
16:17
Speaker 2: land for what oil and gas drilling or something.
16:21
Speaker 3: Yeah, there's not a whole lot of oil and gas
16:23
Speaker 3: in bears Ears, there is uranium, and he has made
16:27
Speaker 3: us you know, resuscitating the nuclear industry as one of
16:31
Speaker 3: his goals, and other minerals. You know, if once you
16:34
Speaker 3: get in there and start poking around, you could probably
16:36
Speaker 3: find other copper or other minerals.
16:39
Speaker 1: Right that have some value.
16:40
Speaker 3: So, yeah, Trump is not going to live with you know,
16:45
Speaker 3: huge set asides of millions of acres of land that
16:49
Speaker 3: has mineral value in it, that's for sure. So at
16:53
Speaker 3: a minimum, he's going to look at these designations and
16:56
Speaker 3: ask his friends in the industry, and of course Republican
17:00
Speaker 3: governor of Utah, what do you want in these areas
17:04
Speaker 3: and we will make sure that we don't set those aside.
17:07
Speaker 3: That's probably what we could expect from this administration. Not
17:11
Speaker 3: an outright repeal, although you know maybe I wouldn't think so.
17:16
Speaker 1: I would think it would be more of carve.
17:18
Speaker 3: Them down, way way down, and make sure that you've
17:22
Speaker 3: excluded any mineral areas of the designations from being set aside.
17:28
Speaker 2: I mean, what do you think about the Antiquities Act?
17:30
Speaker 2: Does it give too much power to presidents?
17:33
Speaker 3: Gives a lot of power for sure, you know, when
17:35
Speaker 3: you think about it, some of the iconic national parks
17:39
Speaker 3: in the United States. Grand Canyon was one of the
17:43
Speaker 3: first areas to be designated a monument. There were plans
17:46
Speaker 3: to build mines in the Grand Canyon at one point,
17:49
Speaker 3: even a dam in the Grand Canyon. Zion, Teton Acadia.
17:56
Speaker 3: You know, these are some of the most popular national
17:59
Speaker 3: park in the country. They all began as national monuments.
18:03
Speaker 3: So and again it's presidents of both political parties. Eisenhower
18:08
Speaker 3: did it, George W.
18:09
Speaker 1: Bush did it. Even Herbert Hoover did it.
18:12
Speaker 3: Right, So a lot of our public lands heritage is
18:17
Speaker 3: attributable to the Antiquities Act. It's been incredibly important for
18:22
Speaker 3: preserving our natural heritage.
18:24
Speaker 1: So there's that.
18:25
Speaker 3: But then there's also the question of it's a very
18:28
Speaker 3: short statute. I mean, it's like three sentences and there's
18:32
Speaker 3: not a lot of you know, guidance I guess on
18:35
Speaker 3: either what should be designated. You know, it refers to
18:39
Speaker 3: things like objects of historic or scientific interest.
18:42
Speaker 1: Well, that's pretty darn broad.
18:45
Speaker 3: It also says that the designations quote shall be confined
18:49
Speaker 3: to the smallest area compatible with proper care and management
18:54
Speaker 3: of the objects to be protected. That's some of the
18:57
Speaker 3: language that Utaw and others that oppose broad authority under
19:02
Speaker 3: the Antiquities Actor citing to the courts and saying, look,
19:05
Speaker 3: look here, you know, you don't get a million acre
19:09
Speaker 3: designation when you're trying to protect the smallest area of
19:14
Speaker 3: specific objects and so forth. So lots of room I
19:19
Speaker 3: think to argue about should this statute be updated and
19:24
Speaker 3: refined in certain ways? Again, Congress is perfectly capable of
19:30
Speaker 3: doing whatever they want with public lands, and there would
19:32
Speaker 3: be no ability of the courts to do anything else.
19:36
Speaker 3: You know, Congress's power over public land is plenary. It's
19:41
Speaker 3: unreviewable by the courts. The Supreme Court has said that
19:44
Speaker 3: in Missouri versus Holland. So in lots of ways you
19:47
Speaker 3: can argue what's good public policy with these lands? Should
19:52
Speaker 3: there be a little bit more guidance from Congress, which
19:55
Speaker 3: is the body that's responsible for stewardship of these lands. Ultimately, yeah,
20:00
Speaker 3: there's good arguments, I'm sure both ways. But one thing
20:04
Speaker 3: that's really clear is without the Antiquities Act, a lot
20:08
Speaker 3: of really precious areas of the United States would have
20:12
Speaker 3: been lost before now.
20:14
Speaker 2: And pat when I was researching this case, I found
20:17
Speaker 2: something interesting a little off topic, but in the case
20:21
Speaker 2: Utah versus United States, the State of Utah asserts that
20:25
Speaker 2: the federal government, which owns nearly seventy percent of Utah,
20:29
Speaker 2: lacks constitutional authority to retain much of that land. But
20:33
Speaker 2: the Supreme Court denied a motion for leave to file
20:37
Speaker 2: a bill of complaint under the court's original jurisdiction. Seventy
20:41
Speaker 2: percent of Utah by the federal government.
20:44
Speaker 3: Yeah right, I mean, it's like, give us your money
20:48
Speaker 3: and stay out of the way. Give us these lands
20:51
Speaker 3: to use as we like, and don't put any restrictions
20:54
Speaker 3: on them. You know, it's a challenge for sure when
20:57
Speaker 3: seventy percent of your state is governed by the federal government.
21:02
Speaker 3: But if you look at what's happening on the ground
21:05
Speaker 3: in Utah, there's an enormous amount of public lands being
21:08
Speaker 3: developed for oil and gas, for mineral development, for water
21:13
Speaker 3: rights and water use. So, you know, is the fact
21:18
Speaker 3: that there's a lot of federal land in Utah crippling
21:21
Speaker 3: the Utah economy. You can't make that case. Really, these
21:25
Speaker 3: national parks that began as national monuments again, just think
21:29
Speaker 3: about it, Zion National Park, Arches, canyon lands, you know,
21:35
Speaker 3: these national parks are huge economic.
21:39
Speaker 1: Assets for the state of Utah.
21:42
Speaker 3: Four of the five top national parks in Utah began
21:46
Speaker 3: as national monuments. So it's really I think I'd have
21:50
Speaker 3: to say hypocritical for Utah to say, you know, these
21:53
Speaker 3: national monuments and national parks are a big drain on
21:57
Speaker 3: our economy.
21:58
Speaker 1: It just isn't true.
22:00
Speaker 2: We'll keep watching to see when the decision finally comes down.
22:04
Speaker 2: Thanks so much, Pat. That's professor Pat Parento of the
22:08
Speaker 2: Vermont Law and Graduate School. Up to forty two million
22:12
Speaker 2: Americans didn't receive their SNAP benefits on the first of
22:16
Speaker 2: the month, but the Trump administration told a federal judge
22:20
Speaker 2: today that it will comply with a court order to
22:23
Speaker 2: fund US food aid benefits for November during the government shutdown,
22:28
Speaker 2: but only at fifty percent of the amount that eligible
22:31
Speaker 2: households normally receive. This follows back to back rulings from
22:35
Speaker 2: judges in Boston and Rhode Island who found that the
22:39
Speaker 2: Trump administration likely violated US law in suspending SNAP during
22:44
Speaker 2: the government shutdown. Joining me is constitutional law professor Harold
22:49
Speaker 2: Krant of the Chicago Kent College of Law, how to judges.
22:54
Speaker 2: Judge John McConnell in Rhode Island and Judge Indira Talwani
22:58
Speaker 2: in Boston, almost at the same time that Trump administration
23:03
Speaker 2: officials likely violated the law when suspending SNAP during the
23:08
Speaker 2: government shutdown. Tell us a little about those opinions.
23:13
Speaker 4: Rulings are relatively similar. They require, first of all, that
23:17
Speaker 4: conditional funds supplemental funds be used to pay as much
23:22
Speaker 4: of the benefits for the next month as possible. And indeed,
23:27
Speaker 4: Congress set up a contingency fund and funded it two
23:30
Speaker 4: years in a row, three billion dollars each year. So
23:33
Speaker 4: there's six billion dollars in contingency funds that are ready
23:37
Speaker 4: to be spent. And the Trump administration have said, we
23:40
Speaker 4: have no legal authority to spend contingency funds because Congress
23:44
Speaker 4: hasn't funded the program for the next fiscal year, which
23:48
Speaker 4: is a non secutor. And the court said, what are
23:51
Speaker 4: you talking about. That's why Congress created a contingency fund.
23:55
Speaker 4: And so I think that the courts both are on
23:57
Speaker 4: very strong ground and saying that contingency funds at the
24:01
Speaker 4: minimum have to be expended against six billion dollars, not
24:05
Speaker 4: everything for the first month, but three quarters roughly. And
24:08
Speaker 4: so the Trump administration will use the six billion dollars
24:11
Speaker 4: to at least pay part of next month's SNAP benefits,
24:15
Speaker 4: which are due.
24:17
Speaker 2: Judge McConnell also said that government had to determine if
24:20
Speaker 2: it can supplement that limited contingency pool of money with
24:26
Speaker 2: another fund that includes customs receipts.
24:29
Speaker 4: Congress has created a kind of slush fund, if you will,
24:33
Speaker 4: from tri fees that can be used in emergencies, and
24:37
Speaker 4: the Department of Agriculture has used that sort of slush
24:40
Speaker 4: fund in the past to pay for other food programs,
24:43
Speaker 4: such as the Women's Infant and Children Program or the
24:46
Speaker 4: Whig program.
24:47
Speaker 2: So the Trump administration has agreed to fund the benefits
24:51
Speaker 2: in November up to the full amount of the SNAP
24:54
Speaker 2: contingency funds. So that's fifty percent of the amount that
24:58
Speaker 2: eligible households normally receive. Does that comply with the court's orders?
25:03
Speaker 4: They are complying with the judges order. That the Trump
25:06
Speaker 4: administration is complying with the judge's order. The judgment discretionary
25:10
Speaker 4: as to whether the federal government has to dip into
25:13
Speaker 4: other discretionary pots of money to cover the shortfall in
25:16
Speaker 4: the program. So the real only other issue that I
25:19
Speaker 4: can think of is that claimants could say that they
25:22
Speaker 4: have an entitlement under the due process clause to receive
25:26
Speaker 4: the money because the government has committed themselves to paying
25:30
Speaker 4: SNAP benefits.
25:31
Speaker 1: I don't think that.
25:33
Speaker 4: Entitlement argument would work because it's probably contingent upon there
25:38
Speaker 4: being sufficient money, So I think that that would end
25:40
Speaker 4: up being somewhat circular. So for now, the Trump administration
25:44
Speaker 4: has declined to open up discretiony moneies to fill the
25:49
Speaker 4: shortfall in the staff program. So people are going to
25:52
Speaker 4: have to scramble and hope that money can come from
25:55
Speaker 4: food banks from states and other places.
25:57
Speaker 2: Yes, so, according to what the administrations said, they thought
26:01
Speaker 2: it was an unacceptable solution to use the child Nutrition Funds,
26:06
Speaker 2: which provide free school meals to about twenty nine million
26:09
Speaker 2: low income students, to shift that money to SNAP. Certainly
26:15
Speaker 2: a hard decision to make.
26:16
Speaker 4: Yeah, I remember there's head Start, There's women, infants, and
26:19
Speaker 4: children nutrition programs, lots of programs that say shortfalls now
26:23
Speaker 4: because of the funding did and so the top administration
26:26
Speaker 4: does have decide how to prioritize. But at least they'll
26:30
Speaker 4: be helping this first trash, if you will, by helping
26:34
Speaker 4: to pay what was in the contingency fund between five
26:38
Speaker 4: and six billion dollars.
26:40
Speaker 2: So were the court cases basically over, then.
26:42
Speaker 4: Probably, I mean, the court may maintain jurisdiction of it
26:45
Speaker 4: to make sure that Prisent Trump's follows through with respect
26:49
Speaker 4: to the commitment to use a contingency fund. Also, plainists
26:53
Speaker 4: may add different claims in an effort to try to
26:56
Speaker 4: force the government to divert more money into the SNAP program,
27:00
Speaker 4: But that remains to be seen, and.
27:02
Speaker 2: There's a question of when people are going to get
27:04
Speaker 2: these benefits. The Department of Agriculture warned that it could
27:07
Speaker 2: take some states anywhere from a few weeks up to
27:10
Speaker 2: several months to recalculate household benefit amounts and implement the
27:16
Speaker 2: partial payment, because states determine who's eligible for the program
27:22
Speaker 2: and then facilitate making the federal funds available each month
27:25
Speaker 2: on benefits cards that function like bank debit cards.
27:31
Speaker 4: I should know that the government faces a huge issue
27:34
Speaker 4: of trying to decide how to allocate SNAP funding of
27:39
Speaker 4: it's not one hundred percent funded because all the mechanisms
27:43
Speaker 4: in terms of electronic transfers and so forth, are set
27:46
Speaker 4: up and structured so that with a certain amount of
27:49
Speaker 4: money in mind. So they would face a bureaucratic issue
27:53
Speaker 4: about how to adjust for that. Yeah, and I think
27:57
Speaker 4: now states are trying to react and dip into other
27:59
Speaker 4: kind of fund to try to supplement whatever amounts of
28:03
Speaker 4: money is missing or at least two covered in the
28:06
Speaker 4: interim until these payments can.
28:08
Speaker 1: Be strained out.
28:09
Speaker 4: I mean, this whole thing is obviously part of the shutdown,
28:13
Speaker 4: but the congressional enactment of the Contingency Fund should have
28:17
Speaker 4: created this a much more smooth runway in order to
28:20
Speaker 4: ensure that people were still funded pending the results of
28:24
Speaker 4: the negotiation that we reopening the government.
28:27
Speaker 2: Is SNAP funding a political issue because President Trump, responding
28:32
Speaker 2: to questions during one of his flights, said that it's
28:36
Speaker 2: mostly Democrats who rely on SNAP.
28:38
Speaker 4: There are forty million people in this country who rely
28:42
Speaker 4: upon SNAP funding.
28:44
Speaker 1: It's to find.
28:45
Speaker 4: I believe it's one hundred and thirty five percent of
28:47
Speaker 4: the poverty line. And so this is the elderly veterans,
28:52
Speaker 4: as well as people that have low paying jobs, as
28:54
Speaker 4: well as people are unemployed, are all entitled to SNAP benefits.
28:57
Speaker 4: So this cuts across a lowish segment of the population.
29:03
Speaker 1: And I think.
29:03
Speaker 4: Republican governors are quite worried about people in their own states.
29:07
Speaker 2: Talking about the government shutdown. Federal courts are scaling back
29:12
Speaker 2: operations after exhausting reserve funds during the government's shutdown, but
29:18
Speaker 2: dozens of fights over Trump's controversial policies are moving forward
29:24
Speaker 2: after judges have denied the Justice Department's request to extend
29:28
Speaker 2: deadlines in several cases. We can obviously see that in
29:32
Speaker 2: the cases that we've been talking about involving snap benefits,
29:36
Speaker 2: and it's not just the cases that involve the government shutdown.
29:40
Speaker 2: For example, a Washington judge handling a suit challenging Trump's
29:44
Speaker 2: plan to impose one hundred thousand dollars fee for foreign workers'
29:48
Speaker 2: visas wrote that the government couldn't use the shutdown to
29:52
Speaker 2: avoid meaningful judicial review of employer's time sensitive concerns. She
29:58
Speaker 2: not only refused to pause the deadline, but she put
30:00
Speaker 2: the case on an expedited track.
30:02
Speaker 4: Well, I mean the courts have a decision to make
30:05
Speaker 4: about whether to shut down or not, or court which
30:08
Speaker 4: cases are more important. Obviously, criminal cases are usually more
30:11
Speaker 4: important than civil. But the courts are also determining that
30:15
Speaker 4: these high stakes litigation with the Trump administration affects so
30:19
Speaker 4: many people in so many ways, as our discussion of
30:22
Speaker 4: the snap of benefits suggest that they're going to prioritize
30:27
Speaker 4: the Trump administration litigation in addition to the criminal cases.
30:31
Speaker 1: The Department of Justice.
30:32
Speaker 4: Attorneys aren't getting paid, court personnel are not getting paid,
30:37
Speaker 4: but the court's business continues.
30:41
Speaker 2: The judges get paid, don't they.
30:43
Speaker 1: Judges have to.
30:44
Speaker 4: Get paid because of the constitutional protection for compensation.
30:48
Speaker 2: Advantage the federal judiciary. There, thanks so much. How that's
30:53
Speaker 2: Professor Harold Krant of the Chicago Kent College of Law.
30:57
Speaker 2: And that's it for this edition of the Bloomberg Law Show.
31:00
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