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Trump Rescinds Freeze & 'Two Sexes' Order · Bloomberg Law

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  Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio.
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  Speaker 1: President Trump plunged the country into chaos, a cruel, nasty,
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  Speaker 1: and illegal chaos.
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  Speaker 2: Senate Minority Leader Chuck Schumer said that after President Trump's
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  Speaker 2: Monday order freezing all federal grants, loans, and financial assistants,
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  Speaker 2: his office was flooded with calls from panic people about
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  Speaker 2: programs that support everything from nonprofits to school boards to
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  Speaker 2: police departments. The blanket freeze caused mass confusion and chaos
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  Speaker 2: across the country, with the potential to disrupt a massive
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  Speaker 2: segment of federal spending that's relied on by local government, schools,
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  Speaker 2: and police departments. New York Attorney General Letitia James was
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  Speaker 2: one of twenty two Democratic state ags who sued the
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  Speaker 2: Trump administration on Tuesday.
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  Speaker 3: Not only does this administration's new policy for people at risk,
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  Speaker 3: but it is plainly unconstitutional. The president does not get
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  Speaker 3: to decide which laws to enforce and for whom.
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  Speaker 2: That same day, a federal judge in Washington temporarily halted
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  Speaker 2: the order, and then, in the most significant setback and
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  Speaker 2: the biggest about face to date of the president's ten
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  Speaker 2: day old term, the White House rescinded the order today.
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  Speaker 2: Joining me is Alex Hontos, a partner at Dorsey and
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  Speaker 2: Whitney and a former Justice Department attorney. Alex how broad
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  Speaker 2: was the scope of this order?
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  Speaker 4: So the omb order issued on Monday by the administration
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  Speaker 4: was exceptionally brought, covering all forms of federal assistance, with
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  Speaker 4: the exception of a few carve outs in the order,
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  Speaker 4: so Medicare was carved out, for example, but notably Medicaid
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  Speaker 4: was not mentioned. So it covered on its face trillions
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  Speaker 4: of dollars of federal spending. That's about as broad as
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  Speaker 4: you can get.
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  Speaker 2: In his first administration, Trump issued a Muslim travel ban
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  Speaker 2: and it took three tries, three different versions before it
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  Speaker 2: got approval from the Supreme Court. Is there a way
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  Speaker 2: for him to rewrite this and try again.
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  Speaker 4: Well, I certainly expect that this will not be the
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  Speaker 4: end of the administration's efforts to root out programs that
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  Speaker 4: it believes, you know, should not be in federal spending policies, procedures,
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  Speaker 4: that kind of thing. So I think they're going to
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  Speaker 4: try again. But what is striking about this is instead
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  Speaker 4: of targeting specific programs, they did a blanket pause and
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  Speaker 4: you know, normally you would do a census of specific programs,
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  Speaker 4: first identify programs that were perhaps against your policy objectives,
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  Speaker 4: and then work those programs. And that's the angle that
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  Speaker 4: they came at this from. They might change that, though,
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  Speaker 4: and we might see that next, and in fact that's
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  Speaker 4: probably what is coming next.
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  Speaker 2: So then they would actually have to do some work
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  Speaker 2: to figure that out.
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  Speaker 4: Yes, that's right. So there is going to need to
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  Speaker 4: be a census, if you will, within the federal government
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  Speaker 4: for kind of a cataloging of the programs. And boy,
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  Speaker 4: are there a lot of them out there. Thousands of
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  Speaker 4: programs and offices and grants and contracts and things of
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  Speaker 4: that nature that will need to be assessed, analyzed and
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  Speaker 4: then sort of reviewed for whether they're compliant or not
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  Speaker 4: compliant with the administration's objectives. So it's a herculean effort.
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  Speaker 2: So it will take a while.
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  Speaker 4: It'll take a while.
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  Speaker 1: That's right.
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  Speaker 2: Let's talk about the order itself and the problem with it.
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  Speaker 2: The legislative branch is supposed to be the one that
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  Speaker 2: decides where the money goes. Is that the basic problem.
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  Speaker 4: That's one of the problems.
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  Speaker 1: That's right.
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  Speaker 4: So under the constitution, the power of the purse. That
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  Speaker 4: is the legislative branch's purview, not the executive branch. The
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  Speaker 4: executive branch is supposed to execute the laws. Congress gets
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  Speaker 4: to dictate where funds are appropriated and stand up certain programs.
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  Speaker 4: So that is one of the fundamental challenges that the
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  Speaker 4: administration will have if it's trying to defend this kind
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  Speaker 4: of behavior in court. Courts are going to be asking
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  Speaker 4: questions about separation of powers and authority. There's also you know,
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  Speaker 4: lawyers in MySpace this week had a dust off the
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  Speaker 4: Empowerment Control Act of nineteen seventy four and kind of
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  Speaker 4: go back to the Nixon era, and you know, look
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  Speaker 4: through the lens of whether the president has an authority
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  Speaker 4: issue when it comes to spending money that Congress has
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  Speaker 4: directed be spent, and certainly the legislative branch. Congress believes
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  Speaker 4: that when it says to spend money, the president has
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  Speaker 4: to do that. And so there are a whole host constitutional,
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  Speaker 4: statutory of potential hurdles that the administration is really going
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  Speaker 4: to have to get around to effectuate this policy. And
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  Speaker 4: those are not even taking into account the political consequences
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  Speaker 4: of some of these actions. And you saw that occur
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  Speaker 4: shortly after the Omb memo was issued, when red state
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  Speaker 4: governors Blue state governors, we're both howling about what this
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  Speaker 4: might mean for state budgets. You know, large for profit
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  Speaker 4: clients of mine were very concerned about what this might
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  Speaker 4: mean for them. Higher education and university clients of mine
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  Speaker 4: were equally concerned. So you actually had a broad base
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  Speaker 4: of the American economy that really was concerned. So you
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  Speaker 4: have multiple challenges if you're the administration. One is a
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  Speaker 4: straight legal challenge and that is a fraud area and
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  Speaker 4: be played out in the courts principally. But the other
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  Speaker 4: is a policy and kind of political issue related to this.
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  Speaker 4: And I think they bid off more than they can
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  Speaker 4: chew here in rolling this out in the way they did,
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  Speaker 4: because they certainly galvanized opposition in an incredibly fast way.
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  Speaker 4: I'm not so sure that the honeymoon for this administration
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  Speaker 4: is over, but it might be, and this might be
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  Speaker 4: the beginning of the end, at least of the honeymoon
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  Speaker 4: for the administration.
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  Speaker 2: How much discretion does a president have not to spend
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  Speaker 2: the money that's been appropriated by Congress? I mean, is
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  Speaker 2: that a settled issue?
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  Speaker 4: Yeah, So it depends the lawyer's favorite answer, right, So,
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  Speaker 4: certain programs direct the expenditure of funds. If a statute
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  Speaker 4: directs the expenditure of funds, the president's ability to not
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  Speaker 4: spend those funds is significantly constrained. You know, there can
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  Speaker 4: be some timing issues and that kind of thing where
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  Speaker 4: the president might have some flex ability, but if the
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  Speaker 4: president is directed to spend, that's weak round for the
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  Speaker 4: president to try to defend and say I don't have
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  Speaker 4: to spend now. In other types of programs, where an
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  Speaker 4: appropriation is made, say to an agency the Defense Department,
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  Speaker 4: to further some general objective or innovation or something like that,
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  Speaker 4: where the Congress has not been crystal clear about who
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  Speaker 4: and what and why the expenditures will go out, the
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  Speaker 4: executive might claim to have more authority to have discretion
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  Speaker 4: to choose who gets those grant awards, for example, or
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  Speaker 4: contract awards, but there are still regulatory overlays that would
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  Speaker 4: apply even in that context as well. So while there
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  Speaker 4: is discretion at some level, it's cabined in many ways
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  Speaker 4: by statutes of general applicability. So on the government contract side,
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  Speaker 4: there's a Competition and Contracting Act where basically competition for
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  Speaker 4: government contract towards is the general rule. Another example is
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  Speaker 4: the Administrative Procedures Act, where if the agency is going
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  Speaker 4: to do something and it falls within the purview of
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  Speaker 4: the APA, it has to do it in a certain way.
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  Speaker 1: Right.
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  Speaker 4: So you have these general statutes that may confine presidential
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  Speaker 4: executive discretion. You have the specific statutes that may develop
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  Speaker 4: or create a particular program that would have limitations on
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  Speaker 4: presidential discretion. And you have both of those things that
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  Speaker 4: will be I think used by certainly adversaries of the
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  Speaker 4: administration's attempts, those affected by the administrations attempts to change
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  Speaker 4: grants or cancel grants. Those things, they will be leveraged,
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  Speaker 4: and there will be arguments in court about whether, in
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  Speaker 4: a given context or the issuance of an memo, perhaps
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  Speaker 4: the president overstepped.
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  Speaker 2: Other presidents have tried to get around this very issue before,
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  Speaker 2: have any of them been successful.
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  Speaker 4: I don't know that any other president has done what
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  Speaker 4: the president tried to do this week. And the idea
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  Speaker 4: of sort of stopping everything, which is a bit overblown June,
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  Speaker 4: but not that much overblown that I can't think of
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  Speaker 4: a time when another president has tried to do that.
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  Speaker 4: I do think there's some interesting parallels, and I want to,
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  Speaker 4: you know, think about a little bit during the Biden administration.
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  Speaker 4: The Biden administration somewhat famously tried to use federal contracts
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  Speaker 4: as a vehicle for policy objectives. So, you know, very
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  Speaker 4: common example is the federal contractor vaccine mandate, where the
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  Speaker 4: Biden administration was trying to require that anyone who was
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  Speaker 4: a federal contractor had to have a vaccinated workforce. Another
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  Speaker 4: example that President Biden tried was the government contractor minimum wage. Now,
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  Speaker 4: both of those efforts were attacked in the courts by
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  Speaker 4: constituencies affected contractors' states that basically said the president lacked
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  Speaker 4: the authority to take those steps. And there's a bit
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  Speaker 4: of a mixed bag, but by and large, the courts
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  Speaker 4: agreed with those challenges and said that President Biden didn't
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  Speaker 4: have the authority to use sort of contractual terms with
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  Speaker 4: governmental counterparties contractors for example, to implement those policy objectives.
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  Speaker 4: That existing law did not allow him to go that far.
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  Speaker 4: And so I think you're going to see a lot
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  Speaker 4: of that authority that was used against President Biden's initiatives,
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  Speaker 4: or at least some of his initiatives sort to turn
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  Speaker 4: back around now as a basis to challenge this and
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  Speaker 4: future efforts by the Trump administration to sort of do
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  Speaker 4: the same thing but just to effectuate different policies.
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  Speaker 2: During his campaign, he vowed to abolish the Empowerment law altogether.
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  Speaker 2: So if he was able to do that, let's just
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  Speaker 2: say he's able to do that, he's able to get
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  Speaker 2: the votes. Does that eliminate his problems here or not?
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  Speaker 4: It doesn't eliminate his problems. He's got two problems on that.
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  Speaker 4: One is the statute itself, the empowerment Statute itself, So
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  Speaker 4: he would have to get that repealed, which would require
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  Speaker 4: congressional action more substantially changed. So that's that's a big if.
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  Speaker 4: But even if that could happen June, you still have
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  Speaker 4: and you will have deployed constitutional arguments that you know, fundamentally,
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  Speaker 4: the power of the purse is a core legislative function,
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  Speaker 4: and the idea that the legislature appropriates funds and you know,
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  Speaker 4: decides how much is spent in the United States, that's
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  Speaker 4: pretty clear, I think from the text of the Constitution
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  Speaker 4: that's what that's about. And if it's possible for a
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  Speaker 4: president to accept the appropriation from Congress and just not
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  Speaker 4: spend it at all. That seems to significantly erode the
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  Speaker 4: constitutional protection afforded by the spending costs, and so I
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  Speaker 4: think there will be challenges to this kind of regardless.
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  Speaker 4: I think you're going to see challenges raising statutory and
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  Speaker 4: constitutional challenges to the president's authority if that is something
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  Speaker 4: that he presses.
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  Speaker 2: Thanks Alex. That's Alex Hontos of Dorsey and Whitney. Coming
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  Speaker 2: up next, the impact of Trump's executive order recognizing only
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  Speaker 2: two sexes. I'm June Gross when you're listening to Bloomberg.
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  Speaker 3: It will henceforth be the official policy of the United
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  Speaker 3: States government that there are only two genders, male and female.
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  Speaker 2: President Trump's order on day one directing the federal government
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  Speaker 2: to recognize only two sexes is bound to draw legal challenges,
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  Speaker 2: clashing with recent interpretations of a US Supreme Court case
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  Speaker 2: that cemented anti bias protections for LGBTQ plus workers. The
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  Speaker 2: boss Doc v. Clayton County decision was the foundation for
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  Speaker 2: agency actions like the eeoc's Harassment Guidance addressing gender identity protections,
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  Speaker 2: which advises employers against misgendering and barring employees from using
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  Speaker 2: the bathrooms fitting the gender with which they identify. Trump's
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  Speaker 2: order addressing so called gender ideology extremism is part of
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  Speaker 2: his broader push to roll back Biden era diversity, equity
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  Speaker 2: and inclusion policies. Joining me is David Lopez, a professor
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  Speaker 2: at Rutger's Law School and the former General Counsel for
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  Speaker 2: the EEOC under President Barack Obama. David, what does this
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  Speaker 2: order on only two sexes actually do? I mean, what
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  Speaker 2: does it direct the federal government to do?
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  Speaker 1: Well? I mean, first of all, the executive order is
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  Speaker 1: to status to the executive Orders, so it can't change
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  Speaker 1: existing law and it can't change you know, the boss
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  Speaker 1: DOOC decision. But it basically requires that the federal government
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  Speaker 1: act consistently with the order in terms of recognizing only
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  Speaker 1: two sexes and really erasing you know, transgender and other
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  Speaker 1: non binary identities. Right. And so that has, in turn,
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  Speaker 1: I think, cascaded through the federal government in terms of
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  Speaker 1: their actions in terms of you know, even allowing individuals
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  Speaker 1: to identify their pronouns in their message signature. And then
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  Speaker 1: I think ornatency like EOC, I think probably more damaging
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  Speaker 1: is that it really places and center as a priority,
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  Speaker 1: you know, to address issues related to the executive order,
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  Speaker 1: and of course they cook at all in the protection
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  Speaker 1: of women. But you know, basically the first statement of
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  Speaker 1: the acting share of the it was, you know, basically
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  Speaker 1: identified you know, a couple priorities sort of anti dei
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  Speaker 1: and then sort of this issue of women being compelled
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  Speaker 1: I guess to go to restrooms with transgender individuals. And
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  Speaker 1: you know, certainly those are not anywhere near the top
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  Speaker 1: of the type of discrimination that POLKSI out in the
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  Speaker 1: field offices. It's just an ideologically driven agenda, so that
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  Speaker 1: has actual, cansible material consequences.
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  Speaker 2: So in the Biden administration policies, did they protect workers
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  Speaker 2: from misgendering and allow them to use bathrooms that aligned
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  Speaker 2: with their gender identity?
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  Speaker 1: I mean, I think what's important remember is that, you know,
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  Speaker 1: Boston came out a few years ago and Boss Stock
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  Speaker 1: expressly ruled that the prohibition against sex discrimination embraced sexual
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  Speaker 1: orientation and gender identity, and that the courts have been
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  Speaker 1: sort of working that through. But I think in the interim,
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  Speaker 1: I think it's important to remember that the Eleventh Circuit,
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  Speaker 1: which is one of the most conservative circuits, you know,
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  Speaker 1: ruled that misgendering someone deliberately over time does constitute harassment
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  Speaker 1: under Title seven. And then the Tenth Circuit upheld a
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  Speaker 1: jury verdict, a very large story verdict and ruling by
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  Speaker 1: during the Western District of Oklahoma and not necessarily regarded
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  Speaker 1: as you know, the most liberal part of the country
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  Speaker 1: on behalf of a transgender professor who is then my tenure.
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  Speaker 1: And so what that illustrates to me is that when
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  Speaker 1: people look at the law and they look at the
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  Speaker 1: fact and the injustices that people are suffering based on
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  Speaker 1: gender identity, both the law and factor on the site.
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  Speaker 1: So what the Biden administration did is, you know, when
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  Speaker 1: it issues guidances, I mean they don't invent stuff, right,
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  Speaker 1: They basically what the policymakers do is they look at, hey,
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  Speaker 1: what if the courts decided, what are the issues out there?
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  Speaker 1: What's the logical reading of the US Supreme Court's decision
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  Speaker 1: and stock And that's what they include in the guidances. Right. So, again,
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  Speaker 1: an administrative agency like the e SC when it issues
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  Speaker 1: a guidance or issue to technical assistance, they can't make
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  Speaker 1: the law. I mean, they don't make the law. They
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  Speaker 1: give basically their best, you know, the agency's best interpretation
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  Speaker 1: of the law based on what the courts are doing, right,
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  Speaker 1: And they do that so that employers understand their responsibilities
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  Speaker 1: and employees understand the rights and employee wants to contest it.
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  Speaker 1: They do all the time, you know. Unfortunately, the guidances
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  Speaker 1: aren't always deferred to by the courts, and sometimes the
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  Speaker 1: courts you know, go against them completely right, But what
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  Speaker 1: the EESC is trying to do is it's trying to
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  Speaker 1: provide a mechanism for the good faith employers who don't
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  Speaker 1: want to discriminate.
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  Speaker 2: The Biden administration. EEOC policies. Do they test the boundaries
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  Speaker 2: of the law or were they clearly within what the
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  Speaker 2: courts have said?
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  Speaker 1: Well, they're completely consistent with what the courts have sat
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  Speaker 1: up right, And I think what's happening now is that
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  Speaker 1: this whole anti transgender movement they're looking for, you know,
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  Speaker 1: kind of carveouts to argue that what the Supreme Court
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  Speaker 1: said and Boss Stock they really did not mean. I mean,
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  Speaker 1: Boss Stock is a decision that related directly to gender identity.
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  Speaker 1: The gender identity case was actually an EEOC case, the
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  Speaker 1: Harris Funier Holmes case, and there's really no language in
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  Speaker 1: there that kind of supports a carve out, and so
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  Speaker 1: what's happening instead is it's sort of like this, you know,
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  Speaker 1: political movement that is funded by millions and millions of dollars,
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  Speaker 1: and you saw it first in the campaign, and you
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  Speaker 1: continue to see it that you know, really kind of
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  Speaker 1: attacks at its core. I think what the Supreme Court did,
• 18:45
  Speaker 1: and it's really really important to remember, really important to
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  Speaker 1: remember that, you know, the EOC participated as a meekus
• 18:54
  Speaker 1: and several of the cases that addressed issues of sexual
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  Speaker 1: orientation and gender identity. As I mentioned, a gender identity
• 19:01
  Speaker 1: case that went to the Supreme Court was the Harris
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  Speaker 1: Funeral Homes case. Right, So that was one of the
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  Speaker 1: three that were part of the sort of the Boss
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  Speaker 1: Doc trilogy. And this happened at the beginning of the
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  Speaker 1: first Trump administration. The first Trump administration would not defend
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  Speaker 1: the e SC position and actually switch sides at the
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  Speaker 1: Supreme Court and actually ended up on the losing side
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  Speaker 1: of the case. And I would also say, you know,
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  Speaker 1: frankly on the losing side of history and morality. Right.
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  Speaker 1: So this is part of a consistent track record, and
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  Speaker 1: you know, right now what they're trying to do is
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  Speaker 1: by executive FIAT try to you know, almost like gaslight
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  Speaker 1: people and are thinking that the law is when it's not.
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  Speaker 1: But you see these decisions. You see the Supreme Court,
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  Speaker 1: you see the Eleventh Circuit, you see the tenth Circuit
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  Speaker 1: that goes really in the opposite direction.
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  Speaker 2: The EC let's say, issues guidance under the Trump administration,
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  Speaker 2: will the guidance itself be challenged in court?
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  Speaker 1: Well, I mean, I think you said, you know the guidances,
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  Speaker 1: and you know, guidance can mean different things. Guidance could
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  Speaker 1: be something, you know, actually a policy guidance that's issued
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  Speaker 1: by the Commission after a vote, or it could be
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  Speaker 1: you know, sort of a much more modest technical assistant
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  Speaker 1: that is issued by its Office of Legal Counsel. And
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  Speaker 1: so I think certainly the Biden administration you saw, you know,
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  Speaker 1: really numerous challenges to both the harassment guidance but also
• 20:28
  Speaker 1: to the regulations under the Pregnancy Workers Fairness Act. So
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  Speaker 1: it's not uncommon the challenge of guidance in the courts.
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  Speaker 1: I mean, I think a lot of people have to
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  Speaker 1: ask about what the ultimate purpose is and the ultimate
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  Speaker 1: endgame in terms of challenging the guidances, because what's going
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  Speaker 1: to happen is that the courts are going to just
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  Speaker 1: you know, look at the statute with the case on
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  Speaker 1: make their rollings based on that.
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  Speaker 2: At the end of the day, the Department of Justice
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  Speaker 2: is already backing off its defense of the EEOC in
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  Speaker 2: a lawsuit by seventeen republic and led States over its
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  Speaker 2: twenty twenty four workplace harassment guidance. So that's the first
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  Speaker 2: example I guess of what the Trump administration intends to do.
• 21:11
  Speaker 1: Yeah, I mean, I think that's also consistent with the
• 21:13
  Speaker 1: executive order. So you know, on one hand, an executive
• 21:16
  Speaker 1: order cannot make law, but an executive order can basically
• 21:21
  Speaker 1: direct the conduct of I would say cabinet level agencies
• 21:24
  Speaker 1: like the EOC is kind of falling in line on
• 21:27
  Speaker 1: this or not the agency, but the acting chair of
• 21:29
  Speaker 1: the EOC is falling in line and this also, And
• 21:31
  Speaker 1: I think that's what you can expect, right. I think
• 21:34
  Speaker 1: that it's basically almost like throwing in the towel on
• 21:38
  Speaker 1: this guidance. But the interesting thing is that given what
• 21:41
  Speaker 1: I regard as unlawful terminations of Commissioners Charlotte Burrows and
• 21:46
  Speaker 1: Jocelyn Samuels last night, BOC has left out quorum and
• 21:50
  Speaker 1: that guidance is still good guidance, right, and so we'll
• 21:54
  Speaker 1: see how this plays out, right, But I think what's
• 21:56
  Speaker 1: really important to remember again is that the Supreme Court
• 22:00
  Speaker 1: has ruled. So you know, a lot of this sort
• 22:02
  Speaker 1: of satellite litigation around the guidance center around the EEC
• 22:06
  Speaker 1: trying to give its best reading of the Supreme Court's
• 22:09
  Speaker 1: decision and other court decisions across the country. You know,
• 22:12
  Speaker 1: at the end of the day, if the EEC has
• 22:16
  Speaker 1: turned into a zombie agency, or if the you know,
• 22:18
  Speaker 1: Department of Justice Civil Rights Division has said that they're
• 22:22
  Speaker 1: pausing all litigation and investigations, you know, you have a
• 22:25
  Speaker 1: private right of action, You have the private bar out there.
• 22:28
  Speaker 1: You know, people are still bringing cases under this, and
• 22:31
  Speaker 1: I have faith in our federal courts. You know, I
• 22:36
  Speaker 1: tell my students, it's like, you're not going to love
• 22:38
  Speaker 1: all of these decisions, and you're gonna hate some of them,
• 22:40
  Speaker 1: and some of them are going to just stly piss
• 22:42
  Speaker 1: you off, right, And you know there's some judges that
• 22:45
  Speaker 1: will often almost rule like they work for the administration.
• 22:49
  Speaker 1: But I just think you only have to look at
• 22:51
  Speaker 1: what the Elements Kit did and what the ten Circuit did,
• 22:53
  Speaker 1: and about regular folks coming out in Oklahoma here in
• 22:57
  Speaker 1: the fact and saying, hey, what happened to this infessor?
• 23:01
  Speaker 1: That's an injustice And not only is an injustice if
• 23:04
  Speaker 1: you look at the jury verdict, they considered it an
• 23:06
  Speaker 1: outrageous injustice. Right. So, I think when people hear the
• 23:10
  Speaker 1: stories and hear the narratives instead of you know, get
• 23:14
  Speaker 1: kind of caught up in the gas lighting and the
• 23:16
  Speaker 1: sort of right wing media bubble. You know. I think
• 23:19
  Speaker 1: both the courts and the people respond consistent below and
• 23:23
  Speaker 1: consistent with I think humanity.
• 23:26
  Speaker 2: Let me ask you one thing about Boss Stock. And
• 23:28
  Speaker 2: this is a Supreme Court that has overturned precedent. Suppose
• 23:32
  Speaker 2: a case involving misgendering or the bathroom use, whatever comes
• 23:37
  Speaker 2: before this Supreme Court. It's a different Supreme Court than
• 23:41
  Speaker 2: heard the boss Stock case. Will the boss Stock case
• 23:44
  Speaker 2: still be recognized as precedent.
• 23:47
  Speaker 1: I think they're going to firm Boss Stock. You know,
• 23:49
  Speaker 1: I've been wrong before. I err on the side of
• 23:52
  Speaker 1: last half full, but I think boss Stock is going
• 23:54
  Speaker 1: to be okay. I mean, I think there may be
• 23:57
  Speaker 1: some issues that come up with respect to religious exercise,
• 24:01
  Speaker 1: But if you remember in the Harris Spunier Holmes case,
• 24:03
  Speaker 1: they raised the Religious Freedom Restoration Act defense and they
• 24:07
  Speaker 1: were basically smacked down by the Sixth Circuit. And I
• 24:09
  Speaker 1: think they recognized that this was kind of a road
• 24:12
  Speaker 1: to nowhere, and they didn't raise it in the Supreme Court.
• 24:15
  Speaker 1: And so you know, there certainly will be litigation in
• 24:19
  Speaker 1: that area. But in terms of coming back and reversing
• 24:22
  Speaker 1: Boss Stock, I'm hoping it doesn't happen. I actually haven't
• 24:25
  Speaker 1: heard of being a fairy s effort to do that,
• 24:27
  Speaker 1: but you do hear about, you know, these sort of
• 24:29
  Speaker 1: carveouts with respect to restroom usage or to the exercise
• 24:34
  Speaker 1: of the employer's religious liberty. So I think there's certainly
• 24:37
  Speaker 1: been more litigation, but I with hope the boss Stock
• 24:39
  Speaker 1: is said Boss Stock. Yet you also have to understand
• 24:42
  Speaker 1: the politics here is really the politics of penching down
• 24:45
  Speaker 1: because the transgender community is not particularly a large voting block,
• 24:52
  Speaker 1: and they really depend on really raising their voices, but
• 24:56
  Speaker 1: on the allyship of people of good conscience. That certainly
• 25:00
  Speaker 1: Boss Stock was a historical decision with respect to sexual orientation,
• 25:04
  Speaker 1: and you know, it was really an effort to kind
• 25:07
  Speaker 1: of put the court on the right side of history.
• 25:10
  Speaker 1: I don't see boss Stock being reversed. I just think
• 25:12
  Speaker 1: that it's an extremely popular decision.
• 25:15
  Speaker 2: Stay with me, David. Coming up next, Trump's unprecedented firing
• 25:19
  Speaker 2: of two EEOC commissioners. You're listening to Bloomberg. President Donald
• 25:25
  Speaker 2: Trump has fired two Democratic Equal Employment Opportunity Commission members
• 25:30
  Speaker 2: in an unprecedented move that undercuts the Democrats voting majority
• 25:36
  Speaker 2: on the board. It leaves two seats on the five
• 25:39
  Speaker 2: member civil rights panel to be filed by nominations from
• 25:42
  Speaker 2: the new administration. The firings contradict the historical precedent of
• 25:48
  Speaker 2: leaving commissioners in place at the independent agency. Both have
• 25:53
  Speaker 2: said they'll explore their legal options. I've been talking to
• 25:56
  Speaker 2: David Lopez, a professor at Rutgers Law School and a
• 26:00
  Speaker 2: former EEOC General counsel. David, firing the commissioners is unprecedented,
• 26:06
  Speaker 2: But is it illegal?
• 26:07
  Speaker 1: I suspect that the system will be litigated, and I
• 26:10
  Speaker 1: certainly believe that it's illegal. I worked with the commission,
• 26:14
  Speaker 1: you know, for several years, and you know the Commission
• 26:18
  Speaker 1: was structured by Congress in nineteen sixty four as an
• 26:23
  Speaker 1: independent agency, you know, deliberately set apart from the different
• 26:27
  Speaker 1: cabinet agencies and deliberately set apart from the sort of
• 26:30
  Speaker 1: the whims of a particular executive's political moment, right, And
• 26:36
  Speaker 1: it was structured as a bipartisan agency so it would
• 26:40
  Speaker 1: have diverse exchange of viewpoints, and the commissioners were given
• 26:45
  Speaker 1: set terms because it was recognized that that was important
• 26:49
  Speaker 1: to maintain the independence of judgment of the agency. You know,
• 26:54
  Speaker 1: this is sort of kind of an overtly political move
• 26:57
  Speaker 1: against two I think, you know, extremely hard working, intelligent,
• 27:03
  Speaker 1: well known civil rights advocates who are basically doing their job, right.
• 27:07
  Speaker 1: I mean, they were basically doing their job trying to
• 27:10
  Speaker 1: educate the country about discrimination and opposing discriminatory practice. And
• 27:15
  Speaker 1: so many people have said in the employment to me, like,
• 27:18
  Speaker 1: if this were a private sector case, this would be
• 27:21
  Speaker 1: like a slam dunk, because you know, clearly the motivation
• 27:24
  Speaker 1: here was that they were opposing discriminatory practices. But I think,
• 27:29
  Speaker 1: you know, sort of separately, the structure of the agencies
• 27:32
  Speaker 1: is one of independents that I actually regard this as illegal,
• 27:36
  Speaker 1: and you know, if it's litigated, we'll see what the
• 27:38
  Speaker 1: court say. There are a couple other things though that
• 27:41
  Speaker 1: our importanner mentioned one is if it's tied up litigation,
• 27:44
  Speaker 1: what does that mean about a quorum for the Commission.
• 27:46
  Speaker 1: Without a quorum, it really fobbles the ability agency to
• 27:50
  Speaker 1: do its work in all areas, right in terms of
• 27:53
  Speaker 1: approving the litigation, in terms of coming up to the
• 27:56
  Speaker 1: internal policies, in terms of addressing you know, complacent discrimination
• 28:01
  Speaker 1: in the federal sector, it's really bad. And when you
• 28:03
  Speaker 1: couple that with, you know, I think the hiring freeze,
• 28:06
  Speaker 1: and couple that with what I found to be an
• 28:09
  Speaker 1: extremely curious first statement by the acting chair which seemed
• 28:14
  Speaker 1: to almost like mimic wholesale the Trump Executive Order and
• 28:18
  Speaker 1: thus suggesting like sort of an abandonment of like the
• 28:21
  Speaker 1: independence of the agency. You know, I think that there's
• 28:24
  Speaker 1: perilous times.
• 28:25
  Speaker 2: I mean, is there really bipartisanship at the agency?
• 28:30
  Speaker 1: I will say, And I just think I really think
• 28:32
  Speaker 1: it's important for your listeners to know, and I think
• 28:34
  Speaker 1: the listeners do know this is that the whole bipartisanship
• 28:39
  Speaker 1: and independence of that agency is built into the culture
• 28:42
  Speaker 1: from top to bottom, and the agency has been through
• 28:47
  Speaker 1: democratic administrations and Republican administrations. But I think that you know,
• 28:52
  Speaker 1: certainly the commitment of the Civil Servant goes back to
• 28:55
  Speaker 1: sort of the original vision, and that is that civil
• 28:57
  Speaker 1: rights is not a partisan issue. It's an American issue.
• 29:01
  Speaker 1: And you know, I work under chairs and commissioners of
• 29:07
  Speaker 1: a different party, and I know that when Cary Domingus
• 29:11
  Speaker 1: came in, one of the first things she did is
• 29:13
  Speaker 1: she developed basically a program to address a backfast discrimination
• 29:18
  Speaker 1: against Arab and Muslims and people from South Asia. When
• 29:22
  Speaker 1: cher Naomier came in, she really made an effort to
• 29:26
  Speaker 1: reinvigorate the Commission's focus on anti black racism, you know,
• 29:32
  Speaker 1: the original you know, catalyst for the Commission. I worked
• 29:36
  Speaker 1: with Vicki Litnick for several years. We didn't agree on everything,
• 29:40
  Speaker 1: maybe fifty percent, but you know, she cared about civil rights,
• 29:45
  Speaker 1: she cared about the agency, and she certainly always you know,
• 29:49
  Speaker 1: I think carried out I think sort of the vision
• 29:52
  Speaker 1: of Congress in terms of the independence, in terms of
• 29:55
  Speaker 1: the bipartisan deliberation, and so, you know, I think with
• 29:59
  Speaker 1: the Trump and theministration, we find ourselves, you know, in
• 30:02
  Speaker 1: both administrations in a different world. That really, really I
• 30:06
  Speaker 1: think puts against the grain of what Congress is trying
• 30:08
  Speaker 1: to do with this agency as part of this like
• 30:13
  Speaker 1: landmarks where I checked and a scary time. But you
• 30:16
  Speaker 1: know people are ready. I mean people are going to
• 30:17
  Speaker 1: push back. I mean, I think that's that's to be expected.
• 30:21
  Speaker 1: And to sort of almost like as a first statement,
• 30:24
  Speaker 1: to say that you're abandoning or not to mention at
• 30:28
  Speaker 1: all the legacy and the sacrifice of people and the
• 30:32
  Speaker 1: original catalyst in the civil rights movement for this agency,
• 30:37
  Speaker 1: and to act like you know, I mean, to completely
• 30:39
  Speaker 1: ignore the issue of anti black racism as well as
• 30:42
  Speaker 1: gender and disability, of age and everything else. I certainly
• 30:45
  Speaker 1: can say that's not where the people I meet are.
• 30:48
  Speaker 1: I worked at that agency in many years, and you
• 30:51
  Speaker 1: know they value its commitment to disability, to fight disability
• 30:55
  Speaker 1: discrimination and age discrimination and sexual harassment and the work
• 30:59
  Speaker 1: on behalf of bleulnerable workers. This just takes us to a
• 31:03
  Speaker 1: completely very dystopian place that I do.
• 31:06
  Speaker 2: So what would be the possible legal defenses the commissioners
• 31:11
  Speaker 2: could raise to being fired by Trump? Is it precedent,
• 31:15
  Speaker 2: is it something else?
• 31:16
  Speaker 1: I think it's a language understandute itself. I mean, you
• 31:19
  Speaker 1: just have to look at the structure of the statute,
• 31:22
  Speaker 1: and there's been a lot of litigation on independent agencies,
• 31:25
  Speaker 1: but I think it's the structure of the statute itself.
• 31:28
  Speaker 2: The EOC is one of several federal agencies facing lawsuits
• 31:33
  Speaker 2: from challengers who argue that its leadership is unconstitutionally protected
• 31:38
  Speaker 2: from being fired at will. I mean, does it fit
• 31:41
  Speaker 2: in with other agencies or does it stand apart for
• 31:44
  Speaker 2: some reason?
• 31:45
  Speaker 1: Well, I mean you have to look at all the
• 31:46
  Speaker 1: agencies separately, and I know that there's ongoing litigation brought
• 31:51
  Speaker 1: by basically Elil Musk and Jeff Bezos against the Nationally
• 31:55
  Speaker 1: Relations Board. But all agencies function differently, right, agencies have
• 32:01
  Speaker 1: you know, I think more defined adjudicatory functions. The EESC
• 32:05
  Speaker 1: you know, will engage in some adjudication with respect to
• 32:09
  Speaker 1: it's usually delegated with respect in the federal sector, but
• 32:12
  Speaker 1: it's mostly what it does is mostly policy, right, And
• 32:15
  Speaker 1: I think what's important to remember here is that once
• 32:18
  Speaker 1: the litigation has approved, that General Council is independent authority
• 32:22
  Speaker 1: over that litigation. So, you know, the sort of silver
• 32:24
  Speaker 1: lining here is of litigation should go on. We'll see
• 32:27
  Speaker 1: that the litigation should go one that it already brought.
• 32:30
  Speaker 1: I mean, every agency is different, so all of these
• 32:32
  Speaker 1: cases that will come up or have been raised, will
• 32:36
  Speaker 1: you know, involve sort of a different, different factual scenario.
• 32:40
  Speaker 2: Do you think Trump is doing these firings just sort
• 32:43
  Speaker 2: of shock and awe or he really expects that this
• 32:48
  Speaker 2: will you know, that it will take that he'll be
• 32:50
  Speaker 2: able to keep these two commissioners off.
• 32:52
  Speaker 1: I mean, I think it's a little broader than that.
• 32:54
  Speaker 1: And I think you have to understand this in the
• 32:56
  Speaker 1: context of gain litigation in the Civil Rights Division and
• 33:00
  Speaker 1: in the context of basically getting core functions of the OFCCP.
• 33:06
  Speaker 1: Trump has never been accused of having a forward looking vision,
• 33:09
  Speaker 1: and this is a backward vision. I mean, this is
• 33:12
  Speaker 1: an effort to kind of roll roll the clock back,
• 33:15
  Speaker 1: you know, this vision of civil rights agencies or civil
• 33:19
  Speaker 1: rights itself as being infused with what you know, he
• 33:24
  Speaker 1: would probably regard as like identity politics, ignoring you know,
• 33:28
  Speaker 1: the fact that these civil rights agencies have, you know,
• 33:32
  Speaker 1: become an engine of opportunity for workers across the country
• 33:36
  Speaker 1: who have been you know, shut out because not only
• 33:39
  Speaker 1: of race, but also because of because of sex, because
• 33:42
  Speaker 1: of disability, because of age, and so in the effort
• 33:47
  Speaker 1: to chase this sort of ideological phantasma of what he
• 33:52
  Speaker 1: regards as sort of these you know, DEI programs, frount
• 33:55
  Speaker 1: am up or what he regards to sort of a
• 33:57
  Speaker 1: what does it call it, a radical gender ideolis. You know,
• 34:01
  Speaker 1: he's not only wrong on those issues, but he ended
• 34:03
  Speaker 1: up throwing out the baby with the bathwater. And I
• 34:06
  Speaker 1: think this is by design. I don't think this is
• 34:08
  Speaker 1: in the burden. I think this is by design, and
• 34:10
  Speaker 1: I think it's part of a broader, kind of long
• 34:13
  Speaker 1: term plan to really get government generally. So I don't
• 34:16
  Speaker 1: think this is accidental. I mean, this is it's politics,
• 34:19
  Speaker 1: because it's always politics, but it's also politics in service
• 34:23
  Speaker 1: of kind of a backward looking agenda. I don't know
• 34:27
  Speaker 1: what the exact year is. I don't know if it's
• 34:30
  Speaker 1: nineteen fifty five or if it's eighteen seventy six. All
• 34:33
  Speaker 1: this stuff he's doing, They got the civil service, which
• 34:35
  Speaker 1: is based on merit, and replace those folks with political appointees,
• 34:40
  Speaker 1: which by definition are not based on merit. You know,
• 34:42
  Speaker 1: seems to take us back to like eighteen seventy six,
• 34:45
  Speaker 1: which is also the year that reconstruction was gutted. So
• 34:48
  Speaker 1: I don't know if the goal is to take us
• 34:49
  Speaker 1: back to eighteen seventy six to the Gilded Age, or
• 34:52
  Speaker 1: that it takes us back to nineteen sixty three before
• 34:55
  Speaker 1: the Civil Rights Act was passed, or nineteen fifty five
• 34:57
  Speaker 1: with the Eisenhower deportations. But you know, everything that's being
• 35:01
  Speaker 1: done is about taking us backwards instead of addressing changing
• 35:06
  Speaker 1: the dynamic world and trying to ask ourselves, how can
• 35:08
  Speaker 1: we use everybody's talents, how can we bring everybody on board?
• 35:13
  Speaker 1: And so yeah, where to come?
• 35:15
  Speaker 2: We are only ten days into his second administration. Thanks
• 35:19
  Speaker 2: so much for being on the show. David. That's Professor
• 35:22
  Speaker 2: David Lopez of Rutgers Law School. And that's it for
• 35:25
  Speaker 2: this edition of The Bloomberg Law Show. Remember you can
• 35:28
  Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.
• 35:31
  Speaker 2: You can find them on Apple Podcasts, Spotify, and at
• 35:34
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• 35:40
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• 35:43
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• 35:46
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