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Weekend Law: Presidential Power, Birthright Citizenship & Campaign Finance · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: In twin rulings this week, the Supreme Court expanded the
0:12
Speaker 2: president's power to fire top government officials for any reason,
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Speaker 2: but carved out an exception for the Federal Reserve Board,
0:21
Speaker 2: protecting governors from being fired without proof of wrongdoing. The
0:25
Speaker 2: Court was split six to three down ideological lines in
0:29
Speaker 2: the decision allowing the President to fire independent regulators like
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Speaker 2: former FTC Commissioner Rebecca Slaughter without cause despite laws to
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Speaker 2: the contrary, and overturning a ninety year old precedent in
0:43
Speaker 2: the process. But the Court was more closely divided five
0:46
Speaker 2: to four in the case allowing FED Governor Lisa Cook
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Speaker 2: to remain in her job while she fights Trump's attempt
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Speaker 2: to fire her over unproven mortgage fraud allegations. Chief Justice
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Speaker 2: John Roberts and Justice Brett Kavanaugh join with the liberals
1:03
Speaker 2: to make up the majority, reinforcing the Fed's independence from
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Speaker 2: the White House. Both had post skeptical questions to the
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Speaker 2: Solicitor General during the oral arguments.
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Speaker 3: Their position that there's no judicial review, no process required,
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Speaker 3: no remedy available, very low bar for cause, that the
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Speaker 3: President alone determines. I mean that would weaken, if not shatter,
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Speaker 3: the independence of the Federal Reserve.
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Speaker 4: It seems to me that if there is any level
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Speaker 4: of cause, and you indicate that there is some level
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Speaker 4: of cause, right, well, you can't be right about the
1:42
Speaker 4: idea that it courts can't order anybody who's been removed
1:47
Speaker 4: to be reinstated.
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Speaker 2: The Chief wrote the majority opinions in both cases. My
1:52
Speaker 2: guest is an expert in constitutional law, Jillian Metzger, a
1:56
Speaker 2: professor at Columbia Law School. Jillian, would you say that
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Speaker 2: the drastically expanded presidential power, even if the president doesn't
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Speaker 2: have the power right now to fire fed Governor Cook?
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Speaker 5: I think it did. I mean whether this was the
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Speaker 5: expansion or the recognition of what the Court had done before,
2:15
Speaker 5: you might quibble on. I think the Court had all
2:18
Speaker 5: but overturned Humphrey's executor in some of its earlier decisions.
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Speaker 5: It's a little bit unclear to me exactly what Cook
2:26
Speaker 5: means in practice. You know, I read one thing where
2:29
Speaker 5: Trump is saying he's going to go ahead and do
2:30
Speaker 5: it again. We'll get a chance to see. But the
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Speaker 5: court really does emphasize and Cook that the removal for
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Speaker 5: cause would be judicially reviewable, rejects the idea that it
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Speaker 5: can't be, and also has language that emphasizes the need
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Speaker 5: for that review in order to protect the actual independence
2:47
Speaker 5: and goes out of its way to emphasize it. Notwithstanding Slaughter,
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Speaker 5: it sees the Federal Reserve is different. So I think
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Speaker 5: it's unclear exactly whether in practice they would be willing
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Speaker 5: to tolerate pretextual firings just because of the President provides
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Speaker 5: some notice and an opportunity for hearing. And that said,
3:05
Speaker 5: what they specify as required is notice that an opportunity
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Speaker 5: for hearing are not that elaborate. My guess is that
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Speaker 5: the protection will likely come from the judicial review afterwards
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Speaker 5: rather than the procedures they outline, But I think again
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Speaker 5: we have to see how that works in practice.
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Speaker 2: Tell us about the Chief Justice is reasoning in the
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Speaker 2: Cook case.
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Speaker 5: So Cook came up before the court on an emergency
3:28
Speaker 5: application for a stay. So the question the court focused
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Speaker 5: on is whether or not the government was likely to
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Speaker 5: succeed on the merits to justify granting a stay. The
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Speaker 5: courts below had granted an injunctive relief in Cook's favor
3:39
Speaker 5: against the government and the government made a number of
3:43
Speaker 5: arguments of different degrees of radicalness. They argue that the
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Speaker 5: president had found cause. They argue that the president's determinations
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Speaker 5: were totally unreviewable. They suggested that requiring cause or review
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Speaker 5: might be unconstitutional. So it's an argument that actually Thomas
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Speaker 5: makes in his opinion, but the government itself didn't push
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Speaker 5: that argument. They accepted that the Court had suggested in
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Speaker 5: Wilcox that the Federal Reserve was different, and you could
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Speaker 5: have four cause removal. And it gets to the Federal Reserve,
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Speaker 5: and the majority does go ahead and says that at
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Speaker 5: least the Federal Reserve, as connected to its monetary policy functions,
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Speaker 5: the Fed in that regard could be an independ agency
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Speaker 5: with four cause removal. And there's some debate among the
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Speaker 5: justices about whether or not the Court should do that.
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Speaker 5: And you have Barrett dissenting saying, hey, you know, on
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Speaker 5: an application for stay.
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Speaker 6: This is a tough issue.
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Speaker 5: We've just done slaughter.
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Speaker 7: We should think offer.
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Speaker 5: But really animating the majority seem to be a great
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Speaker 5: deal of concern to not have questions about the independence
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Speaker 5: of the Federal Reserve lingering out there. That said, there's
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Speaker 5: a tension between the courts saying we don't leave open
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Speaker 5: questions about protecting the FED, and the fact that all
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Speaker 5: it specifies this fairly thin procedure. But then judicial review,
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Speaker 5: which seems to be perfectly expectable, that what's going to
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Speaker 5: happens to the present is going to remove again.
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Speaker 2: So then does it seem like the case will end
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Speaker 2: up back at the Supreme Court again? And will the
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Speaker 2: justices almost have to take it with these the important
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Speaker 2: issues about the FED left unresolved.
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Speaker 5: Usually I would say this is kind of thing that
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Speaker 5: the Court would take. But having taken it, and one
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Speaker 5: of the things they also do is they do specify
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Speaker 5: that they think that the threshold for what counts as caused,
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Speaker 5: although not as high as Cooks specified, it's still fairly significant.
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Speaker 5: And they do emphasize the importance of the Fed's independence,
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Speaker 5: and they do say that whatever accounts as caused has
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Speaker 5: to be tied to the purposes of the FED and
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Speaker 5: its goals. And so those provide some real basis to
5:29
Speaker 5: give cause some meaning. And that's also some degree of
5:32
Speaker 5: guidance to the lower court. So if a lower court
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Speaker 5: applying that guidance, as the Court and envisions would happen,
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Speaker 5: comes to the conclusion that what the president's done is
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Speaker 5: not cause, and that gets affirmed by an appellate court.
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Speaker 5: I'm not sure that the court would find it necessary
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Speaker 5: to engage further on that.
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Speaker 2: Then we had this six to three decision down ideological
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Speaker 2: lines in the Slaughter case, and the only way they
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Speaker 2: distinguished the two was the fed is different.
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Speaker 5: Honestly, I think it is the decision in both these
5:59
Speaker 5: cases how they came out was expected. I found Slaughter
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Speaker 5: really disappointing in its reason, in its thinness. A lot
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Speaker 5: of the Court's recent decisions have been thin the majorities,
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Speaker 5: and one of the things that they just don't deal
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Speaker 5: with in any fair way is the historical evidence and
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Speaker 5: this opinion. You know, there was great briefing on this
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Speaker 5: or is at this point a substantial amount of historical
6:20
Speaker 5: evidence and debates, historical debates to be sure about the
6:23
Speaker 5: extent to which you had removal protections or the extent
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Speaker 5: to which it was clear that the president had at
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Speaker 5: will removable power at the time of the founding. You know,
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Speaker 5: serious historians have engaged and studied this, and I certainly
6:33
Speaker 5: think the balance of that evidence pretty significantly does favor
6:37
Speaker 5: the idea that there were number of different kinds of
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Speaker 5: controls that were imposed, and that the historical record is
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Speaker 5: not at all that the country had come to agreement
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Speaker 5: that president had at will removal power in seventeen eighty nine,
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Speaker 5: and the Court, you know, references some of that in
6:50
Speaker 5: taking on the dissent, but really it's treatment of the
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Speaker 5: history is so pathetic, it's so thin, it's so unserious,
6:56
Speaker 5: and we're talking about the structure of our government and
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Speaker 5: president of the Court, that Congress has relied on, the
7:02
Speaker 5: country has relied on, and it really it's such a
7:04
Speaker 5: one sided treatment, citing only a couple of scholarship. At
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Speaker 5: the point when the opinion discusses the history and claims
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Speaker 5: that this is all decided in seventeen eighty nine, you know,
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Speaker 5: just sites one side of the debate. No academic would
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Speaker 5: ever do that, No serious treatment of the issue should
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Speaker 5: ever do that. And then when the Court does engage
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Speaker 5: with some of the counteri history, it's just dismissive of
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Speaker 5: it and it doesn't really take seriously the actually the
7:25
Speaker 5: historical record here is really not in its favor, but
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Speaker 5: certainly at a minimum unclear, as scholars of both sides
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Speaker 5: have acknowledged, and that does really, I think, affect the
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Speaker 5: strength of the majority's argument.
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Speaker 2: I mean, the majority opinion is all about the unitary
7:39
Speaker 2: executive theory, isn't it that the Constitution vests executive power
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Speaker 2: solely in the president.
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Speaker 5: I mean, the majority's argument has been, as it has
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Speaker 5: been in all these cases. It's the Constitution vests the
7:51
Speaker 5: executive power in a president, and that means all the
7:54
Speaker 5: executive power in the president. And they gave up and
7:56
Speaker 5: didn't want to have any kind of board that when
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Speaker 5: on a single person or to preserve energy and effectiveness,
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Speaker 5: and that that therefore means president has to have removal power.
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Speaker 5: It will as a structural inference. There are huge leaps there.
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Speaker 5: It doesn't follow from the fact that the Constitution invests
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Speaker 5: the executive power in the president that Congress can impose
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Speaker 5: any limits on that removal power. Some moments might go
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Speaker 5: too far. But the Court just says the two are
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Speaker 5: the same. They're not. They're logically not the same thing.
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Speaker 5: And there's a very interesting bit where the Court also
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Speaker 5: just rejects out of hand the fact for the last
8:25
Speaker 5: hundred plus years, one hundred and fifty years now, we've
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Speaker 5: had independent agencies by suggesting that just because we've deviated
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Speaker 5: from the true path of the meaning of the Constitution.
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Speaker 5: You know, the Court's obligations to go back to it.
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Speaker 5: But what's fascinating is that the unitary executive theory is
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Speaker 5: itself a modern day creation. The Court is giving voice
8:43
Speaker 5: to a theory and understanding of the structure of the
8:46
Speaker 5: Constitution that really took hold in the nineteen eighties with
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Speaker 5: the Reagan administration. And so it's just a deep kind
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Speaker 5: of tragic irony and in some sense, to my mind,
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Speaker 5: you want to give a good argument for the unitiy executive,
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Speaker 5: it would be that we have, through the constructed an
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Speaker 5: argument for presidential control and for presidential centrality over the
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Speaker 5: administrative state that didn't previously exist. You could make that argument,
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Speaker 5: But the Court doesn't make that. It just makes this
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Speaker 5: incredibly thin argument based on its own structural inferences, claims
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Speaker 5: about the text, ignoring the historical evidence.
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Speaker 2: The law issue in the Slaughter case was passed by
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Speaker 2: Congress in nineteen fourteen. It permits a president to remove
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Speaker 2: FTC commissioners only for cause. And this Court has repeatedly
9:30
Speaker 2: said that this issue or that issue is up to Congress.
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Speaker 2: And here Congress said something. Congress did something and they're saying, no,
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Speaker 2: it's up to us, and more than one hundred years later.
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Speaker 5: That actually is one of the important points here, and
9:44
Speaker 5: this is the point that dissent makes, is that the
9:46
Speaker 5: separation powers from much of our history has been something
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Speaker 5: that the political branches have worked out, They've hashed it out.
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Speaker 5: The Court certainly has had decisions making important points Marbury
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Speaker 5: versus Madisine and the importance of independent judicial review in
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Speaker 5: eighteen oh three, but the separation of powers and the
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Speaker 5: sort of balance between the executive branch and the legislative
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Speaker 5: branch has really been left to the political powers to
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Speaker 5: work out for long swaths of that period. And this
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Speaker 5: Court has really discharged up the separation of powers on steroids,
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Speaker 5: and the net effect has been that, I mean, it
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Speaker 5: empowers the executive branch, for sure, but it really empowers
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Speaker 5: the judiciary. It's the judiciary that makes the determinations and
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Speaker 5: has the power to say, basically, we're going to cast
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Speaker 5: aside one hundred and fifty years of governance in this
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Speaker 5: country and the political compromises that result in that.
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Speaker 2: In her dissent, Justice Sodomyrs says that the majority refuses
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Speaker 2: to say where its theory leads or where it ends?
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Speaker 2: Where do you think it leads?
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Speaker 5: I think the critical questions are how broad is the
10:45
Speaker 5: import of the court's decision. Are we talking about principal
10:48
Speaker 5: officers at the top of independent agencies? All of the
10:51
Speaker 5: recent decisions dealt with the members of a body that
10:55
Speaker 5: was the governing body, not the officers below them or
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Speaker 5: the employees below them. In other words, are we talking
11:01
Speaker 5: about the constitutionality of the civil service? You look at
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Speaker 5: the language of the majority opinion where it says what text,
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Speaker 5: history and structure settle our president confirms the president may
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Speaker 5: remove his subordinates at will. Well, employees and inferior officers
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Speaker 5: are the president's subordinates under the unitary executive theory. And
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Speaker 5: if you take that logic seriously, then this isn't just
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Speaker 5: about principal officers. This is all the way down, and
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Speaker 5: that is transformedive beyond belief. That is chaos, beyond belief.
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Speaker 5: That is just a fundamental redoing of how our government
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Speaker 5: has operated ever since the spoil system of the eighteen thirties.
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Speaker 2: The implications of this decision are certainly far reaching. Thanks
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Speaker 2: so much for sharing your insights, Jillian. That's professor Gillian
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Speaker 2: Metzger of Columbia Law School coming up next on the
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Speaker 2: Bloomberg Law Show. The Supreme Court upholds birthright citizenship in
11:49
Speaker 2: a defeat for President Trump. I'm June Grosso and you're
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Speaker 2: listening to Bloomberg. The Supreme Court upheld the long held
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Speaker 2: principle of birthright citizenship this week, rejecting President Trump's attempt
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Speaker 2: to redefine what it means to be an American. Under
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Speaker 2: Trump's executive order, only babies born to a US citizen
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Speaker 2: or a Green card holder would have citizenship. But in
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Speaker 2: a six to three decision, the Court reaffirmed or ruling
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Speaker 2: from one hundred and twenty eight years ago that the
12:21
Speaker 2: Fourteenth Amendment guarantees citizenship to virtually everyone born on US soil.
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Speaker 6: The Supreme Court decided this issue definitively in eighteen ninety eight,
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Speaker 6: and again today reaffirmed that the Fourteenth Amendment means that
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Speaker 6: everyone born here is a citizen alike that can only
12:42
Speaker 6: be changed by constitutional amendment, and that effort will fail.
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Speaker 2: The case was personal for Celia Wang, the ACLU attorney
12:50
Speaker 2: who argued before the court. She herself is a birthright
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Speaker 2: citizen born in Oregon to immigrant parents. Chief Justice John
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Speaker 2: Roberts wrote them opinion, saying the Court was keeping the
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Speaker 2: promise made by the framers of the fourteenth Amendment, the
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Speaker 2: promise of citizenship to everyone born here. Joining me is
13:10
Speaker 2: Professor David super of Georgetown Law, an expert in constitutional law.
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Speaker 2: So David, this was a six to three decision, but
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Speaker 2: not down ideological lines. The Chief and Justices Ammy Cony, Barrett,
13:22
Speaker 2: and Brett Kavanaugh join with the liberals to make up
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Speaker 2: the sixth and the majority tell us about the Chief's
13:28
Speaker 2: majority opinion.
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Speaker 1: The Chief Justice looked at the history of the language
13:34
Speaker 1: of the fourteenth Amendment and found that, going far back
13:39
Speaker 1: into the English common law, someone who is born in
13:44
Speaker 1: a place is subject to the jurisdiction of that place.
13:48
Speaker 1: And when the fourteenth Amendment says that children that are
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Speaker 1: born in the US subject to the US is jurisdiction,
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Speaker 1: are citizens, he said that that means what it says citizens,
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Speaker 1: except in the very special circumstance of the kids of
14:04
Speaker 1: diplomats or perhaps people who were born during a foreign
14:08
Speaker 1: military operation. But with those very very limited exceptions, he
14:13
Speaker 1: found that the framers of the fourteenth Amendment used well
14:17
Speaker 1: known terms from the English common law and we were
14:20
Speaker 1: bound by them.
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Speaker 2: And he said there was scant evidence to support the
14:24
Speaker 2: Trump administrations dramatically revisionist few and I remembered during the
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Speaker 2: oral arguments that Justice Elena Kagan pointed out to the
14:32
Speaker 2: Solicitor General that he was relying on obscure sources like
14:37
Speaker 2: an oration delivered at President Lincoln's funeral. They didn't have
14:41
Speaker 2: much law to back them up, did they.
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Speaker 1: They really didn't, and they should have understood this. It's
14:48
Speaker 1: striking that what their effectively were trying to do is
14:52
Speaker 1: overrule a case from the nineteenth century called wom King Art,
14:58
Speaker 1: which was handed down by all almost the same Supreme
15:01
Speaker 1: Court that gave us separate but equaled plus e v. Ferguson,
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Speaker 1: one of the most reactionary courts in the history of
15:08
Speaker 1: the country, found that birthright citizenship means what it says,
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Speaker 1: and if President Trump is trying to get even farther
15:19
Speaker 1: to the right, even deeper into white supremacy than the
15:24
Speaker 1: plus v. Ferguson court, that's a challenge.
15:28
Speaker 2: Despite that, you had three of the court's most conservative
15:32
Speaker 2: justices Clarence Thomas, Samuel Leito, and Neil Gorsitch dissented. Now
15:36
Speaker 2: Thomas and Alito are no surprise they even dissented in
15:39
Speaker 2: the tariff's case, But how did they defend their descents.
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Speaker 1: In many respects? Therefore descents because Justice Kavanaugh agreed with
15:47
Speaker 1: the dissenters on the constitutional issues, so only a five
15:51
Speaker 1: to four majority said that the Constitution protects people's birthright citizenship.
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Speaker 1: Three of them thought that the president can take it
16:01
Speaker 1: away himself, and aforethought that Congress could. And it's instructive
16:06
Speaker 1: that the dissenters really don't come up with a single
16:11
Speaker 1: coherent theory, nor really does the federal government. They're getting
16:16
Speaker 1: a scrap from here and a scrap from there and
16:19
Speaker 1: trying to weave it into something, and they have quite
16:23
Speaker 1: a number of different legal theories going on. But they
16:26
Speaker 1: seem to say, well, at some point, the US deviated
16:31
Speaker 1: from the English common law. Kind of remarkable from judges who,
16:36
Speaker 1: on other occasions treat the common law as practically having
16:39
Speaker 1: been handed down on tablets to Moses. But apparently we
16:44
Speaker 1: deviated from the English common law. But no one's quite
16:47
Speaker 1: sure when or how. Maybe someone said something at someone's funeral,
16:52
Speaker 1: so maybe that's a big deal. But they say that
16:55
Speaker 1: we've gone off to a different theory, but he can't
16:59
Speaker 1: say where, he can't provide legal authority for that, and
17:04
Speaker 1: the legal theories they come up with don't make a
17:07
Speaker 1: great deal of sense. Taking some of them seriously, they
17:11
Speaker 1: would seem to mean that anyone born here to foreign parents,
17:15
Speaker 1: no matter how legal the parent status might be, is
17:19
Speaker 1: not a US citizen. And if that's true, then why
17:24
Speaker 1: did they even bother putting that language into the fourteenth Amendment.
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Speaker 2: Are the Conservatives deviating more and more from originalism or textualism?
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Speaker 1: It's strikingly unprincipled, and I mean, we've come to expect
17:39
Speaker 1: a lot of this from Justice Alito and Justice Kavanaugh.
17:44
Speaker 1: I had hoped that Justice Thomas would use this as
17:47
Speaker 1: a chance to make a strong pitch for originalism and
17:52
Speaker 1: say I don't like this result. I do like this president,
17:56
Speaker 1: but originalism tells me that that's what this means. But
18:00
Speaker 1: he doesn't do that. He comes up with this very
18:03
Speaker 1: convoluted theory, which I think badly undercuts originalism. I was
18:07
Speaker 1: also disappointed, frankly with Justice Gorsuch's position here, because I
18:12
Speaker 1: think he takes originalism seriously, and the case that they
18:16
Speaker 1: were trying to overrule Wan kim Ark is a model
18:20
Speaker 1: of originalist reasoning, something that you would think they would
18:24
Speaker 1: want to emulate rather than try to pick.
18:26
Speaker 2: Apart, speaking of trying to overrule a one hundred and
18:30
Speaker 2: twenty eight year old president, on Monday, the court reversed
18:34
Speaker 2: a ninety year old president Humphrey's executor in the case
18:38
Speaker 2: involving former FTC Commissioner Rebecca Slaughter, and on Tuesday, the
18:42
Speaker 2: court reversed a twenty five year old president in the
18:45
Speaker 2: case involving campaign finance regulations. Both those were six to
18:49
Speaker 2: three decisions, with the Republican appointees in the majority and
18:53
Speaker 2: the Democratic appointees in descent. Just as Elena Kagan wrote
18:58
Speaker 2: the dissent in the case al eliminating federal limits on
19:01
Speaker 2: spending by political parties coordinating with candidates, and she chotted
19:06
Speaker 2: the majority for overturning precedents, saying it once again disregards
19:11
Speaker 2: and disrespects the core legal principle of starry decisives. Does
19:16
Speaker 2: precedent carry any weight for the Conservatives at this point?
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Speaker 2: Do they even feel like they have to follow it?
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Speaker 1: I think President has stopped mattering very much. There are
19:25
Speaker 1: some respectable theories that say that we should follow the
19:31
Speaker 1: best reading of the Constitution, we should follow an originalist meaning,
19:36
Speaker 1: or we should follow textual analysis or something like that.
19:42
Speaker 1: But they don't do that either. And in the case
19:45
Speaker 1: overruling Humphrey's executor, they create a bunch of exceptions because
19:50
Speaker 1: they think these are good public policy. They don't have
19:52
Speaker 1: a coherent originalist theory for these exceptions. Indeed, their theory
19:57
Speaker 1: for the whole Slaughter case seem to suggest that the
20:01
Speaker 1: federal Reserve should be under the most presidential control. But
20:05
Speaker 1: for policy reasons and because they don't want to be
20:07
Speaker 1: blamed for a recession, they create an exception so precedent
20:12
Speaker 1: doesn't matter, but neither does a coherent theory. This is
20:17
Speaker 1: very policy driven judging.
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Speaker 2: I was going to say that, you know, you hear
20:22
Speaker 2: from Trump and others in the administration complaints about liberal
20:28
Speaker 2: activist judges, but it seems like the Supreme Court's conservative
20:32
Speaker 2: justices have become activists.
20:35
Speaker 1: They have become activists activists in pursuit of what they
20:39
Speaker 1: think is good public policy, which is usually conservative but
20:43
Speaker 1: sometimes has other wrinkles to it. They're making an exception
20:48
Speaker 1: to presidential power over the federal Reserve is not really conservative.
20:53
Speaker 1: It's that they don't want to crash the economy, and
20:56
Speaker 1: I don't want to crash the economy either, So I'm
20:59
Speaker 1: glad the Federal Reserve is not under the President's thumb completely.
21:03
Speaker 1: But I don't think that's principal judging. So we're not
21:07
Speaker 1: a court of precedent, and we're not really originalist. We
21:11
Speaker 1: cite old stuff, but not usually definitive evidence of original
21:16
Speaker 1: public meaning, just sort of random old stuff. So we're
21:20
Speaker 1: really off on our own with this court doing what
21:24
Speaker 1: they think is best.
21:26
Speaker 2: The Chief Justice gets to assign the majority opinion when
21:29
Speaker 2: he's in the majority, and Roberts wrote the majority opinions
21:33
Speaker 2: in two of the most high profile cases of the term,
21:36
Speaker 2: this case involving birthright citizenship and the tariff's case. And
21:41
Speaker 2: he also wrote the majority opinions in the Cook and
21:44
Speaker 2: Slaughter cases this week, and that's been a pattern of
21:47
Speaker 2: his over the years. He's the chief that's his right.
21:50
Speaker 2: But do you think he should give some of the
21:52
Speaker 2: other justices a chance at these high profile cases instead
21:56
Speaker 2: of keeping them for himself.
21:57
Speaker 1: He hasn't done that all the time, but he has
22:00
Speaker 1: certainly done it a great deal, and I think it's
22:04
Speaker 1: because he understands the scrutiny the court is under and
22:08
Speaker 1: believes that he can write an opinion that will be
22:12
Speaker 1: less vulnerable to public criticism than some of his colleagues would.
22:18
Speaker 1: He's a very hard worker, He's got impressive skills, and
22:23
Speaker 1: I think he believes he will produce the most teflon opinions,
22:28
Speaker 1: and history suggests that he may be right.
22:31
Speaker 2: How did other Chief Justices handle the assignment of the
22:35
Speaker 2: majority opinion?
22:37
Speaker 1: It really varies a great deal. There are some very
22:42
Speaker 1: important war in court decisions that Chief Justice Warren assigned
22:46
Speaker 1: to himself, most obviously Brown versus Board of Education. He
22:50
Speaker 1: was trying to get a unanimous court, which he succeeded
22:53
Speaker 1: in doing, and felt that having personal control of the
22:56
Speaker 1: opinions he was negotiating with the holdouts would allow him
23:01
Speaker 1: to make the kinds of modifications that we unify the court.
23:05
Speaker 1: Chief Justice Burger assigned himself opinions that seemed interesting and important.
23:11
Speaker 1: Chief Justice Burger's skills were probably not on the level
23:14
Speaker 1: of either Chief Justice Ward or Chief Justice Roberts, and
23:18
Speaker 1: some of those opinions that he assigned himself have puzzled
23:22
Speaker 1: people ever since. My sense of Chief Justice Ranquist is
23:26
Speaker 1: that he did not particularly abuse the privilege of assigning opinions.
23:30
Speaker 1: He certainly took some important ones for himself, but left
23:35
Speaker 1: as many for his colleagues. So it's a matter of
23:38
Speaker 1: different style. I think we've never had a Chief Justice
23:43
Speaker 1: since John Marshall who cared as much about the Court's
23:46
Speaker 1: public image as the current Chief Justice does, and I
23:50
Speaker 1: think he correctly sees the tone of these opinions as
23:53
Speaker 1: being very important to persuading the public that the Court
23:58
Speaker 1: is in fact pursuing legal agenda rather than an ideological one.
24:03
Speaker 2: As you know, David, Supreme Court approval ratings are near
24:06
Speaker 2: historic lows, so the Chief has his work cut out
24:09
Speaker 2: for him to get the public to regain their trust
24:12
Speaker 2: in the Court. Thanks so much for joining me today,
24:15
Speaker 2: David and giving us the historical perspective on the Court.
24:18
Speaker 2: That's Professor David super of Georgetown Law, coming up next
24:22
Speaker 2: on the Bloomberg Lawn Show. The Supreme Court continues its
24:25
Speaker 2: pattern of rolling back campaign finance regulations. I'm June Grosso,
24:30
Speaker 2: and you're listening to Bloomberg throughout longstanding federal limits on
24:36
Speaker 2: spending by political parties in coordination with candidates, as a
24:40
Speaker 2: violation of constitutional free speech rights. In a majority opinion
24:45
Speaker 2: written by Justice Brett Cavanaugh, the court's conservatives reverse to
24:49
Speaker 2: a twenty five year old precedent in ruling that political
24:53
Speaker 2: parties can spend as much as they want in coordination
24:56
Speaker 2: with candidates, and resolving Kavanaugh's concern during oral arguments.
25:02
Speaker 3: That's the real source of the disadvantage. Right. You can
25:04
Speaker 3: give huge money to the outside group, but you can't
25:08
Speaker 3: give huge money of the party. So the parties are
25:10
Speaker 3: very much weakened compared to the outside groups.
25:13
Speaker 2: But writing for the Liberals in dissent, Justice Elena Kegan
25:17
Speaker 2: warned that the decision could bring back quid pro quo
25:20
Speaker 2: corruption by allowing a political party to serve as an
25:24
Speaker 2: alternative checking account for a campaign, with donors giving as
25:28
Speaker 2: much as half a million dollars to the party to
25:31
Speaker 2: cover accoundidate's bills.
25:32
Speaker 8: I mean, everybody knows where the money is coming from
25:36
Speaker 8: when it's done this way. So the fact that I
25:39
Speaker 8: have a party as a conduit, the fact that I
25:41
Speaker 8: have a different private group as a conduit, it's not
25:46
Speaker 8: hard to figure out where the money is coming from,
25:48
Speaker 8: either for that person the original source of the money
25:52
Speaker 8: or for the candidate.
25:53
Speaker 2: The decision continues the Conservative Justice's pattern of rolling back
25:58
Speaker 2: campaign finance regulations. My guest is Andrew Shapiro, a partner
26:02
Speaker 2: in Quinn Emmanuel's appellate practice group. He was the former
26:06
Speaker 2: US ambassador to the Czech Republic. Andy, let's start with
26:10
Speaker 2: the big question, how important is this decision? How much
26:14
Speaker 2: will it change how money is spent in congressional elections.
26:18
Speaker 7: I think it's important for two reasons.
26:21
Speaker 9: So at a general level, it's important because it's the next,
26:25
Speaker 9: maybe almost inevitable step in the evolution of the way
26:29
Speaker 9: the Roberts Court looks at campaign finance cases. And so
26:34
Speaker 9: maybe by itself it's not an earthquake, but as part
26:38
Speaker 9: of a pattern over the last fifteen or twenty years,
26:42
Speaker 9: it says a lot. But then, even as a practical matter,
26:45
Speaker 9: it is going to allow individuals to give half a
26:50
Speaker 9: million dollars or more to a party and the party
26:54
Speaker 9: is essentially free to spend it in support of a candidate,
26:57
Speaker 9: to pay a candidate's bills. Obviously, that's a much bigger
27:01
Speaker 9: bang for the buck that a downer might get than
27:03
Speaker 9: just a seven thousand dollars which is currently kept.
27:06
Speaker 2: So the majority decision was written by Brett Cavanaught tell
27:10
Speaker 2: us about his argument and whether it mirrors the First
27:14
Speaker 2: Amendment kind of arguments that we seem to see in
27:16
Speaker 2: all these campaign finance cases.
27:19
Speaker 9: So Justice Kavanaugh, writing for six members of the Court,
27:24
Speaker 9: set this up as essentially just an exercise in a
27:27
Speaker 9: balancing test. Try to frame it as a fairly narrow ruling.
27:31
Speaker 9: So you have competing interests here. You have the interest
27:34
Speaker 9: that Congress and in some prior decisions the Supreme Court
27:39
Speaker 9: had identified of trying to keep not just corruption, but
27:42
Speaker 9: the appearance of corruption or of a quid pro quo
27:45
Speaker 9: out of our politics. That's on one side of the scale.
27:48
Speaker 9: On the other side of the scale is the First
27:50
Speaker 9: Amendment and the right of individuals or in some of
27:53
Speaker 9: these cases, organizations to use their money to get their
27:58
Speaker 9: user cross or support candid as they wish. And so
28:01
Speaker 9: when you're balancing that, the test that the Court has
28:04
Speaker 9: ultimately developed is it has to be closely and narrowly tailored.
28:09
Speaker 9: I'm paraphrasing here, but essentially you have to say, this
28:13
Speaker 9: specific restriction on speech is closely tailored to accomplishing the
28:17
Speaker 9: goal that we want to accomplish, and just as Kevinaugh
28:21
Speaker 9: walked through the stated goals, which are avoiding corruption and
28:25
Speaker 9: avoiding quid pro quos, maybe one might say quids pro quo,
28:29
Speaker 9: and decided that existing mechanisms are sufficient. So he pointed
28:35
Speaker 9: to the fact that there is still a cap on
28:37
Speaker 9: how much one can give to an individual or to
28:40
Speaker 9: a party. He pointed to prohibitions against what is called earmarking.
28:45
Speaker 9: That is, I can't specifically and expressly give five hundred
28:50
Speaker 9: thousand dollars to the Democratic Party or the Republican Party
28:53
Speaker 9: and say spend it in support of this candidate. That's
28:56
Speaker 9: still forbidden, and so Justice Kavino said that's a guard rail,
29:00
Speaker 9: and he said that the disclosure laws are a guardrail. Right,
29:04
Speaker 9: the campaigns still have to disclose in most instances, the
29:07
Speaker 9: donors and the parties have to do the same thing.
29:09
Speaker 9: And so the idea that having these things out in
29:12
Speaker 9: the sunlight will deter corruption, he felt was sufficient, and therefore,
29:16
Speaker 9: when doing this balancing test, said those are enough. It's
29:19
Speaker 9: not narrowly tailored, and so we do not need and
29:23
Speaker 9: cannot justify under the First Amendment having a further restriction,
29:26
Speaker 9: saying that parties cannot coordinate their expenditures with individual candidates.
29:32
Speaker 2: You mentioned quid pro quote. Writing for the dissenters, the
29:35
Speaker 2: three liberals, just as Elena Kagan said, the ruling opens
29:39
Speaker 2: up the same opportunities for quid pro quo corruption that
29:43
Speaker 2: the limits were meant to check, allowing wealthy donors to
29:48
Speaker 2: dodge individual contribution limits by donating through parties instead. Explain
29:53
Speaker 2: the concerns that the liberals have.
29:56
Speaker 9: Sure, I think a lot of this has to do
29:58
Speaker 9: with the different views that the majority and the dissenters
30:03
Speaker 9: have about corruption. What does it really mean a quid
30:06
Speaker 9: pro quo? So the majority is taking a very narrow view. Essentially,
30:10
Speaker 9: they say, well, these laws are meant to prevent quid
30:13
Speaker 9: pro quo and corruption, and by that we mean somebody
30:17
Speaker 9: very specifically saying I'm giving five hundred thousand dollars to
30:21
Speaker 9: the party in support of this candidate, and in exchange, I'm,
30:26
Speaker 9: you know, expecting that I will get some relief from
30:29
Speaker 9: a government investigation, or that subsidies for my industry.
30:33
Speaker 7: Will be approved, et cetera.
30:35
Speaker 9: And the justices in the minority, Justice Kagan and Justices
30:40
Speaker 9: Soda Mayor and Tanji Brown Jackson take a somewhat broader
30:44
Speaker 9: view and say that's overly technical, and everybody knows what's
30:49
Speaker 9: going on, even if I'm not specifically saying, hey, you know,
30:52
Speaker 9: I'm trying to develop a nuclear power plant here and
30:56
Speaker 9: I need approval, and by the way, I'd like to
30:58
Speaker 9: give five hundred thousand to the party.
31:01
Speaker 7: That's enough. It's enough to do a nudge nudge, wink wink.
31:04
Speaker 9: You don't have to have someone expressly saying I'm happy
31:07
Speaker 9: to give you five hundred thousand dollars if you approve
31:09
Speaker 9: my nuclear power plant. And there's a lot of force
31:11
Speaker 9: to some of the examples that Justice Kagan gives in
31:14
Speaker 9: that dissent. She points out that the parties can essentially
31:18
Speaker 9: be paying the candidate's bills. And you know, the functional
31:21
Speaker 9: difference between someone donating to the candidate to pay the
31:25
Speaker 9: candidate's bills or donating to the party to pay the
31:28
Speaker 9: candidate's bills.
31:29
Speaker 7: Can be hard to discern.
31:30
Speaker 9: So essentially, now, even though in name there's a seven
31:33
Speaker 9: thousand dollars limit on what an individual can give to
31:36
Speaker 9: a particular candidate, the party can simply say we're going
31:41
Speaker 9: to take the money that this individual gave us, and
31:43
Speaker 9: we'll pay your electricity or your rent will pay for
31:46
Speaker 9: your ads.
31:47
Speaker 7: So she's taking I think of a more practical view.
31:50
Speaker 2: From what I've been reading. In the short term, at least,
31:53
Speaker 2: this is a win for Republicans. President Trump actually said,
31:57
Speaker 2: it's a big win for Republicans. Explain why Republicans might
32:01
Speaker 2: benefit more than Democrats.
32:03
Speaker 7: Yeah, that's right. In the short term.
32:04
Speaker 9: I mean, of course, parties and donors and candidates are
32:07
Speaker 9: pretty good at figuring out how to play by whatever
32:10
Speaker 9: the rules are as the rules adapt to adapt their
32:12
Speaker 9: own strategies. But right now, the Republican Party itself has
32:16
Speaker 9: been better at fundraising than the Democratic Party.
32:19
Speaker 7: If you're looking at the national committees.
32:22
Speaker 9: They have greater number of donors who are ready willing
32:26
Speaker 9: and able to write the checks in the hundreds of
32:29
Speaker 9: thousands of dollars. And that's why this case was originally
32:32
Speaker 9: brought by Republicans. It's the National Republican Senatorial Committee.
32:37
Speaker 7: It was originally JD.
32:38
Speaker 9: Vance when he was a candidate in Ohio, challenged some
32:41
Speaker 9: restrictions against the coordinating. That being said, at least on
32:45
Speaker 9: its face, the ruling frees the Democratic Party or some
32:49
Speaker 9: future party freese that party up to spend as much
32:52
Speaker 9: money as it wants as well in coordination with other candidates.
32:55
Speaker 9: The question for the longer term, though, is whether benefits
32:58
Speaker 9: one party or not. A certain benefits people who have
33:01
Speaker 9: the ability to write really big checks. Back in the
33:05
Speaker 9: nineteen seventies, after Watergate, when Congress passed the Federal Election
33:09
Speaker 9: Campaign Ad, the idea was to try to limit the
33:13
Speaker 9: ability of large donors and large interests to impact government
33:19
Speaker 9: policy just by writing big checks. It's difficult to see
33:23
Speaker 9: how that is not undermined somewhat by this ruling. Maybe
33:27
Speaker 9: it's a correct application of the First Amendment. I'm not
33:29
Speaker 9: stating a position on that, but I think it's hard
33:32
Speaker 9: to deny that this really will amplify the voices of
33:35
Speaker 9: individuals and industries with the deepest pockets.
33:38
Speaker 2: Are we going to see more political TV ads because
33:41
Speaker 2: of the candidates getting lower rates for TV ads?
33:45
Speaker 9: Well, you know, June, it's hard to imagine seeing more
33:48
Speaker 9: ads than we sometimes see during the political campaign season.
33:52
Speaker 9: But it does seem likely that you will have more
33:55
Speaker 9: money going into television ads now because, as you adverted
33:59
Speaker 9: to the typically a party and packs and other organizations
34:03
Speaker 9: did not get the same favorable rates that candidates campaigns did,
34:07
Speaker 9: and now that's essentially out the window because the campaigns
34:11
Speaker 9: can just pay the bills. So we may yet see
34:13
Speaker 9: even more ads, not just on TV, but they're going
34:16
Speaker 9: to be popping up on your computer as well.
34:19
Speaker 2: The majority here overruled a two thousand and one decision
34:24
Speaker 2: that was the second time in two days that the
34:26
Speaker 2: Court overturned a precedent.
34:28
Speaker 7: There are certainly a pattern.
34:29
Speaker 9: So the decision that was overturned here called Colorado two,
34:34
Speaker 9: and traditionally, obviously this was something that was discussed a
34:37
Speaker 9: lot in the Dobbs decision as well, But the standard
34:40
Speaker 9: has been over the years that the court can overturn
34:46
Speaker 9: a precedent only in unusual circumstances, and that there has
34:51
Speaker 9: to be a very high bar, something other than just
34:54
Speaker 9: that the court thinks.
34:57
Speaker 7: The prior decision was wrong.
34:59
Speaker 9: And here Justice Kavanaugh said, well, subsequent developments in the
35:04
Speaker 9: case law suggests that in this Colorado two decision, which
35:08
Speaker 9: had upheld the restrictions that were struck down in this case,
35:12
Speaker 9: Justice Kavanaugh said, well, since that time, the standard that
35:16
Speaker 9: we use for balancing has changed, and we apply a
35:19
Speaker 9: closer type of scrutiny to restrictions on the First Amendment.
35:23
Speaker 9: But as Justice Kagan points out, essentially in this decision,
35:26
Speaker 9: they applied the same level of scrutiny, and she calls
35:30
Speaker 9: them out, saying that what seems to be happening here
35:33
Speaker 9: and I think you're right, June, It's happened in some
35:36
Speaker 9: other cases. The Court is becoming more comfortable overturning a
35:39
Speaker 9: precedent simply because a majority of justices on the current
35:45
Speaker 9: Court think that the prior decision was wrong, rather than
35:49
Speaker 9: that there is some unusual and identifiable need to overturn
35:55
Speaker 9: people's settle expectations.
35:57
Speaker 2: Justice Kegan quoted from a dissent by Justice Stephen Bryer
36:01
Speaker 2: in the McCutcheon case in twenty fourteen, where he said
36:04
Speaker 2: that the decision eviscerates our nation's campaign finance laws, leaving
36:10
Speaker 2: a remnant. And at the end of her descent, she said,
36:13
Speaker 2: I'm not sure what to call a remnant of a remnant,
36:17
Speaker 2: but that is what the Court has left today. Is
36:19
Speaker 2: this the end? Or do you think there'll be more
36:22
Speaker 2: attacks on what's left of campaign finance laws?
36:25
Speaker 9: There still are limits that was up helden Buckley versus Phileia,
36:28
Speaker 9: So the seven thousand dollars limit to an individual candidate,
36:32
Speaker 9: and these limits, which the majority in descent debated at
36:34
Speaker 9: least at the oral argument about is it technically forty
36:36
Speaker 9: four thousand or is it five hundred thousand.
36:38
Speaker 7: It depends how you characterize it. But there still are
36:41
Speaker 7: some limits.
36:41
Speaker 9: So is the next challenge going to say limits should
36:45
Speaker 9: be out the window as well?
36:46
Speaker 7: Or disclosure?
36:47
Speaker 9: Disclosure is still one of the guardrails against corruption that
36:53
Speaker 9: both the majority and the descent pointed to.
36:56
Speaker 7: Here, you can.
36:57
Speaker 9: Imagine a challenge in which aidate or a party or
37:01
Speaker 9: an organization says that too, is not justified.
37:04
Speaker 7: It'll be interesting to see.
37:06
Speaker 2: It's been great having you on. Thanks so much for
37:08
Speaker 2: your insights. Andy. That's Andrew Shapiro of Quinn Emmanuel, and
37:12
Speaker 2: that's it for this edition of The Bloomberg Law Show.
37:15
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