Latest / Bloomberg Law / Trump Jeopardizes Union Gains & SCOTUS Flips

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Trump Jeopardizes Union Gains & SCOTUS Flips · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:09
Speaker 1: During Joe Biden's presidency, workers have racked up victories with
0:14
Speaker 1: historic union contracts with the Big three automakers Hollywood Studios,
0:19
Speaker 1: UPS and Boeing, and unions freshly established at Apple, Amazon, Microsoft, Chipotle,
0:26
Speaker 1: and Starbucks. Biden's appointees have issued rules such as eliminating
0:31
Speaker 1: non compete agreements and making more workers eligible for overtime.
0:35
Speaker 1: Whatever the details, a second Trump presidency is expected to
0:40
Speaker 1: negatively impact American labor and favor corporate America, flying back
0:45
Speaker 1: much of the leverage that workers have gained in the
0:48
Speaker 1: last four years. Witness an August twelfth interview on X
0:53
Speaker 1: where Trump praised Elon Musk for threatening to fire striking workers.
0:58
Speaker 1: I mean, I look at what you do.
0:59
Speaker 2: You want to quit?
1:02
Speaker 1: They go on strike.
1:03
Speaker 2: I won't mention the name of the company, but they
1:05
Speaker 2: go on strike and use it.
1:06
Speaker 1: That's okay.
1:07
Speaker 3: You're all gone.
1:08
Speaker 1: You're all gone.
1:08
Speaker 3: So every one of you is gone, and you are
1:10
Speaker 3: the greatest.
1:11
Speaker 1: Joining me is an expert in labor law, Kate Andreas,
1:14
Speaker 1: a professor at Columbia Law School. Kate, before we talk
1:18
Speaker 1: about the consequences for American workers of the next Trump administration.
1:23
Speaker 1: Let's talk about this case where the National Labor Relations
1:26
Speaker 1: Board overturned a nearly forty year old president. It involves
1:31
Speaker 1: Starbucks managers making threats to employees during a union election drive.
1:36
Speaker 2: Well, Starbucks managers in this case and an others have
1:39
Speaker 2: made a whole host of threats, but the one that
1:42
Speaker 2: was particularly an issue in this case was a threat
1:45
Speaker 2: by employers that if workers decided to organize, that would
1:50
Speaker 2: change their relationship with management in a negative way. So
1:54
Speaker 2: the just blow how that that statement was permissible because
1:58
Speaker 2: there was an old board decision dating from the nineteen
2:01
Speaker 2: eighty five, which held that as a categorical matter, when
2:06
Speaker 2: employers stay to workers that union organizing it's going to
2:10
Speaker 2: change the dynamic with the company, that that does not
2:14
Speaker 2: count as a threat. And so the judge below was
2:17
Speaker 2: applying that precedent that dated from the nineteen eighty What
2:21
Speaker 2: the board said here was that that precedent should be
2:25
Speaker 2: overruled because it's inconsistent with the statute's prohibition on employers
2:30
Speaker 2: coercing employees and the exercise of their union rights, and
2:33
Speaker 2: it's also intention with other doctrine and including Supreme Court cases,
2:38
Speaker 2: would say that employers can't threaten workers who speak to
2:43
Speaker 2: organize unions.
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Speaker 1: So it was a forty year old precedent and they
2:47
Speaker 1: threw it out.
2:48
Speaker 2: They overruled it. But it was a forty year old
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Speaker 2: president that was in considerable tension with other cases, including
2:54
Speaker 2: the Supreme Court decision in an even older precedent called
2:59
Speaker 2: Nlar reversus get Fell that dates from the nineteen sixties.
3:02
Speaker 2: So the board overruled that old case, but said that
3:05
Speaker 2: it wasn't going to apply the new rules of Starbucks
3:08
Speaker 2: in this case, and that it would only apply the
3:10
Speaker 2: new decision prospectively. That said, Starbucks in the same case
3:14
Speaker 2: made a lot of other threats which did violate established law,
3:19
Speaker 2: and both the Alegity Administrative Law judge and the Board
3:23
Speaker 2: found Starbucks liable of unfairlya for practices based on the
3:26
Speaker 2: other threats.
3:27
Speaker 1: With this decision, what kind of threats can employers make?
3:32
Speaker 2: So employers are not supposed to be making any threats
3:34
Speaker 2: when workers try to organize unions that is prohibited by
3:37
Speaker 2: the law. What employers can do and what the Supreme
3:41
Speaker 2: Court said employers can do in the nineteen sixty nine
3:43
Speaker 2: decision is employers can make predictions about what might happen
3:49
Speaker 2: in the future regarding things that are outside of the
3:51
Speaker 2: employer's control. But when the employers start threatening changes dates
3:55
Speaker 2: that are within the employer's control, like we're going to
3:58
Speaker 2: change our relationship with you, that becomes a threat and
4:02
Speaker 2: it's not permitted because workers have the right to organize
4:05
Speaker 2: unions free from coercion by employers.
4:08
Speaker 1: If this is in line with prior precedent, why did
4:11
Speaker 1: it take forty years for it to be overturned.
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Speaker 2: Well, well, I think this board has made a concerted
4:18
Speaker 2: effort to look at the doctrine and try to make
4:21
Speaker 2: sure it is really all in line with the statute
4:23
Speaker 2: and with the protection of workers to organize unions. And
4:27
Speaker 2: so there are a number of long standing precedents which
4:30
Speaker 2: are intention with those fundamental statute or commitments that the
4:32
Speaker 2: Board has been taking a look at and reconsidering in
4:35
Speaker 2: the last four years.
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Speaker 1: So Starbucks said this ruling unfairly applies a new legal
4:39
Speaker 1: standard on Starbucks retroactively, which the NLRB should not do.
4:44
Speaker 1: We're considering our next steps. But you said they weren't
4:47
Speaker 1: going to make the ruling retroactive, right, Yeah.
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Speaker 2: My understanding of the opinion and my reading of it
4:54
Speaker 2: is that the Board very clearly said that it was
4:56
Speaker 2: only going to apply this rule prospectively for the concern
5:00
Speaker 2: that Cerbuck places that the Board wants to make sure
5:02
Speaker 2: that the law is clear to those who are covered
5:04
Speaker 2: by it, and so this new interpretation of the law
5:07
Speaker 2: that brings the law into alignment with the Supreme Court's
5:10
Speaker 2: holdings is only going to apply going forward.
5:14
Speaker 1: Now, this is the first presidential ruling since the country
5:19
Speaker 1: voted to send Donald Trump back to the White House,
5:22
Speaker 1: and it was three to one, the three Democrats to
5:25
Speaker 1: the one Republican. What likely will happen to the Board
5:30
Speaker 1: when Trump takes office.
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Speaker 2: I think that we will see the Board over time
5:35
Speaker 2: become much more hostile to workers and to workers' rights
5:39
Speaker 2: to organize unions. How quickly that happens, though, is an
5:43
Speaker 2: open question. The Board is an independent agency, which means
5:48
Speaker 2: that the President does not, under the law, have the
5:50
Speaker 2: right to fire the Board members. Rather, they serve for terms,
5:54
Speaker 2: and so the Board's composition will turn over with time.
5:58
Speaker 2: It all goes according to the stat that said, a
6:01
Speaker 2: number of business groups have taken the position that those
6:05
Speaker 2: protections that the board members have in order to create
6:07
Speaker 2: independence are unconstitutional. So it's possible, depending on what happens
6:11
Speaker 2: with the litigation challenging the constitutionality of the Board, and
6:14
Speaker 2: also depending on what Trump does, that the composition of
6:17
Speaker 2: the Board could change more quickly. In any event, once
6:21
Speaker 2: Trump has appointed a majority of the Board, I think
6:24
Speaker 2: we're likely to see the board rolled back many protections
6:28
Speaker 2: for workers right that the Biden Board has affirmed and
6:32
Speaker 2: enforced over the last four years.
6:34
Speaker 1: Tell us about the role of the General Council Jennifer
6:38
Speaker 1: of Rutso, I mean, he can change her position right away, right.
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Speaker 2: Right, So. The General Council is the person within the
6:46
Speaker 2: board who prosecutes cases and who brings cases, and Jennifer
6:52
Speaker 2: Brusso has been very energetic and effective at prosecuting violations
6:58
Speaker 2: of the law and making sure that the NOTHERA is
7:01
Speaker 2: interpreted in ways that really protect workers rights to organize
7:05
Speaker 2: em bargain. I think we can expect that President Trump
7:08
Speaker 2: will replace her. He doesn't have to, but I think
7:11
Speaker 2: it's likely that he will replace her with someone who's
7:15
Speaker 2: much more pro business and anti worker.
7:18
Speaker 1: During Joe Biden's presidency, can you describe the strides the
7:23
Speaker 1: accomplishments that unions have made.
7:26
Speaker 2: Yeah, I mean in lots of ways. I think President
7:28
Speaker 2: Biden was one of the most pro union presidents that
7:32
Speaker 2: we've had in a very long time, everything ranging from
7:36
Speaker 2: the President's decision to join ticket lines to his efforts
7:40
Speaker 2: to get employers to settle strikes. That's the president's actions himself,
7:45
Speaker 2: but also the National Labor Relations Board and the Department
7:48
Speaker 2: of Labor both acted in ways, promulgated rules and issues
7:52
Speaker 2: decisions to protect workers rights. So just give you a
7:55
Speaker 2: couple of examples of achievements by the board. The National
7:59
Speaker 2: Labor Board has made union elections faster. They have also
8:04
Speaker 2: changed the standard for who counts as an employer in
8:07
Speaker 2: order to try to hold employers to exercise power over
8:12
Speaker 2: supply chain or reliable as well as the bordinate subcontracted employers.
8:16
Speaker 2: They reversed a number of Trump era rulings that limited
8:19
Speaker 2: the ability of workers to organize that limited access to
8:22
Speaker 2: the workplace. They made it harder for employers to issue
8:26
Speaker 2: rules that appear neutral but have the effect of killing
8:29
Speaker 2: workers organizing drives. They sought injunctions to try to reinstate
8:33
Speaker 2: workers who are illegually inspired, and they also began to
8:38
Speaker 2: seek bargaining orders to lein employers and repeatedly violate the law.
8:42
Speaker 2: They issued a stenter that made it easier for the
8:44
Speaker 2: Board to order employers to bargain with unions in those circumstances. So,
8:48
Speaker 2: in lots of different ways, they made it easier for
8:51
Speaker 2: workers to organize unions and made it harder for employers
8:54
Speaker 2: to violate employee rights. In the context of the Department
8:57
Speaker 2: of Labor as well, they tried to change the standards
9:00
Speaker 2: so it's harder to misclassify employees as independent contractors. There
9:05
Speaker 2: are various rules that they tried to promulgate to protect
9:08
Speaker 2: workers from health and safety violations, for example, from extreme heat,
9:12
Speaker 2: and they've gone after child labor violations aggressively. So both
9:17
Speaker 2: the National Labor Relations Board and the Department of Labor
9:19
Speaker 2: have really worked very hard over the last four years
9:22
Speaker 2: to make sure that the law protects workers right and
9:25
Speaker 2: they have worked hard to enforce the law as well.
9:28
Speaker 1: So that sounds like a lot of accomplishments. I mean,
9:32
Speaker 1: how fast can they be unwound or taken away? You know,
9:37
Speaker 1: in a Trump administration, I think.
9:39
Speaker 2: Something can be done right away. So enforcement policy, we're
9:42
Speaker 2: likely to see changed very quickly. So currently, as I said,
9:45
Speaker 2: the Biden Department of Labor has been aggressively enforcing against
9:48
Speaker 2: child labor violations. They've also been trying to go after
9:52
Speaker 2: what's sometimes known as apex corporation, so big corporations that
9:55
Speaker 2: affect a lot of the labor markets. We're likely to
9:58
Speaker 2: see the enforcement policy means right away, and for the
10:01
Speaker 2: Trump administration to adopt a more conciliatory enforcement approach. It
10:06
Speaker 2: takes longer to change rules. Those have to be changed
10:10
Speaker 2: either through adjudications individual cases or through notice and comment
10:15
Speaker 2: rulemaking where the agency tells the public what it plans
10:19
Speaker 2: to do or what it's considering, allows effective parties to comment,
10:23
Speaker 2: considers those comments, and then issues a new rule. So
10:27
Speaker 2: that's enforcement is quick, rule change is slower. The wildcard question,
10:31
Speaker 2: I think, is what happens with all the constitutional challenges
10:34
Speaker 2: to the agencies. So if those move quickly, we could
10:38
Speaker 2: see really radical changes with the nationallyb relation sport and
10:41
Speaker 2: the Department of Labor's ability to function.
10:43
Speaker 1: Coming up next, I'll continue this conversation with Columbia Law
10:46
Speaker 1: School professor Kate Andreas. We'll talk about workers' advocates shifting
10:51
Speaker 1: their focus to states and cities. This is bloomberg. Unions
10:55
Speaker 1: have been invigorated during the Biden administration with historic union
11:00
Speaker 1: in contracts and successful organizing efforts. A second Trump presidency
11:05
Speaker 1: is expected to negatively impact American labor and favor corporate America,
11:11
Speaker 1: flying back much of the leverage that workers have gained
11:14
Speaker 1: in the last four years. I've been talking to Columbia
11:18
Speaker 1: Law School professor Kate Andreas, an expert in labor law.
11:22
Speaker 1: You know, when he ran, Trump courted union workers and
11:27
Speaker 1: he promised that he would do better for them than
11:29
Speaker 1: Biden did. Last time Trump ran the government, however, it
11:33
Speaker 1: was a different story.
11:35
Speaker 2: I think what we know from Trump's track records is
11:39
Speaker 2: that when he was in charge of the government, we
11:41
Speaker 2: had labor agencies that were very pro business and very
11:46
Speaker 2: hostile to workers. So I think that's likely what we
11:50
Speaker 2: will see again. We can be hopeful that maybe that's
11:53
Speaker 2: not the case, but I think that the past practice
11:56
Speaker 2: suggests that we're likely to see a lot of anti
11:58
Speaker 2: worker activity from this administration.
12:01
Speaker 1: Daniel Vicenti, a regional director for the UAW, said everything
12:05
Speaker 1: becomes harder, from organizing to negotiating strong contracts to strikes
12:11
Speaker 1: I mean, why would things like strikes become more difficult.
12:14
Speaker 2: Yeah, I think he's right that both bargaining and strikes
12:16
Speaker 2: can become more difficult. So first of all, say something
12:19
Speaker 2: about bargaining and then turn to strikes. The law obligates
12:22
Speaker 2: employers to bargain in good faith, but when employers refuse
12:25
Speaker 2: to do so, question is what happens. And this agency
12:28
Speaker 2: has tried to obligate employers to bargain good faith, and
12:31
Speaker 2: the President has also intervened in various contract issutes to
12:34
Speaker 2: encourage employers to bargain and to reach settlements that benefit
12:37
Speaker 2: workers and so that workers can get their fair share
12:40
Speaker 2: of increases in profits. With respective strikes as well, the
12:43
Speaker 2: law protects the right to strike. It prevents workers from
12:47
Speaker 2: being permanently replaced if they go on what's called an
12:50
Speaker 2: unfair labor practice strike. But if they strike in response
12:54
Speaker 2: to an unfair labor practice by an employer, they can't
12:57
Speaker 2: be replaced permanently. But if the board is much less
13:01
Speaker 2: likely to conclude that employers are violating the law, then
13:06
Speaker 2: that protection becomes a lot less strong, because when workers
13:10
Speaker 2: strike in the absence of an unfair labor practice, they
13:12
Speaker 2: can be permanently replaced. So that's just one example, but
13:15
Speaker 2: the entire legal climate changes, and if you have the
13:19
Speaker 2: agency no longer working to protect employees rights to organize,
13:23
Speaker 2: to bargain, to strike, the kind of ground on which
13:26
Speaker 2: workers are trying to enforce their rights. That said, we
13:31
Speaker 2: should overstate the effect of a change in administration. If
13:35
Speaker 2: workers act collectively and engage in strikes, they frequently have
13:39
Speaker 2: enough economic power, even absence the threat of effective legal enforcement,
13:44
Speaker 2: to win in victories.
13:46
Speaker 1: What is the status of Starbucks and union organizations. Apparently
13:52
Speaker 1: about five hundred Starbucks nationwide have voted to unionize. I mean,
13:58
Speaker 1: this has been going on for a long time. What
14:00
Speaker 1: stage are they at?
14:02
Speaker 2: So lots and lots of Starbucks workers around the country
14:04
Speaker 2: have voted to organize, and it's really gunning actually, So
14:08
Speaker 2: it's just within the last few years unit from having
14:10
Speaker 2: zero organized Starbucks to several hundreds. The problem is that
14:14
Speaker 2: for quite a while Starbucks was roukeenly violating the law
14:17
Speaker 2: when workers try to organize, and also it's refusing to bargain,
14:21
Speaker 2: and so that has closing down. But my understanding is
14:24
Speaker 2: that there has been a shift and that Starbucks is
14:26
Speaker 2: now bargaining with the union with the workers, and so
14:29
Speaker 2: I'm hopeful that we will see the workers reach the
14:32
Speaker 2: first contract and be able to continue to build their
14:35
Speaker 2: organization and other workers will be able to join the
14:37
Speaker 2: union as well.
14:38
Speaker 1: So do you see labor advocates perhaps shifting from federal
14:43
Speaker 1: objectives to securing policy gains in states and cities, such
14:48
Speaker 1: as some of the ballot measures that we saw go
14:52
Speaker 1: through on Tuesday.
14:54
Speaker 2: Yeah, I think the possibility of federal labor law reform
14:57
Speaker 2: has been elusive for quite a while and has now
15:00
Speaker 2: certainly not achievable. At least, federal labor law reformat will
15:03
Speaker 2: further protect workers, right, So I expect that we'll continue
15:06
Speaker 2: to see workers organizing unions and engaging in collective action
15:10
Speaker 2: across the country the way they have been, but that
15:12
Speaker 2: we will also see more effort to try to win
15:16
Speaker 2: labor reforms at the state level in states where doing
15:19
Speaker 2: so is politically achievable, And workers really have achieved a
15:22
Speaker 2: great deal at the state level in recent years, providing
15:26
Speaker 2: a model for what might happen in the future. So,
15:28
Speaker 2: just to give you a couple examples, workers have one
15:31
Speaker 2: significant increases in the minimum wage through ballot initiatives as
15:35
Speaker 2: well as through legislation at the state level, and they've
15:38
Speaker 2: been able to do that not only in blue states
15:40
Speaker 2: but also in really conservative states because there is overwhelming
15:43
Speaker 2: support for improving workers conditions even in red states. One
15:47
Speaker 2: thing is we're likely to see more Baalid initiative that
15:50
Speaker 2: increase the minimum wage. Another thing is that I think
15:52
Speaker 2: we're likely to see more effort to pass state laws
15:56
Speaker 2: that enable workers to organize unions and bargains for workers
16:00
Speaker 2: who are not covered by federal law. So states can't
16:04
Speaker 2: pass union organizing and bargaining laws for workers who are
16:08
Speaker 2: covered by federal labor law, that's preempted. But for groups
16:12
Speaker 2: of workers who aren't covered by federal labor law, like
16:15
Speaker 2: gig workers, agricultural workers, and domestic workers, states can legislate.
16:20
Speaker 2: And so what we saw in the last collection was
16:21
Speaker 2: a very successful effort in Massachusetts to pass a new
16:25
Speaker 2: system for uber and less drivers to organize unions and
16:28
Speaker 2: to bargain with their employers. And that's the kind of
16:31
Speaker 2: thing that I think we're likely to see more of
16:32
Speaker 2: going forward. It's a really important breakthrough. So like gig
16:35
Speaker 2: workers have a right to coluctive voice on their dogs
16:39
Speaker 2: and can work together to improve their conditions.
16:42
Speaker 1: How much will the conservative judiciary play a part in
16:47
Speaker 1: toning down any gains at the state or city level.
16:51
Speaker 2: Well, that's yet to be seen. The conservative judiciary is
16:57
Speaker 2: certainly going to play a role constraining what federal labor
17:02
Speaker 2: agencies do, because we've seen in the last few years
17:05
Speaker 2: the Supreme Court issue a series of decisions that really
17:09
Speaker 2: drastically undermine the ability of federal administrative agencies to function.
17:14
Speaker 2: So that's at the federal level. With respect to how
17:16
Speaker 2: the judiciary will respond to state initiatives, I think it's
17:20
Speaker 2: an open question. On the one hand, this is a
17:22
Speaker 2: Supreme Court that's been very hostile to labor rights, but
17:25
Speaker 2: it's also a Supreme Court that purports to be solicitus
17:28
Speaker 2: of state rights, and so we'll have to see what
17:30
Speaker 2: happens on that front.
17:32
Speaker 1: On election day, Trump appointed a pellic judges on the
17:35
Speaker 1: Ninth Circuit struck down a Biden requirement that government contractors
17:39
Speaker 1: pay at least fifteen dollars an hour, calling that minimum
17:43
Speaker 1: wage rule arbitrary and capricious.
17:45
Speaker 2: That role is on very sound legal footing under existing precedent.
17:49
Speaker 2: Because the president has the authority under the federal contracting
17:53
Speaker 2: laws to set standards for federal contracts, as long as
17:57
Speaker 2: doing so in a way that advances the ecmomune efficiency
17:59
Speaker 2: and contract And there's lots of studies that show that
18:01
Speaker 2: when workers are paid a decent wage, they stay in
18:04
Speaker 2: their jobs longer, we have less turnover. And in the past,
18:07
Speaker 2: the president required a lot of difference to the president's
18:10
Speaker 2: decisions with the respect to contracting. So the court has
18:13
Speaker 2: upheld orders by President Bush, by President Kennedy, by President Clinton,
18:17
Speaker 2: lots of different executive orders. This decision from the Ninth
18:20
Speaker 2: Circuit was really out of line was past precedent, but
18:23
Speaker 2: that's not necessarily surprising given what we've seen other conservative
18:27
Speaker 2: Trump judges do. What I think it means going forward
18:30
Speaker 2: is that it had Tamala Harris one, it would have
18:32
Speaker 2: constrained her ability to set fair labor standers in federal contracting.
18:37
Speaker 2: I think we're unlikely to see President Trump trying to
18:40
Speaker 2: do that, and so in that sense, the decision we'll
18:42
Speaker 2: have relatively little effect.
18:45
Speaker 1: I saw this. I thought it was interesting that some
18:47
Speaker 1: civil rights and environmental lawyers are trying to certify the
18:51
Speaker 1: first ever union at the Justice Department before Trump comes
18:55
Speaker 1: into office. Is there enough time for that?
18:58
Speaker 2: It would be interesting to see. I think there's our
19:00
Speaker 2: motivation is strong. They, like other employees, have a right
19:04
Speaker 2: to organize, and there's a real danger that the country
19:08
Speaker 2: spaces if Trump makes good on his promises to try
19:11
Speaker 2: to politicize the government all the way down to staff
19:15
Speaker 2: line career workers. So Trump has threatened to transform what
19:19
Speaker 2: is essentially a civil service into politically loyal operatives. He
19:25
Speaker 2: wants to have the right to fire civil servants who
19:27
Speaker 2: aren't loyal to his administration. But I think what's going
19:30
Speaker 2: on here as an effort in part to stand that
19:33
Speaker 2: and that could be really helpful not only for these lawyers,
19:36
Speaker 2: but also for our democracy if they succeed.
19:39
Speaker 1: And Kate tell us about the challenges to the constitutionality
19:43
Speaker 1: of the National Labor Relations Board.
19:46
Speaker 2: Yeah, so there's a series of challenges to administrative agencies.
19:50
Speaker 2: The ones that are being brought against the Board are
19:52
Speaker 2: being brought in part by Yon Musk by Tesla arguing
19:55
Speaker 2: that one that the board is unconstitutional because the board
19:59
Speaker 2: members serve for terms and can't be removed at will
20:02
Speaker 2: by the president. That's a system that exists across many
20:05
Speaker 2: different agencies and has been in place really for the
20:08
Speaker 2: last hundred years that the Court is upheld, but several
20:10
Speaker 2: corporations are arguing that that violates the Constitution because it
20:14
Speaker 2: constrains presidential power. That's one argument. Another is that the
20:18
Speaker 2: NRB and the Department of Labor impermissively have administrative law
20:23
Speaker 2: judges the judicating cases that really should be done by
20:26
Speaker 2: civil juries. Again, that's a system that's existed for the
20:30
Speaker 2: last century, but there are arguments are being brought that
20:32
Speaker 2: it violates the Separation of Powers and the Seventh Amendment
20:35
Speaker 2: to have administrative law judges deciding cases when there's monetary
20:39
Speaker 2: finds at stake. That builds on a decision from the
20:42
Speaker 2: Supreme Court last year involving the sec. And then a
20:45
Speaker 2: third argument is kind of the broadest, which is that
20:48
Speaker 2: agencies like the Board that mix adjudicative functions with executive
20:53
Speaker 2: functions and rulemaking functions that apply the law and a
20:56
Speaker 2: host of different ways, that that violates the separation of powers.
21:00
Speaker 2: Of these arguments would have been considered off the wall
21:02
Speaker 2: and frivolous just a few years ago, but in a
21:05
Speaker 2: series of cases over the last few years, the Supreme
21:07
Speaker 2: Court has accepted arguments that challenge in the basics of
21:11
Speaker 2: administrative law, and those are all being brought to bear
21:14
Speaker 2: now on the board, and a circuit split is developing
21:19
Speaker 2: where you have the Fifth Circuit accepting some of these
21:21
Speaker 2: arguments and the other circuits that have considered them have
21:23
Speaker 2: said these are ridiculous. So it's quite possible that we'll
21:26
Speaker 2: see case get to the Supreme Court involving these constitutional
21:30
Speaker 2: challenges to the National Abor Relations Board and to other
21:32
Speaker 2: agencies as well.
21:33
Speaker 1: Administrative law sort of turned on its head in so
21:36
Speaker 1: many ways in the last few years. Thanks so much, Kate.
21:39
Speaker 1: That's Professor Kate Andreas of Columbia Law School, coming up
21:43
Speaker 1: next on the Bloomberg Law Show. The US government's position
21:47
Speaker 1: before the Supreme Court in cases over healthcare treatment for
21:51
Speaker 1: transgender miners and federal regulations for building at home ghost
21:55
Speaker 1: guns will likely flip when Donald Trump takes office. I'm
22:00
Speaker 1: June Grosso and you're listening to Bloomberg. With a change
22:04
Speaker 1: in administrations, the US government's position could flip in certain
22:09
Speaker 1: cases already before the Supreme Court. The disputes over healthcare
22:14
Speaker 1: treatments for transgender miners and federal regulations for building at
22:19
Speaker 1: home ghost guns are seen as too, where a Trump
22:22
Speaker 1: administration may reverse the positions held by the Biden administration.
22:27
Speaker 1: Joining me is constitutional law expert Harold Krent, a professor
22:30
Speaker 1: at the Chicago Kent College of Law. The Biden administration
22:34
Speaker 1: has taken positions in certain cases before the Court. We
22:38
Speaker 1: can anticipate that the Trump administration will come in and say,
22:42
Speaker 1: forget about it, we don't agree. How often does that
22:46
Speaker 1: happen when there's a change in administrations.
22:48
Speaker 3: Which relatively common, when the administration transitions that individuals and
22:54
Speaker 3: the new administration of a different perspective on the legal
22:56
Speaker 3: issues that the Supreme Court has already agreed to take.
23:00
Speaker 3: And it depends on the posture of the case what
23:03
Speaker 3: happens next, And so even in the cases that the
23:07
Speaker 3: Court has already taken the year, there will be different
23:10
Speaker 3: kinds of reactions or different kinds of interventions by the
23:15
Speaker 3: new administration, the Trump administration to tie to influence or
23:18
Speaker 3: alter what the Supreme Court may decide.
23:21
Speaker 1: And though the justices or some of the justices have
23:24
Speaker 1: seemed irritated at different times about the changes, I mean,
23:28
Speaker 1: did they accept the changes Basically in the past.
23:32
Speaker 3: They've reacted in different ways, and they shouldn't be irritated.
23:35
Speaker 3: I mean politically, administrations have different legal views and they
23:40
Speaker 3: want to afford those views, and the court then sometimes
23:43
Speaker 3: will reman the case for further consideration in light of
23:47
Speaker 3: the change, depending upon the procedural posture, or sometimes they'll
23:51
Speaker 3: just take an amicus grief to hear what the new
23:54
Speaker 3: administration has to say about it legal issue. But at
23:58
Speaker 3: some point it's incredibly salient to factor in what the
24:02
Speaker 3: new administration has to say. So, for instance, one of
24:05
Speaker 3: the most important cases so far argued in the Ghost
24:09
Speaker 3: Gun case. The centerpiece of the litigation is a twenty
24:15
Speaker 3: twenty two federal rule issued by the Bureau of Alcoholic
24:18
Speaker 3: Tobacco on firearms. If the administration wants to rescind that rule,
24:24
Speaker 3: it moves out the entire controversy. So it would be
24:27
Speaker 3: of course relevant to hear whether or not the administration
24:32
Speaker 3: has taken action before the decision is issued to resin
24:36
Speaker 3: the rule that's at the heart of the case.
24:38
Speaker 1: The Ghost Gun case has already been argued. One that
24:42
Speaker 1: hasn't been argued and that we can anticipate that the
24:47
Speaker 1: Trump administration may want to change positions on is the
24:51
Speaker 1: transgender rights case. Tell US about that.
24:54
Speaker 3: Case's two cases, they're combined both with respect to Kentucky
24:59
Speaker 3: and Tennessee's law US limiting the rights to have transgender
25:02
Speaker 3: surgery for minors. But what was interesting in the case
25:05
Speaker 3: is the US intervened and argued that the Supreme Court
25:10
Speaker 3: should pay the US's petition for Surcherai after the Sixth
25:14
Speaker 3: Circuit rejected the challenge to their rule. Because of the
25:18
Speaker 3: fact that there was only a split in the circuits
25:21
Speaker 3: on one issue, which was an eco protection issue as
25:25
Speaker 3: opposed to the substitute process issue which the private parties
25:29
Speaker 3: had raised in addition to the eco protection challenge to
25:33
Speaker 3: the limitations on gender affirming surgery, So the Supreme Court
25:37
Speaker 3: actually granted the US's petition and not those of the
25:41
Speaker 3: private parties. So technically, if a new Trump administration could
25:47
Speaker 3: say we've changed our mind, and then there'd be no
25:50
Speaker 3: petition left for the Court to decide, and that is
25:56
Speaker 3: a technical possibility. Of course, there's still be a split
25:59
Speaker 3: in circuits on the meaning of the protection cause, So
26:03
Speaker 3: you would think that the Court could take then one
26:06
Speaker 3: of the other petitions and proceed to resolve in the case,
26:10
Speaker 3: but need not to if the Court wants to duck it.
26:12
Speaker 3: You could simply say, well, the US has withdrawn its
26:15
Speaker 3: petition and therefore there's nothing left for us to decide.
26:18
Speaker 3: So it's a technical issue that would not be I
26:21
Speaker 3: think positive in terms of trying to resolve to sput
26:24
Speaker 3: in the circus on such an important issue. But technically
26:28
Speaker 3: a Trump administration could cause that dilemma and force the
26:33
Speaker 3: Court to make a decision.
26:34
Speaker 1: And the Biden administration actually did change the Trump administration's
26:39
Speaker 1: position in a challenge to the Affordable Care Act that
26:43
Speaker 1: was three months after the case was argued. So the
26:46
Speaker 1: Biden administration has done it too.
26:48
Speaker 2: Oh.
26:48
Speaker 3: Absolutely, It's done by both Democratic and Republican in this rations.
26:51
Speaker 3: And I do think it's principle to do that because
26:55
Speaker 3: again a good example would be in the ghost gun case.
26:57
Speaker 3: If the batf rescinds its regulation, which you know, I
27:02
Speaker 3: don't think it should, but if it does, then by
27:05
Speaker 3: all stretch of imagination, the case should be rooted out.
27:10
Speaker 3: And there's another interesting sort of example too. There's another
27:13
Speaker 3: ACA case it's likely to come up before the Court
27:18
Speaker 3: if the Fifth Circuit decided to hold unconstitutional part of
27:23
Speaker 3: the ACA, which allows a semi private group to determine
27:28
Speaker 3: which preventative services should be paid for under the insurance,
27:32
Speaker 3: preventative services for screen crew cancers, other kinds of medications
27:36
Speaker 3: for cardio, bachelor disease, and so forth, And under the
27:39
Speaker 3: statutory scheme and the ACA, a semi private group really
27:43
Speaker 3: gets to determine, subject only to a very limited review
27:47
Speaker 3: by the administration, which of these kinds of medications insurance
27:52
Speaker 3: should cover. And the Fifth Circuit said that it was
27:56
Speaker 3: unconstitutional the best, so much authority in this to my
28:00
Speaker 3: private group. So the Trump administration could simply agree, and
28:07
Speaker 3: then that case would not be right for decision by
28:11
Speaker 3: the Supreme Court, and it would take another kind of
28:14
Speaker 3: controversy in a different circuit to wind its way up.
28:17
Speaker 3: So you know, all these contexts, what the new administration
28:21
Speaker 3: thinks is relevant and also changes the procedural posture of
28:25
Speaker 3: the case, which may mean it's either less likely or
28:28
Speaker 3: more likely that the Supreme Court would take it.
28:30
Speaker 1: And there are some cases involving EPA disputes. What happens
28:35
Speaker 1: in those cases and.
28:37
Speaker 3: We've seen that before, I mean in the change from
28:39
Speaker 3: the Obama administration to the Trump administration.
28:42
Speaker 2: But in that.
28:43
Speaker 3: Case, if the EPA rule is changed, then the challenge
28:48
Speaker 3: to the EPA rule becomes moot, or at least practically moot,
28:52
Speaker 3: and it makes it much less likely that Supreme Court
28:55
Speaker 3: would entertain the case. And it's a parallel to the
28:58
Speaker 3: ghost gun case that we just say. So, any kind
29:00
Speaker 3: of challenge to a government rule, if the government rule changes,
29:05
Speaker 3: is for all intents and purposes moved. Although the Court
29:08
Speaker 3: occasionally will say, well, the agency can change its mind again,
29:13
Speaker 3: and they say it's not completely mood and hear the case,
29:17
Speaker 3: and it's done that occasionally, but I think that's not
29:21
Speaker 3: necessarily a principle of practice, even though the Court has
29:24
Speaker 3: done it and it has the power to do that
29:26
Speaker 3: by saying that the agency can always change its mind
29:30
Speaker 3: again and come back with a rule. So we'll issue
29:33
Speaker 3: the decision now. But again, normally, the best practice and
29:37
Speaker 3: the predicted practice would be for the court to not
29:40
Speaker 3: hear a case if the agency changes its regulation.
29:44
Speaker 1: I'm asking everyone this question. I'm asking all the legal
29:48
Speaker 1: experts I speak to this question. Do you think there'll
29:50
Speaker 1: be any changes at the Supreme Court?
29:53
Speaker 3: Well, there might be. I mean I think that the
29:55
Speaker 3: question is if it appears that the Republican sort of
29:59
Speaker 3: strung long hold on the Supreme Court may end. If
30:03
Speaker 3: the new second Trump administration may have a democratic successor,
30:07
Speaker 3: then certain conservative members of the Court would find it
30:10
Speaker 3: a convenient time to retire to allow President Trump to
30:15
Speaker 3: fill their vacancies. So the you know, if you think
30:18
Speaker 3: about Justice Alito or Justice Thomas, and you know, another
30:24
Speaker 3: three years or so, they healthy reasons may stays really
30:28
Speaker 3: time for them to step down, and that would be
30:30
Speaker 3: a convenient time to do it to allow President Trump
30:33
Speaker 3: to replace them. That's speculative, and we certainly don't wish
30:36
Speaker 3: anybody ill health, but that's certainly a possibility. And you know,
30:41
Speaker 3: all of these changes in administration does give the Supreme
30:44
Speaker 3: Court flexibility. So if there are sort of internal reasons
30:48
Speaker 3: for court to duck one case but then decide they
30:52
Speaker 3: wanted to reach another, the change of the administration gives
30:55
Speaker 3: them a good cover to advance their own sort of
30:58
Speaker 3: internal agendas if the agenda as exist, and I don't
31:01
Speaker 3: know that they do in the cases of the ghost guns,
31:04
Speaker 3: or in gender firming care or in the preventative ACA case,
31:09
Speaker 3: but they could. And so the Court basically is at
31:14
Speaker 3: the end of the day, incredibly powerful in our country,
31:17
Speaker 3: and it has the discretion then to decide its own docket,
31:20
Speaker 3: and the excuse of the transition can even enhance their
31:24
Speaker 3: power decide which issues to address and which not to.
31:28
Speaker 1: The Court has been on an administrative law tare against
31:32
Speaker 1: regulatory agencies. Do you think we'll still see that in
31:35
Speaker 1: a Trump administration.
31:37
Speaker 3: That's a great question. I've been wondering that myself, because
31:40
Speaker 3: obviously their political leadings clash against their constitutional sort of
31:46
Speaker 3: preference for common law decision making as opposed to that
31:49
Speaker 3: by the regulatory state. And yet President Trump is going
31:52
Speaker 3: to re rely on the regulatory state to push his agenda.
31:56
Speaker 3: So it will be fascinating to see whether or not
31:59
Speaker 3: the Court continues its aggressive drive. But one of the
32:04
Speaker 3: issues that is interesting is what about the FED. The
32:09
Speaker 3: FED traditionally has been considered to be independent. President Trump
32:14
Speaker 3: has railed against at times the independence of the FED,
32:17
Speaker 3: and so he might try to trigger a constitutional crisis
32:21
Speaker 3: by firing the head of the FED, and then the
32:25
Speaker 3: Court would have to decide whether or not Congress's restrictions
32:28
Speaker 3: on the removability of the FED is constitutional or not.
32:32
Speaker 3: So that is one instance when the Court might continue
32:37
Speaker 3: it's push towards a unitary executive, which of course would
32:39
Speaker 3: be embraced by President Trump.
32:43
Speaker 1: Thanks so much for being on the show. Hal, That's
32:45
Speaker 1: Professor Harold Krent of the Chicago Kent College of Law.
32:48
Speaker 1: And that's it for this edition of the Bloomberg Law Podcast.
32:51
Speaker 1: Remember you've can always get the latest legal news by
32:54
Speaker 1: subscribing and listening to the show on Apple Podcasts, Spotify,
32:58
Speaker 1: and at Bloomberg dot com, Rush podcast, slash Law. I'm
33:02
Speaker 1: June Grosso and this is Bloomberg