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SCOTUS Skeptical of Rastafarian Religious Damages Suit · Bloomberg Law

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  Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
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  Speaker 2: It is undisputed that my client has alleged an assault
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  Speaker 2: that is just brazenly illegal. He was at respondent's mercy
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  Speaker 2: in federally funded custody when he handed them a copy
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  Speaker 2: of controlling precedent holding that RALUPA protected his right to
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  Speaker 2: keep his hair long. They threw it away, handcuffed him
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  Speaker 2: to a chair, and shaved him bald.
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  Speaker 3: Damon Landor is Arrastafarian who had followed the Nazarite vow
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  Speaker 3: forbidding him from cutting his hair for nearly two decades.
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  Speaker 3: When Landor was transferred to a new prison in Louisiana
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  Speaker 3: with just weeks left on his five month sentence, he
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  Speaker 3: carried a copy of an appeals court decision that held
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  Speaker 3: that cutting a religious prisoner's dreadlocks violates federal law. But
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  Speaker 3: a prison guard threw the ruling into the trash, and
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  Speaker 3: despite Landor's please, he was handcuffed to a chair and
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  Speaker 3: held down while his knee length dreadlocks were cut off.
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  Speaker 3: No one disputes the glaring violation of his religious rights.
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  Speaker 3: As Justice Amy Cony Barrett noted, look.
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  Speaker 2: The facts of this case are egregious.
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  Speaker 1: So if on the facts we were looking for a
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  Speaker 1: case in which there should be money damages, this is it.
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  Speaker 3: But it's not just about the facts. It's about the
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  Speaker 3: law and whether Landor can sue the guards and prison
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  Speaker 3: officials for damages under the Religious land Use and Institutionalized
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  Speaker 3: Persons Act, better known as RALUPA. While the Supreme Court
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  Speaker 3: has repeatedly sided with religious litigants in recent years, a
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  Speaker 3: majority of the Conservative justice is led by Justice Neil Gorsuch,
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  Speaker 3: appeared skeptical that Landor could sue individual corrections employees.
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  Speaker 4: The circuits are unanimously against you and have been for many, many,
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  Speaker 4: many years. So saying that something awful's going to happen,
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  Speaker 4: it's all. Whatever's happened has happened, right.
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  Speaker 3: The Conservatives questioned whether the prison guards had noticed that
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  Speaker 3: they could be found individually liable, but the liberals said
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  Speaker 3: the prison employees were on notice. Here are Chief Justice
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  Speaker 3: John Roberts and Justice Sonya Sotomayor.
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  Speaker 5: If you're hired as a prison guard in Louisiana, you
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  Speaker 5: don't sit down, And I don't even know if Louisiana
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  Speaker 5: does saying, oh, here's our agreement with the federal government,
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  Speaker 5: which probably goes on for I don't know how many pages,
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  Speaker 5: and you should look at it carefully because you're bound
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  Speaker 5: by it.
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  Speaker 6: Generally speaking, if you're a prison official, you know you're
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  Speaker 6: working in a prison, and you bound by law to
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  Speaker 6: pay damages if you violate the law. Do you get
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  Speaker 6: an out?
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  Speaker 3: Because what my guest is John Miezer, a professor at
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  Speaker 3: Notre Dame Law School and director of the school's Religious
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  Speaker 3: Liberty Clinic, John tell us about the law that Landor
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  Speaker 3: is suing under.
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  Speaker 1: That act, which you know shorthand is called RELUPA was
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  Speaker 1: passed in two thousand in conjunction with an act that
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  Speaker 1: was passed a few years earlier, the Religious Freedom Restoration Act,
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  Speaker 1: and both of them sort of target the same goal,
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  Speaker 1: which is to, as a matter of federal statutory law,
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  Speaker 1: to restore a more robust set of protections for a
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  Speaker 1: religious exercise, which which previously had been available under the
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  Speaker 1: US Constitution, but then, following a seminal case in nineteen
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  Speaker 1: ninety Employment Division versus Smith, it sort of restricted some
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  Speaker 1: of those rights as a matter of constitutional law, and
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  Speaker 1: then Congress acted to restore them as a matter of
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  Speaker 1: statutory law.
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  Speaker 3: So explain what the problem is with him using this law.
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  Speaker 1: So Relupa, the particular law at issue here focuses on
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  Speaker 1: two areas of state and local government activity. One is
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  Speaker 1: in land use, you know, decisions about how you can
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  Speaker 1: use your property. And then the one relevant here is
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  Speaker 1: about religious exercise and jails and prisons. And so there's
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  Speaker 1: no doubt that the law Relupa protects mister Landor's rights here.
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  Speaker 1: He's a state prisoner, and so therefore Safeguards is right
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  Speaker 1: while incarcerated to exercise his religion. And the only question
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  Speaker 1: in this case is one of remedies. So the effects
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  Speaker 1: are egregious, and I don't think anyone really doubts that
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  Speaker 1: while he was in prison his rights were blatantly violated.
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  Speaker 1: He's a Rastafarian, which among other things, requires him not
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  Speaker 1: to cut his hair. He actually had a judicial decision
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  Speaker 1: when he entered the prison that held the prison policy
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  Speaker 1: requiring you know, they normally require forced shaving of all
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  Speaker 1: the inmates hair. He had a decision saying that couldn't
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  Speaker 1: be enforced against Rostafarians like him, But the guards literally
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  Speaker 1: threw away that decision, hankuffed him to a chair and
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  Speaker 1: shaved his head anyway, so there's no doubt his rights
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  Speaker 1: were violated, and the question now is only what sort
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  Speaker 1: of remedies does RELUPA allow for him to address that violation.
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  Speaker 3: Justice Katanji Brown Jackson read from Reloopa and said, it
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  Speaker 3: seems pretty clear. And five years ago the Supreme Court
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  Speaker 3: unanimously ruled that the sister statute, the Religious Freedom Restoration Act,
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  Speaker 3: permits money damages against federal officials. In that case, Muslims
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  Speaker 3: were allowed to sue over their inclusion on the FBI's
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  Speaker 3: no fly list. So why doesn't that analysis work for
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  Speaker 3: the law here Reloopa.
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  Speaker 1: Yeah, so the legal question out of heart is a
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  Speaker 1: pretty technical one of congressional power. So what both REFRA
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  Speaker 1: and RALUPA, what these laws allow is for someone who's
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  Speaker 1: been injured, whose rights have been violated, to file a
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  Speaker 1: lawsuit in federal court against those who caused the violation.
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  Speaker 1: The statute the words of the law allow you, in
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  Speaker 1: that lawsuit to get what is all appropriate relief. So
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  Speaker 1: then the whole question becomes, well, what does Congress mean
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  Speaker 1: by appropriate relief? One thing that's undisputed relief certainly includes
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  Speaker 1: a judicial order that would prevent an ongoing violation of
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  Speaker 1: religious rights. So if the jail, so to speak, we're
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  Speaker 1: continuing to threaten to violate mister Landor's rights, say they
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  Speaker 1: are shaving his head every week, you can get a
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  Speaker 1: court order telling them to stop doing that. The question, though,
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  Speaker 1: is that you just touched on there is But what
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  Speaker 1: about one time harms? What about harms that aren't ongoing?
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  Speaker 1: They're over now? How do you remedy those? Does the
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  Speaker 1: law allow you to get monetary damages? Which would be
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  Speaker 1: the normal way in a lawsuit if you've been harmed,
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  Speaker 1: the normal recourse in the law is you're able to
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  Speaker 1: get monetary damages to get money to help in some
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  Speaker 1: way remedy you repair that harm. But the question here
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  Speaker 1: is does RELOOPA allow that you're right riff ra out
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  Speaker 1: of the sister statue it was held to allow monetary damages,
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  Speaker 1: And the question of well does RELUPA allow the same
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  Speaker 1: turns out a very particular idea of the congressional power
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  Speaker 1: issue here, which is Congress's use of its spending power.
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  Speaker 1: Does the spending claw require something more for a statute
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  Speaker 1: to authorize monetary damages? Does appropriate relief clearly enough convey
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  Speaker 1: that when a state accepts federal spending it might open
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  Speaker 1: itself up or open its officers up to suits for
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  Speaker 1: money damages.
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  Speaker 3: Did it seem pretty apparent that most of the conservative
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  Speaker 3: justices thought that the statute shouldn't apply here.
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  Speaker 1: I don't know how clear it is, but I do
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  Speaker 1: think a number of justices certainly expressed skepticism about that.
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  Speaker 1: So there's a couple of different things going on. One
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  Speaker 1: is what does the statute mean? You know, what does
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  Speaker 1: appropriate relief mean in context of laws like this? And
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  Speaker 1: so that question is does the statute itself is it
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  Speaker 1: clear enough that it allows monetary damages? And then the
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  Speaker 1: other is, well, okay, even if it is, even if
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  Speaker 1: Congress did allow this, does the Constitution let Congress do
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  Speaker 1: that through a spending clause law like this? And several
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  Speaker 1: justices I think expressed some skepticism on one or both
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  Speaker 1: of those questions. But I think I think this skepticism
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  Speaker 1: all came back to a similar idea, which is spending
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  Speaker 1: clause legislation. Right, it opens up money for state governments
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  Speaker 1: to take part in federal programs or to receive federal
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  Speaker 1: subsidies for different types of things. Here jails and prisons,
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  Speaker 1: and the federal government can attach conditions to those. Sure
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  Speaker 1: will help you pay for your prison facilities if you
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  Speaker 1: agree to comply with X, Y, and Z. And the
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  Speaker 1: Court's concern with laws like this is that states are
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  Speaker 1: coming into that bargain with their eyes open, that they
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  Speaker 1: understand the conditions they're agreeing to. It's one of notice,
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  Speaker 1: one of clarity. So that's I think the driving concern here.
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  Speaker 1: I don't think it is so much about whether it
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  Speaker 1: would make sense to apply these substantive religious rights in prison.
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  Speaker 1: And everyone agrees actually that the prison and its officials
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  Speaker 1: are bound substantively to protect the rights that rerelopid demands.
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  Speaker 1: But what some of the justices in the Court were
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  Speaker 1: really struggling with was how clear was it. Were individuals
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  Speaker 1: who work within those prisons really on notice that by
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  Speaker 1: signing up to work in the prison they might be
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  Speaker 1: suited for things like this.
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  Speaker 3: It seemed like a lot of the conservative justices didn't
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  Speaker 3: think that there was notice here. At one point, Chief
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  Speaker 3: Justice John Roberts said, it's a legal fiction to say
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  Speaker 3: that a prison guard knows what he's signing up for here.
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  Speaker 3: But the liberals, particularly Justice Sodo Mayor, said, when you
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  Speaker 3: sign up to work as a corrections official in a prison.
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  Speaker 3: Doesn't that mean you're signing up to obey the law?
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  Speaker 3: And you know, the act here was so obviously brutal, right,
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  Speaker 3: and the guard just tossed the notice he got from
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  Speaker 3: Landor into the trash.
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  Speaker 1: I agree with that, I think, and I think mister
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  Speaker 1: Landor has a very good argument here, right. So it's
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  Speaker 1: of course true, as the Chief Justice pointed out, that
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  Speaker 1: there's something of a legal fiction here, but that's you know,
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  Speaker 1: these legal fictions run throughout the law. We're all presumed
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  Speaker 1: to have knowledge and be aware of the contents of
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  Speaker 1: criminal law. You know, is any given person on actually
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  Speaker 1: aware of everything that's prohibited by federal or state criminal law? No,
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  Speaker 1: of course, not right. But ignorance of the law, even
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  Speaker 1: if actually true, we don't allow that ignorance of the
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  Speaker 1: law to be excuse to defy it, right. And so
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  Speaker 1: you know, just as Sodomayor's point here, which is echoed
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  Speaker 1: throughout the argument by mister Landor's council, is that, at
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  Speaker 1: least in this context where we're talking about people who
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  Speaker 1: sign up to work in a prison or a jail,
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  Speaker 1: these officers, we all the time presume they understand their
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  Speaker 1: obligations under federal law, under constitutional law, under state law,
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  Speaker 1: and they understand that if they violate those obligations, these
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  Speaker 1: demands that they protect our rights, that they might be
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  Speaker 1: sued for it. And again, I don't know there's any
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  Speaker 1: doubt in the case, and I think the state actually
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  Speaker 1: concedes that as a substantive matter, the state and its
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  Speaker 1: officers were bound to follow the demands of RELUPA. So
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  Speaker 1: then the only question is, well, is it different that
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  Speaker 1: they need to also know they knew they had to
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  Speaker 1: follow RELOOPA, they knew they could get sued under RELOOPA,
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  Speaker 1: they knew they could be held subject to junctive relief
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  Speaker 1: under LUPA. Do they also need to know that they
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  Speaker 1: can be sued for money under ALUOPA. Well, even if
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  Speaker 1: that's a separate question, I agree with mister Landor here,
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  Speaker 1: that's not a very hard one, because again, as soon
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  Speaker 1: as you're understanding that you might be sued as an individual,
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  Speaker 1: the normal recourse is that if you're found and violated
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  Speaker 1: the law, you might have to pay money damages.
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  Speaker 3: Coming up next, where might the justices come out in
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  Speaker 3: the case this is Bloomberg. The Supreme Court wrestle with
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  Speaker 3: whether a former Louisiana inmate can sue prison officials who
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  Speaker 3: cut off his dreadlocks in violation of his Rastafarian religious beliefs.
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  Speaker 3: The justices heard arguments in the case of Damon Landor,
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  Speaker 3: who wants to sue for money damages under a federal
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  Speaker 3: law designed to protect the religious rights of inmates. The
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  Speaker 3: court's three liberal justices seemed firmly on Landor's side, but
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  Speaker 3: the court short's conservatives seem skeptical. Justice Neil Gorsich led
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  Speaker 3: the court's conservative block at oral arguments in pressing the
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  Speaker 3: attorneys for Damon Landor on where the Corrections employees should
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  Speaker 3: be individually liable for contracts made between state institutions and
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  Speaker 3: the federal government under a religious liberty statute.
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  Speaker 4: Where did the defendant the individual defendants agree with the
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  Speaker 4: federal government to be bound and what notice did they have?
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  Speaker 4: And I understand your point earlier to the Chief that
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  Speaker 4: they're subject to state regulations.
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  Speaker 3: But Liberal Justice Katanji Brown Jackson said the statute was clear.
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  Speaker 7: So I guess I'm trying to understand how Congress could
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  Speaker 7: have said it any clearer. I mean, to the extent
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  Speaker 7: that we're puzzling over whether or not. There's a clear
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  Speaker 7: statement in the statute.
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  Speaker 6: You know, it says a.
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  Speaker 7: Person may assert a violation of this chapter as a
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  Speaker 7: claim or defense in a judicial proceeding and obtain appropriate
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  Speaker 7: relief against a government. If that doesn't refer to money
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  Speaker 7: damages being brought by an individual for a violation of LUPA,
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  Speaker 7: what could Congress have meant by appropriate relief here?
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  Speaker 3: I've been talking to John Neezer of Notre Dame Law School.
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  Speaker 3: Several justices pointed out that all the circuit courts and
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  Speaker 3: all the lower courts have ruled against Landor's position here.
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  Speaker 3: So why did the Supreme Court even take this case?
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  Speaker 3: I mean, there was no circuit split, and it doesn't
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  Speaker 3: seem like they took the case to reverse it.
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  Speaker 1: Yeah. I think there's a couple of reasons. So one,
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  Speaker 1: I think many of the justices questions overstated the level
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  Speaker 1: of that agreement. As I mentioned earlier, there's really two
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  Speaker 1: different legal questions in the case, which is, what does
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  Speaker 1: the law mean? You know, when it's said as appropriate relief?
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  Speaker 1: What is a properate relief in contacts? Would that be understated?
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  Speaker 1: Thing is, even if the law does allow money damages,
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  Speaker 1: can Congress do that in a law like this. So
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  Speaker 1: circuit courts have arrived at similar conclusions, which is that
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  Speaker 1: RELOPA doesn't allow damages, but they've done it through different paths,
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  Speaker 1: and in fact, several courts have found that no, in fact,
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  Speaker 1: the law is clear here that just like under RIFRA,
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  Speaker 1: appropriate relief does in fact include damages. It's a normal,
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  Speaker 1: expected remedy against an individual. And then you know, some
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  Speaker 1: of them then said, but as a constitutional matter, the
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  Speaker 1: court can't do that. They can't through spending legislation bind
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  Speaker 1: these sort of individual third parties who didn't you know,
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  Speaker 1: agree to the funds or something like that. And then
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  Speaker 1: some courts have come out differently on those questions. So
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  Speaker 1: although it's true that damages aren't available generally in federal
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  Speaker 1: courts under RELOUPA, I don't think there's a lot of
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  Speaker 1: agreement as to why. And then more to the point,
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  Speaker 1: this is an area where where the Supreme Court has
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  Speaker 1: recently providing more guidance. So under riffra, was you just
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  Speaker 1: mentioned this recent case Tanzen, You know, courts weren't necessarily
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  Speaker 1: getting that right idea that Riffra allowed monetary DAMA images.
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  Speaker 1: The Court came in and said no, no, no, we look
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  Speaker 1: at river for appropriate relief does include monetary damages against
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  Speaker 1: individuals as the normal recourse. That was a pretty recent decision,
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  Speaker 1: So now all around the country courts are having to
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  Speaker 1: rethink their older precedent. Oh is it still good law?
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  Speaker 1: Do I need to rethink it? After Tanzan and the
• 15:16
  Speaker 1: Court has stepped in to provide that clarity.
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  Speaker 3: Justice so do Mayor and some of the other liberal
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  Speaker 3: justices warned that ruling against land Or would potentially put
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  Speaker 3: dozens of other federal statutes at risk.
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  Speaker 1: Yeah, I certainly don't have a good read on just
• 15:32
  Speaker 1: how many statutes might look like this, or you know,
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  Speaker 1: maybe relatedly, just how many other interpretations of those statutes
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  Speaker 1: might be implicated in either way the Court goes. But
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  Speaker 1: I guess I would say that, and I think all
• 15:44
  Speaker 1: the justices acknowledged this. This would certainly not be the
• 15:47
  Speaker 1: first time that the Court had ruled that spending Clause
• 15:51
  Speaker 1: legislation allowed Congress to create the right of action for
• 15:57
  Speaker 1: monetary damages against third parties or individuals. So that wouldn't
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  Speaker 1: be sort of groundbreaking, you know, the extent to which
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  Speaker 1: Congress can do that, or the terms through which Congress
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  Speaker 1: must speak. I don't. Again, I don't think there's great
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  Speaker 1: clarity in the law on that now, So ruling in
• 16:14
  Speaker 1: either way in this case is going to help provide guidance,
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  Speaker 1: and I'm not sure that I have a strong sense
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  Speaker 1: of which side is right. That would be more disruptive
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  Speaker 1: to the law as it currently sits today.
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  Speaker 3: Were you surprised at the turn that this argument took.
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  Speaker 1: I don't know if I would say I'm surprised, you know,
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  Speaker 1: I think initially I think you started here actually in
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  Speaker 1: our conversation that there's a really strong argument, and I
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  Speaker 1: think good reason to believe that. Well, if RIFFRA through
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  Speaker 1: the exact same language passed by Congress for the exact
• 16:43
  Speaker 1: same reason to restore religious freedom. If RIFFRA allows monetary damages,
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  Speaker 1: it's very hard to understand how you know, it's its
• 16:50
  Speaker 1: sister statute RULUPA doesn't. But I think I understand the
• 16:54
  Speaker 1: complications in the case. You know, it's this it's this
• 16:57
  Speaker 1: ery Dykee question of what Congress must do when it
• 17:00
  Speaker 1: through different enumerated powers. So you know, riff as not
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  Speaker 1: spending clause legislation LUPA is they might require different things
• 17:07
  Speaker 1: of Congress. So I do think the case is harder
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  Speaker 1: than it might appear at first blush. But I also
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  Speaker 1: would hope that the court would ultimately align the reading
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  Speaker 1: of the two statutes, and it would be at least
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  Speaker 1: a somewhat unusual result if Riffer and Ralupa, these sister
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  Speaker 1: statutes passed for the same purposes, allowed different remedies, and
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  Speaker 1: it would leave people like mister Landor without any recourse
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  Speaker 1: to remedy what all agree was an egregious violation of
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  Speaker 1: his rights. And it would leave no ability to hold
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  Speaker 1: the individuals who literally threw away a copy of a
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  Speaker 1: court decision and to hold them accountable. And I think
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  Speaker 1: that would be regrettable certainly.
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  Speaker 6: Yeah.
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  Speaker 3: And one of the justices I don't remember which justice,
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  Speaker 3: asked at one point what happened to the guards who
• 17:50
  Speaker 3: did this? And the only answer was, well, the warden
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  Speaker 3: was transferred or left. So one wonders if there was
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  Speaker 3: any kind of punishment.
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  Speaker 1: Right, And you know, in our religous livery plink, we
• 18:01
  Speaker 1: filed an amigas brief in the case on behalf of
• 18:04
  Speaker 1: a variety of religious organizations was point this out, which
• 18:07
  Speaker 1: point out the danger if someone who's harmed can't get
• 18:10
  Speaker 1: monetary damages. There might be very few and perhaps no options,
• 18:14
  Speaker 1: no mechanisms available to hold these violators accountable. Because if
• 18:19
  Speaker 1: it's a one time thing and it's over and done with,
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  Speaker 1: and the court can't issue in order not to do
• 18:24
  Speaker 1: it because the violation has already occurred, well then what
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  Speaker 1: can you do? Right? You can scold, you can reprimand
• 18:30
  Speaker 1: the prison and the lower court did here, you know,
• 18:32
  Speaker 1: so really just criticized in a harsh language what had
• 18:36
  Speaker 1: happened to mister Orlando. But beyond that, it's very been
• 18:39
  Speaker 1: mechanism to hold these folks accountable.
• 18:41
  Speaker 3: So, I mean, this court has, you know, repeatedly sided
• 18:45
  Speaker 3: with religious litigants in recent years. I mean, you could
• 18:48
  Speaker 3: go through a lot of cases. But there's the Christian
• 18:51
  Speaker 3: football coach who got to pray at the fifty yard
• 18:54
  Speaker 3: line after games. The Christian web designer who was allowed
• 18:58
  Speaker 3: to refuse to work with same six couples, the Texas
• 19:02
  Speaker 3: death row inmate who got to pray with his pastor.
• 19:06
  Speaker 3: I mean, on and on. If the court doesn't find
• 19:09
  Speaker 3: for the inmate here the Rastafarian, is there a danger
• 19:15
  Speaker 3: that people will say, well, when conservative Christians come before
• 19:19
  Speaker 3: the court, their religious rights are vindicated, but this Rastafarian
• 19:25
  Speaker 3: inmate his are not.
• 19:27
  Speaker 1: People will certainly say it right. I think it's easy
• 19:31
  Speaker 1: to predict that that would be you know, one criticism
• 19:35
  Speaker 1: of the decision if it were to go that way,
• 19:38
  Speaker 1: you know, I don't think it would be accurate or fair.
• 19:41
  Speaker 1: I think the Court is serious and committed to protecting
• 19:45
  Speaker 1: religious freedom. It's a right that, as you just mentioned,
• 19:49
  Speaker 1: in a number of areas, the Court has you know,
• 19:51
  Speaker 1: taken a lot of cases to ensure that it's not
• 19:53
  Speaker 1: being diminished around the country. I think that's true even
• 19:58
  Speaker 1: if they were to rule against mister Landore in this case,
• 20:01
  Speaker 1: and again I think if they were to do so,
• 20:03
  Speaker 1: which would be regrettable, I don't think that would be
• 20:05
  Speaker 1: the right decision. But if the Court were to do so,
• 20:08
  Speaker 1: I think it would not come from any different approach
• 20:11
  Speaker 1: based on the religious background of the plaintiff, but rather
• 20:15
  Speaker 1: based on you know, some of these really difficult structural
• 20:19
  Speaker 1: questions about congressional authority the Court is grappling with. And
• 20:23
  Speaker 1: you know, I would just point out that that those
• 20:25
  Speaker 1: cases in this one provide, and the Court knows this
• 20:28
  Speaker 1: significant protections for all religions. You know, whether any given
• 20:34
  Speaker 1: climate is Christian or not, And certainly not all of
• 20:38
  Speaker 1: the plants in these prior cases have been Christian. There's
• 20:40
  Speaker 1: one just this past term where the lead plants are
• 20:43
  Speaker 1: Muslim families. So I don't think that would be an
• 20:45
  Speaker 1: appropriate reading of the case.
• 20:46
  Speaker 3: Now, I mean, do you have a feel for how
• 20:48
  Speaker 3: it's going to come out or you don't.
• 20:50
  Speaker 1: No, I don't have a feel. I mean, I think
• 20:52
  Speaker 1: this kind of goes back to what we were saying,
• 20:53
  Speaker 1: is like, I think it's a complicated case. I think
• 20:55
  Speaker 1: it's It was obvious to me that in the argument
• 20:58
  Speaker 1: a lot of the justices were really strung with how
• 21:01
  Speaker 1: to draw these lines and these concerns over notice and
• 21:04
  Speaker 1: keeping Congress from overstepping its enumerated powers, which is which
• 21:08
  Speaker 1: itself is a rights protecting idea typically, but with the
• 21:11
  Speaker 1: recognition that here is a seminal piece of legislation to
• 21:14
  Speaker 1: protect religious freedom, a piece of legislation in the Court
• 21:18
  Speaker 1: has repeatedly been sure to safeguard and uphold, and I
• 21:22
  Speaker 1: think there's real tensions with how best to weigh those
• 21:27
  Speaker 1: you know, competing sort of priorities of the court.
• 21:30
  Speaker 3: Yeah, I have to say that the case was so
• 21:33
  Speaker 3: egregious I mean, you have a prison guard tossing a
• 21:38
  Speaker 3: decision in the garbage, and then they forcibly hold him
• 21:42
  Speaker 3: down and cut off his dreadlocks. I thought they took
• 21:45
  Speaker 3: the case to reverse the court below and allow him
• 21:49
  Speaker 3: to sue for damages, especially considering how this court is
• 21:54
  Speaker 3: usually solicitous of religious litigants and the facts here. How
• 21:58
  Speaker 3: often do you have the plane if showing the law
• 22:01
  Speaker 3: to the defendant and the defendant just tossing it out,
• 22:05
  Speaker 3: you can't make these things up.
• 22:07
  Speaker 1: It would be Yeah. No, I mean, I agree, and
• 22:09
  Speaker 1: I think at the end of the day that the
• 22:10
  Speaker 1: simplest reading of the case is what you're saying. This
• 22:14
  Speaker 1: is a blatant violation of this man's rights. He doesn't
• 22:17
  Speaker 1: seem real. They literally threw away the decision. They handcuffed him,
• 22:21
  Speaker 1: they forcibly shaved him, and now the claim is brought
• 22:25
  Speaker 1: under a law that's nearly identical to him, that the
• 22:27
  Speaker 1: court just said allows lawsuits for damages like this. So
• 22:31
  Speaker 1: I agree. I think the easiest thing, simplest thing is yeah,
• 22:36
  Speaker 1: you take it to reverse and to make clear, Yes,
• 22:38
  Speaker 1: RALUPA is just like referra. It allows these damages. And
• 22:41
  Speaker 1: I think that's the right outcome. I do agree though
• 22:44
  Speaker 1: that from the argument it seems the court is certainly
• 22:46
  Speaker 1: struggling with more complications than that.
• 22:49
  Speaker 3: Well, it was great talking to you, John. We'll see
• 22:51
  Speaker 3: how the court comes out. That's Professor John Meser of
• 22:55
  Speaker 3: Notre Dame Law School coming up next. We'll tell you
• 22:59
  Speaker 3: what the Trump has meant told the Supreme Court about
• 23:02
  Speaker 3: its powers to send the military into Chicago. This is Bloomberg.
• 23:09
  Speaker 3: The Supreme Court is considering whether to let President Trump
• 23:12
  Speaker 3: deploy the National Guard to Chicago over the strong objections
• 23:17
  Speaker 3: of city and state officials. The case marks the first
• 23:21
  Speaker 3: time that the Supreme Court has been drawn into Trump's
• 23:24
  Speaker 3: effort to dispatch troops to democratic run cities where he
• 23:29
  Speaker 3: claims crime is rampant and where people are protesting his
• 23:33
  Speaker 3: immigration crackdown. President Trump's administration told the Supreme Court that
• 23:38
  Speaker 3: he could have sent active duty military troops to Chicago
• 23:42
  Speaker 3: to help enforce federal immigration laws, as he urges the
• 23:46
  Speaker 3: Court to instead let him deploy the National Guard. The
• 23:50
  Speaker 3: US Solicitor General John Sower told the court that the
• 23:53
  Speaker 3: president has sweeping discretion to dispatch the military forces of
• 23:58
  Speaker 3: his choosing to deal with domestic disturbances. A federal appeals
• 24:04
  Speaker 3: court decision refused to let Trump deploy the troops, agreeing
• 24:08
  Speaker 3: with Illinois officials that the federal government had failed to
• 24:12
  Speaker 3: show any evidence to justify the use of troops, even
• 24:17
  Speaker 3: giving substantial deference to Trump's claim that protests in Chicago
• 24:22
  Speaker 3: amounted to a rebellion or invasion that necessitated the use
• 24:27
  Speaker 3: of National Guard soldiers. Joining me is constitutional law expert
• 24:31
  Speaker 3: Harold Krant, a professor at the Chicago Kent College of Law.
• 24:35
  Speaker 3: So the Supreme Court has been thinking about this case
• 24:39
  Speaker 3: for since last month, and on October twenty ninth, the
• 24:44
  Speaker 3: justices asked whether regular forces refers to active duty troops.
• 24:49
  Speaker 3: First of all, explain why they're asking that.
• 24:52
  Speaker 8: The question is when the president can federalize the National Guard.
• 24:58
  Speaker 8: And under the prinit Statutes, there are two situations in
• 25:01
  Speaker 8: which the guards can be nationalized. The first is when
• 25:05
  Speaker 8: there's an act of rebellion, and some have claimed that
• 25:08
  Speaker 8: the government thinks that there is a rebellion going on
• 25:11
  Speaker 8: because of the activities against the border patrol and ice,
• 25:15
  Speaker 8: but most judges dismiss that as totally far fetched. And
• 25:19
  Speaker 8: the second is when there is the government cannot protect
• 25:25
  Speaker 8: or enforce federal law with regular forces. And so the
• 25:30
  Speaker 8: question is what does this phrase mean, And it's an
• 25:33
  Speaker 8: ambiguous phrase and there's been a disagreement about it for
• 25:37
  Speaker 8: a generation. And on one view, what the government says
• 25:41
  Speaker 8: is if there is any kind of pressure on federal
• 25:45
  Speaker 8: law enforcement, then the National Guard can be federalized. And
• 25:48
  Speaker 8: of course the pressure that they're referring to is the
• 25:52
  Speaker 8: challenges to ICE and the immigration agents. On the other hand,
• 25:57
  Speaker 8: the failure to force federal law with regular forces. Regular
• 26:03
  Speaker 8: forces might mean the military, in which case that's a
• 26:06
  Speaker 8: reference to the Insurrection Act, which in turn would say
• 26:09
  Speaker 8: that the only time you can federalize the National Guard
• 26:13
  Speaker 8: is when there is an insurrection and the military can't
• 26:17
  Speaker 8: do the job itself. So that's an extreme And there's
• 26:20
  Speaker 8: a middle position in which would say that the federal
• 26:23
  Speaker 8: government can only federalize the National Guard if general law
• 26:28
  Speaker 8: enforcement has broken down such that federal buildings, federal ICE
• 26:32
  Speaker 8: agents are in jeopardy of going about and doing their business.
• 26:37
  Speaker 8: So those are the three reads of those provisions. But
• 26:41
  Speaker 8: the idea of what regular forces mean is really key
• 26:45
  Speaker 8: and no one's answered, and obviously the Supreme Court is
• 26:48
  Speaker 8: troubled about that.
• 26:49
  Speaker 3: Chicago is arguing that it refers to the standing military,
• 26:56
  Speaker 3: not to immigration agents or civilians. So what does that mean.
• 27:01
  Speaker 8: I'm not sure that Chicago has made the more drastic
• 27:04
  Speaker 8: argument that says that regular forces means military. I think
• 27:08
  Speaker 8: what Chicago has argued is that the National Guard cannot
• 27:12
  Speaker 8: be federalized because there is no rebellion and because there
• 27:16
  Speaker 8: is no general failure of law enforcement. The federal agents
• 27:21
  Speaker 8: go about do their business. Littal buildings remain unscathed. So
• 27:25
  Speaker 8: they've just said, as a factual matter, the court here
• 27:28
  Speaker 8: held that there is no credibility to the court's position.
• 27:32
  Speaker 8: In fact, the court, I mean sorry, the Chicago ducked
• 27:35
  Speaker 8: the question of really what regular forces means that has
• 27:39
  Speaker 8: been raised by Amigas in the Supreme Court case, and
• 27:43
  Speaker 8: that would the narrow reading of Amigas or Meiki would
• 27:47
  Speaker 8: really help Chicago, And I don't think that they have
• 27:51
  Speaker 8: filed a supplemental briefing to join in.
• 27:55
  Speaker 3: So now the Solicitor General is saying that Trump could
• 28:00
  Speaker 3: have sent active duty military troops to Chicago to help
• 28:04
  Speaker 3: enforce federal immigration laws, and.
• 28:08
  Speaker 8: That could only be done under the Insurrection Act and
• 28:11
  Speaker 8: the Insurrection Act says, you know that there has to
• 28:14
  Speaker 8: be an invasion, and so you know, unless there's some
• 28:17
  Speaker 8: other novel reading of the Insurrection Act, regular forces cannot
• 28:20
  Speaker 8: be used for law enforcement absent in invasion. And by
• 28:25
  Speaker 8: no stretch of the imagination, have we had an invasion.
• 28:29
  Speaker 8: I guess President Trump might say the undocumented immigrants are
• 28:33
  Speaker 8: constituted an invasion, but I don't think that even the
• 28:36
  Speaker 8: Supreme Court would defer to that kind of reasoning.
• 28:39
  Speaker 3: I mean, what does it say that the court it's
• 28:42
  Speaker 3: on an X sort of expedited schedule, but not really expedited.
• 28:46
  Speaker 3: And in all this time, you know what's happened in
• 28:50
  Speaker 3: these cities, Chicago and Portland in LA. At one point,
• 28:54
  Speaker 3: the Trump administration was arguing to send the troops that
• 28:57
  Speaker 3: were supposed to be in LA to Portland. So I
• 29:01
  Speaker 3: guess there isn't an emergency in LA anymore. I mean,
• 29:04
  Speaker 3: does it seem inconsistent?
• 29:07
  Speaker 5: Yeah?
• 29:07
  Speaker 8: No, I think that the Supreme Court is very charchairity
• 29:10
  Speaker 8: of the President Trump's arguments with respect to the National Guard.
• 29:15
  Speaker 8: I don't think they like the idea of the standing
• 29:18
  Speaker 8: army in cities, and I think they're even skittish about
• 29:21
  Speaker 8: the National Guard and the statutory framework here seems very
• 29:27
  Speaker 8: much against the Trump administration. And we don't have rebellion,
• 29:30
  Speaker 8: we don't have an invasion, and there is very little
• 29:34
  Speaker 8: pressure on ordinary federal law enforcement, even if we don't
• 29:39
  Speaker 8: reach how to construe the term federal regular forces in
• 29:44
  Speaker 8: the National Guard Act.
• 29:46
  Speaker 3: But is the Supreme Court usually hesitant? This Supreme Court
• 29:51
  Speaker 3: to constrain the president's authority, thinking that you know, there
• 29:56
  Speaker 3: might be emergency situations where the president does have to act.
• 30:01
  Speaker 8: Well, there should be huge deference to the president if
• 30:05
  Speaker 8: there is an invasion or if there is a rebellion.
• 30:08
  Speaker 8: But if there is no colorable invasion or colorable rebellion,
• 30:13
  Speaker 8: that puts the Supreme Court in a bind. And I
• 30:15
  Speaker 8: think the Supreme Court members have not entered into this
• 30:18
  Speaker 8: fray yet because they're really torn about what to do.
• 30:22
  Speaker 8: And we're not seeing a kind of quick protection of
• 30:26
  Speaker 8: the administration that we have in context in terms of
• 30:28
  Speaker 8: discharging federal workers, cutting aid agreements, cutting grants, and so
• 30:34
  Speaker 8: on and so forth.
• 30:35
  Speaker 3: Trump has won the last twenty three cases that he
• 30:39
  Speaker 3: took to the Supreme Court, and the emergency docket.
• 30:43
  Speaker 8: It might be the first one might break the streak.
• 30:45
  Speaker 8: But I think everybody's watching the tariff case as well,
• 30:47
  Speaker 8: another sort of bell weather where it looks like the
• 30:50
  Speaker 8: justices may give a little pushback.
• 30:52
  Speaker 3: Let's turn to Snap benefits for a moment, though this
• 30:56
  Speaker 3: question could be over with the ending of the shut down,
• 31:00
  Speaker 3: but I think it's important to talk about the core
• 31:03
  Speaker 3: question here about the Snap benefits, where courts ordered Trump
• 31:09
  Speaker 3: to the Trump administration to pay the benefits, and the
• 31:12
  Speaker 3: Trump administration sent a message to states that were stepping
• 31:18
  Speaker 3: up and paying Snap benefits not to do it.
• 31:23
  Speaker 8: I'm actually just to shock you. I'm actually somewhat empathetic
• 31:26
  Speaker 8: to the Trump administration on this one.
• 31:28
  Speaker 1: I mean to dial back the clock.
• 31:30
  Speaker 8: The district court judge within the First Circuit made an
• 31:36
  Speaker 8: order to the Trump administration that said, you either have
• 31:39
  Speaker 8: to pay Snap benefits November in full, or you have
• 31:45
  Speaker 8: several days to make partial payment based upon the contingency fund.
• 31:50
  Speaker 8: The Trump administration agreed to pay all that was in
• 31:54
  Speaker 8: the contingency fund, which was about three quarters of the
• 31:57
  Speaker 8: Snap benefits for November, but it did so in a
• 32:01
  Speaker 8: kind of dilatorious way and said we can't meet the
• 32:04
  Speaker 8: deadline because it's too complicated. To figure out how to
• 32:08
  Speaker 8: make partial payments because of the arrangements and agreements we
• 32:11
  Speaker 8: have with the states. And so they chose to satisfy
• 32:17
  Speaker 8: the court order by making the partial payment from the
• 32:20
  Speaker 8: contingency fund as they could do, and they decided not
• 32:24
  Speaker 8: to use discretionary funds to make up for the deficit. Now,
• 32:30
  Speaker 8: what the court said then was you were moving too slowly.
• 32:35
  Speaker 8: You didn't you the government didn't meet the deadline, and therefore,
• 32:40
  Speaker 8: as an enforcement mechanism, we will require you to pay
• 32:44
  Speaker 8: the entire amount, basically transforming discretionary funds that the Department
• 32:50
  Speaker 8: of Agriculture had collected from tariffs into mandatory funding of
• 32:54
  Speaker 8: one program snap as opposed to other programs such as
• 32:58
  Speaker 8: nutrition for childs and infants. This is, you know, I think,
• 33:04
  Speaker 8: quite an intrusion into the general discretion of how the
• 33:09
  Speaker 8: Department of Agriculture should pay funds. And even the first
• 33:13
  Speaker 8: Circuit seemed to think that if you had a lawsuit
• 33:17
  Speaker 8: directed at the Department of Agriculture to require to use
• 33:20
  Speaker 8: its discretion in this particular way by paying for the
• 33:25
  Speaker 8: deficit in staff, that that lawsuit would be thrown out.
• 33:30
  Speaker 8: A court is non just disciple that basically the decision
• 33:33
  Speaker 8: of how to use discription rate funds is committed by
• 33:36
  Speaker 8: law to agency discretion. So only by using requiring the
• 33:41
  Speaker 8: payment of these discretionary funds as a remedy for the
• 33:45
  Speaker 8: government's tardy behavior in complying with the court ruling was
• 33:52
  Speaker 8: the court able to try to close the gap and
• 33:55
  Speaker 8: finalize the staff funding. So I think this is an
• 33:59
  Speaker 8: extra ordinary remedy acting. I think the government acted abominably
• 34:03
  Speaker 8: here in trying to withhold monies for the staff program.
• 34:08
  Speaker 8: But nonetheless, this court order seemed to overstep its bounds
• 34:12
  Speaker 8: in requiring that the full payment be made. Obviously, this
• 34:16
  Speaker 8: is putting pressure on Congress, and so this whole thing
• 34:18
  Speaker 8: maybe become mood quickly, but time still was remaining, so
• 34:22
  Speaker 8: we have to see.
• 34:23
  Speaker 3: How What about the Trump administration telling states, you know
• 34:28
  Speaker 3: you stop, stop what you're doing to pay snap benefits.
• 34:34
  Speaker 8: I think what the administration was doing was saying, we
• 34:37
  Speaker 8: can't guarantee you that if you pay more than the
• 34:40
  Speaker 8: if you fill the gap and pay more than the
• 34:42
  Speaker 8: contingency funds we have released, we won't guarantee that we'll
• 34:46
  Speaker 8: pay you back. And the government, federal government was right.
• 34:51
  Speaker 8: If some states have gone and paid full November staff benefits.
• 34:55
  Speaker 8: Others have paid zero. That's a state decision, and I
• 34:58
  Speaker 8: think the federal government was just telling them, you know, look,
• 35:01
  Speaker 8: if you do this and you pay more than the
• 35:04
  Speaker 8: what we've already agreed to pay, you're on the hook yourself.
• 35:08
  Speaker 8: And I think that's appropriate.
• 35:10
  Speaker 3: I mean, this was very important because this may be
• 35:12
  Speaker 3: one of the reasons why the Democrats caved the Snap.
• 35:17
  Speaker 8: It might be you know, obviously nobody wants to see
• 35:20
  Speaker 8: people go hungry, but ika at one point the Trump
• 35:23
  Speaker 8: of administration agreed that they would pay for November step
• 35:26
  Speaker 8: and then change their minds. And this changing the mind
• 35:30
  Speaker 8: I think infuriated the District court, which led to this
• 35:34
  Speaker 8: extraordinary remedy that the court imposed. The Supreme Court has
• 35:40
  Speaker 8: given an administrative stay, so we'll have to see how
• 35:42
  Speaker 8: this all plays out.
• 35:43
  Speaker 3: Thanks Hal. That's Harold Krant of the Chicago Kent College
• 35:46
  Speaker 3: of Law, and that's it for this edition of the
• 35:49
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• 35:52
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