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Etan Patz Murder Conviction Reinstated & Upcoming SCOTUS Cases · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law, with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Six year old Eton Pates was the first missing child
0:12
Speaker 2: to appear on Milk Carton's. His disappearance in nineteen seventy
0:16
Speaker 2: nine sparked a nationwide campaign to find missing children, but
0:21
Speaker 2: Pates was never found and his case went unsolved for
0:25
Speaker 2: more than a decade. It wasn't until twenty seventeen that
0:29
Speaker 2: Pedro Hernandez was convicted of his murder and kidnapping and
0:34
Speaker 2: sentenced to twenty five years to life in prison.
0:37
Speaker 1: But the case didn't end there.
0:39
Speaker 2: New York Capella courts affirmed his conviction, but last year
0:43
Speaker 2: the Second Circuit Federal Appeals Court reversed and ordered a
0:48
Speaker 2: new trial for Hernandez because of the way the trial
0:51
Speaker 2: judge had answered a question from jurors. But today the
0:55
Speaker 2: Supreme Court reversed the Second Circuit and reinstated the murder
0:59
Speaker 2: can against Hernandez, finding federal courts shouldn't second guess state courts.
1:06
Speaker 2: My guest is former Manhattan prosecutor and criminal defense attorney
1:10
Speaker 2: Paul Callen of counsel at Adelman and Adelman. Paul tell
1:14
Speaker 2: us about the disappearance of Eton Pates, the six year
1:18
Speaker 2: old was kidnapped off the streets of New York in
1:22
Speaker 2: nineteen seventy nine, and he became the poster child for
1:26
Speaker 2: missing children.
1:27
Speaker 3: I think to this day you're absolutely right about that.
1:30
Speaker 3: As a matter of fact, I think this case has
1:33
Speaker 3: altered child rearing in the United States permanently. You know,
1:37
Speaker 3: it used to be mom would send kids out the
1:40
Speaker 3: back door and say go play, come back for supper.
1:42
Speaker 3: Now the parents follow them around, follow them to the
1:45
Speaker 3: bus stop. They're all terrified the kids are going to
1:48
Speaker 3: be kidnapped. And it all started with Eton Pates, who
1:51
Speaker 3: was going to catch a bus to his school in
1:55
Speaker 3: Soho in New York, and he was kidnapped and apparently murdered.
2:00
Speaker 3: And only recently have we had a final resolution of
2:03
Speaker 3: the case in terms of who committed the murder. An
2:06
Speaker 3: individual named Hernandez, whose conviction was now reaffirmed by the
2:11
Speaker 3: Supreme Court.
2:12
Speaker 2: Tell us about the confession, because there were some troubling
2:14
Speaker 2: things about the confession.
2:16
Speaker 3: Yes there were. His brother in law reported to the
2:20
Speaker 3: police that Hernandez had confessed to the murder of Eton Pates.
2:25
Speaker 3: And of course Eton pates murder has been a very,
2:28
Speaker 3: very famous case throughout the United States ever since it
2:31
Speaker 3: happened back in nineteen seventy nine, long time ago. In
2:34
Speaker 3: any event, the brother in law reports to the police
2:37
Speaker 3: that his quote low IQ relative has confessed to the murder,
2:43
Speaker 3: and Camden County, New Jersey, police pick him up and
2:47
Speaker 3: they start questioning him, but they don't give him as
2:49
Speaker 3: Miranda warnings. He confesses that he was working in a
2:53
Speaker 3: bodega in Soho when Eton Pates came in to buy
2:57
Speaker 3: a drink as he was on his way to the stop,
3:00
Speaker 3: and that he murdered Eton Pates and disposed of the body,
3:05
Speaker 3: presumably throwing the body into a dumpster behind the deli.
3:09
Speaker 3: Full confession to the murder. The police, then, who have
3:13
Speaker 3: not given him his Miranda warnings, now say we should
3:16
Speaker 3: give him the Miranda warnings and videotape this confession. And
3:20
Speaker 3: that's exactly what they do. They give him Miranda warnings,
3:23
Speaker 3: videotape the confession, and then they call the District Attorney's
3:27
Speaker 3: office in New York and say, you better come out here.
3:29
Speaker 3: We have somebody confessing to the murder of Eton Pates. Now,
3:33
Speaker 3: this was a case that had gone cold for a
3:35
Speaker 3: long time, so obviously the Manhattan DIA's Office was very
3:39
Speaker 3: interested in that. Apparently, while all of this is going on,
3:43
Speaker 3: Hernandez also talks to his wife and his daughter Rosemary
3:47
Speaker 3: and Becky, and he confesses to both of them that
3:50
Speaker 3: he's in fact the person who killed Eton Pates. He's
3:54
Speaker 3: then picked up by the Manhattan DIA's Office taken back
3:57
Speaker 3: into New York, where he confesses again to the murder,
4:01
Speaker 3: this time again on videotape, so we now have two
4:04
Speaker 3: videotaped confessions. Later on, during pre trial proceedings, he meets
4:09
Speaker 3: with a psychiatrist. He confesses to the psychiatrist that he's
4:13
Speaker 3: the murderer, and while giving that confession, he also tells
4:16
Speaker 3: the psychiatrist that he admitted this to a prayer group
4:20
Speaker 3: at one point over the last twenty years. So by
4:22
Speaker 3: my count, I think he's confessed now seven times to
4:27
Speaker 3: the murder. All right, So the case goes to trial
4:31
Speaker 3: in New York. The first trial, by the way, ends
4:33
Speaker 3: in a hung jury. He's retried, and the second jury
4:38
Speaker 3: comes back with a jury question. And the jury question
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Speaker 3: is this, if he was not given his Miranda warnings
4:47
Speaker 3: properly and therefore did not voluntarily confess, is it okay
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Speaker 3: for us to consider the other confessions that occurred after this.
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Speaker 3: In substance, that was the question that was asked by
5:00
Speaker 3: the jury. The way they phrased it was, the jury said,
5:03
Speaker 3: do we have to disregard the subsequent confessions if the
5:08
Speaker 3: first confession was not voluntary? The judge says one word, no, okay, no,
5:15
Speaker 3: you don't have to disregard the subsequent confessions. And after that,
5:21
Speaker 3: the jury deliberates for another week and they find Hernandez
5:25
Speaker 3: guilty of the kidnapping and murder of Eton Pates. So
5:29
Speaker 3: that's the story in a nutshell up until we get
5:32
Speaker 3: to subsequent court decisions.
5:34
Speaker 2: And I want to note it was a five month
5:36
Speaker 2: long trial with sixty six witnesses, so it wasn't just
5:40
Speaker 2: based on that confession. So through the state, the state
5:44
Speaker 2: appellate courts affirmed the conviction, and then the federal appellate Court,
5:49
Speaker 2: the Second Circuit, in one hundred page opinion last year,
5:52
Speaker 2: reversed and ordered that he get a new trial. So
5:56
Speaker 2: what was their reversal based on.
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Speaker 3: The decision was based on the judge's instructions to the
6:03
Speaker 3: jury when they came back with a question, that question
6:07
Speaker 3: that I just repeated, do we have to disregard the
6:09
Speaker 3: subsequent confessions, where the judge just said no. That was
6:13
Speaker 3: the focus. It was a petition for habeas corpus, which
6:17
Speaker 3: you know is an elaborate procedure that happens in most
6:20
Speaker 3: serious criminal cases where an appeal has gone through the
6:23
Speaker 3: whole state system and the defendant is still in jailed.
6:27
Speaker 3: He keeps losing, and then he finally goes to federal
6:30
Speaker 3: court and says, my constitutional rights were violated. You the
6:34
Speaker 3: federal courts should order my release. And it's called a
6:37
Speaker 3: habeas corpus action. And there's been a law that's been
6:40
Speaker 3: passed making it very difficult to bring a habeas action
6:45
Speaker 3: because what was happening was every criminal case the United
6:47
Speaker 3: States is winding up in federal court, and the Supreme
6:50
Speaker 3: Court now in this case, makes specific reference to that
6:54
Speaker 3: particular law. It's called the Adeeper law that places limitations
6:59
Speaker 3: on habeas corpus. So when the Second Circuit, which is
7:03
Speaker 3: a federal court, and our bear in mind, this went
7:05
Speaker 3: to the Appellate Division in New York, the state court,
7:08
Speaker 3: they looked at it and they said, you know something,
7:10
Speaker 3: it's all right. The question of whether a confession is
7:14
Speaker 3: voluntary or involuntariory, by the way, is generally decided by
7:17
Speaker 3: a judge. It's not usually decided by a jury. And
7:20
Speaker 3: so the Appellate Division said, under New York law, the
7:24
Speaker 3: way this confession was evaluated was perfectly proper, okay. So
7:29
Speaker 3: then they go went to federal court with this, and
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Speaker 3: the second circuit looks at it, which is the appellate
7:34
Speaker 3: court on the federal side, after the district court looks
7:38
Speaker 3: at it first, and they say, well, we think there's
7:41
Speaker 3: a problem here. The judge should have explained in more detail,
7:46
Speaker 3: other than saying no to the jury, that there could
7:49
Speaker 3: be a problem with the confession, that there was insufficient
7:53
Speaker 3: what we call attenuation between the initial confession and the
7:58
Speaker 3: subsequent confession, which also gets us back to another rule,
8:03
Speaker 3: which is the Mitchell versus Siebert rule that came about
8:08
Speaker 3: when the cops were misusing Miranda warnings, and what they
8:12
Speaker 3: would do is they would bring you into the station,
8:15
Speaker 3: get you to confess to a crime, and after you
8:18
Speaker 3: gave the complete detailed confession, they'd walk out of the
8:22
Speaker 3: room and then they'd come back in and give you
8:24
Speaker 3: your Miranda warnings and say, by the way, that confession.
8:27
Speaker 3: Can you repeat that police for the record, and now
8:30
Speaker 3: they videotape your confession all right. Now, when the federal
8:33
Speaker 3: courts looked at this, they said, this is completely improper.
8:37
Speaker 3: It's an attempt to get around the Miranda warnings. And
8:40
Speaker 3: once somebody has been possibly coerced into giving a confession
8:44
Speaker 3: because they haven't heard the Miranda warnings, of course they're
8:47
Speaker 3: going to repeat the confession. So this Missouri Versus Sebert
8:50
Speaker 3: case said, basically, this is an improper method of administering
8:55
Speaker 3: the Miranda warnings and if it's done deliberately by the police,
8:58
Speaker 3: the confession has to be thrown out. So this comes
9:01
Speaker 3: up now in the Hernandez case, because does that violate
9:04
Speaker 3: the Missouri Versus Sebert rule. Well, the court in New
9:09
Speaker 3: York said no, there was no violation of that in
9:12
Speaker 3: our opinion. But when it goes over to the federal court,
9:15
Speaker 3: the federal court says, yes, there was a violation of that.
9:19
Speaker 2: So the Second Circuit reversed the conviction and ordered a
9:23
Speaker 2: new trial for Hernandez. But the Manhattan District Attorney's office
9:28
Speaker 2: took that decision to the highest court.
9:31
Speaker 3: The state, and this is very unusual. Now goes to
9:34
Speaker 3: the Supreme Court to try to get a conviction reinstated.
9:37
Speaker 3: You know, usually you see a defendant has been convicted
9:40
Speaker 3: going to the Supreme Court to get his case thrown out.
9:42
Speaker 3: This is the opposite. The prosecutor's looking for justice now.
9:45
Speaker 3: So now when they go to the Supreme Court, the
9:48
Speaker 3: Supreme Court says, no, there was no violation here because
9:52
Speaker 3: the state looked at it under state law. The administration
9:57
Speaker 3: of miranda warnings was done proper. There was proper attenuation,
10:02
Speaker 3: and that's a question for the judge, not the jury.
10:05
Speaker 3: The Seber case never said anything about jury instruction. So
10:10
Speaker 3: this is an overreach by the Second Circuit and there
10:13
Speaker 3: was no right for a habeas corpus to be brought here.
10:15
Speaker 3: So we're reinstating the conviction.
10:18
Speaker 2: Paul, Did the Supreme Court reverse because the Second Circuit
10:22
Speaker 2: didn't properly follow federal law or because state law should
10:26
Speaker 2: have applied here.
10:27
Speaker 3: Well, it's a complex question because they're saying that in
10:31
Speaker 3: this situation, the state had the right to evaluate whether
10:38
Speaker 3: there was a proper attenuation of the confession. In other words,
10:42
Speaker 3: whether the secondary administration of miranda warnings by the Manhattan
10:48
Speaker 3: DA and by the police violated New York law, and
10:53
Speaker 3: New York said, no, that doesn't violate our law. And
10:56
Speaker 3: in New York a jury can sometimes decide whether a
11:00
Speaker 3: confession is voluntary or not. Under federal law, that's generally
11:04
Speaker 3: a judge determination that's been made. So the Supreme Court,
11:09
Speaker 3: looking at this overall, said, well, we've looked at this,
11:14
Speaker 3: and there's no violation of federal law as it exists.
11:18
Speaker 3: And if there was a violation of state law, the
11:22
Speaker 3: state has already made a decision here that there was
11:25
Speaker 3: no violation of New York state law. So the federal
11:28
Speaker 3: government has no business interfering in how the State of
11:32
Speaker 3: New York interprets the administration of the Miranda warnings. And
11:36
Speaker 3: the confession is a voluntary confession. So it's kind of
11:40
Speaker 3: a question of how you evaluate due process under state
11:43
Speaker 3: and federal law on whether there's a conflict between the
11:47
Speaker 3: sovereign entities. And here the Supreme Court was saying, you know,
11:50
Speaker 3: there are certain things that we leave to the state,
11:52
Speaker 3: and the federal Habeas Corpus Act says we should leave
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Speaker 3: most of those things alone unless it's absolutely egregious violation
12:02
Speaker 3: of somebody's constitutional rights. And let's step back and look
12:06
Speaker 3: at this case. Tune. The guy confessed seven times to
12:10
Speaker 3: the murder, all right, So I think the Supreme Court
12:13
Speaker 3: was looking at it saying, well, you know, we're not
12:16
Speaker 3: worried about whether we have the right guy or not.
12:18
Speaker 3: We're just looking at some technicalities here. And the New
12:22
Speaker 3: York courts looked at those technicalities and said, there's no
12:25
Speaker 3: violation of New York law here, so we're not going
12:28
Speaker 3: to set it aside because there's no violation of federal law.
12:31
Speaker 2: I mean, the Second Circuit basically wanted the judge to
12:34
Speaker 2: start explaining to the jury a concurring opinion by Justice
12:39
Speaker 2: Kennedy in a case from more than twenty years ago.
12:41
Speaker 2: I mean, it just seemed ridiculous to put in legal terms.
12:44
Speaker 3: That's exactly what the Second Circuit said. And by the way,
12:49
Speaker 3: people should know this is what's called a per curiam
12:52
Speaker 3: decision by the Supreme Court, which means a decision by
12:56
Speaker 3: the court. We don't know who authored this opinion, but
12:58
Speaker 3: we do know that the three liberal justices on the
13:02
Speaker 3: Court voted against. So it was a six' to three
13:04
Speaker 3: decision by the.
13:05
Speaker 2: Court nothing from the liberals about why they were dissenting on.
13:09
Speaker 3: This very, unusual because you, know these procurium decisions are
13:14
Speaker 3: usually very very, short but this WAS i think an eleven, page,
13:17
Speaker 3: yeah very very detailed decision by the. Court and you
13:20
Speaker 3: would think that the three justices who were dissenting would
13:24
Speaker 3: have weighed in as to why they disagreed with the
13:27
Speaker 3: other six members of the. Court but, no they said.
13:29
Speaker 3: Nothing they just said we. Dissent SO i don't know
13:32
Speaker 3: what the basis of their descent would, be and we'll
13:34
Speaker 3: never know because this case is for all practical purposes.
13:38
Speaker 3: OVER i, mean it'll go back to The State court
13:40
Speaker 3: and the sentence will be reimposed and that'll be the
13:43
Speaker 3: end of it.
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Speaker 2: For all practical. Purposes if The Manhattan District attorney's officers
13:48
Speaker 2: had to retry this, CASE i, mean would they have
13:51
Speaker 2: been able to put together a case after all these.
13:54
Speaker 3: Years, well that was one of the things they raised
13:58
Speaker 3: in their. Briefs it's patently unfair to try to force
14:02
Speaker 3: us to retry a case as old as this case
14:06
Speaker 3: and to try to put it all. Together SO i
14:08
Speaker 3: think they would have had. Trouble but of, course on
14:10
Speaker 3: the other, hand the case primarily depends upon these, confessions
14:14
Speaker 3: and it's easy enough to put the confessions into, evidence you,
14:19
Speaker 3: know through the psychiatrist and through The camden police and
14:22
Speaker 3: through The MANHATTAN. Das, now if he's going to offer
14:26
Speaker 3: an insanity, defense, yeah that could take a lot of
14:29
Speaker 3: time to put In and you, know we don't know
14:31
Speaker 3: what would happen on a. RETRIAL i, mean the defense
14:34
Speaker 3: would reassess and figure out a new way to approach the,
14:36
Speaker 3: case to try to put an effective defense in. Play
14:39
Speaker 3: AND i will say, this defense attorneys were, very very
14:42
Speaker 3: adamant in saying he's innocent and this is a really
14:46
Speaker 3: terrible decision to reinstate this.
14:48
Speaker 2: Conviction, WELL i Remember Eton pates's parents were very unhappy
14:53
Speaker 2: when the Second circuit reversed the. Conviction as you might,
14:57
Speaker 2: expect it's been great having you on, Again.
14:59
Speaker 1: Paul thanks so.
15:00
Speaker 2: Much that's Former manhattan prosecutor and criminal defense Attorney Paul,
15:04
Speaker 2: callen turning now to upcoming decisions at The Supreme. Court
15:09
Speaker 2: tomorrow's starting at ten. Am The court is going to
15:11
Speaker 2: announce decisions in cases that have been. Argued the justices
15:16
Speaker 2: have seventeen cases left to decide before the term, ends
15:20
Speaker 2: which is usually at the end Of. June seven are
15:23
Speaker 2: high profile cases and four of them Involve President trump
15:28
Speaker 2: joining me is an expert in constitutional, Law Harold, krant
15:31
Speaker 2: a professor at The Chicago Kent college Of. Law how
15:35
Speaker 2: so many cases left in the last about week and
15:40
Speaker 2: a half of the, term among them the most high
15:43
Speaker 2: profile cases of the, term including for, example the birthright
15:47
Speaker 2: citizenship case Or trump's effort to fire a federal reserve.
15:51
Speaker 2: GOVERNOR i always hear, that, well these are complicated, cases
15:56
Speaker 2: and it takes, longer and there are more, concurrences and.
16:00
Speaker 1: But some of these cases date back To.
16:02
Speaker 2: December so my question, is are they waiting to issue
16:09
Speaker 2: all these important decisions together to try to diffuse the
16:13
Speaker 2: impact of any one.
16:14
Speaker 1: DECISION i think that's.
16:17
Speaker 4: PLAUSIBLE i, mean, obviously the springboard does tend to hold
16:20
Speaker 4: cases of great national importance towards the end so they
16:23
Speaker 4: can make their way into the. Night so that has
16:26
Speaker 4: been a. Tendency but, again if they want to mute
16:30
Speaker 4: some kind of reaction to their decisions being both Rogue
16:35
Speaker 4: trump administration Anti trump, administration bothering them together is not
16:39
Speaker 4: a bad. Strategy AND i think the way these cases
16:42
Speaker 4: lay out is very likely that don't be a.
16:44
Speaker 2: Split, Yeah so let's start with some of the most
16:47
Speaker 2: high profile birthright. Citizenship President trump's bid to roll back
16:52
Speaker 2: automatic birthright citizenship to babies with at least one parent
16:57
Speaker 2: who's A us citizen Or green.
16:59
Speaker 4: Card, well the issue is there is The Fourteenth amendment
17:04
Speaker 4: suggests that there is ciszenship to anybody born within the
17:08
Speaker 4: jurisdiction of The United, States and the question is what
17:10
Speaker 4: does jurisdiction. Mean but in terms of the, history in
17:13
Speaker 4: terms of helping interpreted The Fourteenth, amendment and in terms
17:16
Speaker 4: of a congressional statute that uses similar, language and The
17:20
Speaker 4: Supreme court precedent in The Long King arc decision of
17:24
Speaker 4: one hundred years ago or, so they all point to
17:27
Speaker 4: the direction that The trump administration is going to, lose
17:30
Speaker 4: and that we believe that anybody born within the territory
17:33
Speaker 4: of The United, states with certain defined exceptions such as
17:37
Speaker 4: The indian, tribes are. Citizens AND i can't believe The
17:41
Speaker 4: Supreme court is great from that in this.
17:43
Speaker 2: Case, well as you, say there's A Supreme court case
17:46
Speaker 2: directly on. Point all the federal courts who ruled on
17:49
Speaker 2: this found that the executive order runs against the citizenship
17:54
Speaker 2: clause as well as federal immigration. Law Supreme court, precedent
17:58
Speaker 2: and when this case was, argued to seem like justices
18:01
Speaker 2: across the ideological spectrum were dubious About trump's. Order so
18:06
Speaker 2: why didn't this decision come out?
18:08
Speaker 1: Fast?
18:08
Speaker 2: Then are we expecting some kind of narrowing or limited.
18:13
Speaker 5: INTERPRETATION i can't imagine it in this.
18:17
Speaker 4: Case so many other, CASES i can imagine a very
18:19
Speaker 4: limiting perspective that the court will. Take but this seems
18:22
Speaker 4: to be teed up as a Big trump. Loss AND
18:25
Speaker 4: i could be deceiving, myself but it seems like that's
18:28
Speaker 4: going to. Happen and, again as you pointed, out maybe
18:30
Speaker 4: the court decides it'll try to temper the, sting if you,
18:34
Speaker 4: will to The trump administration by combining this case with
18:37
Speaker 4: the one in which it looks more favorably upon What
18:40
Speaker 4: President trump was.
18:41
Speaker 2: Done, Okay so now another one that appears from the oral.
18:44
Speaker 2: Arguments we knew the answer To trump's effort to Fire
18:48
Speaker 2: Federal Reserve Governor Lisa cook over unproven mortgage fraud. Allegations
18:54
Speaker 2: so again oral, arguments it seemed like the justices, were you,
18:57
Speaker 2: know of one mind that he couldn't. Do tell us
19:01
Speaker 2: about the constitutional issue, Here.
19:03
Speaker 4: Well the constitutional issue is really two Full the first
19:08
Speaker 4: is if the president does not have the right to
19:11
Speaker 4: Remove Lisa kokuho's a federalizer, governor oft will then he
19:16
Speaker 4: has to find. Cause and The Supreme court has never
19:18
Speaker 4: defined what cause. Is and the cause in this case
19:23
Speaker 4: was the allegation of a mortgage fraud from seventy eight
19:27
Speaker 4: years ago something like, that Before Alisa cooke was a.
19:30
Speaker 4: Governor so there's really two three parts of this in
19:35
Speaker 4: which The court is not going to tackle all. Three
19:37
Speaker 4: one is what does cause? Mean we don't. Know does
19:40
Speaker 4: cause extend to conduct pre? Appointment we don't. Know my
19:45
Speaker 4: guess is it. DOES i agree with The trump administration in,
19:47
Speaker 4: that but also what kind of process is? Due and
19:52
Speaker 4: can it be? Reviewable so those are the three, issues
19:54
Speaker 4: AND i think The court will probably rule against The
19:58
Speaker 4: trump administration on the ground that at least there has
20:01
Speaker 4: to be an informal opportunity for the officer to give.
20:07
Speaker 4: First in this, case her side of the story that
20:10
Speaker 4: she did not engage in any kind of mortgage, fire
20:13
Speaker 4: she was not given that. Opportunity SO i think a
20:15
Speaker 4: narrow due process ruling can leave the officer in place
20:19
Speaker 4: and then leave for another. Day the very important decision
20:23
Speaker 4: about if we can only remove an officer for a,
20:25
Speaker 4: cause what is? Caused is it neglective? Duties is it wrong?
20:30
Speaker 4: Doing you, know what does it?
20:31
Speaker 2: Constitute so that case was argued In, january and now
20:35
Speaker 2: another case related though not the, same that was argued
20:40
Speaker 2: at the beginning Of, december is Where trump wants to
20:44
Speaker 2: Remove Rebecca Kelly, slaughter who's A Federal trade, commissioner despite
20:50
Speaker 2: a law that says commissioners can only be fired for specific.
20:54
Speaker 4: Reasons, yeah and this has been in the crosshairs of
20:56
Speaker 4: The trump. Administration this is part of the whole unitary
20:59
Speaker 4: executive movement saying that the president must be able to
21:02
Speaker 4: closely manage his subordinates in the executive, branch and the
21:07
Speaker 4: administration as several ball before him as, well has Attacked Humpery's,
21:11
Speaker 4: executor which Protected congress's decision to infect shield the some
21:16
Speaker 4: officers From matt will renewbal. Authority and so that's been
21:20
Speaker 4: a target for many. Administrations he picked the exact, target
21:24
Speaker 4: the Same Federal Trade commission that was in The Humphrey's executor.
21:27
Speaker 4: Decision AND i think the consensus is largely that The
21:31
Speaker 4: Supreme court will Overrule humphrey's executor at least in part
21:35
Speaker 4: of not in the hole and so giving The trump
21:38
Speaker 4: administration a big. Victory but the question in my mind
21:42
Speaker 4: is how far will the case. Go will they say
21:45
Speaker 4: all executive branch? Officials will they say all superior executive branch?
21:49
Speaker 4: Officials will they say only some with certain types of enforcement? Responsibilities,
21:55
Speaker 4: so for, instance there are executive branch agencies that engage in,
21:59
Speaker 4: acasion would their membership also have to be removable at
22:04
Speaker 4: will by the. President so the skull of where the
22:08
Speaker 4: president under The constitution Or article two must have this
22:12
Speaker 4: close authority to supervise subordinates is at stake. HERE i
22:16
Speaker 4: don't think the court will reach out to think about
22:19
Speaker 4: all of those, contexts but it will at least contain
22:22
Speaker 4: the decision will contain some hints about why The Federal
22:27
Speaker 4: Trade commission heads must be removable at will and what
22:31
Speaker 4: other similar agencies must be conformed in that same.
22:34
Speaker 2: Structure do you think that they might announce these two decisions?
22:39
Speaker 2: Together do you think that one is waiting on the.
22:41
Speaker 1: Other they.
22:43
Speaker 4: COULD i, mean there'll be a nice pair both because
22:45
Speaker 4: it's really about the same issue in different forms of
22:48
Speaker 4: the same, issue and one will probably go against the
22:52
Speaker 4: administration and one will go for the.
22:54
Speaker 2: Administration coming up more on the Upcoming Supreme court, decisions
22:59
Speaker 2: including a seeming divide on election day ballot. Deadlines you're
23:04
Speaker 2: listening To. Bloomberg tomorrow The Supreme court will be announcing
23:09
Speaker 2: decisions in argued. Cases there are seventeen cases left to
23:14
Speaker 2: decide before the justices leave for their summer. Vacations i've
23:19
Speaker 2: been talking To Professor Harold krent of The Chicago Kent
23:22
Speaker 2: college Of. Law how let's turn now to The court's
23:26
Speaker 2: decision about A mississippi law that allows mail in ballots
23:30
Speaker 2: to be counted as long as they arrive within five
23:33
Speaker 2: business days of election. Day as many as twenty nine
23:37
Speaker 2: states have similar.
23:38
Speaker 4: Laws so the issue is When congress has designated election
23:43
Speaker 4: day as the First tuesday after the Second, monday IF
23:46
Speaker 4: i remember correctly In, november what does that? Mean can
23:50
Speaker 4: you then count votes after election day? Itself unless all
23:53
Speaker 4: the votes be tallied by election? Day and obviously In
23:58
Speaker 4: mississippi and twenty twenty in The pandemic allowed for counting
24:02
Speaker 4: ballots after election, day as does over half the. States
24:07
Speaker 4: and so it's a really interesting vote Because mississippi is
24:10
Speaker 4: A republican state and it's the one that's going against
24:12
Speaker 4: The trump. Administration and it's interesting in addition because of
24:17
Speaker 4: the fact that if you think of, federalism this is
24:20
Speaker 4: a effort really to limit the rights of the states
24:23
Speaker 4: visa via the federal. Government so it's some odd shiging
24:26
Speaker 4: betfellows in this. Case BUT i think it's just a
24:31
Speaker 4: kind of a more narrow focus on what does election
24:33
Speaker 4: day mean and do we need to have decisions or
24:37
Speaker 4: votes counted at least by election, day if not decisions
24:41
Speaker 4: in order to conform to What congress had in mind
24:44
Speaker 4: by saying there should be one election day in the.
24:46
Speaker 2: Country during the oral, arguments The Chief justice And Justice
24:51
Speaker 2: barrett raised some questions, about, well if we don't allow
24:54
Speaker 2: these late arriving, ballots does that have an effect on early,
24:58
Speaker 2: voting because early voting it's before the date That congress, said.
25:03
Speaker 4: Yeah it. DEPENDS i think they could get around that
25:05
Speaker 4: by saying that election day means votes have to be,
25:08
Speaker 4: tallied as opposed to saying that it's not a prohibition
25:12
Speaker 4: on votes being tallied, beforehand at least some. Votes SO
25:17
Speaker 4: i think there is a distinction. There but you, know
25:19
Speaker 4: you could say that a broad definition of election day
25:23
Speaker 4: would really limit the discretion of the states to have
25:27
Speaker 4: early voting and late. Voting and, again think about military,
25:30
Speaker 4: voting voting during. Wars we've never been able to count
25:34
Speaker 4: all the votes on election day because you, know individuals
25:37
Speaker 4: in our country are dispersed for work for military reasons and.
25:41
Speaker 4: Others so it's very it's a practical. Matter it's a
25:44
Speaker 4: very important, decision but one in which it's right NOW
25:47
Speaker 4: i think too close to.
25:48
Speaker 2: Call, yeah maybe a division down ideological, lines Which i'm
25:52
Speaker 2: expecting several of.
25:54
Speaker 4: Those tradition in this case is it will not be
25:57
Speaker 4: strictly on ideological, lines BECAUSE i think think the issues
26:00
Speaker 4: really do cut across the ideological.
26:02
Speaker 1: Spectrum, okay we shall, See, yes we.
26:05
Speaker 3: Will.
26:06
Speaker 2: Won't we won't place a bed on, it but we'll.
26:08
Speaker 2: See so, now there are federal caps that limit spending
26:13
Speaker 2: by political parties in coordination with. Candidates have The conservatives
26:17
Speaker 2: on The Supreme court ever found a restriction on campaign
26:21
Speaker 2: contributions that they agreed.
26:24
Speaker 4: WITH i think this one will be decided on ideological.
26:27
Speaker 4: Grounds and obviously the idea that money is speech resonates
26:34
Speaker 4: greatly with a certain ideological part of The Supreme, court
26:37
Speaker 4: it is. United and here in this, case they're looking
26:41
Speaker 4: at what's called political coordinated, spending whether the political parties
26:45
Speaker 4: can coordinate with the campaigns of various individual candidates to
26:49
Speaker 4: evade the limits set By. Congress and so this really
26:53
Speaker 4: at the heart is Can congress limit at all the
26:57
Speaker 4: types of expenditures that are made to influence Campaigns democrats
27:00
Speaker 4: work For, republicans and obviously The democrats would benefit from
27:05
Speaker 4: this as well if the caps are, sprinking though what
27:07
Speaker 4: they have not attacked the theory in this particular.
27:10
Speaker 2: Case why with campaign finance contributions is It republicans that
27:15
Speaker 2: want to get rid of them And democrats that want
27:17
Speaker 2: to keep.
27:18
Speaker 4: THEM i think it's a sense that even Though democrats would,
27:21
Speaker 4: benefit they know that they need to be sort of
27:23
Speaker 4: consistent with their, base and their base tend to be smaller,
27:29
Speaker 4: donors at least that's perceived to be the, case even
27:32
Speaker 4: if it's not, true and so they want to be
27:35
Speaker 4: seen as people not wanting big money to rule. Everything
27:39
Speaker 4: and that's a message that resonates with at least a
27:42
Speaker 4: large segment Of democratic.
27:43
Speaker 2: Voters let's turn out to transgender issues in, sports state
27:49
Speaker 2: laws In idaho And West virginia ban transgender girls and
27:53
Speaker 2: women from competing on female athletic. Teams AND i mean
27:57
Speaker 2: there are twenty seven states with similar laws. Us the
28:00
Speaker 2: arguments on both sides of this, case.
28:03
Speaker 4: SURE i, mean the apartments of the band say that
28:05
Speaker 4: this is a violation both With title, nine which limits
28:09
Speaker 4: the kinduct of any kind of school district that accepts
28:12
Speaker 4: federal money and violates the Equal protection clause of The.
28:16
Speaker 4: Constitution so it's an echo of the case that The
28:19
Speaker 4: Supreme court decide just recently In, scrimmette when the case
28:22
Speaker 4: rejected similar claims Against tennessee's ban on hormone treatment for.
28:28
Speaker 4: Minors in this, case though it's participation in sporting events
28:31
Speaker 4: in high, school people have more of a visceral reaction to,
28:34
Speaker 4: IT i think than the, use for, instance of different.
28:37
Speaker 4: Bathrooms AND i think that The conservatives will probably when
28:43
Speaker 4: on this one on the theory that there's at least
28:45
Speaker 4: a rational basis for school districts to, decide either because
28:49
Speaker 4: of safety or because of, fairness not to allow trans
28:54
Speaker 4: kids on women's, streams but to allow trans kids on men's.
28:58
Speaker 4: Teams is obviously a lack of. Cemit but then the
29:01
Speaker 4: only WAY i think for The challenges to win is
29:04
Speaker 4: if they get some kind of increased protection due to
29:07
Speaker 4: the claim either that this is masquerade of sex, discrimination
29:12
Speaker 4: that this is like The title seven case in Boss,
29:15
Speaker 4: stock because where The Supreme court held that any kind
29:18
Speaker 4: of discrimination on the basis of appearance or gender or
29:22
Speaker 4: being trans it was a violation Of title. Seven though you,
29:26
Speaker 4: Know justice score such signal that he've Viewed title nine
29:29
Speaker 4: differently The title seven that even though they were modeled
29:31
Speaker 4: on the same. Thing so you, know the question really
29:35
Speaker 4: IS i think most people have a consensus that this
29:37
Speaker 4: would pass any kind of rational basis. Test but if
29:41
Speaker 4: the scrutiny gets more, strict then it's more difficult to
29:44
Speaker 4: justify the. Ban and we don't have good statistics on
29:48
Speaker 4: what is the risk of having trans kids play on
29:51
Speaker 4: high schools sports. Teams we don't know. Them then the
29:54
Speaker 4: risks are more, theoretical and so of any kind of
29:57
Speaker 4: heightened attention that is paid WOULD i think result in
30:02
Speaker 4: a victory for the challengers not protecting. That but that
30:06
Speaker 4: would be the case if the scrutiny is.
30:09
Speaker 2: Raised the woman in The idaho case try to get
30:12
Speaker 2: the case drop because she was no longer. Competing idaho
30:16
Speaker 2: didn't want the case. Dropped in The West virginia, case
30:19
Speaker 2: there was an argument that the young woman had puberty,
30:24
Speaker 2: blockers so she never really had those hormones that would
30:28
Speaker 2: have given her an edge male. Hormones you, KNOW i
30:31
Speaker 2: wonder if that they're not going to get that deeply
30:34
Speaker 2: into it and just base the decision on the plaintiffs being.
30:38
Speaker 5: Transgender, yeah you, Know my sense from looking at the
30:41
Speaker 5: transcript oral argument is that The court could get rid
30:44
Speaker 5: of this case as you, suggest but unlikely to The
30:47
Speaker 5: court seems to want to address these, issues just as
30:51
Speaker 5: it Did inscrammtti last term and sort of widen the
30:56
Speaker 5: areas in which states that they so choose can rule
31:00
Speaker 5: against transkit.
31:02
Speaker 4: Equality that's my. Sense but there are the seats there
31:06
Speaker 4: that The court wants to. Ducket it can duck it,
31:09
Speaker 4: in probably with a good face.
31:12
Speaker 1: If it doesn't duck.
31:13
Speaker 2: It this is one of the cases WHERE i, SAY
31:15
Speaker 2: i will fall off my chair if they actually rule
31:20
Speaker 2: in favor of transgender, rights because since the Boss stock,
31:22
Speaker 2: case they have ruled consistently against transgender rights AND lgbtq.
31:28
Speaker 1: RIGHTS i, mean it's just pretty.
31:30
Speaker 4: Obvious, Yeah Boss stock was the high, point if you,
31:34
Speaker 4: will a pinnacle of protection for people WERE lgbt and
31:38
Speaker 4: trans and there has been a starting decline after, that
31:43
Speaker 4: AND i predict that that trend will.
31:46
Speaker 1: Continue so then we Have.
31:48
Speaker 2: Bayer the company says that federal regulators didn't require a
31:52
Speaker 2: cancer warning and so state regulators shouldn't have been allowed
31:57
Speaker 2: to require a cancer warning. Either this is only about
32:02
Speaker 2: one suit involving failure to, warn but there are so
32:06
Speaker 2: many suits Against.
32:07
Speaker 4: BAYER i think it's about sixty. Thousand so under The
32:11
Speaker 4: Federal Regulation, statute it seems that THE fda, decides you,
32:15
Speaker 4: know what is safe what is not, safe and has
32:18
Speaker 4: only approved warnings or not warnings on. Labels of this, Case,
32:22
Speaker 4: roundup which is a well known what's a well known
32:25
Speaker 4: a bunch of side which obviously had bad repercussions and
32:29
Speaker 4: it leads to. Cancer and so the question is that
32:32
Speaker 4: could states or learn About roundup without any kind of federal.
32:36
Speaker 4: Blessing and you, KNOW i think here the administration is
32:41
Speaker 4: on a pretty strong ground to have some kind of
32:43
Speaker 4: uniform regulation that you, know to have rather up being
32:46
Speaker 4: okay in one state or have a warning in one
32:49
Speaker 4: state and not in the. Other and what about, runoff you,
32:51
Speaker 4: know in terms of the, environment is not a kind
32:54
Speaker 4: of crazy way to think about regulation that seems to
32:58
Speaker 4: need a uniform or. Approach so it's the federal regulation
33:03
Speaker 4: From congress that's at least directed From, congress seems to
33:07
Speaker 4: contemplate one size fits all regulation of any chemicals coming
33:11
Speaker 4: within the purview of this particular regulatory. Scheme and SO
33:16
Speaker 4: i think that on, average again we're going to have
33:18
Speaker 4: to see a SPLIT i think in ideological leanings amongst the.
33:22
Speaker 4: JUSTICES i think there'll be a coalition both of conservative
33:26
Speaker 4: and liberal judges going both. Ways but IF i had to,
33:29
Speaker 4: PREDICT i would predict that the federal government would win
33:32
Speaker 4: as against the, states simply because it seems that this
33:37
Speaker 4: regulatory scheme is focused on the need for, uniformity and
33:41
Speaker 4: in this, case THE fda did not require any kind
33:44
Speaker 4: of more stringent regulation around up despite what we unfortunately
33:48
Speaker 4: have found out is about its true. Costs so the
33:51
Speaker 4: interesting thing about these cases is we're not going to
33:53
Speaker 4: see UNIFORM i think ideological bands of the court AND
33:56
Speaker 4: i don't think we're going to see Uniform trump administrational.
33:59
Speaker 4: Wins are they going to be a mixed, set and
34:03
Speaker 4: then we'll have to see in each particular case on
34:05
Speaker 4: how the court, resolves.
34:07
Speaker 2: And we will see that starting tomorrow at. Ten thanks
34:11
Speaker 2: so much for getting us ready for what's coming. Up
34:14
Speaker 2: how That's Professor Harold crant of The Chicago Kent college Of.
34:18
Speaker 2: Law and that's it for this edition Of The Bloomberg Law.
34:20
Speaker 2: Show remember you can always get the latest legal news
34:23
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34:27
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