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The Week in Law: Transgender Athletes, Big Oil & ICE Officer Immunity · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:08
Speaker 2: The Supreme Court's conservative majority signaled it's likely to deal
0:13
Speaker 2: another blow to LGBTQ rights by upholding state laws barring
0:18
Speaker 2: transgender girls and women from playing on female school athletic teams.
0:24
Speaker 2: Conservative justices like Samuel Alito and Brett Cavanaugh directed skeptical
0:29
Speaker 2: questions at the lawyers for the transgender athletes who are
0:33
Speaker 2: challenging laws in Idaho and West Virginia as violating the
0:37
Speaker 2: Constitution and Title nine.
0:40
Speaker 3: There are an awful lot of female athletes who are strongly
0:46
Speaker 3: opposed to participation by trans athletes and competitions with them.
0:53
Speaker 3: What do you say about them? Are they bigots? Are
0:58
Speaker 3: they diluted in things thinking that they are subjected to
1:01
Speaker 3: unfair competition?
1:03
Speaker 4: I hate hate that a kid who wants to play
1:07
Speaker 4: sports might not be able to play sports.
1:09
Speaker 5: Hate that, but we have. It's kind of a zero
1:16
Speaker 5: sum game for a lot of teams, and someone who
1:22
Speaker 5: tries out and makes it who is a transgender girl
1:28
Speaker 5: will bump from the starting lineup, from playing time, from
1:32
Speaker 5: the team from the all league, and those things matter
1:35
Speaker 5: to people big time will bump someone.
1:39
Speaker 2: Else The Court has repeatedly ruled against transgender rights in
1:44
Speaker 2: recent years, upholding a state's ban on gender affirming care
1:48
Speaker 2: for transgender youth and allowing President Trump to kick transgender
1:53
Speaker 2: people out of the military and to block passport sex
1:57
Speaker 2: markers that align with gender idea. In light of what
2:01
Speaker 2: seems like an inevitable decision, several justices, including Kavanaugh, repeatedly
2:08
Speaker 2: asked whether a decision in favor of the state bans
2:11
Speaker 2: on transgender athletes would have any effect on challenges to
2:15
Speaker 2: state laws that permit transgender athletes to participate on female
2:20
Speaker 2: teams and.
2:21
Speaker 4: Those states who do allow it, are they is your
2:25
Speaker 4: position that they are violating the Constitution the Equal Protection
2:30
Speaker 4: Clause rights of biological.
2:34
Speaker 5: Girls and women by allowing that.
2:36
Speaker 4: Or do you say that's up to each state to
2:39
Speaker 4: decide and that the Constitution gives discretion to the state
2:45
Speaker 4: whether to allow it or not to allow it.
2:48
Speaker 2: My guest is David Cole, a professor at Georgetown Law
2:52
Speaker 2: and the former National Legal Director of the ACLU. David,
2:56
Speaker 2: let's start with the big question. After listening to these
2:59
Speaker 2: or arguments, does it seem like the justices are going
3:03
Speaker 2: to uphold these state laws that ban transgender athletes.
3:08
Speaker 6: Well, I think the pretty broad consensus of those who
3:11
Speaker 6: listen to the arguments is that they will uphold these laws.
3:16
Speaker 6: I think going in that was also the broad consensus,
3:20
Speaker 6: and I don't think the arguments really changed that assessment.
3:23
Speaker 6: I think they showed the justices, you know, dealing seriously
3:27
Speaker 6: with the implications of how they rule. But I would
3:32
Speaker 6: be surprised if they don't uphold the laws.
3:35
Speaker 2: What legal question do you think the decision will turn on?
3:39
Speaker 2: I mean, there were all kinds of questions about the
3:41
Speaker 2: difference between boys and girls on the basis of sex
3:44
Speaker 2: and where the science is. I mean, what do you
3:47
Speaker 2: think it will turn on?
3:48
Speaker 6: Well, that's the rub. There are many different ways that
3:51
Speaker 6: the court could resolve these cases, including by declaring that actually,
3:56
Speaker 6: because there's a lot of uncertainty and a lot of
3:59
Speaker 6: competing scientific evidence that the states have sought to sort
4:05
Speaker 6: of insert into the record after the district court proceedings
4:09
Speaker 6: were over through ameks briefs and by citing to you know,
4:12
Speaker 6: public reports and the like, those have not been tested
4:16
Speaker 6: and so to the extent that the resolution of the
4:18
Speaker 6: case requires a decision about the factual question of to
4:22
Speaker 6: what extent to transgender athletes who have taken puberty blockers
4:28
Speaker 6: or hormone therapy still have some sort of sex based
4:31
Speaker 6: advantage over cisgender women. That's really something that ought to
4:36
Speaker 6: be sent back to the lower courts, not something that
4:39
Speaker 6: this court should be deciding. Because most of the evidence
4:42
Speaker 6: that the States are relying on post dates the trial
4:46
Speaker 6: and the hearings that were involved in these cases.
4:49
Speaker 2: There was a lot of discussion about athletics being different
4:53
Speaker 2: and about the Javits Amendment tell us about the questions
4:57
Speaker 2: that were raised.
4:59
Speaker 6: Two questions in the cases. One is whether excluding a
5:03
Speaker 6: transgender woman from the women's team violates Title nine of
5:08
Speaker 6: the Civil Rights Act, which requires institutions that receive federal
5:13
Speaker 6: funding not to discriminate on the basis of sex. But
5:19
Speaker 6: the Javits Amendment recognized that sports are different in general,
5:25
Speaker 6: and that therefore there can be men's and women's teams.
5:30
Speaker 6: You can have, you know, certain sports have only a
5:33
Speaker 6: men's team, like football. Often other sports can have only
5:37
Speaker 6: a women's team. Sometimes schools have only a women's volleyball team,
5:41
Speaker 6: or only a women's cross country team, or what have you.
5:45
Speaker 6: As long as the overall opportunities are equally available to
5:48
Speaker 6: all that Congress said was permissible. So under Title nine,
5:53
Speaker 6: Congress sort of blessed sex segregation of sports as not
5:59
Speaker 6: constituting sex discrimination in general, as long as equal opportunities
6:04
Speaker 6: are provided to all. But what this case presents is
6:07
Speaker 6: what happens when you've got a situation where a transwoman
6:12
Speaker 6: is denied the ability to participate in women's sports because
6:17
Speaker 6: she was identified male at birth and can't participate on
6:21
Speaker 6: the men's team either without denying who she is. That's
6:24
Speaker 6: a serious harm, and that might well constitute discrimination under
6:29
Speaker 6: Title nine. That's the argument. And then there's a separate
6:33
Speaker 6: legal question in the cases, which is whether, under the
6:36
Speaker 6: Equal Protection Clause as a constitutional matter, is it constitutional
6:41
Speaker 6: to divide up teams by sex and then to exclude
6:46
Speaker 6: trans women from the women's teeth. And on that issue, again,
6:51
Speaker 6: sports might be different in the sense that the court
6:54
Speaker 6: might say, well, there are real differences between men and
6:58
Speaker 6: women that justify having separate women's and men's teams in general.
7:04
Speaker 6: And indeed, the challengers don't dispute that, yes, of course
7:07
Speaker 6: you can have men's and women's teams, but as applied
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Speaker 6: to transgender women who have eliminated any sex based advantage
7:17
Speaker 6: that they might have by virtue of being biologically male,
7:21
Speaker 6: by taking puberty blockers, by taking hormone therapy, by reducing
7:26
Speaker 6: their testosterone levels to the average level that women have.
7:30
Speaker 6: At that point, it's not clear that the state's interest
7:34
Speaker 6: in having a separate women's team justifies keeping that person
7:40
Speaker 6: off of the women's team because she has eliminated any
7:43
Speaker 6: sex based advantage that she would have. And it's only
7:46
Speaker 6: that category that the plaintiffs are arguing have a constitutional
7:51
Speaker 6: right to participate, not all transgender women, but only those
7:55
Speaker 6: who can demonstrate that they actually don't have any sex
7:58
Speaker 6: based advantage that they are simply situated to the other
8:01
Speaker 6: women on the women's team.
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Speaker 2: It seemed to me like the intent of the three
8:05
Speaker 2: liberal justices, mindful of the trend of rulings against transgender rights,
8:13
Speaker 2: that their intent was to try to marshal support for
8:15
Speaker 2: a very narrow decision.
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Speaker 6: Well, I think there certainly is concern that this decision
8:21
Speaker 6: not preclude or pretermit challenges to other kinds of laws
8:26
Speaker 6: that treat trans people differently. I think you've got some
8:30
Speaker 6: of that concern not just from the liberal justices, but
8:33
Speaker 6: from some of the conservative justices as well, just as
8:36
Speaker 6: Kavanaugh expressed concern what about the Blues states. You know,
8:40
Speaker 6: about half the states permit trans women to participate in
8:44
Speaker 6: women's sports, and some have argued that that's unconstitutional, that
8:49
Speaker 6: that violates Title nine, that you can only do it
8:52
Speaker 6: one way. And he seemed to be concerned about the
8:56
Speaker 6: implications of this case for that kind of policy. Seemed
8:59
Speaker 6: to want to leave it to the legislatures of the states,
9:02
Speaker 6: and if they want to allow trans women, fine, If
9:06
Speaker 6: they don't, that would be fine too. Whereas the Trump
9:09
Speaker 6: administration has taken the position trans women should basically not exist,
9:14
Speaker 6: but they certainly should not be participating in women's sports.
9:18
Speaker 6: And it is illegal for a state to even permit
9:22
Speaker 6: trans women to participate, even where those women have no
9:27
Speaker 6: sex based advantage, because they've eliminated those advantages. So I
9:31
Speaker 6: think they're thinking about those consequences.
9:34
Speaker 2: So the boss Stock case was the last time that
9:36
Speaker 2: transgender advocates won at the Supreme Court, but the Chief
9:41
Speaker 2: Justice was quick to say this isn't that case. He said,
9:44
Speaker 2: the question here is whether or not a sex based
9:46
Speaker 2: classification is necessarily a transgender classification. How far is the
9:52
Speaker 2: Justice is stepping back from the boss Stock case.
9:56
Speaker 6: They haven't stepped back from the boss Stock case yet.
9:59
Speaker 6: I Mean, what the the Bosstoc case said was that
10:01
Speaker 6: when in the employment context, when an employer fires someone
10:05
Speaker 6: because they are transgender, that is sex discrimination. That treating
10:10
Speaker 6: someone differently because of their sex assigned at birth and
10:13
Speaker 6: their gender presentation is a form of sex discrimination. I
10:19
Speaker 6: think in this case they're not going to have to
10:21
Speaker 6: address Bostock because the State argues, we're not actually targeting
10:27
Speaker 6: trans people in any formal way. We're not saying, as
10:32
Speaker 6: the employer did in the Bostock case, I won't hire
10:35
Speaker 6: any trans person. What we are saying is that we
10:40
Speaker 6: are dividing up the teams by birth sex. So those
10:44
Speaker 6: people who were designated male at birth are on the
10:47
Speaker 6: men's team, those people who are designated female at birth
10:50
Speaker 6: are on the women's team, and we exclude from the
10:54
Speaker 6: women's team anyone who was designated male at birth, whether
10:58
Speaker 6: today they present as a and are what we call
11:01
Speaker 6: a cistgender man, or whether today they present as a
11:04
Speaker 6: woman and are what we call a transgender woman. And
11:08
Speaker 6: so the States argument is that they're not actually discriminating
11:12
Speaker 6: on the basis of trans status. Itself. Now we all know,
11:16
Speaker 6: of course, this was driven by trans women athletes in particular,
11:21
Speaker 6: and by a whole set of assumptions about trans women
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Speaker 6: athletes that are not true. As to many trans women athletes,
11:29
Speaker 6: that they have this extraordinary advantage over other women. Some do,
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Speaker 6: But the case was brought by those who, through medical intervention,
11:40
Speaker 6: have ensured that they do not have any sex based advantage.
11:44
Speaker 6: And as to them, the question is if the state's
11:47
Speaker 6: justification for denying you participation on the team because of
11:52
Speaker 6: your sex assigned at birth? Is that permissible when their
11:57
Speaker 6: interests are not furthered by excluding you. Their interests are
12:02
Speaker 6: in making sure that the women's team does not get
12:05
Speaker 6: overrun by people who have a sex based advantage. But
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Speaker 6: those transgender women who have eliminated their sex based advantage
12:13
Speaker 6: through the medical intervention and the like, they don't pose
12:18
Speaker 6: that threat. They don't undermine the fairness or the safety
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Speaker 6: of women's sports.
12:23
Speaker 2: In more than three hours of oral arguments, it seemed
12:25
Speaker 2: like there were a lot of balls in the air.
12:28
Speaker 2: Do you have any idea what they might focus on
12:30
Speaker 2: in the decision?
12:32
Speaker 6: You know, if I had to guess, I would say
12:34
Speaker 6: they know the destination, But they're not sure on the route,
12:38
Speaker 6: and if they are going to rule against the transgender
12:42
Speaker 6: women here, I think it's important that they do so
12:44
Speaker 6: in ways that leave open for future litigation a whole
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Speaker 6: host of other kinds of questions that don't involve sports,
12:54
Speaker 6: don't involve this one area where you do actually have
12:58
Speaker 6: a long history of separate based on generalizable physical differences,
13:03
Speaker 6: the same kinds of arguments about fairness, and they're like,
13:07
Speaker 6: don't apply to bathrooms and don't apply to excluding people
13:12
Speaker 6: from all kinds of activities in life, and so, you know,
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Speaker 6: I think it's important that the Court not decide too
13:19
Speaker 6: much because I think in the long run, we're going
13:22
Speaker 6: to recognize trans people are people. They deserve equal dignity.
13:28
Speaker 6: We should not be treating them as categorically as somehow
13:33
Speaker 6: an illegitimate class, and we need judicial protection to ensure
13:38
Speaker 6: that they have equal protection under the law, precisely because
13:43
Speaker 6: they are a small minority, one that has faced a
13:46
Speaker 6: lot of discrimination over history, and the Court should not
13:50
Speaker 6: write itself out of that task. You know, it's an
13:54
Speaker 6: ongoing task, I think, but it's part of the Court's
13:56
Speaker 6: responsibility is to protect those who can't protect them from
14:00
Speaker 6: the majority, and boy Trans folks are squarely in the
14:04
Speaker 6: middle of that category.
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Speaker 2: It'll be interesting to see what direction they take in
14:09
Speaker 2: their opinion. Thanks for joining me again, David. That's Professor
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Speaker 2: David Cole of Georgetown Law. Coming up next on the
14:16
Speaker 2: Bloomberg Law Show. Louisiana faces off against big oil at
14:21
Speaker 2: the Supreme Court with billions on the line. I'm June
14:25
Speaker 2: Grosso and you're listening to Bloomberg.
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Speaker 7: We now know, having gone to trial with Chevron down
14:32
Speaker 7: in Point Lahash, that they do not dispute that they
14:35
Speaker 7: dumped billions of gallons of produced water from oil wells
14:41
Speaker 7: directly into our marsh, both before and after nineteen eighty.
14:46
Speaker 7: That's why this is such a massive deal for the
14:48
Speaker 7: state of Louisiana.
14:49
Speaker 2: That was Louisiana's Solicitor General, Jay Benjamin Aguanaga, arguing at
14:54
Speaker 2: the Supreme Court in a case where repair of his
14:57
Speaker 2: state's wetlands, which have been called one of the most
15:00
Speaker 2: critically threatened environments in the United States, is at stake
15:05
Speaker 2: and potentially billions of dollars. Back in twenty thirteen, six
15:10
Speaker 2: Louisiana parishes filed forty two nearly identical lawsuits against Chevron, Exxon,
15:17
Speaker 2: and other oil and gas companies, accusing them of violating
15:20
Speaker 2: a state law and demanding that they repair severe damage
15:24
Speaker 2: to the state's coastline from decades of oil and gas production,
15:29
Speaker 2: and last April, in the only case to go to
15:31
Speaker 2: trial so far, a jury and state court ordered Chevron
15:35
Speaker 2: to pay seven hundred and forty five million dollars toward
15:39
Speaker 2: restoring the coastal region. Now, Chevron and the other companies
15:44
Speaker 2: are asking the Supreme Court to move the cases from
15:47
Speaker 2: state court to federal court, which is often seen as
15:51
Speaker 2: a venue friendlier to corporate interests. Chief Justice John Roberts
15:55
Speaker 2: and Justice Neil Gore such expressed concerns about the ripple
15:59
Speaker 2: effects allowing such a move.
16:01
Speaker 1: Well, you're right, obviously that relating to is very broad.
16:04
Speaker 1: But it's hard to see where you stop. I mean,
16:07
Speaker 1: is it a butterfly effect?
16:09
Speaker 5: You know, the butterfly flaps its wings.
16:10
Speaker 8: That has the end.
16:11
Speaker 1: It results halfway around the world.
16:14
Speaker 4: The big thing is related to you being here today,
16:18
Speaker 4: Council right.
16:20
Speaker 2: The ultra conservative Fifth Circuit had ruled that the cases
16:24
Speaker 2: belong in state court. Joining me is an expert in
16:27
Speaker 2: environmental law. Pat Parento, A professor at the Vermont Law
16:31
Speaker 2: and Graduate School pat give us the background on these lawsuits.
16:36
Speaker 1: So this has to do with Louisiana's continuing loss of
16:41
Speaker 1: coastal wetlands. You know, it's the largest loss of wetlands
16:45
Speaker 1: in the nation, and it's causing all kinds of horrific
16:49
Speaker 1: problems for the communities on the coast of Louisiana. The floods,
16:52
Speaker 1: the storms, the loss of fisheries. Much of it relates
16:57
Speaker 1: to the oil and gas activities in extra oil and
17:00
Speaker 1: gas from the Gulf of Mexico. And you know, I've
17:04
Speaker 1: been down there. I've seen the damage that's being done
17:08
Speaker 1: from the oil and gas activities. It's complicated, but one
17:11
Speaker 1: of the major reasons for the loss of wetlands is
17:15
Speaker 1: the discharge of really toxic, polluted water, processed water from
17:20
Speaker 1: the oil and gas extraction activities, both online and offshore,
17:24
Speaker 1: by the way, and also building these canals to move
17:26
Speaker 1: these great big rigs in and out of the gulf,
17:29
Speaker 1: and all of this erodes the wetlands. It contaminates them,
17:34
Speaker 1: it causes the vegetation to die, and when the vegetation dies,
17:38
Speaker 1: the wetlands die. All of this has been going on
17:41
Speaker 1: for decades. All of this has been well understood and
17:44
Speaker 1: researched for that period of time. The oil companies, they've
17:47
Speaker 1: been told that they're causing this damage by the State
17:51
Speaker 1: of Louisiana in violation of the State of Louisiana's permit
17:55
Speaker 1: programs for oil and gas activities, in violation of the
17:58
Speaker 1: state's laws requiring restoration of wetlands that have been damaged,
18:02
Speaker 1: causing billions of dollars worth of damage. And so finally,
18:06
Speaker 1: the parishes of Louisiana, which are counties everywhere else in
18:10
Speaker 1: the country, have had enough. I mean, you know, they've
18:12
Speaker 1: had this uneasy relationship with oil and gas activity, which
18:16
Speaker 1: creates jobs, brings money into the communities, but it's destroying
18:19
Speaker 1: their way of life. So they go to court in
18:22
Speaker 1: Louisiana and they finally got a major jury veric over
18:26
Speaker 1: seven hundred million dollars. That's the backstory of this case.
18:30
Speaker 1: The only question before the Supreme Court is should these
18:33
Speaker 1: cases be heard in federal as opposed to state court.
18:37
Speaker 1: So a purely procedural issue, right, but one with enormous consequences.
18:43
Speaker 2: The six Louisiana parishes sued in twenty thirteen, but yet
18:48
Speaker 2: only one case has gone to trial in all that time.
18:51
Speaker 1: That's right, and you know that is right out of
18:54
Speaker 1: the oil company's playbook. We've seen it in the climate
18:57
Speaker 1: cases as well, which is delay, delay, delay, throw up roadblocks,
19:03
Speaker 1: argue every kind of procedural motion you can to keep
19:07
Speaker 1: the case first from going to trial, getting to a jury.
19:11
Speaker 1: And then now, now, after all these years, and after
19:14
Speaker 1: all the time and effort spent to win a jury verdict,
19:19
Speaker 1: now the oil companies go to the US Supreme Court saying,
19:22
Speaker 1: save our butts, because we've lost big time. We fought,
19:26
Speaker 1: you know, in the state court. We lost, and now
19:29
Speaker 1: we want to set aside that loss and start all
19:32
Speaker 1: over again.
19:33
Speaker 2: And if the Supreme Court rules in favor of the
19:36
Speaker 2: oil companies, that seven hundred and forty five million dollar
19:40
Speaker 2: verdict delivered after a three week trial could be thrown out.
19:46
Speaker 2: But the merits of the cases are not before the court.
19:49
Speaker 1: You know, that question doesn't even get raised. Are they responsible?
19:53
Speaker 1: That's the fiendishly complicated aspect of a case like this, Right,
19:57
Speaker 1: The merits don't count. It's all about which court to
20:01
Speaker 1: hear the merits. After there have been years of litigation
20:04
Speaker 1: in state court, a jury verdict against them. Now they
20:08
Speaker 1: want to start the clock all over again. It's outrageous,
20:11
Speaker 1: but it is the law. I mean, you know the
20:13
Speaker 1: law of removal of cases from state court to federal court.
20:17
Speaker 1: That's well established law. This is a real extension of
20:20
Speaker 1: that law.
20:21
Speaker 2: And the key issue before the Supreme Court is an
20:25
Speaker 2: amendment to the Federal Officer Removal Statue, a law that
20:29
Speaker 2: gives federal courts jurisdiction over civil cases that concern the
20:34
Speaker 2: actions of federal officials or those acting under the orders
20:38
Speaker 2: of a federal official.
20:40
Speaker 1: That was the focus of the oral argument, and in
20:43
Speaker 1: that statute, in Congress's inimitable fashion, they dropped this phrase
20:47
Speaker 1: relating to So that's the focus of the case was
20:51
Speaker 1: the activity of producing oil and gas in the coastal
20:56
Speaker 1: zone of Louisiana related to the federal contracts that these
21:01
Speaker 1: companies and their predecessors had during World War Two. This
21:05
Speaker 1: goes all the way back to the forties. So the
21:08
Speaker 1: question is the government contracted with these companies to refine
21:13
Speaker 1: fuel for the war effort. And what the companies are
21:16
Speaker 1: now arguing is well, in order to refine the fuel,
21:19
Speaker 1: we have to produce the fuel. So the oil and
21:22
Speaker 1: gas production activities that are destroying Louisiana's wetlands are related
21:28
Speaker 1: to our contract to produce fuel for the war effort.
21:33
Speaker 1: That is the key fact in this case. Is that
21:36
Speaker 1: enough to prove that refining oil is related to producing oil.
21:42
Speaker 1: That may be a bit of an oversimplification, but that's
21:45
Speaker 1: the essence of it.
21:46
Speaker 2: And how does the State of Louisiana interpret those words
21:51
Speaker 2: relating to the.
21:52
Speaker 1: State says the two activities are separate. And if you
21:58
Speaker 1: think about this, what is the reason that Congress had
22:03
Speaker 1: for requiring removal of cases from state court to federal court?
22:08
Speaker 1: And the logic of it is, if a company leads
22:12
Speaker 1: all companies have become an agent of the federal government
22:16
Speaker 1: doing the government's bidding, then they should be insulated to
22:20
Speaker 1: some extent from being subject to liability in state court.
22:25
Speaker 1: That's the kind of issue that should be litigated in
22:28
Speaker 1: federal court because the companies are acting as agents of
22:32
Speaker 1: the federal government.
22:33
Speaker 2: I mean, isn't this also about what they're doing now?
22:35
Speaker 2: So how can this depend on something that happened in
22:38
Speaker 2: World War Two?
22:40
Speaker 1: That's true, and that is one of the arguments Louisiana
22:42
Speaker 1: is making. Of course that this has been going on
22:45
Speaker 1: for decades and continues today, so it has nothing to
22:49
Speaker 1: do with World War Two. But if there's logic in this,
22:52
Speaker 1: it's that once an agent, always an agent. I don't
22:55
Speaker 1: buy that. I'm just saying their argument to the court is,
22:58
Speaker 1: you know, everything that we have been doing relates to
23:02
Speaker 1: in the broadest possible sense, relates to these original contracts
23:08
Speaker 1: which carry forward to today. I don't think the Court
23:11
Speaker 1: is going to buy this, but we always have to say,
23:14
Speaker 1: but they might. It sounded to me like at the
23:17
Speaker 1: oral argument, questions coming from Thomas Gorsich, the Chief Justice,
23:22
Speaker 1: questions that were harder to read from Kavanaugh, Barrett. Even
23:27
Speaker 1: Justice Jackson was saying at one point to the oil companies,
23:30
Speaker 1: your argument has some weight that surprised me. So these
23:34
Speaker 1: procedural questions could go either way. But it looks to
23:37
Speaker 1: me and sounds to me like the Court is going
23:40
Speaker 1: to deny the company's argument that these cases should have
23:43
Speaker 1: been brought in federal court and have to be re
23:45
Speaker 1: litigated in federal court.
23:47
Speaker 2: And the State of Louisiana only needs four votes to
23:50
Speaker 2: win because Justice Samuel Alito recused himself from the case
23:55
Speaker 2: due to a stock conflict tied to Kinnacho Phillips, and
23:59
Speaker 2: so four votes would leave in place the lower court decision,
24:03
Speaker 2: the Fifth Circuit decision which ruled that the cases belong
24:07
Speaker 2: in state court.
24:08
Speaker 1: Correct. That's a very good point, and I could easily
24:12
Speaker 1: count four votes, if not five, to deny the oil companies.
24:16
Speaker 2: Pat let's discuss having a trial in state court versus
24:21
Speaker 2: federal court. Here's Paul Clement, the former US Solicitor General
24:25
Speaker 2: who represents Chevron.
24:26
Speaker 9: And so for you know, really since almost the framing
24:29
Speaker 9: of the country, there's been this problem, this issue, this
24:33
Speaker 9: concern with issues that are nationally important but locally unpopular.
24:37
Speaker 2: He also had other arguments, for example, that if the
24:41
Speaker 2: state can prove their case in federal court, then everyone's
24:45
Speaker 2: going to accept the outcome rather than seeing it as
24:49
Speaker 2: a product of local prejudice. Do you agree with that?
24:52
Speaker 1: No, that is a stunning indictment of state jury. I mean,
24:57
Speaker 1: that stands the principle of federalism on it head. To
25:01
Speaker 1: suggest the oil companies can't get a fair trial in Louisiana.
25:06
Speaker 1: Are you kidding me? With all of the dependents of
25:09
Speaker 1: Louisiana on oil and gas production. No, it's the case
25:13
Speaker 1: that the damage that the oil companies are doing have
25:16
Speaker 1: reached a point where it's intolerable for these communities to
25:20
Speaker 1: just continue to absorb it. That's what this case is about.
25:24
Speaker 1: And the pushback to his argument is, don't you want
25:29
Speaker 1: the communities that are closest to the impacts living with
25:34
Speaker 1: the impacts and in the state where the expertise of
25:39
Speaker 1: the legal questions involved, namely, what does Louisiana law require?
25:45
Speaker 1: Have the companies violated that law? Have they done so
25:48
Speaker 1: deliberately over a continuous period of time, have they done
25:52
Speaker 1: so knowingly? All of those kinds of questions are state
25:56
Speaker 1: law questions. They rely on the expertise within the state
26:00
Speaker 1: of Louisiana, in the academic institutions that have studied these problems,
26:05
Speaker 1: in the witnesses that would be called, and so forth,
26:08
Speaker 1: you know, fact witnesses as well as expert witnesses. To
26:12
Speaker 1: suggest that the oil companies should not be held accountable
26:16
Speaker 1: in the state courts where they're doing business and doing
26:19
Speaker 1: this damage is unbelievable.
26:21
Speaker 2: Several justices also expressed concerns about the broader implications of
26:27
Speaker 2: a decision here on things like employment disputes or a
26:31
Speaker 2: suit against an airline manufacturer that has contracts with the US.
26:36
Speaker 1: This business of indicting state courts and state juries sweeps
26:40
Speaker 1: incredibly broadly, as well as their argument that anything that's
26:44
Speaker 1: related to their original contracts from fifty to sixty years
26:47
Speaker 1: ago is covered by them. Both of these arguments are
26:51
Speaker 1: incredibly sweeping, and that's why the Chief Justice picked up
26:54
Speaker 1: on the butterfly effect. So it would be very surprising,
26:57
Speaker 1: I think, for the Court to go that far and
26:59
Speaker 1: buy in to this premise that you can't trust state courts.
27:03
Speaker 2: Thanks so much, Pat. That's professor Pat Parento of the
27:06
Speaker 2: Vermont Lawn Graduate School coming up. Can ice officers be sued?
27:11
Speaker 2: I'm June Grosso and this is Bloomberg. Demonstrations have become
27:20
Speaker 2: common in Minneapolis since an ice officer shot Renee Good
27:24
Speaker 2: last Wednesday. On the day that Good was killed, Vice
27:28
Speaker 2: President J. D. Vance held a news conference and declared
27:31
Speaker 2: with certainty that the ice officer would face no consequences
27:36
Speaker 2: for his actions.
27:37
Speaker 4: You have a federal law enforcement official engaging in federal
27:40
Speaker 4: law enforcement action.
27:41
Speaker 6: That's a federal issue. That guy's protected by absolute immunity.
27:45
Speaker 4: He was doing his job.
27:46
Speaker 2: That's a message that's been reinforced by others in the
27:49
Speaker 2: Trump administration. In fact, on Tuesday, the Department of Homeland
27:54
Speaker 2: Security posted a clip of White House Deputy Chief of
27:57
Speaker 2: Staff Stephen Miller amplified that message.
28:01
Speaker 10: To all ICE officers. You have federal immunity in the
28:04
Speaker 10: conduct of your duties, and anybody who lays a hand
28:08
Speaker 10: on you or tries to stop you, or tries to
28:10
Speaker 10: obstruct you is committing a felony.
28:13
Speaker 1: You have immunity to.
28:14
Speaker 10: Perform your duties, and no one, no city official, no
28:17
Speaker 10: state official, no illegal alien, no leftist agitator, or domestic
28:22
Speaker 10: insurrectionists can prevent you from fulfilling your legal obligations and duties.
28:28
Speaker 2: So are they right? Will ICE officer Jonathan Ross face
28:32
Speaker 2: any consequences for killing the mother of three? Joining me
28:36
Speaker 2: to answer that question? Is Anya Bidwell, a senior attorney
28:40
Speaker 2: at the Institute for Justice. Anya, are these Trump administration
28:44
Speaker 2: officials right? Do these ICE officers have absolute immunity?
28:49
Speaker 11: I hate to say that they are right, but unfortunately
28:54
Speaker 11: they are very close to being right, and there are
29:00
Speaker 11: seeing with fewer routes to sue federal officials. It's been
29:04
Speaker 11: happening for a long time. It's not just a Trump
29:07
Speaker 11: administration invention. But what they're doing now is really exposing
29:12
Speaker 11: this gap in accountability between state and local officials, for
29:17
Speaker 11: example Derek Chauvin who murdered George Floyd, and federal officials
29:22
Speaker 11: like those ICE agents. So previous administrations didn't like to
29:26
Speaker 11: advertise that. The Biden administration, the first Trump administration, the
29:31
Speaker 11: Bush administration, the Obama administration, they weren't going around and
29:34
Speaker 11: talking about absolute community. This administration is happy to talk
29:38
Speaker 11: about it because they want to encourage ICE to go
29:42
Speaker 11: out there, to not care about repercussions, to not de
29:45
Speaker 11: escalate them, and so they're telling them just so you
29:48
Speaker 11: guys know, there is nothing that can be done to you.
29:52
Speaker 2: Of course, some routes, it appears clear that the federal
29:56
Speaker 2: government is not going to prosecute this ICE office. But
30:00
Speaker 2: in theory, what about a state prosecution.
30:04
Speaker 11: Now, the federal government, if it wanted to, could prosecute
30:09
Speaker 11: those officers. But does anybody here really believe that the
30:13
Speaker 11: federal government is actually going to do that. Instead of
30:16
Speaker 11: investigating Jonathan Ross, they are investigating the wife of Renee
30:21
Speaker 11: Good right, So we are not counting on the federal
30:24
Speaker 11: government to step in here. The one meaningful mechanism, and
30:28
Speaker 11: when it comes to state prosecutions, there's another complication and
30:33
Speaker 11: another immunity that comes in. So states generally speaking, cannot
30:38
Speaker 11: prosecute federal officials when federal officials are exercising their federal duties.
30:44
Speaker 11: So again, the federal government doesn't even feel compelled to
30:48
Speaker 11: cooperate with the state government in the situation, doesn't even
30:51
Speaker 11: feel compelled to share the evidence because they also know
30:54
Speaker 11: that the state itself is really fundamentally unable to prosecute
30:58
Speaker 11: a federal officer. So that's where we are right now.
31:02
Speaker 11: And Jdvans and Steven Miller are very comfortable going out
31:05
Speaker 11: there and telling Ice, you guys are good. There is
31:09
Speaker 11: nothing really that plaintiffs can do right now.
31:11
Speaker 2: So Minnesota, you know they're going to try to do
31:14
Speaker 2: an investigation, right I mean, is there a way, even
31:17
Speaker 2: if it's a loser way, is there a way for
31:19
Speaker 2: Minnesota to prosecute that ICE officer criminally?
31:24
Speaker 8: I would try again. If I'm a state.
31:26
Speaker 11: What I'm going to try to do at this point
31:29
Speaker 11: is a I'm going to work to pass a statute
31:32
Speaker 11: to allow suits for violations of federal constitution in my courts.
31:37
Speaker 11: And also I'm going to try to prosecute the officer
31:41
Speaker 11: now immediately, there will be a motion to dismiss filed.
31:45
Speaker 11: There will be arguments against it. But at least you
31:47
Speaker 11: are trying to get out there and try to do something.
31:50
Speaker 11: I would also try to just publicly even say here's
31:54
Speaker 11: what we want to see, right, some of it is
31:56
Speaker 11: public engagement. When you are a state, if we were
31:59
Speaker 11: to invent instigate, this is what we would want to see.
32:02
Speaker 8: These are the kind of things that would allow us
32:05
Speaker 8: to evaluate what took place here. Federal government, are you
32:08
Speaker 8: doing this or are you not doing this?
32:10
Speaker 11: States certainly can't just sit there and do nothing, but
32:14
Speaker 11: it's an uphill battle all the way.
32:16
Speaker 2: Renee Goods family has hired attorneys already. So let's turn
32:20
Speaker 2: to the possibility of a civil lawsuit for damages. First,
32:24
Speaker 2: probably the impossible suing the ICE officer directly.
32:28
Speaker 11: Yes, that is impossible because they are ICE agents, and
32:32
Speaker 11: even in general, with any federal official, it's extremely difficult.
32:37
Speaker 11: So at the root of the problem is really congressional admission.
32:42
Speaker 11: After the Civil War, Congress passed a statue called Section
32:46
Speaker 11: nineteen eighty three to allow suits for the violation of
32:50
Speaker 11: the United States Constitution against state and local officials who
32:54
Speaker 11: we essentially weren't complying with reconstruction and violating people's constitutional rights.
33:00
Speaker 11: At the time, you could sue federal government in state courts,
33:03
Speaker 11: and there was no fear that state courts would be
33:07
Speaker 11: easy on federal officials. If anything, state courts at the
33:09
Speaker 11: time were hostile to federal officials. So Congress wasn't worried
33:13
Speaker 11: about federal officials not getting proper treatment in state courts,
33:18
Speaker 11: so they didn't include them in this statute. They only
33:21
Speaker 11: included state and local officials, and that admission is now
33:26
Speaker 11: used by the Supreme Court as an excuse to deny
33:31
Speaker 11: any access to courts to plaintiffs whose violations happened to
33:36
Speaker 11: be conducted by federal officials. They're saying Section nineteen eighty
33:41
Speaker 11: three does not have federal officials in there.
33:44
Speaker 8: There isn't an analog like that for.
33:47
Speaker 11: Federal officials, and they say Congress should amend that statute
33:51
Speaker 11: include federal officials in there, and then we will have
33:54
Speaker 11: no problem opening the courthouse doors. Now, on the other hand,
33:58
Speaker 11: there is a problem that circuit courts are interpreting another
34:05
Speaker 11: statute that Congress passed as prohibiting suits against federal officials
34:10
Speaker 11: in state courts too, so that traditional remedy I told
34:14
Speaker 11: you about is also unavailable. So the way that the
34:18
Speaker 11: law stands today is that you turn to federal courts
34:22
Speaker 11: and the Supreme Court is telling you, you, guys are
34:25
Speaker 11: not part of section nineteen eighty three, we can't do
34:27
Speaker 11: anything about it. And you go to state courts and
34:31
Speaker 11: they're basically saying, well, circuit courts so far have said
34:35
Speaker 11: that cases in state courts are unavailable. Though we do
34:40
Speaker 11: think that by far the best option right now is
34:45
Speaker 11: actually for states to pass their own statutes like that
34:49
Speaker 11: section nineteen eighty three that Congress passed back in the day,
34:53
Speaker 11: and we as public interest lawyers, we have a really
34:56
Speaker 11: good argument to explain to the Supreme Court why that
34:59
Speaker 11: kind route actually should be available.
35:02
Speaker 2: Let's just say you could to a federal officer. The
35:05
Speaker 2: federal officer would probably be indemnified right by the government.
35:08
Speaker 2: I mean, they wouldn't have to pay out of their
35:10
Speaker 2: own pocket anyway.
35:12
Speaker 11: Yes, that's what invariably happens, and it happens with state
35:15
Speaker 11: and local officials as well, that they have indemnification provisions
35:19
Speaker 11: and the governments invariably indemnify them, but at least then
35:24
Speaker 11: the officer is called out, his actions are analyzed, the
35:28
Speaker 11: family gets some answers about what happens, because these days
35:32
Speaker 11: they don't even feel like they need to explain themselves.
35:35
Speaker 11: And then that officer is unnoticed because he did cost
35:39
Speaker 11: money to the agency, right, So there is some sort
35:41
Speaker 11: of accountability going forward too, and the agencies are much
35:45
Speaker 11: more careful about how they hire because they know that
35:49
Speaker 11: problematic officers are going to cause them a lot of money.
35:51
Speaker 11: And in some situations when the violations are outrageous, then
35:55
Speaker 11: the government basically says, you're.
35:57
Speaker 8: On your own. We're not going to cover it.
36:00
Speaker 11: But fundamentally, the important thing is that if you allow
36:04
Speaker 11: families to sue, then they don't carry the burden of
36:08
Speaker 11: the constitutional violation, right that they are actually able to
36:12
Speaker 11: take control of the situation and get to discovery and
36:16
Speaker 11: have the jury determine what happened.
36:20
Speaker 2: Finally, let's talk about an option that is available, a
36:23
Speaker 2: lawsuit against the federal government. So the family suing Ice
36:28
Speaker 2: or the Department of Homeland Security.
36:30
Speaker 11: Yes, that is the best route, even though it is
36:34
Speaker 11: riddled with complexity. As the lawyer who is representing rene
36:38
Speaker 11: a Goods family explained. It is riddled with complexity. It
36:42
Speaker 11: is not a really full vindication of anyone's rights, but
36:47
Speaker 11: it is the best route to accountability. The way the
36:50
Speaker 11: law works now, you file a claim under the Federal
36:54
Speaker 11: Thought Claims Act, not against the officer who killed you
36:58
Speaker 11: or who hurt you, but against the United States government.
37:03
Speaker 11: The statute originally was really intended for things like, you know,
37:07
Speaker 11: a USPS driver running over somebody, like a negligent type
37:12
Speaker 11: of an act, and then somebody would file a claim
37:15
Speaker 11: with the agency and the agency would compensate for that
37:19
Speaker 11: negligent action. The statute is not a great fit for
37:24
Speaker 11: constitutional violations like these, and the problem with the statute too,
37:29
Speaker 11: is that the government invariably invokes the so called discretionary
37:34
Speaker 11: function immunity. So they basically say the officer was acting
37:39
Speaker 11: within the scope of his duty and he was exercising
37:42
Speaker 11: discretion in that he was making a choice between whether
37:46
Speaker 11: to turn right or left, and therefore discretion immunity applies,
37:50
Speaker 11: and even the federal government cannot be held accountable. So
37:53
Speaker 11: those suits are very hard, but it's still the best option,
37:57
Speaker 11: the FTCA route against the government.
37:59
Speaker 2: That's can you think of a big case recently, or
38:04
Speaker 2: you know the last case where plaintiffs won using that route.
38:08
Speaker 11: That's a great question. There are no immediate cases that
38:13
Speaker 11: come to mind. What comes to my mind is actually
38:15
Speaker 11: the case we argued in front of the Supreme Court
38:18
Speaker 11: just last year where there was a wrong house raid
38:23
Speaker 11: on an innocent families home pre dawn, even though there
38:27
Speaker 11: was an address on the mailbox right there in front
38:32
Speaker 11: of the house telling the officers that this was a
38:35
Speaker 11: wrong house to raid. And so the family sued the
38:39
Speaker 11: government for this wrong house raid. It was in Atlanta, Georgia,
38:44
Speaker 11: and the government basically argued, you can't sue us because
38:48
Speaker 11: the officer exercised judgment and there is supremacy clause immunity
38:54
Speaker 11: and discretionary function immunity. And the case went all the
38:57
Speaker 11: way to the Supreme Court, and Justice Gore Search even said,
39:00
Speaker 11: you'd think there would be a remedy, wouldn't you for
39:03
Speaker 11: that kind of a raid, But he said the answer
39:06
Speaker 11: is not that simple. And the Supreme Court did not
39:10
Speaker 11: rule for the family. They remanded the case back for reconsideration.
39:15
Speaker 11: So this is pretty much like the most positive outcome
39:19
Speaker 11: is that we get to reargue this case again, years
39:23
Speaker 11: and years after this actual wrong house raid.
39:27
Speaker 8: And the family still has seen no justice.
39:30
Speaker 11: The problem, then, is that not too many lawyers even
39:33
Speaker 11: want to argue these cases because it takes years and
39:36
Speaker 11: years to get anywhere, as this example demonstrates.
39:40
Speaker 2: Yeah, I remember that case because the facts were so outrageous.
39:43
Speaker 2: Thanks so much for joining Meanya. That's Anya Bidwell of
39:46
Speaker 2: the Institute for Justice, and that's it for this edition
39:49
Speaker 2: of the Bloomberg Law Show. Remember you can always get
39:52
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39:55
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