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Alabama Map Blocked for Racial Discrimination & Trump Deregulatory Fail · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: A fellow's fort.
0:12
Speaker 3: Are you ready to use your votes? Are you ready
0:16
Speaker 3: to vote?
0:17
Speaker 1: Like you.
0:19
Speaker 2: Because your lives the greater. In Montgomery, Alabama, the city
0:25
Speaker 2: considered the crucible of the civil rights movement, thousands of
0:29
Speaker 2: people rally this month to protest against the state's efforts
0:33
Speaker 2: to dismantle congressional districts with black political representatives. Civil rights leaders,
0:39
Speaker 2: democratic members of Congress from across the country, union leaders,
0:44
Speaker 2: and pastors spoke at the rally to denounce the US
0:47
Speaker 2: Supreme Court's ruling eviscerating the landmark Voting Rights Act and
0:52
Speaker 2: the resulting frenzy in southern states to reshape voting districts
0:57
Speaker 2: with large minority populations. New Jersey Democratic Senator Cory Booker
1:03
Speaker 2: compared the ruling to pass Supreme Court decisions like Dred
1:07
Speaker 2: Scott and Plussy versus Ferguson.
1:10
Speaker 4: You see, we have seen this before for some people
1:14
Speaker 4: in black loops try to deny or take away our rights.
1:19
Speaker 2: But yesterday a stunning legal victory for Democrats as a
1:23
Speaker 2: panel of federal judges refused to allow Alabama to use
1:28
Speaker 2: a congressional map it adopted three years ago, ruling that
1:32
Speaker 2: it intentionally discriminated based on race. But this long running
1:37
Speaker 2: legal saga is not over yet. The state has appealed
1:40
Speaker 2: the decision to the Supreme Court. Joining me is elections
1:44
Speaker 2: law expert Richard Brefont, a professor at Columbia Law School.
1:48
Speaker 2: Rich this is a long and winding legal and political
1:53
Speaker 2: saga in Alabama. Give us some of the background.
1:57
Speaker 3: It's incredibly confusing.
1:58
Speaker 4: So this later Alabama case really is the ongoing saga
2:02
Speaker 4: of endless litigation following Alabama and the twenty twenty census
2:06
Speaker 4: and the Alabama's redistricting. Alabama has seven House seats that
2:11
Speaker 4: didn't change as a result of a court decision some
2:14
Speaker 4: decades earlier. Basically, it has a white majority in six
2:18
Speaker 4: seats and a black majority in one. This was as
2:20
Speaker 4: of twenty twenty, although the state is about thirty percent black.
2:25
Speaker 4: Voting Rights Act case was brought challenging that A three
2:29
Speaker 4: judge court that's the kind of court that's created when
2:32
Speaker 4: challenges to her districting are brought, found that Alabama had
2:35
Speaker 4: violated the Voting Rights Act, that had engaged in a
2:38
Speaker 4: legal vote dilution, and ordered a new map, But the
2:42
Speaker 4: Supreme Court stepped in before the twenty twenty two election
2:45
Speaker 4: and said, no, it's too close to the election, although
2:48
Speaker 4: it was actually quite a number of months before. It
2:50
Speaker 4: was I think in the spring, but they said it
2:52
Speaker 4: was probably too close to the primaries. And so that
2:55
Speaker 4: case ultimately one to the Supreme Court, and many people surprised.
2:58
Speaker 4: The Supreme Court voted five to four and I think
3:01
Speaker 4: it was twenty twenty three voted to affirm with the
3:05
Speaker 4: three judge courted founding. This concluded that Alabama had violated
3:08
Speaker 4: the voting right sack and indicated that Alabama probably should
3:11
Speaker 4: have two black majority but are so called opportunity districts
3:15
Speaker 4: where black voters have a real opportunity to elect the
3:18
Speaker 4: candidate of choice. I went back to the legislature. Legislature, however,
3:22
Speaker 4: did not do that. The legislature basically came up with
3:25
Speaker 4: another plan, which was essentially six white majority, one black
3:29
Speaker 4: majority district that was then challenged and the three judge
3:33
Speaker 4: court said, no, you have not complied with our ruling.
3:36
Speaker 4: This still is vote diluted, and we actually think it's
3:38
Speaker 4: unconstitutional because it reflects intentional racial discrimination. So they enjoyed
3:44
Speaker 4: this new map that's sometimes called the twenty twenty three map,
3:48
Speaker 4: and a special master created a map which created two
3:51
Speaker 4: black majority districts or one I think is just under
3:54
Speaker 4: majority one just over in Alabama for the first time
3:57
Speaker 4: since reconstruction elected to black rep exentatives in twenty twenty four.
4:03
Speaker 2: And now we have the impact in Alabama of the
4:06
Speaker 2: Supreme Court's decision in Louisiana versus Kela. Explain how that
4:12
Speaker 2: decision severely weakened the Voting Rights Act.
4:16
Speaker 3: The Supreme Court significantly.
4:18
Speaker 4: I think the word the Court is using is updated
4:21
Speaker 4: its analysis of vote dilution claims under Section to with
4:24
Speaker 4: a Voting Rights Act, making it much much much harder
4:27
Speaker 4: for them to prevail. At that point, Alabama came in
4:31
Speaker 4: and said, you know, we want to reopen this case.
4:35
Speaker 4: And so with the Supreme credit down in the earlier
4:37
Speaker 4: Alabama case, its basically sustained the injunction that the lower
4:42
Speaker 4: court had issued barring Alabama from using its own legislatively
4:47
Speaker 4: adopted map. So they went to the Supreme Court this
4:50
Speaker 4: is in either late April or very early May, and
4:53
Speaker 4: asked the court to lift the injunction on the legislature's
4:57
Speaker 4: twenty twenty three map. The court read and said, we're
5:01
Speaker 4: sending this back to the lower court for them to
5:04
Speaker 4: reconsider their decision in light of our decision in Cala.
5:08
Speaker 4: They didn't say the lower court was wrong, but they
5:10
Speaker 4: just said, obviously the legal rules have changed, we want
5:13
Speaker 4: the lower court to reconsider it. While that was happening,
5:17
Speaker 4: the Governor of Alabama called a special session of the legislature.
5:21
Speaker 4: At this point, primaries were already ongoing for the Alabama
5:25
Speaker 4: the election of candidates for Congress. Basically, the governor said
5:28
Speaker 4: and got the legislature, who agree to stop the primaries
5:32
Speaker 4: in four of the districts, the two black majority districts
5:35
Speaker 4: and adjacent districts which would be most likely impacted by this,
5:38
Speaker 4: and said, we really want to go back to the
5:39
Speaker 4: twenty twenty three map. So they've now stopped the primaries
5:43
Speaker 4: in those four districts, and the legislature basically thinks that
5:48
Speaker 4: with the injunction lifted the twenty twenty three map, which
5:52
Speaker 4: is the legislature's map, which would be six majority white,
5:56
Speaker 4: one black majority district and also for parties and purposes,
5:59
Speaker 4: likely six Republican and one Democratic. That was the result
6:03
Speaker 4: of the legislature's vote in early May. Earlier mid May,
6:07
Speaker 4: the plaintiffs who brought the original case then went right
6:10
Speaker 4: back to court before the three judge court which had
6:14
Speaker 4: imposed the map that was used in the last election.
6:17
Speaker 2: Tell us about the decision of that three judge panel,
6:21
Speaker 2: which consisted of two Trump appointees and a Clinton appointee, And.
6:26
Speaker 4: That court yesterday issued a one hundred and three page
6:30
Speaker 4: opinion where they concluded that the legislature's recent action was
6:35
Speaker 4: both unconstitutional and violated the Voting Rights Act, even under
6:39
Speaker 4: the Calais standard.
6:41
Speaker 3: And the court.
6:42
Speaker 4: Basically said, the Supreme Court did not say that we
6:45
Speaker 4: were wrong before. They just said you've got to reconsider.
6:48
Speaker 4: And the court went through the entire process by which
6:51
Speaker 4: Alabama adopted the twenty twenty three plan, including its refusal
6:56
Speaker 4: to create a second black majority district, the kinds of
6:59
Speaker 4: considerations it can considered in its deliberations, and concluded that
7:02
Speaker 4: that was intentional racial discrimination. They then also applied the
7:07
Speaker 4: Calais standard and said cala doesn't mean you never can
7:10
Speaker 4: prove vote dilution. And they found that that there was
7:13
Speaker 4: intentional racial discrimination and given other factors and given just
7:18
Speaker 4: how much this appears to be driven by race and
7:20
Speaker 4: how much Brace is dominant in Alabama politics, that this
7:24
Speaker 4: really was more race than party and therefore violated the
7:27
Speaker 4: Voting Rights Act two.
7:29
Speaker 3: And then they also had some.
7:29
Speaker 4: Analysis about what's called the Percell principle, which is the
7:33
Speaker 4: idea that courts should not step in and change the voting.
7:35
Speaker 3: Rules on the election.
7:37
Speaker 4: But of course they pointed out, it's kind of a
7:38
Speaker 4: mess as to what's the baseline. Here is the baseline
7:42
Speaker 4: the twenty twenty four map, which is what the current
7:46
Speaker 4: members of Congress were elected and what the state was
7:48
Speaker 4: using up until early May, or is the baseline the
7:52
Speaker 4: map that the state has just reimposed. And the court said,
7:56
Speaker 4: going through the analysis that that case requires, we think
7:59
Speaker 4: that disruption is so great if the state's going to
8:02
Speaker 4: go back to that old twenty twenty three map, and
8:04
Speaker 4: that there's actually less disruption if they stick with the
8:07
Speaker 4: twenty twenty four maps. So they also felt that justified
8:10
Speaker 4: the injunction is to kind of summon up in granting
8:13
Speaker 4: an injunction like this, the court as thin because they
8:15
Speaker 4: are both the substantive merits, but also whether an injunction
8:19
Speaker 4: is wise, and they said yes on the substant merits.
8:22
Speaker 4: The Alabama plan is both unconstitutional and violates the Voting
8:26
Speaker 4: Rights Act and on the rules for an injunction, we
8:30
Speaker 4: think actually that this is really preserving the status quo
8:34
Speaker 4: rather than disrupting it on the election.
8:36
Speaker 2: So you mentioned one hundred and two page opinion. What
8:39
Speaker 2: do you think about the panel's findings. Do you think
8:42
Speaker 2: they'll hold up under Supreme Court review?
8:45
Speaker 4: It's interesting and just in terms of the judges of
8:47
Speaker 4: the two Trump appointees, I think are both judges in Alabama.
8:51
Speaker 4: So the way these courts are set up is, you know,
8:53
Speaker 4: there's a Court of Appeals judge and two District Court judges,
8:55
Speaker 4: and the two district court judges of the Trump judges,
8:57
Speaker 4: and they're both from Alabama.
8:59
Speaker 3: I think they do a good job.
9:00
Speaker 4: I mean, the real question at this point is how
9:03
Speaker 4: deeply is the Supreme Court going to get into reviewing
9:05
Speaker 4: this decision. I mean, the time really is tight here,
9:09
Speaker 4: so it's very time compressed, and you know, they make
9:13
Speaker 4: extensive findings of discrimination. Is the Supreme Court really in
9:18
Speaker 4: a position to reject those right now? Though they've done
9:22
Speaker 4: that in other cases, so I don't want to say
9:25
Speaker 4: they won't. There was a recent case from Texas where
9:28
Speaker 4: they basically rejected the lower court's findings about really much discussion.
9:33
Speaker 3: But they would have to do that.
9:35
Speaker 4: They would have to say that no, that this is wrong,
9:39
Speaker 4: and you know it's the Supreme Court. They could do
9:41
Speaker 4: it on the shadow docket in the procurium opinion with
9:44
Speaker 4: long descents.
9:45
Speaker 3: They could.
9:46
Speaker 4: But I do think that the three judge court went
9:49
Speaker 4: through the process by which Alabama did this in twenty
9:54
Speaker 4: twenty three, which is the map that would come into effect,
9:58
Speaker 4: and great detail, and spend a lot out of time
10:01
Speaker 4: basically making their case for both intentional discrimination and for
10:04
Speaker 4: trying to comport with Calais. And so they were seeking
10:09
Speaker 4: to be faithful to what the Supreme Court did. They
10:11
Speaker 4: were not saying, you know, we're not going to follow.
10:14
Speaker 4: They actually said that CALAI gives greater way to making
10:17
Speaker 4: sure the Voting Rights Act is closer to the Constitution,
10:21
Speaker 4: and they said that really should only be applied in
10:23
Speaker 4: cases where there's reasonable suspicion of intentional discrimination. When they
10:28
Speaker 4: make that case, they also spend a lot of time
10:30
Speaker 4: trying to make the case that this was race and
10:33
Speaker 4: not party, even though the two were intertwined by talking
10:37
Speaker 4: about how in Alabama even white Democrats find a heart
10:40
Speaker 4: to vote for a black candidate, How black Republicans don't
10:44
Speaker 4: do very well with Republican voters, and how there are
10:47
Speaker 4: many relatively socially conservative black Alabamians but they vote Democratic
10:52
Speaker 4: because of the party's position on race issues as opposed
10:56
Speaker 4: to a Publican party. I'm kind of paraphrasing what the
10:58
Speaker 4: court said, so I mean, I think it's struggle. I
11:00
Speaker 4: mean the Supreme Court standard in Cala saying you have
11:03
Speaker 4: to share it's race and that party is an incredibly
11:06
Speaker 4: difficult standard. And we'll see if the Supreme Court finds
11:09
Speaker 4: what this court did is persuasive, but they certainly spend
11:13
Speaker 4: some pages trying to make that case.
11:15
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
11:18
Speaker 2: this conversation with Columbia Law School professor Richard Brefont. Well,
11:23
Speaker 2: look at what's happening with the maps in South Carolina
11:26
Speaker 2: and Florida. I'm June Grosso and this is Bloomberg. Alabama
11:32
Speaker 2: officials have asked the Supreme Court to reinstate a Republican
11:36
Speaker 2: drawn voting map that would eliminate a majority black congressional
11:40
Speaker 2: district and give the GOP, a likely pickup in the
11:44
Speaker 2: November midterms. The emergency request in the long running legal
11:49
Speaker 2: saga follows a lower court decision on Tuesday that rejected
11:53
Speaker 2: the proposed map for the third time as the product
11:57
Speaker 2: of intentional discrimination against black voters. I've been talking to
12:01
Speaker 2: Columbia Law School professor Richard breflt Rich. I mean, the
12:06
Speaker 2: Supreme Court can't disturb the factual findings of the three
12:11
Speaker 2: judge panel, can it.
12:12
Speaker 3: They'd have to decide what their weight is.
12:15
Speaker 4: The Court went through the blow by blow the process
12:18
Speaker 4: by which the legislature in twenty twenty three enacted the map.
12:22
Speaker 4: It's kind of a funny case because the case comes
12:25
Speaker 4: up to the Supreme Court based on what the legislature
12:28
Speaker 4: did just like a couple of weeks ago. That's the
12:30
Speaker 4: one that basically said we're putting off the primaries. But
12:34
Speaker 4: it was the Supreme Court, by lifting the injunction, that
12:36
Speaker 4: put the twenty twenty three map back into effects of
12:39
Speaker 4: this case is very much about the twenty twenty three map,
12:43
Speaker 4: and with this Court gives a lot of weight to
12:45
Speaker 4: the fact that the legislature in twenty twenty three, when
12:48
Speaker 4: it was told to remedy a vote dilution finding didn't
12:52
Speaker 4: really do that that and the process by which they
12:55
Speaker 4: did and the factors they cited and the findings they
12:58
Speaker 4: issued all smacked of intention discrimination. So it's kind of
13:02
Speaker 4: weird because in some ways it's not really a review
13:05
Speaker 4: of what the legislature just did. It's review of what
13:09
Speaker 4: they did three years ago.
13:11
Speaker 3: And the law has changed.
13:12
Speaker 4: Since then with KELA, So it's kind of like putting
13:15
Speaker 4: yourself back into what things were like then and trying
13:18
Speaker 4: to figure out with the legislature acting unconstitutionally when it
13:23
Speaker 4: did what it did in refusing to create the black
13:27
Speaker 4: majority district that they had been more or less directed
13:30
Speaker 4: to do.
13:31
Speaker 2: So, I mean, it sounds like it would be more
13:33
Speaker 2: of a stretch for the Supreme Court to reverse this
13:38
Speaker 2: ruling than to affirm it.
13:39
Speaker 4: Or on the other hand, they could of course stay it,
13:43
Speaker 4: which they have been known to do, and let the
13:45
Speaker 4: twenty twenty three I mean, that's effectively what they did
13:48
Speaker 4: three years ago, or in the Milligan case, they stayed
13:51
Speaker 4: the Court's decision striking down the twenty twenty one map,
13:55
Speaker 4: and then a year and a half later they sustained
13:57
Speaker 4: the lower corporate after having blocked their decision for a
13:59
Speaker 4: year and a half.
14:00
Speaker 3: It is not out of the question, given that.
14:02
Speaker 4: History, that they might stay this injunction, allow the election
14:08
Speaker 4: to go forward on the twenty twenty three map, and
14:10
Speaker 4: then conceivably this case comes up on the merits the
14:14
Speaker 4: next year. I mean, I don't want to predict that,
14:17
Speaker 4: but it's not out of the question that they would
14:20
Speaker 4: simply stay this, possibly on Percell grounds. Percell is the
14:24
Speaker 4: one about not acting too close to the election, but
14:27
Speaker 4: that itself is just a mare's nest, because you know,
14:30
Speaker 4: that's always kind of figure out what's the what's the
14:33
Speaker 4: status quo, and is the status quo the twenty twenty
14:37
Speaker 4: three mappers, the status quo the twenty twenty four map,
14:42
Speaker 4: which this would put back in.
14:44
Speaker 3: It's surprisingly complicated.
14:45
Speaker 2: I mean, the Supreme Court hasn't been particularly solicitous of
14:50
Speaker 2: the percel principle lately, shall we say, I mean, do
14:53
Speaker 2: they even pay attention to it anymore.
14:55
Speaker 4: We're very vigorous about it sometimes, but it's not clear
14:57
Speaker 4: that they think it applies to them. It really very
15:00
Speaker 4: much about lower courts. I mean, after all, calay itself
15:03
Speaker 4: as the mess we've seen in Louisiana and Alabama. CALA
15:07
Speaker 4: itself has kind of been consistent with the per Sell principle.
15:10
Speaker 4: If they were serious about it, they would have said
15:12
Speaker 4: we're not going to apply it to this year, or
15:14
Speaker 4: they would have decided much earlier, or they would have
15:16
Speaker 4: waited to left the election season was over.
15:18
Speaker 2: And because IVY has moved the special primaries to August,
15:25
Speaker 2: that gives a Supreme Court more cover, more time.
15:30
Speaker 4: I guess, yeah, right, But they don't have a lot
15:32
Speaker 4: of time, I think because in order to have that
15:34
Speaker 4: primary in August, I mean, a lot of the opinion
15:37
Speaker 4: goes through the and a lot of the trial testimony
15:40
Speaker 4: in this case on this injunction was about how easy
15:43
Speaker 4: or hard is it going to be for the election
15:44
Speaker 4: administrators to redraw the lines and to basically to move
15:49
Speaker 4: around all of the voter information and make sure voters
15:52
Speaker 4: are in the right place, what their precincts are, and
15:54
Speaker 4: that they're voting in our place. And normally this is
15:57
Speaker 4: a process that takes several months, but it would have
15:59
Speaker 4: to be done very soon because the primary might not
16:02
Speaker 4: be until August. Candidates have to file before that. I
16:05
Speaker 4: don't know the details of the Alabama process, but we're
16:09
Speaker 4: now three three and a half months before that primary.
16:12
Speaker 4: Typically you need to candidates need to file before then
16:15
Speaker 4: and know what districts they're running in, and the election
16:19
Speaker 4: commissioners the state local election boards need to have that
16:22
Speaker 4: done ASAA. And so I think, actually, if the Court's
16:27
Speaker 4: going to do something here, I expect they'll beat this
16:30
Speaker 4: week next week.
16:31
Speaker 3: I mean, they really don't have much time.
16:32
Speaker 4: However, this election is going to happen. I think the
16:35
Speaker 4: administrators need to know this already. I mean, they need
16:38
Speaker 4: to know it. Yesterday they said they need to know
16:40
Speaker 4: it very soon, and the candidates need to know it
16:43
Speaker 4: so they know where they're running. So hopefully, I mean
16:46
Speaker 4: what day of the weeks this is Wednesday? I mean,
16:49
Speaker 4: they really should do it this week or you know,
16:51
Speaker 4: worse over the weekend, but in early next week. And
16:53
Speaker 4: they've got obviously, this is while they're also doing all
16:55
Speaker 4: of their other major cases, right.
16:57
Speaker 2: And the Alabama Director of Elections had testified that it
17:00
Speaker 2: will take a chaotic, decentralized, and herculean effort for officials
17:05
Speaker 2: in this office and counties to reassign voters to new districts.
17:10
Speaker 2: If the Supreme Court reversed this, it would open them
17:13
Speaker 2: up to more claims of partisanship.
17:17
Speaker 4: Yeah, I mean, and again I think maybe less likely
17:20
Speaker 4: than reverses stay because that in some ways that comes
17:22
Speaker 4: across as well.
17:23
Speaker 3: I mean, in some sense it almost makes sense.
17:25
Speaker 4: We don't have time to think about this, and it
17:27
Speaker 4: just it really turns on what you think the status
17:29
Speaker 4: quo it. I think it would be hard for them
17:31
Speaker 4: to reverse it on the shadow docket in some early
17:35
Speaker 4: because there's a lot of substance here.
17:36
Speaker 3: That doesn't mean they won't. I think a stay is.
17:38
Speaker 4: More plausible because the state can emphasize, you know, the
17:42
Speaker 4: fact that these are heard issues, but that there's an
17:44
Speaker 4: election happening, and that the baseline is the twenty twenty
17:49
Speaker 4: three map, which the state legislature did adopt, was the
17:52
Speaker 4: twenty four map was imposed by a quarter Special Master,
17:56
Speaker 4: and the spring Cut has tended to prefer maps that
17:59
Speaker 4: were adopt by the legislature's most accord impost one. So
18:02
Speaker 4: it would not surprise me if there was a stay.
18:04
Speaker 4: I think a substan of reversal would be a.
18:06
Speaker 3: Lot more work.
18:07
Speaker 2: Since the Calais decision, Southern states have been in a
18:12
Speaker 2: sort of frenzy to reshape voting districts to eliminate House
18:16
Speaker 2: seats held by black representatives. But yesterday, for the second time,
18:22
Speaker 2: South Carolina state senators adjourned without drawing up a new
18:26
Speaker 2: map to eliminate that state's one majority black House seat.
18:32
Speaker 2: Five Republicans joined Democrats, basically saying it was too late
18:37
Speaker 2: because tens of thousands of votes had already been cast
18:41
Speaker 2: and what would they do about that?
18:43
Speaker 4: But I remember had already started in Louisiana when the
18:45
Speaker 4: state changed it, and I think it was about to start,
18:47
Speaker 4: and they've already started in Alabama. I do wonder about
18:51
Speaker 4: South Carolina whether one thing is it may be that
18:53
Speaker 4: it's so late that Trump can't primary them as he
18:56
Speaker 4: did the Republicans who didn't go his way in Indiana.
18:59
Speaker 4: And the other of course, the district is getting rid
19:01
Speaker 4: of Jim Clyburn. He is in his eighties. He's an
19:05
Speaker 4: icon of South Carolina.
19:06
Speaker 3: It maybe that.
19:07
Speaker 4: They're kind of banking on him retiring, or that it
19:11
Speaker 4: may be easier in a future year, like next year,
19:15
Speaker 4: to get rid of it. I'm just speculating, maybe that
19:17
Speaker 4: they might change it for twenty twenty eight, and maybe
19:20
Speaker 4: at that point they think they would give him kind
19:23
Speaker 4: of a signal.
19:24
Speaker 3: To retire, and it would be more of a blind slate.
19:27
Speaker 4: I think they may they may not want to be
19:30
Speaker 4: seen as taking out, you know, kind of a longstanding
19:34
Speaker 4: important figure in the state, and then that it might
19:36
Speaker 4: be easier that he retires or if they rewrite the map,
19:40
Speaker 4: that might persuade him to retire.
19:42
Speaker 3: Right now, it's too late.
19:43
Speaker 2: And in Florida, those four seats that dessanti Is created,
19:48
Speaker 2: a dessanta Is appointee ruled that the state could continue
19:52
Speaker 2: to use those even though they have a law against
19:56
Speaker 2: partisan jerrymandering, and even though a descent aid who drew
20:01
Speaker 2: the new map said that he had done so based
20:04
Speaker 2: partly on the part is in breakdown of voters. But
20:08
Speaker 2: still the judge said there was insufficient evidence of impermissible intent,
20:14
Speaker 2: and he also cited the Percel principle to keep in
20:16
Speaker 2: place the map that just was made in May.
20:21
Speaker 4: That is a problem with the per Cell principle is
20:23
Speaker 4: that it only applies to courts. It doesn't apply to legislatures,
20:27
Speaker 4: so they can do whatever they want. And indeed, you
20:29
Speaker 4: see the Alabama three judge courts basically saying, well, the
20:33
Speaker 4: reason we're doing this is at this point we're concerned
20:36
Speaker 4: about the disruption caused by the legislatures. So we're not
20:39
Speaker 4: so concerned about our disruption because for one thing, also,
20:41
Speaker 4: the plaintiffs came to court instantly.
20:43
Speaker 3: Yeah.
20:43
Speaker 4: The other thing that I found troubling, and I haven't
20:45
Speaker 4: read the opinion of the judge in Florida about just
20:48
Speaker 4: the news accounts, is that he raised some questions about
20:51
Speaker 4: in some sets the constitutionality of the Florida Constitutional Provision
20:55
Speaker 4: that Bar's part is in Jerrymannerin because it was enacted
20:59
Speaker 4: as part of a general provision dealing with districting, and
21:03
Speaker 4: it provided for some attention to race, and he suggested, well,
21:07
Speaker 4: maybe that's unconstitutional now after Cala, which I don't know
21:11
Speaker 4: that that's right, but he raised that question, and if
21:14
Speaker 4: that's the case, the whole amendment fails. I mean, again,
21:16
Speaker 4: it's a pretty audacious argument to say that both at
21:20
Speaker 4: the tention to race, that the Florida Constitution has his unconstitutionals,
21:25
Speaker 4: but then to say that the fact that that part
21:27
Speaker 4: might be taint the entire amendment, and so you can't
21:30
Speaker 4: even enforce the anti partisan part. Leaving aside his factual fighting.
21:35
Speaker 4: Now he is only an intermediate judge. It could go
21:37
Speaker 4: to Florida Supreme Court again, they have the same timing problem,
21:41
Speaker 4: and of course again it is a court.
21:43
Speaker 3: I think all the judges are Republican, and.
21:45
Speaker 4: Many of them, if not most of them, were probably
21:47
Speaker 4: appointed by Governor DeSantis.
21:49
Speaker 2: Six of seven appointed by DeSantis. Always more to come, Rich,
21:53
Speaker 2: Thanks so much. That's Professor Richard Brufault of Columbia Law School,
21:57
Speaker 2: coming up next on the Bloomberg Law Show. President Trump's
22:01
Speaker 2: rapid deregulation strategy appears to be falling flat. I'm June
22:07
Speaker 2: Grosso and you're listening to Bloomberg. Last spring, President Trump
22:13
Speaker 2: called on federal regulators to quickly acts policies using the
22:17
Speaker 2: administrative Procedure Acts good cause exception, which allows for agencies
22:23
Speaker 2: to act without going through the normal notice and comment process.
22:27
Speaker 2: Trump instructed agencies to use the fast track process to
22:32
Speaker 2: get rid of rules that run a foul of recent
22:34
Speaker 2: Supreme Court decisions, including several that weakened agency power. But
22:39
Speaker 2: a Bloomberg Law analysis of rule makings shows that agencies
22:43
Speaker 2: have largely declined to follow that White House strategy. Joining
22:48
Speaker 2: me is an administrative law expert. Carrie Culinisi, a law
22:52
Speaker 2: professor at the University of Pennsylvania who directs the Penn
22:55
Speaker 2: Program on Regulation. Carrie, Will you start by explaining what
23:00
Speaker 2: the Administrative Procedure Acts good cause exception is.
23:06
Speaker 1: Well, we could just start by saying that normally, the
23:11
Speaker 1: requirements for an agency to either adopt a new regulation
23:17
Speaker 1: or to rescind an existing regulation calls for the agency
23:22
Speaker 1: to go through a series of step procedural steps that
23:26
Speaker 1: are outlined in the Administrative Procedure Act. Basically, that means
23:31
Speaker 1: they have to publish a notice of proposed rulemaking, take
23:36
Speaker 1: public comment on that proposal, digest those comments, and then
23:42
Speaker 1: they can issue the final rule. However, the Administrative Procedure
23:47
Speaker 1: Act contemplates that there may be times when those steps
23:52
Speaker 1: are not needed, or when emergency situations arise when they
23:58
Speaker 1: can't be followed, and those are circumstances that are covered
24:02
Speaker 1: by what is called the good cause exception to notice
24:06
Speaker 1: in comment rule making. You could think about after nine
24:10
Speaker 1: to eleven, for example, when the Federal Aviation Administration put
24:15
Speaker 1: in place requirements for there to be locks on the
24:19
Speaker 1: cabin doors of commercial aircraft. They weren't going to wait
24:24
Speaker 1: around and put out a proposal, take comment, and issue
24:28
Speaker 1: the final rule. They did that just right away by
24:32
Speaker 1: invoking the good cause exception.
24:35
Speaker 2: According to Bloomberg analysis, the agencies really haven't followed that
24:42
Speaker 2: Trump order. So the administration has published about twenty eight
24:46
Speaker 2: hundred rules since the close of the mandated regulatory review period,
24:51
Speaker 2: and only two agencies have used the good cause exception.
24:56
Speaker 2: Why do you think when heads of agencies seem to
24:59
Speaker 2: be so eager to please President Trump, why do you
25:03
Speaker 2: think they haven't gone through with this?
25:06
Speaker 1: Well, the Trump administration has asked for the agencies to
25:12
Speaker 1: reconsider their statutory basis for their decisions, and agencies have already,
25:22
Speaker 1: in issuing these rules, considered very carefully the statutory basis
25:28
Speaker 1: for their decisions. So it's not likely that there are
25:33
Speaker 1: that many rules that are really on shaky legal grounds.
25:40
Speaker 1: They probably would not have been issued in the first place.
25:44
Speaker 2: I remember, during his first administration, Trump came out with
25:49
Speaker 2: all these papers, piled up regulations and talked about getting
25:54
Speaker 2: rid of them. Did they accomplish much in the first
25:57
Speaker 2: term getting rid of regulations?
26:00
Speaker 1: Not nearly as much as they claimed, nor probably as
26:03
Speaker 1: much as most people think they did. In fact, in
26:07
Speaker 1: that famous press conference where he stood aside a huge
26:12
Speaker 1: stack of papers even taller than he is on one side,
26:16
Speaker 1: representing the regulatory burdens of today, and then there was
26:20
Speaker 1: on the other side of him a small stack of
26:23
Speaker 1: papers representing regulations from the nineteen sixties. And they maybe
26:28
Speaker 1: went up to his shin and he said, you know,
26:30
Speaker 1: we're going to get rid of all these regulations and
26:33
Speaker 1: get us back down to where we were in the
26:35
Speaker 1: nineteen sixties. Well, later in that very same day, his
26:40
Speaker 1: chief of regulatory matters, who's now a sitting judge on
26:45
Speaker 1: the DC Circuit, she came out and talked to the
26:48
Speaker 1: press and said, well, we probably can't do that because
26:53
Speaker 1: the statutes that Congress has passed calls for a lot
26:57
Speaker 1: of these voluminous regulation, and unless you're going to amend
27:02
Speaker 1: the statutes, you can't get rid of the regulations. And
27:08
Speaker 1: in point of fact, the first administration didn't achieve very
27:12
Speaker 1: much compared with their rhetoric in terms of regulatory reform,
27:16
Speaker 1: and so far there has not been a lot of
27:22
Speaker 1: rules that have been removed or relaxed. That's not really
27:26
Speaker 1: been the kind of changes that this first year, year
27:30
Speaker 1: and a half now of the second Trump administration can
27:35
Speaker 1: claim as any accomplishment that what they've done more of
27:38
Speaker 1: is shifting around and reducing staffs, reducing enforcement of regulations.
27:45
Speaker 1: But the kind of durable changes where you would take
27:49
Speaker 1: regulations off the books or alleviate the burdens of those
27:54
Speaker 1: regulations a boy, how they're written. That just really hasn't
27:57
Speaker 1: happened anything like level that the President proclaimed he was
28:04
Speaker 1: going to try to do, or maybe even sometimes still
28:08
Speaker 1: claims that he has done. It's much much less.
28:13
Speaker 2: And I also wonder do agencies really want to get
28:16
Speaker 2: rid of the rules and regulations that they use That
28:19
Speaker 2: would make them weaker, wouldn't it.
28:22
Speaker 1: Well, I think you know they're headed by people right
28:25
Speaker 1: now who would be in sync with the President's stated desire,
28:30
Speaker 1: presumably to remove regulations, so that might be a priority.
28:35
Speaker 1: I will say that sometimes businesses don't want to have
28:39
Speaker 1: these regulations removed. They've invested in, whether capital expenditures to
28:46
Speaker 1: comply with air pollution requirements or internal computer systems to
28:52
Speaker 1: comply with various other kinds of regulatory requirements, and those
28:57
Speaker 1: are some costs right now. And also so the last
29:00
Speaker 1: thing they probably want is for competitors to be able
29:04
Speaker 1: to come into the marketplace who don't have to make
29:09
Speaker 1: those sorts of investments.
29:11
Speaker 2: So is Trump, instead of the deregulatory push, trying more
29:15
Speaker 2: to control those at the top of the agencies by,
29:19
Speaker 2: for example, so many firings.
29:22
Speaker 1: Yeah, I think there's been certainly a very clear effort
29:26
Speaker 1: to decrease the number of personnel. In some agencies, like
29:30
Speaker 1: the Consumer Financial Protection Bureau, there's been almost decimation of
29:36
Speaker 1: the internal operations on a day to day basis. And
29:43
Speaker 1: at other agencies there have been personnel that have been
29:45
Speaker 1: moved to different parts of the country and that demoralizes staff.
29:50
Speaker 1: We've seen a decline in research offices within various administrative agencies.
29:57
Speaker 1: This also, by the way, makes it more difficult if
30:00
Speaker 1: you want to deregulate if you have fewer personnel to
30:05
Speaker 1: help you. And I'm laughing here, but it's not necessarily
30:08
Speaker 1: a laughing matter, because it is a way of really
30:11
Speaker 1: undercutting the efficacy of government agencies that are dedicated to
30:17
Speaker 1: protecting the public from various harms that Congress has told
30:21
Speaker 1: them to work on. But on the other hand, it's
30:24
Speaker 1: just a different style of quote unquote deregulating than actually
30:29
Speaker 1: changing the rules. And I think when most people have
30:33
Speaker 1: historically thought about deregulation. It's been thinking that rules have
30:38
Speaker 1: changed or rules have been taken off the books. We've
30:41
Speaker 1: gone from that big stack of papers down to a
30:44
Speaker 1: small stack of papers. And that's what's just not happening.
30:48
Speaker 1: And that's where the longer term effect of an administration
30:54
Speaker 1: can really happen. If they really can make changes to
30:58
Speaker 1: the rules on the books or peel rules back from
31:01
Speaker 1: the books. That's so far not been what the Trump
31:04
Speaker 1: administration has accomplished.
31:06
Speaker 2: Let's say another administration, the next administration is a democratic
31:11
Speaker 2: administration that believes in more government. How difficult is it
31:16
Speaker 2: to get these agencies back up to what they were
31:21
Speaker 2: before Trump.
31:22
Speaker 1: Well, it's a managerial challenge of hiring people, of recruiting
31:27
Speaker 1: staff that probably shouldn't be thought of as a trivial one.
31:32
Speaker 1: But it's a different kind of challenge than actually going
31:36
Speaker 1: through that notice and comment process of trying to put
31:42
Speaker 1: rules back on the books. I should also say that
31:46
Speaker 1: the Trump administration has reduced the enforcement scrutiny, so rules
31:53
Speaker 1: that are on the books are not getting enforced as
31:56
Speaker 1: vigorously as they may have in the past, and that's
32:01
Speaker 1: something that a new administration can readily pick back up.
32:06
Speaker 1: As well, and any business leaders that are listening to
32:11
Speaker 1: this ought to be very careful not to think, well,
32:14
Speaker 1: there's less enforcement, so I can cut corners on compliance
32:19
Speaker 1: with the rules, because there's a general statute of limitations
32:24
Speaker 1: that will extend into a new administration. And if that
32:30
Speaker 1: new administration is a democratic one, then they could conceivably
32:36
Speaker 1: re engaged enforcement arms and go after people who were
32:41
Speaker 1: relaxing their compliance during the Trump administration. So just because
32:45
Speaker 1: the Trump administration is a little more easy on business
32:48
Speaker 1: in terms of enforcement, is probably not a good or
32:52
Speaker 1: safe reason for businesses to relax their vigilance when it
32:57
Speaker 1: comes to regulatory compliance.
33:00
Speaker 2: And Carrie tell us about the administrative law cases that
33:04
Speaker 2: are on the Supreme Court's docket.
33:06
Speaker 1: Well, there's two prominent cases before the Supreme Court right
33:11
Speaker 1: now in the administrative law area that deal with independent agencies.
33:16
Speaker 1: So we in the administrative law community, I think generally
33:20
Speaker 1: expect the Court to overturn of decades long precedent that
33:26
Speaker 1: allowed Congress to create independent agencies and that it means
33:31
Speaker 1: to have agencies that are headed up by officials who
33:35
Speaker 1: can't be removed at will by the president. So the
33:39
Speaker 1: case of Trumphy slaughter squarely has on the Court's agenda
33:45
Speaker 1: here whether to overrule a nineteen thirties decision called Humphreys
33:50
Speaker 1: Executor and a related case called Trumphy Cook involving an
33:56
Speaker 1: attempt by the President to remove a member of the
33:59
Speaker 1: Federal Reserve Board of Governors, Lisa Cook, who the administration
34:05
Speaker 1: claims to had some mortgage improprieties or some such Anyway,
34:10
Speaker 1: the claim there is what counts as a good cause
34:14
Speaker 1: for removing an official that's protected from removal at will
34:19
Speaker 1: by the president. So we have both a series of
34:22
Speaker 1: independent agencies that are protected by at will removal by
34:26
Speaker 1: the president. That's on the agenda of the Court right now,
34:30
Speaker 1: and then also for whatever agencies that might be left
34:34
Speaker 1: as independent, like the Federal Reserve. We think that probably
34:37
Speaker 1: the Court will carve out an exception for the Federal Reserve,
34:41
Speaker 1: although we don't really know. But if it does, what
34:45
Speaker 1: counts as a good cause for removing somebody who's protected
34:50
Speaker 1: from at will removal? They can still be removed for
34:53
Speaker 1: things like negligence, a neglect, dereliction of duty. The terms
34:59
Speaker 1: kind of vary in statutes, but what do they mean,
35:03
Speaker 1: and does a claim of some kind of past failure
35:08
Speaker 1: to check the right boxes on your mortgage application rise
35:12
Speaker 1: to that level. We just never have had a president
35:16
Speaker 1: really trying to test those kinds of provisions. So look
35:19
Speaker 1: for those two cases to be really the blockbuster administrative
35:23
Speaker 1: law cases coming up here in the next month.
35:25
Speaker 2: We may know tomorrow when the Supreme Court announces new decisions.
35:29
Speaker 2: Thanks so much, Carrie. That's Carrie Clinisi of the University
35:33
Speaker 2: of Pennsylvania Law School, And that's it for this edition
35:36
Speaker 2: of The Bloomberg Law Show. Remember you can always get
35:39
Speaker 2: the latest legal news on our Bloomberg Law Podcast. You
35:42
Speaker 2: can find them on Apple Podcasts, Spotify, and at www
35:46
Speaker 2: dot Bloomberg dot com, slash podcast slash Law, and remember
35:51
Speaker 2: to tune into The Bloomberg Law Show every weeknight at
35:54
Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
35:57
Speaker 2: listening to Bloomberg