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Trump Sentencing. Net Neutrality & DEI Programs · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: President elect Donald Trump is scheduled to be sentenced this
0:12
Speaker 2: Fronde for his conviction on criminal charges in the New
0:15
Speaker 2: York hush money case. A jury convicted him back in
0:19
Speaker 2: May of thirty four felony counts in a scheme to
0:22
Speaker 2: hide hush money payments to a porn star during his
0:25
Speaker 2: twenty sixteen campaign, so clearly before he became president. The
0:31
Speaker 2: conviction made Trump the first US president, whether sitting or former,
0:35
Speaker 2: to be convicted of a crime, and now he's basically
0:39
Speaker 2: trying to erase the conviction so that he doesn't become
0:42
Speaker 2: the first felon to be sworn in as the president
0:45
Speaker 2: of the United States. Both the New York trial judge
0:49
Speaker 2: and an appellate judge have refused to put off his
0:52
Speaker 2: sentencing based on his arguments that a president elect is
0:56
Speaker 2: entitled to the same sweeping immunity that a sitting gets.
1:01
Speaker 2: So now Trump is going to the Supreme Court, which
1:04
Speaker 2: has been friendly to his claims of presidential immunity. He's
1:08
Speaker 2: asking the justices to intervene in the state hush money
1:11
Speaker 2: criminal case to prevent his sentencing from going forward quote,
1:16
Speaker 2: the Court should enter an immediate stay of further proceedings
1:20
Speaker 2: in the New York Trial Court to prevent grave injustice
1:23
Speaker 2: and harm to the institution of the Presidency and the
1:27
Speaker 2: operations of the federal government. Joining me is Bloomberg Legal
1:31
Speaker 2: reporter Eric Larson, who's been covering all the proceedings in
1:35
Speaker 2: New York and there have been many Eric tell us
1:37
Speaker 2: about Trump's latest filing with the Supreme Court.
1:41
Speaker 3: So late last night, his lawyers filed a petition with
1:44
Speaker 3: the Supreme Court asking for a stay of the sentencing
1:49
Speaker 3: hearing that is scheduled for Friday morning here in Manhattan.
1:53
Speaker 3: So this was sort of a fast track, sort of
1:56
Speaker 3: unexpected that he was going to go this quickly to
1:58
Speaker 3: the Supreme Court. But earlier a New York appellate judge
2:03
Speaker 3: in Manhattan had agreed with the trial judge and that
2:07
Speaker 3: the sense things should go forward. So with that ruling,
2:10
Speaker 3: he went ahead and went straight to the Supreme Court
2:13
Speaker 3: to request a stay while he continues to press his
2:17
Speaker 3: appeal in New York State Court.
2:19
Speaker 2: So what are the grounds for him asking the Supreme
2:23
Speaker 2: Court to step in.
2:25
Speaker 3: So they're the same arguments that he made with the
2:27
Speaker 3: New York Appellate Court, and with the judge who oversaw
2:30
Speaker 3: the hush money trial, it is all about his interpretation
2:34
Speaker 3: of presidential immunity. Of course, that the broad legal doctrine
2:38
Speaker 3: that was expanded by the Supreme Court last year or
2:41
Speaker 3: in a different criminal case against Trump, where they held
2:44
Speaker 3: for the first time that former presidents have brought immunity
2:47
Speaker 3: from criminal charges related to their official conduct in office.
2:51
Speaker 3: So even though this hush money case relates to his
2:54
Speaker 3: actions before he was elected in twenty sixteen, and even
2:58
Speaker 3: though he was tried convicted last year while he was
3:02
Speaker 3: just a private citizen, I mean, before he was even
3:05
Speaker 3: elected in the November election, notwithstanding all that, he argues
3:09
Speaker 3: that he's protected from this guilty verdict by the concept
3:12
Speaker 3: of presidential immunity. He argues that having this verdict the
3:17
Speaker 3: hanging over him would undermine his authorities and his credibility
3:21
Speaker 3: with world leaders and things like this, all of the
3:23
Speaker 3: reasons that the Supreme Court has previously granted this kind
3:28
Speaker 3: of immunity to presidents to begin with, to make sure
3:30
Speaker 3: that the office of the presidency is powerful and protected
3:33
Speaker 3: and whatnot. Clearly that is not how the Manhattan District
3:36
Speaker 3: Attorney sees it, and that's also not how the judge
3:39
Speaker 3: thought or the appellate judge who ruled against him. Will
3:43
Speaker 3: see what the Supreme Court thinks. But for now, he's
3:46
Speaker 3: saying that even though he's just president elect, this immunity
3:50
Speaker 3: should be extended to him.
3:52
Speaker 2: The judge in this case has already said that he's
3:55
Speaker 2: not going to sentence him to time or probation or anything.
4:00
Speaker 2: It's sort of like a formality, but it will put
4:03
Speaker 2: on the record that he's been convicted of felonies.
4:07
Speaker 3: It's an unconditional discharge, is what Judge Murchon called it.
4:11
Speaker 3: It means that, you know, because of these unusual circumstances
4:15
Speaker 3: with a defendant being convicted but then winning a presidential
4:19
Speaker 3: election before being sentenced, the judge went ahead and said, look,
4:22
Speaker 3: I'm not actually going to sentence you to any time
4:25
Speaker 3: behind bars, or probation or a fine or anything. He's
4:28
Speaker 3: getting an unconditional discharge, which means zero penalty other than
4:32
Speaker 3: having the conviction remain intact. But it's that that Trump
4:37
Speaker 3: wants to stop from happening. He doesn't even want that
4:41
Speaker 3: hanging over him, you know. His lawyer also made the
4:44
Speaker 3: argument that the appellate judge said was pretty weak. But
4:47
Speaker 3: his lawyer did argue that there's always the chance that
4:50
Speaker 3: Judge Mrchan could backtrack and sentence him to time in prison,
4:55
Speaker 3: even though he said he wouldn't. But the judge didn't
4:57
Speaker 3: really buy that argument. You know, if this this thing
5:00
Speaker 3: goes ahead on Friday, clearly Trump is not at any.
5:02
Speaker 2: Risk of going to jail, and he doesn't have to
5:05
Speaker 2: even be at the sentencing, right, that's right.
5:07
Speaker 3: Jes Mareschawan told him that he had the option to
5:09
Speaker 3: appear virtually according to court papers, Trump is already indicated
5:13
Speaker 3: that that is what he would do.
5:14
Speaker 1: What's unusual here.
5:16
Speaker 2: One unusual thing is that normally you have to wait
5:20
Speaker 2: until a case is litigated in the state courts before
5:25
Speaker 2: you go to the Supreme Court.
5:27
Speaker 1: And in this case, he's still appealing to the Court.
5:29
Speaker 3: Of Appeals, right, right, He does plan to continue to
5:33
Speaker 3: press the appeal through the New York state court system.
5:36
Speaker 3: He did say in his filing with the Supreme Court
5:39
Speaker 3: last night that he was filing a similar petition for
5:42
Speaker 3: a state simultaneously with the New York Court of Appeals,
5:45
Speaker 3: the highest court in New York. We couldn't verify that
5:48
Speaker 3: that had been filed. In fact, the court that it
5:51
Speaker 3: hadn't been, but it seems that Trump is at least
5:53
Speaker 3: planning to file something there to sort of connect the
5:57
Speaker 3: dots to the Supreme Court, as it were. But clearly
6:00
Speaker 3: time is of the essence and Trump's view, that's what
6:02
Speaker 3: they've said all along here, So that might be one
6:05
Speaker 3: of the reasons why they just trumped straight to the
6:07
Speaker 3: Supreme Court. Of course, Trump is due to be inaugurated
6:10
Speaker 3: just ten days after this sentencing hearing exept for Friday.
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Speaker 2: Right now, since the Second Circuit is in the purview
6:17
Speaker 2: of Justice Sonya Soto Mayor, she's asked the Manhattan District
6:22
Speaker 2: attorney for papers.
6:24
Speaker 3: That's right. She directed Alvin Bragg, the district's attorney, to
6:28
Speaker 3: respond to Trump's filing by tomorrow morning. So we would expect,
6:33
Speaker 3: or we hope, that we'll get some ruling from the
6:35
Speaker 3: Supreme Court by tomorrow night. Given that the sentencing hearing
6:40
Speaker 3: is happening Friday morning, it would.
6:43
Speaker 2: Take five Supreme Court justices to grant to stay. In
6:47
Speaker 2: the case, of course, there were six justices who voted
6:52
Speaker 2: to give him that broad presidential immunity from criminal prosecution.
6:57
Speaker 2: And another point is that it's Trump that's been asking
7:01
Speaker 2: for these delays in sentencing.
7:03
Speaker 1: It's been the.
7:04
Speaker 2: Strategy of delay, delayed, delay, and now that he's been
7:08
Speaker 2: elected president, he doesn't want to just delay the sentencing.
7:11
Speaker 1: He wants to eliminate the sentencing.
7:14
Speaker 3: That's right. That's one of the points that the appellate
7:16
Speaker 3: judge made at the hearing yesterday. She said that, you know,
7:20
Speaker 3: this timing was so inconvenient for Trump that he should
7:25
Speaker 3: have gone ahead and went through with the sentencing earlier.
7:28
Speaker 3: It's been delayed at least a couple of times, and
7:29
Speaker 3: the most recent delay was as a result of the election,
7:33
Speaker 3: but it could have happened months before the election, so
7:36
Speaker 3: that that is a strong argument in favor of the prosecution.
7:41
Speaker 3: But you know, Trump has had good luck with the
7:44
Speaker 3: Supreme Court in previous arguments around presidential immunity, so it's
7:48
Speaker 3: impossible to know how much weight they'll give that particular
7:51
Speaker 3: argument exactly.
7:52
Speaker 2: And he has been using that controversial ruling on presidential
7:58
Speaker 2: immunity to try to get this New York hush money
8:02
Speaker 2: conviction thrown out, but the judge has denied his motions twice.
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Speaker 3: So there's really two separate orders from Judge Marschan that
8:11
Speaker 3: Trump is appealing that both relates to presidential immunity. The
8:15
Speaker 3: first decision was from December, when Judge Mrshan rejected Trump's
8:19
Speaker 3: argument that presidential immunity ruling from the Supreme Court undermines
8:24
Speaker 3: the verdict. He claims that the trial itself had been
8:27
Speaker 3: painted by witness testimony and other evidence that would not
8:31
Speaker 3: have been allowed at trial if that Supreme Court standard
8:35
Speaker 3: on presidential meunity had been in place, which it wasn't.
8:38
Speaker 3: It wasn't handed down until a few months later. So
8:41
Speaker 3: this is attorney argues that no, whatever evidence might have
8:45
Speaker 3: been disallowed under that standard wouldn't have effected the outcome
8:48
Speaker 3: of the verdict, that the remaining evidence was so strong,
8:51
Speaker 3: And then indeed that's what the judge agreed and ruled
8:55
Speaker 3: against Trump on that. The other argument was the sort
8:59
Speaker 3: of broader argument that the judge ruled earlier this month,
9:03
Speaker 3: you know, rejecting Trump's argument that the broad presidential immunity
9:08
Speaker 3: extends to a president elect. That was the bigger argument, Trump,
9:12
Speaker 3: that I won the election. Therefore, this whole criminal case
9:15
Speaker 3: should be thrown out, including the jury's verdict.
9:19
Speaker 1: This is the only case that went to trial.
9:22
Speaker 2: And the only prosecution really that that has been successful
9:28
Speaker 2: against Trump.
9:29
Speaker 1: He's he's managed to.
9:32
Speaker 2: Get rid of the federal cases and the Atlantic case
9:36
Speaker 2: is also in doubt.
9:38
Speaker 3: Right, So the Atlanta case is still hanging out there,
9:41
Speaker 3: although it's definitely in limbo. It's suffering its own problem.
9:44
Speaker 3: But the two big federal prosecutions of Trump, they were
9:48
Speaker 3: both dropped by the Justice Department after Trump won the election,
9:51
Speaker 3: simply because of the long standing policy of not prosecuting
9:56
Speaker 3: a sitting president. They knew that the cases wouldn't be
9:59
Speaker 3: able to proceed trial while Trump was in office, and
10:02
Speaker 3: therefore they dropped those charges. But even before he won,
10:06
Speaker 3: that case over the twenty twenty election was significantly narrowed
10:11
Speaker 3: during that Supreme Court decision that we discussed, where they
10:15
Speaker 3: gave him broad immunity from criminal charges over anything related
10:18
Speaker 3: to his official conduct. But yeah, the presidential immunity doctrine
10:22
Speaker 3: is very broad, and that's why those two criminal cases
10:25
Speaker 3: were dropped by the Justice Department. That's also while he'll
10:29
Speaker 3: argue to have that Georgia State case, which is also
10:31
Speaker 3: over the twenty twenty election, will argue to have that
10:34
Speaker 3: one tossed out as well. But like they said, that
10:37
Speaker 3: case is already suffering from it from his own problems
10:39
Speaker 3: because the prosecutor was thrown out of the case by
10:42
Speaker 3: an appealed court over an affair she was having with
10:45
Speaker 3: an investigator. So totally separate drama.
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Speaker 1: From a purely legal perspective.
10:50
Speaker 2: It's going to be fascinating to see what the Supreme
10:54
Speaker 2: Court does here.
10:55
Speaker 3: No one really knows what's going to happen, but it
10:58
Speaker 3: could be an interesting test to see how far the
11:01
Speaker 3: Supreme Court is going to go to help Trump out
11:04
Speaker 3: even before he takes office.
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Speaker 2: Well, at least this should be resolved quickly one way
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Speaker 2: or the other. Thanks so much, Eric, That's Bloomberg Legal
11:12
Speaker 2: reporter Eric Larson coming up next on the Bloomberg Law Show.
11:16
Speaker 2: Net neutrality appears to be dead after a Court of
11:19
Speaker 2: Appeals ruling deals a blow to the FCC. I'm June
11:24
Speaker 2: Grosso and you're listening to Bloomberg. After decades of fighting,
11:29
Speaker 2: it appears that the battle over net neutrality rules is over.
11:34
Speaker 2: The US Court of Appeals for the Sixth Circuit has
11:37
Speaker 2: acts the Federal Communications Commissions net neutrality rules, saying the
11:42
Speaker 2: agency didn't have the authority to issue the rules. The
11:45
Speaker 2: decision demonstrates the impact of the Supreme Court's ruling in
11:50
Speaker 2: June doing away with the Chevron doctrine and holding that
11:53
Speaker 2: judges shouldn't yield to agency's readings of unclear laws. Joining
11:59
Speaker 2: me is Christopher You, a professor at the University of
12:01
Speaker 2: Pennsylvania's Carrie Law School who's written extensively on administrative and
12:06
Speaker 2: telecommunications law. Will you start by explaining just what net
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Speaker 2: neutrality is.
12:12
Speaker 4: Net neutrality is a political fight that's been going on
12:15
Speaker 4: since the early two thousands. On the one side are
12:19
Speaker 4: people who believe that ISPs provide Internet service to homes
12:24
Speaker 4: and businesses shouldn't exercise any editorial control over the content
12:32
Speaker 4: that they provide access to. Opponents of network neutrality argue
12:37
Speaker 4: that in the modern Internet, it has become important for
12:41
Speaker 4: ISPs to filter certain content, sometimes for security reasons, sometimes
12:48
Speaker 4: to avoid spam and unwanted content, sometimes to enforce copyright laws,
12:55
Speaker 4: but it can also be to provide a more refined
12:58
Speaker 4: and tailored service to customers who want increasingly more diverse
13:04
Speaker 4: offerings from the Internet. So, for example, online gamers are
13:08
Speaker 4: extremely sensitive to delay, and they may want content that's
13:13
Speaker 4: prioritized over other content. Another example is if you're on
13:17
Speaker 4: your cell phone and you're taking a voice call. If
13:20
Speaker 4: you're in a low bandwidth spot, you might want the
13:23
Speaker 4: system to hold your email and continue to give you
13:25
Speaker 4: your voice call to make sure that you get good
13:29
Speaker 4: quality voice communications, and the fact that you have to
13:32
Speaker 4: wait for your email is not a big deal.
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Speaker 2: So the Sixth Circuit rule that the FCC doesn't have
13:38
Speaker 2: the authority to issue the net neutrality rules?
13:42
Speaker 1: What did they base their determination on?
13:45
Speaker 4: The Sixth Circuit basis determination on a Supreme Court decision
13:49
Speaker 4: that change the rules that courts will use to determine
13:55
Speaker 4: the legality of an agency's interpretation of a statute. Before
13:58
Speaker 4: this decision Loperbrite, which the Supreme Court rendered in June
14:02
Speaker 4: twenty twenty four, courts tended to defer to the agency's
14:07
Speaker 4: interpretation of the statute. That is, as long as it
14:10
Speaker 4: was reasonable within the broad range of possibility, courts would
14:15
Speaker 4: accept the agency interpretation. And on the basis of this principle,
14:21
Speaker 4: we've seen agencies flip flop and their interpretations of the
14:25
Speaker 4: legality of net neutrality rules, saying that initially that they
14:29
Speaker 4: should adopt a more deregulatory approach starting in two thousand
14:32
Speaker 4: and two, then changing in twenty ten to a more
14:35
Speaker 4: regulatory approach, then back to a more deregulatory approach in
14:39
Speaker 4: twenty eighteen, and back to a more regulatory approach in
14:41
Speaker 4: twenty twenty four. And what the Supreme Court held is
14:45
Speaker 4: that this sort of flip flopping is inconsistent with the
14:48
Speaker 4: rule of law, inconsistent with the role of courts and agencies,
14:52
Speaker 4: and is actually hurting consumers and people who have to
14:56
Speaker 4: comply with law by creating a great deal of uncertainty.
15:00
Speaker 4: And after June twenty twenty four, instead of deferring to
15:03
Speaker 4: agency interpretations, courts are supposed to exercise their own judgment
15:08
Speaker 4: as to the best reading of the statute and apply that.
15:11
Speaker 4: And that's what the Sixth Circuit did.
15:13
Speaker 1: Is it the fault of.
15:14
Speaker 2: The FCC for flip flopping on its.
15:18
Speaker 1: Readings of the statute?
15:20
Speaker 2: The Court said, applying low or bright means we can
15:22
Speaker 2: and the FCC's vacillations.
15:26
Speaker 4: The fact that the FCC was vacillating on the right
15:29
Speaker 4: interpretation of the statute when deciding whether to apply that
15:32
Speaker 4: neutrality isn't really the fault of the FCC. In fact,
15:36
Speaker 4: that complied with the law that existed at the time.
15:40
Speaker 4: The decision that called for courts to defer to agency
15:43
Speaker 4: decisions that's called Chevron and has been in place since
15:46
Speaker 4: nineteen eighty six explicitly recognized that agencies are likely to
15:52
Speaker 4: change their minds and in fact endorse that idea. So
15:56
Speaker 4: what the prior regime envisioned is that vrocations of statutes
16:01
Speaker 4: were policy decisions, and just like say, for example, foreign
16:05
Speaker 4: policy changes with the advent of a new administration, we
16:09
Speaker 4: would expect this degree of policy to change as well.
16:14
Speaker 4: The problem the Supreme Court had with that is statutes
16:17
Speaker 4: aren't policy. Statutes are law, and the change of administration
16:21
Speaker 4: does not involve the change in the statute or change
16:23
Speaker 4: in the law. It's a change in the interpretation of
16:26
Speaker 4: the law. And that opens the door to the claim
16:29
Speaker 4: that interpreting law is policy, not lawmaking. And that's where
16:35
Speaker 4: the Supreme Court said, we don't do that anymore. If
16:38
Speaker 4: you want to change the statute, you need to actually
16:40
Speaker 4: amend it. It's not open for reinterpretation just because someone
16:44
Speaker 4: else occupies the White House.
16:45
Speaker 2: Lober Bright said that prior decisions that relied on that
16:49
Speaker 2: doctor the Chevron doctrine still have binding power, starry decisives.
16:55
Speaker 2: How did the Sixth Circuit get around that?
16:57
Speaker 4: The issue you're raising has been around owned with us
17:00
Speaker 4: since certainly the days of the war in court. I
17:03
Speaker 4: mean to give you a simple example. Gideon versus Wainwright
17:07
Speaker 4: announced that all criminal defendants must be provided with defense
17:11
Speaker 4: counsel provided by the government. And you know we had
17:14
Speaker 4: never as a country it provided that to indigence. And
17:18
Speaker 4: it raised a question, so does that mean every single
17:21
Speaker 4: conviction going back to the beginning of the Republic was
17:25
Speaker 4: inherently suspect? And what the Supreme Court has developed is
17:29
Speaker 4: a doctrine which is, we will apply our best understanding
17:33
Speaker 4: of the law to all cases that are ongoing, but
17:37
Speaker 4: to cases that are final. We're not going to overturn
17:41
Speaker 4: convictions going back hundreds of years. So the real question is,
17:46
Speaker 4: in a particular matter, if the courts have resolved the issue,
17:51
Speaker 4: the Supreme Court said, we will not disturb that decision,
17:54
Speaker 4: but for new matters involving cases that are still ongoing
17:58
Speaker 4: or cases that are newly submitted, they will apply a
18:02
Speaker 4: new set of principles. Here, every prior decision about net
18:05
Speaker 4: neutrality regarded a different net neutrality order either the declaratory
18:11
Speaker 4: judgment in two thousand and two or orders in twenty ten,
18:14
Speaker 4: twenty fifteen, twenty eighteen, and all of those have been
18:18
Speaker 4: resolved under law, and all of those decisions are now final.
18:21
Speaker 4: The decision in front of the Sixth Circuit involved a
18:24
Speaker 4: order that came out of twenty twenty four that had
18:27
Speaker 4: never been resolved or addressed by a court, and as
18:30
Speaker 4: a result, it was still a live issue, and under
18:33
Speaker 4: the Supreme Court's guidance, the Sixth Circuit applied the current
18:37
Speaker 4: rules that have been placed ince June twenty twenty four
18:39
Speaker 4: to address the legality of the twenty twenty four action.
18:43
Speaker 4: So all they're saying really is that we're not going
18:45
Speaker 4: to upset the decisions regarding the twenty ten, twenty fifteen,
18:48
Speaker 4: twenty eighteen orders. We are going to look at the
18:51
Speaker 4: twenty twenty four order with new eyes under the Supreme
18:55
Speaker 4: Court's current rules for how courts should evaluate agency interpretations
18:59
Speaker 4: of the statue.
19:00
Speaker 2: Does this decision end the legal battle over net neutrality rules?
19:05
Speaker 2: Brendan Carr, who Trump has named as an incoming FCC chair,
19:10
Speaker 2: has been a strong critic of net neutrality.
19:12
Speaker 4: So is this the end the Sixth Circuit decision most
19:16
Speaker 4: likely ends the controversy over the legality of net neutrality.
19:21
Speaker 4: The parties who support the twenty twenty four order that
19:25
Speaker 4: the Sixth Circuit overturned could still appeal the issue to
19:29
Speaker 4: the Supreme Court, and so there remain some possibility that
19:33
Speaker 4: there will be further review of the Sixth Circuit decision.
19:36
Speaker 4: But honestly, having clorked on the court myself and having
19:39
Speaker 4: some experience in how they operate, my guess is that
19:43
Speaker 4: this is not likely to be the kind of case
19:45
Speaker 4: that they take. It doesn't bear the kinds of conflicts
19:49
Speaker 4: between different courts and different parts of the country that
19:52
Speaker 4: has been the hallmark of the types of cases the
19:55
Speaker 4: Supreme Court takes.
19:55
Speaker 1: Theseis as far as lowbribright.
19:58
Speaker 2: In general, are the courts around the country interpreting the
20:02
Speaker 2: decision there differently, are their conflicting decisions out there?
20:08
Speaker 4: There are no conflicting decisions on the net neutrality order,
20:11
Speaker 4: And in fact, the parties who litigated that case before
20:15
Speaker 4: the Sixth Circuit are now bound by that decision and
20:18
Speaker 4: are really obligated to follow it, so they're not really
20:21
Speaker 4: in a position to bring a new challenge to the
20:23
Speaker 4: twenty twenty four order. From a broader perspective, the Sixth
20:26
Speaker 4: Circuit has taken the approach that gives it a great
20:30
Speaker 4: deal of latitude to deviate from prior judicial decisions that
20:36
Speaker 4: presented the same issue but arose from a different agency order.
20:41
Speaker 4: And that actually opens the door to a fairly broad
20:46
Speaker 4: scope of action for courts to revisit issues that had
20:49
Speaker 4: been adjusted by prior courts and hadn't been resolved now.
20:53
Speaker 4: I don't think that's improper for the Sixth Circuit, and
20:55
Speaker 4: in fact, the Supreme Court, by changing the interpretive rules,
20:58
Speaker 4: expects there to be different outcomes. And in fact, if
21:01
Speaker 4: there was too little latitude for courts to apply their
21:05
Speaker 4: own judgment as to the best reading of the statute
21:07
Speaker 4: and instead to continue to defer to what agencies thought
21:11
Speaker 4: were the best reading, that would actually create a very
21:14
Speaker 4: little room for the kinds of changes in law that
21:17
Speaker 4: the Supreme Court has called for. And it's during twenty
21:19
Speaker 4: twenty four decision. I think the Sixth Circuit's opinion, while
21:23
Speaker 4: one of the first to address this issue, is likely
21:26
Speaker 4: to be borne out by further decisions in the future.
21:28
Speaker 1: And do you.
21:29
Speaker 2: Think that we're going to see more federal regulations at
21:33
Speaker 2: the FCC and other agencies followed out or you know,
21:39
Speaker 2: disregarded agencies.
21:41
Speaker 4: Like the FCC are certainly facing a more challenging environment
21:45
Speaker 4: in which courts are likely to be more skeptical of
21:49
Speaker 4: the actions they take. The previous regime gave them deference
21:52
Speaker 4: and so therefore they had a pretty wide latitude to
21:57
Speaker 4: follow the policies that they preferred. Now they're going to
22:00
Speaker 4: have to justify their actions a bit more specifically, and
22:05
Speaker 4: that's going to represent a clear challenge to them.
22:07
Speaker 2: There have been fights over net neutrality for decades. Does
22:11
Speaker 2: it seem odd that now this one court is going
22:14
Speaker 2: to put the whole issue to rest.
22:17
Speaker 4: Courts have to decide close cases all the time, and
22:22
Speaker 4: even if it's a very very narrow issue, they generally
22:26
Speaker 4: don't shy away from resolving those issues, and I think
22:30
Speaker 4: that sort of characterizes what's going on with net neutrality.
22:33
Speaker 4: I think there are good arguments on both sides. I
22:36
Speaker 4: personally agree with the way the Six Circuit resolve the issue,
22:38
Speaker 4: but I understand why other people feel differently. The bigger
22:42
Speaker 4: issue that the Supreme Court addressed is to eliminate the
22:46
Speaker 4: possibility or in this case, the net neutrality. The reality
22:50
Speaker 4: that we saw what was the laws flip flop every
22:53
Speaker 4: time the White House changed party. And in fact, many
22:58
Speaker 4: people would say, if there's a close issue, we're better
23:01
Speaker 4: off having courts resolving it once on the best terms
23:06
Speaker 4: it can and then letting that interpretation stand until Congress
23:11
Speaker 4: sees fit to amend it or not. The world in
23:15
Speaker 4: which we're in where we saw policy flip flop multiple times,
23:20
Speaker 4: is not one that's conducive to creating great Internet connectivity
23:25
Speaker 4: or to creating stable expectations for consumers and Internet users
23:30
Speaker 4: to understand what they're getting. And so, in fact, I
23:32
Speaker 4: think that the fact that there are tough cases is
23:35
Speaker 4: not a reason for courts to shy away from making
23:38
Speaker 4: tough decisions. It doesn't justify allowing judicial decisions to change
23:44
Speaker 4: back and forth with the political wins.
23:46
Speaker 2: Thanks so much for joining me on the show. That's
23:48
Speaker 2: Professor Christopher You of the University of Pennsylvania carry Law School.
23:52
Speaker 2: Coming up next, a new Jersey decision turns the tables
23:56
Speaker 2: on the move to kill DEI programs.
23:59
Speaker 1: This is Bloomberg.
24:01
Speaker 2: The First Amendment right of free association has led to
24:04
Speaker 2: court rulings allowing a gay softball league to strike straight
24:08
Speaker 2: guys from teams, lineups, student groups to bar their doors
24:12
Speaker 2: to members who disagree with their mission, and even some
24:15
Speaker 2: religiously affiliated employers to fire workers who support abortion rights,
24:20
Speaker 2: while a new Jersey Appeals Court ruling is turning the
24:23
Speaker 2: tables by saying that the reverse is true as well,
24:27
Speaker 2: and that private organizations can also deliberately include certain people
24:32
Speaker 2: in their groups. It's the first decision of its kind
24:35
Speaker 2: in the country. A counter to the movement to kill diversity,
24:39
Speaker 2: equity and inclusion programs. Joining me is Alex Ebert Bloomberg
24:44
Speaker 2: Law Senior correspondent who's written about this. Tell us about
24:47
Speaker 2: this new Jersey decision that turned the tables on the
24:51
Speaker 2: movement to n DEI programs.
24:54
Speaker 5: So this decision is groundbreaking and that it flips in away.
24:59
Speaker 5: The Supreme Court's ru is that groups can discriminate when
25:02
Speaker 5: they pick their leaders, and the new Jersey Court is saying, well,
25:05
Speaker 5: if you can discriminate when you pick your leaders exclude people,
25:09
Speaker 5: that means you can discriminate to include people as well.
25:12
Speaker 5: If you're going to get to pick the leadership that
25:14
Speaker 5: will guide your group and enforce your values, like let's
25:18
Speaker 5: say the boy Scouts of America can when it excludes
25:21
Speaker 5: certain people, then that means that you can include specific
25:25
Speaker 5: people for specific leadership position that essentially is DEI.
25:29
Speaker 1: And this had to do with a bar association.
25:32
Speaker 5: It did. Yeah, so bar association litigation is popping up
25:36
Speaker 5: all over the country. You have conservative and libertarian groups
25:39
Speaker 5: in particular, bringing cases against DEI work that bar associations
25:44
Speaker 5: are doing. They're going to sue over leadership spots, over
25:48
Speaker 5: programs for particular attorney groups, and basically anything that sort
25:53
Speaker 5: of looks at race, gender orientation, things like that in
25:57
Speaker 5: order to elevate particular jorneyes that have maybe been disadvantaged
26:01
Speaker 5: in the past. That's what happened here. New Jersey for
26:04
Speaker 5: many years has had a program where they reserve at
26:08
Speaker 5: large leadership positions on committee is for people that are
26:12
Speaker 5: certain disadvantaged groups. So you'll see black lawyer positions reserved.
26:17
Speaker 5: You'll see positions reserved for women, for people that are elderly,
26:21
Speaker 5: for people with disabilities, for people in the LGBTQ community.
26:25
Speaker 5: And this lawsuit was saying, hey, what you're doing is
26:29
Speaker 5: violating this really powerful New Jersey loginst discrimination.
26:33
Speaker 1: So now you're right.
26:34
Speaker 2: It all comes back to one of the first amendments
26:36
Speaker 2: extremely undervalued benefits, the right to tell people to get lost,
26:42
Speaker 2: tell us about some cases in that arena.
26:46
Speaker 5: Yeah, absolutely so. An undervalued part of the First Amendment
26:51
Speaker 5: is this power to associate with people that you want
26:54
Speaker 5: to right. This boils down to if you're starting a club,
26:57
Speaker 5: if you've got a group, you've got the right to association.
27:01
Speaker 5: You can't be forced to join up with people that
27:04
Speaker 5: you don't want to hang out with. Now, courts have
27:06
Speaker 5: interpreted that as saying student groups can bar the doors
27:11
Speaker 5: to students that don't agree with their value system, or
27:14
Speaker 5: certain religious employers can exclude from job positions people that
27:20
Speaker 5: are for abortion rights. Or you can have a court say, hey,
27:24
Speaker 5: this case, softball league doesn't have to put into the
27:26
Speaker 5: lineup straight players. And it boils down to this First
27:30
Speaker 5: Amendment right that if you want to exclude people because
27:33
Speaker 5: you want to create a community, you get to do
27:35
Speaker 5: that if you're a private organization.
27:38
Speaker 2: To what does in perspective, where have we seen suits
27:41
Speaker 2: against DEI programs.
27:44
Speaker 5: So we've seen lawsuits against DEI pop up across the country.
27:48
Speaker 5: We've seen them against the American Bar Association, We've seen
27:52
Speaker 5: them against the Wisconsin Bar. We've seen a lot of
27:55
Speaker 5: activity around the even places without lawsuits, including Florida, where
28:00
Speaker 5: the STAKEHOURT system has basically done a one to eighty
28:03
Speaker 5: on being very pro DEI for certain years, and then
28:07
Speaker 5: now they're removing THEI entirely, both from the way it
28:12
Speaker 5: communicates to its members and from the way it spends
28:14
Speaker 5: money and organizes groups. So you've seen this issue pop
28:18
Speaker 5: up across the United States, from big states to even
28:22
Speaker 5: tiny ones like West Virginia, where there's a new lawsuit
28:25
Speaker 5: challenging an at large member of a leadership community for a.
28:30
Speaker 2: Lawyer that is black bars from Wisconsin to Florida. Are
28:33
Speaker 2: they rolling back diversity programs and also you see corporations
28:38
Speaker 2: rolling back diversity programs. Are they doing that because they're
28:43
Speaker 2: afraid of a lawsuit or are they doing that because
28:46
Speaker 2: the law has changed.
28:48
Speaker 5: I think it's a little bit of both. Jude. So
28:50
Speaker 5: if we think about it, sometimes they're under the gun
28:53
Speaker 5: of a lawsuit to alter programs, and sometimes they'll say
28:56
Speaker 5: that their changes of programs won't reduce the ability, you know,
29:00
Speaker 5: for groups to access certain benefits. But then there's some
29:03
Speaker 5: states like Florida which are proactively doing this. They have
29:06
Speaker 5: a more conservative judiciary that the Santus has put in
29:09
Speaker 5: place and they're rolling back things and they have been
29:12
Speaker 5: for several years even without litigation in their state. So
29:15
Speaker 5: it really depends on whether or not the impetus is
29:18
Speaker 5: coming from the judiciary and the judges, or if it's
29:21
Speaker 5: coming from a conservative or libertarian oriented legal community that
29:25
Speaker 5: is set up with DEI and wants to see it gone.
29:28
Speaker 2: This case is being appealed to the New Jersey Supreme Court.
29:32
Speaker 2: Where does that court stand as far as being conservative
29:36
Speaker 2: or liberal.
29:37
Speaker 5: So we've done big stories on the New Jersey Supreme
29:40
Speaker 5: Court recently, and I've even spoken with you in the
29:42
Speaker 5: past on this where the court is extremely tough to gauge.
29:47
Speaker 5: They have unwritten rules which require partisan balance for lack
29:50
Speaker 5: of a better term on it. So it's unclear. But
29:53
Speaker 5: the Bar itself is a very pro DEI and it
29:56
Speaker 5: has been running this kind of program with a large
29:59
Speaker 5: seats for decades and only recently was their legal challenge
30:03
Speaker 5: brought against it, something that's kind of been in place
30:06
Speaker 5: for a long time, and the bar has been expanding.
30:09
Speaker 5: So we see the appeals court here potentially keying up
30:12
Speaker 5: a broader fight before that New Jersey Supreme Court about
30:16
Speaker 5: whether or not their state judicial system, which is one
30:20
Speaker 5: of the largest by attorney number in the country, will
30:23
Speaker 5: allow this sort of minority participation.
30:26
Speaker 2: Benefit and explain the difference between private organizations and DEI
30:31
Speaker 2: and public organizations.
30:33
Speaker 5: Yeah, there's going to be nuanced differences between a lot
30:35
Speaker 5: of these, right. The key thing here is that bar
30:38
Speaker 5: associations are often private associations. They're the same thing is
30:42
Speaker 5: you know, if you have a club that supports your
30:45
Speaker 5: local river cleanup, or if you have, you know, a
30:48
Speaker 5: big national organization like the NRA. You know, these people
30:52
Speaker 5: get to pick who's on their leadership board based on
30:55
Speaker 5: the value systems that they hold deer right, so that
31:00
Speaker 5: into a value system for the New Jersey State Bar Association,
31:04
Speaker 5: which is liberal and has had d programs for a
31:07
Speaker 5: long time. It might be different than a bar association
31:09
Speaker 5: somewhere else, but that is different from a corporation right
31:13
Speaker 5: where you have federal accommodation and employment laws that prohibit
31:19
Speaker 5: outright quotas or discrimination in that way, or a government
31:23
Speaker 5: organization where you have the same thing. You know, the
31:26
Speaker 5: government can't discriminate, but if you're a private group. If
31:28
Speaker 5: you're just an association, then yeah, you can pick your leadership.
31:32
Speaker 2: Hard to believe it's been twenty four years since the
31:35
Speaker 2: Supreme Court ruling the Boy Scouts case. Remind us what
31:39
Speaker 2: that ruling was about and the impact it's had.
31:42
Speaker 5: The ruling was really, at its bottom about the power
31:46
Speaker 5: of the First Amendment for groups to tell other people
31:49
Speaker 5: to get lost. You know, if you want to pick
31:52
Speaker 5: the people that are at the top of your organization,
31:54
Speaker 5: they're going to be communicating to the public, they're going
31:56
Speaker 5: to be showing your values. You really get to choose
31:58
Speaker 5: who that is. And the Conservative Justices they laid down
32:02
Speaker 5: this line in a five to four decision that private
32:06
Speaker 5: groups like the Boy Scouts of America can exclude Scout
32:10
Speaker 5: masters who are gay from their organization. That lawsuit was
32:14
Speaker 5: brought under the new Jersey log and discrimination. This very
32:18
Speaker 5: same anti discrimination suit that is being levied against the
32:22
Speaker 5: State bar right now, And the Justice has said, listen,
32:26
Speaker 5: you know the New Jersey logins discrimination. Sure it's broad,
32:29
Speaker 5: but you know it can't go this far when it
32:31
Speaker 5: deals with private association. So in the twenty four years
32:34
Speaker 5: since then, you haven't seen this flipped in the same
32:38
Speaker 5: way as much, and it looks like it's an opportunity
32:42
Speaker 5: for progressive groups to use this conservative court's opinion to
32:46
Speaker 5: lean into di to do more to pick the leaders
32:50
Speaker 5: that they want in positions to communicate their values to
32:53
Speaker 5: the public, and that could mean adding more people of
32:57
Speaker 5: different gender identities or you know, people of color to
33:01
Speaker 5: board positions and leadership positions. I think that it comes
33:04
Speaker 5: down to this general thing that what's good for the
33:07
Speaker 5: goose is good for the gander. So the question with
33:10
Speaker 5: discrimination with private groups, right, is if you get to
33:13
Speaker 5: discriminate by telling people they can't come in, how far
33:16
Speaker 5: are you able to use that to say only certain
33:19
Speaker 5: people can come in for this particular job. We're going
33:22
Speaker 5: to see an appeal of this case the New Jersey
33:25
Speaker 5: Supreme Court, and it's still an open question how far
33:28
Speaker 5: that First Amendment is going to protect this novel theory.
33:31
Speaker 2: Let's turn to another interesting legal issue. The North Carolina
33:36
Speaker 2: Supreme Court has blocked the certification of reelection for one
33:41
Speaker 2: of its own sitting justices.
33:43
Speaker 1: Tell us about this.
33:44
Speaker 5: We had a big decision out of North Carolina yesterday
33:48
Speaker 5: and we also have the development today the North Carolina
33:51
Speaker 5: Supreme Court decided to pause the certification for votes given
33:57
Speaker 5: to Alison Riggs, who's a sitting member of that very court.
34:01
Speaker 5: A challenger of hers, the Republican, who's down roughly seven
34:05
Speaker 5: hundred votes, brought up claims to the state's election board
34:10
Speaker 5: that there should be about fifty six thousand voters excluded,
34:16
Speaker 5: and they're both not counted. Those voters were different groups.
34:21
Speaker 5: Old voting requirements in the state didn't necessarily mandate that
34:27
Speaker 5: a voter would have the driver's license number or their
34:30
Speaker 5: Social Security number logged with the state to register. Since
34:34
Speaker 5: that sign things have changed and the state isn't going
34:37
Speaker 5: to hold you know, that against particular voters. They're not
34:41
Speaker 5: going to exclude them after the fact because of that.
34:44
Speaker 5: There's also issues dealing with overseas voters, where the Republican
34:48
Speaker 5: claims that, you know, these folks never actually came to
34:52
Speaker 5: North Carolina, so they shouldn't be considered residents. You know,
34:54
Speaker 5: they might be army brats that were born at base
34:57
Speaker 5: or things like that, or just living abroad. And then
34:59
Speaker 5: there's a se with service members overseas sending in their
35:02
Speaker 5: ballots and his claims are that several hundred of these
35:06
Speaker 5: perhaps thousands didn't include photo copies of their ideas that
35:09
Speaker 5: are necessary under North Carolina law. The state election board said, no,
35:14
Speaker 5: we're not going to move forward with this. The vote
35:16
Speaker 5: should be certified, and the Republican challenger sued. His name
35:21
Speaker 5: is Judge Griffin, and he sued first in state court
35:24
Speaker 5: and then state appeals Court and then the state Supreme Court.
35:28
Speaker 5: That was taken out to federal court by the Justice,
35:33
Speaker 5: and the North Carolina Supreme Court took it back yesterday
35:37
Speaker 5: they decided that they were going to put a pause
35:39
Speaker 5: on certification for that election. And today Justice Riggs, who
35:45
Speaker 5: recused herself from the decision yesterday, she's now appealed that
35:49
Speaker 5: to the Fourth Circuit asking them to say, no, we're
35:52
Speaker 5: going to introject ourselves here. We're going to demand that
35:55
Speaker 5: the state certified.
35:56
Speaker 1: That's crazy stuff.
35:58
Speaker 5: It is in it. It raises a whole most of
36:00
Speaker 5: really interesting state and federal constitutional issues.
36:04
Speaker 3: So if you were to.
36:05
Speaker 5: Exclude these votes, does that mean that you now have
36:08
Speaker 5: treated voters desperately because all of the other races that
36:12
Speaker 5: were impacted by these votes weren't excluded. So does that
36:16
Speaker 5: mean local races have to get toss you know, county
36:19
Speaker 5: states other statewide races are impacted because the challenger here
36:24
Speaker 5: is only asking them to be tossed in this one case,
36:26
Speaker 5: and that raises federal constitution issues, you know, for equal
36:29
Speaker 5: treatment and equal protection.
36:31
Speaker 1: You'll have to come back Alex to tell us what
36:33
Speaker 1: happens in this case. Thanks so much.
36:36
Speaker 2: That's Alex Ebert, Bloomberg Law Senior Correspondent, and that's it
36:40
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36:45
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37:01
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