December 2, 2025 • 34 mins
Constitutional law expert David Super, a professor at Georgetown Law, discusses upcoming Supreme Court cases. Constitutional law professor Harold Krent of the Chicago-Kent College of Law, discusses the Third Circuit ruling that the appointment of Alina Habba as New Jersey US Attorney was illegal. June Grasso hosts.
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Speaker 1 (00:02):
You're listening to Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:09):
Over the next two months, the Supreme Court will be
considering several high profile cases, many involving hot button social issues.
They range from cases over handguns in public places and
transgender athletes to President Trump's firing of a Federal Reserve
governor and the death penalty. Some of these cases involve
(00:30):
novel issues of law, while others involve longstanding precedents that
could be overturned. My guest is constitutional law expert David Souper,
a professor at Georgetown Law David. On Monday, the Justices
heard oral arguments in the case of Cox Communications versus
(00:50):
Sony Music Entertainment, which is a case about the music
industry suing Cox Communications for not shutting down the accounts
of customers who repeatedly downloaded and distributed songs without permission.
Speaker 1 (01:04):
This is basically about whether you can hold Internet service
providers and other intermediators responsible for violations of law by
their subscribers. We all know that these web platforms are
used for variety of illegal activities, including copyright violations, defamation, revenge, porn,
(01:28):
and so on, and the question is can the Internet
service providers be held accountable if they allow this and
facilitate this lawful activity without making any effort to shut
it down?
Speaker 2 (01:44):
A jury came back with a one billion dollar damage award.
Speaker 1 (01:48):
That could really cut into the profit statement.
Speaker 2 (01:50):
Yes, so the jury wasn't moved by it. But Cox
argued that Grandma will be thrown off the Internet because
Junior visited an illegally downloaded song. But the music industry
said that Cox opted instead to keep the subscription revenues
rolling rather than terminating a serial infringer. What's the legal issue?
Speaker 1 (02:12):
I mean, the legal issue is to what extent one
is accountable for facilitating illegal activities. If I provide you
with weapons and a getaway car and masks, and you
show up and rob the First National Bank, I'm going
to be held accountable for that, even if I never
(02:33):
came near the bank myself. And here is an Internet
service provider doing the equivalent and saying who me? Why
are you talking to me?
Speaker 2 (02:43):
But do you think the Supreme Court took the case
to reverse it?
Speaker 1 (02:47):
I don't know. The Supreme Court has generally been pretty
unsympathetic with efforts to deal with other kinds of illegal
activities that internet service providers have done. But it does
care some about property rights, and I think it's a
(03:07):
close call. The Supreme Court has been willing to upend
the tech industry in defensive copyright in the past, and
that might be willing to do that here.
Speaker 2 (03:17):
So in December second, the Court's going to hear the
case of First Women's Choice Resource Center versus Plotkin. So
this involves an attempt by New Jersey's Attorney General to
subpoena the records of First Choice Women's Resource Centers. So
tell us about this. This is about a pregnancy a
(03:41):
pregnancy services organization and whether or not it well New
Jersey thought that it was giving out vibes that it
was going to provide people with references for referrals for abortions,
when it's just the opposite.
Speaker 1 (03:59):
Yeah. The idea here is that these organizations are doing
everything they can to simulate an abersion referral service to
get women who are pregnant and considering abortions in their
doors so they can talk them out of abortions. And
the concern is that these are vulnerable people at a
(04:20):
very difficult time in their life, and that they are
in effect being defrauded and coerced. The facts in individual
cases I'm obviously not privy to, but that's the concern.
In New Jersey wanted to investigate such a center and
issued a subpoena asking for a lot of information about
(04:41):
how the place operates, to try to figure out if
it is committing fraud, if it is coercing people, if
it is misrepresenting itself. And there are procedures in state
law that the facility could use to either challenge or
just ignore. The subpoena forced the state to come after it,
(05:01):
but the center instead went into federal court and sought
an order to shut down the state's investigation. This case
is whether you get to run straight to federal court
or have to play within the state law rules.
Speaker 2 (05:15):
Do you think that, considering that religion iss entwined here
and its abortion connected, that the conservatives will be magnanimous
in allowing them to go to federal court.
Speaker 1 (05:32):
I actually don't. Certainly the majority is going to be
sympathetic with the Center. But there has been an agenda
going back fifty years or more of keeping people in
state court, preventing them from going to federal court when
their state court proceedings underway, and I would be shocked
(05:53):
if the Supreme Court was willing to reverse field on
that just because it likes a particular plaintiff. I would
expect if the Court is consistent with what it said,
that it would make them sort things out in state court.
If it doesn't. If it does rule in favor of
the pregnancy center, that's going to open the doors to
(06:14):
a lot of civil rights plaintiffs that have not thought
they could go to federal court.
Speaker 2 (06:19):
So, now Olivier versus City of Brandon, this involves a
preacher who wanted to preach in an area where the
munits beal ordinances did not allow him to. So tell
us about this and why it's a Supreme Court case.
Speaker 1 (06:35):
Well, the preacher likes to do open air preaching to
the general public with amplifiers and so on, has already
been ticketed and fined for that, and believes this ordinance
is unconstitutionally denying him his right to proselytize for his religion.
The Supreme Court, in some very technical cases, has said
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you can't bring us civil rights case to challenge a
criminal conviction. You have to do that within the criminal
law system. So the contention here is that if he
doesn't like this law, he needs to fight it through
appeals of punishments the state issues him. There. The Supreme
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Court invited this sort of thing by creating this technical
rule to try to keep challenges to civil rights out
of federal court, and now they have this extremely complicated
question of whether by having been previously fined, he lost
his right to file a civil rights action.
Speaker 2 (07:41):
A big case. One of the biggest cases of the
term is going to be Texas the slaughter about Donald
Trump firing a Federal Trade commissioner. This is a huge case.
Tell us why.
Speaker 1 (07:54):
It's a huge case, because it would allow the president
to so effectively disregard all the provisions designed to give
independence to federal regulatory agencies. The Federal Trade Commission is
in charge of ensuring that people don't engage in anti
competitive practices and don't trick consumers, and that's something that
(08:19):
companies with ties to either party could engage in. So
Congress set up the FTC to be somewhat independent. It's
got commissioners appointed by presidents but for fixed terms, and
they can't be thrown out in the middle of their
term without showing misconduct. That way, the FTC is free
to investigate the president's friends or the preends of other
(08:43):
influential politicians. And what President Trump is saying is, no,
I'm in charge of everything in the executive branch. Only
my people should serve on any of these agencies, and
I should be able to get rid of these commissioners
at will.
Speaker 2 (08:58):
Now, this involves the Humphrey's Executor case, which the Conservatives
have been chipping away at, and the question is whether
it's going to survive this case. And also the Conservatives
here over descents from the Liberals, refused to let Rebecca
Slaughter stay in her job while the case played out,
(09:21):
which may be an indication or not of what they're thinking.
Speaker 1 (09:24):
I suspect it is an indication of what they're thinking.
And they have all but signaled that they're willing to
overrule Humphrey's Executor in every instance except perhaps the Federal Reserve.
But there's a very curious dynamic here because Humphrey's Executor
is a Conservative case. It was used to rein in
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President Franklin Roosevelt and force him to put up with
a Herbert Hoover appointee who was opposing his new deal
and so here you have a precedent that was put
in to reign in a wildly popular Democratic president that
we are chucking when it is limiting a far less
(10:08):
popular Republican president. And it's not the first time this
has happened. Chevron was a decision that validated Ronald Reagan's
anti invenmental policies, and then when it was helpful to
Joe Biden and Democratic agencies, the Supreme Court overruled it
a couple of years ago in Low for pride, if
(10:29):
you have a rule of law, once you establish these
procedural rules they ought to apply to both Democrats and Republicans.
Speaker 2 (10:37):
Doesn't it seem as if this particular Supreme Court is
less concerned perhaps about precedent than prior Supreme courts.
Speaker 1 (10:46):
If they overrule Humphrey's executor, that will be the inescapable conclusion.
And they've certainly given us every indication. Indeed, they've criticized
lower courts for continuing to follow humphrey Executor, which has
not been overruled. A very strange process.
Speaker 2 (11:04):
You mentioned the Federal Reserve, and on January twenty first,
the justices will hear oral arguments in the case of
Trump versus Cook. Trump wants to fire Federal Reserve Governor
Lisa Cook. He said he had a reason to fire her,
which was an unproven allegation of mortgage fraud. The Justice
(11:25):
is allowed Cook to stay in her role as a
Federal Reserve governor while the case plays out. Do you
think that this will be a different result than the
Slaughter case.
Speaker 1 (11:35):
It's a little hard to know. There was some language
in one of the Supreme Court shadow doct cases about
independent agencies where they said this shouldn't apply to the
Federal Reserve because, by way of its tradition and independence,
that's somewhat separate. I find that a little bit strange.
(11:57):
The Federal Trade Commission is a few months younger than
in the Federal Reserve. They were created almost back to back.
So if there's tradition on behalf of the Federal Reserve,
there probably is on the behalf of the Federal Trade Commission.
But they pretty clearly was firing a warning shot across
the administration's bow, don't make us decide a Federal Reserve case.
(12:20):
And the administration, i think, rather disrespectfully said no, we
are going to make you decide a Federal Reserve case.
And they fired doctor Cook.
Speaker 2 (12:29):
I guess the administration is really testing the limits. Coming
up next, I'll continue this conversation with Georgetown Law professor
David Super. We'll talk about upcoming cases involving campaign finance
and transgender athletes. I'm June Grosso and you're listening to Bloomberg.
Fifteen cases are on the Supreme Court's argument calendar for
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the months of December and January. The cases cover issues
from handguns in public places and transgender athletes, lead to
President Trump's ability to fire a federal Reserve governor, and
the damp penalty. I've been talking to constitutional law professor
David Souper of Georgetown Law. David. Coming up on December
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ninth is a case involving campaign finance, National Republican Senatorial
Committee versus Federal Election Commission, and the Supreme Court's going
to consider Republican calls to strike down federal caps on
the money political parties can spend on advertisements in coordination
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with congressional candidates. So an attempt to strike down more
political spending caps.
Speaker 1 (13:42):
Yes, there's no limit apparently that they don't want to
strike down. They got their way in Citizen United and
a bunch of other cases, but they are apparently not
done yet. And their argument here is that even when
there are independent funding organizations that are supposedly separate from
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the parties and campaigns, that they should be allowed to
function as annexes or adjuncts to the campaigns and coordinate
their policies. If this happens, no one in their right
mind would ever give anything to the Republican Party or
the Democratic Party. They'd give all their money to these
outside organizations with much less obligation to disclose, and they
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would then do whatever the parties told them to.
Speaker 2 (14:33):
So in this case, when the Trump administration came in,
they said they weren't going to defend the law, So
the Supreme Court gave the Democrats an opportunity to step
in and defend the law. Why are the Republicans against
these spending caps and the Democrats are for the spending caps.
It seems like what would be good for one political
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party would be good for the other.
Speaker 1 (14:56):
There's more of a constituency in the Democratic party campaign
finance reform. The McCain fine Gold Law had both Democratic
or Republican votes, but more Democratic ones, and the prominent
Republican supporters are now largely gone. So the Republican Party,
(15:16):
I think has felt that overall, the more money goes
into elections, the better off they are, And with many
of its members on principle opposed to money dominated politics
and having been badly earned by mister Musk's spending in
the last election, I think that Democrats may be getting
(15:39):
religion here like.
Speaker 2 (15:41):
Less term, there is a case involving a death row inmate,
and this is about whether he can be executed in
the light of conflicting IQ scores.
Speaker 1 (15:53):
Yes, the Supreme Court decided a long time ago that
the Eighth Amendments prohibition Cruel and Unusual Punishment means that
we shouldn't be executing people who are severely mentally deficient.
We can keep them in jail, but we shouldn't kill them.
That they may not be able to fully understand what
(16:14):
we're doing to them, and that that's just blatant cruelty.
But of course, once you say that, you have to
define what it is to be mentally deficient. And this
has come down to IQ scores, typically old ones before
someone turned eighteen, and the petitioner here has IQ scores
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that are all in a pretty similar range. This is
not a smart person at all. This is a pretty
limited person. But the question is what do you do
about the fairly modest variation among these scores? And the
Eleventh Circuit in the Southeast looked at them as a
whole and said, we think this man is too intellectually
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deficient to execute. And the Supreme Court is going to
now tell us either there's a new formula to use
with these IQ scores, or how at least you're supposed
to put the other scores that have minor differences in them.
This is not a precise science. It's not like weighing
a stone or determining the carots of a diamond. This
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is a very imprecise thing. The numbers for this inmate
very relatively little. I've represented people in disability cases where
the numbers were a lot broader than these. But the
government is pressing ahead and insisting that we must must
execute this man, and the Supreme Court will tell us
whether that's so.
Speaker 2 (17:45):
Yeah, and the Eleventh Circuit is one of the more
conservative circuits. Let's look now at some cases that will
definitely be among the most high profile of the term,
involving transgender athletes in Idaho and West Virginia prohibit transgender
women and girls from participating on women's and girls sports teams.
(18:07):
I mean, this is a huge issue across the country.
Explain what the Supreme Court will be looking at in
these cases.
Speaker 1 (18:16):
Well, there are various civil rights laws, including ones that
apply in the educational context, that prohibit discrimination because of sex.
And the question is are you discriminating against these women
and girls because of their sex when they're specifically are transgender.
(18:37):
The leading opinion on this from the Supreme Court is
by Justice Gorsic, and he said that if these women
and girls were not born identified as male, no one
would be hassling them. So it is because of sex,
because of their sex assigned at birth, that these states
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are treating them a problems, so they are covered by
civil rights laws. The question, though, is whether there is
a majority to affirm that position. The three liberal justices
likely would, I imagine Justice Coursuch would, But then the
question is where do you get the fifth vote?
Speaker 2 (19:15):
Since that case, since the Boss Stoc Case, this Court
has ruled consistently against LGBTQ rights in just about every
case I can think of. So would it be easy
for the conservative justices to distinguish Bosstoc from the facts.
In these cases, I.
Speaker 1 (19:34):
Don't know how you do that. In the other cases
they did distinguish Bosstoc, sometimes persuasively, sometimes not very persuasively.
But this one I think probably forces them to overrule Bosstoc,
or make Bosstoc a complete shell of itself, or else
to follow it. And my hope is that even if
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there are not five justices that would a hand down
boss Stock today if it was up to them, that
their respect for their own credibility is going to make
them reluctant to overrule a case that is so recent.
Speaker 2 (20:11):
Finally, there's on January twentieth Wolford versus Lopez, and this
is about the right to carry in public places in Hawaii.
Speaker 1 (20:21):
This is, depending on how you look at it, a
property rights case or a gun rights case. And the
gun owners say that why did a horrible thing when
it said you need permission to go into private property
that is open to the public with a gun. And
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a property right argument is that people have control over
who comes onto their land. If I don't want you
on my land, I can say no. If I don't
want you to bring your gun, I can say no.
If I don't want you to bring your book, I
can say no, and if you don't like my conditions,
you just don't come on to my land. Hawaii is
saying there are a lot of people who don't want
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guns on their land for a variety of reasons, philosophical reasons,
personal safety reasons, or concerned about liability. If you have
someone with a gun on your land and they shoot
someone or it goes off, you could be facing huge
liability and in the interim, your insurance premiums go up.
So the notion here is that we don't want people
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on other people's private property with guns unless they've got permission.
The practical effect of this likely would be that if
it's upheld, that stores will start posting signs saying you
have our permission to be here with your gun, or
not posting such signs, in which case you can't take
your gun in there. But this is said to be
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an intrusion on Second Amendment rights, and this will tell
us whether the court cares more about private property or guns.
Speaker 2 (21:57):
I don't know the answer to that one. I guess
we'll find out. Thanks so much, David for this preview
of the cases coming up. That's Professor David super of
Georgetown Law. The first appeals court to weigh in on
the Trump administration's attempts to install temporary US attorneys has
(22:20):
given a thumbs down to President Trump's pick of Alina Habba,
his former personal attorney, to lead the US Attorney's Office
in New Jersey. The Third Circuit Court of Appeals said
that Haba was not lawfully appointed to the job, despite
the administration's attempt to rely on at least seven statutes
and a variety of titles for Habba Interim US Attorney,
(22:44):
Acting US Attorney, first Assistant US Attorney, and special Attorney.
Joining me is constitutional law Professor Harold Krant of the
Chicago Kent College of Law. How will you explain the
sort of tortured attempts to keep Alena Habba in charge
of the US Attorney's Office in New Jersey.
Speaker 3 (23:07):
The administration is trying to dispense with the niceties of
the littal Vacancy's reformat, which Congress has passed in order
to structure who can fill vacant positions, and the administration
obviously wanted Alena Habba to be the interim US Attorney
and had the right to under the statute to appoint
(23:28):
her as interim us attorney, but under that particular statutory
provision it only lasted for one hundred and twenty days.
At the expiration of the one hundred and twenty days, therefore,
under the statute, the right to appoint the interim then
defaults to the district court judges of that circuit. The
district court judges met and decided who should replace Alena
(23:51):
Hobba at the end of the one hundred and twenty days. Unfortunately,
the administration didn't want to comply with their choice, so
fired that choice and then tried to strategize how they
could reappoint Alena Habba into that position even though the
one hundred and twenty days were over, and they tried
to appoint her as a special attorney or as interim
(24:13):
use Attorney a second time in order to fill that position.
In the meantime, the President had duly transferred to Senate
his choice for permanent use Attorney, which was Alena Habba.
The Senate, however, did not act on it because of
the lack of support, and so the President then was
(24:34):
embarrassed with that and so rescinded the nomination. So even
though he tried, at one point tried to follow the
constitutionally mandated path of making an appointment and subject to
Senate appointment. He then realized that it wasn't working and
so tried to get around it the second way by
withdrawing the nomination and reappointing.
Speaker 4 (24:54):
Her to the interim position.
Speaker 3 (24:55):
So that then led to this brujaha with drug defenders
sort of trying to get their indictment dismissed and disqualify
Elena hobbob from continuing in that role, and the District
Court and now the Quarter of Appeals has basically said, okay,
Baba should be disqualified, though you're going to we're not
going to dismiss the indictments.
Speaker 2 (25:17):
The appeals Court panel, which consisted of two George W.
Bush appointees and a Barack Obama appointee, found Hobba's appointment
was unlawful on two grounds. Tell us about them.
Speaker 3 (25:31):
And they first held that once the one hundred and
twenty days are over, the person can no longer fulfill
the role of interim attorney under the governing federal statute.
And then secondly they said that there's a bar in
the statute that no one can serve as interim attorney
who had been nominated to actually take the job permanently.
(25:52):
So on those two independent grounds, the Quarter of Appeals
chastised the President and said the appointment's clause is important,
and following Congress's guidance of what to do if there's
a vacancy is important. You didn't do either one. And therefore,
how they can no longer serve as in om attorney
and chaos I'm sure is raining in the US Attorney's
(26:15):
office in New.
Speaker 2 (26:16):
Jersey, impossibly elsewhere. So the courts in New Jersey have
already been operating in a sort of limbo given her
uncertain status. Certain types of criminal cases were slowed, and
some grand jury proceedings. But as you mentioned, the Appeals
Court decision doesn't touch on the indictments brought under Habba's leadership,
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So where does that stand? And you know, as far
as the criminal defendants in this very.
Speaker 4 (26:43):
Case, the prosecution can go forward.
Speaker 3 (26:46):
I mean, the question is who will actually decide who
should prosecute what.
Speaker 4 (26:51):
Cases in New Jersey?
Speaker 3 (26:52):
Because there's no head right now, it's ruderless, it's a
rudderless ship.
Speaker 4 (26:56):
And so it's it's not that nobody can be prosecuted.
There's two things.
Speaker 3 (27:01):
One is, there are some limited functions that only the
head of the office can do, some kind of wiretaps
and other kinds of activities, So that is a difficult position.
They'll have to get input from Pam Bondi as the
Attorney General to take over those kinds of duties. But otherwise,
just in terms of who prosecutes what case, what are
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the priorities of the office, who presents information to the
grand jury? No one knows who's going to make those
sort of decisions. Pam bond you will have to come
in and in essence be the de facto interim US
attorney unless they finally decide just for bureaucratic sanity, that
they put someone in the office. But as you mentioned,
the indictments still stand, and the two individuals who brought
(27:44):
this disqualification motion to Lena Haba still face the prison
if somebody who is a prosecutor can actually take their
cases and try them before the jury.
Speaker 2 (27:56):
There have been many challenges of federal prosecutors installed as
interim and acting US attorneys, and judges have ruled that
not only Habba's appointment was illegal, but also the appointment
of interim US attorneys in Los Angeles and Nevada, and
of course in the Eastern District of Virginia. Or a
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judge dismissed the indictments of former FBI Director James Comy
and New York Attorney General Letitia James because of the
unlawful appointment of Lindsay Halligan. Explain why the judge throughout
the indictments that Lindsay Halligan had obtained but not those
under HABA.
Speaker 3 (28:38):
The Linda Halligan case was special because she was the
only person who presented to the grand jury. She was
the one that got the indictment, and of course that
was after career prosecutors have refused to bring the case
against Comy and James because they were concerned about the
probity of the evidence. So now those cases the indictments
were dismissed, We'll see if they can be reinstated, which
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is possible. But in this case, the indictments stand. But
the pattern you suggest goes deeper. I mean, it suggests
that even though Cratcle two is very close to the
President's heart because he believes he needs to control everybody
in the bureaucracy in terms of both by appointment and discharge.
Speaker 4 (29:19):
He's not complying with it, and he's not complying with it.
Speaker 3 (29:21):
By refusing to give appointments for the consent Senate's consent,
and the courts are rebuffing him, saying, you know, look,
this is a very important constitutional provision. It's important to you,
it's important to us. You've just got to follow it.
And the President has set passively refused.
Speaker 2 (29:39):
Yeah, I mean so. In the Lindsay Halligan case, the
DOJ's Office of Legal Counsel last week said that Halligan
should continue to be referred to as the Eastern District
of Virginia's US attorney in court filings, and also in
California with the US Attorney for Los Angeles. The federal
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judge ruled that he was unlawfully appointed, but is allowing
him to stay on as the top supervising prosecutor. I mean,
those decisions don't make any sense to me. Could Haba
be back in there?
Speaker 3 (30:13):
Yeah, I mean, obviously that's what Pam Bondi tried to
do by naming her a special prosecutor, which she does
have the power to name special attorneys to take on
certain responsibilities of the Department of Justice.
Speaker 4 (30:25):
But courts are trying to maintain, I think, a very
fine line.
Speaker 3 (30:29):
They're trying to follow the statutes, follow the Constitution, but
at the same time gives some slack to the administration.
Not so sure that they should create such a fine line,
because the president's not complying with the Constitution or the statutes,
and they've said that, And I'm not sure sure that
there should be as charitable by allowing these individuals to
still play such an important role in these offices. So
(30:52):
we'll have to see if the Department of Justice takes
any kind of remedial steps to try to put somebody
else who's a first assistant, for instance.
Speaker 4 (31:00):
Into the office, as the statute provides.
Speaker 2 (31:03):
Turning to the Supreme Court for a moment, the Justice
has declined for now to let President Trump oust the
director of the US Copyright Office, deferring a decision until
they consider two other clashes over Trump's firings. Does that
just seem logical.
Speaker 3 (31:23):
It's a really interesting case because obviously the Supreme Court
has taken the position that they want to cut back
on the idea of if independent agency heads, the idea
that the president has to have close control over all
subordinates who are exercising executive power.
Speaker 4 (31:40):
And they've expanded the notion of executive.
Speaker 3 (31:42):
Power with respect to ruling so far, dealing with the
National Relations Board, with the Federal Trade Commission, the mayor
as Systems Protection Board, and others. But now they're pausing
because the question here is can the President also summilary
dismiss or is at least one of his subordinates. Can
summary dismiss someone who is head of the Copyright Office,
(32:04):
which is actually within the Librarian of Congress. So the
question in this case is really what is executive power?
Is executive power anything that Congress delegates, or is executive
power something which is under the president's control Because theoretically
the gradustor of copyrights is part of the legislative branch,
(32:26):
gives advice to the Congress and tries to accept the
Congress's agenda with respect to what to do about copyrights,
and so can the president therefore have that same kind
of close control over a officer who is closely aligned
with Congress, as the Supreme Court seems to want to
(32:46):
give the president to have close control over officers that
are closely aligned with the president. So this case somewhat
challenges their construct of who the president has to have
close dominion over in terms of officers of the United States.
So I think the court this is only a preliminary posture.
There's been no final rulings in this case about whether
(33:08):
the Register of Copyrights can be discharged for no reason
at all, as President Trump directed. But I think the
Court paused because they realize this is a harder case
because even if they decide that the so called unitary
executive should expand to include the Federal Trade Commission, of
the National Labor Relations Board, et cetera, that's another step
(33:31):
to ask whether it should also apply to officers whom
Congress has place within the legislative branch.
Speaker 4 (33:38):
So I think the.
Speaker 3 (33:39):
Court is smart to pause and not to take this
at this point, because it realizes that these kind of
placements that is trying to say is non executive officer
significant executive officer not a significant officer are very much
up for grabs, and they should really go more slowly,
more carefully in decision making.
Speaker 2 (33:59):
Thanks hell, that's Professor Harold Krent of the Chicago Kent
College of Law. And that's it for this edition of
the Bloomberg Law Show. Remember you can always get the
latest legal news on our Bloomberg Law podcasts. You can
find them on Apple Podcasts, Spotify, and at www dot
bloomberg dot com, slash podcast slash Law, And remember to
(34:19):
tune into The Bloomberg Law Show every weeknight at ten
pm Wall Street Time. I'm June Grosso and you're listening
to Bloomberg
You're listening to Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:09):
Over the next two months, the Supreme Court will be
considering several high profile cases, many involving hot button social issues.
They range from cases over handguns in public places and
transgender athletes to President Trump's firing of a Federal Reserve
governor and the death penalty. Some of these cases involve
(00:30):
novel issues of law, while others involve longstanding precedents that
could be overturned. My guest is constitutional law expert David Souper,
a professor at Georgetown Law David. On Monday, the Justices
heard oral arguments in the case of Cox Communications versus
(00:50):
Sony Music Entertainment, which is a case about the music
industry suing Cox Communications for not shutting down the accounts
of customers who repeatedly downloaded and distributed songs without permission.
Speaker 1 (01:04):
This is basically about whether you can hold Internet service
providers and other intermediators responsible for violations of law by
their subscribers. We all know that these web platforms are
used for variety of illegal activities, including copyright violations, defamation, revenge, porn,
(01:28):
and so on, and the question is can the Internet
service providers be held accountable if they allow this and
facilitate this lawful activity without making any effort to shut
it down?
Speaker 2 (01:44):
A jury came back with a one billion dollar damage award.
Speaker 1 (01:48):
That could really cut into the profit statement.
Speaker 2 (01:50):
Yes, so the jury wasn't moved by it. But Cox
argued that Grandma will be thrown off the Internet because
Junior visited an illegally downloaded song. But the music industry
said that Cox opted instead to keep the subscription revenues
rolling rather than terminating a serial infringer. What's the legal issue?
Speaker 1 (02:12):
I mean, the legal issue is to what extent one
is accountable for facilitating illegal activities. If I provide you
with weapons and a getaway car and masks, and you
show up and rob the First National Bank, I'm going
to be held accountable for that, even if I never
(02:33):
came near the bank myself. And here is an Internet
service provider doing the equivalent and saying who me? Why
are you talking to me?
Speaker 2 (02:43):
But do you think the Supreme Court took the case
to reverse it?
Speaker 1 (02:47):
I don't know. The Supreme Court has generally been pretty
unsympathetic with efforts to deal with other kinds of illegal
activities that internet service providers have done. But it does
care some about property rights, and I think it's a
(03:07):
close call. The Supreme Court has been willing to upend
the tech industry in defensive copyright in the past, and
that might be willing to do that here.
Speaker 2 (03:17):
So in December second, the Court's going to hear the
case of First Women's Choice Resource Center versus Plotkin. So
this involves an attempt by New Jersey's Attorney General to
subpoena the records of First Choice Women's Resource Centers. So
tell us about this. This is about a pregnancy a
(03:41):
pregnancy services organization and whether or not it well New
Jersey thought that it was giving out vibes that it
was going to provide people with references for referrals for abortions,
when it's just the opposite.
Speaker 1 (03:59):
Yeah. The idea here is that these organizations are doing
everything they can to simulate an abersion referral service to
get women who are pregnant and considering abortions in their
doors so they can talk them out of abortions. And
the concern is that these are vulnerable people at a
(04:20):
very difficult time in their life, and that they are
in effect being defrauded and coerced. The facts in individual
cases I'm obviously not privy to, but that's the concern.
In New Jersey wanted to investigate such a center and
issued a subpoena asking for a lot of information about
(04:41):
how the place operates, to try to figure out if
it is committing fraud, if it is coercing people, if
it is misrepresenting itself. And there are procedures in state
law that the facility could use to either challenge or
just ignore. The subpoena forced the state to come after it,
(05:01):
but the center instead went into federal court and sought
an order to shut down the state's investigation. This case
is whether you get to run straight to federal court
or have to play within the state law rules.
Speaker 2 (05:15):
Do you think that, considering that religion iss entwined here
and its abortion connected, that the conservatives will be magnanimous
in allowing them to go to federal court.
Speaker 1 (05:32):
I actually don't. Certainly the majority is going to be
sympathetic with the Center. But there has been an agenda
going back fifty years or more of keeping people in
state court, preventing them from going to federal court when
their state court proceedings underway, and I would be shocked
(05:53):
if the Supreme Court was willing to reverse field on
that just because it likes a particular plaintiff. I would
expect if the Court is consistent with what it said,
that it would make them sort things out in state court.
If it doesn't. If it does rule in favor of
the pregnancy center, that's going to open the doors to
(06:14):
a lot of civil rights plaintiffs that have not thought
they could go to federal court.
Speaker 2 (06:19):
So, now Olivier versus City of Brandon, this involves a
preacher who wanted to preach in an area where the
munits beal ordinances did not allow him to. So tell
us about this and why it's a Supreme Court case.
Speaker 1 (06:35):
Well, the preacher likes to do open air preaching to
the general public with amplifiers and so on, has already
been ticketed and fined for that, and believes this ordinance
is unconstitutionally denying him his right to proselytize for his religion.
The Supreme Court, in some very technical cases, has said
(06:59):
you can't bring us civil rights case to challenge a
criminal conviction. You have to do that within the criminal
law system. So the contention here is that if he
doesn't like this law, he needs to fight it through
appeals of punishments the state issues him. There. The Supreme
(07:19):
Court invited this sort of thing by creating this technical
rule to try to keep challenges to civil rights out
of federal court, and now they have this extremely complicated
question of whether by having been previously fined, he lost
his right to file a civil rights action.
Speaker 2 (07:41):
A big case. One of the biggest cases of the
term is going to be Texas the slaughter about Donald
Trump firing a Federal Trade commissioner. This is a huge case.
Tell us why.
Speaker 1 (07:54):
It's a huge case, because it would allow the president
to so effectively disregard all the provisions designed to give
independence to federal regulatory agencies. The Federal Trade Commission is
in charge of ensuring that people don't engage in anti
competitive practices and don't trick consumers, and that's something that
(08:19):
companies with ties to either party could engage in. So
Congress set up the FTC to be somewhat independent. It's
got commissioners appointed by presidents but for fixed terms, and
they can't be thrown out in the middle of their
term without showing misconduct. That way, the FTC is free
to investigate the president's friends or the preends of other
(08:43):
influential politicians. And what President Trump is saying is, no,
I'm in charge of everything in the executive branch. Only
my people should serve on any of these agencies, and
I should be able to get rid of these commissioners
at will.
Speaker 2 (08:58):
Now, this involves the Humphrey's Executor case, which the Conservatives
have been chipping away at, and the question is whether
it's going to survive this case. And also the Conservatives
here over descents from the Liberals, refused to let Rebecca
Slaughter stay in her job while the case played out,
(09:21):
which may be an indication or not of what they're thinking.
Speaker 1 (09:24):
I suspect it is an indication of what they're thinking.
And they have all but signaled that they're willing to
overrule Humphrey's Executor in every instance except perhaps the Federal Reserve.
But there's a very curious dynamic here because Humphrey's Executor
is a Conservative case. It was used to rein in
(09:46):
President Franklin Roosevelt and force him to put up with
a Herbert Hoover appointee who was opposing his new deal
and so here you have a precedent that was put
in to reign in a wildly popular Democratic president that
we are chucking when it is limiting a far less
(10:08):
popular Republican president. And it's not the first time this
has happened. Chevron was a decision that validated Ronald Reagan's
anti invenmental policies, and then when it was helpful to
Joe Biden and Democratic agencies, the Supreme Court overruled it
a couple of years ago in Low for pride, if
(10:29):
you have a rule of law, once you establish these
procedural rules they ought to apply to both Democrats and Republicans.
Speaker 2 (10:37):
Doesn't it seem as if this particular Supreme Court is
less concerned perhaps about precedent than prior Supreme courts.
Speaker 1 (10:46):
If they overrule Humphrey's executor, that will be the inescapable conclusion.
And they've certainly given us every indication. Indeed, they've criticized
lower courts for continuing to follow humphrey Executor, which has
not been overruled. A very strange process.
Speaker 2 (11:04):
You mentioned the Federal Reserve, and on January twenty first,
the justices will hear oral arguments in the case of
Trump versus Cook. Trump wants to fire Federal Reserve Governor
Lisa Cook. He said he had a reason to fire her,
which was an unproven allegation of mortgage fraud. The Justice
(11:25):
is allowed Cook to stay in her role as a
Federal Reserve governor while the case plays out. Do you
think that this will be a different result than the
Slaughter case.
Speaker 1 (11:35):
It's a little hard to know. There was some language
in one of the Supreme Court shadow doct cases about
independent agencies where they said this shouldn't apply to the
Federal Reserve because, by way of its tradition and independence,
that's somewhat separate. I find that a little bit strange.
(11:57):
The Federal Trade Commission is a few months younger than
in the Federal Reserve. They were created almost back to back.
So if there's tradition on behalf of the Federal Reserve,
there probably is on the behalf of the Federal Trade Commission.
But they pretty clearly was firing a warning shot across
the administration's bow, don't make us decide a Federal Reserve case.
(12:20):
And the administration, i think, rather disrespectfully said no, we
are going to make you decide a Federal Reserve case.
And they fired doctor Cook.
Speaker 2 (12:29):
I guess the administration is really testing the limits. Coming
up next, I'll continue this conversation with Georgetown Law professor
David Super. We'll talk about upcoming cases involving campaign finance
and transgender athletes. I'm June Grosso and you're listening to Bloomberg.
Fifteen cases are on the Supreme Court's argument calendar for
(12:52):
the months of December and January. The cases cover issues
from handguns in public places and transgender athletes, lead to
President Trump's ability to fire a federal Reserve governor, and
the damp penalty. I've been talking to constitutional law professor
David Souper of Georgetown Law. David. Coming up on December
(13:13):
ninth is a case involving campaign finance, National Republican Senatorial
Committee versus Federal Election Commission, and the Supreme Court's going
to consider Republican calls to strike down federal caps on
the money political parties can spend on advertisements in coordination
(13:35):
with congressional candidates. So an attempt to strike down more
political spending caps.
Speaker 1 (13:42):
Yes, there's no limit apparently that they don't want to
strike down. They got their way in Citizen United and
a bunch of other cases, but they are apparently not
done yet. And their argument here is that even when
there are independent funding organizations that are supposedly separate from
(14:06):
the parties and campaigns, that they should be allowed to
function as annexes or adjuncts to the campaigns and coordinate
their policies. If this happens, no one in their right
mind would ever give anything to the Republican Party or
the Democratic Party. They'd give all their money to these
outside organizations with much less obligation to disclose, and they
(14:30):
would then do whatever the parties told them to.
Speaker 2 (14:33):
So in this case, when the Trump administration came in,
they said they weren't going to defend the law, So
the Supreme Court gave the Democrats an opportunity to step
in and defend the law. Why are the Republicans against
these spending caps and the Democrats are for the spending caps.
It seems like what would be good for one political
(14:54):
party would be good for the other.
Speaker 1 (14:56):
There's more of a constituency in the Democratic party campaign
finance reform. The McCain fine Gold Law had both Democratic
or Republican votes, but more Democratic ones, and the prominent
Republican supporters are now largely gone. So the Republican Party,
(15:16):
I think has felt that overall, the more money goes
into elections, the better off they are, And with many
of its members on principle opposed to money dominated politics
and having been badly earned by mister Musk's spending in
the last election, I think that Democrats may be getting
(15:39):
religion here like.
Speaker 2 (15:41):
Less term, there is a case involving a death row inmate,
and this is about whether he can be executed in
the light of conflicting IQ scores.
Speaker 1 (15:53):
Yes, the Supreme Court decided a long time ago that
the Eighth Amendments prohibition Cruel and Unusual Punishment means that
we shouldn't be executing people who are severely mentally deficient.
We can keep them in jail, but we shouldn't kill them.
That they may not be able to fully understand what
(16:14):
we're doing to them, and that that's just blatant cruelty.
But of course, once you say that, you have to
define what it is to be mentally deficient. And this
has come down to IQ scores, typically old ones before
someone turned eighteen, and the petitioner here has IQ scores
(16:35):
that are all in a pretty similar range. This is
not a smart person at all. This is a pretty
limited person. But the question is what do you do
about the fairly modest variation among these scores? And the
Eleventh Circuit in the Southeast looked at them as a
whole and said, we think this man is too intellectually
(17:00):
deficient to execute. And the Supreme Court is going to
now tell us either there's a new formula to use
with these IQ scores, or how at least you're supposed
to put the other scores that have minor differences in them.
This is not a precise science. It's not like weighing
a stone or determining the carots of a diamond. This
(17:24):
is a very imprecise thing. The numbers for this inmate
very relatively little. I've represented people in disability cases where
the numbers were a lot broader than these. But the
government is pressing ahead and insisting that we must must
execute this man, and the Supreme Court will tell us
whether that's so.
Speaker 2 (17:45):
Yeah, and the Eleventh Circuit is one of the more
conservative circuits. Let's look now at some cases that will
definitely be among the most high profile of the term,
involving transgender athletes in Idaho and West Virginia prohibit transgender
women and girls from participating on women's and girls sports teams.
(18:07):
I mean, this is a huge issue across the country.
Explain what the Supreme Court will be looking at in
these cases.
Speaker 1 (18:16):
Well, there are various civil rights laws, including ones that
apply in the educational context, that prohibit discrimination because of sex.
And the question is are you discriminating against these women
and girls because of their sex when they're specifically are transgender.
(18:37):
The leading opinion on this from the Supreme Court is
by Justice Gorsic, and he said that if these women
and girls were not born identified as male, no one
would be hassling them. So it is because of sex,
because of their sex assigned at birth, that these states
(18:58):
are treating them a problems, so they are covered by
civil rights laws. The question, though, is whether there is
a majority to affirm that position. The three liberal justices
likely would, I imagine Justice Coursuch would, But then the
question is where do you get the fifth vote?
Speaker 2 (19:15):
Since that case, since the Boss Stoc Case, this Court
has ruled consistently against LGBTQ rights in just about every
case I can think of. So would it be easy
for the conservative justices to distinguish Bosstoc from the facts.
In these cases, I.
Speaker 1 (19:34):
Don't know how you do that. In the other cases
they did distinguish Bosstoc, sometimes persuasively, sometimes not very persuasively.
But this one I think probably forces them to overrule Bosstoc,
or make Bosstoc a complete shell of itself, or else
to follow it. And my hope is that even if
(19:57):
there are not five justices that would a hand down
boss Stock today if it was up to them, that
their respect for their own credibility is going to make
them reluctant to overrule a case that is so recent.
Speaker 2 (20:11):
Finally, there's on January twentieth Wolford versus Lopez, and this
is about the right to carry in public places in Hawaii.
Speaker 1 (20:21):
This is, depending on how you look at it, a
property rights case or a gun rights case. And the
gun owners say that why did a horrible thing when
it said you need permission to go into private property
that is open to the public with a gun. And
(20:41):
a property right argument is that people have control over
who comes onto their land. If I don't want you
on my land, I can say no. If I don't
want you to bring your gun, I can say no.
If I don't want you to bring your book, I
can say no, and if you don't like my conditions,
you just don't come on to my land. Hawaii is
saying there are a lot of people who don't want
(21:04):
guns on their land for a variety of reasons, philosophical reasons,
personal safety reasons, or concerned about liability. If you have
someone with a gun on your land and they shoot
someone or it goes off, you could be facing huge
liability and in the interim, your insurance premiums go up.
So the notion here is that we don't want people
(21:27):
on other people's private property with guns unless they've got permission.
The practical effect of this likely would be that if
it's upheld, that stores will start posting signs saying you
have our permission to be here with your gun, or
not posting such signs, in which case you can't take
your gun in there. But this is said to be
(21:49):
an intrusion on Second Amendment rights, and this will tell
us whether the court cares more about private property or guns.
Speaker 2 (21:57):
I don't know the answer to that one. I guess
we'll find out. Thanks so much, David for this preview
of the cases coming up. That's Professor David super of
Georgetown Law. The first appeals court to weigh in on
the Trump administration's attempts to install temporary US attorneys has
(22:20):
given a thumbs down to President Trump's pick of Alina Habba,
his former personal attorney, to lead the US Attorney's Office
in New Jersey. The Third Circuit Court of Appeals said
that Haba was not lawfully appointed to the job, despite
the administration's attempt to rely on at least seven statutes
and a variety of titles for Habba Interim US Attorney,
(22:44):
Acting US Attorney, first Assistant US Attorney, and special Attorney.
Joining me is constitutional law Professor Harold Krant of the
Chicago Kent College of Law. How will you explain the
sort of tortured attempts to keep Alena Habba in charge
of the US Attorney's Office in New Jersey.
Speaker 3 (23:07):
The administration is trying to dispense with the niceties of
the littal Vacancy's reformat, which Congress has passed in order
to structure who can fill vacant positions, and the administration
obviously wanted Alena Habba to be the interim US Attorney
and had the right to under the statute to appoint
(23:28):
her as interim us attorney, but under that particular statutory
provision it only lasted for one hundred and twenty days.
At the expiration of the one hundred and twenty days, therefore,
under the statute, the right to appoint the interim then
defaults to the district court judges of that circuit. The
district court judges met and decided who should replace Alena
(23:51):
Hobba at the end of the one hundred and twenty days. Unfortunately,
the administration didn't want to comply with their choice, so
fired that choice and then tried to strategize how they
could reappoint Alena Habba into that position even though the
one hundred and twenty days were over, and they tried
to appoint her as a special attorney or as interim
(24:13):
use Attorney a second time in order to fill that position.
In the meantime, the President had duly transferred to Senate
his choice for permanent use Attorney, which was Alena Habba.
The Senate, however, did not act on it because of
the lack of support, and so the President then was
(24:34):
embarrassed with that and so rescinded the nomination. So even
though he tried, at one point tried to follow the
constitutionally mandated path of making an appointment and subject to
Senate appointment. He then realized that it wasn't working and
so tried to get around it the second way by
withdrawing the nomination and reappointing.
Speaker 4 (24:54):
Her to the interim position.
Speaker 3 (24:55):
So that then led to this brujaha with drug defenders
sort of trying to get their indictment dismissed and disqualify
Elena hobbob from continuing in that role, and the District
Court and now the Quarter of Appeals has basically said, okay,
Baba should be disqualified, though you're going to we're not
going to dismiss the indictments.
Speaker 2 (25:17):
The appeals Court panel, which consisted of two George W.
Bush appointees and a Barack Obama appointee, found Hobba's appointment
was unlawful on two grounds. Tell us about them.
Speaker 3 (25:31):
And they first held that once the one hundred and
twenty days are over, the person can no longer fulfill
the role of interim attorney under the governing federal statute.
And then secondly they said that there's a bar in
the statute that no one can serve as interim attorney
who had been nominated to actually take the job permanently.
(25:52):
So on those two independent grounds, the Quarter of Appeals
chastised the President and said the appointment's clause is important,
and following Congress's guidance of what to do if there's
a vacancy is important. You didn't do either one. And therefore,
how they can no longer serve as in om attorney
and chaos I'm sure is raining in the US Attorney's
(26:15):
office in New.
Speaker 2 (26:16):
Jersey, impossibly elsewhere. So the courts in New Jersey have
already been operating in a sort of limbo given her
uncertain status. Certain types of criminal cases were slowed, and
some grand jury proceedings. But as you mentioned, the Appeals
Court decision doesn't touch on the indictments brought under Habba's leadership,
(26:39):
So where does that stand? And you know, as far
as the criminal defendants in this very.
Speaker 4 (26:43):
Case, the prosecution can go forward.
Speaker 3 (26:46):
I mean, the question is who will actually decide who
should prosecute what.
Speaker 4 (26:51):
Cases in New Jersey?
Speaker 3 (26:52):
Because there's no head right now, it's ruderless, it's a
rudderless ship.
Speaker 4 (26:56):
And so it's it's not that nobody can be prosecuted.
There's two things.
Speaker 3 (27:01):
One is, there are some limited functions that only the
head of the office can do, some kind of wiretaps
and other kinds of activities, So that is a difficult position.
They'll have to get input from Pam Bondi as the
Attorney General to take over those kinds of duties. But otherwise,
just in terms of who prosecutes what case, what are
(27:21):
the priorities of the office, who presents information to the
grand jury? No one knows who's going to make those
sort of decisions. Pam bond you will have to come
in and in essence be the de facto interim US
attorney unless they finally decide just for bureaucratic sanity, that
they put someone in the office. But as you mentioned,
the indictments still stand, and the two individuals who brought
(27:44):
this disqualification motion to Lena Haba still face the prison
if somebody who is a prosecutor can actually take their
cases and try them before the jury.
Speaker 2 (27:56):
There have been many challenges of federal prosecutors installed as
interim and acting US attorneys, and judges have ruled that
not only Habba's appointment was illegal, but also the appointment
of interim US attorneys in Los Angeles and Nevada, and
of course in the Eastern District of Virginia. Or a
(28:20):
judge dismissed the indictments of former FBI Director James Comy
and New York Attorney General Letitia James because of the
unlawful appointment of Lindsay Halligan. Explain why the judge throughout
the indictments that Lindsay Halligan had obtained but not those
under HABA.
Speaker 3 (28:38):
The Linda Halligan case was special because she was the
only person who presented to the grand jury. She was
the one that got the indictment, and of course that
was after career prosecutors have refused to bring the case
against Comy and James because they were concerned about the
probity of the evidence. So now those cases the indictments
were dismissed, We'll see if they can be reinstated, which
(29:00):
is possible. But in this case, the indictments stand. But
the pattern you suggest goes deeper. I mean, it suggests
that even though Cratcle two is very close to the
President's heart because he believes he needs to control everybody
in the bureaucracy in terms of both by appointment and discharge.
Speaker 4 (29:19):
He's not complying with it, and he's not complying with it.
Speaker 3 (29:21):
By refusing to give appointments for the consent Senate's consent,
and the courts are rebuffing him, saying, you know, look,
this is a very important constitutional provision. It's important to you,
it's important to us. You've just got to follow it.
And the President has set passively refused.
Speaker 2 (29:39):
Yeah, I mean so. In the Lindsay Halligan case, the
DOJ's Office of Legal Counsel last week said that Halligan
should continue to be referred to as the Eastern District
of Virginia's US attorney in court filings, and also in
California with the US Attorney for Los Angeles. The federal
(30:01):
judge ruled that he was unlawfully appointed, but is allowing
him to stay on as the top supervising prosecutor. I mean,
those decisions don't make any sense to me. Could Haba
be back in there?
Speaker 3 (30:13):
Yeah, I mean, obviously that's what Pam Bondi tried to
do by naming her a special prosecutor, which she does
have the power to name special attorneys to take on
certain responsibilities of the Department of Justice.
Speaker 4 (30:25):
But courts are trying to maintain, I think, a very
fine line.
Speaker 3 (30:29):
They're trying to follow the statutes, follow the Constitution, but
at the same time gives some slack to the administration.
Not so sure that they should create such a fine line,
because the president's not complying with the Constitution or the statutes,
and they've said that, And I'm not sure sure that
there should be as charitable by allowing these individuals to
still play such an important role in these offices. So
(30:52):
we'll have to see if the Department of Justice takes
any kind of remedial steps to try to put somebody
else who's a first assistant, for instance.
Speaker 4 (31:00):
Into the office, as the statute provides.
Speaker 2 (31:03):
Turning to the Supreme Court for a moment, the Justice
has declined for now to let President Trump oust the
director of the US Copyright Office, deferring a decision until
they consider two other clashes over Trump's firings. Does that
just seem logical.
Speaker 3 (31:23):
It's a really interesting case because obviously the Supreme Court
has taken the position that they want to cut back
on the idea of if independent agency heads, the idea
that the president has to have close control over all
subordinates who are exercising executive power.
Speaker 4 (31:40):
And they've expanded the notion of executive.
Speaker 3 (31:42):
Power with respect to ruling so far, dealing with the
National Relations Board, with the Federal Trade Commission, the mayor
as Systems Protection Board, and others. But now they're pausing
because the question here is can the President also summilary
dismiss or is at least one of his subordinates. Can
summary dismiss someone who is head of the Copyright Office,
(32:04):
which is actually within the Librarian of Congress. So the
question in this case is really what is executive power?
Is executive power anything that Congress delegates, or is executive
power something which is under the president's control Because theoretically
the gradustor of copyrights is part of the legislative branch,
(32:26):
gives advice to the Congress and tries to accept the
Congress's agenda with respect to what to do about copyrights,
and so can the president therefore have that same kind
of close control over a officer who is closely aligned
with Congress, as the Supreme Court seems to want to
(32:46):
give the president to have close control over officers that
are closely aligned with the president. So this case somewhat
challenges their construct of who the president has to have
close dominion over in terms of officers of the United States.
So I think the court this is only a preliminary posture.
There's been no final rulings in this case about whether
(33:08):
the Register of Copyrights can be discharged for no reason
at all, as President Trump directed. But I think the
Court paused because they realize this is a harder case
because even if they decide that the so called unitary
executive should expand to include the Federal Trade Commission, of
the National Labor Relations Board, et cetera, that's another step
(33:31):
to ask whether it should also apply to officers whom
Congress has place within the legislative branch.
Speaker 4 (33:38):
So I think the.
Speaker 3 (33:39):
Court is smart to pause and not to take this
at this point, because it realizes that these kind of
placements that is trying to say is non executive officer
significant executive officer not a significant officer are very much
up for grabs, and they should really go more slowly,
more carefully in decision making.
Speaker 2 (33:59):
Thanks hell, that's Professor Harold Krent of the Chicago Kent
College of Law. And that's it for this edition of
the Bloomberg Law Show. Remember you can always get the
latest legal news on our Bloomberg Law podcasts. You can
find them on Apple Podcasts, Spotify, and at www dot
bloomberg dot com, slash podcast slash Law, And remember to
(34:19):
tune into The Bloomberg Law Show every weeknight at ten
pm Wall Street Time. I'm June Grosso and you're listening
to Bloomberg
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