November 11, 2025 • 36 mins
John Meiser, a professor at Notre Dame Law School and director of the Religious Liberty Clinic, discusses the Supreme Court oral arguments over a Rastafarian inmate’s claim that prison guards violated his religious rights and should pay damages. Constitutional law professor Harold Krent of the Chicago-Kent College of Law, discusses the government’s claims in its case to deploy National Guard units to Chicago. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (00:08):
It is undisputed that my client has alleged an assault
that is just brazenly illegal. He was at respondent's mercy
in federally funded custody when he handed them a copy
of controlling precedent holding that RALUPA protected his right to
keep his hair long. They threw it away, handcuffed him
to a chair, and shaved him bald.
Speaker 3 (00:28):
Damon Landor is Arrastafarian who had followed the Nazarite vow
forbidding him from cutting his hair for nearly two decades.
When Landor was transferred to a new prison in Louisiana
with just weeks left on his five month sentence, he
carried a copy of an appeals court decision that held
(00:49):
that cutting a religious prisoner's dreadlocks violates federal law. But
a prison guard threw the ruling into the trash, and
despite Landor's please, he was handcuffed to a chair and
held down while his knee length dreadlocks were cut off.
No one disputes the glaring violation of his religious rights.
(01:10):
As Justice Amy Cony Barrett noted, look.
Speaker 2 (01:13):
The facts of this case are egregious.
Speaker 1 (01:16):
So if on the facts we were looking for a
case in which there should be money damages, this is it.
Speaker 3 (01:22):
But it's not just about the facts. It's about the
law and whether Landor can sue the guards and prison
officials for damages under the Religious land Use and Institutionalized
Persons Act, better known as RALUPA. While the Supreme Court
has repeatedly sided with religious litigants in recent years, a
(01:43):
majority of the Conservative justice is led by Justice Neil Gorsuch,
appeared skeptical that Landor could sue individual corrections employees.
Speaker 4 (01:54):
The circuits are unanimously against you and have been for many, many,
many years. So saying that something awful's going to happen,
it's all. Whatever's happened has happened, right.
Speaker 3 (02:04):
The Conservatives questioned whether the prison guards had noticed that
they could be found individually liable, but the liberals said
the prison employees were on notice. Here are Chief Justice
John Roberts and Justice Sonya Sotomayor.
Speaker 5 (02:20):
If you're hired as a prison guard in Louisiana, you
don't sit down, And I don't even know if Louisiana
does saying, oh, here's our agreement with the federal government,
which probably goes on for I don't know how many pages,
and you should look at it carefully because you're bound
by it.
Speaker 6 (02:36):
Generally speaking, if you're a prison official, you know you're
working in a prison, and you bound by law to
pay damages if you violate the law. Do you get
an out?
Speaker 3 (02:49):
Because what my guest is John Miezer, a professor at
Notre Dame Law School and director of the school's Religious
Liberty Clinic, John tell us about the law that Landor
is suing under.
Speaker 1 (03:03):
That act, which you know shorthand is called RELUPA was
passed in two thousand in conjunction with an act that
was passed a few years earlier, the Religious Freedom Restoration Act,
and both of them sort of target the same goal,
which is to, as a matter of federal statutory law,
to restore a more robust set of protections for a
(03:25):
religious exercise, which which previously had been available under the
US Constitution, but then, following a seminal case in nineteen
ninety Employment Division versus Smith, it sort of restricted some
of those rights as a matter of constitutional law, and
then Congress acted to restore them as a matter of
statutory law.
Speaker 3 (03:43):
So explain what the problem is with him using this law.
Speaker 1 (03:48):
So Relupa, the particular law at issue here focuses on
two areas of state and local government activity. One is
in land use, you know, decisions about how you can
use your property. And then the one relevant here is
about religious exercise and jails and prisons. And so there's
no doubt that the law Relupa protects mister Landor's rights here.
(04:10):
He's a state prisoner, and so therefore Safeguards is right
while incarcerated to exercise his religion. And the only question
in this case is one of remedies. So the effects
are egregious, and I don't think anyone really doubts that
while he was in prison his rights were blatantly violated.
He's a Rastafarian, which among other things, requires him not
(04:31):
to cut his hair. He actually had a judicial decision
when he entered the prison that held the prison policy
requiring you know, they normally require forced shaving of all
the inmates hair. He had a decision saying that couldn't
be enforced against Rostafarians like him, But the guards literally
threw away that decision, hankuffed him to a chair and
shaved his head anyway, so there's no doubt his rights
(04:53):
were violated, and the question now is only what sort
of remedies does RELUPA allow for him to address that violation.
Speaker 3 (05:02):
Justice Katanji Brown Jackson read from Reloopa and said, it
seems pretty clear. And five years ago the Supreme Court
unanimously ruled that the sister statute, the Religious Freedom Restoration Act,
permits money damages against federal officials. In that case, Muslims
were allowed to sue over their inclusion on the FBI's
(05:24):
no fly list. So why doesn't that analysis work for
the law here Reloopa.
Speaker 1 (05:30):
Yeah, so the legal question out of heart is a
pretty technical one of congressional power. So what both REFRA
and RALUPA, what these laws allow is for someone who's
been injured, whose rights have been violated, to file a
lawsuit in federal court against those who caused the violation.
The statute the words of the law allow you, in
(05:50):
that lawsuit to get what is all appropriate relief. So
then the whole question becomes, well, what does Congress mean
by appropriate relief? One thing that's undisputed relief certainly includes
a judicial order that would prevent an ongoing violation of
religious rights. So if the jail, so to speak, we're
continuing to threaten to violate mister Landor's rights, say they
(06:12):
are shaving his head every week, you can get a
court order telling them to stop doing that. The question, though,
is that you just touched on there is But what
about one time harms? What about harms that aren't ongoing?
They're over now? How do you remedy those? Does the
law allow you to get monetary damages? Which would be
the normal way in a lawsuit if you've been harmed,
the normal recourse in the law is you're able to
(06:35):
get monetary damages to get money to help in some
way remedy you repair that harm. But the question here
is does RELOOPA allow that you're right riff ra out
of the sister statue it was held to allow monetary damages,
And the question of well does RELUPA allow the same
turns out a very particular idea of the congressional power
issue here, which is Congress's use of its spending power.
(06:58):
Does the spending claw require something more for a statute
to authorize monetary damages? Does appropriate relief clearly enough convey
that when a state accepts federal spending it might open
itself up or open its officers up to suits for
money damages.
Speaker 3 (07:18):
Did it seem pretty apparent that most of the conservative
justices thought that the statute shouldn't apply here.
Speaker 1 (07:28):
I don't know how clear it is, but I do
think a number of justices certainly expressed skepticism about that.
So there's a couple of different things going on. One
is what does the statute mean? You know, what does
appropriate relief mean in context of laws like this? And
so that question is does the statute itself is it
clear enough that it allows monetary damages? And then the
other is, well, okay, even if it is, even if
(07:48):
Congress did allow this, does the Constitution let Congress do
that through a spending clause law like this? And several
justices I think expressed some skepticism on one or both
of those questions. But I think I think this skepticism
all came back to a similar idea, which is spending
clause legislation. Right, it opens up money for state governments
to take part in federal programs or to receive federal
(08:11):
subsidies for different types of things. Here jails and prisons,
and the federal government can attach conditions to those. Sure
will help you pay for your prison facilities if you
agree to comply with X, Y, and Z. And the
Court's concern with laws like this is that states are
coming into that bargain with their eyes open, that they
understand the conditions they're agreeing to. It's one of notice,
(08:34):
one of clarity. So that's I think the driving concern here.
I don't think it is so much about whether it
would make sense to apply these substantive religious rights in prison.
And everyone agrees actually that the prison and its officials
are bound substantively to protect the rights that rerelopid demands.
But what some of the justices in the Court were
really struggling with was how clear was it. Were individuals
(08:54):
who work within those prisons really on notice that by
signing up to work in the prison they might be
suited for things like this.
Speaker 3 (09:01):
It seemed like a lot of the conservative justices didn't
think that there was notice here. At one point, Chief
Justice John Roberts said, it's a legal fiction to say
that a prison guard knows what he's signing up for here.
But the liberals, particularly Justice Sodo Mayor, said, when you
(09:21):
sign up to work as a corrections official in a prison.
Doesn't that mean you're signing up to obey the law?
And you know, the act here was so obviously brutal, right,
and the guard just tossed the notice he got from
Landor into the trash.
Speaker 1 (09:41):
I agree with that, I think, and I think mister
Landor has a very good argument here, right. So it's
of course true, as the Chief Justice pointed out, that
there's something of a legal fiction here, but that's you know,
these legal fictions run throughout the law. We're all presumed
to have knowledge and be aware of the contents of
criminal law. You know, is any given person on actually
aware of everything that's prohibited by federal or state criminal law? No,
(10:04):
of course, not right. But ignorance of the law, even
if actually true, we don't allow that ignorance of the
law to be excuse to defy it, right. And so
you know, just as Sodomayor's point here, which is echoed
throughout the argument by mister Landor's council, is that, at
least in this context where we're talking about people who
sign up to work in a prison or a jail,
(10:24):
these officers, we all the time presume they understand their
obligations under federal law, under constitutional law, under state law,
and they understand that if they violate those obligations, these
demands that they protect our rights, that they might be
sued for it. And again, I don't know there's any
doubt in the case, and I think the state actually
concedes that as a substantive matter, the state and its
(10:46):
officers were bound to follow the demands of RELUPA. So
then the only question is, well, is it different that
they need to also know they knew they had to
follow RELOOPA, they knew they could get sued under RELOOPA,
they knew they could be held subject to junctive relief
under LUPA. Do they also need to know that they
can be sued for money under ALUOPA. Well, even if
(11:07):
that's a separate question, I agree with mister Landor here,
that's not a very hard one, because again, as soon
as you're understanding that you might be sued as an individual,
the normal recourse is that if you're found and violated
the law, you might have to pay money damages.
Speaker 3 (11:24):
Coming up next, where might the justices come out in
the case this is Bloomberg. The Supreme Court wrestle with
whether a former Louisiana inmate can sue prison officials who
cut off his dreadlocks in violation of his Rastafarian religious beliefs.
The justices heard arguments in the case of Damon Landor,
(11:47):
who wants to sue for money damages under a federal
law designed to protect the religious rights of inmates. The
court's three liberal justices seemed firmly on Landor's side, but
the court short's conservatives seem skeptical. Justice Neil Gorsich led
the court's conservative block at oral arguments in pressing the
(12:09):
attorneys for Damon Landor on where the Corrections employees should
be individually liable for contracts made between state institutions and
the federal government under a religious liberty statute.
Speaker 4 (12:24):
Where did the defendant the individual defendants agree with the
federal government to be bound and what notice did they have?
And I understand your point earlier to the Chief that
they're subject to state regulations.
Speaker 3 (12:38):
But Liberal Justice Katanji Brown Jackson said the statute was clear.
Speaker 7 (12:44):
So I guess I'm trying to understand how Congress could
have said it any clearer. I mean, to the extent
that we're puzzling over whether or not. There's a clear
statement in the statute.
Speaker 6 (12:57):
You know, it says a.
Speaker 7 (12:58):
Person may assert a violation of this chapter as a
claim or defense in a judicial proceeding and obtain appropriate
relief against a government. If that doesn't refer to money
damages being brought by an individual for a violation of LUPA,
what could Congress have meant by appropriate relief here?
Speaker 3 (13:18):
I've been talking to John Neezer of Notre Dame Law School.
Several justices pointed out that all the circuit courts and
all the lower courts have ruled against Landor's position here.
So why did the Supreme Court even take this case?
I mean, there was no circuit split, and it doesn't
(13:39):
seem like they took the case to reverse it.
Speaker 1 (13:42):
Yeah. I think there's a couple of reasons. So one,
I think many of the justices questions overstated the level
of that agreement. As I mentioned earlier, there's really two
different legal questions in the case, which is, what does
the law mean? You know, when it's said as appropriate relief?
What is a properate relief in contacts? Would that be understated?
Thing is, even if the law does allow money damages,
(14:03):
can Congress do that in a law like this. So
circuit courts have arrived at similar conclusions, which is that
RELOPA doesn't allow damages, but they've done it through different paths,
and in fact, several courts have found that no, in fact,
the law is clear here that just like under RIFRA,
appropriate relief does in fact include damages. It's a normal,
expected remedy against an individual. And then you know, some
(14:25):
of them then said, but as a constitutional matter, the
court can't do that. They can't through spending legislation bind
these sort of individual third parties who didn't you know,
agree to the funds or something like that. And then
some courts have come out differently on those questions. So
although it's true that damages aren't available generally in federal
courts under RELOUPA, I don't think there's a lot of
agreement as to why. And then more to the point,
(14:48):
this is an area where where the Supreme Court has
recently providing more guidance. So under riffra, was you just
mentioned this recent case Tanzen, You know, courts weren't necessarily
getting that right idea that Riffra allowed monetary DAMA images.
The Court came in and said no, no, no, we look
at river for appropriate relief does include monetary damages against
individuals as the normal recourse. That was a pretty recent decision,
(15:09):
So now all around the country courts are having to
rethink their older precedent. Oh is it still good law?
Do I need to rethink it? After Tanzan and the
Court has stepped in to provide that clarity.
Speaker 3 (15:18):
Justice so do Mayor and some of the other liberal
justices warned that ruling against land Or would potentially put
dozens of other federal statutes at risk.
Speaker 1 (15:30):
Yeah, I certainly don't have a good read on just
how many statutes might look like this, or you know,
maybe relatedly, just how many other interpretations of those statutes
might be implicated in either way the Court goes. But
I guess I would say that, and I think all
the justices acknowledged this. This would certainly not be the
first time that the Court had ruled that spending Clause
(15:51):
legislation allowed Congress to create the right of action for
monetary damages against third parties or individuals. So that wouldn't
be sort of groundbreaking, you know, the extent to which
Congress can do that, or the terms through which Congress
must speak. I don't. Again, I don't think there's great
(16:11):
clarity in the law on that now, So ruling in
either way in this case is going to help provide guidance,
and I'm not sure that I have a strong sense
of which side is right. That would be more disruptive
to the law as it currently sits today.
Speaker 3 (16:22):
Were you surprised at the turn that this argument took.
Speaker 1 (16:26):
I don't know if I would say I'm surprised, you know,
I think initially I think you started here actually in
our conversation that there's a really strong argument, and I
think good reason to believe that. Well, if RIFFRA through
the exact same language passed by Congress for the exact
same reason to restore religious freedom. If RIFFRA allows monetary damages,
(16:48):
it's very hard to understand how you know, it's its
sister statute RULUPA doesn't. But I think I understand the
complications in the case. You know, it's this it's this
ery Dykee question of what Congress must do when it
through different enumerated powers. So you know, riff as not
spending clause legislation LUPA is they might require different things
of Congress. So I do think the case is harder
(17:11):
than it might appear at first blush. But I also
would hope that the court would ultimately align the reading
of the two statutes, and it would be at least
a somewhat unusual result if Riffer and Ralupa, these sister
statutes passed for the same purposes, allowed different remedies, and
it would leave people like mister Landor without any recourse
to remedy what all agree was an egregious violation of
(17:32):
his rights. And it would leave no ability to hold
the individuals who literally threw away a copy of a
court decision and to hold them accountable. And I think
that would be regrettable certainly.
Speaker 6 (17:44):
Yeah.
Speaker 3 (17:44):
And one of the justices I don't remember which justice,
asked at one point what happened to the guards who
did this? And the only answer was, well, the warden
was transferred or left. So one wonders if there was
any kind of punishment.
Speaker 1 (17:59):
Right, And you know, in our religous livery plink, we
filed an amigas brief in the case on behalf of
a variety of religious organizations was point this out, which
point out the danger if someone who's harmed can't get
monetary damages. There might be very few and perhaps no options,
no mechanisms available to hold these violators accountable. Because if
it's a one time thing and it's over and done with,
(18:21):
and the court can't issue in order not to do
it because the violation has already occurred, well then what
can you do? Right? You can scold, you can reprimand
the prison and the lower court did here, you know,
so really just criticized in a harsh language what had
happened to mister Orlando. But beyond that, it's very been
mechanism to hold these folks accountable.
Speaker 3 (18:41):
So, I mean, this court has, you know, repeatedly sided
with religious litigants in recent years. I mean, you could
go through a lot of cases. But there's the Christian
football coach who got to pray at the fifty yard
line after games. The Christian web designer who was allowed
to refuse to work with same six couples, the Texas
(19:02):
death row inmate who got to pray with his pastor.
I mean, on and on. If the court doesn't find
for the inmate here the Rastafarian, is there a danger
that people will say, well, when conservative Christians come before
the court, their religious rights are vindicated, but this Rastafarian
(19:25):
inmate his are not.
Speaker 1 (19:27):
People will certainly say it right. I think it's easy
to predict that that would be you know, one criticism
of the decision if it were to go that way,
you know, I don't think it would be accurate or fair.
I think the Court is serious and committed to protecting
religious freedom. It's a right that, as you just mentioned,
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in a number of areas, the Court has you know,
taken a lot of cases to ensure that it's not
being diminished around the country. I think that's true even
if they were to rule against mister Landore in this case,
and again I think if they were to do so,
which would be regrettable, I don't think that would be
the right decision. But if the Court were to do so,
I think it would not come from any different approach
(20:11):
based on the religious background of the plaintiff, but rather
based on you know, some of these really difficult structural
questions about congressional authority the Court is grappling with. And
you know, I would just point out that that those
cases in this one provide, and the Court knows this
significant protections for all religions. You know, whether any given
(20:34):
climate is Christian or not, And certainly not all of
the plants in these prior cases have been Christian. There's
one just this past term where the lead plants are
Muslim families. So I don't think that would be an
appropriate reading of the case.
Speaker 3 (20:46):
Now, I mean, do you have a feel for how
it's going to come out or you don't.
Speaker 1 (20:50):
No, I don't have a feel. I mean, I think
this kind of goes back to what we were saying,
is like, I think it's a complicated case. I think
it's It was obvious to me that in the argument
a lot of the justices were really strung with how
to draw these lines and these concerns over notice and
keeping Congress from overstepping its enumerated powers, which is which
itself is a rights protecting idea typically, but with the
(21:11):
recognition that here is a seminal piece of legislation to
protect religious freedom, a piece of legislation in the Court
has repeatedly been sure to safeguard and uphold, and I
think there's real tensions with how best to weigh those
you know, competing sort of priorities of the court.
Speaker 3 (21:30):
Yeah, I have to say that the case was so
egregious I mean, you have a prison guard tossing a
decision in the garbage, and then they forcibly hold him
down and cut off his dreadlocks. I thought they took
the case to reverse the court below and allow him
to sue for damages, especially considering how this court is
(21:54):
usually solicitous of religious litigants and the facts here. How
often do you have the plane if showing the law
to the defendant and the defendant just tossing it out,
you can't make these things up.
Speaker 1 (22:07):
It would be Yeah. No, I mean, I agree, and
I think at the end of the day that the
simplest reading of the case is what you're saying. This
is a blatant violation of this man's rights. He doesn't
seem real. They literally threw away the decision. They handcuffed him,
they forcibly shaved him, and now the claim is brought
under a law that's nearly identical to him, that the
(22:27):
court just said allows lawsuits for damages like this. So
I agree. I think the easiest thing, simplest thing is yeah,
you take it to reverse and to make clear, Yes,
RALUPA is just like referra. It allows these damages. And
I think that's the right outcome. I do agree though
that from the argument it seems the court is certainly
struggling with more complications than that.
Speaker 3 (22:49):
Well, it was great talking to you, John. We'll see
how the court comes out. That's Professor John Meser of
Notre Dame Law School coming up next. We'll tell you
what the Trump has meant told the Supreme Court about
its powers to send the military into Chicago. This is Bloomberg.
The Supreme Court is considering whether to let President Trump
(23:12):
deploy the National Guard to Chicago over the strong objections
of city and state officials. The case marks the first
time that the Supreme Court has been drawn into Trump's
effort to dispatch troops to democratic run cities where he
claims crime is rampant and where people are protesting his
(23:33):
immigration crackdown. President Trump's administration told the Supreme Court that
he could have sent active duty military troops to Chicago
to help enforce federal immigration laws, as he urges the
Court to instead let him deploy the National Guard. The
US Solicitor General John Sower told the court that the
(23:53):
president has sweeping discretion to dispatch the military forces of
his choosing to deal with domestic disturbances. A federal appeals
court decision refused to let Trump deploy the troops, agreeing
with Illinois officials that the federal government had failed to
show any evidence to justify the use of troops, even
(24:17):
giving substantial deference to Trump's claim that protests in Chicago
amounted to a rebellion or invasion that necessitated the use
of National Guard soldiers. Joining me is constitutional law expert
Harold Krant, a professor at the Chicago Kent College of Law.
So the Supreme Court has been thinking about this case
(24:39):
for since last month, and on October twenty ninth, the
justices asked whether regular forces refers to active duty troops.
First of all, explain why they're asking that.
Speaker 8 (24:52):
The question is when the president can federalize the National Guard.
And under the prinit Statutes, there are two situations in
which the guards can be nationalized. The first is when
there's an act of rebellion, and some have claimed that
the government thinks that there is a rebellion going on
because of the activities against the border patrol and ice,
(25:15):
but most judges dismiss that as totally far fetched. And
the second is when there is the government cannot protect
or enforce federal law with regular forces. And so the
question is what does this phrase mean, And it's an
ambiguous phrase and there's been a disagreement about it for
(25:37):
a generation. And on one view, what the government says
is if there is any kind of pressure on federal
law enforcement, then the National Guard can be federalized. And
of course the pressure that they're referring to is the
challenges to ICE and the immigration agents. On the other hand,
(25:57):
the failure to force federal law with regular forces. Regular
forces might mean the military, in which case that's a
reference to the Insurrection Act, which in turn would say
that the only time you can federalize the National Guard
is when there is an insurrection and the military can't
do the job itself. So that's an extreme And there's
(26:20):
a middle position in which would say that the federal
government can only federalize the National Guard if general law
enforcement has broken down such that federal buildings, federal ICE
agents are in jeopardy of going about and doing their business.
So those are the three reads of those provisions. But
(26:41):
the idea of what regular forces mean is really key
and no one's answered, and obviously the Supreme Court is
troubled about that.
Speaker 3 (26:49):
Chicago is arguing that it refers to the standing military,
not to immigration agents or civilians. So what does that mean.
Speaker 8 (27:01):
I'm not sure that Chicago has made the more drastic
argument that says that regular forces means military. I think
what Chicago has argued is that the National Guard cannot
be federalized because there is no rebellion and because there
is no general failure of law enforcement. The federal agents
go about do their business. Littal buildings remain unscathed. So
(27:25):
they've just said, as a factual matter, the court here
held that there is no credibility to the court's position.
In fact, the court, I mean sorry, the Chicago ducked
the question of really what regular forces means that has
been raised by Amigas in the Supreme Court case, and
that would the narrow reading of Amigas or Meiki would
(27:47):
really help Chicago, And I don't think that they have
filed a supplemental briefing to join in.
Speaker 3 (27:55):
So now the Solicitor General is saying that Trump could
have sent active duty military troops to Chicago to help
enforce federal immigration laws, and.
Speaker 8 (28:08):
That could only be done under the Insurrection Act and
the Insurrection Act says, you know that there has to
be an invasion, and so you know, unless there's some
other novel reading of the Insurrection Act, regular forces cannot
be used for law enforcement absent in invasion. And by
no stretch of the imagination, have we had an invasion.
(28:29):
I guess President Trump might say the undocumented immigrants are
constituted an invasion, but I don't think that even the
Supreme Court would defer to that kind of reasoning.
Speaker 3 (28:39):
I mean, what does it say that the court it's
on an X sort of expedited schedule, but not really expedited.
And in all this time, you know what's happened in
these cities, Chicago and Portland in LA. At one point,
the Trump administration was arguing to send the troops that
were supposed to be in LA to Portland. So I
(29:01):
guess there isn't an emergency in LA anymore. I mean,
does it seem inconsistent?
Speaker 5 (29:07):
Yeah?
Speaker 8 (29:07):
No, I think that the Supreme Court is very charchairity
of the President Trump's arguments with respect to the National Guard.
I don't think they like the idea of the standing
army in cities, and I think they're even skittish about
the National Guard and the statutory framework here seems very
much against the Trump administration. And we don't have rebellion,
(29:30):
we don't have an invasion, and there is very little
pressure on ordinary federal law enforcement, even if we don't
reach how to construe the term federal regular forces in
the National Guard Act.
Speaker 3 (29:46):
But is the Supreme Court usually hesitant? This Supreme Court
to constrain the president's authority, thinking that you know, there
might be emergency situations where the president does have to act.
Speaker 8 (30:01):
Well, there should be huge deference to the president if
there is an invasion or if there is a rebellion.
But if there is no colorable invasion or colorable rebellion,
that puts the Supreme Court in a bind. And I
think the Supreme Court members have not entered into this
fray yet because they're really torn about what to do.
(30:22):
And we're not seeing a kind of quick protection of
the administration that we have in context in terms of
discharging federal workers, cutting aid agreements, cutting grants, and so
on and so forth.
Speaker 3 (30:35):
Trump has won the last twenty three cases that he
took to the Supreme Court, and the emergency docket.
Speaker 8 (30:43):
It might be the first one might break the streak.
But I think everybody's watching the tariff case as well,
another sort of bell weather where it looks like the
justices may give a little pushback.
Speaker 3 (30:52):
Let's turn to Snap benefits for a moment, though this
question could be over with the ending of the shut down,
but I think it's important to talk about the core
question here about the Snap benefits, where courts ordered Trump
to the Trump administration to pay the benefits, and the
Trump administration sent a message to states that were stepping
(31:18):
up and paying Snap benefits not to do it.
Speaker 8 (31:23):
I'm actually just to shock you. I'm actually somewhat empathetic
to the Trump administration on this one.
Speaker 1 (31:28):
I mean to dial back the clock.
Speaker 8 (31:30):
The district court judge within the First Circuit made an
order to the Trump administration that said, you either have
to pay Snap benefits November in full, or you have
several days to make partial payment based upon the contingency fund.
The Trump administration agreed to pay all that was in
(31:54):
the contingency fund, which was about three quarters of the
Snap benefits for November, but it did so in a
kind of dilatorious way and said we can't meet the
deadline because it's too complicated. To figure out how to
make partial payments because of the arrangements and agreements we
have with the states. And so they chose to satisfy
(32:17):
the court order by making the partial payment from the
contingency fund as they could do, and they decided not
to use discretionary funds to make up for the deficit. Now,
what the court said then was you were moving too slowly.
You didn't you the government didn't meet the deadline, and therefore,
(32:40):
as an enforcement mechanism, we will require you to pay
the entire amount, basically transforming discretionary funds that the Department
of Agriculture had collected from tariffs into mandatory funding of
one program snap as opposed to other programs such as
nutrition for childs and infants. This is, you know, I think,
(33:04):
quite an intrusion into the general discretion of how the
Department of Agriculture should pay funds. And even the first
Circuit seemed to think that if you had a lawsuit
directed at the Department of Agriculture to require to use
its discretion in this particular way by paying for the
(33:25):
deficit in staff, that that lawsuit would be thrown out.
A court is non just disciple that basically the decision
of how to use discription rate funds is committed by
law to agency discretion. So only by using requiring the
payment of these discretionary funds as a remedy for the
government's tardy behavior in complying with the court ruling was
(33:52):
the court able to try to close the gap and
finalize the staff funding. So I think this is an
extra ordinary remedy acting. I think the government acted abominably
here in trying to withhold monies for the staff program.
But nonetheless, this court order seemed to overstep its bounds
(34:12):
in requiring that the full payment be made. Obviously, this
is putting pressure on Congress, and so this whole thing
maybe become mood quickly, but time still was remaining, so
we have to see.
Speaker 3 (34:23):
How What about the Trump administration telling states, you know
you stop, stop what you're doing to pay snap benefits.
Speaker 8 (34:34):
I think what the administration was doing was saying, we
can't guarantee you that if you pay more than the
if you fill the gap and pay more than the
contingency funds we have released, we won't guarantee that we'll
pay you back. And the government, federal government was right.
If some states have gone and paid full November staff benefits.
(34:55):
Others have paid zero. That's a state decision, and I
think the federal government was just telling them, you know, look,
if you do this and you pay more than the
what we've already agreed to pay, you're on the hook yourself.
And I think that's appropriate.
Speaker 3 (35:10):
I mean, this was very important because this may be
one of the reasons why the Democrats caved the Snap.
Speaker 8 (35:17):
It might be you know, obviously nobody wants to see
people go hungry, but ika at one point the Trump
of administration agreed that they would pay for November step
and then change their minds. And this changing the mind
I think infuriated the District court, which led to this
extraordinary remedy that the court imposed. The Supreme Court has
(35:40):
given an administrative stay, so we'll have to see how
this all plays out.
Speaker 3 (35:43):
Thanks Hal. That's Harold Krant 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 Podcast. You can find
them on Apple Podcasts, Spotify, and at www dot Bloomberg
dot com, slash podcast Slash Law, and remember to Tune
(36:04):
into The Bloomberg Law Show every weeknight at ten pm
Wall Street Time. I'm June Grosso and you're listening to
Bloomberg
This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2 (00:08):
It is undisputed that my client has alleged an assault
that is just brazenly illegal. He was at respondent's mercy
in federally funded custody when he handed them a copy
of controlling precedent holding that RALUPA protected his right to
keep his hair long. They threw it away, handcuffed him
to a chair, and shaved him bald.
Speaker 3 (00:28):
Damon Landor is Arrastafarian who had followed the Nazarite vow
forbidding him from cutting his hair for nearly two decades.
When Landor was transferred to a new prison in Louisiana
with just weeks left on his five month sentence, he
carried a copy of an appeals court decision that held
(00:49):
that cutting a religious prisoner's dreadlocks violates federal law. But
a prison guard threw the ruling into the trash, and
despite Landor's please, he was handcuffed to a chair and
held down while his knee length dreadlocks were cut off.
No one disputes the glaring violation of his religious rights.
(01:10):
As Justice Amy Cony Barrett noted, look.
Speaker 2 (01:13):
The facts of this case are egregious.
Speaker 1 (01:16):
So if on the facts we were looking for a
case in which there should be money damages, this is it.
Speaker 3 (01:22):
But it's not just about the facts. It's about the
law and whether Landor can sue the guards and prison
officials for damages under the Religious land Use and Institutionalized
Persons Act, better known as RALUPA. While the Supreme Court
has repeatedly sided with religious litigants in recent years, a
(01:43):
majority of the Conservative justice is led by Justice Neil Gorsuch,
appeared skeptical that Landor could sue individual corrections employees.
Speaker 4 (01:54):
The circuits are unanimously against you and have been for many, many,
many years. So saying that something awful's going to happen,
it's all. Whatever's happened has happened, right.
Speaker 3 (02:04):
The Conservatives questioned whether the prison guards had noticed that
they could be found individually liable, but the liberals said
the prison employees were on notice. Here are Chief Justice
John Roberts and Justice Sonya Sotomayor.
Speaker 5 (02:20):
If you're hired as a prison guard in Louisiana, you
don't sit down, And I don't even know if Louisiana
does saying, oh, here's our agreement with the federal government,
which probably goes on for I don't know how many pages,
and you should look at it carefully because you're bound
by it.
Speaker 6 (02:36):
Generally speaking, if you're a prison official, you know you're
working in a prison, and you bound by law to
pay damages if you violate the law. Do you get
an out?
Speaker 3 (02:49):
Because what my guest is John Miezer, a professor at
Notre Dame Law School and director of the school's Religious
Liberty Clinic, John tell us about the law that Landor
is suing under.
Speaker 1 (03:03):
That act, which you know shorthand is called RELUPA was
passed in two thousand in conjunction with an act that
was passed a few years earlier, the Religious Freedom Restoration Act,
and both of them sort of target the same goal,
which is to, as a matter of federal statutory law,
to restore a more robust set of protections for a
(03:25):
religious exercise, which which previously had been available under the
US Constitution, but then, following a seminal case in nineteen
ninety Employment Division versus Smith, it sort of restricted some
of those rights as a matter of constitutional law, and
then Congress acted to restore them as a matter of
statutory law.
Speaker 3 (03:43):
So explain what the problem is with him using this law.
Speaker 1 (03:48):
So Relupa, the particular law at issue here focuses on
two areas of state and local government activity. One is
in land use, you know, decisions about how you can
use your property. And then the one relevant here is
about religious exercise and jails and prisons. And so there's
no doubt that the law Relupa protects mister Landor's rights here.
(04:10):
He's a state prisoner, and so therefore Safeguards is right
while incarcerated to exercise his religion. And the only question
in this case is one of remedies. So the effects
are egregious, and I don't think anyone really doubts that
while he was in prison his rights were blatantly violated.
He's a Rastafarian, which among other things, requires him not
(04:31):
to cut his hair. He actually had a judicial decision
when he entered the prison that held the prison policy
requiring you know, they normally require forced shaving of all
the inmates hair. He had a decision saying that couldn't
be enforced against Rostafarians like him, But the guards literally
threw away that decision, hankuffed him to a chair and
shaved his head anyway, so there's no doubt his rights
(04:53):
were violated, and the question now is only what sort
of remedies does RELUPA allow for him to address that violation.
Speaker 3 (05:02):
Justice Katanji Brown Jackson read from Reloopa and said, it
seems pretty clear. And five years ago the Supreme Court
unanimously ruled that the sister statute, the Religious Freedom Restoration Act,
permits money damages against federal officials. In that case, Muslims
were allowed to sue over their inclusion on the FBI's
(05:24):
no fly list. So why doesn't that analysis work for
the law here Reloopa.
Speaker 1 (05:30):
Yeah, so the legal question out of heart is a
pretty technical one of congressional power. So what both REFRA
and RALUPA, what these laws allow is for someone who's
been injured, whose rights have been violated, to file a
lawsuit in federal court against those who caused the violation.
The statute the words of the law allow you, in
(05:50):
that lawsuit to get what is all appropriate relief. So
then the whole question becomes, well, what does Congress mean
by appropriate relief? One thing that's undisputed relief certainly includes
a judicial order that would prevent an ongoing violation of
religious rights. So if the jail, so to speak, we're
continuing to threaten to violate mister Landor's rights, say they
(06:12):
are shaving his head every week, you can get a
court order telling them to stop doing that. The question, though,
is that you just touched on there is But what
about one time harms? What about harms that aren't ongoing?
They're over now? How do you remedy those? Does the
law allow you to get monetary damages? Which would be
the normal way in a lawsuit if you've been harmed,
the normal recourse in the law is you're able to
(06:35):
get monetary damages to get money to help in some
way remedy you repair that harm. But the question here
is does RELOOPA allow that you're right riff ra out
of the sister statue it was held to allow monetary damages,
And the question of well does RELUPA allow the same
turns out a very particular idea of the congressional power
issue here, which is Congress's use of its spending power.
(06:58):
Does the spending claw require something more for a statute
to authorize monetary damages? Does appropriate relief clearly enough convey
that when a state accepts federal spending it might open
itself up or open its officers up to suits for
money damages.
Speaker 3 (07:18):
Did it seem pretty apparent that most of the conservative
justices thought that the statute shouldn't apply here.
Speaker 1 (07:28):
I don't know how clear it is, but I do
think a number of justices certainly expressed skepticism about that.
So there's a couple of different things going on. One
is what does the statute mean? You know, what does
appropriate relief mean in context of laws like this? And
so that question is does the statute itself is it
clear enough that it allows monetary damages? And then the
other is, well, okay, even if it is, even if
(07:48):
Congress did allow this, does the Constitution let Congress do
that through a spending clause law like this? And several
justices I think expressed some skepticism on one or both
of those questions. But I think I think this skepticism
all came back to a similar idea, which is spending
clause legislation. Right, it opens up money for state governments
to take part in federal programs or to receive federal
(08:11):
subsidies for different types of things. Here jails and prisons,
and the federal government can attach conditions to those. Sure
will help you pay for your prison facilities if you
agree to comply with X, Y, and Z. And the
Court's concern with laws like this is that states are
coming into that bargain with their eyes open, that they
understand the conditions they're agreeing to. It's one of notice,
(08:34):
one of clarity. So that's I think the driving concern here.
I don't think it is so much about whether it
would make sense to apply these substantive religious rights in prison.
And everyone agrees actually that the prison and its officials
are bound substantively to protect the rights that rerelopid demands.
But what some of the justices in the Court were
really struggling with was how clear was it. Were individuals
(08:54):
who work within those prisons really on notice that by
signing up to work in the prison they might be
suited for things like this.
Speaker 3 (09:01):
It seemed like a lot of the conservative justices didn't
think that there was notice here. At one point, Chief
Justice John Roberts said, it's a legal fiction to say
that a prison guard knows what he's signing up for here.
But the liberals, particularly Justice Sodo Mayor, said, when you
(09:21):
sign up to work as a corrections official in a prison.
Doesn't that mean you're signing up to obey the law?
And you know, the act here was so obviously brutal, right,
and the guard just tossed the notice he got from
Landor into the trash.
Speaker 1 (09:41):
I agree with that, I think, and I think mister
Landor has a very good argument here, right. So it's
of course true, as the Chief Justice pointed out, that
there's something of a legal fiction here, but that's you know,
these legal fictions run throughout the law. We're all presumed
to have knowledge and be aware of the contents of
criminal law. You know, is any given person on actually
aware of everything that's prohibited by federal or state criminal law? No,
(10:04):
of course, not right. But ignorance of the law, even
if actually true, we don't allow that ignorance of the
law to be excuse to defy it, right. And so
you know, just as Sodomayor's point here, which is echoed
throughout the argument by mister Landor's council, is that, at
least in this context where we're talking about people who
sign up to work in a prison or a jail,
(10:24):
these officers, we all the time presume they understand their
obligations under federal law, under constitutional law, under state law,
and they understand that if they violate those obligations, these
demands that they protect our rights, that they might be
sued for it. And again, I don't know there's any
doubt in the case, and I think the state actually
concedes that as a substantive matter, the state and its
(10:46):
officers were bound to follow the demands of RELUPA. So
then the only question is, well, is it different that
they need to also know they knew they had to
follow RELOOPA, they knew they could get sued under RELOOPA,
they knew they could be held subject to junctive relief
under LUPA. Do they also need to know that they
can be sued for money under ALUOPA. Well, even if
(11:07):
that's a separate question, I agree with mister Landor here,
that's not a very hard one, because again, as soon
as you're understanding that you might be sued as an individual,
the normal recourse is that if you're found and violated
the law, you might have to pay money damages.
Speaker 3 (11:24):
Coming up next, where might the justices come out in
the case this is Bloomberg. The Supreme Court wrestle with
whether a former Louisiana inmate can sue prison officials who
cut off his dreadlocks in violation of his Rastafarian religious beliefs.
The justices heard arguments in the case of Damon Landor,
(11:47):
who wants to sue for money damages under a federal
law designed to protect the religious rights of inmates. The
court's three liberal justices seemed firmly on Landor's side, but
the court short's conservatives seem skeptical. Justice Neil Gorsich led
the court's conservative block at oral arguments in pressing the
(12:09):
attorneys for Damon Landor on where the Corrections employees should
be individually liable for contracts made between state institutions and
the federal government under a religious liberty statute.
Speaker 4 (12:24):
Where did the defendant the individual defendants agree with the
federal government to be bound and what notice did they have?
And I understand your point earlier to the Chief that
they're subject to state regulations.
Speaker 3 (12:38):
But Liberal Justice Katanji Brown Jackson said the statute was clear.
Speaker 7 (12:44):
So I guess I'm trying to understand how Congress could
have said it any clearer. I mean, to the extent
that we're puzzling over whether or not. There's a clear
statement in the statute.
Speaker 6 (12:57):
You know, it says a.
Speaker 7 (12:58):
Person may assert a violation of this chapter as a
claim or defense in a judicial proceeding and obtain appropriate
relief against a government. If that doesn't refer to money
damages being brought by an individual for a violation of LUPA,
what could Congress have meant by appropriate relief here?
Speaker 3 (13:18):
I've been talking to John Neezer of Notre Dame Law School.
Several justices pointed out that all the circuit courts and
all the lower courts have ruled against Landor's position here.
So why did the Supreme Court even take this case?
I mean, there was no circuit split, and it doesn't
(13:39):
seem like they took the case to reverse it.
Speaker 1 (13:42):
Yeah. I think there's a couple of reasons. So one,
I think many of the justices questions overstated the level
of that agreement. As I mentioned earlier, there's really two
different legal questions in the case, which is, what does
the law mean? You know, when it's said as appropriate relief?
What is a properate relief in contacts? Would that be understated?
Thing is, even if the law does allow money damages,
(14:03):
can Congress do that in a law like this. So
circuit courts have arrived at similar conclusions, which is that
RELOPA doesn't allow damages, but they've done it through different paths,
and in fact, several courts have found that no, in fact,
the law is clear here that just like under RIFRA,
appropriate relief does in fact include damages. It's a normal,
expected remedy against an individual. And then you know, some
(14:25):
of them then said, but as a constitutional matter, the
court can't do that. They can't through spending legislation bind
these sort of individual third parties who didn't you know,
agree to the funds or something like that. And then
some courts have come out differently on those questions. So
although it's true that damages aren't available generally in federal
courts under RELOUPA, I don't think there's a lot of
agreement as to why. And then more to the point,
(14:48):
this is an area where where the Supreme Court has
recently providing more guidance. So under riffra, was you just
mentioned this recent case Tanzen, You know, courts weren't necessarily
getting that right idea that Riffra allowed monetary DAMA images.
The Court came in and said no, no, no, we look
at river for appropriate relief does include monetary damages against
individuals as the normal recourse. That was a pretty recent decision,
(15:09):
So now all around the country courts are having to
rethink their older precedent. Oh is it still good law?
Do I need to rethink it? After Tanzan and the
Court has stepped in to provide that clarity.
Speaker 3 (15:18):
Justice so do Mayor and some of the other liberal
justices warned that ruling against land Or would potentially put
dozens of other federal statutes at risk.
Speaker 1 (15:30):
Yeah, I certainly don't have a good read on just
how many statutes might look like this, or you know,
maybe relatedly, just how many other interpretations of those statutes
might be implicated in either way the Court goes. But
I guess I would say that, and I think all
the justices acknowledged this. This would certainly not be the
first time that the Court had ruled that spending Clause
(15:51):
legislation allowed Congress to create the right of action for
monetary damages against third parties or individuals. So that wouldn't
be sort of groundbreaking, you know, the extent to which
Congress can do that, or the terms through which Congress
must speak. I don't. Again, I don't think there's great
(16:11):
clarity in the law on that now, So ruling in
either way in this case is going to help provide guidance,
and I'm not sure that I have a strong sense
of which side is right. That would be more disruptive
to the law as it currently sits today.
Speaker 3 (16:22):
Were you surprised at the turn that this argument took.
Speaker 1 (16:26):
I don't know if I would say I'm surprised, you know,
I think initially I think you started here actually in
our conversation that there's a really strong argument, and I
think good reason to believe that. Well, if RIFFRA through
the exact same language passed by Congress for the exact
same reason to restore religious freedom. If RIFFRA allows monetary damages,
(16:48):
it's very hard to understand how you know, it's its
sister statute RULUPA doesn't. But I think I understand the
complications in the case. You know, it's this it's this
ery Dykee question of what Congress must do when it
through different enumerated powers. So you know, riff as not
spending clause legislation LUPA is they might require different things
of Congress. So I do think the case is harder
(17:11):
than it might appear at first blush. But I also
would hope that the court would ultimately align the reading
of the two statutes, and it would be at least
a somewhat unusual result if Riffer and Ralupa, these sister
statutes passed for the same purposes, allowed different remedies, and
it would leave people like mister Landor without any recourse
to remedy what all agree was an egregious violation of
(17:32):
his rights. And it would leave no ability to hold
the individuals who literally threw away a copy of a
court decision and to hold them accountable. And I think
that would be regrettable certainly.
Speaker 6 (17:44):
Yeah.
Speaker 3 (17:44):
And one of the justices I don't remember which justice,
asked at one point what happened to the guards who
did this? And the only answer was, well, the warden
was transferred or left. So one wonders if there was
any kind of punishment.
Speaker 1 (17:59):
Right, And you know, in our religous livery plink, we
filed an amigas brief in the case on behalf of
a variety of religious organizations was point this out, which
point out the danger if someone who's harmed can't get
monetary damages. There might be very few and perhaps no options,
no mechanisms available to hold these violators accountable. Because if
it's a one time thing and it's over and done with,
(18:21):
and the court can't issue in order not to do
it because the violation has already occurred, well then what
can you do? Right? You can scold, you can reprimand
the prison and the lower court did here, you know,
so really just criticized in a harsh language what had
happened to mister Orlando. But beyond that, it's very been
mechanism to hold these folks accountable.
Speaker 3 (18:41):
So, I mean, this court has, you know, repeatedly sided
with religious litigants in recent years. I mean, you could
go through a lot of cases. But there's the Christian
football coach who got to pray at the fifty yard
line after games. The Christian web designer who was allowed
to refuse to work with same six couples, the Texas
(19:02):
death row inmate who got to pray with his pastor.
I mean, on and on. If the court doesn't find
for the inmate here the Rastafarian, is there a danger
that people will say, well, when conservative Christians come before
the court, their religious rights are vindicated, but this Rastafarian
(19:25):
inmate his are not.
Speaker 1 (19:27):
People will certainly say it right. I think it's easy
to predict that that would be you know, one criticism
of the decision if it were to go that way,
you know, I don't think it would be accurate or fair.
I think the Court is serious and committed to protecting
religious freedom. It's a right that, as you just mentioned,
(19:49):
in a number of areas, the Court has you know,
taken a lot of cases to ensure that it's not
being diminished around the country. I think that's true even
if they were to rule against mister Landore in this case,
and again I think if they were to do so,
which would be regrettable, I don't think that would be
the right decision. But if the Court were to do so,
I think it would not come from any different approach
(20:11):
based on the religious background of the plaintiff, but rather
based on you know, some of these really difficult structural
questions about congressional authority the Court is grappling with. And
you know, I would just point out that that those
cases in this one provide, and the Court knows this
significant protections for all religions. You know, whether any given
(20:34):
climate is Christian or not, And certainly not all of
the plants in these prior cases have been Christian. There's
one just this past term where the lead plants are
Muslim families. So I don't think that would be an
appropriate reading of the case.
Speaker 3 (20:46):
Now, I mean, do you have a feel for how
it's going to come out or you don't.
Speaker 1 (20:50):
No, I don't have a feel. I mean, I think
this kind of goes back to what we were saying,
is like, I think it's a complicated case. I think
it's It was obvious to me that in the argument
a lot of the justices were really strung with how
to draw these lines and these concerns over notice and
keeping Congress from overstepping its enumerated powers, which is which
itself is a rights protecting idea typically, but with the
(21:11):
recognition that here is a seminal piece of legislation to
protect religious freedom, a piece of legislation in the Court
has repeatedly been sure to safeguard and uphold, and I
think there's real tensions with how best to weigh those
you know, competing sort of priorities of the court.
Speaker 3 (21:30):
Yeah, I have to say that the case was so
egregious I mean, you have a prison guard tossing a
decision in the garbage, and then they forcibly hold him
down and cut off his dreadlocks. I thought they took
the case to reverse the court below and allow him
to sue for damages, especially considering how this court is
(21:54):
usually solicitous of religious litigants and the facts here. How
often do you have the plane if showing the law
to the defendant and the defendant just tossing it out,
you can't make these things up.
Speaker 1 (22:07):
It would be Yeah. No, I mean, I agree, and
I think at the end of the day that the
simplest reading of the case is what you're saying. This
is a blatant violation of this man's rights. He doesn't
seem real. They literally threw away the decision. They handcuffed him,
they forcibly shaved him, and now the claim is brought
under a law that's nearly identical to him, that the
(22:27):
court just said allows lawsuits for damages like this. So
I agree. I think the easiest thing, simplest thing is yeah,
you take it to reverse and to make clear, Yes,
RALUPA is just like referra. It allows these damages. And
I think that's the right outcome. I do agree though
that from the argument it seems the court is certainly
struggling with more complications than that.
Speaker 3 (22:49):
Well, it was great talking to you, John. We'll see
how the court comes out. That's Professor John Meser of
Notre Dame Law School coming up next. We'll tell you
what the Trump has meant told the Supreme Court about
its powers to send the military into Chicago. This is Bloomberg.
The Supreme Court is considering whether to let President Trump
(23:12):
deploy the National Guard to Chicago over the strong objections
of city and state officials. The case marks the first
time that the Supreme Court has been drawn into Trump's
effort to dispatch troops to democratic run cities where he
claims crime is rampant and where people are protesting his
(23:33):
immigration crackdown. President Trump's administration told the Supreme Court that
he could have sent active duty military troops to Chicago
to help enforce federal immigration laws, as he urges the
Court to instead let him deploy the National Guard. The
US Solicitor General John Sower told the court that the
(23:53):
president has sweeping discretion to dispatch the military forces of
his choosing to deal with domestic disturbances. A federal appeals
court decision refused to let Trump deploy the troops, agreeing
with Illinois officials that the federal government had failed to
show any evidence to justify the use of troops, even
(24:17):
giving substantial deference to Trump's claim that protests in Chicago
amounted to a rebellion or invasion that necessitated the use
of National Guard soldiers. Joining me is constitutional law expert
Harold Krant, a professor at the Chicago Kent College of Law.
So the Supreme Court has been thinking about this case
(24:39):
for since last month, and on October twenty ninth, the
justices asked whether regular forces refers to active duty troops.
First of all, explain why they're asking that.
Speaker 8 (24:52):
The question is when the president can federalize the National Guard.
And under the prinit Statutes, there are two situations in
which the guards can be nationalized. The first is when
there's an act of rebellion, and some have claimed that
the government thinks that there is a rebellion going on
because of the activities against the border patrol and ice,
(25:15):
but most judges dismiss that as totally far fetched. And
the second is when there is the government cannot protect
or enforce federal law with regular forces. And so the
question is what does this phrase mean, And it's an
ambiguous phrase and there's been a disagreement about it for
(25:37):
a generation. And on one view, what the government says
is if there is any kind of pressure on federal
law enforcement, then the National Guard can be federalized. And
of course the pressure that they're referring to is the
challenges to ICE and the immigration agents. On the other hand,
(25:57):
the failure to force federal law with regular forces. Regular
forces might mean the military, in which case that's a
reference to the Insurrection Act, which in turn would say
that the only time you can federalize the National Guard
is when there is an insurrection and the military can't
do the job itself. So that's an extreme And there's
(26:20):
a middle position in which would say that the federal
government can only federalize the National Guard if general law
enforcement has broken down such that federal buildings, federal ICE
agents are in jeopardy of going about and doing their business.
So those are the three reads of those provisions. But
(26:41):
the idea of what regular forces mean is really key
and no one's answered, and obviously the Supreme Court is
troubled about that.
Speaker 3 (26:49):
Chicago is arguing that it refers to the standing military,
not to immigration agents or civilians. So what does that mean.
Speaker 8 (27:01):
I'm not sure that Chicago has made the more drastic
argument that says that regular forces means military. I think
what Chicago has argued is that the National Guard cannot
be federalized because there is no rebellion and because there
is no general failure of law enforcement. The federal agents
go about do their business. Littal buildings remain unscathed. So
(27:25):
they've just said, as a factual matter, the court here
held that there is no credibility to the court's position.
In fact, the court, I mean sorry, the Chicago ducked
the question of really what regular forces means that has
been raised by Amigas in the Supreme Court case, and
that would the narrow reading of Amigas or Meiki would
(27:47):
really help Chicago, And I don't think that they have
filed a supplemental briefing to join in.
Speaker 3 (27:55):
So now the Solicitor General is saying that Trump could
have sent active duty military troops to Chicago to help
enforce federal immigration laws, and.
Speaker 8 (28:08):
That could only be done under the Insurrection Act and
the Insurrection Act says, you know that there has to
be an invasion, and so you know, unless there's some
other novel reading of the Insurrection Act, regular forces cannot
be used for law enforcement absent in invasion. And by
no stretch of the imagination, have we had an invasion.
(28:29):
I guess President Trump might say the undocumented immigrants are
constituted an invasion, but I don't think that even the
Supreme Court would defer to that kind of reasoning.
Speaker 3 (28:39):
I mean, what does it say that the court it's
on an X sort of expedited schedule, but not really expedited.
And in all this time, you know what's happened in
these cities, Chicago and Portland in LA. At one point,
the Trump administration was arguing to send the troops that
were supposed to be in LA to Portland. So I
(29:01):
guess there isn't an emergency in LA anymore. I mean,
does it seem inconsistent?
Speaker 5 (29:07):
Yeah?
Speaker 8 (29:07):
No, I think that the Supreme Court is very charchairity
of the President Trump's arguments with respect to the National Guard.
I don't think they like the idea of the standing
army in cities, and I think they're even skittish about
the National Guard and the statutory framework here seems very
much against the Trump administration. And we don't have rebellion,
(29:30):
we don't have an invasion, and there is very little
pressure on ordinary federal law enforcement, even if we don't
reach how to construe the term federal regular forces in
the National Guard Act.
Speaker 3 (29:46):
But is the Supreme Court usually hesitant? This Supreme Court
to constrain the president's authority, thinking that you know, there
might be emergency situations where the president does have to act.
Speaker 8 (30:01):
Well, there should be huge deference to the president if
there is an invasion or if there is a rebellion.
But if there is no colorable invasion or colorable rebellion,
that puts the Supreme Court in a bind. And I
think the Supreme Court members have not entered into this
fray yet because they're really torn about what to do.
(30:22):
And we're not seeing a kind of quick protection of
the administration that we have in context in terms of
discharging federal workers, cutting aid agreements, cutting grants, and so
on and so forth.
Speaker 3 (30:35):
Trump has won the last twenty three cases that he
took to the Supreme Court, and the emergency docket.
Speaker 8 (30:43):
It might be the first one might break the streak.
But I think everybody's watching the tariff case as well,
another sort of bell weather where it looks like the
justices may give a little pushback.
Speaker 3 (30:52):
Let's turn to Snap benefits for a moment, though this
question could be over with the ending of the shut down,
but I think it's important to talk about the core
question here about the Snap benefits, where courts ordered Trump
to the Trump administration to pay the benefits, and the
Trump administration sent a message to states that were stepping
(31:18):
up and paying Snap benefits not to do it.
Speaker 8 (31:23):
I'm actually just to shock you. I'm actually somewhat empathetic
to the Trump administration on this one.
Speaker 1 (31:28):
I mean to dial back the clock.
Speaker 8 (31:30):
The district court judge within the First Circuit made an
order to the Trump administration that said, you either have
to pay Snap benefits November in full, or you have
several days to make partial payment based upon the contingency fund.
The Trump administration agreed to pay all that was in
(31:54):
the contingency fund, which was about three quarters of the
Snap benefits for November, but it did so in a
kind of dilatorious way and said we can't meet the
deadline because it's too complicated. To figure out how to
make partial payments because of the arrangements and agreements we
have with the states. And so they chose to satisfy
(32:17):
the court order by making the partial payment from the
contingency fund as they could do, and they decided not
to use discretionary funds to make up for the deficit. Now,
what the court said then was you were moving too slowly.
You didn't you the government didn't meet the deadline, and therefore,
(32:40):
as an enforcement mechanism, we will require you to pay
the entire amount, basically transforming discretionary funds that the Department
of Agriculture had collected from tariffs into mandatory funding of
one program snap as opposed to other programs such as
nutrition for childs and infants. This is, you know, I think,
(33:04):
quite an intrusion into the general discretion of how the
Department of Agriculture should pay funds. And even the first
Circuit seemed to think that if you had a lawsuit
directed at the Department of Agriculture to require to use
its discretion in this particular way by paying for the
(33:25):
deficit in staff, that that lawsuit would be thrown out.
A court is non just disciple that basically the decision
of how to use discription rate funds is committed by
law to agency discretion. So only by using requiring the
payment of these discretionary funds as a remedy for the
government's tardy behavior in complying with the court ruling was
(33:52):
the court able to try to close the gap and
finalize the staff funding. So I think this is an
extra ordinary remedy acting. I think the government acted abominably
here in trying to withhold monies for the staff program.
But nonetheless, this court order seemed to overstep its bounds
(34:12):
in requiring that the full payment be made. Obviously, this
is putting pressure on Congress, and so this whole thing
maybe become mood quickly, but time still was remaining, so
we have to see.
Speaker 3 (34:23):
How What about the Trump administration telling states, you know
you stop, stop what you're doing to pay snap benefits.
Speaker 8 (34:34):
I think what the administration was doing was saying, we
can't guarantee you that if you pay more than the
if you fill the gap and pay more than the
contingency funds we have released, we won't guarantee that we'll
pay you back. And the government, federal government was right.
If some states have gone and paid full November staff benefits.
(34:55):
Others have paid zero. That's a state decision, and I
think the federal government was just telling them, you know, look,
if you do this and you pay more than the
what we've already agreed to pay, you're on the hook yourself.
And I think that's appropriate.
Speaker 3 (35:10):
I mean, this was very important because this may be
one of the reasons why the Democrats caved the Snap.
Speaker 8 (35:17):
It might be you know, obviously nobody wants to see
people go hungry, but ika at one point the Trump
of administration agreed that they would pay for November step
and then change their minds. And this changing the mind
I think infuriated the District court, which led to this
extraordinary remedy that the court imposed. The Supreme Court has
(35:40):
given an administrative stay, so we'll have to see how
this all plays out.
Speaker 3 (35:43):
Thanks Hal. That's Harold Krant 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 Podcast. You can find
them on Apple Podcasts, Spotify, and at www dot Bloomberg
dot com, slash podcast Slash Law, and remember to Tune
(36:04):
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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