May 23, 2025 • 37 mins
June Grasso talks to legal esperts about the top stories of the week.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
The Supreme Court deadlocked four to four on Thursday in
a major case over the separation of religion and government,
thwarting an effort to create the nation's first publicly funded
religious charter school in Oklahoma. The tie was possible because
(00:25):
Justice Amy Coney Barrett recused herself from the case. The
Supreme Court's one sentence order didn't reveal which justices were
on which side of the divide, but during the oral
arguments it seemed apparent that four conservative justices were likely
to side with the Catholic charter school, and the three
liberal justices were likely to side with Oklahoma. Here are
(00:49):
Justices Brett, Kavanaugh, and Sonya.
Speaker 2 (00:51):
So to Mayor, and then you come in and you say, oh,
worral religious school. It's like, Oh, No, can't do that.
That's too much, that's scary. We're not going to do that.
And our cases have made very clear, and I think
those are some of the most important cases we've had
of saying you can't treat religious people and religious institutions
(01:13):
and religious speech as second class in the United States.
Speaker 3 (01:18):
Because the essence of the establishment clause was, we're not
going to pay religious leaders to teach their religion. That
is and has always been the essence. And here we're
paying Catholic leaders Catholic teachers. You can only be a
(01:39):
teacher in this school if you're willing to accept the
teachings of the Catholic Church.
Speaker 1 (01:45):
That left Chief Justice John Roberts as the pivotal vote,
and the Chief distinguished the Oklahoma case from past Supreme
Court decisions backing the use of public money for religious schools,
saying there appeared to be more state involvement in this case.
Speaker 4 (02:02):
Trinity luther and Espinoza Carson, those involved fairly discrete state involvement.
In Trinity Lutheran, they're going to pave the or you know,
put woodchips on the on the playground. In Espinosa it
was a tuition credit, and Carson again tax credits. I mean,
this does strike me as a much more comprehensive involvement.
Speaker 1 (02:30):
The split leaves in place the Oklahoma Supreme Court decision
blocking the religious charter school and leaves open the question
of whether states with taxpayer funded charter school programs are
constitutionally required to incorporate religious institutions My guest is religious
liberty expert Stephanie Barkley, a professor at Georgetown Law. How
(02:54):
important is this case? What would the consequences have been
if the Court had allowed the nation's first faith based
charter school.
Speaker 5 (03:03):
So there's really two questions there. The one question is
if the court had ruled in favor of the faith
based charter school, how important of a decision would it
have been? And that would have been a landmark case.
It would have been the first time that we had
a face based charter school and would have had some
significant implications, probably not just for faith based schools and
charter school but potentially in other states as well. Now
(03:25):
there's the second question, which is, Okay, well, how significant
is the court's decision given that it's just, you know,
a very brief order without an opinion for for split,
affirming the lower court decision. And at that point the
answer is as a matter of precedent, that precedent is
not particularly important. It's not going to tell us, you know,
much about anything besides the fact that they're affirming this case.
(03:47):
There weren't five votes to reverse the Supreme Court in Oklahoma,
and in that way, it's going to be of limited
presidential effect.
Speaker 1 (03:54):
Does this case reflect tension between the First Amendments two
religion clauses, the establishment clause and the free exercise Clause.
Speaker 5 (04:03):
I don't think there is a tension between the two
religion clauses, and the Supreme Court emphasized that in its
recent case in Kennedy versus Birmerton School District. But largely
those clauses work together in a mutually reinforcing way. But
this case does highlight the way in which you could
get a different outcome under either of those clauses, depending
on whether we're dealing with a private school or a
(04:25):
government school. Because if it's a government school, then it
is pretty clear that government doesn't get to run religious
programs where it's preferring one type of denomination over another,
or setting out religious liturgy and things like that would
be prohibited under the approach to the Establishment Clause. The
Court has been taking post Kennedy, where it looks at
the six historical hallmarks of an established religion. Now, if
(04:47):
it's a private school, then the free exercise clause is
the relevant focus. Then the question is can the government
exclude the private school And the trajectory of cases that
it has had in Trinity Lutheran, Espinoza and Carson makes
pretty clear that the Court takes the free exercise clause
prohibits government from excluding religious schools just on that basis.
So it is a case that highlights for an outcomes
(05:08):
depending on the government versus private nature of the entity.
Speaker 1 (05:12):
We don't know how the justices voted. The arguments suggested
perhaps that the Chief Justice was the pivotal vote who
might have gone with the three liberals.
Speaker 5 (05:24):
I think that that's probably the most likely outcome that
you had. The Chief Justice Snawyer, Kagan, and Jackson do
not feel comfortable overruling the Oklahoma Supreme Court. And then
you had the other four justices, Justice Thomas, Alito, Gorsich,
and Kavanaugh. It probably would have ruled to overrule the
Oklahoma Supreme Court. And then of course Justice Spirit is recusing.
(05:47):
And of course because they only got to four to four,
that means it's an automatic affirmat of the previous judgment.
Speaker 1 (05:53):
Were you surprised that there weren't five votes for the
religious charter school.
Speaker 5 (05:59):
I think it's fortunate that there weren't five votes. I
think it's possible that the Chief was concerned about lack
of percolation. This is the first case of its time.
There aren't other cases that have grappled with this yet,
so hard to read. The tea leaves about exactly what
was the worry for him, But I think it's promising
that this court doesn't have an opinion from the chief,
sort of taking it out in a way that suggests
(06:21):
that this would be a permanent position, but leaving the
door open to future challengers and future cases.
Speaker 1 (06:26):
So, then, do you think that states that fund charter
schools should be required to fund religious charter schools.
Speaker 5 (06:36):
I think that if a state is operating such that
they're using the label of like a government school, that
they're really treating it like a voucher, then I think
probably the functional analysis matters more than the labels do.
But if the government is really operating charter schools like
other government schools, then I think government should be entitled
to make choices about running secular government schools. But really
(06:59):
just thelevels in the details of how is that particular
government operating at school system, how much oversight is there,
is it being even handed in the way it's approaching
that overside with the different types of charter schools and
public schools. Those are all going to be questions that
will be certainly relevant to the Court should a case
like this rise again.
Speaker 1 (07:16):
The four to four TI was a product of Justice
amy Cony Barrett recusing herself. So since it's not a
nationwide precedent, is it likely that proponents of religious charter
schools will simply try again in a case where Justice
Barrett can sit on the case.
Speaker 5 (07:36):
So I think that that is certainly not for close
by the Court's opinion in this case, and a possibility
at some point in the future. I think the most
likely next case that you will see in the school
choice movement is Saint Dominic Academy versus Macon, which would
be coming out of Maine. It's possible other cases could too,
but this is one that is already in the court system,
(07:57):
and it is essentially Carson two point zero, So name
the same government that the Supreme Court ruled against in
Carves and revised their laws when the case was sent
back down to try and find other creative ways to
keep faith based schools out of what is not a
charter school system, but it has always included private schools
and operates more like a traditional tuition boucher program, and
(08:18):
there are faith based schools that are challenging that right now,
and that's making its way through the court system. So
I think we're the court to take another school choice
sort of case. I think that's a more likely next step.
There are no cases right now percolating that I'm aware
of where there's another faith based charter school that has
been approved or requested to be created and been denied
and that they're doing over that right now.
Speaker 1 (08:39):
Has the Supreme Court in recent years expanded religious liberty
rights over other rights?
Speaker 5 (08:45):
I don't think that I would say they've expanded religious
liberty rights over other rights, but they have certainly given
a lot of attention to and been solicitous towards religious
claim although there are certainly religious claimants that have been
before the courts that didn't win their case, and this
is another So I think I think this is a
court that takes balanced and cautious approaches while still being
sympathetic towards religious liberty claims and wanting to ensure that
(09:07):
it's providing for best protection under our First Amendments.
Speaker 1 (09:10):
We're waiting for two more decisions from the Court in
religion cases. Tell us about those.
Speaker 5 (09:17):
One is a case called My Food and that is
another case in the educational context coming out of Maryland.
And this is a case where this school district has
instituted a policy where books are being read to children
down to elementary school and preschool that deal with issues
related to sexuality gender identity. And there are parents who
(09:40):
aren't objecting to those books being read broadly, but would
like to be able to opt their children out in
the school in that case has said that they are
not allowed to opt their children out. Their only option
is to drop out of school altogether if they don't
like that policy. So the Supreme Court has hurt oral
argument in that case, and it seems likely from oral
arguments that they will rule in favor of the religious
(10:02):
parents who Muslim parents, Jewish parents, and Christian parents in
a coalition in that case. Another case is the Catholic
Charity Is case that the Court heard before that that
is a case where there is a question of whether
a Catholic constitution can qualify for tax benefit in the state.
The decision from the state Supreme Court had said that
if the Catholic groups were engaging in more typical religious behavior,
(10:26):
and we're organized in a more typical way, and we're
doing things like proselytizing to other individuals as part of
their ministry, then they would qualify for the tax benefits.
But because this Catholic charity does not proselytize and that's
not part of their mission. They would serve people of
their religious groups or not all alike, and they don't
try and convert people to their theology, because the Catholic
(10:48):
ministry doesn't do that. On that basis, they don't qualify
for the tax benefit. And that was another case where
the court seems quite skeptical of the government action. Justice
Kagan in that case even asked like, isn't it pretty
clear the government doesn't get to tell people what ordinary
religious practices and which practices are approved and which or not. So,
I mean, it's even impossible in that case the government
(11:09):
might be facing unanimous defeat. Certainly something is likely that
they could get eight one or seven two votes in
that case.
Speaker 1 (11:16):
And we'll find out the results of both those cases
before July. Thanks so much for joining me, Stephanie. That's
Professor Stephanie Barkley of Georgetown Law coming up next on
The Bloomberg Law Show. Families of the Buffalo mass shooting
victims want to hold social media platforms libel, and they're
asking a New York appellate court to allow their suit
(11:38):
to go forward. I'm June Grosso and you're listening to Bloomberg.
It's been three years since a white supremacist opened fire
inside a grocery store in Buffalo and killed ten people.
The eighteen year old shooter pleaded guilty to all state
charges and was sentenced to eleven concurrent life sentences. Survive
(12:00):
and families of the victims have been trying to hold
social media companies responsible for publishing racist content that allegedly
motivated the shooter to commit the hate crimes targeting people
in a historically black neighborhood hundreds of miles from his home.
Speaker 6 (12:17):
Our case is fundamentally about the isolation, obsession, lack of
impulse control, and desensitization resulting from the neurological and psychological
trauma inflicted on a teenager's brain by a highly addictive
social media product.
Speaker 1 (12:34):
The social media companies, which include Meta, Discord, Snapchat, and Twitch,
say Section two thirty of the Communications Decency Act protects
them from liability for third party content but the trial
judge ruled that the lawsuits could go forward, and both
sides were in a New York appellate court this week
(12:55):
as the companies try to get the suits dismissed. The
victim's families argued that the algorithms used by the sites
to deliver content should be considered products under the state's
product liability law, but the companies argue that non tangible
things can't be considered products. Here are the attorneys for
the victims families and Meta.
Speaker 7 (13:16):
Any time a manufacturer places a dangerous product into the
stream of commerce that they reasonably know creates an unreasonable
risk of harm to the public, are liable under New
York State products liability law. It's plain and dirt simple.
Speaker 8 (13:35):
And there are two sort of foundational problems here that
get us outside of the realm of traditional product liability.
One is that communicating intangible information is not a product,
and the second is that services are not products. And
here we have both of those things. Product liability law
(13:57):
is geared to the tangible world.
Speaker 1 (14:00):
My guest is Eric Goleman, a professor at Santa Clara
University Law School and co director of the High Tech
Law Institute. Eric can you tell us about the allegations
of the plaintiffs in these cases.
Speaker 9 (14:11):
The case involves the mast shooting in a Buffalo supermarket
by a white supremacist, and the basic gist of the
claims is that the shooter was radicalized on Facebook, and
so in order to fit that into legal doctrines, there's
a variety of different claims that the victims and families
(14:32):
have made in order to explain what's wrong with that,
Why does that actually create legal rights for the victims do?
Some of those include a claim that Facebook was negligent,
that it should have done something different to protect the victims,
and some of it is based on what we sometimes
call products liability. That Facebook is a product that is
(14:56):
dangerous and as a result, any harm that's caused by
a danger this product can be attributable to the supplier
of that product.
Speaker 1 (15:04):
Are the plaintiffs bringing it under the product liability law
in order to get around section two thirty No.
Speaker 9 (15:11):
Section two thirty is a defense, whereas the planets have
to still figure out a claim that actually fits their facts. However,
they do want to pick claims that are not preempted
by section two thirty, which says, in short, that websites
aren't liable for third party content. So the idea is
that the planiffs are arguing that they're not suing to
hold Facebook liable for the third party content they're suing
(15:35):
based on Facebook's contribution to the radicalization of the shooter.
Speaker 1 (15:40):
When you think of product liability, you think of tangible objects.
You know, a mechanical device that injures you, something like that.
Has a New York court ever found a streaming service
or social media to be a product under the state's
product liability law.
Speaker 9 (15:58):
For decades, there have been legal theories that have held
that the supply of physical items that are at risk
of causing physical injury are liable for those physical injuries.
And one of the classic old cases involve exploding Coca
cola bottles, and if you didn't manufacture and fill the
Coca cola bottle properly, it could literally explode and create
(16:19):
shards of laughs that were projectiles. And so the idea
is that we want manufacturers to be more careful in
the manufacturer of an item like that because of the
physical risk of poses when that item is now in
consumers homes. There's a very bright line in those doctrines
between physical items they are capable of causing physical injury,
and intangible thinks or services which do not pose the
(16:43):
same risk of sending glass yards as projectiles because there's
literally nothing like that in their possession. So the laws
normally limit products liability theories to actual physical products, not
to services like Internet services like Facebook, So it's a
(17:04):
leap of the theory to try and expand it to
cover services. This theory wasn't designed for that purpose, it's
not optimized to do so. And unlike the regulation of
Coca Cola bottles exploding with glass chards, there's significant speech
implications if we try to regulate the dissemination information as
if it's an exploding coke bottle. So there have been
(17:25):
plaintiffs across the country that have been trying out the
theories that Internet services are subject to products liability doctrines
and courts have split on that issue. Most courts have
rejected it, some have entertained it, and so it's a
live frontier in internet law today.
Speaker 1 (17:44):
And had there been rulings bipellet.
Speaker 9 (17:46):
Courts on that, Yes and no. There's been a variety
of rulings in different fact circumstances, but there's a leading
case in this area that just came out in February
from the Fourth Circuit involved a very very similar case
evolving the shooter who allegedly was radicalized on Facebook, and
the plaintiffs argued products liability is part of the reasons
(18:06):
why Facebook should be liable, and in that case the
Federal peblic Court shut all that down and said that
Facebook qualified for Section two thirty. Everything that the planets
are arguing was trying to hold Facebook liable for the
third party content available on service, and therefore the planets lose.
So the plainlifs in this case aren't directly bound by
that ruling, but clearly there's a strong message from that
(18:28):
ruling that the plantiff's arguments should not be successful.
Speaker 1 (18:31):
Does that issue depend on the state's product liability law,
because those laws differ from state to state.
Speaker 9 (18:38):
It can we have to look at the terms of
the exact statute, what it says it covers. That might
very well restrict plaints claims, but not expand them. In
other words, there's some limit to the theory that as
far as it can go, at some point it has
to stop, either because of doctrines like Section two thirty,
which Congress enacted as the way to prevent that kind
(18:59):
of expansion, or because of the First Amendment that the
Constitution does not permit a physical based legal doctrine to
extend to the dissemination of speech.
Speaker 1 (19:09):
Eric tell us about the plaintiff's claims about the algorithms.
Speaker 9 (19:13):
So, in order for the shooter to get access to
the radicalizing content, somebody has to upload it, and then
Facebook has to make the match to present that to
the reader to the shooter in this case, and so
plainists have often claimed that it was the algorithm Facebook
created that led to this radicalization. Now, there are a
couple of problems with that theory. One is, it was
(19:34):
expressly rejected in the Fourth Circuit opinion that I mentioned earlier.
Federal Peller Court said that's not a way of getting
around Section two thirty the other piece, and the Appellate
Court mentioned this as well, that in order for Facebook
to do anything differently to prevent that recualization, it would
have to re architect its entire service. In other words,
there's not a way of it just changing the algorithm
(19:56):
to eliminate the risk of radicalization without changing any the
other element of its algorithms. In other words, there's no
easy fix here for Facebook. Facebook work the way it
was designed to work. It may matches between people and
content they might be interested in. Unfortunately, some people are
interested in content that is antisocial. Facebook's algorithm treats that
(20:17):
the same as all other content.
Speaker 1 (20:18):
If the court allows the case to go forward, well,
the plaintiffs have to prove that Facebook or the other
platforms led to the radicalization of the shooter. And how
difficult will that be?
Speaker 9 (20:31):
Definitely they'll have to show that what we call causation
when it comes to negligence. I believe that that will
also be relevant in the context of strict products liability,
and it will be difficult. And causation was also an
issue in the Federal Appellate Court. Rulin I mentioned from
the Fourth Circuit and the court independently said there was
not sufficient causation in that case. And when we think
(20:53):
about what causes someone to radicalize into a white seup
premisis and even words, will this is a white supremacist
to then decide to engage in mass murder, there's so
many things that contribute to that outcome, and it's very
difficult to pull out one piece and say that's the cause.
They should bear all the burden of responsibility. In fact,
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it really is a whole of society failure to have
people who end up in that circumstance, and we really
need to look at our society across the board to
figure out what went wrong and what we ought to
be doing differently, and to try and pin it on
anyone player in the ecosystem. To say Facebook was the
reason why this particular person pulled the trigger, I really
think kind of denies the reality of how we've all
(21:37):
contributed to a society that can lead to these outcomes and.
Speaker 1 (21:42):
Explain how section two thirty would work here as a defense.
Speaker 9 (21:46):
So the plan I'm started arguing that Facebook radicalized the shooter,
and Facebook itself normally doesn't publish content itself that it authored.
It's primary way of engaging in content distribution is to
gather third party content like the Facebook post that we
all make as the everyday activity and then share that
(22:07):
with an audience. And so the content that allegedly radicalized
the shooter didn't come from Facebook. Facebook most was the
mechanism by which some author matched with the shooter, and
so it's impossible really to describe Facebook's role in radicalizing
the shooter without talking about the content that regalized the shooter,
(22:30):
all of which came from a third party. And if
third party content can't create liability for Facebook, section two
threy will apply.
Speaker 1 (22:36):
Is the easiest path for the appellate court here to
send the case back to the trial court saying the
facts have to be developed more before we can make
a decision.
Speaker 9 (22:46):
So that's essentially what the lower court did. The lower
court basically said, I understand Facebook's defenses, and yet I
need to see more facts before I'm prepared to make
the conclusion that products liability applies, or even that's Section
two thirty applies. So one possibility is that the pel
court could say that district court was right. Let's let
the case continue to evolve in its ordinary manner, and
(23:09):
once we get more information, then we'll be able to
figure out what defense is to actually apply in the circumstance.
Most cases evolving section two thirty don't do that. Most
cases in section two thirty, and at the motion of
the Smiths, because it is obvious on the face there's
nothing that would be produced in discovery that would show
that Section two thirty didn't apply and here. I don't
(23:30):
think anyone's contesting that Facebook provided or authored the radicalizing content.
The allegation is that it match the shooter with third
party content. So everything that the court needs to know
about Section two thirty is, I think or are you
available to it? So punting on that question actually would
be a disservice to Facebook and I think to all
other social media that expect to be able to avoid
(23:53):
the liability for things that they're not legally responsible for.
Speaker 1 (23:56):
But it wouldn't be the first time we've seen a
court punt when it didn't need to. Thanks Eric. That's
Professor Eric Goldman of Santa Clara University Law School. A note.
Michael Bloomberg, the founder majority owner of Bloomberg LP, the
parent of Bloomberg Radio, is a donor to groups that
support gun control, including every Town for Gun Safety, which
(24:17):
represented the plaintiffs here in the lower courts. Coming up,
President Trump tests the appointments power. I'm June Grosso and
you're listening to Bloomberg. Hi, everyone, it's Judge Jeanine.
Speaker 4 (24:29):
I'm at the water cooler in the United States Attorney's
Office in Washington, d C.
Speaker 1 (24:33):
President Trump appointed Jeanine Piro, the former Fox News host
and prosecutor, to be the interim US Attorney for d C,
taking the place of Ed Martin, who was the interim
DC US attorney for close to one hundred and twenty days.
Having two successive interim appointments test the bounds of the
appointment's power. It also reflects a growing trend of president's
(24:57):
leaning on temporary appointments for top roles. In Trump's first administration,
he appointed three successive officials to temporarily fill the role
of Secretary of Homeland Security. That practice ultimately backfired in
court when federal judges found that two of those acting
secretaries were improperly serving and struck down immigration restrictions they'd issued.
(25:23):
Joining me is Anne Joseph O'Connell, a professor at Stanford
Law School who specializes in political appointments. Will you explain
the provisions that are at play when a US attorney
is given an interim appointment.
Speaker 10 (25:37):
So, when there's not a Senate confirmed US attorney in
a particular district, there are two statutes that can provide
for temporary service. So the first, what we call interim
US attorneys, is a specific provision in the United States
Code called section five forty six, and that provision allows
(25:57):
for the Attorney General to chew a temporary interim US
attorney for the district in which there is not a
Senate confirmed person. There are no restrictions on who the
Attorney General can pick, so they don't have to pick
someone who's within the Department of Justice, unlike this other
statutory provision. And so the Attorney General can pick an
(26:18):
interim US attorney and that person can serve for one
hundred and twenty days under section five forty six, and
then after that one hundred and twenty days expires, the
district Court may right may appoint a US attorney to
serve until there is a Senate confirmed one.
Speaker 1 (26:38):
So what happened here is the term for ed Martin
was about to run out, and before the district Court
could appoint someone, President Trump nominated as another interim US attorney.
Jeanine Piro, I mean, is that according to the.
Speaker 10 (26:53):
Rules, Well, it depends whether you're looking at the text
of the rule or the intent of the provision. Under
the text, I think it's permitted. The provision Section five
forty six does not explicitly bar successive one hundred and
twenty day appointments. And I should also note that even
if the district courts had chosen someone, the President in
(27:16):
all likelihood could have fired the district court pick and
picked another interim US attorney or turned this other statute
the Federal Vacancy's Reform ac So I think the text
permits successive appointments. There's no explicit bar on it, and
in the past we have seen successive appointments. Now that's
(27:37):
the text. When Congress reimposed time limits, so put back
the one hundred and twenty day constraint on how long
interim US attorneys can serve. They did that in two
thousand and seven after a US attorney scandal involving Attorney
General al Larto Gonzalez, who had fired a number of
(27:58):
US attorneys. And the scandal was not whether the president
or the Attorney General could fire US attorneys. It was
about the reason that was given for those firings. But
at the time that it happened, there was no limit
on how long interim US attorneys could serve, and there
was a period of years where there was kind of
no time limit. But then in two thousand and seven
(28:19):
Congress put back this time limit and I think the
putting back of the time limit suggests strongly that the
intent of Congress was not to have endless interim appointments
of US attorneys.
Speaker 1 (28:32):
Was that the intent of the framers as well, In
other words, they wanted the Senate to advise and consent.
So we have.
Speaker 10 (28:40):
Had Senate confirmed appointments since the start of the United
States Constitution under the Appointments Clause, and interestingly, we've had
statutes that provide for temporary appointments from about the same time.
The very first Vacancies Act, which applied generally, was in
seventeen ninety two, and there was another one in seventeen
(29:01):
ninety five. There it gets a little tricky about kind
of what were the time limits, because in the seventeen
ninety five Act, Congress imposed the six month time limit
on acting officials.
Speaker 1 (29:13):
Hear a lot of actings. Have US presidents been using
interim positions more and more so I.
Speaker 10 (29:21):
Have done some research on recent administrations and looking at
the very highest level of positions, so the heads of agencies,
cabinet secretaries in particular, and definitely recent administrations, and that
would include President Obama, President Trump's first term, and President Biden.
(29:42):
Have heavily relied on acting officials, much more I would say,
than their predecessors in terms of modern government.
Speaker 1 (29:52):
What's the reason for this? I know that President Trump
in the past has said, you know, he likes the
idea of it. Is it because it's difficult to get
p people through the Senate? I mean, what's the reason
then they're using it more.
Speaker 10 (30:04):
I think there are several reasons. The first is it
takes time to nominate people. Though I will say that
President Trump in his second term has a much faster
nominations pace than he had in his first term. I
mean six or sevenfold more nominations at one hundred daymark
in his second term than in his first term. But
(30:26):
nominations still takes time to find the people and to
formally nominate them. There's a vetting that occurs, and I
think for President Trump that betting has really focused on loyalty,
whereas in other administrations might be focusing on ethical considerations,
expertise and the like. And then there's the confirmation process.
(30:47):
And so even as we have now and even as
we did for President Biden, have a Senate controlled by
the same party as the White House, it still takes
time because individual senators. Even though there's no longer a
sixty vote threshold to move a nomination to a confirmation
vote that went away in November twenty thirteen, individual senators
(31:09):
can still delay the confirmation's process, right, And we saw
this with Senator Tuberbil in the Biden administration. We've seen
this in other cases as well. Right, Democrats do it
to Republicans, Republicans do it to Democrats, and that can
slow it down. And so I think both the nominations
and confirmation process make acting officials attractive. But I would
(31:30):
also say that what I think is a large reason
is that acting officials don't require Senate confirmation, and so
you can pick people to serve in the temporary capacity
that the Senate might not confirm. So in President Trump's
first term, the Republicans, as reported by the media, did
not want to confirm Ken Kucinelli to a senior post
(31:53):
in the Department of Homeland Security, but through acting appointments
and delegations of authority, mister kuch Janelli was able to
serve in very high profile roles in DHS. And I
think a similar story for Ed Martin that Republicans booked
and he was able through the interim provision to serve,
whereas you know, if he had just been put up
(32:15):
as a nominee, not as an interim, he might not
have gotten true.
Speaker 1 (32:18):
Has President Trump pushed the limits of the Vacancy's Act
further than other presidents.
Speaker 10 (32:25):
I think the Vacancy's Act is pretty capacious. It allows
the government to function. I think the Vacancies Act should
be reformed in certain ways because I think it allows
more than perhaps what we want for an accountable government.
But I think in this term, President Trump is really
pushing an argument that no previous president has pushed, which
(32:47):
is that he believes that if the Vacancy's Act does
not apply, he has inherent article to authority to name
acting officials. And this has come up in the Inner
America Foundation and the African Development Foundation. These are entities
not covered by the Vacancies Act, where President Trump has
named acting officials to Senate confirmed Board positions relying on
(33:12):
claimed inherent article to authority. It seems with the firing
of the Librarian of Congress that if the Library of
Congress is not subject to the Vacancies Act, and I
don't think it is, President Trump, the White House is
indicated that there is Article two authority to name an
acting librarian, and I think this is an outrageous claim.
We have an appointments clause, we have a recess appointments clause.
(33:34):
It is true that the Vacancies Act and specific agency
provisions like section five forty six for interim US attorneys
do allow vast use of temporary appointments, but outside of those,
presidents need to rely on the appointments clause or the
recess appointment.
Speaker 1 (33:50):
Some legal experts have suggested that defendants who are prosecuted
by a successive interim US attorney like Pero could challenge
their prosecutions based on claims that she's serving in the
role improperly.
Speaker 10 (34:07):
I think they would definitely have standing to sue, and
I think their argument would be that under five forty six,
successive one hundred twenty day appointments are not allowed. And
I think that is a plausible argument. I just don't
think it's a winning argument. I think that courts will
look at the text. Right as Justice Kagan says, we're
(34:28):
all textless now, that the courts will look at the
text and see that successive one hundred and twenty day
appointments are not barred. It's happened in the past and permitted. Now,
that doesn't mean it shouldn't change. I mean, Congress could
amend five forty six to make it clear that you
get one one hundred twenty day appointment, then the district
(34:49):
court gets to choose. And then I should note that
there is an alternative to these successive one hundred twenty
day appointments. While a nomination might be pending to a
US attorney's lot, is that I believe that the Federal
Vacancy's Reform Act is available for temporary appointments to these positions. Now,
the constraint why I think the Trump administration doesn't want
(35:12):
to turn to the Vacancies Act is that under the
Vacancy's Act, you can't just choose anyone. You can't choose
an outsider like the current person. You can't choose an
outsider to come in as an acting US attorney. You
either need to choose someone who is the first assistant
to the US Attorney right, which is typically a career person.
(35:33):
You need to choose someone who has Senate confirmed already
to another position, so it has already kind of gone
through the Senate process. Or you have to choose someone
who was in the agency for at least ninety days
in the year before the vacancy.
Speaker 1 (35:47):
So finally, you think there needs to be reform here.
Speaker 10 (35:51):
I think the laws governing temporary appointments are pretty broad
and likely too broad. On the other hand, we want
the government to function. We don't want the government to
come to a standstill. And so finding the balance between
getting Senate confirmed appointments through a dysfunctional appointments process and
(36:15):
having the government function is tricky. And sometimes we're on
the right side of the balance and sometimes we're on
the wrong side of the balance. And so I think
that Congress really has a role to play in constraining
the use of acting an interim appointment.
Speaker 1 (36:33):
Well, a study on vacancies showed that President George W.
Bush didn't nominate anyone in thirteen percent of vacant Senate
confirmed roles in federal agencies. President Barack Obama didn't nominate
anyone in fifteen percent of those roles, and President Trump
in his first administration didn't nominate anyone in twenty six
(36:55):
percent of those roles. So it's a growing trend. Thanks
so much, Ann, that's professor and Joseph O'Connell of Stanford 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,
(37:18):
And remember to tune 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 Grossel from Bloomberg Radio.
The Supreme Court deadlocked four to four on Thursday in
a major case over the separation of religion and government,
thwarting an effort to create the nation's first publicly funded
religious charter school in Oklahoma. The tie was possible because
(00:25):
Justice Amy Coney Barrett recused herself from the case. The
Supreme Court's one sentence order didn't reveal which justices were
on which side of the divide, but during the oral
arguments it seemed apparent that four conservative justices were likely
to side with the Catholic charter school, and the three
liberal justices were likely to side with Oklahoma. Here are
(00:49):
Justices Brett, Kavanaugh, and Sonya.
Speaker 2 (00:51):
So to Mayor, and then you come in and you say, oh,
worral religious school. It's like, Oh, No, can't do that.
That's too much, that's scary. We're not going to do that.
And our cases have made very clear, and I think
those are some of the most important cases we've had
of saying you can't treat religious people and religious institutions
(01:13):
and religious speech as second class in the United States.
Speaker 3 (01:18):
Because the essence of the establishment clause was, we're not
going to pay religious leaders to teach their religion. That
is and has always been the essence. And here we're
paying Catholic leaders Catholic teachers. You can only be a
(01:39):
teacher in this school if you're willing to accept the
teachings of the Catholic Church.
Speaker 1 (01:45):
That left Chief Justice John Roberts as the pivotal vote,
and the Chief distinguished the Oklahoma case from past Supreme
Court decisions backing the use of public money for religious schools,
saying there appeared to be more state involvement in this case.
Speaker 4 (02:02):
Trinity luther and Espinoza Carson, those involved fairly discrete state involvement.
In Trinity Lutheran, they're going to pave the or you know,
put woodchips on the on the playground. In Espinosa it
was a tuition credit, and Carson again tax credits. I mean,
this does strike me as a much more comprehensive involvement.
Speaker 1 (02:30):
The split leaves in place the Oklahoma Supreme Court decision
blocking the religious charter school and leaves open the question
of whether states with taxpayer funded charter school programs are
constitutionally required to incorporate religious institutions My guest is religious
liberty expert Stephanie Barkley, a professor at Georgetown Law. How
(02:54):
important is this case? What would the consequences have been
if the Court had allowed the nation's first faith based
charter school.
Speaker 5 (03:03):
So there's really two questions there. The one question is
if the court had ruled in favor of the faith
based charter school, how important of a decision would it
have been? And that would have been a landmark case.
It would have been the first time that we had
a face based charter school and would have had some
significant implications, probably not just for faith based schools and
charter school but potentially in other states as well. Now
(03:25):
there's the second question, which is, Okay, well, how significant
is the court's decision given that it's just, you know,
a very brief order without an opinion for for split,
affirming the lower court decision. And at that point the
answer is as a matter of precedent, that precedent is
not particularly important. It's not going to tell us, you know,
much about anything besides the fact that they're affirming this case.
(03:47):
There weren't five votes to reverse the Supreme Court in Oklahoma,
and in that way, it's going to be of limited
presidential effect.
Speaker 1 (03:54):
Does this case reflect tension between the First Amendments two
religion clauses, the establishment clause and the free exercise Clause.
Speaker 5 (04:03):
I don't think there is a tension between the two
religion clauses, and the Supreme Court emphasized that in its
recent case in Kennedy versus Birmerton School District. But largely
those clauses work together in a mutually reinforcing way. But
this case does highlight the way in which you could
get a different outcome under either of those clauses, depending
on whether we're dealing with a private school or a
(04:25):
government school. Because if it's a government school, then it
is pretty clear that government doesn't get to run religious
programs where it's preferring one type of denomination over another,
or setting out religious liturgy and things like that would
be prohibited under the approach to the Establishment Clause. The
Court has been taking post Kennedy, where it looks at
the six historical hallmarks of an established religion. Now, if
(04:47):
it's a private school, then the free exercise clause is
the relevant focus. Then the question is can the government
exclude the private school And the trajectory of cases that
it has had in Trinity Lutheran, Espinoza and Carson makes
pretty clear that the Court takes the free exercise clause
prohibits government from excluding religious schools just on that basis.
So it is a case that highlights for an outcomes
(05:08):
depending on the government versus private nature of the entity.
Speaker 1 (05:12):
We don't know how the justices voted. The arguments suggested
perhaps that the Chief Justice was the pivotal vote who
might have gone with the three liberals.
Speaker 5 (05:24):
I think that that's probably the most likely outcome that
you had. The Chief Justice Snawyer, Kagan, and Jackson do
not feel comfortable overruling the Oklahoma Supreme Court. And then
you had the other four justices, Justice Thomas, Alito, Gorsich,
and Kavanaugh. It probably would have ruled to overrule the
Oklahoma Supreme Court. And then of course Justice Spirit is recusing.
(05:47):
And of course because they only got to four to four,
that means it's an automatic affirmat of the previous judgment.
Speaker 1 (05:53):
Were you surprised that there weren't five votes for the
religious charter school.
Speaker 5 (05:59):
I think it's fortunate that there weren't five votes. I
think it's possible that the Chief was concerned about lack
of percolation. This is the first case of its time.
There aren't other cases that have grappled with this yet,
so hard to read. The tea leaves about exactly what
was the worry for him, But I think it's promising
that this court doesn't have an opinion from the chief,
sort of taking it out in a way that suggests
(06:21):
that this would be a permanent position, but leaving the
door open to future challengers and future cases.
Speaker 1 (06:26):
So, then, do you think that states that fund charter
schools should be required to fund religious charter schools.
Speaker 5 (06:36):
I think that if a state is operating such that
they're using the label of like a government school, that
they're really treating it like a voucher, then I think
probably the functional analysis matters more than the labels do.
But if the government is really operating charter schools like
other government schools, then I think government should be entitled
to make choices about running secular government schools. But really
(06:59):
just thelevels in the details of how is that particular
government operating at school system, how much oversight is there,
is it being even handed in the way it's approaching
that overside with the different types of charter schools and
public schools. Those are all going to be questions that
will be certainly relevant to the Court should a case
like this rise again.
Speaker 1 (07:16):
The four to four TI was a product of Justice
amy Cony Barrett recusing herself. So since it's not a
nationwide precedent, is it likely that proponents of religious charter
schools will simply try again in a case where Justice
Barrett can sit on the case.
Speaker 5 (07:36):
So I think that that is certainly not for close
by the Court's opinion in this case, and a possibility
at some point in the future. I think the most
likely next case that you will see in the school
choice movement is Saint Dominic Academy versus Macon, which would
be coming out of Maine. It's possible other cases could too,
but this is one that is already in the court system,
(07:57):
and it is essentially Carson two point zero, So name
the same government that the Supreme Court ruled against in
Carves and revised their laws when the case was sent
back down to try and find other creative ways to
keep faith based schools out of what is not a
charter school system, but it has always included private schools
and operates more like a traditional tuition boucher program, and
(08:18):
there are faith based schools that are challenging that right now,
and that's making its way through the court system. So
I think we're the court to take another school choice
sort of case. I think that's a more likely next step.
There are no cases right now percolating that I'm aware
of where there's another faith based charter school that has
been approved or requested to be created and been denied
and that they're doing over that right now.
Speaker 1 (08:39):
Has the Supreme Court in recent years expanded religious liberty
rights over other rights?
Speaker 5 (08:45):
I don't think that I would say they've expanded religious
liberty rights over other rights, but they have certainly given
a lot of attention to and been solicitous towards religious
claim although there are certainly religious claimants that have been
before the courts that didn't win their case, and this
is another So I think I think this is a
court that takes balanced and cautious approaches while still being
sympathetic towards religious liberty claims and wanting to ensure that
(09:07):
it's providing for best protection under our First Amendments.
Speaker 1 (09:10):
We're waiting for two more decisions from the Court in
religion cases. Tell us about those.
Speaker 5 (09:17):
One is a case called My Food and that is
another case in the educational context coming out of Maryland.
And this is a case where this school district has
instituted a policy where books are being read to children
down to elementary school and preschool that deal with issues
related to sexuality gender identity. And there are parents who
(09:40):
aren't objecting to those books being read broadly, but would
like to be able to opt their children out in
the school in that case has said that they are
not allowed to opt their children out. Their only option
is to drop out of school altogether if they don't
like that policy. So the Supreme Court has hurt oral
argument in that case, and it seems likely from oral
arguments that they will rule in favor of the religious
(10:02):
parents who Muslim parents, Jewish parents, and Christian parents in
a coalition in that case. Another case is the Catholic
Charity Is case that the Court heard before that that
is a case where there is a question of whether
a Catholic constitution can qualify for tax benefit in the state.
The decision from the state Supreme Court had said that
if the Catholic groups were engaging in more typical religious behavior,
(10:26):
and we're organized in a more typical way, and we're
doing things like proselytizing to other individuals as part of
their ministry, then they would qualify for the tax benefits.
But because this Catholic charity does not proselytize and that's
not part of their mission. They would serve people of
their religious groups or not all alike, and they don't
try and convert people to their theology, because the Catholic
(10:48):
ministry doesn't do that. On that basis, they don't qualify
for the tax benefit. And that was another case where
the court seems quite skeptical of the government action. Justice
Kagan in that case even asked like, isn't it pretty
clear the government doesn't get to tell people what ordinary
religious practices and which practices are approved and which or not. So,
I mean, it's even impossible in that case the government
(11:09):
might be facing unanimous defeat. Certainly something is likely that
they could get eight one or seven two votes in
that case.
Speaker 1 (11:16):
And we'll find out the results of both those cases
before July. Thanks so much for joining me, Stephanie. That's
Professor Stephanie Barkley of Georgetown Law coming up next on
The Bloomberg Law Show. Families of the Buffalo mass shooting
victims want to hold social media platforms libel, and they're
asking a New York appellate court to allow their suit
(11:38):
to go forward. I'm June Grosso and you're listening to Bloomberg.
It's been three years since a white supremacist opened fire
inside a grocery store in Buffalo and killed ten people.
The eighteen year old shooter pleaded guilty to all state
charges and was sentenced to eleven concurrent life sentences. Survive
(12:00):
and families of the victims have been trying to hold
social media companies responsible for publishing racist content that allegedly
motivated the shooter to commit the hate crimes targeting people
in a historically black neighborhood hundreds of miles from his home.
Speaker 6 (12:17):
Our case is fundamentally about the isolation, obsession, lack of
impulse control, and desensitization resulting from the neurological and psychological
trauma inflicted on a teenager's brain by a highly addictive
social media product.
Speaker 1 (12:34):
The social media companies, which include Meta, Discord, Snapchat, and Twitch,
say Section two thirty of the Communications Decency Act protects
them from liability for third party content but the trial
judge ruled that the lawsuits could go forward, and both
sides were in a New York appellate court this week
(12:55):
as the companies try to get the suits dismissed. The
victim's families argued that the algorithms used by the sites
to deliver content should be considered products under the state's
product liability law, but the companies argue that non tangible
things can't be considered products. Here are the attorneys for
the victims families and Meta.
Speaker 7 (13:16):
Any time a manufacturer places a dangerous product into the
stream of commerce that they reasonably know creates an unreasonable
risk of harm to the public, are liable under New
York State products liability law. It's plain and dirt simple.
Speaker 8 (13:35):
And there are two sort of foundational problems here that
get us outside of the realm of traditional product liability.
One is that communicating intangible information is not a product,
and the second is that services are not products. And
here we have both of those things. Product liability law
(13:57):
is geared to the tangible world.
Speaker 1 (14:00):
My guest is Eric Goleman, a professor at Santa Clara
University Law School and co director of the High Tech
Law Institute. Eric can you tell us about the allegations
of the plaintiffs in these cases.
Speaker 9 (14:11):
The case involves the mast shooting in a Buffalo supermarket
by a white supremacist, and the basic gist of the
claims is that the shooter was radicalized on Facebook, and
so in order to fit that into legal doctrines, there's
a variety of different claims that the victims and families
(14:32):
have made in order to explain what's wrong with that,
Why does that actually create legal rights for the victims do?
Some of those include a claim that Facebook was negligent,
that it should have done something different to protect the victims,
and some of it is based on what we sometimes
call products liability. That Facebook is a product that is
(14:56):
dangerous and as a result, any harm that's caused by
a danger this product can be attributable to the supplier
of that product.
Speaker 1 (15:04):
Are the plaintiffs bringing it under the product liability law
in order to get around section two thirty No.
Speaker 9 (15:11):
Section two thirty is a defense, whereas the planets have
to still figure out a claim that actually fits their facts. However,
they do want to pick claims that are not preempted
by section two thirty, which says, in short, that websites
aren't liable for third party content. So the idea is
that the planiffs are arguing that they're not suing to
hold Facebook liable for the third party content they're suing
(15:35):
based on Facebook's contribution to the radicalization of the shooter.
Speaker 1 (15:40):
When you think of product liability, you think of tangible objects.
You know, a mechanical device that injures you, something like that.
Has a New York court ever found a streaming service
or social media to be a product under the state's
product liability law.
Speaker 9 (15:58):
For decades, there have been legal theories that have held
that the supply of physical items that are at risk
of causing physical injury are liable for those physical injuries.
And one of the classic old cases involve exploding Coca
cola bottles, and if you didn't manufacture and fill the
Coca cola bottle properly, it could literally explode and create
(16:19):
shards of laughs that were projectiles. And so the idea
is that we want manufacturers to be more careful in
the manufacturer of an item like that because of the
physical risk of poses when that item is now in
consumers homes. There's a very bright line in those doctrines
between physical items they are capable of causing physical injury,
and intangible thinks or services which do not pose the
(16:43):
same risk of sending glass yards as projectiles because there's
literally nothing like that in their possession. So the laws
normally limit products liability theories to actual physical products, not
to services like Internet services like Facebook, So it's a
(17:04):
leap of the theory to try and expand it to
cover services. This theory wasn't designed for that purpose, it's
not optimized to do so. And unlike the regulation of
Coca Cola bottles exploding with glass chards, there's significant speech
implications if we try to regulate the dissemination information as
if it's an exploding coke bottle. So there have been
(17:25):
plaintiffs across the country that have been trying out the
theories that Internet services are subject to products liability doctrines
and courts have split on that issue. Most courts have
rejected it, some have entertained it, and so it's a
live frontier in internet law today.
Speaker 1 (17:44):
And had there been rulings bipellet.
Speaker 9 (17:46):
Courts on that, Yes and no. There's been a variety
of rulings in different fact circumstances, but there's a leading
case in this area that just came out in February
from the Fourth Circuit involved a very very similar case
evolving the shooter who allegedly was radicalized on Facebook, and
the plaintiffs argued products liability is part of the reasons
(18:06):
why Facebook should be liable, and in that case the
Federal peblic Court shut all that down and said that
Facebook qualified for Section two thirty. Everything that the planets
are arguing was trying to hold Facebook liable for the
third party content available on service, and therefore the planets lose.
So the plainlifs in this case aren't directly bound by
that ruling, but clearly there's a strong message from that
(18:28):
ruling that the plantiff's arguments should not be successful.
Speaker 1 (18:31):
Does that issue depend on the state's product liability law,
because those laws differ from state to state.
Speaker 9 (18:38):
It can we have to look at the terms of
the exact statute, what it says it covers. That might
very well restrict plaints claims, but not expand them. In
other words, there's some limit to the theory that as
far as it can go, at some point it has
to stop, either because of doctrines like Section two thirty,
which Congress enacted as the way to prevent that kind
(18:59):
of expansion, or because of the First Amendment that the
Constitution does not permit a physical based legal doctrine to
extend to the dissemination of speech.
Speaker 1 (19:09):
Eric tell us about the plaintiff's claims about the algorithms.
Speaker 9 (19:13):
So, in order for the shooter to get access to
the radicalizing content, somebody has to upload it, and then
Facebook has to make the match to present that to
the reader to the shooter in this case, and so
plainists have often claimed that it was the algorithm Facebook
created that led to this radicalization. Now, there are a
couple of problems with that theory. One is, it was
(19:34):
expressly rejected in the Fourth Circuit opinion that I mentioned earlier.
Federal Peller Court said that's not a way of getting
around Section two thirty the other piece, and the Appellate
Court mentioned this as well, that in order for Facebook
to do anything differently to prevent that recualization, it would
have to re architect its entire service. In other words,
there's not a way of it just changing the algorithm
(19:56):
to eliminate the risk of radicalization without changing any the
other element of its algorithms. In other words, there's no
easy fix here for Facebook. Facebook work the way it
was designed to work. It may matches between people and
content they might be interested in. Unfortunately, some people are
interested in content that is antisocial. Facebook's algorithm treats that
(20:17):
the same as all other content.
Speaker 1 (20:18):
If the court allows the case to go forward, well,
the plaintiffs have to prove that Facebook or the other
platforms led to the radicalization of the shooter. And how
difficult will that be?
Speaker 9 (20:31):
Definitely they'll have to show that what we call causation
when it comes to negligence. I believe that that will
also be relevant in the context of strict products liability,
and it will be difficult. And causation was also an
issue in the Federal Appellate Court. Rulin I mentioned from
the Fourth Circuit and the court independently said there was
not sufficient causation in that case. And when we think
(20:53):
about what causes someone to radicalize into a white seup
premisis and even words, will this is a white supremacist
to then decide to engage in mass murder, there's so
many things that contribute to that outcome, and it's very
difficult to pull out one piece and say that's the cause.
They should bear all the burden of responsibility. In fact,
(21:15):
it really is a whole of society failure to have
people who end up in that circumstance, and we really
need to look at our society across the board to
figure out what went wrong and what we ought to
be doing differently, and to try and pin it on
anyone player in the ecosystem. To say Facebook was the
reason why this particular person pulled the trigger, I really
think kind of denies the reality of how we've all
(21:37):
contributed to a society that can lead to these outcomes and.
Speaker 1 (21:42):
Explain how section two thirty would work here as a defense.
Speaker 9 (21:46):
So the plan I'm started arguing that Facebook radicalized the shooter,
and Facebook itself normally doesn't publish content itself that it authored.
It's primary way of engaging in content distribution is to
gather third party content like the Facebook post that we
all make as the everyday activity and then share that
(22:07):
with an audience. And so the content that allegedly radicalized
the shooter didn't come from Facebook. Facebook most was the
mechanism by which some author matched with the shooter, and
so it's impossible really to describe Facebook's role in radicalizing
the shooter without talking about the content that regalized the shooter,
(22:30):
all of which came from a third party. And if
third party content can't create liability for Facebook, section two
threy will apply.
Speaker 1 (22:36):
Is the easiest path for the appellate court here to
send the case back to the trial court saying the
facts have to be developed more before we can make
a decision.
Speaker 9 (22:46):
So that's essentially what the lower court did. The lower
court basically said, I understand Facebook's defenses, and yet I
need to see more facts before I'm prepared to make
the conclusion that products liability applies, or even that's Section
two thirty applies. So one possibility is that the pel
court could say that district court was right. Let's let
the case continue to evolve in its ordinary manner, and
(23:09):
once we get more information, then we'll be able to
figure out what defense is to actually apply in the circumstance.
Most cases evolving section two thirty don't do that. Most
cases in section two thirty, and at the motion of
the Smiths, because it is obvious on the face there's
nothing that would be produced in discovery that would show
that Section two thirty didn't apply and here. I don't
(23:30):
think anyone's contesting that Facebook provided or authored the radicalizing content.
The allegation is that it match the shooter with third
party content. So everything that the court needs to know
about Section two thirty is, I think or are you
available to it? So punting on that question actually would
be a disservice to Facebook and I think to all
other social media that expect to be able to avoid
(23:53):
the liability for things that they're not legally responsible for.
Speaker 1 (23:56):
But it wouldn't be the first time we've seen a
court punt when it didn't need to. Thanks Eric. That's
Professor Eric Goldman of Santa Clara University Law School. A note.
Michael Bloomberg, the founder majority owner of Bloomberg LP, the
parent of Bloomberg Radio, is a donor to groups that
support gun control, including every Town for Gun Safety, which
(24:17):
represented the plaintiffs here in the lower courts. Coming up,
President Trump tests the appointments power. I'm June Grosso and
you're listening to Bloomberg. Hi, everyone, it's Judge Jeanine.
Speaker 4 (24:29):
I'm at the water cooler in the United States Attorney's
Office in Washington, d C.
Speaker 1 (24:33):
President Trump appointed Jeanine Piro, the former Fox News host
and prosecutor, to be the interim US Attorney for d C,
taking the place of Ed Martin, who was the interim
DC US attorney for close to one hundred and twenty days.
Having two successive interim appointments test the bounds of the
appointment's power. It also reflects a growing trend of president's
(24:57):
leaning on temporary appointments for top roles. In Trump's first administration,
he appointed three successive officials to temporarily fill the role
of Secretary of Homeland Security. That practice ultimately backfired in
court when federal judges found that two of those acting
secretaries were improperly serving and struck down immigration restrictions they'd issued.
(25:23):
Joining me is Anne Joseph O'Connell, a professor at Stanford
Law School who specializes in political appointments. Will you explain
the provisions that are at play when a US attorney
is given an interim appointment.
Speaker 10 (25:37):
So, when there's not a Senate confirmed US attorney in
a particular district, there are two statutes that can provide
for temporary service. So the first, what we call interim
US attorneys, is a specific provision in the United States
Code called section five forty six, and that provision allows
(25:57):
for the Attorney General to chew a temporary interim US
attorney for the district in which there is not a
Senate confirmed person. There are no restrictions on who the
Attorney General can pick, so they don't have to pick
someone who's within the Department of Justice, unlike this other
statutory provision. And so the Attorney General can pick an
(26:18):
interim US attorney and that person can serve for one
hundred and twenty days under section five forty six, and
then after that one hundred and twenty days expires, the
district Court may right may appoint a US attorney to
serve until there is a Senate confirmed one.
Speaker 1 (26:38):
So what happened here is the term for ed Martin
was about to run out, and before the district Court
could appoint someone, President Trump nominated as another interim US attorney.
Jeanine Piro, I mean, is that according to the.
Speaker 10 (26:53):
Rules, Well, it depends whether you're looking at the text
of the rule or the intent of the provision. Under
the text, I think it's permitted. The provision Section five
forty six does not explicitly bar successive one hundred and
twenty day appointments. And I should also note that even
if the district courts had chosen someone, the President in
(27:16):
all likelihood could have fired the district court pick and
picked another interim US attorney or turned this other statute
the Federal Vacancy's Reform ac So I think the text
permits successive appointments. There's no explicit bar on it, and
in the past we have seen successive appointments. Now that's
(27:37):
the text. When Congress reimposed time limits, so put back
the one hundred and twenty day constraint on how long
interim US attorneys can serve. They did that in two
thousand and seven after a US attorney scandal involving Attorney
General al Larto Gonzalez, who had fired a number of
(27:58):
US attorneys. And the scandal was not whether the president
or the Attorney General could fire US attorneys. It was
about the reason that was given for those firings. But
at the time that it happened, there was no limit
on how long interim US attorneys could serve, and there
was a period of years where there was kind of
no time limit. But then in two thousand and seven
(28:19):
Congress put back this time limit and I think the
putting back of the time limit suggests strongly that the
intent of Congress was not to have endless interim appointments
of US attorneys.
Speaker 1 (28:32):
Was that the intent of the framers as well, In
other words, they wanted the Senate to advise and consent.
So we have.
Speaker 10 (28:40):
Had Senate confirmed appointments since the start of the United
States Constitution under the Appointments Clause, and interestingly, we've had
statutes that provide for temporary appointments from about the same time.
The very first Vacancies Act, which applied generally, was in
seventeen ninety two, and there was another one in seventeen
(29:01):
ninety five. There it gets a little tricky about kind
of what were the time limits, because in the seventeen
ninety five Act, Congress imposed the six month time limit
on acting officials.
Speaker 1 (29:13):
Hear a lot of actings. Have US presidents been using
interim positions more and more so I.
Speaker 10 (29:21):
Have done some research on recent administrations and looking at
the very highest level of positions, so the heads of agencies,
cabinet secretaries in particular, and definitely recent administrations, and that
would include President Obama, President Trump's first term, and President Biden.
(29:42):
Have heavily relied on acting officials, much more I would say,
than their predecessors in terms of modern government.
Speaker 1 (29:52):
What's the reason for this? I know that President Trump
in the past has said, you know, he likes the
idea of it. Is it because it's difficult to get
p people through the Senate? I mean, what's the reason
then they're using it more.
Speaker 10 (30:04):
I think there are several reasons. The first is it
takes time to nominate people. Though I will say that
President Trump in his second term has a much faster
nominations pace than he had in his first term. I
mean six or sevenfold more nominations at one hundred daymark
in his second term than in his first term. But
(30:26):
nominations still takes time to find the people and to
formally nominate them. There's a vetting that occurs, and I
think for President Trump that betting has really focused on loyalty,
whereas in other administrations might be focusing on ethical considerations,
expertise and the like. And then there's the confirmation process.
(30:47):
And so even as we have now and even as
we did for President Biden, have a Senate controlled by
the same party as the White House, it still takes
time because individual senators. Even though there's no longer a
sixty vote threshold to move a nomination to a confirmation
vote that went away in November twenty thirteen, individual senators
(31:09):
can still delay the confirmation's process, right, And we saw
this with Senator Tuberbil in the Biden administration. We've seen
this in other cases as well. Right, Democrats do it
to Republicans, Republicans do it to Democrats, and that can
slow it down. And so I think both the nominations
and confirmation process make acting officials attractive. But I would
(31:30):
also say that what I think is a large reason
is that acting officials don't require Senate confirmation, and so
you can pick people to serve in the temporary capacity
that the Senate might not confirm. So in President Trump's
first term, the Republicans, as reported by the media, did
not want to confirm Ken Kucinelli to a senior post
(31:53):
in the Department of Homeland Security, but through acting appointments
and delegations of authority, mister kuch Janelli was able to
serve in very high profile roles in DHS. And I
think a similar story for Ed Martin that Republicans booked
and he was able through the interim provision to serve,
whereas you know, if he had just been put up
(32:15):
as a nominee, not as an interim, he might not
have gotten true.
Speaker 1 (32:18):
Has President Trump pushed the limits of the Vacancy's Act
further than other presidents.
Speaker 10 (32:25):
I think the Vacancy's Act is pretty capacious. It allows
the government to function. I think the Vacancies Act should
be reformed in certain ways because I think it allows
more than perhaps what we want for an accountable government.
But I think in this term, President Trump is really
pushing an argument that no previous president has pushed, which
(32:47):
is that he believes that if the Vacancy's Act does
not apply, he has inherent article to authority to name
acting officials. And this has come up in the Inner
America Foundation and the African Development Foundation. These are entities
not covered by the Vacancies Act, where President Trump has
named acting officials to Senate confirmed Board positions relying on
(33:12):
claimed inherent article to authority. It seems with the firing
of the Librarian of Congress that if the Library of
Congress is not subject to the Vacancies Act, and I
don't think it is, President Trump, the White House is
indicated that there is Article two authority to name an
acting librarian, and I think this is an outrageous claim.
We have an appointments clause, we have a recess appointments clause.
(33:34):
It is true that the Vacancies Act and specific agency
provisions like section five forty six for interim US attorneys
do allow vast use of temporary appointments, but outside of those,
presidents need to rely on the appointments clause or the
recess appointment.
Speaker 1 (33:50):
Some legal experts have suggested that defendants who are prosecuted
by a successive interim US attorney like Pero could challenge
their prosecutions based on claims that she's serving in the
role improperly.
Speaker 10 (34:07):
I think they would definitely have standing to sue, and
I think their argument would be that under five forty six,
successive one hundred twenty day appointments are not allowed. And
I think that is a plausible argument. I just don't
think it's a winning argument. I think that courts will
look at the text. Right as Justice Kagan says, we're
(34:28):
all textless now, that the courts will look at the
text and see that successive one hundred and twenty day
appointments are not barred. It's happened in the past and permitted. Now,
that doesn't mean it shouldn't change. I mean, Congress could
amend five forty six to make it clear that you
get one one hundred twenty day appointment, then the district
(34:49):
court gets to choose. And then I should note that
there is an alternative to these successive one hundred twenty
day appointments. While a nomination might be pending to a
US attorney's lot, is that I believe that the Federal
Vacancy's Reform Act is available for temporary appointments to these positions. Now,
the constraint why I think the Trump administration doesn't want
(35:12):
to turn to the Vacancies Act is that under the
Vacancy's Act, you can't just choose anyone. You can't choose
an outsider like the current person. You can't choose an
outsider to come in as an acting US attorney. You
either need to choose someone who is the first assistant
to the US Attorney right, which is typically a career person.
(35:33):
You need to choose someone who has Senate confirmed already
to another position, so it has already kind of gone
through the Senate process. Or you have to choose someone
who was in the agency for at least ninety days
in the year before the vacancy.
Speaker 1 (35:47):
So finally, you think there needs to be reform here.
Speaker 10 (35:51):
I think the laws governing temporary appointments are pretty broad
and likely too broad. On the other hand, we want
the government to function. We don't want the government to
come to a standstill. And so finding the balance between
getting Senate confirmed appointments through a dysfunctional appointments process and
(36:15):
having the government function is tricky. And sometimes we're on
the right side of the balance and sometimes we're on
the wrong side of the balance. And so I think
that Congress really has a role to play in constraining
the use of acting an interim appointment.
Speaker 1 (36:33):
Well, a study on vacancies showed that President George W.
Bush didn't nominate anyone in thirteen percent of vacant Senate
confirmed roles in federal agencies. President Barack Obama didn't nominate
anyone in fifteen percent of those roles, and President Trump
in his first administration didn't nominate anyone in twenty six
(36:55):
percent of those roles. So it's a growing trend. Thanks
so much, Ann, that's professor and Joseph O'Connell of Stanford 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,
(37:18):
And remember to 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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