August 9, 2025 • 36 mins
June Grasso discusses the biggest legal stories of the week with top legal experts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:09):
There being ninety five members presence, a quorum.
Speaker 3 (00:12):
Is not present.
Speaker 4 (00:13):
For the third time in a week, the Texas House
of Representatives was unable to reach a quorum on Friday,
as dozens of Democratic lawmakers continued their walkout to block
an unusual mid decade redistricting in the state. It's designed
to give Republicans five additional seats in the midterm elections.
(00:33):
But despite arrest warrants, threats of prosecution and removal from office,
the Democrats who left the state, like Representative Chris Turner,
have shown no signs of buckling.
Speaker 5 (00:45):
This is a nationwide fight, and we want everyone in
the country to understand what the stakes are. So Greg
Gabbat can make all the threats he want, We're going
to continue to fight.
Speaker 4 (00:53):
Largely unnoticed with the focus on Texas's voting maps is
that the Supreme Court has indicated it will consider outlawing
the use of race in drawing voting maps, setting up
a showdown with implications for dozens of congressional districts with
predominantly minority populations. My guest is elections law expert Rick Hassen,
(01:15):
a professor at UCLA Law School. So, Rick, Texas already
jerrymandered its maps in twenty twenty one, and that's still
in the courts. Is what it's doing now, trying to
redistrict again to get five extra Republican seats. Is that constitutional?
Speaker 2 (01:33):
Well, that remains to be seen. What's going to happen
if Texas draws its districts again is they will almost
certainly be challenged as violating either the Voting Rights Act
or as violating the Constitution's prohibition on racial jerrymandering. And
that'll get tied up in the courts, just as the
current round of redistricting is going to get tied up
(01:54):
in the court. What the federal courts are not going
to do is say it's unconstitutional as a artisan gerrymander,
that is drawing the district lines to favor Republicans over Democrats.
Because back in twenty nineteen, the Supreme Court decided a
case called Rusho versus Common Cause, where the Court said
that there are no standards to judge under the Constitution
(02:14):
whether partisan jerrymandering goes too far.
Speaker 4 (02:17):
Several Blue states have threatened retaliatory redistricting but two key states,
New York and California, have commissions drawing up the maps,
so would they be able to retaliate in time for
the midterms.
Speaker 2 (02:33):
Well, as far as the California case goes, which is
one I'm most familiar with living here in California, the
way that registrict could be done consistent with state law
in the middle of the decade would have to be
through a voter passed measure, because voters earlier passed to
measure actually two ballot measures, establishing a non partisan or
(02:55):
multi partisan commission, and then extending that commission's job to
clue drawing congressional district To overturn a ballot measure in
California needs a new ballot measure. So what the legislature
and the governor are talking about doing now is drafting
a new registioning plan and putting it before voters in
a special election. If it passes, the new registing plan
(03:15):
would be in effect, and then that could be challenged
in court. But I think that again, because partisan jerry
managering is not something that federal courts will police, there
wouldn't be much of a federal basis unless you can
make an argument again, like under the Voting Rights Actor,
as a racial ferry manager, the districts somehow are illegal.
Speaker 4 (03:32):
It's sort of startling to hear the Republicans in Texas
and the presidents say, you know, we're doing this to
get more seats.
Speaker 2 (03:40):
Well. One reason why we've seen legislators in Texas and
earlier in North Carolina say we are doing a partisan
jerry manager, like proudly admitting it, it's because they're trying
to deflect the argument, No, you're doing this on racial grounds.
You're doing this to make it harder for black and
Latino and Native American voters to elect their candidates of choice,
which could raise a Voting Rights Act question or could
(04:02):
raise a racial genreymndor in question under the Protection Close.
So if the Supreme Court says we're not going to
police politics, but we are going to police race, then
of course they want to say, if they're trying to
defend it, we're just doing politics. And so the courts
have to try and sort that out, which is a
very difficult thing to do when in a place like Texas,
minority voters are much more likely to vote for Democrats
(04:22):
and white voters for Republicans.
Speaker 4 (04:25):
As far as the Supreme Court policing race, the justices
are ordering reargument of a case that was argued in
March involving a Louisiana congressional map that created an additional
majority black district. What are the implications?
Speaker 2 (04:42):
So, what we're talking about here is a case called
Louisiana versus Calais, and it was already argued last March,
and it was one of these cases where the Louisiana legislature,
thanks to an earlier lawsuit, drew a second congressional district
where black voters could elect their case of choice to
a congressional district. And the argument in the earlier case
(05:04):
was you had to draw the second district to comply
with Section two of the Voting Right sect. Well, then
a new group of voters came in and they said, hey,
when you drew that second district, you made race the
predominant factor in drawing those lines, and you don't have
up a compelling reason to do so, and therefore you
were committing a racial gerrymander in violation of the Fourteenth
(05:24):
Amendments Equal Protection Clause. Back in March, the Court heard
argument in that case where the main issue was was
race really the predominant factor, the main reason why the
second lines were drawn the way they were, or was
it really about politics. It's surely about politics, then it's
not a racialtarymander. Again, I find this distinction nonsensical when
you have so much overlap between race and party in
(05:45):
these Southern states. But it looked like yet another in
a series of cases where the court's deciding whether race
or party predominates. But then the end of the Supreme
Court's term in June, rather than decide the case, the
Court issued a somewhat unusual order saying we're going to
hear reargument in the case, we're going to want additional briefing,
but we're not telling you yet what we want the
briefing on. And then it was not until the after
(06:08):
five pm August first Friday night news dump where the
Court issued this kind of obscure, cryptic order that I
read as really asking the question whether Section two of
the Voting Right Act remains constitutional. And the way this
comes into the case is if race did predominate, then
the only way you can do that in drawing district
(06:29):
lines is if you have a compelling reason to do so,
and the compelling reason that has been considered is, well,
the Voting Rights Act made me do it. I had
to do it to comply with Section two. Now the
Court wants to hear, maybe it's unconstitutional to apply Section
two and make race the predominant factor when you're drawing
these district lines. So it really brings these two lines
(06:50):
of cases, the Voting Rights AACK cases and the racial
gerrymandering cases together in a way where the Voting Rights
Act may lose. And the Supreme Court appears poised to
consider striking down the second big pillar of the Voting
Rights Act after it had already struck down the first
pillar in twenty thirteen in the Shelby County Versus Holder case.
Speaker 4 (07:13):
Many of the Court's conservatives have been what you might
call hostile to the Voting Rights Act, and some seem
to think that the Voting Rights Act no longer provides
a legitimate basis for map makers to intentionally create majority
Black or majority Hispanic districts.
Speaker 1 (07:33):
Well.
Speaker 2 (07:33):
So, the most recent piece of evidence we have on
what the Court thinks about the Voting Rights Acts, aside
from this order that came out in the Louisiana case,
is a case that was decided a few years ago
out of Alabama involving very similar facts of the Voting
Rights Act requiring the drawing of an additional black majority district,
and in this case Alan versus Milligan, the Supreme Court,
(07:53):
on a five to four vote upheld the requirement that
these districts be drawn. The two conservatives who were in
the majority already with the three liberals of the Court,
were Chief Justice Roberts and Justice Cavanaugh, making it a
five to four decision with Justices Gorsich, Barrett, Alito, and
Thomas is descent. But Justice Cavanaugh, in the majority, wrote
separately to say, I'm intrigued by the argument that maybe
(08:17):
Section two is no longer constitutional because of the passage
of time and the changes in political conditions. This isn't
the case to decide that, but there may come a
case down the line where we need to address that,
and I think now this Louisiana case is that case.
So Kavanaugh could prove to be the fifth vote, and Roberts,
who has shown some hostility in voting rights that cases
(08:38):
in the past, including the Shelby County case I mentioned,
could be a sixth vote. If the Court divides along
party lines, along ideological lines, the voter Knight tax Section
two could either be whittled down or killed off. And
so what started off as a pretty small, not blockbuster
case out of Louisiana could turn out to be the
(08:59):
most important voting rights case of this decade.
Speaker 4 (09:02):
I mean that was just a few years ago. Why
do you think the Court has reached this sort of
monumental moment or decision now?
Speaker 2 (09:12):
Well, you know, John Roberts likes to move slowly. Let's
just take the killing off of Section five of the
Voting Rice Act, which happened in Shelby County. That was
the provision that said, the states with a history of
racial discrimination and voting need to get approval before they
make their voting changes to make sure that minority voters
would not be made worse off. Congress renewed section five
(09:33):
in two thousand and six. The Supreme Court first took
up the issue of overturning Section five in two thousand
and nine in a case called Northwest Austin Municipal Utility
District Number one versus Holder, And in that case, the
Court punts it on the question, but strongly signals that
in a future case, it could strike down Section five.
(09:53):
It was not until twenty thirteen, right, so you're talking
about seven years after Congress acts that Roberts was finally
ready to pull trigger. And so Roberts moves slowly, he
whittles things away. And again, the Court in the Louisiana
case could whittle it the way at the Voting Rights Act,
make it essentially toothless without striking it down directly. But
I think what's coming is not likely to be good
(10:15):
for the Voting Rights Act.
Speaker 4 (10:16):
So you think they might strike it down completely.
Speaker 2 (10:20):
They might strike it down completely, or they might say
it's unconstitutionalized applied in Louisiana, and then it will take
time to figure out, well, what does that mean? How
does it apply in other cases? That would be much
more of a John Roberts faux minimalist move, looking like
they're moving slowly, but in fact, you know, I was
telling my editor of the piece that I wrote Slate
about this that you know, the media loves to cover
(10:41):
the car crash, the Texas registersting, you know, legislators getting
on planes, and that's great visuals, great story. But the
Supreme Court does slow poisoning, and so it's very hard
to cover. Right, So here's an order that's issued, you know,
Friday after five pm in August. I mean, who cover
it on the weekend about a case that they're going
(11:03):
to hear arguments about probably sometime in December or maybe
in January, and then the issue in opinion in June.
That will be very hard to understand. So the Court
is still doing a lot of damage, but it does
it in a way that is much harder to cover
and much harder for the public to grasp.
Speaker 4 (11:21):
But it does look like this case could end up
being one of the blockbusters of the next Supreme Court term.
Thanks so much for joining me. Rick, that's Professor Rick
Hassen of UCLA Law School. I'm June Grosso and you're
listening to Bloomberg. Los Angeles has been in a battle
with the Trump administration over its aggressive immigration enforcement. Mayor
(11:44):
Karen Bass has repeatedly called out ICE, saying it's masked
agents in unmarked cars, we're grabbing suspected undocumented migrants off
the streets in what looked like kidnappings.
Speaker 3 (11:58):
We know that Los Angeles is the test case, and
we will stand strong, and we do so because the
people snatched off city streets and chased through parking lots.
Are our coworkers, our neighbors, are family members, and they
are Angelinos.
Speaker 4 (12:14):
In a fast moving case, a federal judge found that
there was quote a mountain of evidence that ICE agents
tactics were violating the Constitution. She issued an order barring
agents in LA from stopping and questioning people on the
basis of race or ethnicity, they're speaking Spanish or English
with an accent, the type of work they do, or
(12:37):
their presence at a particular location. Three weeks later, the
non Circuit Court of Appeals turned down a Trump administration
appeal and left the judges ban almost completely in place,
and six days later, on Thursday of this week, the
administration asked the Supreme Court to lift the ban. Joining
me is immigration attorney Leon Fresco, a partner at hond
(12:59):
and he was the head of the Office of Immigration
Litigation in the Obama administration. Leon explained what the district
judge ordered in the LA case well.
Speaker 5 (13:10):
The original case involved the challenge to something that was
called Operation at Large, which was a federal immigration enforcement
initiative in Los Angeles. There were these ICE contact teams
targeting locations such as car washes and home depots and
other places believed to employ undocumented workers. And there was
(13:31):
a lawsuit claiming that these roving patrols detained individuals without
reasonable suspicion, violating the Fourth Amendment, and the District courd
at Health on July eleventh that the plaintiffs were likely
to succeed improving unconstitutional seizures. So the judge restricted federal
agents from conducting these seiss raids and stops without a
(13:53):
reasonable suspicion. So what that means is that instead of
walking around and trying to say this person looks like
somebody that's not here legally, which has a sort of
dubious application that people get worried about because they say, well,
how are you making those decisions? What they're trying to
do is convert ice back into a list sort of
(14:18):
agency where it says, we know today we're going to
go after person one, person two, person three, person four,
person five, And then they go and they look for
these people because they know they're here undocumented, rather than
just grabbing people in the middle of the street. And
so that's really the end goal of this lawsuit. And
so yes, there are times where they will still be
(14:41):
able to pick people up because they'll have a reasonable
suspicion for another reason other than they're on a list.
But mostly this limits ice to the sort of list
based enforcement.
Speaker 4 (14:52):
And what was the government's argument in defense of these
tactics At the Ninth.
Speaker 5 (14:56):
Circuit They said two things. They said, first of all,
that the organizational plaintiffs and the case didn't even have
standing to bring the case. And they also said that
in general, they weren't violating the Fourth Amendment because they
have the ability and then the right to enforce immigration law.
They had the right to question anybody about their lawful
(15:19):
presence in the United States at any time. That's what
the statue permits them to do. The Ninth Circuit said,
first that the organizational planets had standing because they showed
that these kind of roving patrols forced them to divert
their resources instead of carrying out other missions of supporting
immigrants rights in the community. They had to move to
(15:40):
divert the resources into dealing with these enforcement actions. So
that was the standing issue, and they said there was standing.
But they also said that with regard to these claims
about reasonable suspicion and Fourth Amendment violations caused by ICE
officers roving around looking for people. They said that, yes,
that does also seem to have a likelihood of success
(16:03):
enough that they would not say the district court's ruling.
It was a three zero decision, and so the court
basically allowed almost all of the ruling to take place,
except there was one line in the injunction that prevented
ICE from even asking individuals about their immigration status absent
reasonable suspicion. That was, they they were allowed to still
(16:26):
do that. That was considered overbroad and problematic in terms
of enforcement and constitutional interpretation, but the rest of the
injunction was allowed to continue.
Speaker 4 (16:38):
So the judge ruled that ICE can't attain people based
on their apparent race or ethnicity, So speaking Spanish or
accented English, or being at locations such as home depot
parking lots, what does constitute reasonable suspicion?
Speaker 3 (16:56):
Then?
Speaker 5 (16:57):
The main thing that people who file this lawsuit basically
are trying to limit ICE is to say you have
to have some sort of knowledge of the person you're
looking for and of their immigration status before you go
looking for those individuals. So, for instance, if you're at
an immigration court, then you'll know if somebody has that
(17:18):
status or not, so then you can pick them up
after or if again, you're working off a list of
people who have lost their status that you know from
the Department of Homeland Security databases, and you're going to
pick up those people at their work or at their home,
you then have reasonable suspicion and you can do that.
And what the decision also allows is so, for instance,
(17:39):
let's say there's twenty undocumented people at a work site
that they know about because they have it in their database,
then they can ask, Okay, well, what about the other
people at this work site? I want to see the
paperwork for them, because then there's a reasonable suspicion because
you've already established that there's twenty undocumented people at that
work site. Employer hires undocumented people. But in terms of
(18:04):
just randomly generating leads by going to places and making
these sort of facial decisions how this person looks or
how they present themselves, et cetera. That's the kind of
thing that is enjoyed under this injunction.
Speaker 4 (18:20):
How much of a hindrance is this order to ice, Well.
Speaker 5 (18:26):
It depends if you say, how much of a hindrance
is it to their deterrent operations as opposed to their
removal operations. It's not really a turrent at all to
their removal operations in the sense of ICE has pretty
sophisticated databases where it knows where most of the undocumented
people in this country are and where they live, and ICE,
(18:48):
if they want to, can go and pick up as
many people as it has detention space to detain, and
so there's never a shortage of people that ICE can
pick up on any given day to place and detention
given the limited detention space it has. But what it
does limit is ICE's ability to engage in the kind
(19:09):
of patrols that are designed to create a deterrent effect,
meaning people are nervous to remain here in the United
States because they think, oh, if I take a city bus,
or if I just go shopping, or if I'm taking
my child to school, I could be apprehended at any moment.
The design of those operations isn't to meet the quota,
(19:31):
so to speak. It's to instead create a deterrent effect
that tells people if you stay here, you never know
what day is going to be the day you're apprehended,
so you should just return home and so that's where
it's limiting the operation is in that deterrent effect.
Speaker 4 (19:47):
The government is asking the Supreme Court to lift the band,
saying that the judge overstepped her authority.
Speaker 5 (19:53):
The Government's been quite aggressive in appealing to the Supreme Court,
and they've been getting better results in the Supreme Court
with saying some of these injunctions. And I could foresee
the Supreme Court lifting or saying parts of the injunction
that limit ICE's hands. I mean, I don't see them
potentially taking away the whole injunction, but I could see
(20:16):
them giving ICE a little bit more wiggle room here.
Speaker 4 (20:19):
Leon in another lawsuit challenging the constitutionality of ICE agents
in Los Angeles impersonating police officers or using other ruses
in order to enter a home or convince someone to
come outside to make an arrest, ICE has reached a
court approved settlement and agreed not to use those subterfuges anymore.
(20:43):
I mean, what were they doing to cause this lawsuit
to be filed.
Speaker 5 (20:47):
This is sort of a larger issue, which is that
as people in the immigration rights movement have become very
very successful in communicating messages of know you're right, a
lot of people in the immigration community have understood that
ICE can be refused entry into a home unless they
have a judicial warrant. So if they have an administrative warrant,
(21:08):
or if they just say can you let me in,
you're totally within your right to say no, I don't
want to let you in, and I can't go in.
If I goes in, then whatever operation they did is
invalid under the law once it eventually gets to a court.
So so a lot of individuals know this now. So
I has had to operate, and this has been happening
for many years. This is not a recent thing. So
(21:30):
I has had to operate where they tried to find
ways around these limitations. So they try to get people
to come outside. They say, hey, your car is broken,
or hey I need some directions, can you come outside
or whatever, and then once they're outside then they can
conduct their legal action, or they say they're police, can
they be let inside? And if people think they're police
(21:51):
but not ICE, then they let them inside. And so
the idea of this lawsuit was to say ICE has
to not do those tactics. They have to say that
their ICE, both in their clothing and in their verbiage.
And so that when they are engaging in those operations
now under this settlement, then the individuals will know this
(22:12):
is ICE. ICE is strength enter the home. I can
refuse it unless they have a judicial warrant.
Speaker 4 (22:16):
Yeah, so they have to have a warrant that's signed
by a judge. Are those hard to get?
Speaker 5 (22:21):
It's not that they're hard to get, but it's time
consuming because judges only have so many things they can
do on a given day. And if ICE is trying
to get one of those warrants, they have to set
up the paperwork that says, here's this person, here's how
we know they entered illegally, or they entered legally but
they've overstayed their status. And also they have to get
(22:41):
the Department of Justice lawyer involved, and then you wait
for the judge they issue the warrant, and then the
judge issues the warrant. So all of this takes time,
and it's time that ICE doesn't want to be spending
when it can just write up an administrative warrant on
their work processing documents.
Speaker 4 (22:58):
Lee on one more question about agents. Attire Mayor Karen
Bess is one of many who've complained about ICE agents
being masked when they're making these arrests.
Speaker 5 (23:08):
The agents wear masks because they don't want people coming
to their homes. Now, in this social media era, you
could say, oh, that's Ice agent Fred Smith who lives
on one one one Smith Lane, and so go to
their house and yell at them. Whether you agree with
Immigration enforcement or not, the people at I don't deserve
to have their houses raided by angry people at the community.
(23:30):
I think most people agree there has to be some
identification that's done and shown that says I'm an ICE agent.
So maybe the person wears a mask, but during the
immediate apprehension says here's my badge and I'm an ICE agent.
But I think the current way where someone just is
completely unidentified, wearing a mask and putting someone in a van,
(23:53):
I think if that continues, you will see courts getting involved,
and I think you'll even see Congress getting involved, because
those are not the kind of images that one typically
associate with normal law enforcement.
Speaker 4 (24:06):
Thanks Leon, as always, that's Leon Fresco of Holland and Knight.
The Trump administration has been mounting an unprecedented campaign to
reign in independent agencies and increase executive authority. To that end,
President Trump has fired more than a dozen leaders of
independent agencies without cause. What stands out in the long
(24:30):
list is Trump firing the two Democratic members of the
Federal Trade Commission. Rebecca Kelly Slaughter is fighting her dismissal
in court, arguing that it was illegal.
Speaker 6 (24:41):
Only one time in history has a president attempted to
remove an FTC commissioner over a policy disagreement. It was
ninety years ago President Roosevelt tried to remove Commissioner Humphrey,
and in the face of the clear language of the statute,
the Supreme Court said that was illegal. The statute is
constitutional and that FTC commissioners and other commissioners of multi member,
(25:05):
bipartisan agencies cannot be simply removed because the president doesn't
agree with them.
Speaker 4 (25:10):
But the Justice Department has said it's going to ask
the Supreme Court to reverse that ninety year old president
called Humphrey's executor. Legal experts say they'll be broad ramifications
if the president can fire FTC commissioners at will and
the agency is no longer independent. My guest is William Kavasik,
(25:31):
former FDC chair and a professor at the George Mason
University School of Law Bill tell us about the president
firing Slaughter.
Speaker 1 (25:40):
Yeah, the President decided that he has the authority to
simply fire members of the FTC without any cause, and
this contradicts a nineteen thirty five Supreme Court decision called
Humphrey's Executor that said that FTC commissioners can be removed
only for good cause. The President clearly wanted to remove
(26:02):
the two Democrats from the FTC, Rebecca Kelly Slaughter and
Alvaro Beadoya, and he simply dismissed them. So he decided
not just for the FTC, but I think as part
of a program for government generally, decided to assert executive
authority to control more directly who can serve on these
regulatory agencies.
Speaker 4 (26:21):
Slaughter won her first battle in court. A federal judge
reinstated her last month, although that reinstatement has been put
on hold pending an appeals court decision explain the judge's
reasons for reinstating her now.
Speaker 1 (26:35):
She concluded that the president's authority is defined by the
nineteen thirty five Supreme Court decision, and the nineteen thirty
five Supreme Court decision said that the president can remove
federal Trade commissioners only for good cost, that the limitation
on removal was established in the FTC Statute adopted in
(26:56):
nineteen fourteen, and that the Supreme Court's interpretation of that
statute limited the circumstances in which the President could remove
FPC commissioners. Judge Ali Khan and the District Court opinion
concluded that those authorities are controlling, that the statute itself
makes clear the conditions enrich removal can take place, and
(27:17):
the Supreme Court upheld the limitation on executive power. She said,
the President contradicted that approach, and until the Supreme Court
says otherwise about it's nineteen thirty five decision, that decision
is binding on me and commissioners, Slaughter is entitled to
be reinstated.
Speaker 4 (27:37):
It seems like Humphrey's executor is in jeopardy at the
Supreme Court. In July, the Court allowed the Trump administration
to remove three democratic members of the Consumer Product's Safety
Commission that were fired by Trump and then reinstated by
a federal judge. And in May, the Court rule that
the democratic members of the NLRB and Merit Systems Protection
(27:59):
Board could return to their jobs because the government was
likely to be able to show that the agencies exercised
considerable independent power. So does it seem like the Supreme
Court is ready to overturn Humphrey's executor.
Speaker 1 (28:14):
As you say, June, the Court's given a number of
hints that it is ready to revisit Humphrey's Executor and
to overturn it. The Court has cautioned that every turn
in the road, that we're not making a final decision
on the merit, that that fuller evaluation of the merit
of Humphrey and its vitality today remains to take place.
(28:34):
So they've said we're not deciding now, But the way
in which they've written the decisions that you referred to,
even these preliminary rulings where they're not offering a final
view about the legitimacy of the challenges at issue, have
given hints that at least three members of the Court
think that Humphreys must be overturned. Maybe two more members
(28:55):
of the Court are wavering in their support of Humphreys.
I suppose if you were making a wager now about
whether Humphreys will live through the end of twenty twenty six,
I suppose the way to bet would be to say
no that it won't. I don't think the possibilities for
Humphrey's executors to survive have been extinguished. There's still possibilities
(29:15):
that the Court might reflect on the basis for the
creation of the limit on removal, might think more completely
about existing controls that the President already has over administrative
agency discretion, to realize that the choice here is not
between having no control and absolute control over appointments and removal.
The president already has a number of tools at the
(29:37):
president's disposal to influence the way in which the Federal
Trade Commission and similar agencies operate. The real issue here
is whether that control must be absolute, and the Court
might reflect on that in a more elaborate way and
come to a different conclusion. But that's a long way
of saying that Humphrey's Executor appears to be in peril,
and that when the Court does come at some point,
(29:59):
perhaps in twenty six, to confront the continuing vitality of
Humphrey's executive, it will probably say that we've decided to
change our minds.
Speaker 4 (30:08):
Let's talk about what would happen the changes if the
FDC loses the independence it now has. It's been said
that one casualty would be the in house adjudication system.
Speaker 1 (30:21):
I think that's right, Jo, and I think the administrative
in house adjudication system ultimately topples For this reason. I
think crucial to the legitimacy of any judicial dispute resolution
tribunal is some degree of autonomy. This is where the
autonomy is most important for legitimacy. Once it becomes apparent
that the president can simply fire Federal Trade commissioners because
(30:44):
he doesn't like their work, doesn't like their philosophy, I
think that system unravels. You can't have courts where the
judges are aware that a decision or a specific approach
taken in a given case could cause their dismissal, and
the TC commissioners serve as adjudicators when the FTC uses
(31:05):
that internal mechanism. So I think a domino that falls
if Humphrey's executor is overturned is the perceived legitimacy and
functioning of the administrative adjudication system that disappears.
Speaker 4 (31:18):
And even now we're seeing motions to dismiss FTC cases
eleging that the FTC structure is unconstitutional because of this
weight over Humphreys.
Speaker 1 (31:31):
I think the deeper threat to the FTC's effectiveness is
that when it goes to court, it has always had
the capacity to tell the court the positions we are
taking are the result of our best professional judgment, and
as an expert body, we are asking for respect for
our judgments because they're based on our accumulated experience, our
(31:52):
research in the field of competition and consumer protection, and
the expertise that individual members of the Commission bring to
the analysis of specific cases. When you put all of
those together, you have a key element of professional judgment
that might not be always correct, but it deserves respect
(32:12):
because it is more likely to be correct than the
judgment of individual federal judges, the parties, and the cases.
That is that that judgment is worthy of respect. It
doesn't mean that the FDC is always going to prevail
in court. The moment that courts perceive that you are
using your authority not because of your best professional judgment,
(32:35):
but because you are simply an extension of the political
process and you are serving the specific interests or whims
and the chief executive, that element of professional judgment and
respect disappear. They're gone. So I think a consequence imphmphrase
dies is that the Commission loses the ability to stand
before the courts and say you can trust us. And
(32:57):
in so many ways, that's what government agency ask court
is trust us because we are the professionals. We're using
professional judgment, and that's why you can have confidence in
the judgments we're making. And I think it means that
simply stated, you have a harder time winning your cases
when you go to court.
Speaker 4 (33:16):
And build beyond that, Can you give us the broader
reasons why you think the FTC's independence is critical.
Speaker 1 (33:25):
The broader, high level reason is that the FDC exercise
is significant economic policy making functions and has broad regulatory responsibilities.
I think in any economy, and certainly in our market economy,
the business community, the citizens as a whole have to
have confidence that that authority is being used in a
(33:46):
principled way. And then when it's used, it reflects truly
the exercise of high quality professional judgment from an agency
that has special expertise, broad experience, and then when it's
making those judgments, it's making it on the basis of
sound policy analysis. That assumption and confidence vanishes if the
(34:06):
head of State can simply designate outcomes or point the
agency in a specific direction. I mean it's the same
concern we have about the Federal Reserve Board and monetary policy.
Notice how the markets lose their minds when it appears
as though the Fed might lose that insulation from direct
political influence over the monetary system. I can't quite assert
(34:27):
that the FTC occupies the same position in the minds
of business leaders and others about its role in the economy,
but I think it is nonetheless an important pillar of
the regulatory mechanism in the US. If you take away
some measure of autonomy, especially in the decision to prosecute,
(34:48):
the decision to impose sanctions, the decision to do things
that in a broad sense hurt, you take away that
presumption of good professional judgment and autonomy with respect to
those functions, I think it undermines confidence in the regulatory
process itself, and at a higher level, for our entire
political economy and our stature in the world. For the
(35:09):
last thirty plus years, we have been telling the world
that these key economic regulatory functions must have some element
of protection with respect to these fundamental decisions about prosecuting cases,
initiating rules, that there has to be an accountability regime.
But you can't have political leadership telling the agency to
(35:29):
punish enemies, reward friends, and otherwise simply be party to
a negotiation between top political leadership and individual business interests.
So once you do that, confidence in the entire system
of government tends to erode. And if the hunphrees executive
protections against removal except for good cause disappear, that's a
(35:50):
step in the direction of diminishing that confidence and legitimacy
for the regulatory process.
Speaker 4 (35:55):
So right now, Slaughter's case is before the US Court
of Appeals for the DC Circuit on the Trump administration's appeal,
So we'll have to see if the Circuit ends up
affirming Judge Ali Kahan's decision or not. So it's a
pleasure to have you on Bill, Thanks so much, and
that's it for this edition of The Bloomberg Law Show.
(36:15):
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 into The Bloomberg Law Show every
weeknight at ten pm Wall Street time. I'm Junie Grosso
and you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:09):
There being ninety five members presence, a quorum.
Speaker 3 (00:12):
Is not present.
Speaker 4 (00:13):
For the third time in a week, the Texas House
of Representatives was unable to reach a quorum on Friday,
as dozens of Democratic lawmakers continued their walkout to block
an unusual mid decade redistricting in the state. It's designed
to give Republicans five additional seats in the midterm elections.
(00:33):
But despite arrest warrants, threats of prosecution and removal from office,
the Democrats who left the state, like Representative Chris Turner,
have shown no signs of buckling.
Speaker 5 (00:45):
This is a nationwide fight, and we want everyone in
the country to understand what the stakes are. So Greg
Gabbat can make all the threats he want, We're going
to continue to fight.
Speaker 4 (00:53):
Largely unnoticed with the focus on Texas's voting maps is
that the Supreme Court has indicated it will consider outlawing
the use of race in drawing voting maps, setting up
a showdown with implications for dozens of congressional districts with
predominantly minority populations. My guest is elections law expert Rick Hassen,
(01:15):
a professor at UCLA Law School. So, Rick, Texas already
jerrymandered its maps in twenty twenty one, and that's still
in the courts. Is what it's doing now, trying to
redistrict again to get five extra Republican seats. Is that constitutional?
Speaker 2 (01:33):
Well, that remains to be seen. What's going to happen
if Texas draws its districts again is they will almost
certainly be challenged as violating either the Voting Rights Act
or as violating the Constitution's prohibition on racial jerrymandering. And
that'll get tied up in the courts, just as the
current round of redistricting is going to get tied up
(01:54):
in the court. What the federal courts are not going
to do is say it's unconstitutional as a artisan gerrymander,
that is drawing the district lines to favor Republicans over Democrats.
Because back in twenty nineteen, the Supreme Court decided a
case called Rusho versus Common Cause, where the Court said
that there are no standards to judge under the Constitution
(02:14):
whether partisan jerrymandering goes too far.
Speaker 4 (02:17):
Several Blue states have threatened retaliatory redistricting but two key states,
New York and California, have commissions drawing up the maps,
so would they be able to retaliate in time for
the midterms.
Speaker 2 (02:33):
Well, as far as the California case goes, which is
one I'm most familiar with living here in California, the
way that registrict could be done consistent with state law
in the middle of the decade would have to be
through a voter passed measure, because voters earlier passed to
measure actually two ballot measures, establishing a non partisan or
(02:55):
multi partisan commission, and then extending that commission's job to
clue drawing congressional district To overturn a ballot measure in
California needs a new ballot measure. So what the legislature
and the governor are talking about doing now is drafting
a new registioning plan and putting it before voters in
a special election. If it passes, the new registing plan
(03:15):
would be in effect, and then that could be challenged
in court. But I think that again, because partisan jerry
managering is not something that federal courts will police, there
wouldn't be much of a federal basis unless you can
make an argument again, like under the Voting Rights Actor,
as a racial ferry manager, the districts somehow are illegal.
Speaker 4 (03:32):
It's sort of startling to hear the Republicans in Texas
and the presidents say, you know, we're doing this to
get more seats.
Speaker 2 (03:40):
Well. One reason why we've seen legislators in Texas and
earlier in North Carolina say we are doing a partisan
jerry manager, like proudly admitting it, it's because they're trying
to deflect the argument, No, you're doing this on racial grounds.
You're doing this to make it harder for black and
Latino and Native American voters to elect their candidates of choice,
which could raise a Voting Rights Act question or could
(04:02):
raise a racial genreymndor in question under the Protection Close.
So if the Supreme Court says we're not going to
police politics, but we are going to police race, then
of course they want to say, if they're trying to
defend it, we're just doing politics. And so the courts
have to try and sort that out, which is a
very difficult thing to do when in a place like Texas,
minority voters are much more likely to vote for Democrats
(04:22):
and white voters for Republicans.
Speaker 4 (04:25):
As far as the Supreme Court policing race, the justices
are ordering reargument of a case that was argued in
March involving a Louisiana congressional map that created an additional
majority black district. What are the implications?
Speaker 2 (04:42):
So, what we're talking about here is a case called
Louisiana versus Calais, and it was already argued last March,
and it was one of these cases where the Louisiana legislature,
thanks to an earlier lawsuit, drew a second congressional district
where black voters could elect their case of choice to
a congressional district. And the argument in the earlier case
(05:04):
was you had to draw the second district to comply
with Section two of the Voting Right sect. Well, then
a new group of voters came in and they said, hey,
when you drew that second district, you made race the
predominant factor in drawing those lines, and you don't have
up a compelling reason to do so, and therefore you
were committing a racial gerrymander in violation of the Fourteenth
(05:24):
Amendments Equal Protection Clause. Back in March, the Court heard
argument in that case where the main issue was was
race really the predominant factor, the main reason why the
second lines were drawn the way they were, or was
it really about politics. It's surely about politics, then it's
not a racialtarymander. Again, I find this distinction nonsensical when
you have so much overlap between race and party in
(05:45):
these Southern states. But it looked like yet another in
a series of cases where the court's deciding whether race
or party predominates. But then the end of the Supreme
Court's term in June, rather than decide the case, the
Court issued a somewhat unusual order saying we're going to
hear reargument in the case, we're going to want additional briefing,
but we're not telling you yet what we want the
briefing on. And then it was not until the after
(06:08):
five pm August first Friday night news dump where the
Court issued this kind of obscure, cryptic order that I
read as really asking the question whether Section two of
the Voting Right Act remains constitutional. And the way this
comes into the case is if race did predominate, then
the only way you can do that in drawing district
(06:29):
lines is if you have a compelling reason to do so,
and the compelling reason that has been considered is, well,
the Voting Rights Act made me do it. I had
to do it to comply with Section two. Now the
Court wants to hear, maybe it's unconstitutional to apply Section
two and make race the predominant factor when you're drawing
these district lines. So it really brings these two lines
(06:50):
of cases, the Voting Rights AACK cases and the racial
gerrymandering cases together in a way where the Voting Rights
Act may lose. And the Supreme Court appears poised to
consider striking down the second big pillar of the Voting
Rights Act after it had already struck down the first
pillar in twenty thirteen in the Shelby County Versus Holder case.
Speaker 4 (07:13):
Many of the Court's conservatives have been what you might
call hostile to the Voting Rights Act, and some seem
to think that the Voting Rights Act no longer provides
a legitimate basis for map makers to intentionally create majority
Black or majority Hispanic districts.
Speaker 1 (07:33):
Well.
Speaker 2 (07:33):
So, the most recent piece of evidence we have on
what the Court thinks about the Voting Rights Acts, aside
from this order that came out in the Louisiana case,
is a case that was decided a few years ago
out of Alabama involving very similar facts of the Voting
Rights Act requiring the drawing of an additional black majority district,
and in this case Alan versus Milligan, the Supreme Court,
(07:53):
on a five to four vote upheld the requirement that
these districts be drawn. The two conservatives who were in
the majority already with the three liberals of the Court,
were Chief Justice Roberts and Justice Cavanaugh, making it a
five to four decision with Justices Gorsich, Barrett, Alito, and
Thomas is descent. But Justice Cavanaugh, in the majority, wrote
separately to say, I'm intrigued by the argument that maybe
(08:17):
Section two is no longer constitutional because of the passage
of time and the changes in political conditions. This isn't
the case to decide that, but there may come a
case down the line where we need to address that,
and I think now this Louisiana case is that case.
So Kavanaugh could prove to be the fifth vote, and Roberts,
who has shown some hostility in voting rights that cases
(08:38):
in the past, including the Shelby County case I mentioned,
could be a sixth vote. If the Court divides along
party lines, along ideological lines, the voter Knight tax Section
two could either be whittled down or killed off. And
so what started off as a pretty small, not blockbuster
case out of Louisiana could turn out to be the
(08:59):
most important voting rights case of this decade.
Speaker 4 (09:02):
I mean that was just a few years ago. Why
do you think the Court has reached this sort of
monumental moment or decision now?
Speaker 2 (09:12):
Well, you know, John Roberts likes to move slowly. Let's
just take the killing off of Section five of the
Voting Rice Act, which happened in Shelby County. That was
the provision that said, the states with a history of
racial discrimination and voting need to get approval before they
make their voting changes to make sure that minority voters
would not be made worse off. Congress renewed section five
(09:33):
in two thousand and six. The Supreme Court first took
up the issue of overturning Section five in two thousand
and nine in a case called Northwest Austin Municipal Utility
District Number one versus Holder, And in that case, the
Court punts it on the question, but strongly signals that
in a future case, it could strike down Section five.
(09:53):
It was not until twenty thirteen, right, so you're talking
about seven years after Congress acts that Roberts was finally
ready to pull trigger. And so Roberts moves slowly, he
whittles things away. And again, the Court in the Louisiana
case could whittle it the way at the Voting Rights Act,
make it essentially toothless without striking it down directly. But
I think what's coming is not likely to be good
(10:15):
for the Voting Rights Act.
Speaker 4 (10:16):
So you think they might strike it down completely.
Speaker 2 (10:20):
They might strike it down completely, or they might say
it's unconstitutionalized applied in Louisiana, and then it will take
time to figure out, well, what does that mean? How
does it apply in other cases? That would be much
more of a John Roberts faux minimalist move, looking like
they're moving slowly, but in fact, you know, I was
telling my editor of the piece that I wrote Slate
about this that you know, the media loves to cover
(10:41):
the car crash, the Texas registersting, you know, legislators getting
on planes, and that's great visuals, great story. But the
Supreme Court does slow poisoning, and so it's very hard
to cover. Right, So here's an order that's issued, you know,
Friday after five pm in August. I mean, who cover
it on the weekend about a case that they're going
(11:03):
to hear arguments about probably sometime in December or maybe
in January, and then the issue in opinion in June.
That will be very hard to understand. So the Court
is still doing a lot of damage, but it does
it in a way that is much harder to cover
and much harder for the public to grasp.
Speaker 4 (11:21):
But it does look like this case could end up
being one of the blockbusters of the next Supreme Court term.
Thanks so much for joining me. Rick, that's Professor Rick
Hassen of UCLA Law School. I'm June Grosso and you're
listening to Bloomberg. Los Angeles has been in a battle
with the Trump administration over its aggressive immigration enforcement. Mayor
(11:44):
Karen Bass has repeatedly called out ICE, saying it's masked
agents in unmarked cars, we're grabbing suspected undocumented migrants off
the streets in what looked like kidnappings.
Speaker 3 (11:58):
We know that Los Angeles is the test case, and
we will stand strong, and we do so because the
people snatched off city streets and chased through parking lots.
Are our coworkers, our neighbors, are family members, and they
are Angelinos.
Speaker 4 (12:14):
In a fast moving case, a federal judge found that
there was quote a mountain of evidence that ICE agents
tactics were violating the Constitution. She issued an order barring
agents in LA from stopping and questioning people on the
basis of race or ethnicity, they're speaking Spanish or English
with an accent, the type of work they do, or
(12:37):
their presence at a particular location. Three weeks later, the
non Circuit Court of Appeals turned down a Trump administration
appeal and left the judges ban almost completely in place,
and six days later, on Thursday of this week, the
administration asked the Supreme Court to lift the ban. Joining
me is immigration attorney Leon Fresco, a partner at hond
(12:59):
and he was the head of the Office of Immigration
Litigation in the Obama administration. Leon explained what the district
judge ordered in the LA case well.
Speaker 5 (13:10):
The original case involved the challenge to something that was
called Operation at Large, which was a federal immigration enforcement
initiative in Los Angeles. There were these ICE contact teams
targeting locations such as car washes and home depots and
other places believed to employ undocumented workers. And there was
(13:31):
a lawsuit claiming that these roving patrols detained individuals without
reasonable suspicion, violating the Fourth Amendment, and the District courd
at Health on July eleventh that the plaintiffs were likely
to succeed improving unconstitutional seizures. So the judge restricted federal
agents from conducting these seiss raids and stops without a
(13:53):
reasonable suspicion. So what that means is that instead of
walking around and trying to say this person looks like
somebody that's not here legally, which has a sort of
dubious application that people get worried about because they say, well,
how are you making those decisions? What they're trying to
do is convert ice back into a list sort of
(14:18):
agency where it says, we know today we're going to
go after person one, person two, person three, person four,
person five, And then they go and they look for
these people because they know they're here undocumented, rather than
just grabbing people in the middle of the street. And
so that's really the end goal of this lawsuit. And
so yes, there are times where they will still be
(14:41):
able to pick people up because they'll have a reasonable
suspicion for another reason other than they're on a list.
But mostly this limits ice to the sort of list
based enforcement.
Speaker 4 (14:52):
And what was the government's argument in defense of these
tactics At the Ninth.
Speaker 5 (14:56):
Circuit They said two things. They said, first of all,
that the organizational plaintiffs and the case didn't even have
standing to bring the case. And they also said that
in general, they weren't violating the Fourth Amendment because they
have the ability and then the right to enforce immigration law.
They had the right to question anybody about their lawful
(15:19):
presence in the United States at any time. That's what
the statue permits them to do. The Ninth Circuit said,
first that the organizational planets had standing because they showed
that these kind of roving patrols forced them to divert
their resources instead of carrying out other missions of supporting
immigrants rights in the community. They had to move to
(15:40):
divert the resources into dealing with these enforcement actions. So
that was the standing issue, and they said there was standing.
But they also said that with regard to these claims
about reasonable suspicion and Fourth Amendment violations caused by ICE
officers roving around looking for people. They said that, yes,
that does also seem to have a likelihood of success
(16:03):
enough that they would not say the district court's ruling.
It was a three zero decision, and so the court
basically allowed almost all of the ruling to take place,
except there was one line in the injunction that prevented
ICE from even asking individuals about their immigration status absent
reasonable suspicion. That was, they they were allowed to still
(16:26):
do that. That was considered overbroad and problematic in terms
of enforcement and constitutional interpretation, but the rest of the
injunction was allowed to continue.
Speaker 4 (16:38):
So the judge ruled that ICE can't attain people based
on their apparent race or ethnicity, So speaking Spanish or
accented English, or being at locations such as home depot
parking lots, what does constitute reasonable suspicion?
Speaker 3 (16:56):
Then?
Speaker 5 (16:57):
The main thing that people who file this lawsuit basically
are trying to limit ICE is to say you have
to have some sort of knowledge of the person you're
looking for and of their immigration status before you go
looking for those individuals. So, for instance, if you're at
an immigration court, then you'll know if somebody has that
(17:18):
status or not, so then you can pick them up
after or if again, you're working off a list of
people who have lost their status that you know from
the Department of Homeland Security databases, and you're going to
pick up those people at their work or at their home,
you then have reasonable suspicion and you can do that.
And what the decision also allows is so, for instance,
(17:39):
let's say there's twenty undocumented people at a work site
that they know about because they have it in their database,
then they can ask, Okay, well, what about the other
people at this work site? I want to see the
paperwork for them, because then there's a reasonable suspicion because
you've already established that there's twenty undocumented people at that
work site. Employer hires undocumented people. But in terms of
(18:04):
just randomly generating leads by going to places and making
these sort of facial decisions how this person looks or
how they present themselves, et cetera. That's the kind of
thing that is enjoyed under this injunction.
Speaker 4 (18:20):
How much of a hindrance is this order to ice, Well.
Speaker 5 (18:26):
It depends if you say, how much of a hindrance
is it to their deterrent operations as opposed to their
removal operations. It's not really a turrent at all to
their removal operations in the sense of ICE has pretty
sophisticated databases where it knows where most of the undocumented
people in this country are and where they live, and ICE,
(18:48):
if they want to, can go and pick up as
many people as it has detention space to detain, and
so there's never a shortage of people that ICE can
pick up on any given day to place and detention
given the limited detention space it has. But what it
does limit is ICE's ability to engage in the kind
(19:09):
of patrols that are designed to create a deterrent effect,
meaning people are nervous to remain here in the United
States because they think, oh, if I take a city bus,
or if I just go shopping, or if I'm taking
my child to school, I could be apprehended at any moment.
The design of those operations isn't to meet the quota,
(19:31):
so to speak. It's to instead create a deterrent effect
that tells people if you stay here, you never know
what day is going to be the day you're apprehended,
so you should just return home and so that's where
it's limiting the operation is in that deterrent effect.
Speaker 4 (19:47):
The government is asking the Supreme Court to lift the band,
saying that the judge overstepped her authority.
Speaker 5 (19:53):
The Government's been quite aggressive in appealing to the Supreme Court,
and they've been getting better results in the Supreme Court
with saying some of these injunctions. And I could foresee
the Supreme Court lifting or saying parts of the injunction
that limit ICE's hands. I mean, I don't see them
potentially taking away the whole injunction, but I could see
(20:16):
them giving ICE a little bit more wiggle room here.
Speaker 4 (20:19):
Leon in another lawsuit challenging the constitutionality of ICE agents
in Los Angeles impersonating police officers or using other ruses
in order to enter a home or convince someone to
come outside to make an arrest, ICE has reached a
court approved settlement and agreed not to use those subterfuges anymore.
(20:43):
I mean, what were they doing to cause this lawsuit
to be filed.
Speaker 5 (20:47):
This is sort of a larger issue, which is that
as people in the immigration rights movement have become very
very successful in communicating messages of know you're right, a
lot of people in the immigration community have understood that
ICE can be refused entry into a home unless they
have a judicial warrant. So if they have an administrative warrant,
(21:08):
or if they just say can you let me in,
you're totally within your right to say no, I don't
want to let you in, and I can't go in.
If I goes in, then whatever operation they did is
invalid under the law once it eventually gets to a court.
So so a lot of individuals know this now. So
I has had to operate, and this has been happening
for many years. This is not a recent thing. So
(21:30):
I has had to operate where they tried to find
ways around these limitations. So they try to get people
to come outside. They say, hey, your car is broken,
or hey I need some directions, can you come outside
or whatever, and then once they're outside then they can
conduct their legal action, or they say they're police, can
they be let inside? And if people think they're police
(21:51):
but not ICE, then they let them inside. And so
the idea of this lawsuit was to say ICE has
to not do those tactics. They have to say that
their ICE, both in their clothing and in their verbiage.
And so that when they are engaging in those operations
now under this settlement, then the individuals will know this
(22:12):
is ICE. ICE is strength enter the home. I can
refuse it unless they have a judicial warrant.
Speaker 4 (22:16):
Yeah, so they have to have a warrant that's signed
by a judge. Are those hard to get?
Speaker 5 (22:21):
It's not that they're hard to get, but it's time
consuming because judges only have so many things they can
do on a given day. And if ICE is trying
to get one of those warrants, they have to set
up the paperwork that says, here's this person, here's how
we know they entered illegally, or they entered legally but
they've overstayed their status. And also they have to get
(22:41):
the Department of Justice lawyer involved, and then you wait
for the judge they issue the warrant, and then the
judge issues the warrant. So all of this takes time,
and it's time that ICE doesn't want to be spending
when it can just write up an administrative warrant on
their work processing documents.
Speaker 4 (22:58):
Lee on one more question about agents. Attire Mayor Karen
Bess is one of many who've complained about ICE agents
being masked when they're making these arrests.
Speaker 5 (23:08):
The agents wear masks because they don't want people coming
to their homes. Now, in this social media era, you
could say, oh, that's Ice agent Fred Smith who lives
on one one one Smith Lane, and so go to
their house and yell at them. Whether you agree with
Immigration enforcement or not, the people at I don't deserve
to have their houses raided by angry people at the community.
(23:30):
I think most people agree there has to be some
identification that's done and shown that says I'm an ICE agent.
So maybe the person wears a mask, but during the
immediate apprehension says here's my badge and I'm an ICE agent.
But I think the current way where someone just is
completely unidentified, wearing a mask and putting someone in a van,
(23:53):
I think if that continues, you will see courts getting involved,
and I think you'll even see Congress getting involved, because
those are not the kind of images that one typically
associate with normal law enforcement.
Speaker 4 (24:06):
Thanks Leon, as always, that's Leon Fresco of Holland and Knight.
The Trump administration has been mounting an unprecedented campaign to
reign in independent agencies and increase executive authority. To that end,
President Trump has fired more than a dozen leaders of
independent agencies without cause. What stands out in the long
(24:30):
list is Trump firing the two Democratic members of the
Federal Trade Commission. Rebecca Kelly Slaughter is fighting her dismissal
in court, arguing that it was illegal.
Speaker 6 (24:41):
Only one time in history has a president attempted to
remove an FTC commissioner over a policy disagreement. It was
ninety years ago President Roosevelt tried to remove Commissioner Humphrey,
and in the face of the clear language of the statute,
the Supreme Court said that was illegal. The statute is
constitutional and that FTC commissioners and other commissioners of multi member,
(25:05):
bipartisan agencies cannot be simply removed because the president doesn't
agree with them.
Speaker 4 (25:10):
But the Justice Department has said it's going to ask
the Supreme Court to reverse that ninety year old president
called Humphrey's executor. Legal experts say they'll be broad ramifications
if the president can fire FTC commissioners at will and
the agency is no longer independent. My guest is William Kavasik,
(25:31):
former FDC chair and a professor at the George Mason
University School of Law Bill tell us about the president
firing Slaughter.
Speaker 1 (25:40):
Yeah, the President decided that he has the authority to
simply fire members of the FTC without any cause, and
this contradicts a nineteen thirty five Supreme Court decision called
Humphrey's Executor that said that FTC commissioners can be removed
only for good cause. The President clearly wanted to remove
(26:02):
the two Democrats from the FTC, Rebecca Kelly Slaughter and
Alvaro Beadoya, and he simply dismissed them. So he decided
not just for the FTC, but I think as part
of a program for government generally, decided to assert executive
authority to control more directly who can serve on these
regulatory agencies.
Speaker 4 (26:21):
Slaughter won her first battle in court. A federal judge
reinstated her last month, although that reinstatement has been put
on hold pending an appeals court decision explain the judge's
reasons for reinstating her now.
Speaker 1 (26:35):
She concluded that the president's authority is defined by the
nineteen thirty five Supreme Court decision, and the nineteen thirty
five Supreme Court decision said that the president can remove
federal Trade commissioners only for good cost, that the limitation
on removal was established in the FTC Statute adopted in
(26:56):
nineteen fourteen, and that the Supreme Court's interpretation of that
statute limited the circumstances in which the President could remove
FPC commissioners. Judge Ali Khan and the District Court opinion
concluded that those authorities are controlling, that the statute itself
makes clear the conditions enrich removal can take place, and
(27:17):
the Supreme Court upheld the limitation on executive power. She said,
the President contradicted that approach, and until the Supreme Court
says otherwise about it's nineteen thirty five decision, that decision
is binding on me and commissioners, Slaughter is entitled to
be reinstated.
Speaker 4 (27:37):
It seems like Humphrey's executor is in jeopardy at the
Supreme Court. In July, the Court allowed the Trump administration
to remove three democratic members of the Consumer Product's Safety
Commission that were fired by Trump and then reinstated by
a federal judge. And in May, the Court rule that
the democratic members of the NLRB and Merit Systems Protection
(27:59):
Board could return to their jobs because the government was
likely to be able to show that the agencies exercised
considerable independent power. So does it seem like the Supreme
Court is ready to overturn Humphrey's executor.
Speaker 1 (28:14):
As you say, June, the Court's given a number of
hints that it is ready to revisit Humphrey's Executor and
to overturn it. The Court has cautioned that every turn
in the road, that we're not making a final decision
on the merit, that that fuller evaluation of the merit
of Humphrey and its vitality today remains to take place.
(28:34):
So they've said we're not deciding now, But the way
in which they've written the decisions that you referred to,
even these preliminary rulings where they're not offering a final
view about the legitimacy of the challenges at issue, have
given hints that at least three members of the Court
think that Humphreys must be overturned. Maybe two more members
(28:55):
of the Court are wavering in their support of Humphreys.
I suppose if you were making a wager now about
whether Humphreys will live through the end of twenty twenty six,
I suppose the way to bet would be to say
no that it won't. I don't think the possibilities for
Humphrey's executors to survive have been extinguished. There's still possibilities
(29:15):
that the Court might reflect on the basis for the
creation of the limit on removal, might think more completely
about existing controls that the President already has over administrative
agency discretion, to realize that the choice here is not
between having no control and absolute control over appointments and removal.
The president already has a number of tools at the
(29:37):
president's disposal to influence the way in which the Federal
Trade Commission and similar agencies operate. The real issue here
is whether that control must be absolute, and the Court
might reflect on that in a more elaborate way and
come to a different conclusion. But that's a long way
of saying that Humphrey's Executor appears to be in peril,
and that when the Court does come at some point,
(29:59):
perhaps in twenty six, to confront the continuing vitality of
Humphrey's executive, it will probably say that we've decided to
change our minds.
Speaker 4 (30:08):
Let's talk about what would happen the changes if the
FDC loses the independence it now has. It's been said
that one casualty would be the in house adjudication system.
Speaker 1 (30:21):
I think that's right, Jo, and I think the administrative
in house adjudication system ultimately topples For this reason. I
think crucial to the legitimacy of any judicial dispute resolution
tribunal is some degree of autonomy. This is where the
autonomy is most important for legitimacy. Once it becomes apparent
that the president can simply fire Federal Trade commissioners because
(30:44):
he doesn't like their work, doesn't like their philosophy, I
think that system unravels. You can't have courts where the
judges are aware that a decision or a specific approach
taken in a given case could cause their dismissal, and
the TC commissioners serve as adjudicators when the FTC uses
(31:05):
that internal mechanism. So I think a domino that falls
if Humphrey's executor is overturned is the perceived legitimacy and
functioning of the administrative adjudication system that disappears.
Speaker 4 (31:18):
And even now we're seeing motions to dismiss FTC cases
eleging that the FTC structure is unconstitutional because of this
weight over Humphreys.
Speaker 1 (31:31):
I think the deeper threat to the FTC's effectiveness is
that when it goes to court, it has always had
the capacity to tell the court the positions we are
taking are the result of our best professional judgment, and
as an expert body, we are asking for respect for
our judgments because they're based on our accumulated experience, our
(31:52):
research in the field of competition and consumer protection, and
the expertise that individual members of the Commission bring to
the analysis of specific cases. When you put all of
those together, you have a key element of professional judgment
that might not be always correct, but it deserves respect
(32:12):
because it is more likely to be correct than the
judgment of individual federal judges, the parties, and the cases.
That is that that judgment is worthy of respect. It
doesn't mean that the FDC is always going to prevail
in court. The moment that courts perceive that you are
using your authority not because of your best professional judgment,
(32:35):
but because you are simply an extension of the political
process and you are serving the specific interests or whims
and the chief executive, that element of professional judgment and
respect disappear. They're gone. So I think a consequence imphmphrase
dies is that the Commission loses the ability to stand
before the courts and say you can trust us. And
(32:57):
in so many ways, that's what government agency ask court
is trust us because we are the professionals. We're using
professional judgment, and that's why you can have confidence in
the judgments we're making. And I think it means that
simply stated, you have a harder time winning your cases
when you go to court.
Speaker 4 (33:16):
And build beyond that, Can you give us the broader
reasons why you think the FTC's independence is critical.
Speaker 1 (33:25):
The broader, high level reason is that the FDC exercise
is significant economic policy making functions and has broad regulatory responsibilities.
I think in any economy, and certainly in our market economy,
the business community, the citizens as a whole have to
have confidence that that authority is being used in a
(33:46):
principled way. And then when it's used, it reflects truly
the exercise of high quality professional judgment from an agency
that has special expertise, broad experience, and then when it's
making those judgments, it's making it on the basis of
sound policy analysis. That assumption and confidence vanishes if the
(34:06):
head of State can simply designate outcomes or point the
agency in a specific direction. I mean it's the same
concern we have about the Federal Reserve Board and monetary policy.
Notice how the markets lose their minds when it appears
as though the Fed might lose that insulation from direct
political influence over the monetary system. I can't quite assert
(34:27):
that the FTC occupies the same position in the minds
of business leaders and others about its role in the economy,
but I think it is nonetheless an important pillar of
the regulatory mechanism in the US. If you take away
some measure of autonomy, especially in the decision to prosecute,
(34:48):
the decision to impose sanctions, the decision to do things
that in a broad sense hurt, you take away that
presumption of good professional judgment and autonomy with respect to
those functions, I think it undermines confidence in the regulatory
process itself, and at a higher level, for our entire
political economy and our stature in the world. For the
(35:09):
last thirty plus years, we have been telling the world
that these key economic regulatory functions must have some element
of protection with respect to these fundamental decisions about prosecuting cases,
initiating rules, that there has to be an accountability regime.
But you can't have political leadership telling the agency to
(35:29):
punish enemies, reward friends, and otherwise simply be party to
a negotiation between top political leadership and individual business interests.
So once you do that, confidence in the entire system
of government tends to erode. And if the hunphrees executive
protections against removal except for good cause disappear, that's a
(35:50):
step in the direction of diminishing that confidence and legitimacy
for the regulatory process.
Speaker 4 (35:55):
So right now, Slaughter's case is before the US Court
of Appeals for the DC Circuit on the Trump administration's appeal,
So we'll have to see if the Circuit ends up
affirming Judge Ali Kahan's decision or not. So it's a
pleasure to have you on Bill, Thanks so much, and
that's it for this edition of The Bloomberg Law Show.
(36:15):
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 into The Bloomberg Law Show every
weeknight at ten pm Wall Street time. I'm Junie Grosso
and you're listening to Bloomberg
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