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tv   Federalist Society Discussion on New 2019 Supreme Court Term  CSPAN  October 2, 2019 12:30pm-2:02pm EDT

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anymore. >> we couldn't get to all the cases, catherine glenn foster, american for life ceo and president. the court's document already includes major cases involving criminal law, sex discrimination, copyright, daca and immigration, federal indian law and matters of constitutional structure. federalist society panelists discuss cases and the impact of the current justices on the court. >> hello.
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my name is robert barnes. i cover the supreme court for "the washington post." thanks for coming on this crisp, fall day to hear about the supreme court. i'd like to thank the federalist society, particularly the facility division and practice groups for putting together what we think will be an interesting panel on what looks to be a very interesting term at the supreme court. after the trauma of last year's confirmation hearings, there's been a thought from those who watched the court that it went out of its way not to look partisan last term, to look for ways to bust up the ideological divide on the court in some cases and to slow walk some controversies to keep them off that year's docket. it's been well-documented that each of the conservative justices at least once joined the four liberals to make up a
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majority in a case. and it went the other way, too. each of the liberals at least once abandoned his or her usual voting partners and joined the conservatives in a case. harmony could be harder to find this year. here's a look at the docket so far. whether gay or transgender workers are protected under title 7 of the civil rights act of 1974, whether the trump administration acted legally in moving to end the daca program initiated by president obama, the court's first second amendment case in a decade, the president's power over appointments, a case about a montana tax credit program that was shut down rather than be extended to cover religious schools, an abortion case that's almost sure to be added. there's a chance obamacare might
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return. you heard the justice might need to moonlight and cover an impeachment trial. we will be locked in on john roberts, once again, the first chief justice in decades who is also the median justice on the court. we saw how he operated a little bit last term in the two most important cases he -- we saw how he used his power. he sided with fellow conservatives to say the federal courts have no role in placing electoral maps for excessive partisan gerrymandering and then he stopped wilbur ross' plan to add a citizenship question to the 2020 census saying the reasons he gave were not believable. we'll try to explore all of this with the distinguished panel of experts we have up here and we'll take your questions as
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well. so, be thinking. i'm going to give short introduction to them, so as not to use up much of our time. if you want to know more, as i heard chief -- as i heard justice clarence thomas once say say to a house panel about a question he didn't particularly want to answer, google it. so, robert cottrol, is the harold paul research green professor of law and professor of history and sociology at the george washington university. as well as specializing in american legal history. professor cottrol has taught torts and criminal law. he's an expert on the second amendment, as you will shortly hear. josh blackman is associate professor of law at south texas college of law in houston. he specializes in constitutional law, the supreme court and the intersections of law and technology. josh is the author of three
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books, unprecedented, the constitutional challenge to obamacare, unraveled obamacare, and i forget the name of the other one. he also writes @joshblackman.com and usually writes more about the court than those who are paid to write about it to make our living. carrie severino and co-author with molly hemingway of the best-selling book -- >> i didn't bring a copy. >> oh, my gosh. okay. i'll say it. >> i didn't know it was product placement day. >> i'll say it. jt justice on trial claish the kavanaugh confirmation and the future of the supreme court." she clerked at the supreme court for justice thomas. megan brown is a partner at wiley rhine. she represents companies and associates including the u.s.
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chamber on preemption and first amendment constitution. and amy howe is the co-founder of scotus blog, that indispensable website for all of us who care about the court. she's a reporter for her own blog, amyhowe.com and scotus blog. she's the only person i know of in the supreme court press room who has argued two cases there. so, as you can see, we have a real panel of experts. they're going to break down some of the issues that are before the court and we're going to start with bob, who will talk to us about the second amendment case. >> yes, the court has before it what is actually the first meaningful second amendment case that it's been asked to consider
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since mcdonald, which incorporated the right to bear arms against the state. the court did consider in 2016 -- briefly considered by a procure yum vote reversed the massachusetts supreme judicial court in the case of qitano which dealt with whether or not stun guns, electric guns might be protected under the second amendment. the case the court is looking at right now is new york state rifle and pistol association versus city of new york. and there are several important issues here. one, the court in heller and mcdonald did not set a standard of review for second amendment cases. it simply pronounced the fact the second amendment was an individual right and in mcdonald that it applied to the states through the 14th amendment.
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since then i think many observers have looked at what has happened in the lower federal courts and how they have applied heller and mcdonald and felt the lower federal courts have basically been using a rational bases lens in terms of judging second amendment cases. even though they've been calling it intermediate scrutiny. there are four justices, i believe, justice thomas, alito, and kavanaugh from their writings in the court and lower courts seem to favor a fairly strong reading of the second amendment and one might add roberts to that list as well.
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let me just give a little backgrou background. new york state has a highly restrictive pistol licensing scheme. first of all, new york city has two types of licenses. one is a carry per met, permit to carry a firearm, a pistol for self-defense. these are highly restrictive and basically one can only get them if one has large sums of money or if one is rich and famous. donald trump as a citizen in new york had a carry permit as do a lot of other notables in the city, but ordinary citizens, aside from people who are professional security guards, find it impossible to get such. the other is a premises permit. the city has a very high clause to allow you to own a pistol for
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protection in your own home. the fees run something around on the order of about $700. usually it takes several months' wait before one is approved. at the end of the day, a citizen can, in fact, get a premises permit, although every effort is made to discourage that. the nub of this case is traditionally or previously new york city prohibited people who had pistol permits, that is, the premises permit, even though they had gone through a long screening process of taking their permitted pistols outside of the city either for practice on ranges outside the city or for defense in second homes they might have. a suit was brought under the second amendment on the theory
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that this was, in fact, a violation of the second amendment as outlined in heller and mcdonald. it was brought before the federal district court for the southern district of new york, which sustained the ordinance and the second circuit as well. the second circuit's reasoning seemed to indicate that almost any claim on the part of the government as to an interest would be sufficient to cause the city to, in fact, sustain -- or, rather, the court to sustain such an ordinance. for example, even though we're talking about people who, again, were high ly screened and screened over a long period of time, the city asserted its interest very much in the way of evidence, well, perhaps they might misuse their guns on the way to their second home or range outside the city. or they might get into a road
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range situation and bring out their guns. well, they're not doing it within the subcommittee, why are they going to be particularly worse once they get outside? though, having driven in new york, that's not totally beyond the realm of possibility. in any event, the second circuit upheld the ordinance and the supreme court granted cert on this case on january 22nd of this year, 2019. what the other interesting issue, though, that this case is raising is that new york city and new york state have made strenuous efforts, in fact, to moot this case because they don't want it to get to the court, fearing what, in fact, the court might do. so, new york city altered its ruling, changed its ruling with
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respect to taking one's permitted pistols out of town and new york state legislator basically rad fied that and set it in concrete by saying the city could not go back on that. one of the questions asdz from the second amendment question this raises are the issues now moot and is there still something for the court to consider? those who want the case to go forward argue they are reversible at some subsequent point and also that the second circuit opinion is still the law of the second circuit and need to be addressed by the supreme court as to whether or not it's consistent with heller and mcdonald. but there is still the question
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of is there now a case in controversy as new york city residents with pistol permits can travel outside of town. this is an interesting case that has attracted amicus briefs by some 45 different parties on -- obviously on all sides of the gun control issue. the solicitor general has filed a brief in support of the petitioners, that is new york state rifle and pistol association, a number of briefs have been filed arguing this is now moot. there was the brief of senators sheldon whitehouse, marie hironon, richard blumenthal, and kristin gillen brand ibrand arg
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for -- not in a persuasive kind of way. basically telling the court, if you don't rule our way, we're coming after you. that may cause, who knows, even maybe the notorious rbg will look at that and say, you don't threaten my court. in any event, yesterday the court had a session in chambers to resolve the mootness issue and they have not publicly announced their ruling on that, though presumably we'll get a decision on friday. if this case is considered to be moot, and my prediction is that the court will not take that view, but if they do, the next likely second amendment case to come before the case is george young versus state of hawaii. the state of hawaii has a prohibition on the carrying of
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pistols outside of the home and does not grant permits for carrying for self-defense. the district court sustained this law against a second amendment challenge, but the ninth circuit in a three-judge panel reversed basically saying the second amendment does, in fact, encompass the right to carry as well as the right to possess. the ninth circuit was looking at that and going to do an enbank review of the panel determination but they have suspended that, first to see what, indeed, happens in new york state rifle and pistol association, which may address the question of what extent does the second amendment extend beyond the home.
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so, that's sort of where we are at this point. >> thank you very much. "wall street journal" editorial board memorably called senator whitehouse's brief an enemy of the court brief. and then the republican senators weighed in with a letter saying, don't pay attention to them. so, this is really, you know, john roberts' favorite thing, is to have democrats and republicans arguing about the court. >> when does robert add the stripes to his sleeve? when does that happen? >> we'll get to that, josh. josh blackman is going to take us through a couple of cases. >> thank you so much. it's a pleasure to be here and to bob and bob and all my friends on this panel. i have two case says, second daca, first ramos versus louisiana. the first case presents the question of whether the sixth amendment requires unanimous jury to convict. louisiana and oregon have a
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different law. for certain types of cases, you can convict with ten members, that is two vote to acquit. louisiana has subsequently appealed this law. this case only rovlz retro active cases. this focuses on an issue of incorporation. the first eight amendments restricted federal power. after the 14th amendment that calculus changed. the supreme court said certain rights are so-called fundamental rights. and as fundamental rights, the states cannot deprive people of those rights, such would be a violation of the due process clause. virtually the entirety of the bill of rights has been incorporated, the second amendment was only incorporated about a decade ago in mcdonald v. chicago. a few outliers is the right to unanimous jury verdict. you might say, wait a minute, i
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have my constitution, the sikd amendment says you have the right to a speedy trial, impartial jury, the trial must be in the place where the crime was committed. it says something about a unanimous jury verdict. you're right. this is what makes this case a little more difficult. last term we had a case calls timms versus indiana which asked if the excessive fines clause incorporated, all the justices agreed. they disagreed on, perhaps, the rationale. the majority preferred due process but they all agree on the same front. this case is different. because there is no express enumerated right to a unanimous jury verdict, i think there will be incorporation for sure but i think perhaps justices thomas, maybe gorsuch will agree with enumerated rights and due process. i ask you to read a brief -- i
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say it with all the love -- he basically wrote the brief for the attorney jem general of louisiana. it shifted my thinking on it. it's a tough case,incorporation and thames and the second is the deferred policy known as daca. in 2012 after congress said no to the dream act, president obama said, yes, i k. and he listened to daca and this is a policy that i agreed with who wholeheartedly had congress enacted. it is going like this. minors brought here under no will of their own, it said we will not prioritize you for removal and give you lawful presence. what is lawful presence? it is a status that is not sit zensh -- citizenship or amnesty, but
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you will get a social security number to work and federal benefits, and this policy has been in effect for the entire obama administration, but after president trump came to office, he decided to repeal the policy and in large part because texas planned to sue him, and he decided to repeal the policy. so that is relevant later, but you would think that one policy that the president changes due to executive action would be appeal, but no. district courts held that president trump could not rescind daca and the rationale is important, because they did not say that daca must be remaining in stone and chiseled in stone like the ten commandments, but even those were smashed. so instead, they said that the rational is arbitrary and capricious, and they said that president trump's animus towards hispanics contempts the decision, and also violates the protection component of the
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fifth amendment. all of the lower courts except for one ruled against the trump administration, and the supreme court granted review. generally when the supreme court grants reverse, it is to grant reverse so the good money is that trump wins this one, and i don't know how he wins this, and the how is more important than the what. perhaps the court holds that this policy, and sorry that the rescission is not like review or some jurisdictional ground, but that is going to allow trump to do what he wants to do, but not weigh in on the components, and why is that important, because elizabeth warren or whoever may decide to reenact daca, and so i am hoping that the court will decide if this is legal and john roberts disappoints me every year, but we will give them three stripes and that is all i have. and we have other cases. >> you will be surprised to
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learn that women on this panel volunteered to do more case thas than the men, and so we will not take up anymore of their time. go ahead, carrie. >> i will look at the phrase that contained "entitled to sex" and other cases. so the title vii is going to be one of the hot topics that the court is going to cover, and test of how well we can separate the incredibly significant and social stakes of these issues, and it is basically going to have to do with whether title vii applies to sexual orientation, and transgender status, and trying to figure out how the separate the court's decision of whether that is in the statute in the 1964 title civil rights act versus the very hot and current issue of should this be something that is
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protected by law. and the court, of course, it is attempting to look at what the law is covering right now, and it is interesting that this is as well as one of the criminal cases looked at provided great example of where this court has come and embodying in some ways what justice kagan said in the hearing, we are all originalists now, and on these topics once upon a time in the one case with the death penalty or the insanity defense rather, we will see in the other case that with these issues of a major social import, you may have seen more of the arguments focused on if this is a good thing, and is this the just result and how does this impact society, and some of that certainly lurk hg in all of the arguments, and in particular of this case, you can see that woet sides are fighting for the correct originalist, and the contextualist statutes. and this is something that is significant and has to do with
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the current makeup of the court and seeing the ascendency of the textualists and the original approach, and this is the influence of the groups like the federalist society, and making these philosophies more well known, and it is really having a lot to do with this. and so quickly, there are three cases, but they are combined into two groups in the title vii, and the first group is sexual orientation, and two cases argued together. right off on the 7th, and one has to do with gerald volstock who was a child services coordinator in clayton county, georgia, and there are disputes of whether it had to do with the audit or joined a gay softball league and came out as gay or was more salient, and the question is whether he can bring this claim under title vii. and similarly a man who was a
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skydiving instructor and as part of his duties and oftentimes if it were a woman he would try to reassure them that it is not anything sexual by telling them, don't worry, i am gay, and someone filed the complaint and i don't know whether he is or not, but he touched me inappropriately and fired. and so the set aside of the real motivation in this case, but the question is if he can bring this claim. he has passed away in a skydiving accident, but his estate continues it. and so this is looking for a precedent like every other circuit said in 2017 the words because of sex don't include orientation. and in the 2nd circuit zarda lost en in bonc and there is a e
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on the side of the employers that the united states has filed an amicus saying that we are also employers and we have to follow and interpret title vii and they have an interest in it, and the solicitor is known as the 10th justice as the voice is weighing heavily, and the real question that is going to be coming here is how do you, and what is the right question as to what because sex means in the thing, and you can have no discrimination because of sex and what is the right comparison because of what sex is, and you will have one side saying, well, look, if a man were interested in a woman that would be, that would not trigger dismissal in this case, and if a man were interested in a man, it does, and this is the difference because of the sex. on the other side, you will have the employers in the united
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states arguing that the real distinction is that if you have a homosexual man and woman, they will be treated the same, and heterosexual man and woman, they are treated the same and the real thing doing the work there is not whether it is a man or woman, but the homosexual and heterosexual status there, and so which one of those is the correct question is to be asking is where all of this turns on. there is a lot of arguments of whether it is inherently because of to sex involves sexual orientation, and there is the people, and some arguments are being made that, look, you have to talk about and ask of the notion of se x to get to the orientation, and this is going to sweep in everything there. ultimately, that is something that the justices finds goes a step too far, because there is another issue that kind of looms in this case and the next one which is the idea of certain types of sex discrimination or distinctions made on the sex that are permitted and the
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supreme court itself has deemed necessary in law as allowing for same sex or separate sex bathrooms and allowing for different dress codes and fitness tests. and so in the virginia military institute, justice ginsbeurg sad if you open up a door to women, you will have to build more facilities, and so if the interpretation is too broad, it says anything that touches on sex is then sexual discrimination, and it is risking sweeping in a lot of things that the court is not going to want to bring into that. there's this attention on both parties of the idea that congress does not hide elephants in mouse holes. they said because of sex and everyone is agreeing that the intent of time was not to add sexual orientation or transgender status to the rule
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or the law. however, there is not real text questions here. they don't hide elephants in mouse hole, and there is case that justice scalia had with ahn and colley saying that this is not about sex, but even though it is on their minds, and that is not about sex even if that is what was contemplate and the statutory prohibitions go beyond the present evil to account for other evils and it is the legislators for which we are governed and so on one side you have yes, this is covering the evils and on the other side, people are saying that either way on colley, it says whether members of one sex are exposed to disadvantages than the others and it does not go beyond that. is that beyond the context or
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hiding a elephant in a mouse hole? a lot of questions there. and there is the sex stereotyping in the case of price waterhouse is bringing in the stereotyping because of the sex category, and that going the boil down to the initial category of what sex means, because of what price water house says is that it is useful to find out if there is discrimination based on sex and the united states is strongly arguing it is not a stand alone thing, and so that is going to be a question of whether the court wants to make sex stereotyping a stand alone type of somehow discrimination based on sex or whether they want to say that it boils down to what is sex in the first place. it is interesting, because there is no legislative history and statutory history, and subsequent history that both sides say means different thing, and so it is interesting to
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watch everything from watching in 1976, and the court said that pregnancy discrimination was not because of sex and so they were not going with the anything that has to do withis sex is becausf sex and now the definition including preg nnancy and not limited to, and this is adding in there. and repeated bills attempting every year since 1975 in the case of sexual orientation, and since 2007 in the case of transgenderism, and to add it to the list of things that protected the classes and the fact that those have not passed, does it suggest that congress knows how to change it and doesn't or does it suggest that they believe it is already covered and both sides make arguments about that, and the civil rights act of 1991 was passed after several circuits said that sexual orientation or transgendered status is not included and they are ratifying the information and that is
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passed after these suggested readings of broader sex and some of the parties like pricewaterhouse or collie were before this, and they say this is a broader understanding of what sex is and government and the employers on the other hand say they did not change the language and they could have added other including transgender even though it was not as often discussed at this time. those are issues going back and forth and i will be running low in time, and i did not discuss the facts of the harris funeral home which is the transgendered facts, and there are some distinctions in the sexual orientation cases, and loving versus virginia that get carried out, because it is an argument of this is just a matter of
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associational harm in relation to the misogynistic laws, and so they are boiling it down that sex is different, and race. you not have single-race bathrooms, but you can have single sex bathrooms, and you can't have the same discriminations of race and sex. so the other interesting parallel that is happening in the transgender case is the parallel to religious conversion of could you then analogize this to discrimination on the basis of the religious conversion. they say it is another wrinkle, and otherwise the arguments are similar. to quickly run through the others, because i know that i am short on time. the color versus kansas is the 8th amendment case about the insanity defense, which is interesting, because you have both sides here, even though the 8th amendment is traditionally an area to bring in involving standards of decency and they are talking about on both sides
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what is the original understanding. kansas has modified tin sanity defense to say you don't have to be just unaware of, you are not insane because you don't know the significance of what you aring to is morally wrong, but you are insane if you are killing someone in the first place. and the caller says that violates my right to due process, and under the founding they said that punishing people who were insane would be cruel and and so kansas is making the case of saying, this is the 19th century versus the 18th century, and so that is interesting, because they are all trying to get at the same thing. the final one is quickly, because i think that it is a case that especially for those of us in d.c. probably hit home a little, and that is having to do with the d.c. sniper who is one of the snipers who is an adult at the time, and has been
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executed for his crimes, and malveaux was the boy who was 17 at the time, and obviously now not a boy anymore, but who received life without parole, and initially when he received it, there is a question of whether it is a mandatory or the discretionary life without paro parole, and the supreme court has said if it is mandatory without parole, it is unconstitutional, and a later case said that is retroactive. so there is a question first whether this is mandatory or discretiona discretionary, and the subsequent case about it being retroactive is unclear whether it is important, the discretionary or the mandatory nature of it, and it is an opportunity for the court to clarify it. it is a finite and in the weeds question, but i think that it might gain some attention just because of the salience of the d.c. sniper. >> great. thanks so much. i was asked to bat some cleanup on the business cases. and from my perspective, the interesting business cases tend
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to be less about the party suing party b over intellectual property, and with respect to my friends in the audience on that area, my apologies and they are important on the docket, but for me, the supreme court cases of the rights of the businesses versus the government's or how business interacts with the government. there are a few of the cases that are chugging their way to the court. there is several sort of pending and percolating that we can talk about later, but the first one that we also agreed as a group needed to be discussed even though facially it might seem terribly boring to some people, but once you dig into it, it is not. it is the puerto rico management and oversight cases which are fascinating to be argued october 15th, and 80 minutes divided up among different folk, because several issues in play arising out of what congress and president obama did during the
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financial crisis that plagued puerto rico several years ago. in terms of the background, puerto rico ran into the economic calamity, and they could not use or take advantage of the normal tools that in a organization would have once it runs out of money, and so congress passed the puerto rico oversight management and stability act which created a board that basically acted as a manager of the puerto rico's budget and debts and modified plans. i won't get into the gory detail, but it set up a debt restructuring model that was modeled after the bankruptcy code of the united states. interesting that board was the only area of authority of what would happen with the debts that puerto rico had taken on. so you can see where this is going depending upon how the board decided to exercise the
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powers. appointments were made without senate confirmation, and so when the board started to undertake the business of restructuring the debt funds hedge funds and including an employee's union challenged and said that the appointments are unkons toou unconstitutionali division of powers and did not go through appointment. so in a direction that is going to be important to the government's briefing here, they said that the government oversight board is territorial, and no appointment, and doctrine is not important here, and it is fine. fast forward to 1st circuit, and there are four consolidated c e cases chugging along and brand-named lawyers there. and they disagreed and said that the methods were unconstitutional thangand so th
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the first bucket of issues how does a territory like puerto rico and how would those powers pertain to puerto rico? and that is the first issue of the brief. interesting the aclu is very exercised about that particular issue, and filed what i found to be interesting brief arguing for the overruling of the insular cases that are arising out of historical and differential racially treated territories of the united states. putting that aside, interesting. it is what the 1st circuit did next where most of the amici are most interested and where the vendors are looking to exercise the separation of powers by preventing the government of taking action against corporations and businesses. the next circuit next said that to validate the board's past
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actions and even though it is unconstitutional and they relied on the defactor doctrine and which in the chamber's brief is tealing with ministerial and technical problems that might happen, but boiling it down, if you skrcrew up an appointment f somebody who is making decisions, you have messed up the reliance of the parties and you can't unravel it, because of a technical problems and the officer's problems perhaps, so what they did is to apply the de facto to the question of the constitutionality of the board and all of the appointments were unconstitutional and that is what has a lot of the amici exercised, because from their perspective, it is setting up a win in the 1st circuit saying this is unconstitutional and this is terrible, but we won't un-do it, so thank you for bringing this separation of powers case and the money will stay with who the board gave it to and have a nice day. so the amici are in there
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focusing less on the appointments clause and they won't take the appointments clause in puerto rico and they focused on the de facto officer doctrine rg, and they said that it is expanded from the 1st circuit, and procedure nuggets going on here. there was notification that president trump has proposed to nominate new board members and they are going to go through the senate confirmation process, and so this can feel like a very academic case. for those of you super into the knoll canning and these other huge separation of powers case, they are important and come along every few year, but they can sometimes feel like they lack the real nuts and bolts. what i liked about a lot of the amicus briefs in the case is that they explain why business groups and others would not bring the separation of power cases if they cannot get meaningful relief. those were interesting briefs to parse through, and it is going
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to be argued on the 15th. it has a lot of folks going to argue, and i'm interested to see how much the court wants to focus on the appointments stuff versus the de facto officer stuff, and if the court is going to be skeptical of what the first circuit did here on the backside, because i feel like in the last couple of terms they have been skeptical of a lot of the agency action and much more willing to put the government to the paces on the respecting separation of powers and checking the boxes. that said, there is, you know, a very practical reality that some of the cases feel like the winstar case where the financial stakes are high, and you don't want to unravel a lot. so it is going to be interesting to see how the justices approach this. that is the tutorial on one of the very important but maybe less sexy cases compared to some of the cases that my co-panelists have talked about. the one that i would like before
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we jump into the discussion, and i'm okay on the time, but it is a case, and i know that bob wanted us to focus on the actual grants that are pending, but there is one where the briefing is ongoing and because it is in the vein of sort of business interests as against the government, i wanted to flag as one that i think that the court is likely the take up and personally i hope they take it up, and full disclosure we filed a brief for the chamber and it is americans for prosperity versus becerra and it is an interesting case about freedom of association for charities and the charities that engage in public policy advocacies, and near and dear to the business associations in the room and play at court quite a bit, i find the case interesting, because it is in the broader context of the government, certain government enforcement agencies getting creative in how they seek to interact charitably put with businesses to extract information from them to understand what they are doing. we saw it in the attorney
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general's actions against the oil and gas industry, and through the discovery based on the rico theories. these are not the traditional direct regulations. and there is a sort of end run around there, and the state of california has disclosure obligations for the charities. they have started to demanding information from these charities, including the americans for prosperity, and they want all of the donors and what i consider to be inveiasiv information for them, and david from queens emanuel did a nice job in the briefing about the screwups that california has done extracting information from other charities and raising the point that we don't want to hand this over, and we have a freedom of association in this country, and what the government is doing here is going to chill the ability to interact. that has tortured procedural back and forth and keep in mind the earlier cases where you are trying to resist the discovery
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to have a chilling effect and the association affiliation, and the legal question is whether the lesser scrutiny applicable in the electoral context and require the disclosure all of the time will require the funding. and the interesting thing for me is justice scalia in a case several years ago is the washington state case, and it is reid versus doe or dover se ver reed, and so it is complicated and it is coming with the territory, because this set of the disclosure obligations are outside of the electoral context, and so i think that it is going to be interesting how this new-ish court approaches the questions of the fundamental freedom of oassociation. and to me, the effective of the chilling effect of the political discourse and these associatal rights and express activities that folks are engaged in that
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certain government entities are quite actively looking to chill with deliberate, and thoughtful regulations that are designed to get around the normal first amendment kinds of limitations. with that, i want the pause, so you can hear from amy and we can talk about whatever you want to talk about. >> and molly, what stage is that in? >> in the becerra case, the brief is filed and ongoing and we have filed the amicus briefing and i am curious of other people, because i believe a good chance of a grant. >> okay. amy. >> okay. thank you. i am covering the puerto rico case and i have to write my preview next week, and so this is really helpful. i am the residual clause of the program. i have three cases to cover, and i don't think that there is any sort of the theme here, but if you can discern one, if you could let us know in the q&a, please. and the first casely cover is the espinoza versus the montana
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department of revenue involving the thorny issue of government money for religious institutions. in 2015, the montana legislature enacted a program that created a dollar for dollar tax credit that would, and could go, and the tax credit could go to create scholarship program, and the scholarship programs could then give scholarships to private schools up to $150 in tax credits. the kicker is that in montana most schools are independent. and so there was an effort from the governor that was vetoed and he realized that if he vetoed this one, it would bring out a referendum that would bring out the republican votes at the same time he was looking for
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re-election and so he allowed this to go. one fund that was provided is big sky scholarship which provided scholarships to about 40 families. shortly after the program was enacted the montana department of revenue created a rule saying that the scholarship money could not be used to go to religious school, and the montana constitution has a blaine amendment. it is named after the former u.s. senator from maine who in 1875 lead an unsuccessful effort to prohibit or create a federal constitutional amendment to deliver aid to religious schools, so he was not successful to get that amendment in, and the blaine amendment prevents aid to religious and church schools. so the people who had received the scholarships and some who wanted to receive the scholarships went to court, and
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they said that the montana department of revenue may say this program would violate the state constitution, but we believe it violates our rights under the federal constitution, and specifically the free exercise clause. the case went to montana supreme court which decided to strike down the entire program so that the families appealed to the u.s. supreme court which agreed to hear the case before the summer recess, and the case is not slated for oral argument, but it is going to be argued in january, and the justices as the case comes to the court, and the court is operating with the backdrop of two old cases. the first is a case "lock versus davies" back in 2004 and the supreme court upheld the constitutionality of a washington state scholarship that was a need-based program that provided scholarships that students could use at religious, and secular colleges, and the one exception is that it could not be used for students who
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were intended to major in programs that would prepare them for the ministry. and so a student who wanted to major in the devotional theology, and challenged the ban on the use of funds and went to the supreme court and by a request of chief justice rehnquist, the court said no doubt that the state could allow these funds to be used for programs that would prepare students for the ministry, and the question is whether or not it would violate the free exercise clause if the state said it cannot be used for these kinds of programs. the answer at that time, the supreme court said is no. and the state assembly has chosen not the fund religious instruction in the first place of 2004 and the next case is much more recent in 2017 in a case called trinity lutheran versus comber, and the supreme court of a vote of 7-2 agreed that missouri's policy of excluding churches from a
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progr program that provided grants for resurfacing playgrounds violated the clause. the vote was 7-2, and justices sew ta -- sew justice sew totom ginsburg did go against. and they said that other groups can be funded without violating the constitution, and by the way, the montana supreme court struck down the whole program, and so now nobody is getting the money anyway. so the question is as it is coming to the court sort of what is the supreme court going to do and navigate between these two cases. trinity lutheran appeared to be a sort of compromise minimalist
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decision, and justice gorsuch had just joined the court. last term in a case challenging the presence of a peace cross on public land outside of washington, d.c., was also 7-2 decision, and justice alito wrote in that case that taking the cross down would actually be an act of aggressive hostility towards religion, and like taking it down would not be neutral toward religion, but aggressively hostile towards religion. it is a different case, but it is telling you where the mindset of many of the justices is like to be going into this case. you know, you can see i think that there is a knit that there is a majority of the justices readily to read "lock versus davie" relatively narrowly and say that the states cannot fund religious training, but, it would violate the free exercise
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clause to go to limit state funding beyond that. i am going to be watching the dinic manies on the court in this case. and justices kagan and breyer joined the case in the trinity lutheran case and joined the bladensburg cross case, and it is harder to see where the compromise might be in this case, but particularly i think that we will talk about the dynamics of the court, and the likelihood that the chief justice may not have these 5-4 ideologically divided opinions, and this is one where he might see some room to do that. and the next case is a case of hernandez versus mesa, and if that name sounds familiar, it is because it is at the court a couple of years ago, and it is a lawsuit by a mexican family that is seeking to hold a u.s. border patrol agent responsible for tr
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shooting death of their 15-year-old son. their son was on the mexican side of the border when he was shot by the border patrol agent who was on the u.s. side of the border. the family's argument when they filed the lawsuit several years ago is that the border patrol agent had used excessive force in the violation of the 4th and 5th amendments of the constitution. they were trying to bring the claim under a 1971 case called " "bivens versus unnamed suit" which is a case of individuals violating the constitution, and it went forward with the u.s. appeals court of the 5th circuit upheld the dismissal and the supreme court heard the oral arguments in 2017 and then sent the case back for 5th circuit to look at the case again in light of the supreme court's decision of the same term, and another
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bivens' related case is another case by middle eastern men who had been detained by the government after september 11th, and trying to sue various government officials. in zieglar it said that bivens should not be viewed when there are other representations. and in that case, in the hernandez case, the first time it was at the court, the justice said that the family could not rely on bivens at all, and breyer was joined by justice ginsburg and they said that it could have come under the 4th amendment and brought it under bivens. but remand said that it does not apply under bivens and it is not clear if the constitution applies to a foreign citizen on foreign soil, and there are
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special factors counseling hesitation, and worried about the national security issues and interference with the foreign after face and diplomacy because of the sensitivity at the mexican border, and congress has not provide adage remedy, and a presumption that the u.s. law does not apply outside of the united states. so the hernandez family went back to the supreme court, and asked the justices to take up the case again, and last fall, just about this time last year, the supreme court asked the solicitor general to weigh in. the solicitor general filed a brief in the spring in this case, and another case involving a cross border shooting out of the 9th circuit. in that case the 9th circuit had allowed it to go forward saying that the bivens remedy should be available, and because they reached opposite conclusions the sewless torsade they grant review in the hernandez case, but the bivens' family is not
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available. so the family is back, and they say that this is a rogue government agency using rogue force, and despite what the circuit court says, there are not national security issues or foreign affairs issue, but if there are foreign affairs issues, they say it is because the mexican government filing a brief supporting the hernandez family is mad they don't have any kind of remedy. then they said finally unlike the zieglar case, we don't have any remedy. so the court has not extended the bivens remedy in nearly 40 years, and so if i were a betting person, which i am not, i would not bet on them extending it again in this case. the third case involves along the lines of what megan said the
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hurley burly of politic, and i didn't want to make light of anyone going to prison, because it is a serious thing, but this is one of the more fun high profile cases of the term involving bridgegate. it is a case of kelly versus united states, and corruption, and political misconduct may be distasteful to the justices, but does it crossover to become a federal crime. there is a line of cases in the supreme court resisting the efforts by the federal prosecutors to use the federal criminal statutes to punish the political misconduct, and this is likely to be another case in which the justices wind up pushing back. the george washington bridge as many of you are aware crosses the hudson river from fort lee, new jersey, into the upper part of manhattan, and the upper deck has 12 lane, and for rush hour, three of those have been blocked off for residents of fort lee, new jersey, so they can bridge
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over easily and get to manhattan to get to work. but in 2013 when chris christie was up for re-election, the mayor of fort lee, new jersey, did not want to endorse his bid, and so that led bridget kelly christi's chief of staff, and high authority port authority staffers to put together a plan to take the three traffic lanes and close them down to one lane to punish the mayor for his failure to enforce chris christie. they needed a cover story to do that, so they concocted a fictitious traffic study and gridlock ensued. they did it on the first day of school on 2013 without any head's up for anybody of the port authority and fort lee. stories of the children on school buses for hours and paramedics having to get tout
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walk to respond to somebody having a heart attack and cost the port authority $5,000, because they had to pay overtime for the toll collectors and the engineers who were conducting the phony traffic study. eventually the head of the port authority figured it out and they went back to the old system, and then the heads rolled. bridget kelly and david weinstein and others and chris christie who wanted to gather the presidential momentum to run for president, which he did not. and the government's theory is that they had deprived the port authority of property in the form of the extra salaries for the toll collectors and the engineers and the fraud came because they had lied about why they were conducting the traffic study. so kelly and barone's study is
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that the government is only relying on the theory, because it could not do it under the federal honest services statute, because the supreme court ruled in 2010 that you can only rely on the statute if there are bribes and kickbacks, and kelly and barone didn't get anything out of this other than the pleasure of knowing that i were getting retribution for the governor of fort lee. they say if you allow the government to define property for purposes of this fraud statute, this broadly, it is going to sweep in all kinds of political misconduct when somebody prioritizes one neighborhood over another for snowplowing, because they want to curry favor with that neighborhood, but they say they are plowing it first for safety purposes, that is, you know, when they send out an e-mail about it, and it can be swept in under the fraud statute or a secretary of commerce who lies
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about why they want to add a question to the census, that can be swept in under the federal fraud statute. this is going to be interesting to keep an eye on. >> if i were not a completely neutral observer, i would say, that, yes, screwing around with my commute is a crime, but i am, so i won't. and as megan talked about and most of you know the supreme court's docket is not set. when the term begins they continue to look at and accept cases for review generally through the the end of january. so we will talk quickly about two cases that might be there, and one that seems quite likely and involves a louisiana abortion law. last february the chief justice joined the court's liberals to stop, block a louisiana law passed in 2014 that requires doctors in abortion clinics to
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have admitting procedures in nearby hospitals that. may sound familiar to you, because the court in 2016 considered nearly identical texas law and struck it down. in that case, justice anthony kennedy joined the court's liberals in a 5-3 decision. that 2016 decision said that admitting requirements provides few if any health benefits for women, and provides a substantial obstacle for women seeking abortions, and constitutes an undue right for their right to do so. hospitalization is rare after an abortion, and the lack of admitting privileges by the doctor who performed the procedure is not a bar to the woman who needing medical help. but then the panel of the 5th
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circuit revisited the louisiana law and found factual distinctions of how the restriction played out in texas and louisiana. judge jerry smith said unlike in texas, the louisiana law does not impose a substantial burden on a large frac shtion of women and so it is unlikely that the court would issue a state on a law, and not accept the case. they considered it yesterday at their private conference, and we will likely hear something soon. it raises the question of whether the court is ready to revisit a fairly new precedent like the one in whole women's health or whether they will distinguish it in a way that is a restriction that is not allowed in one state is acceptable in another state. the court has a second case that has been around since last term. it has not acted on from indi a
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indiana. and it is combining a waiting period which is ruled okay with the requirement of an ultrasound which is ruled okay, but in sort of the separate instances. the change in the indiana law is that the waiting period follows the ultrasound, and that would mean basically a two-day process for women who wanted an abortion there and the u.s. court of appeals for the seventh circuit said it created a right to abortion without any discernible benefit. the court may take one of the cases or may take both of them and come to different decisions about abortion restrictions in those cases, and again, the balancing thakt we have sort of talked about and we should get word fairly soon if the court is going to take this up.
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josh is going to talk about whether or not we will see obama care return to the court. he has little bit of the vested interest, because he has third book for him possibly. >> trilology. >> and he is going to try to be dispassionate. >> i did not bring thek boos, but i will indulge. and the obamacare is the gift that keeps on giving. you reka ul in 2012 chief justice roberts narrowly upheld the aca and kept it dangling by a thread, and he said that because the law as read can be reading as a tax penalty, and we can read it as not a mandate, but a constitutional tax on the uninsured. so it is dangling by a thread. fast forward to 2017, and the congress cuts the jobs act, and that law reduces the penalty to zero dollars. at the time i said, huh, obamacare is unconstitutional
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and so did texas. texas filed a lawsuit saying that reducing the penalty to zero dollars kills the chief justice saving constluruction, d so as a result it is mandated as a tax, and unconstitutional, and the controversy what is going to happen with the rest of the law. i expected a decision from the 5th circuit next week which is going to give us a circuit decision by november give or take which means that the court could calendar it for march to make this term even more insane. if we have another obama case, and candidate is in the room, and so we don't know how this ends, but i may have another book in a month. >> so we will have more questions, and there is a microphone. if you have one in the middle of the room, and so, panelists, we
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have an incredible term that you have all laid out for us, and let's ask you a question that has nothing to do with it. and that is the what everyone is talking about right now is impeachment. i am wondering partly, because my editors are wondering, and considering this a reporting exercise. what exactly does an impeachment mean for the courts, and does it give a sense of the urgency to the cases in the lower courts right now, and also, how likely do you believe it is that the supreme court will have to weigh in at some point if the executive branch continues to ignore requests from the house or subpoenas from the house to provide information? i open it up to anyone. >> and one thing that we might get with the three stripes as josh was relating it, because that is when the chief justice added the three stripes.
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>> he does not seem like a three stripes guy to me. >> he took them off and he probably won't, but you can imagine that it is going to make chief justice roberts' life a little busy with two full-time jobs. >> and there is no task that the chief wants more than to have that thrust on him. >> and so he is going to have a motion to dismiss the charges immediately, and in the "post" it was said that if there is an impeachment in the house, then it is going to be mooed to the senate, and mitch mcconnell says dismiss the charges right away and voted on. harry byrd had a motion to dismiss the indictment of clinton at the time that the gop controlled the senate and turned down, so there is at least some precedent here, and so if the house votes to impeach, john roberts is going to have a first motion to dismiss the impeachment by sheer majority vote. >> on the 35,000 foot level, it raises the issues of the impeachment in the supreme court, and they have to rule. the fact that they would get involved would sort of give even
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further sort of the incentive at least to john roberts to the extent that we believe that we want to see the court being part san and tpar partisan and to avoid some of the 5-4 decisions in the high profile case, and whether he can do that or not, it is a entirely different matter. as everyone knows, he has one vote, and all of the other eight justices have strong minds of their own. >> we will go to roberts and then get to the question, because we spend a lot of time thinking about him and talking about him, and he does only have one vote, but it is an important one. it seems that he could use it to prevent the court from taking up the court cases, and one side or the other might want, because they don't know how he would vote or how he tells them how he would vote.
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how do you think that he is managing the role of trying to protect the institution, and yet, you know, carry out his job and rule on cases? >> i would say that the challenge is, you know, there is the notion of legitimacy and different concept of what makes the court legitimacy and the idea is the poll numbers and how popular they believe that court is good, and is legitimacy found in the court founded in a constitutional institution that is part of the representative government, and think they are trying to navigate, and i'm not sure if you can hit both of those at the same time. so to the extent that you are, that the chief justice and, you know, it is hard to make of some of the reporting of his shifting votes in some cases, and so in the census case to the point that he is giving the impression of giving the decisions based on
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political considerations that the reporting is suggesting that he was in both of the cases, and while it may address or attempt to address the popularity part of contest legitimacy, and actually in the long run, it is going to undermine it in the public view of the court, and in terms of the actual legal legitimacy as a legal institution, and i would hope that doesn't continue to be and the white house brief that bob mentioned, too, it is part of the same prospect, and if there is a perception that the court can be bullied into changing votes, that is bad for the institution as a whole. aim s i am sorry for five senators who believe it is a good move, and hopeful that the other justices don't want the site, because it is -- don't want to see it, because it is bad for the court. >> i don't know how they saw it as a stretch. >> well, maybe not intended for the court. >> right. >> if not.
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anyone else before we move on? >> yeah, i think that there are other justices on the court who may be willing to work with him and not sort of in the political and let's change votes, but in the sort of the let's find a middle ground and some of the cases like the title vii cases, there is not a middle ground to be had. the answer is yes, title vii protects lgbt employees or it doesn't, and the country has strong feelings about it. >> one thing about the court's popularitity, and i saw a gallup poll, and annual poll that they do, and it shows as always that if a republican controls the white house, the republicans think that the supreme court is doing a good job, and if the democrats control the white house, the democrats think that the supreme court is going to do a good job, but interesting thing that jumped out to me is on independence. asked in 2000 whether the court was about right, too
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conservative or too liberal, and 50% in independents in 2007 said about right, and 25% too conservative, and 15% said too liberal. so asked again this year, and 50% that the court was about right. 29% said too conservative and 15% said too liberal. so, it is very interesting that while it has gone up and down, independence at least seems fairly happy with the court. yes, sir? >> thank you. brooks harloway and prak ising telecommunication, and so we got a decision yesterday of 157 page, and it was net neutrality and restoring the freedom, and the court upheld the fcc which the challengers obviously won't like, and the court also largely overturned, vacated the decision on the fcc's presem shemption o
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state's efforts to put in neutrality or the legislative rules. i have a feeling that it may go up, and it may be too deep in the weeds and i have not read it, and maybe you have not either, but i have heard some talk from the colleagues that it may go up and the court may use this case as a vehicle to address chevron deference, and the reason is that the fcc has flip-flopped over 20 years, they have flip-flopped about four times on how to regulate weather and the internet. so each time the court, and it has gone up at least twice, and most recently in the brand x case, and each time that they have under chevron deference returned to the agency defamation, and how many times will the court do that after the flip-flops and saying that it needs to be looked at? if you don't know about the case, and watch for it. i would, and if that is the
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case, i would welcome any general comments on the chevron deference and if it is coming up later in the year. >> our practice is in the telecom space, and so we have been watching it with interest, and my colleague bret shoe mama filed a brief, and it is a long delayed case, and i'm curious to see what the chairman of the fcc and the chairman want to do in the latter piece. i am not sure about the preemption peace of it, but they have a couple of cases last term to signal a willingness to push against the typical deference that the agencies get. i don't know if this is the right case if i am the challengers that i would want to take this up to the court, and use net neutrality and all of the baggage as a way to tee up chevron. it is a pretty to me, the d.c. circuit application of the brand x seemed not all that controversial and something well within the agencies' discretion
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here and it is not the best vehicle if your dream is to get chevron undermined, i don't know if these challengers are the people who want to carry that water. i don't know if this is the vehicle, because if i am the court, i don't want john oliver to send nasty notes and handle it outside of the courthouse. it is a nasty case and that is my very opinionated view, thank you. >> we are good with opinions here. >> thank you very much. >> this question involves conversion therapy and for those in the room who dt o not know tt means a gay person would be psychologically brainwashed to no longer identify as gay person. so there is case from aspen, colorado, moving through the federal court, and the supreme court involving a lesbian couple arrested at church. they completed the conversion therapy, and were invited back.
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that day the police arrested them for third degree criminal trespassing. and the case was appeal and continuing to be appealed. the reason being that the habeas corpus petitions filed with the judge have never been docketed. so, the ruling has been one has failed to follow and achieve state remedies. so, as we see the sex cases going further, do you see the docketing of the conversion therapy, because the case in the 2nd circuit was a rico case, a racketeering case where the winners of the recovery did get trouble damages. so, what insights do you have into this kind of subject matter as the future might unfold?
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>> i personally don't know much about the case or the issue that much or it being at the court. i mean, i think that we all agree that it is disagreement among the lower courts on these issues that ares that most often prompts to step in on one of these issues. we all know what that's like. does anyone else have any thoughts about that? >> certain ly they will continu. there's a case we haven't talked about yet that's the follow up to the masterpiece cake shop case about whether wed iding vendors are required to offer their services to same sex weddings. that has a good possibility of returning. there's a case of a florist from the state of washington that is
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at the court right now. it seems likely to me that i think it might be teed up to be considered by the court in time for this term. >> yes, i think so. >> i just have a basic question on it. it's an area i'm totally unfamiliar with. gay conversion therapy. an individual who is gay says i don't wish to be gay anymore and want to undergo some kind of therapy. who would have league standing of why to challenge that. >> we know there are 18 states in america who do not allow conversion therapy and have rule
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ed it unconstitutional in those states. >> can i ask a question? even if the individual is an adult and says i wish to change. >> i would hope that the government doesn't tell us what to do in our private lives. >> should they tell this individual whos to go from gay to straight you may not do this? >> on the reverse side, we believe that gay people are born and it's not a decision. and that those private rights would lack jurisdiction in the federal courts or in the secular courts. >> but with the case you have raised, an individual says my religion says being gay is wrong. you don't have to agree with that religion. my religion says this. i wish to change.
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>> that's a a violation of the first amendment. and i think it will be an interesting debate. and will happen in american history. >> thank you. >> thank you. >> yes, sir? >> it's a topic you have already discussed. what's the louisiana abortion case. my disclosure is on behalf of 2056 women hurt by the abortion industry, so part of the issue is the reason i'm raising the issues. the coverage in the case, they talk about being exactly similar to the texas case. but in the texas case, there was an ambulatory and the cost of an ambulatory surgical center was a a million dollars to build a new
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one. so to me, that's why the number of abortion clinics was reduced in texas when the law went into effect because unrefuted evidence was a bhigh barrier to entry. in louisiana, the facts, in my opinion, are very different. i think those are just facts. my point is is in the question. the distinction between texas and louisiana need to be brought out. and then the other thing is the abortion industry thought they call ed the next litigation strategy the big fix. the attorney general points out where they have sued to set aside every abortion facility regulation. they don't want it to have to be done by a doctor or to require sterilized instruments. they think all regulation of abortion, it's almost going back to roe v. wade, fundamental right analysis. and that's one of the reasons
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texas and many states filed a brief in the louisiana case. their interpretation which would lead to the elimination is an extreme interpretation. i'd like your opinions on that. >> i have not followed the case closely enough to say whether that would be the logical conclusion. i just want to point out because of the factual distinctions, it brings up an interesting tension in this case between some of the things that the chief justice apparent interests of having these broader decisions because they are narrow, but also in not having to bring court into controversial issues and this case is an example of how they can be a at odds because the way and the fact women's health did cite lots of these issues involved in the texas law, the distance that women would have to drive if certain clinics were
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closed. that actually almost invites further litigation because the next case they just have to tweak a few different things or naturally going to be different because the size is different than texas. so you're going to see almost a full employment act for lawyers on both sides of this contentious issue. unfortunately, garn tees it's not going to get away from deciding issues on this topic. >> i have a question for fellow panelists or anybody that might be in the group. looking at the unanimous jury question, it reminds me of a question that i had when mcdonald was being argued and briefed. which is i saw no what i would have expected to have seen would have been briefs from the
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criminal defense bar arguing that in 2010 is look like mcdonald might be the last time a court considered the incorporation question. and that there were several. excessive finds, a grand jury and bail. the incorporation is somewhat clear in these cases. massive briefs. it's the association of aclu and other groups. and go for total incorporation. >> if any of the audience that is haugts on that, they are going to have to tell them
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afterwards because we're almost out of time. but the panelists can weigh in. >> even in the groups not love the amendment of second amendment being inkorcorporated. i thus those coalitions on both sides of the aisle. thank you for your attention. please thank the panelists.
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supreme court justices return for the new term next week. the first monday in october with the court hearing cases on discrimination based on sexual orientation. the trump administration's wind ing down of daca and state funding for religious education. listen b to ciggen cant supreme court oral arguments on our website at c span.org.
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we have featuring perhaps of what's available every weekend object c-span 3. gordon wood delivers a talk titled the revolutionary roots of the civil war. he discusses the founders views on slavery and argues that the the civil wars was inevitable. the house will be in order. >> for 40 years providing america unfiltered coverage of congress. the white house, supreme court and public policy events from washington, d.c. and around the country. you can make up your own mind e

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