Skip to main content

tv   Discussion on 2019 Supreme Court Term  CSPAN  October 4, 2019 12:06pm-1:07pm EDT

12:06 pm
someone will tweet about it, really famous, i think we've alerted c-span. are we ready? good afternoon. todd gatsiano, i'm the chief of legal policy and pacificc research at legal foundation. on behalf of pacific legal
12:07 pm
foundation and our partner, review institute, we welcome you to our sixth annual court review program. we also want to welcome our c-span, whether they're watching live or in one rebroadcasts. as we usually do, i want to the use of this facility and their especially courteous and professional staff assistance. before i introduce our moderator, who's back by popular demand, i will give a very brief supreme court update. last term, my colleagues won two for supreme court victories clients we directly represent. aboute especially excited nick versus june in scott township which overruled a precedent,-year which prevented property rights
12:08 pm
owners from suing in federal localwhen state and property.s took their the supreme court record is now 12 wins out of 14. soon have five petitions for review before the supreme court so we're hopeful that we that win for liberty in the near future. format for today's program is as follows. after ramesh introduces them, courtstinguished supreme advocates will discuss two or three of the supreme court cases that are already on the docket their first round, including two that the supreme court ago.d about an hour this is how brilliant they are, that they can -- they know every court mightreme consider. themselves.l say so in a second, shorter round, they may comment on each
12:09 pm
other's comments on the cases or some otherlk about cases that the supreme court take later in the term and i'll return to the podium after yournutes to recognize questions. as i said, our moderator today by popular demand is ramesh funuru. he's well known to this audience the millions of viewers on c-span. and that is a good thing because agreed to keep introductions very short, but alone say a lot. ramesh is a senior editor at national review, he is a columnist for bloomberg opinion, he is a fellow at the american enterprise institute, and he is news andutor to cbs finally, he is a senior fellow at national review institute, our partner. so take it away, ramesh. >> thank you, todd for that generous introduction. to join todd in
12:10 pm
thanking my friends at the pacific legal foundation, my colleagues, national review institute for putting this event together and to jones day for hosting it. thank all of you for coming here for what is very likely the only conversation taking place in the city today that does not mention a certain with i.rting always theat this is most informative hour about the everye court i spend year. so i come here as much for education as for anything else. we've got a lot of cases that run through and some very distinguished practitioners to talk about them. got bios available or if not you can look them up. so i will just give you a very, very abbreviated one. michael carvin who will be issues andrst is the appeals partner at jones day. thomas goldstein is a partner at goldstein and russell pc.
12:11 pm
and albert lin is issues and chair at hunton andrews kerth. to be tellinging us a little bit about how the top policy makers in the country us over the rule next year. is one of the more let's terms upcoming that we've had. it's a little less sleepy than some of the others, but i'll let you make those characterizations. take it away, mike. >> yeah, the first set of cases i would like to discuss are those involving title seven, the employment discrimination issues there are whether or not when congress inhibited sex discrimination 1964, it was prohibiting discrimination on the basis of whetherrientation, you're gay or straight, or transgender status. arguedre going to be next tuesday. the justice department is on the titlehat's saying no, seven doesn't reach those
12:12 pm
protected criteria, which is a reversal of a very recent obama decision that i think it was in side sook the opposite it's returned the federal government to its traditional position. involvingo cases sexual orientation. transgender.lving obviously, reasonable people can disagree about whether or not sexual orientation and transgender status should be protected by the civil rights laws. but the question here is whether that in 1964. and not to reveal my prejudices, seems to me that the people arguing that when they prohibited sex they prohibited orientation and transgender discrimination have a real uphill battle. is different than sexual orientation and there'sder status, so really no straightforward argument that they cover them. as a consequence the people challenging this have engaged in a number of points about how got to consider sex when you're considering sexual
12:13 pm
ofentation, it's because sex, and i frankly think that's more of a semantic argument than persuasive legal rationale. just think about it. gay peopleguishes from heterosexual people is the sex of their partner. so obviously, you're going to of theirhe sex partner, but that's entirely different from saying that you're discriminating on the of sex. if you're looking at the sex of it's sexual orientation discrimination. if you're looking at the sex of the employee, it's sex discrimination. excludesas if somebody homosexuals from their workforce that you would think of them as being sexist. men and women equally. argument by the -- thatwell listen, would be race-based there's truth and to that.
12:14 pm
but again, that's more of a game than a real argument because if you're looking at the sex of the veryer, again that's the definition of sexual orientation discrimination. stated slightly differently. an employer was opposed to interracial couples, then you know the reason for his adverse action is race. if an employee is opposed to couples then no one would rationally say he's motivated by sexism. by antipathyd relationshipsxual and that would be sexual orientation discrimination. i would also make the practical if what they're arguing is true it would be impossible for a legislature to prohibition to protect women without engaging in a different public policy rationale of also prohibiting genderorientation and based discrimination and transgender discrimination as think this ist probably going to prevail. it may well be a 5-4 vote, but i
12:15 pm
expect strongly that the justice department has the better of this. like tond case i would discuss is this case involving where again, i think the challengers have a very steep, uphill battle. the trumpse, administration is enforcing the as written.laws so the challengers need to make it's illegalthat for the president to take care that the laws are faithfully executed, which is obviously counterintuitive since the constitution requires the president to take care that the faithfully executed. to be specific, there's no exemption in the immigration we've referredat to as it's illegal for the president to take care that the laws dreamers, people 8 the obamake, although administration did make a decision not to enforce it for brought overre when they were children. extended that policy
12:16 pm
under dapa to people who were under 18, buter certain adults possessing certain characteristics. the obamaion by administration was struck down by the fifth circuit and was an equally divided supreme court. so now, we've got a situation administration is saying no we're going to enforce the law as written, this not going to create exception. and not enforce the law. apa andobviously constitutional issues as pointed circuit in theh dapa case, but more fundamentally if you're exempting a class of people from that looks and smells very much like amending the statute or a line item veto which, oftute, course, the president doesn't have the power to do. if you're not enforcing the law as written, that creates an
12:17 pm
inherent conflict with congress takinghe executive is one position and the legislature is taking another. circumstances,e if you were enforcing the law as written, then congress and the same pageare on the and moving in the same direction. so you would think that would be far less controversial. in terms of the particular legal issues involved, the trump administration argues i think persuasively that the federal courts can't look behind the decision to prosecute the law to the extent that the the extent that the law is written. in the first place these executive branch decisions on prosecutions are committed to the agency discretion by law. this is a phrase in the apa which says courts can't look behind that. there's a lot of cases on this most notably, this case called sayser v. cheney which courts can't examine the decisions of the executive branch.
12:18 pm
branch.a lot of there's a lot of cases in the immigration conference which says the deference to the executive branch is particularly acute and again, these were all cases where they were refusing to enforce the law as written, which raises this controversy. got a much simpler case where the executive is not the legislature. the executive is doing the legislature's bidding by as written bylaw congress, not contrary to it. the lower courts have taken a relatively i'm trying to think of a neutral word, hair splitting attitude that says obamahe reason that the administration -- excuse me, is -- override their executive judgment, but again, whether or not it's illegal doesn't really matter.
12:19 pm
first of all, there's a lot out, as they pointed there's at least litigation risk if you follow the obama lead position,adverse dapa but more importantly, regardless of whether it's illegal not to allrce the law there's kinds of reasons that you don't want to not enforce the law. there's all kinds of reasons be enforcing the law, which i previously touched on. to create ant conflict with congress. you don't want to usurp the legislative function by engaging a line item veto so regardless of whether or not it was illegal what the obama had done by not enforcing the law, the trump ofinistration had a myriad reasons why they would abandon that policy. so again, my prediction would be vote countw how the is going to come out, but i do expect that the trump administration's enforcement policy will be upheld by the court this year. >> all right. tom? >> so i'm going to talk about a boring issues, abortion and religion.
12:20 pm
they're at the supreme court this term. the abortion case is newly tom mentioned within the last hour. so this is obviously a fraught question. it's at the center of the involvement in a lot of socialuses. it's at the center of america's consciousness of the supreme court. it's at the center of a transition in the supreme court in which justice kennedy, who subsequently the pivotal kind of fifth vote, and now, the chief justice in many cases involving ideological questions is the pivotal deciding vote. so a few years ago, when justice was on the court and just after justice scalia passed away, the supreme court considered a statute enacted by texas that required that abortion providers have admitting privileges at a reasonably close hospital. and justice kennedy provided the
12:21 pm
for holding that that statute was unconstitutional and burden on andue woman's right to choose under versus wade. abortion access to services because it's harder to get -- too hard to get admitting privileges. well in the wake of the texas ruling, louisiana enacted and to enforce a very, very, statute.lar and the trial court when that statute was, of course, that it waseld unconstitutional, and then it went up on appeal and two of the fifthes of circuit court of appeals upheld the louisiana statute and they texashat unlike in the case, where the supreme court had struck down the law, auisiana had provided justification for the admitting
12:22 pm
privileges requirement. it said that that did provide -- was evidence in that case that it provided some measure of certitude that the abortion provider was a qualified medical service provider. then the challengers to the law and to the supreme court five members of the supreme the fifth circuit's decision and enjoined the application of the louisiana theree and the fifth vote was provided by the chief justice so if you won an injunction from the supreme it requires five votes and it takes four votes to actually case.he justice cavanaugh who was by then on the court also issued an saying that he wasn't sure whether or not the louisiana statute was constitutional or not, but that allowed it to go into effect for some time so you could actually judge its determinees and whether it was that it was causing abortion providing services to shut down and limiting a woman's right to
12:23 pm
choose. so today, the supreme court the pending petition, challenging that fifth circuit decision, upholding the and it willatute, decide the question of whether such a statute is constitutional will nowbroadly we know what a majority of the supreme court says about the scope of the roe versus wade right. this will be -- this case will be argued later on this year and decided almost certainly in june, kind of right the 2020dst of presidential campaign and obviously, it will be an incredibly significant question. in athe case could go couple of directions. i think you can say with confidence four members of the supreme court, the four more liberal members will vote to strike the statute down because they did the exact same thing in the texas case. think you can say with confidence that three members of the supreme court will vote to uphold the statute and the question is what will the chief justice do and what will justice do?naugh i think justice's opinion suggests he will continue to that it'siddle ground premature to strike the statute
12:24 pm
down. votedhe chief justice, he in the texas case to uphold the statute, but nonetheless, has to put -- to uphold the injunction against the louisiana statute, and i think that this be an incredibly difficult case for him and will test how much he thinks that -- particularly in these very, very fraught questions like abortion, how much the court's prior beision in texas needs to respected, upheld and applied broadly or whether this will be the first in a series of cases in which the court begins to step back from justice kennedy's but of moderate nonetheless, fulsome view that there is a right to choose under the constitution. so it is going to be very, very closely watched. i don't think that anyone should reasonably doubt that over the course of the next 10 years, this supreme court would roeinue to walk back the right, but because this case is so on all four years with the be very,e, it will very interesting to see whether
12:25 pm
or not the chief justice says respect for the starr star -- needs to be shut down. there is a very significant almost every and religion case is significant. because in particular the supreme court while it has become more conservative over so,past quarter century or it hasn't actually done a ton in the area of religion. movement, but not very significant movement. a couple of years ago, the caseme court considered a involving playground upgrade financing, which is something we all lose sleep over, but this is a case that involved a state that allowed for state used, but excluded religious schools from it and the supreme court said you can't do that. this is effectively just discrimination against religion. and the supreme court said if
12:26 pm
you're going to have this program you can't carve out religion. the case arises from montana which has a state constitutional stateion and the --stitutional provision wouldn't want to have the state in sustaining religious organizations. is what'snts say this known as a blane amendment. there was a period of time in states -- >> based on kind of an anti-catholic animus. attempt to stop aid to a parochial school. is that theens here creditad enacted a tax
12:27 pm
for education and that tax credit could have gone to a school, a religious school or to any other kind of private school and, in fact, in state, a substantial majority of the schools are religious. saide state supreme court well, i know we have this statute that says the money can go towards either one, but money would go to a religious school, it violates the state constitution and the is and so the question that the supreme court is considering is adopt a rule that says we will not fund religious education? is that state constitutional provision itself unconstitutional under the federal constitution? i think the fair thing to assume is that the supreme court is to continue down the path of the playground case and say that you cannot draw these kinds of distinctions between of privateinds institutions. if you are going to provide
12:28 pm
funding for one, you're going to need provide funding for the other, otherwise you are discriminating against religion are -- while you are attempting on some level to avoid the establishment of interferingu are with the free exercise of religion of the families that taxd otherwise use the credit at a parochial school. but it will be extremely close and extremely fraught and the fact that it is in the form of a state constitutional amendment makes it a little bit more difficult to predict. likely to be a closely divided court in this case. just finallyt i'll pause on is just to react to michael's description of the daca case. this case -- for several members of the supreme court will end up being like last term's census case, whether the supreme court at the very end of back the addition of the question to the census about immigration status and said that the administration in describing why it is that it put or proposed to put
12:29 pm
that question on the census hadn't accurately described its reasons. and that's the debate in the daca case as well and that is the trump administration articulated its reason for withdrawing daca as thought that daca was illegal. i don't think anybody doubts that if the trump administration had said at the very beginning you know why we're getting rid of daca because daca is stupid, bad, we disagree with daca, any other reasons, it just be administering law as michael said, but in this context i think there will be court whors of the believe that happened where is the president said i want to hug the dreamers, we should have the dreamers over to the white house, they should stay in the lincoln bedroom, whatever, you know, they tried to embrace the -- thinking oh, is illegal.
12:30 pm
but i think it will be -- it is it otherwise than would be because sometimes, the administration isn't as clear in its legal rationales at the as it is at the end when the case gets to the supreme court. >> thank you. albert? elbert: i've got environment and guns. for those who follow the second amendment space, since the blockbuster decision in heller in 2008 that found that the second amendment was an individual right, and 2010, mcdonnell determined that it was incorporated against the states, it has not gone very much in that space. it has been nine years and there was one decision in the interim, summary reversal, an opinion issued when there was no argument involving the massachusetts ban on stun guns, where the issue was stun guns didn't exist at the time of the second amendment, so how do you
12:31 pm
deal with that. of in the meantime, a lot petitions have gone up to the court and there has been some biting from some of the justices including justice thomas dissent s accusing record of treating the second amendment as a second-class right. the issue is, in the city of new york you have to have basically the premises license to have the firearm in your home, and that license puts pretty strict restrictions on where you can take that gun outside of your home, basically boils down to you can only take it to one of seven gun ranges within the city limits. you cannot transport it out of the city, you cannot take it to a second residence. those are the only places you can take it. there was litigation over this for almost half a decade, or
12:32 pm
more than half a decade, which will be important later. and it was challenged. it went through the district court, second circuit. it was upheld. the supreme court has decided to take it. there are a lot of questions in the second amendment space that have not been answered. the constitutes arms under second amendment? what limits can you put on that second amendment right? were kind of scrutiny is required? does the right apply outside of the home? this case raises a couple of those issues. one of them is does the right apply outside of the home. because if it doesn't, then the restrictions that the new york ordinance places on transporting the gun outside of your home is that it would not trigger the second amendment. that is one of the questions that will have to be answered here.
12:33 pm
is the second amendment is triggered, then there is the question of what kind of scrutiny is required to assess the constitutionality of something that implicates the second amendment. there is an argument based on heller that maybe there is no scrutiny at all, that if it figures the second amendment it is per se unconstitutional. llerin the years since he there is a lot of debate in the lower court about strict scrutiny, the highest level scrutiny, where you have the compelling interest justified ort is narrowly tailored, intermediate scrutiny. those are all questions that will have to be answered in this case. here is the wrinkle -- there is a couple reasons why the second amendment questions may not be answered. the first is that the challengers have raised a few other constitutional challenges to the ordinance. one is that it violates the commerce clause, because it
12:34 pm
avors the dormant commerce clause by favoring gun ranges in the city limits versus gun ranges outside the city limits. the other argument is that it impedes the constitutional right to travel. possible that the case could be decided on those other grounds. the other wrinkle is that since cert was granted, notwithstanding the five to six years of litigation, the city of new york has amended the thenance and it permits s of these licenses to take the guns to a second residence or gun ranges outside the city. the city has now come back to the u.s. supreme court and moved to dismiss the case with the suggestion of newness. the case has been set for argument, so it looks like it is going to go to argument and they will debate the issue of moot , and the the merits
12:35 pm
court will decide then what they will do about it. the environment. the next case i will talk about is a case that i'm handling, involving the clean water act on november 6. the clean water act, as he proudly -- as you broadly know, addresses water pollution in the united states. but there are two important questions -- limits on the clean water act come that because it doesn't address all water pollution and all bodies of water in the united states. the first question is a thing that some of you may have heard of -- it only applies to navigable waters or the waters of the united states. the other question raised in this case, it requires a permit, federally mandated permit, for discharges by point sources into waters. it leads to the states the regulation of nonpoint sources. the question in this case is
12:36 pm
what is the discharge by a point source vs. discharge by a nonpoint source. i represent the county of maui. has aunty of maui wastewater treatment plant. it takes the treated wastewater and puts them into injection wells, and one way to think about it is very big septic tanks. and put that into the well they go down and get into groundwater. groundwater carries that treated effluent about half a mile through the ocean. the ocean is a navigable water. groundwater is not navigable water. the discharge into a nonnavigable water, but it ends up in navigable water. the question in this case is does the point source -- in this case the wells, in other cases of type, could be a ditch, anything that conveys a pollutant -- does it have to discharge of pollutants directly
12:37 pm
into the navigable water to require a federal permit. there are a lot of applications where this matters. it could better to people who have septic tanks. if you have a septic tank and goes into the ground the groundwater carries into the river and you have to get a federally mandated permit. that is the clean water act case. it is a statutory interpretation case that is going to boil down to what is the meaning of point source. the other two cases i wanted to mention -- one of them was granted today, and it involves the atlantic coast pipeline, a natural gas pipeline which is proposed and in the process of getting a permit and being built from west virginia to virginia and north carolina. as you can imagine, the process of building one of these things requires a lot of federal approvals. the issue in this case is
12:38 pm
whether the federal government has the ability to grant a right-of-way across the appalachian trail. anything coming from west virginia and is ending up in virginia is going to cross the appalachian trail, as do a lot of things that go from the middle of the country to the east coast. the fourth circuit held that under the mineral -- well, the fourth circuit held at the appalachian trail is basically national park property. is mineral leasing act something that allows the federal government to grant a right of way across most lands of the united states, except for national park property. the question is, if the appalachian trail is national park property, does that basically mean the united states can't grant a right of way to put anything across the appalachian trail? what is that mean for pipelines and cables and wires and transmission lines and all those kinds of things?
12:39 pm
this is a case with classically important ramifications that the court is granted. the final case i wanted to mention, because i actually think there is potentially a very interesting sleeper issue, is louisiana. the question that presented is whether the sixth amendment right to unanimous jury trial is incorporated against the states. louisiana, at least at the time of this gentleman's trial, and oregon are the only two states in the country that don't require unanimous verdicts in a criminal case. there is an incorporation question there. the sleeper issue, i think, is the key piece of sins, but it pieceen --- key
12:40 pm
assumes but it has been argued that the six amended requires unanimous trial. it goes back to this case from 1972. the justices decided that six amendment does not require unanimous jury verdict in federal trials or state trials. four justices said that the unanimous verdict is required in federal trials but not state ones. no, it is with both. federal, and that incorporated against the states. for that said no unanimous requirement anywhere, for that said federal and not states. one that said only federal and not against the states. does that for right get incorporated -- does that federal right get incorporated? the question you could see the court going a different way on
12:41 pm
his if there is a unanimity requirement at all, in federal or state cases. ramesh: all right, thank you for that whirlwind tour of different cases before the court. i was wondering if any of you wanted to add anything onto the cases that the other panelists discussed. mike? michael: actually, no, i think they were fairly presented. tom,uitively disagree with but this time i will be -- [laughter] i have one thought on the title vii cases. i think that just from the 30,000-foot level, and it sort of tees off of what mike said when he first started, the suggestion that sex had a particular meeting that everyone understood it had in 1964 -- if you back it up what principles may be important, how to that -- comingther cases,
12:42 pm
out of that case and other cases, how faithfully is the court going to adhere to the principle they have articulated and that justices agree with, that you look at the meaning of the word at the time that the statute was enacted? i don't think that there is really a line of serious debate about what the word was understood to encompass and what sex discrimination encompassed in 1964. there is a lot of argument -- mike talked about that -- about how you might read that word to encompass different things. if the court is going to hold closely to the principle that you look at what sex means in be --it may -- that may anyway, i think the broader principle you might have taken away from that cases how strongly that principle of the applied in other statutes. michael: the other is that if you use a word in 64 and it has
12:43 pm
unforeseen consequences that you didn't contemplate, that the text of the statute requires that result from you need to follow the text of the statute. what sex in 1964 and today doesn't mean sexual orientation or transgender status. it is not as if the statute's text embodies something that leads you to unforeseen results. text isthe statute's not reach what they are trying to read into it. ramesh: did you want to add anything? i can mention one or two other cases. there is an end to think it's about the insanity defense. it has been a rule for a lot of the country, is it constitutionalized. kansas got rid of what some regard as the insanity defense and replace it with something else.
12:44 pm
does there have to be a defense in a criminal case that says the defendant cannot be found guilty because they did not know what they were doing was wrong, or is it sufficient that the defendant can only be acquitted if the defendants do not intend to, the crime? -- commit the crime? you have the defendant who killed four people. it is asserted by the defendant that he did not know what he was doing was wrong because of a mental condition. and the state says we will take into account that mental condition, but the ultimate question is did you intended to kill these people, and if you still intended to kill them, even if you didn't realize it was wrong, that you could be found guilty of the crime. the supreme court has agreed to take up the question of whether or not that has to be an available defense, that i can say i did intend to commit this murder, or i did intend to commit this killing, but because i was in pain at the time, i did not know that it was the wrong thing to do. there is no clear answer to that question. some states have started to move
12:45 pm
away from the defense that says i didn't know it was wrong, in the wake of, for example, intended assassination of rot -- the attempted assassination of ronald reagan. ramesh: 14th amendment? miasma it is a kind of of the due process and cruel and unusual punishment. and then the supreme court agreed to take up a different immigration case today. there is a federal statute that says it is a crime to encourage illegal immigration for a profit motive. the ninth circuit court of appeals held that that statute was unconstitutional because it infringed on free speech and was too broadly written. the administration took of that question and the just as if -- the justices have agreed to hear it. the justices are likely to uphold the statute. they almost always agreed to hear a case where a federal statute is locked down by a
12:46 pm
lower court. it is not a huge signal about what their intention is. the statute will probably survive constitutional muster. michael: two cases that have not been addressed but i want people to be thinking about. one is selfishly my case, and one is selfishly from a college's viewpoint -- colleague's viewpoint representing "national review." this very strange opinion, the defamation context from where essentially if you say mean things about somebody and voice an opinion using misleading statistics can better somehow subject to defamation, which would have a huge chilling effect on scientific policy debate. in this context it was about the issue of climate change and global warming. you can imagine what this could do to the entire debate. if the jury disagrees with you, they could hit you with damages. hopefully they will take the case. i am a lawyer in the case so i really hope for a. the bill --getting
12:47 pm
[laughter] michael: we will see. v. mann in the supremes. another important guarantor, separation of powers, and an important separation of powers case that i think is next friday or shortly thereafter, the fpb,titutionality of the cs consumer financial protection bureau. brief background. the basic structure of the constitution is that the president has all the executive power, and therefore if use not able to control his supporters in the exercise of their authority, they would be independent from him and exercise executive power. this is called the unitary executive. it has nothing to do with the executive being above the law, it has to do with the president being able to exercise executive functions. in the 1930's the supreme court said that with respect to these
12:48 pm
sec,endent agencies, ftc, these multimember bodies, we are going to not allow the president to remove these people at will and therefore make them independent of the president, or congress could do that. that would be constitutional under separation of powers. they would permit not allowing the president to remove these people at will. in recent years that principle has been extended for multimember bodies to agencies chaired by a single head. one is the cfpb, the other is the fhfa. there is a case pending now where the supreme court has argued that having a single person unable to be removed by the president essentially make that person a de facto president, and that is basically a violation of separation of powers. you should limit humphrey's executor's to its facts because that was based on the notion that these independent agencies
12:49 pm
really were not exercising executive functions, they were exercising quasi-legislative and quasijudicial functions. two very important points to note about that. the solicitor general said they are entirely right, and the bureau itself said they are entirely right, this agency is unconstitutional, therefore you should take the case, under the basic analysis that i outlined, the humphrey executive should be limited to its facts and not extended to these single-agency head cases. that may be decided. there is two other cases i won't even pull you into the details of which come where asking the supreme court to take their aases, one involving the fhf and one involving the cfpb. normally you would think they would not take these cases. the other issue with the key to these cases where you limit the removal authorities not only whether or not it is unconstitutional, but what the
12:50 pm
remedy is. the fifth circuit said in one of these cases that we will amend the statute prospectively to make the agency head removable at will. a person had done in the past, invalidated based on that step -- you will not invalidate it is not the statute. it is conceivable that they will combine these two and give us an answer on the underlying constitutionality and the remedy. i should note that not only does the court take separation of powers more seriously in recent years, but judge kavanaugh had opined on this issue in the fifth circuit and found that the cfpb was unconstitutional. a big: the cases are deal. on the question of how it is you can have these independent agency has structured and the president can put in his or her is a bigger-- there
12:51 pm
question in the cases and that is the of independent agencies at all. it has been put into the case by the united states. i don't know that the supreme court is going to jump headfirst into that, but because the court has become more conservative, has become more synthetic to executive power and the notion of the unitary executive, i would predict over the next five to 10 years that the court will tackle that really important question of what our these independent agencies that congress has created that are effectively administering the laws but not under control of the president. point.: what other minor the great irony of the cfpb case is that if elizabeth one gets elected president in 2020, she trump be able to remove a appointee to the cfpb, which was her brainchild for at least three is from which a sacrifice fly remove ability -- which
12:52 pm
exemplifies why remove ability at will is important for accountability to the electorate. thomas: michael just endorsed elizabeth warren. [laughter] ramesh: creative interpretation. if you wouldn't mind taking over the questioning. >> thank you, and organize audience questions -- i will recognize audience questions in a minute. mike talked about one of the cert petitions. one of the cases already on his docket -- tom did not mention he will be arguing his 43rd case. one of you may ask him about that. he is such a slacker. clement is approaching 100, but he had so many years in the solicitor general's office. really unfair. anyway, congratulations on those numbers. i will call on audience questions. there are two people with
12:53 pm
microphones. and i call on you, please wait for the mic so the c-span viewers can hear your question, and please ask only a question and a short one at that. one question i'm going to rule out preemptively is anything to do with a hypothetical impeachment trial that the chief justice might have to preside at. today's program is just going to focus on the supreme court's judicial caseload. we can schedule another program -word moves to the senate. who wants to ask the first question? i see someone in the very back. a microphone is headed your way. please state your name and identify yourself. they question is on discrimination case. subsequent familiarity of
12:54 pm
statute -- subsequent ameliori tive statutes have excluded sexual orientation for the thinking of the emergence with disabilities act. do you think other discrimination statutes have treated that are going to be looked at by the court, or are they just want to look at '64? michael: i think they will be looked at, but not in the exclusionary area. confirming the view that when they prohibited sex discrimination they never intended to reach sexual orientation or gender identity -- everyoneon including congress use the t-- view the two grounds as entirely distinct. also, a legislation has been proposed 15 different times over the past 20 years to add sexual orientation and transgender dentity to title vii
12:55 pm
--punctuate the point which would be obvious from which title vii doesn't cover -- if the law is going to be changed, that is a legislative function, not a judicial function, and no one on either side of this debate really seriously thought title vii covered legislation against gays and lesbians or on the basis of transgender status. todd: anyone else? rest of the next question? -- who has got the next question? here in the front row. >> is there anything left to litigate in the area of redistricting and gerrymandering, and if so, is there anything heading towards the supreme court? michael: yes and no.
12:56 pm
i began this conversation by saying i supported the supreme court's decision saying partisan gerrymandering was nonjusticiable. $25ost me approximately million in attorneys fees to make that principal position. the real answer to your question is there won't be legislation on partisan gerrymandering in the federal court but a lot of litigation on partisan gerrymandering in state courts, which will continue. this entirethere is shoreline of cases which talks about the creation of minority majority districts. that has been used by democrats in recent years to strike down republican-favoring maps. that de facto way of getting that republican-favoring maps will continue, notwithstanding the fact that the supreme court has ruled out a straightforward partisan gerrymandering claim.
12:57 pm
everyone agrees. ok -- todd: everyone agrees. ok, we will go to the next question. >> congressional correspondent with hispanic outlook magazine on higher education. sorry i came in life. i don't know if you talked about the harvard case, and if you think it might be coming to the supreme court this year, the case on affirmative action. this -- thomas: this year no. we got a ruling upholding harvard's admissions program against the challenge that it discriminated against asian americans. will it get to the supreme court? this kind of issue will get to the supreme court, because just as with abortion, justice kennedy, the decisive vote on this question, he had upheld programs like this.
12:58 pm
different in details, for sure. the question of whether this case will make its way to the supreme court may depend on the fact that harvard says it has -- related ton the harvard program. but i think you can include with abortion, with religion, with guns, affirmative action is -- allely a question race related questions the supreme court is going to be taking up several times the next five years because it is unsettled what the court thinks in the wake of justice kennedy's departure. unlike the chief justice's fifth vote to save the louisiana case in the abortion context, the chief justice and said we need to move beyond race-based
12:59 pm
programs. that is an area where one intuits he is interested in the court moving the law. the harvard case having just been decided, there will be posed troutman and that it has to go up to the first circuit. that case would it make its way here for a couple years. michael: there is a similar case in north carolina. there is a vehicle back and get to the court in the next couple of years. elbert: i would only add one more thing, but to the litany of things you should be watching out for that will get to the court, climate-change issues. barring some dramatic change in congress with legislation passing, i suspect we will see one or more of the many cases percolating through the system on the climate-change issues making the right to the court. -- their way to the court. todd: >> hello. you guys are all very smart.
1:00 pm
this is more of a general question about hernandez being disfavored and also the controversy about qualified immunity. do you all, with your scholarly if angs have suggestions accountability vehicle might be available? >> if we may give a touch more context, the court is prosecuting shootings, so there was a division in the lower clore -- lower courts in a way liable the government for shootings into mexico. those raised variety of issues related to immunities. action implied rights of to bring suits against federal officials for violating the constitution when congress has not passed a law. so, qualified immunity is the
1:01 pm
principle that says that a governmental officer is not going to be held liable unless the law they violated was clearly established. without getting deep into it, the supreme court has been resolute over the past decades of narrowing it and saying if you have a right to sue the government, congress will have to pass the law expressly, and we will assume, and we allow such suits that the government will be held liable only if it was clearly established that what they were doing is wrong. and you have a situation like cross-border shootings where it does not appear that there is a directly on point shoot, it is a sense that the members of the supreme court will be hostile to the idea of bringing the lawsuit, or would say that there is likely to be qualified immunity. on the other hand we should not be shooting people across the border, that seems relatively obvious to some number of people. it is a question of the degree
1:02 pm
of clarity that the supreme court wants to see from the legislature before allowing one of these lawsuits, it is akin to the statutory cases that we have been talking about with respect to mike's point about did anyone think that this is what congress intended to incorporate in creating liability under title vii. how much the supreme court requires congress to squared corners, but cross-border shootings is an evocative topic and ak sure to get a lot of attention. growing is a glow -- a disagreement among conservative jurists about qualified immunity and you have not seen it, but with is a circuit opinion a of different decisions and many trump appointees sniping at each other about qualified immunity in the constitutionality of it. that is separate from the question, that is also an issue
1:03 pm
that may be making its way home. qualified immunity is extra-textual. where does that come from? >> hello. qualifieds see any immunity cases making the supreme court soon? think the supreme court just took it in a long session and pushed it off until later to reconsider it afterwards. was a guy wasy running from the police and he had an attack dog on him. it was after he was surrendered, and it was whether or not the police could have qualified immunity. the sixth circuit ruled in favor of qualified immunity. it was possible that cody could make it to the supreme court. of its almost all qualified immunity cases are like stun gun cases.
1:04 pm
almost always they are cases in which the supreme court is expanding, not narrowing it. understanding that there are a number of court judges that are questioning that basis. this court has seemed to go only one direction and has done a lot of reversals where they do not hear argument and the government official is held liable. hernandez, the cross border shooting cases and the next places -- is the next place where you will see a discussion. >> i thought you were them nipped in, you knew every case. thomas: i pronounce it differently. >> i think we have time for one or two more questions, and we have one right here. >> hello. i wanted to know if you had any of dates or insight on the case in the state of georgia versus states canther copyright legislative and legal codes. that was picked up in june.
1:05 pm
thomas: i am the lawyer so this debate in theis a law over the extent to which legal enactments can be copyrighted. most often it comes up in a situation where a trade association proposes a model building code, and if you stop right there than that would be something that you would think that you would think they would be copyrighted. they wrote the thing. georgia if the state of adopts the model building code and it becomes a law of the state of georgia, cannot that copyright be maintained? that is an interesting question. this case is a cousin of those sorts of issues. this is about the georgia code annotated and what happens is georgia's official code is annotated and it goes beyond the official code of georgia beyond the words that the legislator has enacted by statute, and also includes annotations, the
1:06 pm
discussions and the organization of the code, and also the discussion of cases that apply to statutory permissions. the 11th circuit held that the shall code annotated could not be copyrighted because it was enacted into law and was official. as its name suggests. is the beatable exactly at the margins of what is a legislative enactment when it is not a binding statute. the supreme court will decide that. they have not taken up this kind of thing in more than a hundred years. it is where this line is that what can we caught copyrighted -- what can be copyrighted and what is not. i should tell you what that should do, which does not tell you about what they will do. and ink you very much,
1:07 pm
about 30 seconds i will adjourn our six annual. it is the friday before the first monday, can mark your calendar. herell be back, hopefully next year, and with that i think our moderator and speakers exceeded expectations, please join me in thanking them. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] [captions copyright national cable satellite corp. 2019] >> if you missed any of your -- of our coverage, you can see it on our website, [no audio] -- a


info Stream Only

Uploaded by TV Archive on