# SCOTUS Not Likely to Allow Trump to Fire Fed's Lisa Cook

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 22 Jan 2026, 36 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/da0525b1-81de-443e-be16-b3da0006a73a/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Constitutional law expert David Super, a professor at Georgetown Law, discusses Supreme Court oral arguments over President Trump trying to fire Fed Reserve Governor Lisa Cook. Then Hayley Lawrence, the Executive Director of the Duke Center for Firearms Law, discusses Supreme Court arguments over a Hawaii law restricting the carrying of guns. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:08] Speaker 2: No president has fired a sitting governor in the one
[0:12] Speaker 2: hundred and twelve year history of the FED, and Supreme
[0:15] Speaker 2: Court justices across the ideological spectrum suggested they're unlikely to
[0:21] Speaker 2: permit Donald Trump to be the first president to do so.
[0:25] Speaker 2: High among the justice's concerns about Trump attempting to fire
[0:29] Speaker 2: Federal Reserve Governor Lisa Cook over unproven mortgage fraud allegations
[0:35] Speaker 2: was that it would upend the Fed's independence and rattle
[0:38] Speaker 2: the markets. Justices Brett Cavanaugh and Amy Coney Barrett, both
[0:43] Speaker 2: Trump appointees, post skeptical questions to the Solicitor General.
[0:48] Speaker 3: But on that your position that there's no judicial review,
[0:54] Speaker 3: no process required, no remedy available, low bar for cause
[1:02] Speaker 3: that the president alone determines. I mean that would weaken,
[1:06] Speaker 3: if not shatter, the independence of the Federal Reserve that
[1:08] Speaker 3: we just discussed.
[1:10] Speaker 4: Justin Sodomaira brought up the public interest here, and we
[1:15] Speaker 4: have amicas brace from economists who tell us that if
[1:18] Speaker 4: Governor Cook is if we grant you your stay, that
[1:21] Speaker 4: it could trigger over session. How should we think about
[1:24] Speaker 4: the public interests in a case like this.
[1:26] Speaker 2: Both Cook and Federal Reserve Chairman Jerome Powell sat through
[1:30] Speaker 2: nearly two hours of oral arguments in the Pack courtroom today.
[1:34] Speaker 2: The issue before the court is whether Cook can stay
[1:37] Speaker 2: on the job while her challenge to the firing plays
[1:41] Speaker 2: out in the lower courts. That's a high bar and
[1:44] Speaker 2: includes a showing of irreparable harm to the president, which
[1:48] Speaker 2: several justices like Kaitanji Brown Jackson indicated there was no
[1:52] Speaker 2: evidence of.
[1:54] Speaker 5: So the question is, to what extent do we believe
[2:01] Speaker 5: that the president or the public is harmed by allowing
[2:05] Speaker 5: miss Cook to remain in her position for the pendency
[2:09] Speaker 5: of this case. I'm not sure that we have evidence
[2:13] Speaker 5: here that missus Cook is an immediate threat to the public.
[2:19] Speaker 2: My guest is an expert in constitutional law, David Super,
[2:22] Speaker 2: a professor at Georgetown Law. David, if you just go
[2:26] Speaker 2: by the oral arguments, did it seem like there were
[2:29] Speaker 2: at least five justices who would vote to keep Lisa
[2:33] Speaker 2: Cook in her job while the litigation plays out?
[2:37] Speaker 1: I think so. The government's lawyer faced pretty tough questioning
[2:43] Speaker 1: from seven justices, and it only takes five.
[2:46] Speaker 2: Explain the four cause requirement in the fred Reserve Act.
[2:51] Speaker 1: Certainly, the Federal Reserve Act creates the Board of Governors,
[2:56] Speaker 1: allows the President to appoint people to that board with
[3:01] Speaker 1: Senate confirmation, and provides that once appointed and confirmed, they
[3:06] Speaker 1: cannot be removed except for cause. That effectively means that
[3:11] Speaker 1: they must do something wrong or fail to do their
[3:15] Speaker 1: jobs in order to be removed. It's not just up
[3:19] Speaker 1: to the president to fire them anytime he wants. He
[3:22] Speaker 1: can fire his chief of staff anytime he wants, but
[3:26] Speaker 1: members of the Federal Reserve Board, he has to have
[3:29] Speaker 1: a good reason a cause to do it.
[3:32] Speaker 2: In general, you mentioned seven justices seem to have problems.
[3:36] Speaker 2: Can you quantify or describe what the nature of their
[3:40] Speaker 2: concerns were?
[3:42] Speaker 1: Well, there's a lot of niceties in this case, but
[3:45] Speaker 1: what it comes down to is whether the Federal Reserve
[3:47] Speaker 1: will be independent, whether it will exercise its enormous powers
[3:53] Speaker 1: based on best expert judgment and the directions given by Congress,
[3:58] Speaker 1: or whether it will be just a tool the sitting
[4:00] Speaker 1: president who can use it irresponsibly to advance his political fortunes.
[4:06] Speaker 2: So Lisa Cook first argues that she was entitled to
[4:10] Speaker 2: formal notice and a chance to defend herself before Trump
[4:14] Speaker 2: fired her. The Solicitor General seemed to be facing a
[4:18] Speaker 2: lot of skeptical questioning about the idea that Trump's social
[4:22] Speaker 2: media posts qualified as formal notice, and then Amy Cony
[4:25] Speaker 2: Barrett said, why are you afraid of a hearing? It
[4:28] Speaker 2: wouldn't be that big of a deal for Trump to
[4:30] Speaker 2: give her a face to face meeting. Did you find
[4:33] Speaker 2: a lot of skepticism on the justices part that there
[4:36] Speaker 2: was notice here?
[4:37] Speaker 1: Certainly, social media, particularly one's own personal social media platform,
[4:44] Speaker 1: is not a conventional way of giving notice. It's a
[4:47] Speaker 1: way of doing public politics. The Slicter General actually went
[4:51] Speaker 1: even farther than you say and suggested that the failure
[4:56] Speaker 1: of doctor Cook to tweet back at Trump should be
[5:01] Speaker 1: held against her, should be held as an admission that
[5:04] Speaker 1: what Trump said was true. If I was held responsible
[5:08] Speaker 1: for every tweet I ignored, I would be in a
[5:12] Speaker 1: very bad way.
[5:13] Speaker 2: Was there any argument that she had a hearing?
[5:15] Speaker 1: No, there was no hearing. There was no pretense of
[5:18] Speaker 1: a hearing. And the argument that this Solicter General was
[5:23] Speaker 1: forced to make is that she got the equivalent of
[5:28] Speaker 1: a hearing in public in getting adverse social media posts
[5:34] Speaker 1: from Trump and not responding to them. That's an argument
[5:38] Speaker 1: that even some most conservative justices seem to have a
[5:42] Speaker 1: great difficulties.
[5:43] Speaker 2: Following, she also argues that Trump's reasons for firing her
[5:48] Speaker 2: this mortgage fraud allegations that she has denied, don't qualify
[5:54] Speaker 2: as cause. What did you hear from the justices on
[5:57] Speaker 2: that the cause requirement?
[5:59] Speaker 1: Well, there was less clarity as to what they were
[6:03] Speaker 1: thinking about that, at least my take on the argument.
[6:06] Speaker 1: There are some statutes that provide considerable detail as to
[6:12] Speaker 1: what is caused. This statute isn't really one of them.
[6:16] Speaker 1: And some justices, particularly Justice Thomas, seemed to be thinking
[6:22] Speaker 1: that that difference between this and other laws means that
[6:27] Speaker 1: anything that Trump says is cause is good enough. But
[6:31] Speaker 1: there are other justices that seemed responsive to the notion
[6:36] Speaker 1: that if the President can just make up any old
[6:39] Speaker 1: cause he wants, that there is effectively no independence for
[6:43] Speaker 1: the Federal Reserve. And I think that the extreme nature
[6:49] Speaker 1: of the argument here that the Slisser General had to
[6:53] Speaker 1: make is going to bite them. The essence of doctor
[6:56] Speaker 1: Crook's argument is all this information was availed before I
[7:01] Speaker 1: was appointed and confirmed. Congress could have taken that into
[7:05] Speaker 1: account in deciding whether it confirmed me. They didn't. And
[7:09] Speaker 1: the good cause requirement is supposed to relate to something
[7:13] Speaker 1: one does on the job. I didn't have this job
[7:17] Speaker 1: when I sought those mortgages that Trump is saying are improper.
[7:22] Speaker 2: Yeah, I mean there wasn't. The veracity of the allegations
[7:27] Speaker 2: isn't really before the court. There was little discussion of it,
[7:30] Speaker 2: although the Chief Justice talked about it a little bit, saying,
[7:34] Speaker 2: suppose it was an inadvertent mistake contradicted by other documents,
[7:38] Speaker 2: and he also asked Cook's lawyer about the evidence that
[7:41] Speaker 2: this was at most and inadvertent error. I mean, are
[7:45] Speaker 2: the justices going to go there?
[7:47] Speaker 3: Do you think?
[7:48] Speaker 1: Well, the justice have several ways of dealing with this
[7:51] Speaker 1: if we assume which after argument, I think we can
[7:55] Speaker 1: that a majority of the court does not want a
[7:59] Speaker 1: highly plaic fedal reserve and needs to find some way
[8:03] Speaker 1: of keeping doctor Cook on the board. They've got several
[8:06] Speaker 1: ways to go. They can say that the hearing was improper,
[8:11] Speaker 1: or the absence of a hearing and the notice was improper.
[8:14] Speaker 1: They can say that something that happened prior to her
[8:17] Speaker 1: taking the job doesn't count as good cause they can
[8:22] Speaker 1: say that the lower courts need to look into the
[8:26] Speaker 1: merits of this or and this is something Justice Barrett
[8:31] Speaker 1: seemed interested in. They can simply say that President Trump
[8:36] Speaker 1: is not suffering any legal injury from having doctor Cook
[8:41] Speaker 1: continue to serve, and therefore he simply doesn't qualify for
[8:46] Speaker 1: a stay of the lower court's injunction.
[8:49] Speaker 2: Yeah, so, I mean the Supreme Court doesn't have to
[8:52] Speaker 2: definitively resolve whether Trump can fire Cook. The issue is
[8:55] Speaker 2: whether she can stay on the job while her challenge
[8:58] Speaker 2: to the firing plays out in the lawe lower courts.
[9:01] Speaker 2: That's a high bar, isn't it, and includes what you've
[9:03] Speaker 2: referred to irreparable harm. So you know where's the irreparable
[9:07] Speaker 2: harm to Trump?
[9:08] Speaker 1: Well, we have gotten accustom over the last year to
[9:12] Speaker 1: the Supreme Court finding that any potential impairment of President
[9:17] Speaker 1: Trump's powers is an irreparable injury. But if I asked
[9:22] Speaker 1: you to go way back in time one year, that
[9:25] Speaker 1: was very extraordinary, and getting the Supreme Court to intervene
[9:29] Speaker 1: in lower court cases was very difficult throughout most of
[9:33] Speaker 1: this country's history. So perhaps the Court will refert to
[9:37] Speaker 1: that and say we shouldn't get involved until this gets
[9:41] Speaker 1: fully aired out. The lower courts.
[9:43] Speaker 2: Also, you know, talk about pushing the boundaries. John Soer,
[9:47] Speaker 2: the Solicitor General, said that the courts shouldn't be allowed
[9:51] Speaker 2: to review presidential firing decisions, even if there's a four
[9:55] Speaker 2: cause requirement, And the Chief Justice at one point said,
[9:59] Speaker 2: why waste our time? If your position is we have
[10:01] Speaker 2: no authority, why waste our time? And even just as
[10:04] Speaker 2: Alito express concern the administration had handled this in a
[10:08] Speaker 2: cursory manner, are the mortgage applications even in the record
[10:12] Speaker 2: in this case? So, you know, it seemed like that
[10:16] Speaker 2: was going too far for most of the justices, even
[10:19] Speaker 2: the conservatives.
[10:20] Speaker 1: I think so because the Solicter General's position is that
[10:25] Speaker 1: the courts can't look at this. And if the president
[10:29] Speaker 1: can fire a Federal Reserve governor based on anything the
[10:34] Speaker 1: president makes up, and no matter how absurd and unfounded
[10:38] Speaker 1: it is, it can't be reversed. Then effectively there is
[10:42] Speaker 1: no four cause requirement in the Federal Reserve Statute, and
[10:46] Speaker 1: these people all serve at the pleasure of the president.
[10:49] Speaker 1: Many many economists across the political spectrum believe that losing
[10:55] Speaker 1: the independence of the Federal Reserve would in the long
[10:58] Speaker 1: term reduce invest from an increase infation of this country.
[11:02] Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
[11:05] Speaker 2: this conversation with Georgetown law professor David Super We'll look
[11:09] Speaker 2: at some of the different ways the Court could rule
[11:11] Speaker 2: in the case and a sort of warning from Justice
[11:15] Speaker 2: Kavanaugh that what goes around comes around. I'm June Grosso
[11:19] Speaker 2: and you're listening to Bloomberg. The Supreme Court seems inclined
[11:25] Speaker 2: to keep Federal Reserve Governor Lisa Cook in her job
[11:29] Speaker 2: as her lawsuit against President Trump for firing her goes
[11:33] Speaker 2: forward in the lower courts. The case against Cook stems
[11:36] Speaker 2: from allegations she claimed two properties in Michigan and Georgia
[11:40] Speaker 2: as primary residences in mortgage applications before she joined the
[11:45] Speaker 2: Fed Board. Cook has denied any wrongdoing, and Justice Katanji
[11:49] Speaker 2: Brown Jackson pointed out the lack of evidence against her
[11:53] Speaker 2: during oral arguments.
[11:54] Speaker 5: Today, when an allegation is made about someone's misconduct or whatnot,
[12:00] Speaker 5: an opportunity for that person to present evidence, for the
[12:04] Speaker 5: other side to present evidence, And even if the President
[12:07] Speaker 5: was the final arbiter of this, one would expect that
[12:10] Speaker 5: he would do so. On the basis of evidence. So
[12:12] Speaker 5: what I'm trying to understand is what is the evidence
[12:16] Speaker 5: that has been presented and considered with respect to ms
[12:21] Speaker 5: Cook's alleged misconduct.
[12:23] Speaker 2: Cook contends that even if the mortgage allegations were true,
[12:28] Speaker 2: that isn't grounds for firing her for cause. She also
[12:32] Speaker 2: argues that she should have been given notice and an
[12:34] Speaker 2: opportunity to contest the allegations, and several of the justices
[12:39] Speaker 2: questioned the Solicitor General about why the administration was reluctant
[12:44] Speaker 2: to give her that opportunity. Here are Justices Amy Cony, Barrett,
[12:48] Speaker 2: and Brett Cavanaugh.
[12:50] Speaker 4: Okay, so there's the truth social posts and then you know,
[12:53] Speaker 4: burden on her to come back in five days. I
[12:55] Speaker 4: understand that's your position. But you know, justice course, such
[12:58] Speaker 4: positive sit down the table on the Roosevelt Room, where
[13:02] Speaker 4: the President provides mss Cook Governor Cook with the evidence
[13:06] Speaker 4: and waits to hear what her response is, gives her
[13:09] Speaker 4: a chance to defend herself. I mean, that just wouldn't
[13:11] Speaker 4: be that big a deal, it seems, if that's enough.
[13:15] Speaker 3: And what's the fear of more process here? In the
[13:18] Speaker 3: sense that process protects you, in the sense of helping
[13:23] Speaker 3: you make better, more accurate decisions, and it helps process,
[13:26] Speaker 3: helps you then convince people on the outside that you've
[13:29] Speaker 3: made a considered, thorough appropriate decision. What's the concern about
[13:34] Speaker 3: more process.
[13:35] Speaker 2: I've been talking to Georgetown law professor David Super David
[13:39] Speaker 2: Justice Amy Cony Barrett right at the start of the
[13:42] Speaker 2: arguments talked about amikas briefs from economists. She said, we
[13:47] Speaker 2: have amkas briefs from economists who tell us that if
[13:51] Speaker 2: Governor Cook is fired, that would trigger a recession. And
[13:53] Speaker 2: then there was a discussion about the stock market where
[13:56] Speaker 2: she didn't want to talk about the stock market, but
[13:58] Speaker 2: that was sours answer to that. So I thought it
[14:01] Speaker 2: was interesting that, you know, she was referring to the
[14:03] Speaker 2: out of court briefs from economists to show, you know,
[14:07] Speaker 2: the big picture concern.
[14:09] Speaker 1: Well, the elephant in the room is the copious evidence
[14:15] Speaker 1: that non independent central banks are very bad for country's economies.
[14:21] Speaker 1: And you can look at Russia, you can look at Turkey,
[14:24] Speaker 1: you can look at other countries that do not have
[14:26] Speaker 1: independent central banks and they have enormous economic trouble as
[14:30] Speaker 1: a result. The justices know this, and even if philosophically
[14:35] Speaker 1: they'd like to let Trump have his way. I think
[14:38] Speaker 1: they don't want to be blamed for throwing the economy
[14:41] Speaker 1: into a recession. And to her credit, Justice Barrett put
[14:45] Speaker 1: that out on the table and gave the Solicitor General
[14:48] Speaker 1: the opportunity to respond. You didn't do much with it,
[14:51] Speaker 1: but she gave them a chance.
[14:52] Speaker 2: Was there an argument from the Solicitor General that resonated
[14:55] Speaker 2: with any of the justices?
[14:57] Speaker 1: Well, I mean, the biggest advance damage that the president
[15:01] Speaker 1: has in this case is that the Supreme Court is
[15:05] Speaker 1: pretty clearly going to strike down security of ten year
[15:09] Speaker 1: requirements for the vast majority of executive branch officials. That's
[15:14] Speaker 1: the Trump versus Slaughter case. An oral argument on that
[15:18] Speaker 1: made pretty clear that the Court is going to overrule
[15:22] Speaker 1: Humphrey's executor and allow the President to fire at will
[15:28] Speaker 1: members of even very sensitive boards like the Federal Trade Commission.
[15:32] Speaker 1: So the question here is always been can the Supreme
[15:36] Speaker 1: Court find a way of differentiating the Federal Reserve from
[15:41] Speaker 1: the Federal Trade Commission and all those others? And that's
[15:44] Speaker 1: I think what this Solster General was trying to go
[15:49] Speaker 1: with here is to suggest that the Court should just
[15:53] Speaker 1: treat this case like any other once you look at
[15:56] Speaker 1: the specifics, the accusations against her, all apart in your hands.
[16:01] Speaker 1: She was obviously given no hearing, and as several justices,
[16:05] Speaker 1: including Justice Kavanaugh, pointed out, if you allow the president
[16:10] Speaker 1: to make up anything and call it cause, then you
[16:14] Speaker 1: have effectively ended the fedce independent and that makes them
[16:18] Speaker 1: very nervous.
[16:20] Speaker 2: Justice Kavanaugh was also looking at the big picture when
[16:23] Speaker 2: he talked about basically, what goes around comes around.
[16:27] Speaker 3: Let's talk about the real world, downstream effects of this,
[16:31] Speaker 3: because if this were set as a precedent, it seems
[16:35] Speaker 3: to me, just thinking big picture, what goes around comes around.
[16:41] Speaker 3: All the current president's appointees would likely be removed for
[16:48] Speaker 3: cause on January twentieth, twenty twenty nine, if there's a
[16:51] Speaker 3: democratic president, or January twentieth, twenty thirty three, and then
[16:58] Speaker 3: we're really it at will removal. So what are we
[17:01] Speaker 3: doing here?
[17:02] Speaker 1: Yes, I mean, if one believes, as I do, that
[17:05] Speaker 1: President Trump's time horizon here is very short, and he
[17:09] Speaker 1: wants what he thinks is good for him right now,
[17:12] Speaker 1: doesn't care about the long term impacts, then that's of
[17:15] Speaker 1: no concern. But the whole reason we have a Supreme
[17:18] Speaker 1: court with life tenures, so they can look at the
[17:21] Speaker 1: long term, they can look at the long term impact
[17:24] Speaker 1: on the long long term impact on the economy, and
[17:27] Speaker 1: that I think is where a court that is generally
[17:30] Speaker 1: very sympathetic to President Trump's agenda starts getting extremely nervous.
[17:36] Speaker 2: Would you say that, along with the Tariff's decision, this
[17:39] Speaker 2: is one of the most important decisions of the term
[17:43] Speaker 2: as far as expanding presidential power.
[17:46] Speaker 1: Well, these two plus the Fellow Trade Commission case. But
[17:51] Speaker 1: I think everyone believes that case is going to expand
[17:54] Speaker 1: presidential power radically, So people I think are not spending
[17:58] Speaker 1: as much time thinking about that since they feel they
[18:01] Speaker 1: already know how it's coming out.
[18:03] Speaker 2: Do you think the administration launching a criminal investigation into
[18:08] Speaker 2: FED share Powell damages its chances for a win in
[18:13] Speaker 2: this case because it tends to show that Trump is
[18:17] Speaker 2: trying to reshape the FED rather than just firing one
[18:22] Speaker 2: person over unproven allegations.
[18:25] Speaker 1: Yes, I think that is certainly in the back of
[18:28] Speaker 1: the Justice's minds. Chairman Powell sitting there in the courtroom
[18:33] Speaker 1: watching all of this, so obviously, if they needed any reminding,
[18:38] Speaker 1: he was there in the flesh. I don't know why
[18:41] Speaker 1: they thought that was a good idea, particularly timed when
[18:44] Speaker 1: they did it, and particularly against someone like Chairman Powell,
[18:49] Speaker 1: who was appointed by President Trump and is pretty widely
[18:53] Speaker 1: approved of across the political spectrum, particularly among his fellow Republicans.
[18:59] Speaker 1: That makes me as a remarkably hand handed, tone deaf
[19:03] Speaker 1: thing to do. I wouldn't like the administration's chances in
[19:07] Speaker 1: this case even without the Power investigation, but they basically
[19:12] Speaker 1: gave the court no room to pretend that a ruling
[19:16] Speaker 1: against doctor Cook is compatible with an independent fed.
[19:20] Speaker 2: There were quite a few points of laughter during the
[19:24] Speaker 2: arguments while Lisa Cook's attorney, Paul Clement was arguing. He's
[19:29] Speaker 2: the former Solicitor General who is one of the premier
[19:32] Speaker 2: Supreme Court litigators. This is his fifth argument since October
[19:38] Speaker 2: before the justices. There seems to be something with Clement.
[19:42] Speaker 2: I don't know how to explain. It's sort of a
[19:44] Speaker 2: camaraderie with the justices. It's more of a back and
[19:48] Speaker 2: forth rather than skeptical questions.
[19:52] Speaker 1: Yes, former Solicitor Clement is an extraordinarily skilled lawyer in
[19:56] Speaker 1: general and Supreme Court practitioner in particular, but he's also
[20:01] Speaker 1: extremely conservative and is not likely to take a conservative
[20:08] Speaker 1: majority of the court for a ride to somewhere they
[20:11] Speaker 1: don't want to go. So people have been hiring Solicitor
[20:15] Speaker 1: General Clement, I think, to provide reassurance in cases that
[20:20] Speaker 1: might otherwise feel uncomfortable to this very conservative supermajority.
[20:26] Speaker 2: Is there a possibility that even Justice Alito might rule
[20:31] Speaker 2: against the Trump administration here?
[20:33] Speaker 1: I mean, he asked reasonable questions, but the town struck
[20:39] Speaker 1: me as being largely sympathetic with the president, and I
[20:42] Speaker 1: think he is more committed than most to the unitary
[20:46] Speaker 1: executive theory, which this would have to be an exception to.
[20:50] Speaker 2: When they write the opinion, do they have to explain
[20:53] Speaker 2: away what they do with the FTC and you know
[20:57] Speaker 2: where does it lead the unitary executive theory.
[21:01] Speaker 1: They've got various ways of hiding. The simplest is, because
[21:05] Speaker 1: this is a preliminary stage, is to simply say that
[21:09] Speaker 1: President Trump hasn't qualified for a stay and decided entirely
[21:16] Speaker 1: on procedural grounds. They also could say that they're not
[21:20] Speaker 1: required to consider what standards are appropriate for removing Federal
[21:26] Speaker 1: Reserve governors because in this case, the President claimed to
[21:31] Speaker 1: comply with the law. So all they have to do
[21:33] Speaker 1: is decide whether he did. They have a number of
[21:36] Speaker 1: ways of hiding. My guess is that they will not
[21:39] Speaker 1: be eager to explain how what they're doing here is
[21:43] Speaker 1: consistent with what they're going to do in the FTC case, because,
[21:47] Speaker 1: let's face it, it isn't. In this case. They know how
[21:50] Speaker 1: they want to come out, which is against Trump and
[21:52] Speaker 1: in favor of Federal Reserve independence, and they have a
[21:56] Speaker 1: huge obstacle to doing that, which is their desire to
[22:00] Speaker 1: who end the independence of all the other boards. So
[22:03] Speaker 1: the whole argument was basically the justices feeling around for
[22:08] Speaker 1: a way that they could decide this case the way
[22:11] Speaker 1: they want to without undermining what they're doing to the FDC.
[22:14] Speaker 1: And I think at the end of the day there
[22:16] Speaker 1: were enough as open to them where they could do that,
[22:19] Speaker 1: and they will do that, And the Slister General had
[22:24] Speaker 1: to hang his hat entirely on consistency with what they're
[22:29] Speaker 1: doing in the FTC case, because the actual decision on
[22:33] Speaker 1: doctor Cook is essentially defensible.
[22:36] Speaker 2: The arguments went on nearly two hours, but they were
[22:40] Speaker 2: really interesting on many different levels, and you can't always
[22:44] Speaker 2: say that, thanks so much, David. That's Professor David super
[22:48] Speaker 2: of Georgetown Law. Coming up next on the Bloomberg Law Show,
[22:52] Speaker 2: the Court's conservative justices appear likely to strike down Hawaii's
[22:57] Speaker 2: restrictions on carrying guns. I'm June Grosso and you're listening
[23:02] Speaker 2: to Bloomberg. The Supreme Court's conservative justices appeared skeptical of
[23:09] Speaker 2: a Hawaii law prohibiting the carrying of a gun in
[23:12] Speaker 2: private places that are open to the public unless the
[23:15] Speaker 2: property owner gives explicit permission lent. The arguments on Tuesday
[23:20] Speaker 2: touched on topics from Hawaii's pre statehood treatment of gun
[23:24] Speaker 2: rights to nineteenth century laws aimed at disarming formerly enslaved people.
[23:30] Speaker 2: Joining me is Hailey Lawrence, executive director of the Duke
[23:34] Speaker 2: Center for Firearms Law. Hailey start by telling us about
[23:37] Speaker 2: this Hawaii law.
[23:39] Speaker 6: So, back in twenty twenty three, the Hawaii legislature enacted
[23:43] Speaker 6: a law that effectively prohibits one from carrying a firearm
[23:47] Speaker 6: onto private property without the express permission of the property
[23:51] Speaker 6: owner or an agent of the property owner. So, in
[23:54] Speaker 6: the case of an apartment, someone who leases the apartment,
[23:56] Speaker 6: this flips the default setting of what we normally think
[23:59] Speaker 6: of and what most states do, and so Hawaii instead
[24:04] Speaker 6: of saying you have a right unless the property owner
[24:07] Speaker 6: tells you otherwise, has said by default, you have no
[24:10] Speaker 6: right to bring a firearm onto private property, even private
[24:14] Speaker 6: property held open to the public, unless you have the
[24:17] Speaker 6: express consent from the property owner.
[24:19] Speaker 2: Chief Justice Roberts said people don't have to obtain the
[24:22] Speaker 2: permission of private property owners before going door to door
[24:26] Speaker 2: to canvas for a political candidate, And he questioned why
[24:29] Speaker 2: gun rights are being treated differently than free speech rights.
[24:34] Speaker 2: I mean, it seems pretty obvious. Why.
[24:36] Speaker 7: Yeah, So in.
[24:38] Speaker 6: Hawaii's briefs, they try to analogize between the rights that
[24:42] Speaker 6: the First Amendment gives and the rights that the Second
[24:44] Speaker 6: Amendment gives. The challenge of that is that the court
[24:46] Speaker 6: applies fundamentally different tests to evaluate when a First Amendment
[24:51] Speaker 6: right has been infringed and when a Second Amendment right
[24:53] Speaker 6: has been infringed. And by that I mean in the
[24:56] Speaker 6: First Amendment context, the court focuses a lot on interest
[24:59] Speaker 6: balance and weighing various burdens that a law or a
[25:03] Speaker 6: government action places on someone's right to expression. And in
[25:07] Speaker 6: the Second Amendment context, the seminal case we got a
[25:10] Speaker 6: few years ago in twenty twenty two was Bruin, which
[25:13] Speaker 6: expressly foreclosed the use of interest balancing in Second Amendment cases.
[25:18] Speaker 7: Instead, it's focused on history and tradition.
[25:21] Speaker 6: Does the modern law that's being challenged have sufficient basis
[25:25] Speaker 6: in the nation's history and tradition? And I say nations
[25:28] Speaker 6: with emphasis for a reason, the nation's history and tradition.
[25:32] Speaker 7: Such that it is constitutional.
[25:34] Speaker 6: The reason I put emphasis on nation is because a
[25:37] Speaker 6: part of Hawaii's briefing and a lot that they emphasize
[25:40] Speaker 6: the oral argument yesterday was that this principle is deeply
[25:44] Speaker 6: rooted in Hawaiian legal tradition. The court didn't seem particularly
[25:48] Speaker 6: interested in that, and petitioners push back on it, which
[25:51] Speaker 6: is interesting for a number of reasons, particularly because Hawaii
[25:55] Speaker 6: was in a state until the late twentieth century, and
[25:58] Speaker 6: so if the two periods of time for sake of
[26:01] Speaker 6: argument that we're focusing on as relevant to determining what
[26:04] Speaker 6: the history and tradition are of the nation, Hawaiian laws
[26:07] Speaker 6: will never be relevant to that inquiry.
[26:10] Speaker 2: Is that the reason why the San Francisco Appellate Court
[26:14] Speaker 2: upheld this law and the New Jersey Appellate Court struck
[26:18] Speaker 2: down a similar law.
[26:20] Speaker 6: No, So, actually the reason why the Ninth Circuit ruled
[26:23] Speaker 6: in Hawaii's favor is because of several extra Hawaii historical
[26:28] Speaker 6: analogs that the state pointed to. There's several laws from
[26:31] Speaker 6: New Jersey and other states in the Northeast that existed
[26:35] Speaker 6: at the founding and then again at the reconstruction era.
[26:38] Speaker 6: So pointed to several laws over a course of one
[26:40] Speaker 6: hundred years from states outside of Hawaii to support the
[26:44] Speaker 6: proposition that the government can regulate private property and vindicate
[26:48] Speaker 6: the rights of property owners, but also do so.
[26:51] Speaker 7: In the gun context.
[26:53] Speaker 2: What was Hawaii's best argument in defending its law.
[26:57] Speaker 6: So the challenge for Hawaii is that, you know, I
[27:01] Speaker 6: think they came into a court that was largely skeptical of.
[27:05] Speaker 7: Its arguments to begin with.
[27:07] Speaker 6: Justice Jackson is an incisive questioner as ever, and I
[27:10] Speaker 6: think did her best to, particularly after the divergence about
[27:14] Speaker 6: First Amendment case law, bring us back to first principles
[27:18] Speaker 6: of Bruin. The thing I was looking for when I
[27:20] Speaker 6: was listening to these arguments yesterday is whether or not
[27:23] Speaker 6: the Court is thinking about this as a property rights
[27:25] Speaker 6: case or a Second Amendment public carry case. It seems
[27:29] Speaker 6: like the conservative justices in particular were focused on this
[27:32] Speaker 6: and the framing.
[27:33] Speaker 7: Of it as a public carry case.
[27:35] Speaker 6: And the reason I say that is because so much
[27:39] Speaker 6: of it talked about the imposition that the law places
[27:43] Speaker 6: on someone's right to carry a firearm and into private
[27:47] Speaker 6: places held open to the public. A frequent example that
[27:50] Speaker 6: was used in oral arguments was a gas station and
[27:54] Speaker 6: other sort of retail establishments that hold themselves open to
[27:58] Speaker 6: the public. One thing that I think would interestingly absent
[28:02] Speaker 6: is sort of like the temporal locations on private property
[28:05] Speaker 6: held open to the public, and the role that those
[28:08] Speaker 6: temporal locations would play in this analysis. By that, I
[28:12] Speaker 6: mean just because a gas station is open for certain
[28:15] Speaker 6: hours of the day and may or may not welcome
[28:18] Speaker 6: someone public carrying onto the property, that doesn't mean someone
[28:21] Speaker 6: has a right to go onto the property when the
[28:22] Speaker 6: business is closed with a firearm right. And so I
[28:25] Speaker 6: was interested by the absence of that discussion in the
[28:29] Speaker 6: oral arguments.
[28:30] Speaker 2: So, just as Alito talked about the state was relegating
[28:33] Speaker 2: the Second Amendment to second class status, and that seems
[28:36] Speaker 2: to be a concern that they have been talking about
[28:39] Speaker 2: the Conservatives, at least just as Alito and Justice Thomas
[28:43] Speaker 2: for so long. I mean is that a fair assessment.
[28:47] Speaker 6: They've certainly been parroting that line for quite some time.
[28:51] Speaker 6: I think it came up in particularly obvious fashion in
[28:55] Speaker 6: the First Amendment Second Amendment discussion. But the fundamental differences
[28:59] Speaker 6: might isn't going to kill someone? My speech doesn't present
[29:02] Speaker 6: a significant public safety risk, and the speech that does
[29:07] Speaker 6: is regulated.
[29:08] Speaker 7: Shouting fire and crowded theater is.
[29:10] Speaker 6: The obvious example that people come back to. And so
[29:14] Speaker 6: in my research, in my personal capacity, I don't think
[29:16] Speaker 6: that the Second Amendment is a disfavored right like they've said.
[29:19] Speaker 6: But that's the Court's position, and it seems like it
[29:21] Speaker 6: will guide the rest of this term and its future
[29:24] Speaker 6: Second Amendment case law for the foreseeable future.
[29:27] Speaker 2: Explain how the Bruin case, which established that history and
[29:31] Speaker 2: tradition analysis, how it's been confusing for the lower courts
[29:36] Speaker 2: and has led to lots of litigation over just what
[29:40] Speaker 2: the test is.
[29:42] Speaker 6: Yeah, So the test is the first question is the
[29:46] Speaker 6: challenge regulation does it invoke the plaintext or the plane
[29:49] Speaker 6: meeting of the Second Amendment. If the answer is yes,
[29:53] Speaker 6: then the government bears the burden of showing that the
[29:55] Speaker 6: challenge law finds sufficient support in the history and tradition
[29:59] Speaker 6: of the nation's firearms law of regulation. There are a
[30:02] Speaker 6: lot of open questions about what constitutes an arm. For example,
[30:06] Speaker 6: there are several cert petitions before the Supreme Court this
[30:09] Speaker 6: term about large capacity magazines and whether or not that
[30:13] Speaker 6: falls within the first step of Bruin or the second
[30:15] Speaker 6: step of Bruin. There are questions about who is covered.
[30:18] Speaker 6: The Court actually on Tuesday denied several petitions in cases
[30:23] Speaker 6: arguing that folks who have been convicted of a non
[30:27] Speaker 6: violent felony should have their firearms rights restored and fall
[30:31] Speaker 6: within the people covered by the second amendments.
[30:33] Speaker 7: That's the who question.
[30:35] Speaker 6: There's also the levels of generality question which comes up
[30:38] Speaker 6: in the second step of the Bruin inquiry, which is, okay,
[30:43] Speaker 6: so let's say we have a bunch of examples from
[30:46] Speaker 6: various periods in history of laws that regulate firearms ownership,
[30:50] Speaker 6: firearms carrying, what types of firearms you can have, etc.
[30:55] Speaker 6: The question is that Bruin posited basically, what the why
[30:59] Speaker 6: and the how?
[31:00] Speaker 7: So what's being regulated, why is it being regulated, and
[31:04] Speaker 7: how is it being regulated?
[31:06] Speaker 6: And so the levels of generality question is challenging because
[31:09] Speaker 6: one most of the questions were not answered, and Bruin
[31:12] Speaker 6: two lower cords are struggling to identify the relevant level
[31:17] Speaker 6: of generality to answer the principles question of like why
[31:20] Speaker 6: are things being regulated, who is the subject of the regulation,
[31:24] Speaker 6: what's the purpose of the regulation? Because in Rahemi we've
[31:27] Speaker 6: got a pretty broad statement of the why and who,
[31:31] Speaker 6: which is that the government is allowed, in simple terms,
[31:35] Speaker 6: to disarm people that they find to be dangerous. That
[31:38] Speaker 6: involved a challenge to a law prohibiting folks subject to
[31:43] Speaker 6: domestic violence restraining orders from possessing firearms, and so that's
[31:48] Speaker 6: a pretty high level of generality. If we're talking about
[31:50] Speaker 6: dangerous people writ large, then that's a pretty high level
[31:54] Speaker 6: of generality. But in this case, the questions from the justices,
[32:00] Speaker 6: the arguments themselves, were particularly about historical analogs, were much
[32:04] Speaker 6: more narrowly focused about, well, this law is about poaching.
[32:09] Speaker 7: The historical law you're talking about, it's about poaching. But
[32:11] Speaker 7: this isn't about poaching.
[32:12] Speaker 6: It's about regulating private property and allowing someone onto your
[32:16] Speaker 6: private property with a firearm. If you take it at
[32:18] Speaker 6: a really broad view, they're both about regulating private property
[32:21] Speaker 6: and the right to carry a firearm onto the private property.
[32:24] Speaker 6: But if you take it in a much narrower view,
[32:26] Speaker 6: it's going to be a lot harder to find support
[32:28] Speaker 6: for modern laws in historical analogs because many of the
[32:32] Speaker 6: problems that modern firearm laws confront simply didn't exist one
[32:36] Speaker 6: hundred or two hundred years ago.
[32:37] Speaker 2: So there have been some cases you mentioned, Rahimi, where
[32:40] Speaker 2: they ruled against the expansion of gun rights. Is there
[32:44] Speaker 2: a line that you see them, you know, drawing as
[32:48] Speaker 2: to when and where they'll allow gun restrictions and where
[32:52] Speaker 2: they won't, or is it just case by case.
[32:56] Speaker 6: It's a hard question to answer, and I think it's
[32:57] Speaker 6: the reason so many lower courts have been struggle willing
[33:00] Speaker 6: to find a through line, which is that we have
[33:04] Speaker 6: all of these open questions about the doctrine because it
[33:06] Speaker 6: is so new, So I, much like them, can't.
[33:09] Speaker 7: Give you a straight answer one way or the other.
[33:11] Speaker 2: Unfortunately, if they strike down the Hawaii law, property owners
[33:15] Speaker 2: can still put up signs that say you can't come
[33:19] Speaker 2: into my store or my gas station carrying a gun.
[33:23] Speaker 7: That's exactly right, yep.
[33:25] Speaker 6: So property owners in Hawaii will still have the right
[33:27] Speaker 6: to exclude. That's a fundamental right in property law across
[33:31] Speaker 6: the nation, and that applies even to private property held
[33:34] Speaker 6: open to the public.
[33:35] Speaker 2: There are a couple of other states, four other states
[33:38] Speaker 2: that have similar restrictions. Will this decision automatically invalidate those
[33:44] Speaker 2: laws or will those have to be challenged in court
[33:47] Speaker 2: as well?
[33:48] Speaker 6: As first my understanding is this isn't a facial challenge,
[33:51] Speaker 6: so would only apply as to Hawaii. California's law, which
[33:55] Speaker 6: is similar but a little bit more stringent, was also
[33:58] Speaker 6: challenged below.
[34:00] Speaker 7: They did not bring a.
[34:02] Speaker 6: Petition with respect to the California law because the petitioner's
[34:06] Speaker 6: one below at the ninth Servia on the California law.
[34:09] Speaker 6: So I don't think there's anything further to do on
[34:12] Speaker 6: that front. But as far as the other states go,
[34:13] Speaker 6: I would expect challenges at least in the Federal District
[34:17] Speaker 6: court applying principles of what we get in Wolford to
[34:21] Speaker 6: those other laws. Or One of the other open questions
[34:24] Speaker 6: I neglected to mention before is what laws are appropriate
[34:29] Speaker 6: for analogy and so a lot of the frankly more
[34:32] Speaker 6: acerbic exchanges yesterday before the court were about Reconstruction era
[34:37] Speaker 6: laws that aimed to disarm people of color and newly
[34:41] Speaker 6: freed slaves.
[34:43] Speaker 7: Justice.
[34:43] Speaker 6: Jackson thinks that including them in history and tradition is
[34:48] Speaker 6: sort of a natural logical result of the Bruin test,
[34:52] Speaker 6: which is it exists as part of the tradition.
[34:55] Speaker 7: Repugnant as it may be, it's still part of the tradition.
[35:00] Speaker 6: And you know, I think it's particularly impactful, meaningful coming
[35:05] Speaker 6: from her who so regularly fights these sort of battles,
[35:08] Speaker 6: and I think it just evinces that she is continuing
[35:11] Speaker 6: to push what she sees as the flaws in Bruin
[35:15] Speaker 6: with little apparent success, I think, with some of her
[35:18] Speaker 6: more conservative colleagues. But I think she's highlighting, both for
[35:22] Speaker 6: the public and for judges across the nation, the methodological
[35:26] Speaker 6: shortcomings of Bruins and the types of questions the court
[35:29] Speaker 6: will still have to answer.
[35:31] Speaker 2: Thanks so much, Haley. That's Haley Lawrence, Executive director of
[35:35] Speaker 2: the Duke Center for Firearms Law. A note. Michael Bloomberg,
[35:39] Speaker 2: the founder and majority owner of Bloomberg LP, the parent
[35:42] Speaker 2: company of Bloomberg Radio, is a donor to groups that
[35:45] Speaker 2: support gun control, including every Town for Gun Safety. And
[35:50] Speaker 2: that's it for this edition of The Bloomberg Law Show.
[35:52] Speaker 2: Remember you can always get the latest legal news on
[35:54] Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
[35:59] Speaker 2: and it doublew dot Bloomberg dot com, slash podcast, slash Law,
[36:04] Speaker 2: and remember to tune into The Bloomberg Law Show every
[36:07] Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
[36:11] Speaker 2: and you're listening to Bloomberg

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