# Weekend Law: Vampire Gun Rule & Trump Headed for SCOTUS Loss

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 24 Jan 2026, 39 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/4992c936-8b67-476e-8a59-b3dc017054c9/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Second Amendment expert Adam Winkler, a professor at UCLA Law School, discusses the SCOTUS oral arguments on a Hawaii gun law called the “vampire rule.” Constitutional law expert David Super, a professor at Georgetown Law, discusses SCOTUS oral arguments on President Trump’s attempt to fire Fed Reserve Governor Lisa Cook. 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: Hawaii's law restricting the carrying of guns onto private property
[0:12] Speaker 2: open to the public like stores, hotels, and gas stations
[0:16] Speaker 2: without the consent of the property owner is known as
[0:20] Speaker 2: the Vampire rule, and it looks like the Supreme Court's
[0:23] Speaker 2: conservative justices are about to drive a stake into it.
[0:27] Speaker 2: At oral arguments on Tuesday, the Conservatives were roundly skeptical
[0:32] Speaker 2: of the law. Chief Justice John Roberts wanted to know
[0:36] Speaker 2: why the Second Amendment was being relegated to second class status.
[0:41] Speaker 3: It is a very clear constitutional right under the First Amendment.
[0:44] Speaker 3: If I, for example, as a candidate for office, want
[0:47] Speaker 3: to walk up to your door on private property and
[0:50] Speaker 3: knock on the door and say here, give me your vote,
[0:53] Speaker 3: that's exercising your First Amendment right. But you say that
[0:56] Speaker 3: it's different when it comes to the Second Amendment.
[0:59] Speaker 2: And Samuel Alito wanted to know why Hawaii even needed
[1:03] Speaker 2: the law.
[1:04] Speaker 4: So, what then, is the big deal about this statute?
[1:08] Speaker 4: Why does it matter if store owners and owners of
[1:11] Speaker 4: private property is that are generally open to the public
[1:15] Speaker 4: don't like guns. Why is it a big deal to
[1:18] Speaker 4: say they want people carrying guns to stay.
[1:20] Speaker 1: Out, just put up a sign.
[1:22] Speaker 2: My guest is a Second Amendment expert Adam Winkler, a
[1:25] Speaker 2: professor at UCLA Law School. Adam explained the Hawaii law
[1:30] Speaker 2: for us and why it's called the vampire rule.
[1:33] Speaker 5: It's called the vampire rule because the traditional legend of
[1:37] Speaker 5: the vampire is that they can't go on to private
[1:40] Speaker 5: property without the owner's consent, and that's a real limit
[1:44] Speaker 5: to vampire's ability to attack people and suck their blood
[1:47] Speaker 5: if they can't break in or whatnot. So this case
[1:50] Speaker 5: is Wolford versus Lopez, and the question in the case
[1:52] Speaker 5: is whether the Second Amendment is infringed by a Hawaii
[1:57] Speaker 5: law that requires gun carriers to obtain affirmative permission before
[2:02] Speaker 5: bringing their guns onto private property that is otherwise open
[2:06] Speaker 5: to the public. And so that's why it's kind of
[2:07] Speaker 5: thought as the vampire rule. Do you, like a vampire,
[2:10] Speaker 5: have to get affirmative permission? Now, of course, private property
[2:13] Speaker 5: owners can prohibit guns from their property. The issue here
[2:17] Speaker 5: is the default rule. Most states say that you can
[2:20] Speaker 5: bring your guns unless the property owner affirmatively says no,
[2:24] Speaker 5: you can't, typically by posting a sign that says no
[2:28] Speaker 5: guns allowed. Hawaii and several other states have adopted a
[2:31] Speaker 5: different rule. Property owners must affirmatively consent in advance to
[2:36] Speaker 5: people bringing guns on their property.
[2:38] Speaker 2: So why does the government say that violates the Second Amendment.
[2:42] Speaker 5: Well, it goes back to this history and tradition test
[2:46] Speaker 5: that was established by the Bruin case a few years ago.
[2:50] Speaker 5: And in that case, the Supreme Court said that for
[2:52] Speaker 5: a gun law to be constitutionally permissible, it has to
[2:55] Speaker 5: be consistent with the tradition of gun regulation in the
[2:58] Speaker 5: seventeen and eighteen hundreds. And the gun challengers here are saying,
[3:03] Speaker 5: one that there isn't a history and tradition of a
[3:06] Speaker 5: default rule requiring affirmative consent in advance for people to
[3:10] Speaker 5: bring guns onto private property that's open to the public,
[3:13] Speaker 5: and two that the consequences of Hawaii's law are devastating
[3:19] Speaker 5: for gun carrying. The Supreme Court has said, you have
[3:21] Speaker 5: a right to carry guns in public, and if the
[3:25] Speaker 5: default rule established by Hawaii and several other states like
[3:28] Speaker 5: California stands, then gun owners really won't be able to
[3:32] Speaker 5: carry their guns around because they couldn't even stop at
[3:35] Speaker 5: a gas station without affirmatively first getting consent, so it
[3:38] Speaker 5: would effectively nullify the right to bear arms.
[3:41] Speaker 2: So as far as the history and tradition test, Hawaii
[3:44] Speaker 2: did present historical evidence to support the gun law, including
[3:48] Speaker 2: an eighteen thirty three law in place during the reign
[3:50] Speaker 2: of King Kamehameha and in eighteen sixty five Louisiana law,
[3:55] Speaker 2: but it didn't seem that was enough for the conservative justices.
[3:58] Speaker 2: Brett Kavanaugh said, there's no sufficient history case closed.
[4:03] Speaker 5: Well, the real challenge of applying Bruin's history and tradition
[4:07] Speaker 5: tests is in part that there's often not much of
[4:12] Speaker 5: a tradition of anything when it comes to regulating guns,
[4:16] Speaker 5: besides sort of racist gun laws, and you know, a
[4:20] Speaker 5: couple laws here and there, and so it's hard to
[4:23] Speaker 5: find consistency or predictability. The Ninth Circuit here said that
[4:28] Speaker 5: there was a national tradition of prohibiting the carrying of
[4:30] Speaker 5: firearms on private property without consent. Yet several justices in
[4:34] Speaker 5: the oral arguments suggest that there was no such history.
[4:37] Speaker 5: And the challenge of Bruin with regards to say default
[4:41] Speaker 5: rules for private property that's open to the public is
[4:44] Speaker 5: that there really weren't default rules in either direction. In
[4:47] Speaker 5: the seventeen and eighteen hundreds, and so once again we're
[4:50] Speaker 5: trying to figure out the constitutionality of modern laws by
[4:54] Speaker 5: reference to analogies to a tradition that didn't exist in either.
[5:00] Speaker 5: In many of these cases.
[5:02] Speaker 2: Justice Samuel Alito told Hawai's attorney Neil Katieu, you're relegating
[5:07] Speaker 2: the Second Amendment to second class status, and the Chief
[5:10] Speaker 2: Justice compared it to the First Amendment allowing a political
[5:14] Speaker 2: candidate to walk up to someone's door to campaign. Quote,
[5:17] Speaker 2: you say it's different for the Second Amendment, What exactly
[5:21] Speaker 2: is the distinction. Isn't the distinction obvious that in one
[5:25] Speaker 2: you're carrying a weapon that can hurt people and the
[5:28] Speaker 2: other you're carrying pamphlets.
[5:30] Speaker 5: Well, it would seem that that would be a pretty
[5:32] Speaker 5: viable distinction. It might not lead to the outcome that
[5:36] Speaker 5: the challengers hope for, or even might not necessarily lead
[5:39] Speaker 5: to the outcome that Hawaii is hoping for, but it
[5:42] Speaker 5: just highlights what's happened a continuing rhetoric that we see
[5:45] Speaker 5: among the conservative justices, which is that the Second Amendment
[5:49] Speaker 5: they feel is being treated like a second class right
[5:52] Speaker 5: because courts are upholding gun laws and in upholding gun laws.
[5:57] Speaker 5: They are not treating the Second Amendment the amount of
[6:00] Speaker 5: respect that they want. What was surprising about this oral
[6:04] Speaker 5: argument was not that some of the justices said that
[6:06] Speaker 5: the Second Amendment is being treated like a second class right.
[6:09] Speaker 5: We've seen that argument made time and again by Clarence Thomas,
[6:13] Speaker 5: by Neil Gorsich, by Sam Alido. What was surprising in
[6:17] Speaker 5: this case was that the Chief Justice voiced that concern.
[6:21] Speaker 5: He suggested that the Second Amendment was being unfairly treated
[6:25] Speaker 5: like a disfavored right to stink from the First Amendment.
[6:28] Speaker 5: And that's surprising because the Chief Justice we've sort of
[6:31] Speaker 5: all thought to be somewhat reluctant to expanding Second Amendment
[6:37] Speaker 5: protections beyond Bruin and Heller, and this suggested that maybe
[6:41] Speaker 5: he did agree with the more conservative colleagues that the
[6:44] Speaker 5: Second Amendment needs more protection, that the courts need to
[6:47] Speaker 5: be striking down more gun laws right now.
[6:49] Speaker 2: You're an expert on the Second Amendment. Do you think
[6:52] Speaker 2: it's a disfavored amendment or it's being relegated to second
[6:56] Speaker 2: class status?
[6:57] Speaker 5: I personally don't, but I do recognize that the courts
[7:00] Speaker 5: are really struggling right now to try to figure out
[7:02] Speaker 5: what the Second Amendment means, where it applies, and what
[7:06] Speaker 5: is constitutionally permissible. And I think it really comes back
[7:09] Speaker 5: a little bit, at least to this history and tradition
[7:12] Speaker 5: test established by Bruin. It has really left the lower
[7:15] Speaker 5: courts in chaos. That where the Supreme Court said, the
[7:18] Speaker 5: reason why we need this history and tradition test is
[7:21] Speaker 5: going to limit judicial activism, prevent judges from imposing their
[7:25] Speaker 5: values on the Constitution, and provide more predictability. But instead,
[7:29] Speaker 5: what we've seen is tremendous inconsistency in the lower courts,
[7:33] Speaker 5: tremendous disagreement over the scope of gun laws, and in
[7:36] Speaker 5: part because the history and tradition of gun regulation. There
[7:39] Speaker 5: is a history in tradition, but it's very different kinds
[7:42] Speaker 5: of gun laws than we have today. Truth be told
[7:44] Speaker 5: that if we really seriously applied this Bruin test, then
[7:48] Speaker 5: a whole raft of gun laws that are widely accepted
[7:51] Speaker 5: would not be constitutionally permissible. We didn't have background checks
[7:55] Speaker 5: back in the seventeen and eighteen hundreds or anything like it.
[7:58] Speaker 5: We didn't have bands on felon possessing firearms or anything
[8:01] Speaker 5: really like it, and we didn't have bands on the
[8:04] Speaker 5: mentally ill possessing firearms back in the seventeen and eighteen hundreds.
[8:07] Speaker 5: These are all modern twentieth century inventions, and yet the
[8:11] Speaker 5: court says we have to find analogies back in the
[8:15] Speaker 5: seventeen and eighteen hundreds. It's proven very difficult for the courts.
[8:18] Speaker 5: One difficult issue that's arisen in these cases is how
[8:22] Speaker 5: to think about the history of racist gun laws in America.
[8:26] Speaker 5: One thing there's been a lot of in the seventeen
[8:28] Speaker 5: and eighteen hundreds was gun laws that prohibited people who
[8:32] Speaker 5: were African American, for instance, from possessing firearms. In these
[8:36] Speaker 5: racist gun laws, the courts have kind of struggled with
[8:38] Speaker 5: how to figure out how to apply them, and that
[8:41] Speaker 5: came up in this case. You know, obviously you can't
[8:44] Speaker 5: look at those gun laws and say, well, there's a
[8:45] Speaker 5: principle that we can discriminate on the basis of race
[8:48] Speaker 5: in our gun laws. Today, no one would accept that conclusion.
[8:52] Speaker 5: But do those laws nonetheless reflect a measure of governmental
[8:56] Speaker 5: authority to regulate guns? And if they do, then it
[9:01] Speaker 5: would seem that that's part of the history and tradition
[9:03] Speaker 5: of gun laws and something that speaks to the extent
[9:06] Speaker 5: of government authority to regulate guns. In this case, Hawaii
[9:10] Speaker 5: relied on an eighteen sixty five law from Louisiana that
[9:14] Speaker 5: restricted gun carrying on premises and plantations without the owner's consent.
[9:19] Speaker 5: Neil Gorsich said that that was an outlier and part
[9:22] Speaker 5: of the Black Codes, and so it should be completely ignored.
[9:25] Speaker 5: Kaitanji Brown Jackson said no, said that if we ignore
[9:29] Speaker 5: those laws, then we aren't really looking at the full
[9:32] Speaker 5: history and tradition of gun regulation, as Bruin requires. And
[9:36] Speaker 5: so this has become a recurring problem in these cases,
[9:39] Speaker 5: and it'll be interesting to see what the court here
[9:41] Speaker 5: says that might sort that out.
[9:44] Speaker 2: Liberal Justices Sonya Sotomayor and Katanji Brown Jackson seemed open
[9:49] Speaker 2: to the argument that the laws better understood as a
[9:52] Speaker 2: matter of property rights and trespassing rather than as a
[9:55] Speaker 2: gun regulation, but Justice Gorzitz rejected that outright. So what
[10:00] Speaker 2: about property rights here?
[10:02] Speaker 5: Well, it is a difficult issue, right, because we do
[10:05] Speaker 5: recognize that private property owners can prohibit people from coming
[10:08] Speaker 5: on to their property, and even a property that's open
[10:12] Speaker 5: to the public, generally, you can prevent someone from coming
[10:14] Speaker 5: on your property if you don't want to do business
[10:16] Speaker 5: with them. Obviously, with the exception of things that are
[10:19] Speaker 5: prohibited by the Civil Rights Act or whatnot, you can't
[10:21] Speaker 5: prohibit on the basis of race, or sex or national origin.
[10:24] Speaker 5: But generally you could prohibit someone from coming onto your
[10:27] Speaker 5: property if you didn't like the fact that they weren't
[10:29] Speaker 5: wearing shoes, or they weren't wearing a shirt. And well,
[10:32] Speaker 5: it's at issue here is whether they could prohibit you
[10:35] Speaker 5: from coming on if you'd have a gun. Now, obviously
[10:37] Speaker 5: there's a difference between not having a shirt and having
[10:39] Speaker 5: a gun, and that there is a constitutional right to
[10:42] Speaker 5: have and to carry a firearm. But generally we think
[10:45] Speaker 5: that your constitutional rights do not extend onto someone else's
[10:48] Speaker 5: private property. And so this case poses a real challenge
[10:51] Speaker 5: to the court how to think about private property rights
[10:54] Speaker 5: in the context of an amendment that does say that
[10:57] Speaker 5: you can carry firearms in public.
[10:59] Speaker 2: Would you say it's pretty clear that the Conservatives intend
[11:02] Speaker 2: to strike the Hawaii law down.
[11:04] Speaker 5: It did seem like all six of the Conservative justices
[11:08] Speaker 5: voiced significant skepticism about Hawaii's law and are likely to
[11:13] Speaker 5: vote to strike Hawaii's law down. There was some skepticism However,
[11:19] Speaker 5: by Amy Comy Barrett about whether this law was constitutionally invalid.
[11:24] Speaker 5: She asked whether states could require consent before gun owners
[11:29] Speaker 5: carry on too private property that isn't open to the public,
[11:32] Speaker 5: and the lawyer for the challengers in this case said
[11:35] Speaker 5: that states could not require such consent, and Justice Barrett
[11:40] Speaker 5: voiced skepticism about that, saying, wait, so you're suggesting that
[11:43] Speaker 5: states could not prevent people from bringing guns into my
[11:46] Speaker 5: private home or the home of Neil Gorsich. But nonetheless,
[11:50] Speaker 5: she generally seems skeptical of Hawaii's law, and I would
[11:53] Speaker 5: expect Hawai's law to be struck down at least based
[11:56] Speaker 5: on the tenor of the oral argument.
[11:58] Speaker 2: There are similar measures in four other states California, Maryland,
[12:02] Speaker 2: New York, and New Jersey. If the Court strikes down
[12:05] Speaker 2: the Hawaii law, will those fall as well?
[12:09] Speaker 5: It seems likely that's the case. You know, it's possible
[12:12] Speaker 5: you might see a more narrow ruling that only looks
[12:14] Speaker 5: at some of the particularities of Hawaii's law, but I
[12:19] Speaker 5: don't think that's likely.
[12:21] Speaker 2: Finally, the Court has expanded gun right since Bruin, but
[12:24] Speaker 2: there have been cases here and there where they allowed
[12:27] Speaker 2: restrictions like the ghost gun restrictions and the restrictions on
[12:31] Speaker 2: people with domestic violence restraining orders against them. Do you
[12:35] Speaker 2: understand where the line is for the conservative justices?
[12:39] Speaker 5: Well, I think this is really a difficult issue. What
[12:41] Speaker 5: the Supreme Court said and the Rahimi case where they
[12:44] Speaker 5: upheld the ban on domestic abusers subject to a restraining
[12:47] Speaker 5: order from possessing firearms, is that there was a history
[12:49] Speaker 5: and tradition of banning gun possession by dangerous people. Now
[12:53] Speaker 5: that seems like that would lead to believe that, you know,
[12:56] Speaker 5: felons can be banned from having firearms. There's a case
[12:59] Speaker 5: the Supreme Court set here later this term on whether
[13:02] Speaker 5: unlawful users of controlled substances can be prohibited from possessing firearms.
[13:07] Speaker 5: Presumably the reason there is because they're dangerous, and one
[13:09] Speaker 5: would think that the Raheemi case would lead to the
[13:12] Speaker 5: substance abuser ban being upheld. But the difficulty even there
[13:16] Speaker 5: is that Raheemi drew on analogies to some laws in
[13:20] Speaker 5: the eighteen hundreds that actually didn't prohibit dangerous people from
[13:24] Speaker 5: possessing firearms. They prohibited some people from carrying guns in
[13:28] Speaker 5: some circumstances, but none of those laws that the court
[13:31] Speaker 5: cited to prohibited someone from having a gun in their
[13:35] Speaker 5: home and using it for self defense, which is exactly
[13:38] Speaker 5: what the substance abuser ban does and what the ban
[13:40] Speaker 5: on felons and possession does. And so it seems like
[13:44] Speaker 5: again it's going to be about the dueling analogies to
[13:46] Speaker 5: a historical tradition that is ambiguous and frankly just not
[13:50] Speaker 5: that helpful in deciding the constitutionality of modern gun laws.
[13:54] Speaker 2: It's been great having you on again, Adam, Thanks so
[13:56] Speaker 2: much fast, Professor Adam Winkler of UCLA LASS. And now
[14:01] Speaker 2: a note. Michael Bloomberg, the founder and majority owner of
[14:04] Speaker 2: Bloomberg LP, the parent company of Bloomberg Radio, is a
[14:08] Speaker 2: donor to groups that support gun control, including Every Town
[14:12] Speaker 2: for Gun Safety.
[14:14] Speaker 6: The President, by your own admission, cannot fire someone for
[14:20] Speaker 6: disagreeing with his policy choices. You've conceded that, correct, correct,
[14:26] Speaker 6: all right, So it's not as if keeping her is
[14:30] Speaker 6: going to twart any right he has to run the department,
[14:34] Speaker 6: because he has none. He's conceded that on policy he
[14:39] Speaker 6: does not.
[14:40] Speaker 2: In the one hundred and twelve year history of the
[14:42] Speaker 2: Federal Reserve, no president has ever tried to fire a
[14:46] Speaker 2: governor from the board, and the Supreme Court indicated they're
[14:50] Speaker 2: unlikely to permit President Trump to be the first to
[14:53] Speaker 2: do so. On Wednesday, Supreme Court Justice is across the
[14:57] Speaker 2: ideological spectrum expressed learns about the implications of Trump removing
[15:03] Speaker 2: Federal Reserve Governor Lisa Cook over unproven mortgage fraud allegations,
[15:08] Speaker 2: concerns that it would upend the Fed's independence and rattle
[15:12] Speaker 2: the markets. Justice is Brett Kavanaugh and Amy Cony Barrett,
[15:16] Speaker 2: both Trump appointees, pose skeptical questions to the US Solicitor General,
[15:22] Speaker 2: who argues, on behalf of the federal government.
[15:25] Speaker 7: Your position that there's no judicial review, no process required,
[15:32] Speaker 7: no remedy available, very low bar for cause that the
[15:38] Speaker 7: president alone determines. I mean that would weaken, if not shattered,
[15:42] Speaker 7: the independence of the Federal Reserve.
[15:45] Speaker 8: Justine Sodomaira brought up the public interests here, and we
[15:49] Speaker 8: have amicus brace from economists who tell us that if
[15:52] Speaker 8: Governor Cook is if we grant you your stay, that
[15:55] Speaker 8: it could trigger overcession.
[15:57] Speaker 2: Both Cook and Federal Reserve Chairman Jerome Owl sat through
[16:01] Speaker 2: nearly two hours of arguments in the packed courtroom. Cook
[16:05] Speaker 2: has denied any wrongdoing, and the threshold for an emergency
[16:08] Speaker 2: intervention by the Court is high and includes a showing
[16:12] Speaker 2: of irreparable harm to the president, something several jaunctices, including
[16:18] Speaker 2: Katanji Brown Jackson, said there was no evidence of.
[16:22] Speaker 9: So the question is to what extent do we believe
[16:29] Speaker 9: that the President or the public is harmed by allowing
[16:33] Speaker 9: Miss Cook to remain in her position for the pendency
[16:37] Speaker 9: of this case, I'm not sure that we have evidence
[16:41] Speaker 9: here that missus Cook is an immediate threat to the public.
[16:47] Speaker 2: The decision in this case could set a crucial precedent
[16:50] Speaker 2: for the President's influence over the Central Bank and his
[16:54] Speaker 2: attempt to further expand presidential power. My guest is constitutional
[16:59] Speaker 2: law experts David Super, a professor at Georgetown Law. David,
[17:04] Speaker 2: at this point, the Supreme Court doesn't have to definitively
[17:07] Speaker 2: resolve whether Trump can fire Cook. The issue right now
[17:11] Speaker 2: is whether Cook can stay on the job while her
[17:14] Speaker 2: challenge to the firing plays out in the lower courts.
[17:18] Speaker 2: If you just go by the oral arguments, did it
[17:21] Speaker 2: seem like there were at least five justices who would
[17:24] Speaker 2: vote to prevent Trump from firing.
[17:26] Speaker 1: Cook, I think so. The government's lawyer faced pretty tough
[17:31] Speaker 1: questioning from seven justices, and it only takes five. There's
[17:36] Speaker 1: a lot of niceties in this case, but what it
[17:39] Speaker 1: comes down to is whether the Federal Reserve will be independent,
[17:42] Speaker 1: whether it will exercise its enormous powers based on best
[17:46] Speaker 1: expert judgment and the directions given by Congress, or whether
[17:51] Speaker 1: it will be just a tool of the sitting president
[17:54] Speaker 1: who can use it irresponsibly to advance his political fortunes.
[17:58] Speaker 2: And explain the four couse requirement in the Federal Reserve Act.
[18:03] Speaker 1: Certainly, the Federal Reserve Act creates the Board of Governors,
[18:08] Speaker 1: allows the President to appoint people to that board with
[18:12] Speaker 1: Senate confirmation, and provides that once appointed and confirmed, they
[18:17] Speaker 1: cannot be removed except for cause. That effectively means that
[18:22] Speaker 1: they must do something wrong or fail to do their
[18:26] Speaker 1: jobs in order to be removed. It's not just up
[18:30] Speaker 1: to the president to fire them anytime he wants. He
[18:33] Speaker 1: can fire his chief of staff anytime he wants, but
[18:36] Speaker 1: members of the Federal Reserve Board he has to have
[18:39] Speaker 1: a good reason a cause to do it.
[18:41] Speaker 2: Cook argues that even if the mortgage fraud allegations were true,
[18:45] Speaker 2: that is in grounds for firing her for cause. What
[18:49] Speaker 2: did you hear from the justices on the four cause requirement?
[18:53] Speaker 1: Well, there was less clarity as to what they were
[18:56] Speaker 1: thinking about that, at least my take on the argument.
[18:59] Speaker 1: There are some statutes that provide considerable detail as to
[19:05] Speaker 1: what is caused. This statute isn't really one of them.
[19:09] Speaker 1: And some justices, particularly Justice Thomas, seemed to be thinking
[19:16] Speaker 1: that that difference between this and other laws means that
[19:20] Speaker 1: anything that Trump says is cause is good enough. But
[19:24] Speaker 1: there were other justices that seem responsive to the notion
[19:29] Speaker 1: that if the President can just make up any old
[19:32] Speaker 1: cause he wants, that there is effectively no independence for
[19:36] Speaker 1: the Federal Reserve. And I think that the extreme nature
[19:42] Speaker 1: of the argument here that the Slisser General had to
[19:45] Speaker 1: make is going to bite them. The essence of doctor
[19:48] Speaker 1: Crook's argument is all this information was available before I
[19:53] Speaker 1: was appointed and confirmed. Congress could have taken that into
[19:57] Speaker 1: account in deciding whether to confirm me. They didn't. And
[20:02] Speaker 1: the good cause requirement is supposed to relate to something
[20:05] Speaker 1: one does on the job. I didn't have this job
[20:09] Speaker 1: when I sought those mortgages. That Trump is saying are improper.
[20:14] Speaker 2: There was an extraordinary amicus or friend of the court
[20:17] Speaker 2: brief filed in this case, signed by every living former
[20:22] Speaker 2: chair of the Federal Reserve, as well as six former
[20:25] Speaker 2: Treasury secretaries and other experts, warning about how a decision
[20:30] Speaker 2: for Trump would affect the Fed's independence and the long
[20:33] Speaker 2: term stability of the economy, and Justice Barrett took note
[20:37] Speaker 2: of that.
[20:38] Speaker 1: Well, the elephant in the room is the copious evidence
[20:45] Speaker 1: that non independent central banks are very bad for country's economies.
[20:51] Speaker 1: And you can look at Russia, you can look at Turkey,
[20:54] Speaker 1: you can look at other countries that do not have
[20:56] Speaker 1: independent central banks, and they have enormous economic trouble as
[21:00] Speaker 1: a result. The justices know this, and even if philosophically
[21:04] Speaker 1: they'd like to let Trump have his way, I think
[21:08] Speaker 1: they don't want to be blamed for throwing the economy
[21:10] Speaker 1: into a recession. And to her credit, Justice Barrett put
[21:15] Speaker 1: that out on the table and gave the Solicitor General
[21:18] Speaker 1: the opportunity to respond. You didn't do much with it,
[21:20] Speaker 1: but she gave them a chance.
[21:22] Speaker 2: Cook is also arguing that she should have been given
[21:24] Speaker 2: notice and an opportunity to be heard to contest the
[21:28] Speaker 2: allegations before she was fired, and all the Trump appointees
[21:32] Speaker 2: pushed the Solicitor General to explain why that wasn't done.
[21:36] Speaker 2: With the question sort of hanging in the air, what
[21:39] Speaker 2: was the president afraid of?
[21:40] Speaker 8: You know, justice? Course it positive sit down across the
[21:44] Speaker 8: table in the Roosevelt run where the President provides ms
[21:48] Speaker 8: Cook Governor Cook with the evidence and waits to hear
[21:51] Speaker 8: what her response is. Gives her a chance to defend herself.
[21:54] Speaker 8: I mean, it just wouldn't be that big a deal.
[21:57] Speaker 7: And what's the fear of more process here? In the
[22:00] Speaker 7: sense that process protects you in the sense of helping
[22:05] Speaker 7: you make better, more accurate decisions, and it helps process
[22:08] Speaker 7: helps you then convince people on the outside that you've
[22:11] Speaker 7: made a considered, thorough appropriate decision. What's the concern about
[22:16] Speaker 7: more process?
[22:17] Speaker 2: And some of the justices seemed almost incredulous that the
[22:21] Speaker 2: Solicitor General was contending that Trump's social media posts constituted
[22:26] Speaker 2: formal notice to Cook.
[22:28] Speaker 1: Certainly, social media, particularly one's own personal social media platform,
[22:35] Speaker 1: is not a conventional way of giving notice. It's a
[22:38] Speaker 1: way of doing public politics. This slicter general actually went
[22:42] Speaker 1: even farther than you say, and suggested that the failure
[22:47] Speaker 1: of doctor Cook to tweet back at Trump should be
[22:52] Speaker 1: held against or should be held as an admission that
[22:55] Speaker 1: what Trump said was true. If I was held responsible
[22:59] Speaker 1: for every tweet I ignored, I would be in a
[23:02] Speaker 1: very bad way. And there was no hearing. There was
[23:06] Speaker 1: no pretense of a hearing. And the argument that the
[23:11] Speaker 1: Solicitor General was forced to make is that she got
[23:15] Speaker 1: the equivalent of a hearing in public in getting adverse
[23:20] Speaker 1: social media posts from Trump and not responding to them.
[23:25] Speaker 1: That's an argument that even most conservative justices seemed to
[23:29] Speaker 1: have a great difficulties following.
[23:31] Speaker 2: Unlike past arguments, it was really an uphill battle for
[23:35] Speaker 2: the Solicitor General. Did any of his arguments seem to
[23:39] Speaker 2: resonate with the justices?
[23:41] Speaker 1: Well, I mean, the biggest advantage that the president has
[23:45] Speaker 1: in this case is that the Supreme Court is pretty
[23:49] Speaker 1: clearly going to strike down security of ten year requirements
[23:54] Speaker 1: for the vast majority of executive branch officials. That's the
[23:59] Speaker 1: Trump versus Slaughter case. An oral argument on that made
[24:03] Speaker 1: pretty clear that the Court is going to overrule Humphrey's
[24:06] Speaker 1: executor and allow the president to fire at will members
[24:12] Speaker 1: of even very sensitive boards like the Federal Trade Commission.
[24:16] Speaker 1: So the question here is always been can the Supreme
[24:19] Speaker 1: Court find a way of differentiating the Federal Reserve from
[24:24] Speaker 1: the Federal Trade Commission and all those others? And that's
[24:27] Speaker 1: I think what this Lister General was trying to go
[24:31] Speaker 1: with here is to suggest that the Court should just
[24:36] Speaker 1: treat this case like any other. Once you look at
[24:39] Speaker 1: the specifics, the accusations against her fall apart in your hands.
[24:44] Speaker 1: She was obviously given no hearing, and as several justices,
[24:48] Speaker 1: including Justice Kavanaugh, pointed out, if you allow the president
[24:53] Speaker 1: to make up anything and call it cause, then you
[24:57] Speaker 1: have effectively ended the Fed's independent and that makes them
[25:01] Speaker 1: very nervous.
[25:02] Speaker 2: It's a high bar for the Supreme Court to intervene
[25:05] Speaker 2: on an emergency basis and includes a showing of a
[25:09] Speaker 2: reparable harm to the president. And as many of the
[25:12] Speaker 2: justices pointed out, you know, where's the irreparable harm to Trump?
[25:16] Speaker 1: Well, we have gotten a custom over the last year
[25:20] Speaker 1: to the Supreme Court finding that any potential impairment of
[25:25] Speaker 1: President Trump's powers is an irreparable injury. But if I
[25:30] Speaker 1: ask you to go way back in time one year,
[25:33] Speaker 1: that was very extraordinary and getting the Supreme Court to
[25:37] Speaker 1: intervene in lower court cases was very difficult throughout most
[25:41] Speaker 1: of this country's history. So perhaps the Court will revert
[25:45] Speaker 1: to that and say we shouldn't get involved until this
[25:49] Speaker 1: gets fully aired out in the lower courts.
[25:51] Speaker 2: Coming up next, more with Professor David super on what
[25:54] Speaker 2: the decision might look like. I'm June Grass. When you're
[25:57] Speaker 2: listening to Bloomberg, Let's.
[26:01] Speaker 7: Talk about the real world, downstream effects of this, because
[26:06] Speaker 7: if this were set as a precedent, it seems to me,
[26:11] Speaker 7: just thinking big picture, what goes around comes around. All
[26:16] Speaker 7: the current president's appointees would likely be removed for cause
[26:22] Speaker 7: on January twentieth, twenty twenty nine, if there's a democratic president,
[26:26] Speaker 7: or January twentieth, twenty thirty three, and then we're really
[26:33] Speaker 7: at at will removal. So what are we doing here?
[26:36] Speaker 2: Concerns about the unique nature of the Federal Reserve were
[26:40] Speaker 2: at the center of the Supreme Court oral arguments over
[26:43] Speaker 2: President Trump's attempts to fire Fed Governor Lisa Cook. So far,
[26:47] Speaker 2: the Court has largely accommodated Trump's assertions of sweeping presidential power,
[26:53] Speaker 2: lifting about twenty lower court rulings that were blocking his agenda,
[26:58] Speaker 2: but that success may be coming to an end. Conservative
[27:02] Speaker 2: and liberal justices alike signaled they'll defy Trump as he
[27:06] Speaker 2: tries to exert control of the nation's central bank by
[27:10] Speaker 2: firing Cook based on unproven allegations that she'd committed mortgage
[27:15] Speaker 2: fraud before her appointment by claiming two properties as her
[27:19] Speaker 2: principal residence. Cook denies the allegations and argues that even
[27:24] Speaker 2: if they were true, that doesn't constitute grounds for firing
[27:28] Speaker 2: her for cause. Chief Justice John Roberts seemed to agree, disputing,
[27:33] Speaker 2: Solicitor General John Sowers claimed that the misstatements, even if inadvertent,
[27:38] Speaker 2: constituted at least gross negligence.
[27:42] Speaker 5: Even if it was invertn or mistake, it's quite a
[27:45] Speaker 5: big mistake, so to speak, in a key financial representation
[27:48] Speaker 5: made in the context.
[27:49] Speaker 3: Of integral I mean, I suppose we can debate that
[27:52] Speaker 3: with how significant it is in a stack of papers
[27:54] Speaker 3: you have to fill out when you're buying.
[27:58] Speaker 1: Real estate.
[27:59] Speaker 2: The Chief also seemed a bit perturbed with the Solicitor
[28:02] Speaker 2: General's rather extreme position that the courts can't even review
[28:06] Speaker 2: the president's decision to fire a Federal Reserve governor, and
[28:10] Speaker 2: that they basically have no role whatsoever to play.
[28:14] Speaker 3: General Sauer, If you're correct that courts do not have
[28:18] Speaker 3: the authority to reinstate a removed officer, why are we
[28:22] Speaker 3: wasting our time wondering if there's cause or not? Because
[28:25] Speaker 3: even if we say yes, there is cause, shouldn't have
[28:28] Speaker 3: removed her, but we don't have the authority to order
[28:31] Speaker 3: her reinstatement. What's the How is that consistent with the
[28:37] Speaker 3: time and energy being spent on determining if there's cause.
[28:40] Speaker 2: Even one of the most conservative justices on the court,
[28:43] Speaker 2: Samuel Alito, express some annoyance with the administration, and it's
[28:48] Speaker 2: rushed to push the case forward.
[28:50] Speaker 4: Is there any reason why this whole matter had to
[28:53] Speaker 4: be handled by everybody, by the executive branch, by the
[28:58] Speaker 4: district court circuit in such a hurried manner. You began
[29:04] Speaker 4: by laying out what you claim to be the factual
[29:07] Speaker 4: basis for the four cause removal, but no court has
[29:12] Speaker 4: ever explored those facts. Are the mortgage applications even in
[29:17] Speaker 4: the record in this case.
[29:18] Speaker 2: Two lower courts block Trump from removing Cook. While the
[29:22] Speaker 2: legal fight moves forward. I've been talking to constitutional law
[29:26] Speaker 2: expert David super, a professor at Georgetown Law David, Let's
[29:30] Speaker 2: talk about the extreme nature of the administration's position here,
[29:35] Speaker 2: that the President doesn't have to provide any notice, any
[29:38] Speaker 2: hearing to a Fed governor before firing them, and that
[29:42] Speaker 2: the courts can't review that decision. The Chief basically said,
[29:46] Speaker 2: why are you wasting our time? Here? Was the administration
[29:49] Speaker 2: going too far from most of the justices?
[29:52] Speaker 1: I think so because the Solicitor General's position is that
[29:57] Speaker 1: the courts can't look at this. And if the President
[30:01] Speaker 1: can fire a Federal Reserve governor based on anything the
[30:06] Speaker 1: President makes up, and no matter how absurd and unfounded
[30:10] Speaker 1: it is, it can't be reversed, then effectively there is
[30:14] Speaker 1: no foe cause requirement in the Federal Reserve Statute, and
[30:18] Speaker 1: these people all serve at the pleasure of the President. Many,
[30:21] Speaker 1: many economists across the political spectrum believe that losing the
[30:26] Speaker 1: independence of the Federal Reserve would in the long term
[30:30] Speaker 1: reduce investment and increase infation in this country.
[30:34] Speaker 2: And Justice Kavanaugh in particular seem very concerned about the repercussions,
[30:40] Speaker 2: making that what goes around comes around argument and ending
[30:44] Speaker 2: by saying, so what are we doing here?
[30:46] Speaker 1: Yes? I mean if Ron believes as I do. The
[30:49] Speaker 1: President Trump's time horizon here is very short, and he
[30:53] Speaker 1: wants what he thinks is good for him right now.
[30:56] Speaker 1: Doesn't care about the long term impacts. Then that's of
[30:59] Speaker 1: no concern. But the whole reason we have the Supreme
[31:02] Speaker 1: Court with life tenures so that they can look at
[31:05] Speaker 1: the long term. They can look at the long term
[31:07] Speaker 1: impact on the long and long term impact on the economy.
[31:11] Speaker 1: And that, I think is where a court that is
[31:14] Speaker 1: generally very sympathetic to President Trump's agenda starts getting extremely nervous.
[31:20] Speaker 2: I wonder what you think about the timing here of
[31:22] Speaker 2: the Justice Department's criminal investigation into FED Chair Jerome Powell.
[31:28] Speaker 10: The threat of criminal charges is a consequence of the
[31:31] Speaker 10: Federal Reserve setting interest rates based on our best assessment
[31:35] Speaker 10: of what will serve the public, rather than following the
[31:38] Speaker 10: preferences of the president.
[31:40] Speaker 2: Isn't that investigation a bad look here because it tends
[31:43] Speaker 2: to show that Trump is trying to reshape the FED,
[31:47] Speaker 2: that it's all about interest rates rather than about the
[31:50] Speaker 2: actions of one Fed governor.
[31:53] Speaker 1: Yes, I think that is certainly the back of the
[31:56] Speaker 1: Justice's minds, Chairman of Powell, sitting there in the courtroom
[32:00] Speaker 1: watching all of this, so obviously, if they needed any reminding,
[32:06] Speaker 1: he was there in the flesh. I don't know why
[32:08] Speaker 1: they thought that was a good idea, particularly timed when
[32:11] Speaker 1: they did it, and particularly against someone like Chairman Powell,
[32:16] Speaker 1: who was appointed by President Trump and is pretty widely
[32:21] Speaker 1: approved of across the political spectrum, particularly among his fellow Republicans.
[32:26] Speaker 1: That strikes me as a remarkably handhanded and tone deaf
[32:30] Speaker 1: thing to do. I wouldn't like the administration's chances in
[32:34] Speaker 1: this case even without the Powell investigation, but they basically
[32:39] Speaker 1: gave the court no room to pretend that a ruling
[32:43] Speaker 1: against doctor Cook is compatible with an independent fed.
[32:47] Speaker 2: You know, the tone of the arguments changed completely when
[32:51] Speaker 2: the Solicitor General sat down and Lisa Cook's attorney, former
[32:55] Speaker 2: Solicitor General Paul Clement, stood up to argue. As you know,
[32:59] Speaker 2: he's one of the premier Supreme Court litigators. This is
[33:03] Speaker 2: the fifth time he's argued before the Court since October,
[33:07] Speaker 2: and it's hard to describe, but it seems less like
[33:09] Speaker 2: the justices are questioning him and more like they're having
[33:13] Speaker 2: a discussion. There was even laughter as he sort of
[33:16] Speaker 2: sparred with Justice Neil Gorsuch.
[33:19] Speaker 4: That's part of the reason I resisted the idea that
[33:21] Speaker 4: you have to go to mandamus, because I do think
[33:24] Speaker 4: you would have declaratory judgment.
[33:26] Speaker 7: I do think declaratory judgment.
[33:27] Speaker 4: I has to put that aside for them, and I
[33:31] Speaker 4: tried to as long as I could.
[33:32] Speaker 1: All right, then I give up.
[33:35] Speaker 4: Then to answer your question, I really had to get
[33:36] Speaker 4: to declaratory judgment.
[33:38] Speaker 1: Former Slicen Cleman is an extraordinarily skilled lawyer in general
[33:42] Speaker 1: and Supreme Court practitioner in particular. But he's also extremely
[33:47] Speaker 1: conservative and is not likely to take a conservative majority
[33:53] Speaker 1: of the Court for a ride to somewhere they don't
[33:56] Speaker 1: want to go. So people have been hiring General Clement,
[34:01] Speaker 1: I think, to provide reassurance in cases that might otherwise
[34:06] Speaker 1: feel uncomfortable to this very conservative supermajority.
[34:10] Speaker 2: So what do you think a decision in the case
[34:12] Speaker 2: will look like.
[34:13] Speaker 1: Well, the Justice have several ways of dealing with this.
[34:16] Speaker 1: If we assume, which after argument, I think we can,
[34:20] Speaker 1: that a majority of the Court does not want a
[34:24] Speaker 1: highly politicized federal Reserve and needs to find some way
[34:28] Speaker 1: of keeping doctor Cook on the board. They've got several
[34:31] Speaker 1: ways to go. They can say that the hearing was improper,
[34:36] Speaker 1: or the absence of a hearing and the notice was improper.
[34:39] Speaker 1: They can say that something that happened prior to her
[34:42] Speaker 1: taking the job doesn't count as good cause. They can
[34:47] Speaker 1: say that the lower courts need to look into the
[34:51] Speaker 1: merits of this or and this is something Justice Barrett
[34:56] Speaker 1: seemed interested in. They can simply say that President Trump
[35:01] Speaker 1: is not suffering any legal injury from having doctor Cook
[35:06] Speaker 1: continue to serve, and therefore he simply doesn't qualify for
[35:11] Speaker 1: a stay of the Lower courts injunction.
[35:14] Speaker 2: Is it possible that even Justice Alito might vote against
[35:17] Speaker 2: the Trump administration here?
[35:19] Speaker 1: I mean, he asked reasonable questions, but the tone struck
[35:24] Speaker 1: me as being largely sympathetic with the president, and I
[35:28] Speaker 1: think he is more committed than most to the unitary
[35:32] Speaker 1: executive theory, which this would have to be an exception to.
[35:36] Speaker 2: When they write their opinion, Do they have to explain
[35:39] Speaker 2: away that exception to the unitary executive theory and also
[35:44] Speaker 2: their likely decision allowing Trump to fire the FTC commissioner.
[35:49] Speaker 1: They've got various ways of hiding. The simplest is, because
[35:54] Speaker 1: this is a preliminary stage. Is to simply say that
[35:58] Speaker 1: President Trump hasn't qualify find for a stay and decided
[36:04] Speaker 1: entirely on procedural grounds. They also could say that they're
[36:08] Speaker 1: not required to consider what standards are appropriate for removing
[36:13] Speaker 1: Federal Reserve governors because in this case, the President claimed
[36:19] Speaker 1: to comply with the law, so all they have to
[36:21] Speaker 1: do is decide whether he did. They have a number
[36:24] Speaker 1: of ways of hiding. My guess is that they will
[36:27] Speaker 1: not be eager to explain how what they're doing here
[36:31] Speaker 1: is consistent with what they're going to do in the
[36:33] Speaker 1: FTC case, because, let's face it, it isn't. In this case.
[36:37] Speaker 1: They know how they want to come out, which is
[36:39] Speaker 1: against Trump and in favor of Federal Reserve independence, and
[36:43] Speaker 1: they have a huge obstacle to doing that, which is
[36:46] Speaker 1: their desire to end the independence of all the other boards.
[36:51] Speaker 1: So the whole argument was basically the justices feeling around
[36:56] Speaker 1: for a way that they could decide this case the
[36:59] Speaker 1: way they want to without undermining what they're doing to
[37:02] Speaker 1: the FDC. And I think at the end of the day,
[37:04] Speaker 1: there were enough paths open to them where they could
[37:07] Speaker 1: do that, and they will do that. And the Slister
[37:11] Speaker 1: General had to hang his hat entirely on consistency with
[37:16] Speaker 1: what they're doing in the FDC case, because the actual
[37:21] Speaker 1: decision on doctor Cook is essentially defensible.
[37:24] Speaker 2: Would you say that, along with the Tariff's decision, which
[37:27] Speaker 2: we're still waiting for, that this is one of the
[37:30] Speaker 2: most important decisions of the term as far as the
[37:33] Speaker 2: expansion of presidential power.
[37:36] Speaker 1: Well, these two plus the Fellow Trade Commission case. But
[37:40] Speaker 1: I think everyone believes that case is going to expand
[37:43] Speaker 1: presidential power radically, So people I think are not spending
[37:48] Speaker 1: as much time thinking about that since they feel they
[37:50] Speaker 1: already know how it's coming out.
[37:52] Speaker 2: It's shaping up to be a more controversial term than
[37:55] Speaker 2: I initially thought it would be. Thanks so much David
[37:59] Speaker 2: for going through all that and outs of the case.
[38:01] Speaker 2: That's Professor David Super of Georgetown Law. And that's it
[38:06] Speaker 2: for this edition of The Bloomberg Law Show. Remember you
[38:08] Speaker 2: can always get the latest legal news on our Bloomberg
[38:11] Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,
[38:14] Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,
[38:20] Speaker 2: and remember to tune into The Bloomberg Law Show every
[38:23] Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
[38:27] Speaker 2: and you're listening to Bloomberg

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