# SCOTUS Skeptical of Rastafarian Religious Damages Suit

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 12 Nov 2025, 36 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/d18b4a90-df90-4a04-b64c-b39300400ad0/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

John Meiser, a professor at Notre Dame Law School and director of the Religious Liberty Clinic, discusses the Supreme Court oral arguments over a Rastafarian inmate’s claim that prison guards violated his religious rights and should pay damages. Constitutional law professor Harold Krent of the Chicago-Kent College of Law, discusses the government’s claims in its case to deploy National Guard units to Chicago. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
[0:08] Speaker 2: It is undisputed that my client has alleged an assault
[0:11] Speaker 2: that is just brazenly illegal. He was at respondent's mercy
[0:16] Speaker 2: in federally funded custody when he handed them a copy
[0:19] Speaker 2: of controlling precedent holding that RALUPA protected his right to
[0:22] Speaker 2: keep his hair long. They threw it away, handcuffed him
[0:25] Speaker 2: to a chair, and shaved him bald.
[0:28] Speaker 3: Damon Landor is Arrastafarian who had followed the Nazarite vow
[0:33] Speaker 3: forbidding him from cutting his hair for nearly two decades.
[0:37] Speaker 3: When Landor was transferred to a new prison in Louisiana
[0:41] Speaker 3: with just weeks left on his five month sentence, he
[0:45] Speaker 3: carried a copy of an appeals court decision that held
[0:49] Speaker 3: that cutting a religious prisoner's dreadlocks violates federal law. But
[0:54] Speaker 3: a prison guard threw the ruling into the trash, and
[0:57] Speaker 3: despite Landor's please, he was handcuffed to a chair and
[1:02] Speaker 3: held down while his knee length dreadlocks were cut off.
[1:06] Speaker 3: No one disputes the glaring violation of his religious rights.
[1:10] Speaker 3: As Justice Amy Cony Barrett noted, look.
[1:13] Speaker 2: The facts of this case are egregious.
[1:16] Speaker 1: So if on the facts we were looking for a
[1:18] Speaker 1: case in which there should be money damages, this is it.
[1:22] Speaker 3: But it's not just about the facts. It's about the
[1:25] Speaker 3: law and whether Landor can sue the guards and prison
[1:29] Speaker 3: officials for damages under the Religious land Use and Institutionalized
[1:34] Speaker 3: Persons Act, better known as RALUPA. While the Supreme Court
[1:38] Speaker 3: has repeatedly sided with religious litigants in recent years, a
[1:43] Speaker 3: majority of the Conservative justice is led by Justice Neil Gorsuch,
[1:48] Speaker 3: appeared skeptical that Landor could sue individual corrections employees.
[1:54] Speaker 4: The circuits are unanimously against you and have been for many, many,
[1:57] Speaker 4: many years. So saying that something awful's going to happen,
[2:02] Speaker 4: it's all. Whatever's happened has happened, right.
[2:04] Speaker 3: The Conservatives questioned whether the prison guards had noticed that
[2:08] Speaker 3: they could be found individually liable, but the liberals said
[2:13] Speaker 3: the prison employees were on notice. Here are Chief Justice
[2:17] Speaker 3: John Roberts and Justice Sonya Sotomayor.
[2:20] Speaker 5: If you're hired as a prison guard in Louisiana, you
[2:25] Speaker 5: don't sit down, And I don't even know if Louisiana
[2:27] Speaker 5: does saying, oh, here's our agreement with the federal government,
[2:29] Speaker 5: which probably goes on for I don't know how many pages,
[2:32] Speaker 5: and you should look at it carefully because you're bound
[2:35] Speaker 5: by it.
[2:36] Speaker 6: Generally speaking, if you're a prison official, you know you're
[2:40] Speaker 6: working in a prison, and you bound by law to
[2:43] Speaker 6: pay damages if you violate the law. Do you get
[2:49] Speaker 6: an out?
[2:49] Speaker 3: Because what my guest is John Miezer, a professor at
[2:53] Speaker 3: Notre Dame Law School and director of the school's Religious
[2:57] Speaker 3: Liberty Clinic, John tell us about the law that Landor
[3:01] Speaker 3: is suing under.
[3:03] Speaker 1: That act, which you know shorthand is called RELUPA was
[3:06] Speaker 1: passed in two thousand in conjunction with an act that
[3:09] Speaker 1: was passed a few years earlier, the Religious Freedom Restoration Act,
[3:14] Speaker 1: and both of them sort of target the same goal,
[3:16] Speaker 1: which is to, as a matter of federal statutory law,
[3:20] Speaker 1: to restore a more robust set of protections for a
[3:25] Speaker 1: religious exercise, which which previously had been available under the
[3:29] Speaker 1: US Constitution, but then, following a seminal case in nineteen
[3:33] Speaker 1: ninety Employment Division versus Smith, it sort of restricted some
[3:38] Speaker 1: of those rights as a matter of constitutional law, and
[3:40] Speaker 1: then Congress acted to restore them as a matter of
[3:42] Speaker 1: statutory law.
[3:43] Speaker 3: So explain what the problem is with him using this law.
[3:48] Speaker 1: So Relupa, the particular law at issue here focuses on
[3:51] Speaker 1: two areas of state and local government activity. One is
[3:55] Speaker 1: in land use, you know, decisions about how you can
[3:57] Speaker 1: use your property. And then the one relevant here is
[4:00] Speaker 1: about religious exercise and jails and prisons. And so there's
[4:04] Speaker 1: no doubt that the law Relupa protects mister Landor's rights here.
[4:10] Speaker 1: He's a state prisoner, and so therefore Safeguards is right
[4:13] Speaker 1: while incarcerated to exercise his religion. And the only question
[4:18] Speaker 1: in this case is one of remedies. So the effects
[4:21] Speaker 1: are egregious, and I don't think anyone really doubts that
[4:24] Speaker 1: while he was in prison his rights were blatantly violated.
[4:28] Speaker 1: He's a Rastafarian, which among other things, requires him not
[4:31] Speaker 1: to cut his hair. He actually had a judicial decision
[4:35] Speaker 1: when he entered the prison that held the prison policy
[4:38] Speaker 1: requiring you know, they normally require forced shaving of all
[4:41] Speaker 1: the inmates hair. He had a decision saying that couldn't
[4:44] Speaker 1: be enforced against Rostafarians like him, But the guards literally
[4:47] Speaker 1: threw away that decision, hankuffed him to a chair and
[4:50] Speaker 1: shaved his head anyway, so there's no doubt his rights
[4:53] Speaker 1: were violated, and the question now is only what sort
[4:56] Speaker 1: of remedies does RELUPA allow for him to address that violation.
[5:02] Speaker 3: Justice Katanji Brown Jackson read from Reloopa and said, it
[5:05] Speaker 3: seems pretty clear. And five years ago the Supreme Court
[5:09] Speaker 3: unanimously ruled that the sister statute, the Religious Freedom Restoration Act,
[5:15] Speaker 3: permits money damages against federal officials. In that case, Muslims
[5:20] Speaker 3: were allowed to sue over their inclusion on the FBI's
[5:24] Speaker 3: no fly list. So why doesn't that analysis work for
[5:28] Speaker 3: the law here Reloopa.
[5:30] Speaker 1: Yeah, so the legal question out of heart is a
[5:31] Speaker 1: pretty technical one of congressional power. So what both REFRA
[5:36] Speaker 1: and RALUPA, what these laws allow is for someone who's
[5:39] Speaker 1: been injured, whose rights have been violated, to file a
[5:42] Speaker 1: lawsuit in federal court against those who caused the violation.
[5:48] Speaker 1: The statute the words of the law allow you, in
[5:50] Speaker 1: that lawsuit to get what is all appropriate relief. So
[5:54] Speaker 1: then the whole question becomes, well, what does Congress mean
[5:56] Speaker 1: by appropriate relief? One thing that's undisputed relief certainly includes
[6:01] Speaker 1: a judicial order that would prevent an ongoing violation of
[6:05] Speaker 1: religious rights. So if the jail, so to speak, we're
[6:08] Speaker 1: continuing to threaten to violate mister Landor's rights, say they
[6:12] Speaker 1: are shaving his head every week, you can get a
[6:15] Speaker 1: court order telling them to stop doing that. The question, though,
[6:18] Speaker 1: is that you just touched on there is But what
[6:20] Speaker 1: about one time harms? What about harms that aren't ongoing?
[6:23] Speaker 1: They're over now? How do you remedy those? Does the
[6:26] Speaker 1: law allow you to get monetary damages? Which would be
[6:29] Speaker 1: the normal way in a lawsuit if you've been harmed,
[6:31] Speaker 1: the normal recourse in the law is you're able to
[6:35] Speaker 1: get monetary damages to get money to help in some
[6:38] Speaker 1: way remedy you repair that harm. But the question here
[6:42] Speaker 1: is does RELOOPA allow that you're right riff ra out
[6:44] Speaker 1: of the sister statue it was held to allow monetary damages,
[6:47] Speaker 1: And the question of well does RELUPA allow the same
[6:50] Speaker 1: turns out a very particular idea of the congressional power
[6:54] Speaker 1: issue here, which is Congress's use of its spending power.
[6:58] Speaker 1: Does the spending claw require something more for a statute
[7:03] Speaker 1: to authorize monetary damages? Does appropriate relief clearly enough convey
[7:10] Speaker 1: that when a state accepts federal spending it might open
[7:13] Speaker 1: itself up or open its officers up to suits for
[7:16] Speaker 1: money damages.
[7:18] Speaker 3: Did it seem pretty apparent that most of the conservative
[7:23] Speaker 3: justices thought that the statute shouldn't apply here.
[7:28] Speaker 1: I don't know how clear it is, but I do
[7:29] Speaker 1: think a number of justices certainly expressed skepticism about that.
[7:33] Speaker 1: So there's a couple of different things going on. One
[7:36] Speaker 1: is what does the statute mean? You know, what does
[7:38] Speaker 1: appropriate relief mean in context of laws like this? And
[7:41] Speaker 1: so that question is does the statute itself is it
[7:44] Speaker 1: clear enough that it allows monetary damages? And then the
[7:47] Speaker 1: other is, well, okay, even if it is, even if
[7:48] Speaker 1: Congress did allow this, does the Constitution let Congress do
[7:52] Speaker 1: that through a spending clause law like this? And several
[7:55] Speaker 1: justices I think expressed some skepticism on one or both
[7:58] Speaker 1: of those questions. But I think I think this skepticism
[8:00] Speaker 1: all came back to a similar idea, which is spending
[8:04] Speaker 1: clause legislation. Right, it opens up money for state governments
[8:08] Speaker 1: to take part in federal programs or to receive federal
[8:11] Speaker 1: subsidies for different types of things. Here jails and prisons,
[8:15] Speaker 1: and the federal government can attach conditions to those. Sure
[8:17] Speaker 1: will help you pay for your prison facilities if you
[8:21] Speaker 1: agree to comply with X, Y, and Z. And the
[8:23] Speaker 1: Court's concern with laws like this is that states are
[8:27] Speaker 1: coming into that bargain with their eyes open, that they
[8:30] Speaker 1: understand the conditions they're agreeing to. It's one of notice,
[8:34] Speaker 1: one of clarity. So that's I think the driving concern here.
[8:37] Speaker 1: I don't think it is so much about whether it
[8:39] Speaker 1: would make sense to apply these substantive religious rights in prison.
[8:43] Speaker 1: And everyone agrees actually that the prison and its officials
[8:46] Speaker 1: are bound substantively to protect the rights that rerelopid demands.
[8:50] Speaker 1: But what some of the justices in the Court were
[8:51] Speaker 1: really struggling with was how clear was it. Were individuals
[8:54] Speaker 1: who work within those prisons really on notice that by
[8:57] Speaker 1: signing up to work in the prison they might be
[8:59] Speaker 1: suited for things like this.
[9:01] Speaker 3: It seemed like a lot of the conservative justices didn't
[9:04] Speaker 3: think that there was notice here. At one point, Chief
[9:08] Speaker 3: Justice John Roberts said, it's a legal fiction to say
[9:12] Speaker 3: that a prison guard knows what he's signing up for here.
[9:17] Speaker 3: But the liberals, particularly Justice Sodo Mayor, said, when you
[9:21] Speaker 3: sign up to work as a corrections official in a prison.
[9:25] Speaker 3: Doesn't that mean you're signing up to obey the law?
[9:29] Speaker 3: And you know, the act here was so obviously brutal, right,
[9:35] Speaker 3: and the guard just tossed the notice he got from
[9:39] Speaker 3: Landor into the trash.
[9:41] Speaker 1: I agree with that, I think, and I think mister
[9:43] Speaker 1: Landor has a very good argument here, right. So it's
[9:45] Speaker 1: of course true, as the Chief Justice pointed out, that
[9:48] Speaker 1: there's something of a legal fiction here, but that's you know,
[9:50] Speaker 1: these legal fictions run throughout the law. We're all presumed
[9:53] Speaker 1: to have knowledge and be aware of the contents of
[9:57] Speaker 1: criminal law. You know, is any given person on actually
[10:00] Speaker 1: aware of everything that's prohibited by federal or state criminal law? No,
[10:04] Speaker 1: of course, not right. But ignorance of the law, even
[10:06] Speaker 1: if actually true, we don't allow that ignorance of the
[10:08] Speaker 1: law to be excuse to defy it, right. And so
[10:11] Speaker 1: you know, just as Sodomayor's point here, which is echoed
[10:13] Speaker 1: throughout the argument by mister Landor's council, is that, at
[10:18] Speaker 1: least in this context where we're talking about people who
[10:21] Speaker 1: sign up to work in a prison or a jail,
[10:24] Speaker 1: these officers, we all the time presume they understand their
[10:28] Speaker 1: obligations under federal law, under constitutional law, under state law,
[10:33] Speaker 1: and they understand that if they violate those obligations, these
[10:36] Speaker 1: demands that they protect our rights, that they might be
[10:38] Speaker 1: sued for it. And again, I don't know there's any
[10:40] Speaker 1: doubt in the case, and I think the state actually
[10:42] Speaker 1: concedes that as a substantive matter, the state and its
[10:46] Speaker 1: officers were bound to follow the demands of RELUPA. So
[10:50] Speaker 1: then the only question is, well, is it different that
[10:52] Speaker 1: they need to also know they knew they had to
[10:54] Speaker 1: follow RELOOPA, they knew they could get sued under RELOOPA,
[10:58] Speaker 1: they knew they could be held subject to junctive relief
[11:00] Speaker 1: under LUPA. Do they also need to know that they
[11:04] Speaker 1: can be sued for money under ALUOPA. Well, even if
[11:07] Speaker 1: that's a separate question, I agree with mister Landor here,
[11:11] Speaker 1: that's not a very hard one, because again, as soon
[11:13] Speaker 1: as you're understanding that you might be sued as an individual,
[11:17] Speaker 1: the normal recourse is that if you're found and violated
[11:21] Speaker 1: the law, you might have to pay money damages.
[11:24] Speaker 3: Coming up next, where might the justices come out in
[11:28] Speaker 3: the case this is Bloomberg. The Supreme Court wrestle with
[11:33] Speaker 3: whether a former Louisiana inmate can sue prison officials who
[11:38] Speaker 3: cut off his dreadlocks in violation of his Rastafarian religious beliefs.
[11:43] Speaker 3: The justices heard arguments in the case of Damon Landor,
[11:47] Speaker 3: who wants to sue for money damages under a federal
[11:50] Speaker 3: law designed to protect the religious rights of inmates. The
[11:55] Speaker 3: court's three liberal justices seemed firmly on Landor's side, but
[11:59] Speaker 3: the court short's conservatives seem skeptical. Justice Neil Gorsich led
[12:05] Speaker 3: the court's conservative block at oral arguments in pressing the
[12:09] Speaker 3: attorneys for Damon Landor on where the Corrections employees should
[12:14] Speaker 3: be individually liable for contracts made between state institutions and
[12:19] Speaker 3: the federal government under a religious liberty statute.
[12:24] Speaker 4: Where did the defendant the individual defendants agree with the
[12:28] Speaker 4: federal government to be bound and what notice did they have?
[12:32] Speaker 4: And I understand your point earlier to the Chief that
[12:36] Speaker 4: they're subject to state regulations.
[12:38] Speaker 3: But Liberal Justice Katanji Brown Jackson said the statute was clear.
[12:44] Speaker 7: So I guess I'm trying to understand how Congress could
[12:46] Speaker 7: have said it any clearer. I mean, to the extent
[12:49] Speaker 7: that we're puzzling over whether or not. There's a clear
[12:54] Speaker 7: statement in the statute.
[12:57] Speaker 6: You know, it says a.
[12:58] Speaker 7: Person may assert a violation of this chapter as a
[13:01] Speaker 7: claim or defense in a judicial proceeding and obtain appropriate
[13:04] Speaker 7: relief against a government. If that doesn't refer to money
[13:10] Speaker 7: damages being brought by an individual for a violation of LUPA,
[13:15] Speaker 7: what could Congress have meant by appropriate relief here?
[13:18] Speaker 3: I've been talking to John Neezer of Notre Dame Law School.
[13:22] Speaker 3: Several justices pointed out that all the circuit courts and
[13:28] Speaker 3: all the lower courts have ruled against Landor's position here.
[13:33] Speaker 3: So why did the Supreme Court even take this case?
[13:36] Speaker 3: I mean, there was no circuit split, and it doesn't
[13:39] Speaker 3: seem like they took the case to reverse it.
[13:42] Speaker 1: Yeah. I think there's a couple of reasons. So one,
[13:44] Speaker 1: I think many of the justices questions overstated the level
[13:48] Speaker 1: of that agreement. As I mentioned earlier, there's really two
[13:51] Speaker 1: different legal questions in the case, which is, what does
[13:54] Speaker 1: the law mean? You know, when it's said as appropriate relief?
[13:57] Speaker 1: What is a properate relief in contacts? Would that be understated?
[14:00] Speaker 1: Thing is, even if the law does allow money damages,
[14:03] Speaker 1: can Congress do that in a law like this. So
[14:06] Speaker 1: circuit courts have arrived at similar conclusions, which is that
[14:09] Speaker 1: RELOPA doesn't allow damages, but they've done it through different paths,
[14:12] Speaker 1: and in fact, several courts have found that no, in fact,
[14:16] Speaker 1: the law is clear here that just like under RIFRA,
[14:18] Speaker 1: appropriate relief does in fact include damages. It's a normal,
[14:22] Speaker 1: expected remedy against an individual. And then you know, some
[14:25] Speaker 1: of them then said, but as a constitutional matter, the
[14:28] Speaker 1: court can't do that. They can't through spending legislation bind
[14:32] Speaker 1: these sort of individual third parties who didn't you know,
[14:35] Speaker 1: agree to the funds or something like that. And then
[14:37] Speaker 1: some courts have come out differently on those questions. So
[14:39] Speaker 1: although it's true that damages aren't available generally in federal
[14:42] Speaker 1: courts under RELOUPA, I don't think there's a lot of
[14:44] Speaker 1: agreement as to why. And then more to the point,
[14:48] Speaker 1: this is an area where where the Supreme Court has
[14:50] Speaker 1: recently providing more guidance. So under riffra, was you just
[14:54] Speaker 1: mentioned this recent case Tanzen, You know, courts weren't necessarily
[14:57] Speaker 1: getting that right idea that Riffra allowed monetary DAMA images.
[15:00] Speaker 1: The Court came in and said no, no, no, we look
[15:02] Speaker 1: at river for appropriate relief does include monetary damages against
[15:06] Speaker 1: individuals as the normal recourse. That was a pretty recent decision,
[15:09] Speaker 1: So now all around the country courts are having to
[15:11] Speaker 1: rethink their older precedent. Oh is it still good law?
[15:14] Speaker 1: Do I need to rethink it? After Tanzan and the
[15:16] Speaker 1: Court has stepped in to provide that clarity.
[15:18] Speaker 3: Justice so do Mayor and some of the other liberal
[15:22] Speaker 3: justices warned that ruling against land Or would potentially put
[15:26] Speaker 3: dozens of other federal statutes at risk.
[15:30] Speaker 1: Yeah, I certainly don't have a good read on just
[15:32] Speaker 1: how many statutes might look like this, or you know,
[15:35] Speaker 1: maybe relatedly, just how many other interpretations of those statutes
[15:39] Speaker 1: might be implicated in either way the Court goes. But
[15:42] Speaker 1: I guess I would say that, and I think all
[15:44] Speaker 1: the justices acknowledged this. This would certainly not be the
[15:47] Speaker 1: first time that the Court had ruled that spending Clause
[15:51] Speaker 1: legislation allowed Congress to create the right of action for
[15:57] Speaker 1: monetary damages against third parties or individuals. So that wouldn't
[16:01] Speaker 1: be sort of groundbreaking, you know, the extent to which
[16:06] Speaker 1: Congress can do that, or the terms through which Congress
[16:09] Speaker 1: must speak. I don't. Again, I don't think there's great
[16:11] Speaker 1: clarity in the law on that now, So ruling in
[16:14] Speaker 1: either way in this case is going to help provide guidance,
[16:16] Speaker 1: and I'm not sure that I have a strong sense
[16:18] Speaker 1: of which side is right. That would be more disruptive
[16:21] Speaker 1: to the law as it currently sits today.
[16:22] Speaker 3: Were you surprised at the turn that this argument took.
[16:26] Speaker 1: I don't know if I would say I'm surprised, you know,
[16:28] Speaker 1: I think initially I think you started here actually in
[16:32] Speaker 1: our conversation that there's a really strong argument, and I
[16:36] Speaker 1: think good reason to believe that. Well, if RIFFRA through
[16:40] Speaker 1: the exact same language passed by Congress for the exact
[16:43] Speaker 1: same reason to restore religious freedom. If RIFFRA allows monetary damages,
[16:48] Speaker 1: it's very hard to understand how you know, it's its
[16:50] Speaker 1: sister statute RULUPA doesn't. But I think I understand the
[16:54] Speaker 1: complications in the case. You know, it's this it's this
[16:57] Speaker 1: ery Dykee question of what Congress must do when it
[17:00] Speaker 1: through different enumerated powers. So you know, riff as not
[17:03] Speaker 1: spending clause legislation LUPA is they might require different things
[17:07] Speaker 1: of Congress. So I do think the case is harder
[17:11] Speaker 1: than it might appear at first blush. But I also
[17:14] Speaker 1: would hope that the court would ultimately align the reading
[17:16] Speaker 1: of the two statutes, and it would be at least
[17:18] Speaker 1: a somewhat unusual result if Riffer and Ralupa, these sister
[17:22] Speaker 1: statutes passed for the same purposes, allowed different remedies, and
[17:25] Speaker 1: it would leave people like mister Landor without any recourse
[17:28] Speaker 1: to remedy what all agree was an egregious violation of
[17:32] Speaker 1: his rights. And it would leave no ability to hold
[17:36] Speaker 1: the individuals who literally threw away a copy of a
[17:40] Speaker 1: court decision and to hold them accountable. And I think
[17:42] Speaker 1: that would be regrettable certainly.
[17:44] Speaker 6: Yeah.
[17:44] Speaker 3: And one of the justices I don't remember which justice,
[17:47] Speaker 3: asked at one point what happened to the guards who
[17:50] Speaker 3: did this? And the only answer was, well, the warden
[17:53] Speaker 3: was transferred or left. So one wonders if there was
[17:57] Speaker 3: any kind of punishment.
[17:59] Speaker 1: Right, And you know, in our religous livery plink, we
[18:01] Speaker 1: filed an amigas brief in the case on behalf of
[18:04] Speaker 1: a variety of religious organizations was point this out, which
[18:07] Speaker 1: point out the danger if someone who's harmed can't get
[18:10] Speaker 1: monetary damages. There might be very few and perhaps no options,
[18:14] Speaker 1: no mechanisms available to hold these violators accountable. Because if
[18:19] Speaker 1: it's a one time thing and it's over and done with,
[18:21] Speaker 1: and the court can't issue in order not to do
[18:24] Speaker 1: it because the violation has already occurred, well then what
[18:27] Speaker 1: can you do? Right? You can scold, you can reprimand
[18:30] Speaker 1: the prison and the lower court did here, you know,
[18:32] Speaker 1: so really just criticized in a harsh language what had
[18:36] Speaker 1: happened to mister Orlando. But beyond that, it's very been
[18:39] Speaker 1: mechanism to hold these folks accountable.
[18:41] Speaker 3: So, I mean, this court has, you know, repeatedly sided
[18:45] Speaker 3: with religious litigants in recent years. I mean, you could
[18:48] Speaker 3: go through a lot of cases. But there's the Christian
[18:51] Speaker 3: football coach who got to pray at the fifty yard
[18:54] Speaker 3: line after games. The Christian web designer who was allowed
[18:58] Speaker 3: to refuse to work with same six couples, the Texas
[19:02] Speaker 3: death row inmate who got to pray with his pastor.
[19:06] Speaker 3: I mean, on and on. If the court doesn't find
[19:09] Speaker 3: for the inmate here the Rastafarian, is there a danger
[19:15] Speaker 3: that people will say, well, when conservative Christians come before
[19:19] Speaker 3: the court, their religious rights are vindicated, but this Rastafarian
[19:25] Speaker 3: inmate his are not.
[19:27] Speaker 1: People will certainly say it right. I think it's easy
[19:31] Speaker 1: to predict that that would be you know, one criticism
[19:35] Speaker 1: of the decision if it were to go that way,
[19:38] Speaker 1: you know, I don't think it would be accurate or fair.
[19:41] Speaker 1: I think the Court is serious and committed to protecting
[19:45] Speaker 1: religious freedom. It's a right that, as you just mentioned,
[19:49] Speaker 1: in a number of areas, the Court has you know,
[19:51] Speaker 1: taken a lot of cases to ensure that it's not
[19:53] Speaker 1: being diminished around the country. I think that's true even
[19:58] Speaker 1: if they were to rule against mister Landore in this case,
[20:01] Speaker 1: and again I think if they were to do so,
[20:03] Speaker 1: which would be regrettable, I don't think that would be
[20:05] Speaker 1: the right decision. But if the Court were to do so,
[20:08] Speaker 1: I think it would not come from any different approach
[20:11] Speaker 1: based on the religious background of the plaintiff, but rather
[20:15] Speaker 1: based on you know, some of these really difficult structural
[20:19] Speaker 1: questions about congressional authority the Court is grappling with. And
[20:23] Speaker 1: you know, I would just point out that that those
[20:25] Speaker 1: cases in this one provide, and the Court knows this
[20:28] Speaker 1: significant protections for all religions. You know, whether any given
[20:34] Speaker 1: climate is Christian or not, And certainly not all of
[20:38] Speaker 1: the plants in these prior cases have been Christian. There's
[20:40] Speaker 1: one just this past term where the lead plants are
[20:43] Speaker 1: Muslim families. So I don't think that would be an
[20:45] Speaker 1: appropriate reading of the case.
[20:46] Speaker 3: Now, I mean, do you have a feel for how
[20:48] Speaker 3: it's going to come out or you don't.
[20:50] Speaker 1: No, I don't have a feel. I mean, I think
[20:52] Speaker 1: this kind of goes back to what we were saying,
[20:53] Speaker 1: is like, I think it's a complicated case. I think
[20:55] Speaker 1: it's It was obvious to me that in the argument
[20:58] Speaker 1: a lot of the justices were really strung with how
[21:01] Speaker 1: to draw these lines and these concerns over notice and
[21:04] Speaker 1: keeping Congress from overstepping its enumerated powers, which is which
[21:08] Speaker 1: itself is a rights protecting idea typically, but with the
[21:11] Speaker 1: recognition that here is a seminal piece of legislation to
[21:14] Speaker 1: protect religious freedom, a piece of legislation in the Court
[21:18] Speaker 1: has repeatedly been sure to safeguard and uphold, and I
[21:22] Speaker 1: think there's real tensions with how best to weigh those
[21:27] Speaker 1: you know, competing sort of priorities of the court.
[21:30] Speaker 3: Yeah, I have to say that the case was so
[21:33] Speaker 3: egregious I mean, you have a prison guard tossing a
[21:38] Speaker 3: decision in the garbage, and then they forcibly hold him
[21:42] Speaker 3: down and cut off his dreadlocks. I thought they took
[21:45] Speaker 3: the case to reverse the court below and allow him
[21:49] Speaker 3: to sue for damages, especially considering how this court is
[21:54] Speaker 3: usually solicitous of religious litigants and the facts here. How
[21:58] Speaker 3: often do you have the plane if showing the law
[22:01] Speaker 3: to the defendant and the defendant just tossing it out,
[22:05] Speaker 3: you can't make these things up.
[22:07] Speaker 1: It would be Yeah. No, I mean, I agree, and
[22:09] Speaker 1: I think at the end of the day that the
[22:10] Speaker 1: simplest reading of the case is what you're saying. This
[22:14] Speaker 1: is a blatant violation of this man's rights. He doesn't
[22:17] Speaker 1: seem real. They literally threw away the decision. They handcuffed him,
[22:21] Speaker 1: they forcibly shaved him, and now the claim is brought
[22:25] Speaker 1: under a law that's nearly identical to him, that the
[22:27] Speaker 1: court just said allows lawsuits for damages like this. So
[22:31] Speaker 1: I agree. I think the easiest thing, simplest thing is yeah,
[22:36] Speaker 1: you take it to reverse and to make clear, Yes,
[22:38] Speaker 1: RALUPA is just like referra. It allows these damages. And
[22:41] Speaker 1: I think that's the right outcome. I do agree though
[22:44] Speaker 1: that from the argument it seems the court is certainly
[22:46] Speaker 1: struggling with more complications than that.
[22:49] Speaker 3: Well, it was great talking to you, John. We'll see
[22:51] Speaker 3: how the court comes out. That's Professor John Meser of
[22:55] Speaker 3: Notre Dame Law School coming up next. We'll tell you
[22:59] Speaker 3: what the Trump has meant told the Supreme Court about
[23:02] Speaker 3: its powers to send the military into Chicago. This is Bloomberg.
[23:09] Speaker 3: The Supreme Court is considering whether to let President Trump
[23:12] Speaker 3: deploy the National Guard to Chicago over the strong objections
[23:17] Speaker 3: of city and state officials. The case marks the first
[23:21] Speaker 3: time that the Supreme Court has been drawn into Trump's
[23:24] Speaker 3: effort to dispatch troops to democratic run cities where he
[23:29] Speaker 3: claims crime is rampant and where people are protesting his
[23:33] Speaker 3: immigration crackdown. President Trump's administration told the Supreme Court that
[23:38] Speaker 3: he could have sent active duty military troops to Chicago
[23:42] Speaker 3: to help enforce federal immigration laws, as he urges the
[23:46] Speaker 3: Court to instead let him deploy the National Guard. The
[23:50] Speaker 3: US Solicitor General John Sower told the court that the
[23:53] Speaker 3: president has sweeping discretion to dispatch the military forces of
[23:58] Speaker 3: his choosing to deal with domestic disturbances. A federal appeals
[24:04] Speaker 3: court decision refused to let Trump deploy the troops, agreeing
[24:08] Speaker 3: with Illinois officials that the federal government had failed to
[24:12] Speaker 3: show any evidence to justify the use of troops, even
[24:17] Speaker 3: giving substantial deference to Trump's claim that protests in Chicago
[24:22] Speaker 3: amounted to a rebellion or invasion that necessitated the use
[24:27] Speaker 3: of National Guard soldiers. Joining me is constitutional law expert
[24:31] Speaker 3: Harold Krant, a professor at the Chicago Kent College of Law.
[24:35] Speaker 3: So the Supreme Court has been thinking about this case
[24:39] Speaker 3: for since last month, and on October twenty ninth, the
[24:44] Speaker 3: justices asked whether regular forces refers to active duty troops.
[24:49] Speaker 3: First of all, explain why they're asking that.
[24:52] Speaker 8: The question is when the president can federalize the National Guard.
[24:58] Speaker 8: And under the prinit Statutes, there are two situations in
[25:01] Speaker 8: which the guards can be nationalized. The first is when
[25:05] Speaker 8: there's an act of rebellion, and some have claimed that
[25:08] Speaker 8: the government thinks that there is a rebellion going on
[25:11] Speaker 8: because of the activities against the border patrol and ice,
[25:15] Speaker 8: but most judges dismiss that as totally far fetched. And
[25:19] Speaker 8: the second is when there is the government cannot protect
[25:25] Speaker 8: or enforce federal law with regular forces. And so the
[25:30] Speaker 8: question is what does this phrase mean, And it's an
[25:33] Speaker 8: ambiguous phrase and there's been a disagreement about it for
[25:37] Speaker 8: a generation. And on one view, what the government says
[25:41] Speaker 8: is if there is any kind of pressure on federal
[25:45] Speaker 8: law enforcement, then the National Guard can be federalized. And
[25:48] Speaker 8: of course the pressure that they're referring to is the
[25:52] Speaker 8: challenges to ICE and the immigration agents. On the other hand,
[25:57] Speaker 8: the failure to force federal law with regular forces. Regular
[26:03] Speaker 8: forces might mean the military, in which case that's a
[26:06] Speaker 8: reference to the Insurrection Act, which in turn would say
[26:09] Speaker 8: that the only time you can federalize the National Guard
[26:13] Speaker 8: is when there is an insurrection and the military can't
[26:17] Speaker 8: do the job itself. So that's an extreme And there's
[26:20] Speaker 8: a middle position in which would say that the federal
[26:23] Speaker 8: government can only federalize the National Guard if general law
[26:28] Speaker 8: enforcement has broken down such that federal buildings, federal ICE
[26:32] Speaker 8: agents are in jeopardy of going about and doing their business.
[26:37] Speaker 8: So those are the three reads of those provisions. But
[26:41] Speaker 8: the idea of what regular forces mean is really key
[26:45] Speaker 8: and no one's answered, and obviously the Supreme Court is
[26:48] Speaker 8: troubled about that.
[26:49] Speaker 3: Chicago is arguing that it refers to the standing military,
[26:56] Speaker 3: not to immigration agents or civilians. So what does that mean.
[27:01] Speaker 8: I'm not sure that Chicago has made the more drastic
[27:04] Speaker 8: argument that says that regular forces means military. I think
[27:08] Speaker 8: what Chicago has argued is that the National Guard cannot
[27:12] Speaker 8: be federalized because there is no rebellion and because there
[27:16] Speaker 8: is no general failure of law enforcement. The federal agents
[27:21] Speaker 8: go about do their business. Littal buildings remain unscathed. So
[27:25] Speaker 8: they've just said, as a factual matter, the court here
[27:28] Speaker 8: held that there is no credibility to the court's position.
[27:32] Speaker 8: In fact, the court, I mean sorry, the Chicago ducked
[27:35] Speaker 8: the question of really what regular forces means that has
[27:39] Speaker 8: been raised by Amigas in the Supreme Court case, and
[27:43] Speaker 8: that would the narrow reading of Amigas or Meiki would
[27:47] Speaker 8: really help Chicago, And I don't think that they have
[27:51] Speaker 8: filed a supplemental briefing to join in.
[27:55] Speaker 3: So now the Solicitor General is saying that Trump could
[28:00] Speaker 3: have sent active duty military troops to Chicago to help
[28:04] Speaker 3: enforce federal immigration laws, and.
[28:08] Speaker 8: That could only be done under the Insurrection Act and
[28:11] Speaker 8: the Insurrection Act says, you know that there has to
[28:14] Speaker 8: be an invasion, and so you know, unless there's some
[28:17] Speaker 8: other novel reading of the Insurrection Act, regular forces cannot
[28:20] Speaker 8: be used for law enforcement absent in invasion. And by
[28:25] Speaker 8: no stretch of the imagination, have we had an invasion.
[28:29] Speaker 8: I guess President Trump might say the undocumented immigrants are
[28:33] Speaker 8: constituted an invasion, but I don't think that even the
[28:36] Speaker 8: Supreme Court would defer to that kind of reasoning.
[28:39] Speaker 3: I mean, what does it say that the court it's
[28:42] Speaker 3: on an X sort of expedited schedule, but not really expedited.
[28:46] Speaker 3: And in all this time, you know what's happened in
[28:50] Speaker 3: these cities, Chicago and Portland in LA. At one point,
[28:54] Speaker 3: the Trump administration was arguing to send the troops that
[28:57] Speaker 3: were supposed to be in LA to Portland. So I
[29:01] Speaker 3: guess there isn't an emergency in LA anymore. I mean,
[29:04] Speaker 3: does it seem inconsistent?
[29:07] Speaker 5: Yeah?
[29:07] Speaker 8: No, I think that the Supreme Court is very charchairity
[29:10] Speaker 8: of the President Trump's arguments with respect to the National Guard.
[29:15] Speaker 8: I don't think they like the idea of the standing
[29:18] Speaker 8: army in cities, and I think they're even skittish about
[29:21] Speaker 8: the National Guard and the statutory framework here seems very
[29:27] Speaker 8: much against the Trump administration. And we don't have rebellion,
[29:30] Speaker 8: we don't have an invasion, and there is very little
[29:34] Speaker 8: pressure on ordinary federal law enforcement, even if we don't
[29:39] Speaker 8: reach how to construe the term federal regular forces in
[29:44] Speaker 8: the National Guard Act.
[29:46] Speaker 3: But is the Supreme Court usually hesitant? This Supreme Court
[29:51] Speaker 3: to constrain the president's authority, thinking that you know, there
[29:56] Speaker 3: might be emergency situations where the president does have to act.
[30:01] Speaker 8: Well, there should be huge deference to the president if
[30:05] Speaker 8: there is an invasion or if there is a rebellion.
[30:08] Speaker 8: But if there is no colorable invasion or colorable rebellion,
[30:13] Speaker 8: that puts the Supreme Court in a bind. And I
[30:15] Speaker 8: think the Supreme Court members have not entered into this
[30:18] Speaker 8: fray yet because they're really torn about what to do.
[30:22] Speaker 8: And we're not seeing a kind of quick protection of
[30:26] Speaker 8: the administration that we have in context in terms of
[30:28] Speaker 8: discharging federal workers, cutting aid agreements, cutting grants, and so
[30:34] Speaker 8: on and so forth.
[30:35] Speaker 3: Trump has won the last twenty three cases that he
[30:39] Speaker 3: took to the Supreme Court, and the emergency docket.
[30:43] Speaker 8: It might be the first one might break the streak.
[30:45] Speaker 8: But I think everybody's watching the tariff case as well,
[30:47] Speaker 8: another sort of bell weather where it looks like the
[30:50] Speaker 8: justices may give a little pushback.
[30:52] Speaker 3: Let's turn to Snap benefits for a moment, though this
[30:56] Speaker 3: question could be over with the ending of the shut down,
[31:00] Speaker 3: but I think it's important to talk about the core
[31:03] Speaker 3: question here about the Snap benefits, where courts ordered Trump
[31:09] Speaker 3: to the Trump administration to pay the benefits, and the
[31:12] Speaker 3: Trump administration sent a message to states that were stepping
[31:18] Speaker 3: up and paying Snap benefits not to do it.
[31:23] Speaker 8: I'm actually just to shock you. I'm actually somewhat empathetic
[31:26] Speaker 8: to the Trump administration on this one.
[31:28] Speaker 1: I mean to dial back the clock.
[31:30] Speaker 8: The district court judge within the First Circuit made an
[31:36] Speaker 8: order to the Trump administration that said, you either have
[31:39] Speaker 8: to pay Snap benefits November in full, or you have
[31:45] Speaker 8: several days to make partial payment based upon the contingency fund.
[31:50] Speaker 8: The Trump administration agreed to pay all that was in
[31:54] Speaker 8: the contingency fund, which was about three quarters of the
[31:57] Speaker 8: Snap benefits for November, but it did so in a
[32:01] Speaker 8: kind of dilatorious way and said we can't meet the
[32:04] Speaker 8: deadline because it's too complicated. To figure out how to
[32:08] Speaker 8: make partial payments because of the arrangements and agreements we
[32:11] Speaker 8: have with the states. And so they chose to satisfy
[32:17] Speaker 8: the court order by making the partial payment from the
[32:20] Speaker 8: contingency fund as they could do, and they decided not
[32:24] Speaker 8: to use discretionary funds to make up for the deficit. Now,
[32:30] Speaker 8: what the court said then was you were moving too slowly.
[32:35] Speaker 8: You didn't you the government didn't meet the deadline, and therefore,
[32:40] Speaker 8: as an enforcement mechanism, we will require you to pay
[32:44] Speaker 8: the entire amount, basically transforming discretionary funds that the Department
[32:50] Speaker 8: of Agriculture had collected from tariffs into mandatory funding of
[32:54] Speaker 8: one program snap as opposed to other programs such as
[32:58] Speaker 8: nutrition for childs and infants. This is, you know, I think,
[33:04] Speaker 8: quite an intrusion into the general discretion of how the
[33:09] Speaker 8: Department of Agriculture should pay funds. And even the first
[33:13] Speaker 8: Circuit seemed to think that if you had a lawsuit
[33:17] Speaker 8: directed at the Department of Agriculture to require to use
[33:20] Speaker 8: its discretion in this particular way by paying for the
[33:25] Speaker 8: deficit in staff, that that lawsuit would be thrown out.
[33:30] Speaker 8: A court is non just disciple that basically the decision
[33:33] Speaker 8: of how to use discription rate funds is committed by
[33:36] Speaker 8: law to agency discretion. So only by using requiring the
[33:41] Speaker 8: payment of these discretionary funds as a remedy for the
[33:45] Speaker 8: government's tardy behavior in complying with the court ruling was
[33:52] Speaker 8: the court able to try to close the gap and
[33:55] Speaker 8: finalize the staff funding. So I think this is an
[33:59] Speaker 8: extra ordinary remedy acting. I think the government acted abominably
[34:03] Speaker 8: here in trying to withhold monies for the staff program.
[34:08] Speaker 8: But nonetheless, this court order seemed to overstep its bounds
[34:12] Speaker 8: in requiring that the full payment be made. Obviously, this
[34:16] Speaker 8: is putting pressure on Congress, and so this whole thing
[34:18] Speaker 8: maybe become mood quickly, but time still was remaining, so
[34:22] Speaker 8: we have to see.
[34:23] Speaker 3: How What about the Trump administration telling states, you know
[34:28] Speaker 3: you stop, stop what you're doing to pay snap benefits.
[34:34] Speaker 8: I think what the administration was doing was saying, we
[34:37] Speaker 8: can't guarantee you that if you pay more than the
[34:40] Speaker 8: if you fill the gap and pay more than the
[34:42] Speaker 8: contingency funds we have released, we won't guarantee that we'll
[34:46] Speaker 8: pay you back. And the government, federal government was right.
[34:51] Speaker 8: If some states have gone and paid full November staff benefits.
[34:55] Speaker 8: Others have paid zero. That's a state decision, and I
[34:58] Speaker 8: think the federal government was just telling them, you know, look,
[35:01] Speaker 8: if you do this and you pay more than the
[35:04] Speaker 8: what we've already agreed to pay, you're on the hook yourself.
[35:08] Speaker 8: And I think that's appropriate.
[35:10] Speaker 3: I mean, this was very important because this may be
[35:12] Speaker 3: one of the reasons why the Democrats caved the Snap.
[35:17] Speaker 8: It might be you know, obviously nobody wants to see
[35:20] Speaker 8: people go hungry, but ika at one point the Trump
[35:23] Speaker 8: of administration agreed that they would pay for November step
[35:26] Speaker 8: and then change their minds. And this changing the mind
[35:30] Speaker 8: I think infuriated the District court, which led to this
[35:34] Speaker 8: extraordinary remedy that the court imposed. The Supreme Court has
[35:40] Speaker 8: given an administrative stay, so we'll have to see how
[35:42] Speaker 8: this all plays out.
[35:43] Speaker 3: Thanks Hal. That's Harold Krant of the Chicago Kent College
[35:46] Speaker 3: of Law, and that's it for this edition of the
[35:49] Speaker 3: Bloomberg Law Show. Remember you can always get the latest
[35:52] Speaker 3: legal news on our Bloomberg Law Podcast. You can find
[35:55] Speaker 3: them on Apple Podcasts, Spotify, and at www dot Bloomberg
[36:00] Speaker 3: dot com, slash podcast Slash Law, and remember to Tune
[36:04] Speaker 3: into The Bloomberg Law Show every weeknight at ten pm
[36:07] Speaker 3: Wall Street Time. I'm June Grosso and you're listening to
[36:11] Speaker 3: Bloomberg

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